Government Promise to File Substantial Assistance Motion Enforced

U.S. v. Doe, 865 F.3d 1295 (8/4/17) (state undisclosed) (Published) - The 10th enforces a government promise to exercise its good faith discretion to file a substantial-assistance motion under § 3553(e) and § 5K1.1. After the plea, Mr. Doe and a family member helped law enforcement bring down a local drug operation, risking their lives in the process. The line prosecutors recommended a substantial assistance motion to go below the 10-year mandatory minium, but a downward departure committee of the United States Attorneys Office turned them down without explanation. Mr. Doe moved for enforcement of the plea agreement on the ground that the government did not act in good faith in refusing to exercise its § 3553(e) discretion. The district court refused to even consider the motion on the grounds that an unpublished 10th decision, relying on Wade v. U.S., 504 U.S. 181, 186 (1992), precluded such a motion because the agreement left the § 3553(e) motion up to the government's discretion . There is a split in the circuits on this issue. The government's plea agreement promise included the promise to act in good faith when deciding whether to file a § 3553(e) motion. In Wade the contractual concerns were not in play. The government had made no promise to consider filing a substantial-assistance motion. In that circumstance, the Wade Court said the Constitution provided a remedy for a refusal to file such a motion only if the refusal was based on an unconstitutional motive or was not rationally related to any legitimate government end. But here the government was also bound to engage in fair dealing, that is, it must make an honest evaluation of the assistance provided, not based on considerations extraneous to that assistance. So, the 10th sets up a procedure, kind of like the Batson procedure. First, the defendant must allege bad faith, which the defendant did on valid grounds in this case. Next, the government tries to rebut with reasons for refusing to file the motion. If those reasons are facially plausible, the defendant is only entitled to a good faith review if the defendant provides a reason to question the government's justification. In this way, respect is paid to the government's discretion and contract-law principles are protected. The 10th notes, if the government doesn't want to be subjected to such interference, it can opt not to agree in a plea agreement to exercise its § 3553(e) discretion. The 10th remands for the government to take the second step in the process. In a footnote, the 10th takes a gentle swipe at the government, noting its "evolving justifications" on appeal for the § 3553(e) motion refusal. The 10th suggests, without ordering it to do so, that in determining the government's good or bad faith, the district court might want to consider that the justifications changed. The 10th decides not to address Mr. Doe's constitutional argument that might not have been preserved below.