United States of America v. Gary W. Jones

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-1411
UNITED STATES OF AMERICA
v.
GARY W. JONES,
Appellant
On Appeal from the United States
District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 02-cr-00575)
District Judge: Hon. Eduardo C.
Robreno
Argued March 11, 2004
Before: SLOVITER and NYGAARD,
Circuit Judges, and SHADUR, District
Judge*
(Filed: August 27, 2004)
David L. McColgin (Argued)
Assistant Federal Defender
Supervising Appellate Attorney
Maureen Kearney Rowley
Chief Federal Defender
Robert Epstein
Federal Court Division
Defender Association of Philadelphia
Philadelphia, PA 19106
Attorneys for Appellant
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney
for Policy and Appeals
Robert A. Zauzmer
Assistant United States Attorney
Senior Appellate Counsel
Peter D. Hardy(Argued)
Catherine Votaw
Assistant United States Attorneys
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant states that the issue
before us is “[w]hether the district court
had the authority under U.S.S.G. § 5K2.0
to grant a downward departure, in the
absence of a government motion, on the
basis of Mr. Jones’s substantial assistance
in two civil matters.” We see the issue
differently, albeit related. The answer to
the issue posed by appellant is clear – a
* H o n . M i l t o n I. Shad ur, U nite d
States District Court Judge for the
Northern District of Illinois, sitting by
designation.

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district court may depart under U.S.S.G.
Section 5K2.0 without a Government
motion, and to the extent that the District
Court in this case said otherwise, it
misspoke. The more difficult question
raised by this appeal is whether appellant’s
assistance was a factor that falls within the
scope of Section 5K2.0.
I.
From October 1998 to April 1999,
Jones embezzled $236,626 in retirement
funds from Arthur and Selma Braid, an
elderly couple for whom Jones worked as
an accountant and financial advisor. Jones
accomplished this crime by forging Mr.
Braid’s signature on checks from Fidelity
Investments, where the Braids maintained
their retirement funds, and depositing the
checks into his own account. Also, during
this period Jones advised the couple to
invest $10,000 and Jones himself invested
his own funds and Mr. Braid’s stolen
retirement funds in International Recovery,
Limited (IRL) for what turned out to be a
fruitless venture. Mr. Braid later sued
Fidelity, but recouped less than half of the
embezzled funds.1
The Braids hired a new financial
adviser who discovered the theft in
October 1999 and they informed the FBI
and the SEC, which began investigating
Jones. Jones eventually admitted his
embezzlement and began cooperating with
the authorities in investigating IRL. Jones
states that in the course of assisting the
authorities, he made 60-70 phone calls,
two of which were monitored; attended
15-20 meetings; and wore a body wire for
the FBI during a meeting. After the FBI
decided not to pursue a criminal
investigation of IRL in August 2000, Jones
remained in contact with the SEC
regarding IRL until November 2000.
Jones alleges that he provided substantial
assistance, even purchasing a copy
machine from his own funds to copy
thousands of pages of relevant documents
to present to the SEC, traveled to the
Philippines to investigate IRL abroad, and
provided three to four hours of testimony
under oath “as part of the investigation of
this company,” which he believed had
“broken some laws and would be subject
to some kind of p[ro]secution for that.”
App. at 31a-32a, 45a-46a. Jones concedes,
however, that he undertook many of these
efforts without having been instructed to
do so by the Government. Jones contends
that IRL stopped soliciting investors and
went out of business, in part, because of
his actions. An SEC representative
informed the Government that it “never
acted on the defendant’s statements
because they could not be corroborated.”
Supp. App. at 3.
The Government indicted Jones for
1 Fidelity paid Mr. Braid $125,000,
and was reimbursed by its insurance
company. The Braids’ losses exceeded the
amount of the embezzled funds as they
incurred legal expenses in seeking to
recoup the loss and were required to pay
back taxes, penalties and interest, because
Jones failed to file their Pennsylvania tax
returns for six or seven years.

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bank fraud pursuant to 18 U.S.C. § 1344
and he pled guilty on October 24, 2002.
Jones moved for a downward departure
based on, inter alia,2 his cooperation with
the SEC and FBI in reporting IRL’s
activities, unco vering its financial
“inaccuracies and misappropriations,” and
exposing “undercover embezzling” by
officers of the corporation. App. at 102a-
04a. Jones also argued that Mr. Braid
received a settlement from Fidelity, based
in part on his assistance and willingness to
testify, which provided additional grounds
for a downward departure.
Critically, Jones moved for this
downward departure pursuant to U.S.
Sentencing Guideline Section 5K2.0.
Section 5K2.0 permits departures for
“mitigating circumstance[s] . . . not
adequately taken into consideration by the
Sentencing Commission”; it does not
require a supporting motion from the
Government, as is required for a motion
for substantial assistance under Section
5K1.1. The Government opposed Jones’
motion, arguing that he was not eligible
for a Section 5K2.0 departure because he
had not alleged unconstitutional motive or
bad faith acts by the Government.
The District Court denied Jones’
Section 5K2.0 motion for a downward
departure, stating:
[D]istrict courts have no
authority to grant substantial
departures under 5K2.0 in
t h e a b s e n c e o f a
Government motion under
5K1.1. And in this case,
there has been no motion
under 5K1.1.
Additionally, there is no
claim of unconstitutional
motive or discrimination or
bad faith on the part of the
Government.
I think to the extent
that the defendant has
cooperated, that should be
taken care of and the
defendant should be credited
with in the senten cin g
g u i d e l i n e s f o r h i s
cooperation with the SEC
and all the other efforts that
have been outlined here.
And finally, I find
that the combination of all
of those factors do not
warrant a departure under
Koon versus the United
States. And, again, I
recognize that I have the
power to depart as a result
of a combination of these
factors, but I find that this is
a case which does not
2 Jones also argued that a departure
was warranted because of his post-offense
rehabilitation (alcoholism recovery) and
his ability to make restitution to his victims
if he were not jailed. These grounds are
not at issue on appeal.

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4
warrant or justify it
and it’s not an
appropriate case for
the exercise of that
discretion.
App. at 74a-75a.
The District Court sentenced Jones
to imprisonment for 18 months and
required him to make restitution to the
Braids. Jones timely appealed.3
II.
Jones’ primary contention on appeal
is that the District Court improperly held
that it did not have authority to grant a
downward departure under Section 5K2.0
without an accompanying motion by the
Government in support. Inasmuch as this
presents a legal issue, we review the
District Court’s conclusions of law de
novo. United States v. Abuhouran, 161
F.3d 206, 209 (3d Cir. 1998).
Departures pursuant to Section
5K2.0 do not hinge upon a Government’s
motion in support thereof. U.S.
Sentencing Guidelines Manual § 5K2.0.
There is no such requirement in the
Guideline, and courts that have granted
such departures have done so without any
Government motion. See, e.g., Koon v.
United States, 518 U.S. 81 (1996); United
States v. Dominguez, 296 F.3d 192, 195
(3d Cir. 2002) (holding that district court
had authority to grant Section 5K2.0
downward departure despite Government’s
opposition); see also United States v.
Vitale, 159 F.3d 810, 813 (3d Cir. 1998)
(noting that district court granted
defendant’s § 5K2.0 departure, without
mention of Government support or
opposition thereto).
The more difficult question raised
by this case is whether a defendant’s
assistance in connection with a civil
investigation or case falls within the scope
of Section 5K2.0, as Jones contends, rather
than within the scope of Section 5K1.1.
Jones contends that his assistance to the
SEC took him outside the ambit of Section
5K1.1. Jones argues that we should
confine the supporting motion requirement
of Section 5K1.1 to substantial assistance
on criminal matters and that we should
hold that the district courts have the
discretion to grant departures for
assistance in civil matters under Section
5K2.0, which does not require a
supporting Government motion.
Sentencing Guideline Section
5K2.0, as it applied to Jones, provided in
part:
§ 5K2.0 Grounds for Departure
(Policy Statement)
Under 18 U.S.C. § 3553(b)
the sentencing court may
impose a sentence outside
the range established by the
applicable guideline, if the
court finds “that there exists
3 W e h a v e j u r i sd i c t io n o v e r this
matter pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).

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an aggravating or
m i t i g a t i n g
circumstance of a
kind, or to a degree,
not adequately taken
into consideration by
t h e S e n t e n c i n g
C o m m i s s i o n i n
f o r m u l a t in g t h e
g u i d e l i n e s t h a t
should result in a
sentence different
from that described.”
. . . [T]he court may
depart from the
g u i d e l i n e , e v e n
though the reason for
departure is taken
into consideration in
the guideline range
(e.g., as a specific
offense characteristic
or other adjustment),
i f t h e c o u r t
determines that, in
light of unusual
circumstances, the
weight attached to
that factor under the
g u i d e l i n e s i s
i n a d e q u a t e o r
excessive....
[A]n offender characteristic
or other circumstance that is
in the Commission’s view,
“not ordinarily relevant” in
determining wh ether a
sentence should be outside
the applicable guideline
range may be relevant to
this determination if such
c h a r a c t e r i s t i c o r
circumstance is present to
an unusual degree and
distinguishes the case from
t h e “heartland” cas es
covered by the guidelines.
U.S. Sentencing Guidelines Manual §
5K2.0.4
In Koon, the Supreme Court, in a
thorough discussion of Section 5K2.0,
stated that although Section 5K2.0 does
not impose a “limit on the number of
potential factors that may warrant
departure,” 518 U.S. at 106 (quoting Burns
v. United States, 501 U.S. 129, 136-37
(1991)), downward departure factors may
be categorized as falling into four primary
groups: factors that are prohibited,
encouraged, discouraged, or unmentioned.
Koon, 518 U.S. at 94-95. Consideration of
4 A l t h o u g h S e c t io n 5 K 2 . 0 w a s
amended in 2003 by the Prosecutorial
Remedies and Tools Against the
Exploitation of Children Today Act of
2003 (PROTECT Act), Pub. L. No. 108-
21, § 401(m)(2)(A), 117 Stat. 650, 675
(Apr. 30, 2003), this amendment does not
apply to Jones, whose criminal conduct
occurred and who was sentenced prior to
the amendment. The amendments do not
change the substance as applicable to
Jones.

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substantial assistance in civil matters is not
prohibited, encouraged, or discouraged.
Substantial assistance in civil matters is an
unmentioned factor and thus this court
“must, after considering the ‘structure and
theory of both relevant individual
guidelines and the Guidelines taken as a
whole,’ decide whether it is sufficient to
take the case out of the Guideline’s
heartland.” Id. (quoting United States v.
Rivera, 994 F.2d 942, 949 (1st Cir. 1993)).
This court has not yet addressed the
issue whether assistance in civil matters
falls within Section 5K2.0. In United
States v. Abuhouran, 161 F.3d 206 (3d Cir.
1998), we considered a somewhat related
issue: whether Section 5K2.0 gave the
district court the authority to depart
downward in a criminal case on the ground
that defendant offered su bstan tial
assistance to the Government even though
the Government had not moved for the
departure under Section 5K1.1. In
rejecting the defendant’s claim, we noted
we had recognized only two “extraordinary
circumstances” in which a district court
may depart from the Guidelines without
governmental acquiescence: where the
Government refused to file a substantial
assistance mo tio n based on an
unconstitutional motive, id. at 212 (citing
Wade v. United States, 504 U.S. 181
(1992)); and where the Government acted
in bad faith with regard to a plea
agreement, id. (United States v. Isaac, 141
F.3d 477, 484 (3d Cir. 1998)). We
reasoned that such a limited construction
was necessary to ensure that the judiciary
not be forced to police prosecutors or
become overly-involved in executive and
investigative functions. Id. at 216. In both
of those instances, the departure at issue
was sought under Section 5K1.1.
However, we acknowledged that
other courts have recognized a third
category of cases in which a downward
departure for substantial assistance is
possible under Section 5K2.0 in the
absence of a Government motion. We
explained:
Some cases have found that
a departure is permitted
under § 5K2.0 in the
absence of a government
mo tion for subs tantial
assistance to branches of
government other than those
that engage in prosecutorial
a c t i v i t i e s w h e n t h e
assistance does not involve
“ t h e in v e st i g a ti o n or
prosecution of an other
person who has committed
an offense.” See, e.g.,
United States v. Sanchez,
927 F.2d 1092, 1093-94 (9th
Cir. 1991) (assistance in the
prosecution of a civil
forfeiture case); United
States v. Khan, 920 F.2d
1100, 1107 (2d Cir. 1990)
(assistance in rescuing an
informant kidnapped by
foreign drug dealers);
United States v. Stoffberg,
7 8 2 F . S u p p . 1 7 , 1 9
(E.D.N.Y. 1992) (assistance

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to a congressional
committee).
Abuhouran, 161 F.3d at 212 n.5. Although
we acknowledged this line of cases, we
declined to address the merits of the cases
because the defendant in the case before us
on appeal had provided assistance “to the
executive branch in furtherance of its law
enforcement responsibilities.” Id. (citation
omitted). Nonetheless, we declined to
foreclose this third exception, stating that
Section 5K2.0 departures are permissible
where the Government has acted with an
unconstitutional motive, in bad faith with
regard to a plea agreement, “and possibly
those [cases] in which the assistance is not
of the sort covered by § 5K1.1.” Id. at
214. Because the defendant in Abuhouran
did not qualify for any of the exceptions
and he conceded that his assistance
involved purely criminal investigations
and prosecutions, we concluded that he
was not eligible for a departure under
Section 5K2.0.
Section 5K1.1 provides that,
“[u]pon motion of the government stating
that the defendant has provided substantial
assistance in the investigation or
prosecution of another person who has
committed an offense, the court may
depart from the guidelines.” U.S.
Sentencing Guidelines Manual § 5K1.1.
The bare text of Section 5K1.1 is thus
silent as to what type or types of assistance
it includes. In the instant case, Jones
posits a sharp demarcation between
assistance in connection with a criminal
matter, the realm of Section 5K1.1, and
assistance in connection with a civil
matter, which he contends is cognizable
only under Section 5K2.0.
Jones would have us limit Section
5K1.1 to assistance in criminal
investigations. Application Note 1
provides that “substantial assistance in the
investigation or prosecution of another
person who has committed an offense may
justify a sentence below a statutorily
required minimum sentence,” while
Application Note 2 explains that
“[s]ubstantial assistance is directed to the
investigation and prosecution of criminal
activities by persons other than the
defendant.” U.S. Sentencing Guidelines
Manual § 5K1.1, cmt. nn. 1, 2. Also, the
Background note refers to assistance in
criminal investigations, stating that “[a]
defendant’s assistance to authorities in the
investigation of criminal activities has
been recognized in practice and by statute
as a mitigating sentencing factor.” Id. at
cmt. background. None o f the
commentary is preclusive of assistance
beyond that to the criminal investigators.
In fact, a portion of the Background note
suggests a broader scope, as it states that,
“[t]he nature, extent, and significance of
assistance can involve a broad spectrum of
conduct that must be evaluated by the
court on an individual basis.” Id. Jones’
argument that the only assistance that can
be considered under Section 5K1.1 is to
investigation of a person’s criminal
activities is unpersuasive. After all, what
is at issue are Sentencing Guidelines,
applicable only to sentencing for “criminal
activities.”

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Jones calls our attention to case law
from the Courts of Appeals for the Second,
Ninth, and Sixth Circuits supporting the
c o n c l u s i o n t h a t S e ct i o n 5 K 2 .0
encompasses assistance that was not
provided in the in vestigation or
prosecution of another person even though
it trenched on an underlying criminal
matter. In United States v. Khan, 920 F.2d
1100 (2d Cir. 1990), cert. denied, 499 U.S.
969 (1991), the court stated that a
departure under Section 5K2.0, without a
Government motion, might be appropriate
where the defendant saved the life of a
kidnapped confidential informant because
the Sentencing Guidelines did not readily
provide a basis to account for such heroic
efforts. Id. at 1107. The court stated that
a Section 5K2.0 departure may be
available:
where the defendant offers
i n f o r m a ti o n r e g a r d i n g
actions [the defendant] took,
which could not be used by
the government to prosecute
other individuals (rendering
§ 5K1.1 inapplicable), but
which could be construed as
a “mitigating circumstance”
for purposes of § 5K2.0.
See Guidelines § 5K1.1,
Commentary, Application
N o t e 2 ( “ S u b s t a n t i a l
assistance is directed to the
i n v e s t i g a t i o n a n d
prosecution of criminal
activities by persons other
than the defendant”).
Khan, 920 F.2d at 1107. The court did not
actually decide the departure should have
been granted because the defendant had
waived this argument by failing to alert the
district court at sentencing of these
activities. Shortly thereafter, the same
court clarified its discussion in Khan by
stating that Khan limited this exception to
“assistance to the Government other than
the supplying of information relevant to
the prosecution of other individuals, e.g.,
assistance by the defendant that allegedly
saved the life of a Government agent.”
United States v. Agu, 949 F.2d 63, 67 (2d
Cir. 1991).
In United States v. Sanchez, 927
F.2d 1092 (9th Cir. 1991) (per curiam), the
Court of Appeals for the Ninth Circuit
held that assistance provided in a civil
forfeiture proceeding was not “substantial
assistance” within the meaning of Section
5K1.1. Although the defendant argued
that the district court had declined to grant
a Section 5K2.0 motion based on its belief
that it lacked the authority to do so without
a Government motion in support thereof,
the court found no indication in the record
that the sentencing judge believed a
downward departure under Section 5K2.0
was impermissible and thus affirmed the
decision without clearly stating that
assistance in civil forfeitures actions could
be grounds for a Section 5K2.0 departure.
Id. at 1093-94. We need not express our
view of the holdings in these cases because
they do not discuss the situation in Jones’
case, where the investigation in which he
provided assistance was both criminal and
civil.

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Jones relies heavily on United
States v. Truman, 304 F.3d 586 (6th Cir.
2002), which did not arise under the joint
or sequential investigation scenario. The
defendant in Truman, who had been
caught attempting to sell drugs he stole
from the pharmaceutical laboratory where
he worked, assisted the Government in
exposing security lapses at the laboratory.
Drug Enforcement Agency (DEA) agents
shared this info rmatio n with the
laboratory, which then corrected and
upgraded its security procedures based on
the defendant’s identification of risk areas.
The defendant highlighted his significant
assistance to DEA investigators in their
effort to upgrade the lab’s security
procedures as grounds for departure.
Critically, he moved for a departure under
Section 5K2.0, rather than Section 5K1.1,
which would have required a Government
motion.
The district court concluded that,
absent a motion from the Government to
depart, it lacked the discretion to grant
defendant a downward departure for
“assistance offered by a defendant which
did not result in the investigation or
prosecution of another individual.” Id. at
587. The Court of Appeals for the Sixth
Circuit vacated and reversed the district
court decision, reasoning that Section
5K1.1 applies only to substantial
assistance for “the investigation and
prosecution of another individual who has
committed a crime,” based on Section
5K1.1’s commentary and description of
assistance in “criminal” matters. Id. at
590. The court thus concluded that if a
defendant substan tially assisted in
proceedings “other than [those] toward the
prosecution of another person,” Section
5K1.1 and its requirement of a
Government motion do not apply. Id. The
Sixth Circuit also stated that a Section
5K2.0 departure may have been warranted,
apart from the acceptance of responsibility
departure that he received, because the
defendant’s cooperation in developing
“prophylactic measures” to prevent future
lab thefts had “extend[ed] beyond the
garden variety acceptance of responsibility
and thus was either not taken into account
by the Guidelines or was accounted for in
the Guidelines but was present in this case
to an exceptional degree.” Id. at 592. The
court thus clarified that on remand, the
district court was not bound by Section
5K1.1 and could determine if a Section
5K2.0 departure was, in fact, appropriate.
Id.
Jones contends that his case is
analogous to the Truman case where the
defendant’s assistance did not lead to the
investigation or prosecution of any party
for criminal matters. In fact, Jones’ case is
distinguishable from Truman because it
does not appear that the laboratory in
Truman was the subject of a criminal
investigation. The DEA was interested in
preventing other potential wrongdoers
from defeating the lab’s security systems
in the future, and it was in that connection
that Truman offered assistance. By
contrast, here Jones alleges that IRL had
“broken some laws and would be subject
to some kind of p[ro]secution for that.”
App. at 45a. It is in that connection,

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10
clearly covered by Section 5K1.1, that
Jones proffered his assistance.
At sentencing, the Assistant United
States Attorney conceded that Jones
provided some assistance but stated that it
could not be corroborated and therefore
did not lead to any action by the
Government. App. at 80a. An FBI agent
testified at sentencing to the same effect.
He stated that Jones wore a wire as
requested, and that he did what he said he
would do but the information provided
was not helpful.
The District Court declined to
exercise its discretion to grant a downward
departure. The court stated:
[T]here is no claim of
unconstitutional motive or
discrimination or bad faith
o n t h e pa r t o f t h e
Government.
I think to the extent
that the defendant has
cooperated, that should be
taken care of and the
defendant should be credited
within the sentencing
g u i d e l i n e s f o r h i s
cooperation with the SEC
and all the other efforts that
have been outlined here.
App. at 74a.
On appeal, the Government argues
that cooperation in a civil suit related to
the criminal prosecution does not
constitute the type of extraordinary factor
contemplated by Section 5K2.0 or Koon.
This is not a situation as presented in
Truman where the assistance given by the
defendant was unrelated to any prospective
investigation into criminal actions by a
person other than the defendant. In this
case, although the assistance which Jones
relies on was to the SEC it was, in fact,
related to a criminal investigation.
As the Government emphasizes,
Jones assisted both the SEC and the FBI in
connection with a criminal investigation
into fraud and securities violations. The
Government points out that Jones’ own
motion for a downward departure
described his assistance to the SEC as
based on his belief that IRL had “broken
some laws” and committed “offenses”
b a s e d o n “ i n a c c u r a c i e s a n d
misappropriations” in financial statements
and that a corporate officer had been
“embezzling” funds. App. at 45a, 103a.
The Government contends that these
allegations could only be construed as
“allegations of crimes.” Gov’t Br. at 39.
Lastly, the Government contends
that we have previously interpreted
Section 5K1.1 to encompass assistance to
all “authorities.” Gov’t Br. at 49. The
Government relies upon United States v.
Love, 985 F.2d 732 (3d Cir. 1993), in
which we held that Section 5K1.1 applied
to both federal and state authorities
because nothing in Ҥ 5K1.1 or in the
accompanying commentary [suggests] that
the Commission meant to limit ‘assistance

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11
to authorities’ to assistance to federal
authorities.” Id. at 734. In the same vein,
the Government highlights a district court
decision from Virginia in which that court
rejected a defendant’s motion for a
downward departure under Section 5K2.0
based on his assistance to the SEC and
foreign authorities. The court found that
while those agencies were not involved in
prosecuting offenses, the Sentencing
Commission likely assumed that Section
5K1.1 would encompass cooperation with
“a variety of government organizations,”
including the SEC. United States v.
Dowdell, 272 F.Supp. 2d 583, 594
(W.D.Va. 2003), reconsideration granted
in part on other grounds, 2003 WL
22439643 (W.D.Va. Oct. 28, 2003).
Jones does not dispute that the SEC
may qualify as an authority to which
substantial assistance can be provided in
criminal investigations, nor that the list of
authorities may be expanded beyond the
federal government; instead, he argues that
he assisted the SEC in pursuing a civil
investigation, a circumstance not
contemplated by Love or Dowdell.
Jones can hardly argue that the
SEC’s investigation was unrelated to the
potential criminal action. At sentencing,
Jones’ lawyer stated not once but twice
that Jones’ assistance to the two
government investigations was sequential.
He stated that Jones bought the copy
machine “so that he could copy the
documents and get them to the FBI and
later to the Securities and Exchange
Commission as part of the investigation
against this company [IRL].” App. at 31a.
Again, he stated,
And – and, in fact,
Judge, as you read through
t h e l i n e s h e r e , h i s
cooperation with the FBI
and later with the Securities
and Exchange Commission,
a g a i n , t h o u s a nd s a n d
thousands of boxes of
documents, he copies for the
SEC in their investigations.
App. at 31a. Jones himself stated similarly
at sentencing:
Following the work with
Special Agent Cosgraf and
the FBI, it was immediately
followed by the Securities
and Exchange Commission
with a subpoena from them,
which required photocopies
of an extreme amount of
documentation that was in –
in my files. There was –
there was probably well
over – you know – two
transfer files full, that was –
that was photocopied.
App. at 46a.
In light of Jones’ position in the
District Court, we need not remand for any
factual findings as to the relatedness of the
FBI and SEC investigations because the
record of such relatedness is clear. The
fact that the FBI discontinued its

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investigation while Jones continued his
assistance to the SEC does not negate the
interconnection between the investigations
by both Government authorities. For
example, had the SEC investigation
ultimately uncovered criminal acts by IRL,
there can be no doubt that those facts
would have been transmitted to the FBI for
its consideration for future prosecution.
T h e p r e s e n t e n c e r e p o r t
recommended that Jones’ cooperation be
taken into account under U.S. Sentencing
Guideline Section 3E1.1 providing that a
district court may decrease a defendant’s
offense level “[i]f the defendant clearly
demonstrates acceptance of responsibility
for his [or her] offense,” which may be
demonstrated by, inter alia, “voluntary
assistance to authorities in the recovery of
the fruits and instrumentalities of the
offense.” U.S. Sentencing Guidelines
Manual § 3E1.1 & cmt. n.1(e). The
District Court stated that it was doing so.
See App. at 74a (District Court stating, “I
think to the extent that the defendant has
cooperated, that should be taken care of
and the defendant should be credited
within the sentencing guidelines for his
cooperation with the SEC and all the other
efforts that have been outlined []”); App.
at 89a (District Court stating that Jones
“undertook efforts to cooperate with the
Government and provided reliable and
truthful information, however, it was not
significant enough to earn a 5K1[.1]
departure. Nevertheless, [] he should be
credited with that – with that effort”).
Under Koon, a factor that fits
within the heartland of a separate
Guideline provision cannot be the basis of
a departure under Section 5K2.0.
Although substantial assistance in civil
matters may be recognized under Section
5K2.0, we need not decide that issue under
the facts of this case. Because Jones’
cooperation fell within Section 5K1.1 (had
the assistance been sufficiently substantial
to warrant the Government’s motion to
depart) and Section 3E1.1, it was not
appropriate for consideration under
Section 5K2.0. We reject Jones’
contention that the District Court erred as
a matter of law in denying his motion for
departure under Section 5K2.0.
III.
For the reasons set forth above, we
will affirm the judgment of the District
Court.

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