United States Court of Appeals
For the First Circuit
No. 07-1701
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR MULERO-ALGARÍN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Rafael F. Castro Lang on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney (Chief, Appellate
Division), and Germán A. Rieckehoff, Assistant United States
Attorney, on brief for appellee.
July 24, 2008
SELYA, Senior Circuit Judge. A criminal defendant who,
after he is sentenced, elects to cooperate with the government in
the prosecution of others may in certain circumstances receive a
reduced sentence. See Fed. R. Crim. P. 35(b). Within wide limits,
however, the government holds the key that can unlock the door to
such leniency. This appeal implicates the extent of the
government's discretion in deciding when to withhold the use of
that key. Concluding, as we do, that the district court acted
appropriately both in refusing to compel the government to file a
Rule 35(b) motion and in declining to allow either discovery or an
evidentiary hearing, we affirm its ruling.
The underlying case had its genesis in the interception
of a boat carrying more than 1500 kilograms of cocaine off the
coast of Puerto Rico. A two-count indictment against defendant-
appellant Héctor Mulero-Algarín for importation and drug-
trafficking ensued.
The indictment led to discussions between the defendant
and the government anent possible cooperation. In a letter dated
March 20, 2002, the government indicated that in light of three
factors — the defendant's reluctance to talk about the full scope
of the illicit enterprise, his minimization of his role in that
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enterprise, and his unwillingness to testify against his
confederates — it would not move for a safety valve reduction.1
The defendant was undeterred. On May 15, 2002, he
pleaded guilty to a count that charged him with possessing 150
kilograms or more of cocaine with intent to distribute. See 21
U.S.C. § 841(a)(1). The plea agreement contained no commitment
concerning either the safety valve or the fruits of future
cooperation.
Nevertheless, following the lower court's acceptance of
his changed plea the defendant submitted to several debriefings.
By the time of the disposition hearing (October 24, 2002), the
government had changed its tune; it moved for the safety valve
reduction, vouchsafing that the defendant had "provided ample
information." The district court granted the reduction and imposed
a 135-month term of immurement.
Subsequent to sentencing, the defendant continued to
cooperate in the hope of further leniency. To that end, he
submitted to a number of additional debriefings. The last of these
occurred in the summer of 2003, when he was interviewed in Miami in
anticipation of giving testimony before a federal grand jury.
Special Assistant United States Attorney Jared López and the case
1
The safety valve is a sentencing device designed to give
certain first offenders relief from mandatory minimum sentences in
drug-trafficking cases. See USSG §5C1.2; see also United States v.
Ortiz-Santiago, 211 F.3d 146, 150-51 (1st Cir. 2000) (explaining
the operation of the safety valve provision).
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agent, Ricardo Cruz, traveled to Miami for the occasion. But their
journey came to naught: through no fault of the defendant's, the
government's plans changed and the proposed grand jury testimony
never transpired.
The defendant expected that a reduction of his sentence
would be forthcoming. When none materialized, he contacted the
prosecutor's office in mid-2005 (by which time López had gone
elsewhere). The chief of the office's criminal division rejected
his overtures. She took the position that the defendant's
assistance had not been "substantial" and, thus, did not warrant
the filing of a Rule 35(b) motion to his behoof.
Dismayed by this turn of events, the defendant moved to
compel the government to invoke Rule 35(b). The government opposed
the motion. It said, albeit conclusorily, that it had evaluated
the defendant's cooperation in good faith and discerned no
sufficiently compelling reason to proffer such a motion. The
district court ordered the government to be more specific and to
provide "facially adequate reasons" for its decision.
The government complied. It limned three grounds for its
refusal to invoke Rule 35(b). First, it noted that the defendant's
statements were "not sufficiently corroborated by independent
admissible evidence." Second, it pointed out that certain of those
statements were "contradicted by another cooperating individual."
Third, it posited that the defendant had minimized his role in the
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drug-trafficking enterprise. To support this final point, the
government annexed to its response a copy of the March 20, 2002
letter mentioned above.
The defendant went on the offensive. He rejoined that
the attached letter predated his most meaningful cooperation and,
thus, its submission gave rise to a misleading impression. He set
out a chronology of his post-sentencing cooperation as he saw it
and suggested that the willingness of López and Cruz to travel to
Miami for anticipated grand jury testimony reflected the importance
that they attached to his assistance. He also professed his belief
that López and Cruz had written letters to the United States
Attorney recommending the filing of a Rule 35(b) motion on his
behalf. In this regard, he beseeched the court either to compel
the government to produce copies of the letters or to convene an
evidentiary hearing.
In a memorandum decision, the district court denied
relief. Even assuming the truth of the defendant's allegations as
to the views of López and Cruz, the court saw only normal
hierarchical functioning, characteristic of how government agencies
and other stratified organizations operate, in the decision to
override the recommendation of a subordinate. Emphasizing the
government's decision not to use the defendant's testimony either
in seeking indictments or at trial, the court perceived no basis
for doubting the government's assertion that the defendant's
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statements were insufficiently corroborated. Finally, the court
observed that the defendant had remained silent as to the
government's averment that he had downplayed his overall role in
the criminal enterprise. This timely appeal followed.
Congress has established two vehicles through which a
convicted defendant's sentence may be reduced for reasons unrelated
either to his own guilt or to the integrity of the earlier
proceedings in his case. See 18 U.S.C. § 3582(c)(1); United States
v. Ellis, 527 F.3d 203, 205 (1st Cir. 2008). One of those
vehicles, Rule 35(b), allows the government to move post-sentence
for a reduced penalty on the ground of "substantial assistance"
rendered to the government's crime-fighting cause. In charting the
contours of substantial assistance under Rule 35(b), courts have
consistently looked to the virtually identical language contained
in USSG §5K1.1 (providing criteria for a presentence "substantial
assistance" departure in calculating a defendant's guideline
sentencing range). See United States v. Alegría, 192 F.3d 179, 184
(1st Cir. 1999) (explaining that "with regard to the meaning of
'substantial assistance,' Rule 35(b) and USSG §5K1.1 are birds of
a feather"). Along these lines, the ample discretion afforded to
the prosecutor in deciding whether to seek a section 5K1.1
departure is roughly equal to the discretion afforded to her in
deciding whether to file a Rule 35(b) motion. See United States v.
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Orozco, 160 F.3d 1309, 1315-16 (11th Cir. 1998); United States v.
Gangi, 45 F.3d 28, 30-31 (2d Cir. 1995).
Broad though it may be, this discretion is not unbounded.
In Wade v. United States, 504 U.S. 181 (1992), the Supreme Court
held that, notwithstanding the government's wide discretion in
choosing whether to file a section 5K1.1 motion, it may not ground
its decision in an unconstitutional motive. Id. at 185-86. A
motive not rationally related to any legitimate governmental
purpose comes within the compass of this prohibition. Id. at 186.
This jurisprudence applies full force in the Rule 35(b) milieu,
placing unconstitutional motives outside the pale of the
government's discretion. See, e.g., Ellis, 527 F.3d at 207; United
States v. Marks, 244 F.3d 971, 975 (8th Cir. 2001).
The practical effect of this legal framework is as
follows. When a defendant complains that an unconstitutional
motive has animated the withholding of a Rule 35(b) motion, the
government must satisfy a modest burden of production. To do so,
it need only adduce facially adequate reasons explicating its
decision. See Alegría, 192 F.3d at 187. This is solely a burden
of production, not a burden of persuasion. See id.
Confronted with a facially adequate explanation for the
government's decision not to file a Rule 35(b) motion, a defendant
is bound to accept that explanation unless he can convince the
court to allow discovery or to grant an evidentiary hearing. The
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Wade Court has warned of the dangers presented by unrelenting
inquiries into prosecutorial motives. See Wade, 504 U.S. at 186.
Thus, neither discovery nor an evidentiary hearing should be
ordered unless and until the defendant makes a "substantial
threshold showing" of improper motive. Id. (internal quotation
marks omitted); cf. United States v. Panitz, 907 F.2d 1267, 1273
(1st Cir. 1990) (stating generally that the right to an evidentiary
hearing in connection with a motion in a criminal case requires
that "the defendant make a sufficient threshold showing that
material facts were in doubt or dispute").
Judicial review in this cobwebbed corner of the law has
not been much discussed. A district court's determination of the
facial adequacy of the government's proffered explanation for
withholding a substantial assistance motion presents a question of
law that, logically, engenders de novo review. Cf. United States
v. Abdush-Shakur, 465 F.3d 458, 469 (10th Cir. 2006) (holding, in
context of Batson challenge, that appellate court reviews de novo
whether the prosecutor's proffered reasons for striking a juror
were facially race-neutral); United States v. Williams, 264 F.3d
561, 571 (5th Cir. 2001) (same). Once past that point, judicial
review is highly deferential. Given a facially adequate
explanation, neither discovery nor an evidentiary hearing is the
norm. Thus, the district court's refusal to allow discovery or to
convene an evidentiary hearing is reviewed for abuse of discretion.
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See Alegría, 192 F.3d at 189; David v. United States, 134 F.3d 470,
477 (1st Cir. 1998).
Against this backdrop, we proceed to address the
defendant's contentions. In support of his allegation of
arbitrariness, he tells of various harrowing experiences (e.g.,
death threats) and his daughter's valiant effort to supply the
government with information in the hope of securing more lenient
treatment for her father. He also insists that the aid he rendered
was extremely valuable to the government. But even if true, these
facts fall short of the threshold showing required here.
As we have indicated, prosecutors enjoy broad discretion
in deciding whether to file Rule 35(b) motions. Consequently, the
mere rendition of assistance — even substantial assistance — does
not give rise to an inference that the government's decision not to
file a Rule 35(b) motion is driven by an illegitimate motive. See
United States v. Davis, 247 F.3d 322, 327 (1st Cir. 2001). After
all, the Wade Court disregarded as irrelevant the defendant's
attempt to embroil it in a qualitative analysis of the assistance
actually tendered. See Wade, 504 U.S. at 186-87; see also Alegría,
192 F.3d at 188 n.6 (analyzing Wade). The lesson of Wade is clear:
because the decision not to file a Rule 35(b) motion "may have been
based not on a failure to acknowledge or appreciate [the
defendant's] help, but simply on [the government's] rational
assessment of the cost and benefit that would flow from moving,"
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substantial assistance is a necessary, but not a sufficient,
condition to a successful Wade challenge. Wade, 504 U.S. at 187.
The defendant's other endeavors to prove bad faith fare
no better. While he criticizes the government for basing its
decision upon his alleged minimization of his role, he virtually
concedes that he initially downplayed his role. His argument seems
to be that he later became more open and that the government's post-
sentence representation to the district court was, therefore,
misleading.
Yet the government specifically referenced the March 20,
2002 letter, which dealt with the defendant's initial minimizing of
his actions. That was not misleading. The government can
legitimately withhold a substantial assistance motion in light of
such minimization, even if the defendant belatedly tries to correct
his retinency. Cf. United States v. Licona-López, 163 F.3d 1040,
1044 (8th Cir. 1998) ("[T]he government does not act irrationally
in refusing to file a substantial-assistance motion for a defendant
who has provided substantial assistance but has been untruthful with
the authorities while cooperating."). The fact that the defendant
eventually came around neither contradicts the government's
assertion nor casts doubt upon the rationality of its basis for
refusing to file a Rule 35(b) motion.
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Relatedly, the defendant points to his receipt of a safety
valve adjustment2 and to the government's assertion at sentencing
that he had "provided ample information." This initiative fails for
an elementary reason. There is no doctrinal imperative requiring
that substantial assistance that suffices to garner a defendant a
safety valve reduction automatically qualifies him for the added
benefit of a Rule 35(b) motion. Were there such an imperative,
every defendant who received the benefit of the safety valve could
expect a further windfall in the future. That is surely not the
law: the safety valve determination looks to the quantity and
quality of a defendant's assistance prior to sentencing; the Rule
35(b) determination may take that assistance into account, but it
looks primarily to the quantity and quality of the defendant's
assistance after sentencing.
Next, the defendant alludes to letters supposedly sent by
López and Cruz to the United States Attorney in support of Rule
35(b) relief. These letters, he asserts, show that the persons with
the most detailed knowledge of his assistance thought that the
filing of a Rule 35(b) motion would be appropriate. Assuming that
these letters exist — and the record is opaque on that point — we
2
To qualify for a safety valve reduction, a defendant must
among other things truthfully provide all information he possesses
about the offense of conviction. See USSG §5C1.2(a)(5); see also
United States v. Maduka, 104 F.3d 891, 894-95 (6th Cir. 1997). The
scope of the disclosure demanded by this subsection is expansive.
United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006).
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agree with the district court that there is nothing suspicious about
a superior resisting a subordinate's recommendation. That is
precisely the reason that many offices are organized hierarchically.
So here: the head of the criminal division possessed the authority
to override López and Cruz on the basis of her own evaluation of the
facts — and she exercised that authority.
In a further effort to carry the day, the defendant draws
our attention to an ostensible inconsistency between a Department
of Homeland Security report stating that information disclosed by
the defendant in a March 1, 2003 debriefing corroborated the
statements of Eliseo Colón-Soto and the government's assertion that
it had declined to file a Rule 35(b) motion in part because his
statements were not "independently corroborated." This is less an
inconsistency than an example of selective reading. On the same
page describing the defendant's statements as not independently
corroborated, the government clarified exactly what it meant: that
the information proffered by the defendant "was not sufficiently
corroborated by independent admissible evidence" and "was
contradicted by another cooperating individual as to the dates of
the events."
This leaves the defendant's entreaty for discovery or an
evidentiary hearing. In our view, allowing that requested relief
in the circumstances of this case would flout the Wade Court's
teachings.
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Refined to bare essence, the defendant seeks to justify
discovery or an evidentiary hearing by suggesting that evidence
supporting his position lies in the government's possession. The
Wade Court, however, deliberately erected a high protective
threshold in order to safeguard the government's files unless a
defendant could make a compelling case for access to that
information. See Wade, 504 U.S. at 186. Were we to allow the
defendant to boot-strap himself into discovery or an evidentiary
hearing, we would be endorsing the very kind of limitless fishing
expeditions that the Wade Court sought to prevent.
We need go no further. The defendant, though ably
represented, has plainly failed to muster the requisite showing of
improper motive on the part of the government. Under the
circumstances, we have scant difficulty in concluding that the
district court did not abuse its discretion in refusing to grant the
requested relief.
Affirmed.
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