The opinion of the court was delivered by: LEONARD D. WEXLER
On April 3, 1991, Fred Schneider ("Schneider" or "petitioner") pled guilty to one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, two counts of filing false and fraudulent income tax returns in violation of 26 U.S.C. § 7602 and one count of filing a false and fraudulent return while released on bail in violation of 26 U.S.C. § 7602(2) and 18 U.S.C. § 2147. On June 27, 1991, Schneider was sentenced to a total jail term of five years and ten days. Presently before the Court is Schneider's motion to set aside his sentence pursuant to 28 U.S.C. § 2255 on the grounds that: (1) the government acted in bad faith when it failed to move for downward departure pursuant to § 5K1.1 of the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines"); (2) recent amendment of the Sentencing Guidelines supports a three point reduction for acceptance of responsibility instead of the two point reduction afforded Schneider; and (3) he was denied effective assistance of counsel. For the reasons stated below, petitioner's motion is denied in all respects.
On April 3, 1991, petitioner, in the presence of his attorney, entered into a written plea agreement with the government. This Court accepted the plea agreement in which Schneider stipulated that he caused a $ 1.5 to $ 2 million dollar tax loss to the government and agreed, among other things, "to be fully debriefed, and to attend all meetings at which his presence is requested, concerning his participation in and knowledge of any matters about which the Office may inquire." Plea Agreement at 4. Schneider also agreed to furnish the government with "all documents and tangible objects that may be relevant to the investigation and that are in his possession, custody or control . . ." Plea Agreement at 5.
In return, the government committed itself to file a § 5K1.1 letter, if it determined that petitioner "cooperated fully, provided substantial assistance to law enforcement authorities and otherwise complied with the terms of [the plea] agreement." Plea Agreement at 6. Additionally, the plea agreement stated that it is "understood that the Office's determination of whether FRED SCHNEIDER has cooperated fully and provided substantial assistance, and the Office's assessment of the value, truthfulness, completeness and accuracy of the cooperation, shall be binding upon him." Id. at 6-7.
At sentencing, Schneider, who was represented by counsel, did not object to the government's failure to submit a § 5K1.1 letter. Rather, petitioner's attorney requested the opportunity to have Schneider cooperate in the future, with a view towards a reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. In a letter dated July 11, 1991, the government requested that any information Schneider desired to share with the government should be made in a detailed written narrative form. No such narrative was ever delivered to the government.
Petitioner now claims that his sentence should be set aside because the government's failure to submit a § 5K1.1 letter was arbitrary and in bad faith. He claims that he did provide the government with substantial assistance and that as a result of this assistance, the I.R.S. collected taxes owed by his former clients.
Additionally, citing a recent amendment of the Sentencing Guidelines, petitioner suggests that he is entitled to a 3-level reduction for "acceptance of responsibility" instead of the 2-level reduction reflected in his presentence investigative report ("PSI").
Finally, Schneider also seeks to set aside his sentence on the ground that he was denied effective assistance of counsel. He bases this claim on a number of grounds. First, he argues that his attorney should have accompanied him to his debriefings with the government. Petitioner claims that if his attorney had accompanied him to the meetings, he "would have been reassured that he was facing no other criminal charges" and he would have responded to the government's inquiries in such a way that the government would have been satisfied with his level of cooperation. Second, petitioner claims that his counsel knew "that defendant Schneider's cooperation would be limited to the area of tax collections" yet neglected to enter this stipulation into the plea agreement. Third, petitioner argues that his counsel was remiss in not challenging his PSI. Indeed, petitioner speculates that his attorney conspired with the government to deny him a Fatico hearing. Petitioner now finds the following errors in the report: (1) petitioner suggests that the amount of tax loss suffered by the government as a result of the fraudulent tax returns prepared by his associates should not have been counted against him and that in any event the figure was calculated incorrectly; and (2) petitioner suggests that enhancements for "being an organizer," "using sophisticated means" and "preparing tax returns" amount to impermissible double counting.
Petitioner requests that this Court schedule an evidentiary hearing to determine the validity of his claims. He also seeks substantial discovery to support his claim that the government acted in bad faith when it failed to issue the § 5K1.1 letter. Finally, petitioner also requests that this Court appoint counsel for him to "handle discovery . . . and a possible evidentiary hearing."
A. The Government's Failure to Issue the § ...