United States v. Scarpa, No. 16-303 (2d Cir. 2017)Annotate this Case
When the U.S. Attorney has refused to make a Federal Rule of Criminal Procedure 35(b) motion for reasons that are not invidious or unrelated to a legitimate government concern, it is not the office of the court to weigh the equities or reassess the facts underlying the government's exercise of its discretion. In this case, the United States appealed an order and second amended judgment reducing defendant's amended judgment in 1999 following his conviction. The Second Circuit held that the district court exceeded the scope and nature of its inquiry and the findings the district court relied on were not sufficiently supported by the record. Here, defendant had committed perjury at his trial; in two other criminal cases he had submitted affidavits that the respective presiding judges found could not be credited; and, most relevantly, he had purported to cooperate with the government with regard to terrorism plans while instead actively misleading the government and affirmatively compromising the investigative efforts he caused it to undertake.