United States v. Evans

UNITED STATES COURT OF APPEALS
Filed 4/10/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 95-5144
v. N.D. Oklahoma
DONALD B. W. EVANS, (D.C. No. 94-C-713-E)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Donald Evans appeals the district court’s decision denying his motion pursuant to

28 U.S.C. § 2255 to vacate, correct, or set aside his sentence. He claims the government

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
wrongfully refused to file a Fed. R. Crim. P. 35(b) motion for reduction of sentence on his

behalf, despite his cooperation and testimony against other individuals. The district court

denied his § 2255 motion without a hearing. We affirm.

BACKGROUND

On May 30, 1990, a federal jury in Tulsa, Oklahoma, convicted Donald Evans of

conspiracy to distribute cocaine base (crack). On August 22, 1990, the district court

sentenced him to life in prison without parole. His conviction was affirmed on appeal

and is not in question here. United States v. Evans, 970 F.2d 663 (10th Cir. 1992), cert.

denied, 507 U.S. 922 (1993).

Following the imposition of his lengthy sentence, Evans arranged through counsel

for an interview with the government regarding his knowledge of illegal drug trafficking,

in an attempt to gain a reduction in sentence. On November 1, 1990, Evans, his attorney,

and Assistant United States Attorney (AUSA) John S. Morgan signed a letter confirming

their understanding of the proposed interview. See R. Vol. II, Doc. 235 Ex. 1. The letter

stated:

Subsequent to the interview, the undersigned government attorney [AUSA
Morgan] will review the substance of the topics discussed. Based on the
nature and extent of Mr. Evans’ proffer and his willingness to cooperate,
the undersigned will consider a Rule 35(b) F.R.C.P. [sic] motion. Should
the undersigned determine, however, that the information provided . . . is
unreliable, incomplete, or of no value to its investigations or prosecutions,
the government will not consider such a motion.

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Id.

On May 30, 1991, two agents from the Drug Enforcement Administration (DEA)

interviewed Evans at the Federal Correctional Institution in Bastrop, Texas, regarding his

and others’ involvement in the drug conspiracy for which he was prosecuted. See id. Ex.

2. The government contends that Evans’ proffer at this interview was useless:

While EVANS provided unsworn information concerning the
uncorroborated version of his involvement in the old conspiracy, for which
he had already been convicted, it had no value to the already completed
investigation or prosecution. . . . EVANS’ alleged information was not able
to be corroborated adequately due to the vagueness of his information. The
agents were unable to develop anything and no follow-up reports were ever
provided to the United States Attorney.

R. Vol. II, Doc. 235, at 2. Evans, on the other hand, disputes the government’s

assessment:

I disagree with this statement and know it to be untrue. It came to my
knowledge that information I provided in the non use proffer which the
government contended was no use to their investigations was actually used.
This information came out in the form of appearing on a search warrant and
the mentioning of my name at the sentencing of Laron Vernors. It is clear
an agent and a[n] AUSA had some use for the information. At sometime it
had to be reported to the U.S. Attorneys office. I spoke to [DEA] agent
Adair . . . . He totally disagrees with the government’s statement. Agent
Adair is willing to testify on my behalf that the government acted in bad
faith. I am requesting an evidentiary hearing so that agent Adair can testify
to the truth.

R. Vol. 1, Doc. 237, at 2 (punctuation corrected).

In October 1991, Evans wrote a letter to the district court, stating that he had

cooperated “truly and fully” with the government but that the government had not

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fulfilled its “part of the agreement” because it had not filed a Rule 35(b) motion. R. Vol.

II, Doc. 235 Ex. 3. He further stated:

Since this interview I’ve spoken with one of the agents that [i]nterviewed
me. He expressed to me that he felt I fulfilled my part of the agreement.
He also stated the information in which [sic] I provided was [] reliable[,]
complete and was of value to ongoing investigations. However he said
John Morgan[, who] prepared the letter[,] said I had my chance to cooperate
before trial. This is not true. He said Morgan has declined to file the Rule
35b in lieu of [sic] the Rule 11 letter.

Id. The court forwarded Evans’ letter to AUSA Morgan, who responded on November

18, 1991:

Please be advised that pursuant to our understanding as detailed in my letter
dated November 1, 1990 . . . I have carefully considered the information
you have provided and have determined that among other things, it is of no
value to our investigations. Therefore, a Rule 35(b) F.R.C.P. [sic] motion
will not be considered.

Id. Ex. 4.

In December 1991, the DEA office in Little Rock, Arkansas, began an

investigation into cocaine trafficking activities based on the arrest of a drug courier in

Little Rock. As part of the investigation, DEA agents again interviewed Evans and

obtained detailed statements concerning his prior cocaine trafficking activities as they

related to the targets of the Little Rock investigation. In November 1992, DEA agents in

Atlanta, Georgia, also interviewed Evans regarding his cocaine distribution activities.

Evans again gave detailed information about the drug trafficking activities of several

individuals then under investigation. On November 23, 1992, he testified before a federal

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grand jury in Atlanta, which subsequently returned a superseding indictment naming

additional defendants based on Evans’ testimony.

In 1993, Evans and his attorney sought a new motion from the U.S. Attorney’s

office in Oklahoma based on Evans’ cooperation in Arkansas and Georgia. In support of

this request, Evans’ attorney submitted a letter from the U.S. Attorney’s office in the

Eastern District of Arkansas detailing Evans’ assistance in the drug investigation. Id. Ex.

7. AUSA Morgan also received a letter from Janis C. Gordon of the U.S. Attorney’s

Office in Atlanta, detailing Evans’ cooperation there. Gordon noted, however, that after

Evans had testified, “it became obvious that Evans had perhaps ‘exaggerated’ his

testimony.” Id. Ex. 8, at 1. She pointed out several discrepancies between Evans’

testimony and corroborating information from “insider” sources. Gordon concluded that

“although Evans did indeed provide information that led to the prosecution of others . . . ,

I felt that I would not be able to use him as a witness had the new defendants gone to trial,

due to his ‘exaggerations.’” Id.

Based on Evans’ new request for a Rule 35(b) motion, AUSA Morgan asked First

Assistant U.S. Attorney F.L. Dunn III of the Tulsa office to conduct an independent

review to determine whether the government should file such a motion for Evans’

cooperation in Little Rock and Atlanta. After reviewing the file, Dunn concluded in a

memorandum to Morgan that Evans had not provided substantial assistance in those

investigations that would warrant a Rule 35(b) motion. He based this conclusion on 1)

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“the necessity that a cooperating witness testify truthfully in all respects,” and 2) “the fact

Mr. Evans had every opportunity to cooperate at an earlier date when he was first

prosecuted.” Id. Ex. 9. AUSA Morgan then advised Evans through counsel that he

would not file a Rule 35(b) motion. Id. Ex. 10.

Evans subsequently filed this § 2255 motion, which the district court denied

without a hearing. Evans argues on appeal that 1) the district court erred in denying him a

hearing, 2) AUSA Morgan had an unconstitutional motive and acted in bad faith when he

declined to file a Rule 35(b) motion, and 3) the information Evans provided substantially

assisted the government in the investigation and prosecution of other individuals.

DISCUSSION

We review de novo the district court’s legal conclusion to deny a § 2255 motion.

See United States v. Kissick, 69 F.3d 1048, 1051 (10th Cir. 1995). Section 2255 requires

a prompt hearing on the motion “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. “In

reviewing [a] petitioner’s claims, we must first decide whether [the] ‘petitioner’s

allegations, if proved, would entitle him to relief.’ If so, the district court’s summary

denial of an evidentiary hearing is reviewed for an abuse of discretion.” Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991) (quoting United States v. Barboa, 777 F.2d

1420, 1423 (10th Cir. 1985)).

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 At the time Evans was sentenced, Rule 35(b) read in pertinent part:

The court, on motion of the Government, may within one year after
the imposition of a sentence, lower a sentence to reflect a defendant’s
subsequent, substantial assistance in the investigation or prosecution of
another person who has committed an offense . . . .

Fed. R. Crim. P. 35(b) (amended 1991). Effective December 1, 1991, Rule 35(b) was

amended to read in pertinent part:

The court, on motion of the Government made within one year after
the imposition of the sentence, may reduce a sentence to reflect a
defendant’s subsequent, substantial assistance in the investigation or
prosecution of another person who has committed an offense . . . . The
court may consider a government motion to reduce a sentence made one
year or more after imposition of the sentence where the defendant’s
substantial assistance involves information or evidence not known by the
defendant until one year or more after imposition of sentence.

Fed. R. Crim. P. 35(b).

The requirement that a government motion precede judicial action in this context

gives the prosecution “a power, [but] not a duty, to file a motion when a defendant has

substantially assisted.” Wade v. United States, 504 U.S. 181, 185 (1992) (construing 18

U.S.C. § 3553(e) and U.S.S.G. § 5K1.1); see also United States v. Perez, 955 F.2d 34, 35

(10th Cir. 1992) (“Because of their overlapping subject matter and similarities in

language, it is instructive to examine and compare U.S.S.G. § 5K1.1 (policy statement)

and 18 U.S.C. § 3553(e) (1988) when interpreting Rule 35(b).”). The courts have

authority to review a prosecutor’s discretionary refusal to file a Rule 35(b) motion in only

three narrow instances:

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 [1] if the refusal violates an agreement with the government, Wade, 504
U.S. at 185, [2] if the refusal was based on an unconstitutional motive, id. at
185-86, or [3] “in an egregious case . . . where the prosecutor stubbornly
refuses to file a motion despite overwhelming evidence that the accused’s
assistance has been so substantial as to cry out for meaningful relief,”
United States v. Kuntz, 908 F.2d 655, 657 (10th Cir. 1990).

United States v. Lee, 989 F.2d 377, 379-80 (10th Cir. 1993) (construing U.S.S.G.

§ 5K1.1) (footnote omitted).

Our review in this case focuses on two discrete offers of assistance: Evans’ May

1991 interview, which occurred within one year of sentencing, but which the government

claims was unhelpful; and Evans’ Arkansas/Georgia cooperation, which occurred outside

the one year period, but which arguably proved helpful to the government. We examine

each in turn.

The May 1991 interview took place pursuant to an agreement memorialized in the

November 1, 1990, letter signed by Evans, his attorney, and AUSA Morgan. The

agreement leaves discretion in the prosecutor to determine whether such a motion should

be filed, limiting our review to whether the prosecutor made the determination in good

faith. Lee, 989 F.2d at 380. Evans’ § 2255 motion, however, fails to raise an issue of the

government’s good faith sufficient to require a hearing. His allegations concerning the

value of the interview, if true, fail to make even a prima facie showing that he

substantially assisted the government in investigating or prosecuting another person who

committed an offense. While he mentions the name of one individual--“La Ron

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Vernors”--he does not allege when or why Vernors was investigated or prosecuted or how

his information substantially assisted the government in those efforts.

Moreover, Evans’ recitation of purported statements from government agents that

the information he gave was “of value” and that the government had “some use” for it

avails him nothing. Besides failing to meet the standard articulated in Rule 35(b), the

statements are mere conclusions, and they ignore the fact that the prosecutor alone has

discretion to make that determination. See Hilliard v. United States, 345 F.2d 252, 254

(10th Cir. 1965) (conclusional claims in § 2255 motions may be summarily dismissed);

United States v. Perez, 955 F.2d 34, 36 (10th Cir. 1992) (“The government is in the best

position to determine whether a defendant provides assistance substantial enough to

warrant filing a Rule 35(b) motion . . . .”); United States v. Huerta, 878 F.2d 89, 93 (2d

Cir. 1989) (“[W]hether a defendant’s cooperation has risen to the level of ‘substantial

assistance’ to the government is self-evidently a question that the prosecution is uniquely

fit to resolve.”) (construing 18 U.S.C. § 3553(e)), cert. denied, 493 U.S. 1046 (1990).

The record is also clear that information Evans provided in the May 1991

interview regarding individuals other than Vernors did not substantially assist the

government in such a way as to allow a timely motion. However, Evans asks us to

measure the one year period in Rule 35(b) from the date the Supreme Court denied

certiorari in his case, arguing that the prosecution told him time would not begin to run

under the rule until that date. We must reject this argument because the rule clearly

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allows for no such exception, and Evans, who was represented by counsel, is bound by

the rule. See Fed. R. Crim. P. 35(b) (pre-amendment) (motion and ruling must be made

within one year after imposition of sentence); id. 45(b) (time limits in Rule 35 may not be

extended). In sum, the district court did not err in denying Evans a hearing based on

information he provided within one year of his sentence.1

Evans’ later cooperation in Arkansas and Georgia undisputedly took place outside

the one year period of the rule. Consequently, Evans’ efforts there may form the basis for

a motion only if they involved information or evidence not known by Evans until one year

or more after imposition of his sentence. Fed. R. Crim. P. 35(b). Evans fails even to so

allege.2 He submits, however, that the amended rule allows for untimely motions if a

defendant provides information “as soon as possible.” Appellant’s Rebuttal Br. at 2;

see Fed. R. Crim. P. 35(b) advisory committee’s note to 1991 amendment (court has

discretion to consider untimely motion if government establishes “cooperation could not

Because Evans fails to make even a threshold showing that he timely and
1

substantially assisted the government, we need not examine his argument that the
government acted with an unconstitutional motive in declining to file a Rule 35(b) motion
based on his May 1991 interview.
2
To the contrary, Evans alleges that in his May 1991 interview, he “provided the
government with every bit of knowledge concerning illegal activity to the best of [his]
knowledge.” R. Vol. I, Doc. 237, at 1. The record appears undisputed that the
information and testimony Evans gave in Arkansas and Georgia consisted of essentially
the same information he gave in his May 1991 interview. Compare R. Vol. II, Doc. 235
Ex. 2 (identifying individuals involved with Evans in drug conspiracy) with id. Exs. 7-8
(noting Evans’ assistance in Arkansas and Georgia in investigating and prosecuting two
of those individuals for drug crimes).

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have been furnished within the one-year time limit” or was rendered “as early as

possible”); United States v. Morales, 52 F.3d 7, 8 (1st Cir. 1995) (holding district court

had jurisdiction to consider motion filed outside one year period where defendant did not

know value of information earlier or was not asked). Again, Evans’ argument conflicts

with the rule’s plain language, requiring us to reject it out of hand. See RTC v. Westgate

Partners, Ltd., 937 F.2d 526, 531 (10th Cir. 1991) (“Courts should follow the literal

language of a statute when it is clear . . . .”). But cf. Morales, 52 F.3d at 8 (“The district

court read ‘not known’ literally; we read it more broadly.”).

Even assuming, arguendo, that the court could have considered an untimely motion

on Evans’ behalf, Evans still would not be entitled to an evidentiary hearing in this case.

The motion and record before us show no indication that the government ever agreed to

file a Rule 35(b) motion in exchange for Evans’ later assistance, obviating the need for an

inquiry into the government’s good faith. Cf. Bischel v. United States, 32 F.3d 259, 264

(7th Cir. 1994) (§ 2255 motion properly dismissed where no evidence in record of

agreement by government to file Rule 35(b) motion); United States v. Ringling, 988 F.2d

504, 507 (4th Cir. 1993) (government’s gratuitous promise to make Rule 35(b) motion

unenforceable where not the basis of an agreement).3 Additionally, Evans has failed to

make a sufficient showing of unconstitutional government motive to warrant a hearing.

3
Evans alleges there were certain unspecified agreements between AUSA Morgan
and prosecutors in other federal districts, see Appellant’s Rebuttal Br. at 3, a fact that, if
true, is irrelevant.

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 [A] claim that a defendant merely provided substantial assistance will not
entitle a defendant to a remedy or even to discovery or an evidentiary
hearing. Nor would additional but generalized allegations of improper
motive. . . . [A] defendant has no right to discovery or an evidentiary
hearing unless he makes a “substantial threshold showing.”

Wade, 504 U.S. at 186. Evans’ conclusional allegation that the government tried to

punish him for going to trial, see R. Vol. I, Doc. 237, at 4, together with his meager

offering of First Assistant Dunn’s innocuous memorandum and hearsay statements

purportedly made by DEA agents, fails even to approximate the required showing. Nor

does the record before us present an “egregious case” where the prosecutor has

“stubbornly refused” to file a motion despite “overwhelming evidence” that Evans’

assistance was “so substantial as to cry out for meaningful relief.” See United States v.

Kuntz, 908 F.2d 655, 657 (10th Cir. 1990).

We conclude that the district court properly denied Evans’ § 2255 motion without

a hearing. Accordingly, we AFFIRM. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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