United States Court of Appeals
For the First Circuit
No. 00-2281
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN DAVIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Boudin, and Lynch, Circuit Judges.
Pamela E. Berman, with whom Schnader Harrison Goldstein & Manello
was on brief, for appellant.
Jennifer Hay Zacks, Assistant U.S. Attorney, with whom Donald K.
Stern, United States Attorney, was on brief, for appellee.
May 3, 2001
LYNCH, Circuit Judge. John Davis argues that this is
one of those rare instances in which the government should have
been compelled to file a motion warranting that a defendant had
provided substantial assistance to the government, with the
consequence that the district court could then have given Davis
a downward departure from the four year maximum sentence he did
receive. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. It is
undisputed that Davis provided assistance to the government in
its investigation of other drug traffickers, although he was
admittedly reticent about a murder in Boston. The reason the
government refused to file a motion, Davis argues, was to
retaliate against him for the successful exercise of his
constitutional right to have a speedy trial.
Davis, in fact, was granted dismissal under the Speedy
Trial Act (STA) of the first indictment against him, for
possession with intent to distribute marijuana and PCP, and
conspiracy to commit such crime, in violation of 21 U.S.C. §§
841(a)(1) and 846. He was then indicted for a lesser offense,
transporting drugs through the mail in violation of 21 U.S.C. §
843(b). Although in plea negotiations pertaining to the first
indictment the government had made various offers to consider
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filing a substantial assistance motion, it refused to do so in
plea negotiations pertaining to the second indictment.
Nonetheless, Davis pled guilty to the second indictment,
reserving this sentencing issue for appeal. If the facts were
simply as Davis has stated them, this appeal would present a
very serious matter. But they are not, and the district court,
which handled this matter with great skill, supportably found
contrary facts that doom Davis' appeal.
I.
The detailed facts may be found in the district court's
opinion, United States v. Davis, 115 F. Supp. 2d 101 (D. Mass.
2000). We outline only those needed to understand this appeal.
After his arrest on the first indictment in January
1998, Davis cooperated with federal authorities by providing
information about buyers and sellers involved in drug
trafficking activity and by participating in investigations. In
plea negotiations with Davis, the government proposed an
agreement in which Davis would plead guilty to the conspiracy
count (which had a guideline range of 121-151 months) and would
"cooperate fully" with law enforcement agents and "provide
complete and truthful information." If Davis complied with
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those terms, the government proposed that it would move to
depart from the statutory mandatory minimum based on substantial
assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. In
a cover letter accompanying the proposed agreement, the
government referred to a debriefing session it wished to
schedule between Davis and some homicide detectives. The
government believed Davis had information about a homicide.
Neither party signed the agreement. Davis did meet with
homicide detectives but refused to answer any questions.
With new counsel, Davis resumed plea negotiations.
Davis continued to refuse to cooperate in the homicide
investigation. While the government calls Davis' silence a
"major obstacle to a plea agreement," Davis claims that the
government was bound to seek a substantial assistance downward
departure based on his assistance in the drug trafficking
investigations. In any event, it is undisputed that during
negotiations the Assistant U.S. Attorney (AUSA) offered to seek
the approval of the Substantial Assistance Committee to file a
§ 5K1.1 motion. The Committee is the body within the U.S.
Attorney's office in Massachusetts empowered to authorize such
motions. Still, no plea agreement was reached.
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Davis filed a STA motion in January 2000 to dismiss the
indictment. Plea negotiations continued apace, with the
government repeating its offer to seek internal approval for
filing a substantial assistance motion. Pending the outcome of
Davis' STA motion, the government obtained the second
indictment, charging transportation of drugs through the mail,
which carries a four-year maximum sentence. The district court
dismissed the original indictment with prejudice under the STA
on March 27, 2000.
The government appealed the dismissal of the first
indictment and also considered presenting additional charges to
the grand jury. During plea negotiations concerning the second
indictment, the government told Davis it would no longer
consider filing a § 5K1.1 motion. The parties eventually
entered into a written agreement, in which Davis pled guilty to
the current charge. In exchange the government agreed to forego
its appeal of the STA dismissal and its pursuit of additional
charges. Because the parties disputed whether the government
was obligated to file a § 5K1.1 motion, the agreement reserved
Davis' right to raise the issue.
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Davis then moved to compel the government to file the
motion, claiming that he had provided substantial assistance and
that the government was retaliating against him for prevailing
on his STA motion. The district court concluded that Davis had
made a threshold showing that the government had acted with an
impermissible motive in refusing to seek approval of the filing
of a § 5K1.1 motion, and the government agreed to submit the
matter for the Committee's consideration. The AUSA submitted
his and Davis' descriptions of the assistance rendered. The
district court approved the government's submission. To ensure
the Committee's view of the case was not tainted, the Committee
was not told of the STA dispute.
The Committee did not approve the filing of a
substantial assistance motion, giving as its reason Davis'
refusal to cooperate in the homicide investigation. The court
accordingly denied Davis' motion to compel. Davis was sentenced
to the statutory maximum of four years' imprisonment.
Particularly pertinent are four of the court's factual
findings:
1. The AUSA made only a contingent promise to file a
§ 5K1.1 motion if it was approved by the Committee.
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2. There is no allegation or evidence that the
Committee acted in bad faith or that the stated reason for its
refusal to approve the filing of a § 5K1.1 motion is facially
inadequate.1
3. There is no evidence that Davis detrimentally
relied on the prosecutor's promise to consider filing a § 5K1.1
motion. By the time Davis entered a plea of guilty pursuant to
an agreement, the prosecution had renounced any such promise.
4. There is no evidence that the AUSA -- with whom the
original discussions of a § 5K1.1 motion were held -- tainted
the Committee's decision-making with impermissible
considerations.
II.
There are two related doctrines at play in this case.
The first is that when the government enters into a plea
agreement with a defendant it must undertake the obligations,
including discretionary obligations, that it imposes on itself.
The plea agreement is analogized to a contract, Santobello v.
New York, 404 U.S. 257, 262 (1971), and defendants may seek to
1 There was no request made for an evidentiary hearing
as to the Committee's motivation.
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compel performance, see United States v. Saxena, 229 F.3d 1, 6
(1st Cir. 2000) ("A defendant who has entered into a plea
agreement with the government, and himself fulfills that
agreement, is entitled to the benefit of his bargain."); United
States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir. 1987).
The second doctrine is that the government may not use
the mechanism of declining to file a substantial assistance
motion to carry out unconstitutional purposes, such as
retaliating against a defendant for exercising his
constitutional rights or unconstitutionally discriminating
against a defendant. Nor may the government cloak those
unconstitutional purposes from judicial scrutiny by saying that
whether it undertakes the filing of a substantial assistance
motion is committed to its discretion. As the Supreme Court
held in Wade v. United States, 504 U.S. 181 (1992), a federal
court has authority to review a prosecutor's refusal to file a
substantial assistance motion and to grant a remedy if the court
finds that the refusal was based on an unconstitutional motive
or was not rationally related to some legitimate governmental
end. Id. at 185-86. "[A] defendant would be entitled to relief
if a prosecutor refused to file a substantial-assistance motion,
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say, because of the defendant's race or religion." Id. at 186.
The Wade rule, unlike the first doctrine, does not depend upon
the existence of a plea agreement at all. Indeed, in Wade there
was no plea agreement. And so it is possible for the government
to violate Wade even if the government never promised that it
would file a substantial assistance motion. See United States
v. Knights, 968 F.2d 1483, 1486 (2d Cir. 1992).
Thus, as this court said in United States v. Sandoval,
204 F.3d 283, 286 (1st Cir. 2000), the law constrains the
government's discretion in two situations: cases where the
government's failure to move is based on impermissible factors
or is not rationally related to a legitimate governmental end
and cases where the government has agreed to an explicit
undertaking.2 The two doctrines have some common points of
analysis. Many cases discuss the level of judicial scrutiny the
government's decision not to file a substantial assistance
motion will undergo. This court has said, at least where there
is a plea agreement, that the government's burden is modest,
2 Sandoval rejected an attempt to create a third category
where neither of these two situations were alleged. See 204
F.3d at 236.
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only one of production, not of persuasion. United States v.
Alegria, 192 F.3d 179, 187 (1st Cir. 1999). Wade itself
envisions a low threshold for the government. Other cases turn
on the adequacy of the government's stated reasons and the need
for further exploration. United States v. Rounsavall, 128 F.3d
665, 667-68 (8th Cir. 1997); Knights, 968 F.2d at 1485.
This case initially, then, raises the issue under the
first doctrine of whether the government made any promise at all
to pursue a substantial assistance motion.3 There was certainly
no obligation ever agreed to by the government to file a motion
before such a filing had been approved by the Committee. The
district court found that no such promise had been made, and
also that it was doubtful, given the policy of the U.S.
Attorney's office involved that such matters must be approved by
the Committee, that such a promise could have been made with
authority. The latter issue we need not resolve.
3 Because Davis says the government initially agreed to
file both a § 5K1.1 motion and a motion under 18 U.S.C. §
3553(e), we do not discuss the different consequences, other
than to note that the combination of motions would have given
the district court the ability to sentence below the statutory
mandatory minimum. See generally Melendez v. United States, 518
U.S. 120 (1996).
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If, giving Davis the benefit of the doubt, the AUSA
left an impression that a request for approval to file a
substantial assistance motion would at least be considered by
the Committee based on Davis' help in the drug investigation,
then that promise was kept.4 For that is exactly what happened,
due to the mechanism set up by the district court. The district
court also imposed parameters on the Committee's consideration
that ensured that its decision did not turn on any
unconstitutional motive. The AUSA who had been bested on the
STA motion was constrained in the process, after Davis'
protestations that the AUSA would poison the well if he were
involved, and any Committee members with prior knowledge of the
Davis case were removed from the process. Further, the
Committee was not told of the STA motion or the dismissal of the
first indictment and the court supervised the filing to the
4 In her affidavit, Davis' counsel says she understood
that the AUSA offered to "recommend" both the § 5K1.1 motion and
a 10- year sentence based on the substantial assistance Davis
had already provided. That was under the first indictment
charges, under which Davis faced a sentencing range above 10
years.
This case illustrates the need for caution by prosecutors
in what they say as to substantial assistance motions during
plea negotiations. Appellate counsel for the prosecution is not
the attorney whose representations are at issue here.
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Committee. Looking at what the government "promised" under the
first doctrine, Davis may well have received more than he was
entitled in having the Committee consider the matter.
At oral argument Davis contended that the district
court erred in finding that there had never been a flat promise
to Davis to file a substantial assistance motion. But the
record amply supports the district court's conclusion. In the
parties' plea negotiations concerning the first indictment, the
government's proposed plea agreement left it entirely to the
government's discretion whether to file a substantial assistance
motion. Davis neither accepted that agreement nor provided any
information at the subsequent debriefing with homicide
detectives. After Davis obtained new counsel and negotiations
resumed, the AUSA offered to seek the approval of the Committee
to file a § 5K1.1 motion, along with a recommended 10-year
sentence, with respect to the charges in the first indictment.
No agreement was reached. The government later offered a
standard plea agreement which provided that the government would
consider filing a substantial assistance motion. Again, there
was no agreement.
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When, after the first indictment was dismissed, the
parties started to negotiate anew concerning the second
indictment, the government told Davis it would not consider
filing a § 5K1.1 motion. Nonetheless, Davis decided to plead
guilty. In turn, the government agreed to dismiss its appeal
from the allowance of the STA motion and not to bring additional
charges against Davis. So, at the time Davis pled guilty, it
was clear that the government would not file a substantial
assistance motion. Accordingly, under the plea as contract
doctrine, there was no reliance by Davis.5
This brings us to the question, under the second
doctrine, whether Davis has made out a Wade violation,
regardless of what promises were made. The mere giving of
substantial assistance -- and there is no question that Davis
did assist the government -- does not itself raise an inference
that the government's failure to file a substantial assistance
motion was improperly motivated. As said in Wade, the fact that
a defendant provided substantial assistance does not provide
5 We understand the district court's finding of lack of
reliance to be made pursuant to Davis' theory that he was
entitled to enforcement of the promise made, and not to the
independent Wade theory.
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defendant with a remedy; at most it creates a situation in which
the government is given the power, but not the duty, to file a
substantial assistance motion. Wade, 504 U.S. at 185. After
the district court directed the government to submit a § 5K1.1
motion for approval to the Committee, the Committee, reviewing
what Davis had done, decided the assistance he offered did not
merit the filing of a substantial assistance motion. And the
district court, having carefully regulated the Committee's
decision process, found no evidence of improper motive in the
decision the Committee reached. Indeed, Davis' failure to
cooperate in the murder investigation provides a basis for the
Committee's conclusion, whatever Davis' view that he had given
enough already and should not be forced to go that far.
As to Davis' argument that the district court was
independently empowered to grant a downward departure under §
5K2.0 in this situation, we rejected that argument in Alegria.
Accord Sandoval, 204 F.3d at 285 (rejecting appellant's theory
that § 5K2.0 provides a separate and independent basis under
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which the district court can depart downward for substantial
assistance) (citing rule in Alegria, 192 F.3d at 189).6
For these reasons, the judgment and sentence are
affirmed.
6 Davis' citation to United States v. Khoury, 62 F.3d 1138
(9th Cir. 1995) is of no assistance. We understand Khoury to
posit that the remedy for a Wade violation could be either to
compel the government to file a substantial assistance motion or
to authorize the district court itself to depart downward if the
government balks. Id. at 1141-43. Even if the second were a
permissible remedy, the condition precedent for either remedy is
missing here.
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