U.S. Attorney defends cutting time for those who cooperate
By Teresa Auch Schultz firstname.lastname@example.org July 6, 2014 6:42PM
Updated: August 8, 2014 6:03AM
When a Gary woman recently pleaded guilty to selling an infant to a man for sex, she faced a mandatory minimum of 30 years in prison.
However, because of Natisha Hillard’s cooperation in the case — she helped get her co-defendant, Christopher Bour, sentenced to life in prison — federal attorneys filed what’s called a 5K1.1 motion, which can help reduce the sentence a defendant receives and, in some cases, can actually get them below mandatory minimums.
These motions have been used in other big cases in the U.S. District Court in Hammond, including the Latin Kings racketeering case in order to get the ball rolling on defendants willing to cooperate.
But U.S. District Judge Rudy Lozano recently expressed concern about the government’s use of this motion.
Lozano, who oversaw Hillard’s and Bour’s cases, commented at her sentencing on June 11 that it seems a majority of the criminal cases he gets from the government now involve a 5K1.1 motion.
The judge noted that he used to get only a handful a year.
“Now it’s a rarity I don’t see a 5K1.1 motion from your office,” Lozano told Assistant U.S. Attorney Jill Koster during the hearing.
The judge added that he didn’t know if he could give the motions as much weight as he has in the past.
U.S. Attorney David Capp defended his office’s use of the motion, saying that data from his office show that the rate of the 5K1.1 motions has actually held relatively steady from 2008 through 2013 at about 20 percent of cases a year.
“It’s a very effective tool,” he said.
The purpose of the 5K1.1 is to reward defendants who cooperate, and only prosecutors can file the motion.
The government can also ask for various levels of reduction to the sentence range that a defendant is facing, with some motions asking for relatively small reductions.
“We try to assess the value of cooperation,” Capp said.
Others, as was the case with Hillard, ask the judge to go below mandatory minimum sentences. Koster argued during Hillard’s trial that she was the only way the government could prove that Bour had paid money to have sex with an infant on eight separate occasions. Without the evidence of the exchange of money, Koster said, the charges that the government could prosecute came with a mandatory max of just 30 years in prison.
Capp later affirmed that.
“We could not have gotten Bour on life without her help,” he said.
The motion has helped the government in other cases, including the Latin Kings racketeering case, he added.
When the case was initially filed in June 2010, it charged just six defendants in two murders. The case eventually grew to more than 20 defendants, however, charged in about 20 murders.
Capp credited the 5K1.1 motion for that growth.
“We have to be able to offer some sentencing relief to get these guys to cooperate,” he said.
Several of the defendants in that case who pleaded guilty to murder, including Highland resident Alexander Vargas, were looking at mandatory sentences of life in prison. The government filed 5K1.1 motions to go below that, though, because they cooperated in cases against their fellow defendants, and they’re now serving anywhere from 20 to 30 years in prison.
Capp pointed out that because Lozano did handle the Latin Kings case, which included many more defendants than most criminal cases, that could be one reason why the judge has seen more of these motions recently than he did in the past.
When it comes to 5K1.1 motions, Capp’s office is a little higher than the national average, he said. However, other districts use other motions to help lower sentences that Capp’s office does not use. When all are factored in together, the office is at about the national average, he said.
Although Lozano continued to express concern about the 5K1.1 motion at Hillard’s sentencing, he did eventually agree to grant it.
He sentenced Hillard to about 24 years in prison, six years less than the mandatory minimum.