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Let Judges be Judges! — Downward Departures: Part 6 — Substantial Assistance

Criminal Justice, Spring 1999

Once upon a time, it was thought that a federal prosecutor had the unfettered discretion not to file a § 5K1.1 motion even if a defendant met the requirements of “substantial assistance in the investigation or prosecution of another person who has committed an offense.” (U.S.S.G. § 5K1.1.) The first clear indication that there were any limits on prosecutorial discretion came in the case of Wade v. United States, 504 U.S. 181 (1992), in which the Supreme Court held that a prosecutor’s refusal to file a section 5K1.1 motion “is subject to constitutional limitations that district courts can enforce,” and that a defendant would be entitled to relief if the prosecutor’s refusal to move was not rationally related to any legitimate Government end.” (Wade v. United States, 504 U.S. 181, 185-86 (1992). Even before Wade, however, circuit courts had stated that, like other matters traditionally left within the prosecutor’s discretion, a prosecutor’s decision not to depart downward under § 5K1.1 was not without limit:

We deem these limited principles of review equally applicable to the government’s exercise of its discretion under section 5K1.1 to move for departures. Other courts have reached similar conclusions. See, e.g., [United States v.] Rexach, 896 F.2d [710] at 713-14 (noting that “the decision to make or withhold a motion for downward departure must be given the same high level of deference as other prosecutorial decisions,” but recognizing that a prosecutor’s “determination of dissatisfaction” with the defendant’s assistance “cannot be made invidiously or in bad faith”); United States v. Bayles, 923 F.2d 70, 72 (7th Cir. 1991) (suggesting that review of prosecutor’s decision not to depart would be available under principles applicable to other prosecutorial decisions); United States v. Mena, 925 F.2d 354, 356 (9th Cir. 1991) (acknowledging possibility of review where government induces defendant’s cooperation “based upon a promise of a motion for departure,” or otherwise acts in “bad faith”). (United States v. Doe, 934 F.2d 353, 361 (D.C. Cir.), cert. denied, 502 U.S. 896 (1991).)

More recently, courts have begun to circumscribe more narrowly a prosecutor’s decision not to file a § 5K1.1 motion. In general, to date, the courts have recognized four broad categories of cases where the prosecution’s refusal to file a § 5K1.1 motion warrants a court’s intervention, namely, where the refusal by the government constitutes (1) punishment of a defendant for exercising a constitutional right, (2) bad faith by the government in fulfilling its end of a cooperation agreement, (3) nonconstitutional impermissible reasons, and (4) the “cutting edge” theory that post-Koon, a court can depart downward under § 5K2.0 based on substantial assistance notwithstanding the prosecutor’s refusal to so move under § 5K1.1.

Punishment for exercising constitutional right In Wade, the Supreme Court held that a prosecutor’s refusal to file a § 5K1.1 motion could not be based on an “unconstitutional motive,” providing as examples a refusal based on “the defendant’s race or religion.” (Wade, 504 U.S. at 186.) Post-Wade, examples of impermissible constitutional motives have expanded to include prosecutorial decisions penalizing a defendant for exercising his Sixth Amendment right to go to trial, United States v. Khoury, 62 F.3d 1138, 1142 (9th Cir. 1995) (defendant made “substantial threshold showing” required by Wade by presumptively establishing that the government refused to file a § 5K1.1 motion because he exercised his constitutional right to go to trial); United States v. Paramo, 998 F.2d 1212, 1214 (3d Cir. 1993) (“we hold that absent a motion by the government, the district court has authority to grant a downward departure for substantial assistance if the government’s sole motive for withholding a 5K1.1 motion was to penalize the defendant for exercising his constitutional right to a trial”), cert. denied, 510 U.S. 1121 (1994); U.S. v. Easter, 981 F.2d 1549 (10th Cir. 1992), and depriving a defendant of the benefit of counsel, United States v. Treleaven, 35 F.3d 458 (9th Cir. 1994) (holding that district court had authority to depart pursuant to § 5K1.1 based on government attorney’s improper ex parte contact with defendant, which prevented defendant from obtaining benefit of right to counsel).

Bad faith: Failure to File Motion

The government is under no obligation to ever file a § 5K1.1 motion–or even to listen to what a defendant seeking a sentence reduction has to say. Once, however, the government agrees–either expressly in a written agreement or implicitly by allowing a defendant to cooperate–and a defendant begins to cooperate, he or she is relying upon the implicit commitment of the government to judge his or her substantial assistance in an objective and good faith manner. United States v. Isaac, 141 F.3d 477 (3d Cir. 1998) (holding that government act in good faith is implicitly part of any agreement to file departure motion if, in the government’s discretion, defendant provided substantial assistance).

In United States v. Rexach, 896 F.2d 710, 712-14 (2d Cir. 1990), a pre- Wade case, the Second Circuit outlined the principles for judicial review of prosecutorial discretion to make substantial assistance motions under U.S.S.G. s 5K1.1. Rexach held that, where a plea agreement includes an obligation by the government to make a § 5K1.1 motion in exchange for the defendant’s cooperation, the prosecutor’s decision not to make the motion is judicially reviewable. This is true even if the determination of whether the defendant has rendered “substantial assistance” is expressly left to the discretion of the prosecutor. The prosecutor’s discretion is not completely unlimited because there is an implied obligation of good faith and fair dealing in every contract. The scope of the government’s discretion, though broad, does not “permit it to ignore or renege on contractual commitments to defendants.”

The use of “may” in the plea agreement does not alter the government’s obligation to act in good faith. (United States v.Hernandez, 17 F.3d 78 (5th Cir. 1994).) In Hernandez, the plea agreement contained the language “the government may make a motion for downward departure at sentencing.” (Emphasis added.) The record shed no light on the degree of discretion, if any, the parties intended for the government to retain by the use of the permissive word “may” as opposed to the mandatory “will” or “shall,” citing:

[w]e have serious doubts that either party meant for the government to retain unbridled discretion merely by using [the word “may” in the agreement].(Id. at 83.)

The First Circuit expressed doubt that Hernandez knowingly and intentionally walked into an illusionary bargain.


At least one circuit has established ground rules for litigating a “bad faith” challenge. To prevail on a claim of breach of a cooperation agreement based on “bad faith,” the Second Circuit has ruled that a [d]defendant must first allege that he or she believes the government is acting in bad faith. Such an allegation is necessary to require the prosecutor to explain briefly the government’s reasons for refusing to make a downward motion. Inasmuch as a defendant will generally have no knowledge of the prosecutor’s reasons, at this first or pleading step the defendant should have no burden to make any showing of prosecutorial bad faith. Following the government’s explanation, the second step imposes on defendant the requirement of making a showing of bad faith sufficient to trigger some form of hearing on that issue. (United States v. Kahn, 920 F.2d 1100, 1106 (2d Cir. 1990).

The Second Circuit has not specified the type of hearing required in such an instance, stating that “whether it be merely oral argument or should include a formal evidentiary hearing is a matter that lies within the sound discretion of the district court.” (United States v. Knight, 968 F.2d 1483, 1487 (2d Cir.1992) (citations omitted).) “At a minimum, however, the district court should consider any evidence with a significant degree of probative value, and should rest its findings on evidence that provides a basis for [appellate] review.” (United States v. Leonard , 50 F.3d 1152, 1157 (2d Cir. 1995).) In Knight, the defendant challenged his sentence on appeal, arguing that the government acted in bad faith when it refused to perform its part of the plea agreement by making a “substantial assistance motion under § 5K1.1 after he testified as a government witness at his codefendant’s trial. Although the section of the plea agreement relating to Knight’s cooperation did not specify the kind of cooperation that Knight was expected to provide, the record indicated that the government’s principal reason for offering the agreement was to secure Knight’s truthful testimony at the trial of his codefendant. The agreement provided:

The United States reserves the right to evaluate the nature and extent of defendant’s cooperation and to advise the Court of the nature and extent of any such cooperation at the time of sentencing. The United States agrees that if, in the sole and unfettered discretion of the United States, the circumstances of defendant’s cooperate warrant a departure by the Court from the Sentencing Guidelines range determined by the Court to be applicable, the United States will make a motion pursuant to § [5K1.1] of the Sentencing Guidelines stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense. (Emphasis added).

After Knight kept his promise and testified, the government exercised its “sole and unfettered discretion” and refused to make the motion for a downward departure. As required by Kahn, Knight then asserted that the government acted in bad faith. The government, seeking to explain its refusal to move, offered six reasons to the district court including:

1. Knight’s cooperation was untimely; 2. Knight was more culpable than his codefendant against whom he testified; 3. Knight pled guilty only because his brother had done so; 4. The plea agreement benefited Knight in other ways; 5.The clause in the plea agreement that promised a possibility of a substantial-assistance motion “was not something that was bargained for”; and 6. Knight’s trial testimony was “inconsistent” with the testimony of another witness.

The appellate court found that reasons one through four all related to circumstances that preceded the making of the agreement and that the government was aware of them at the time it promised to consider making the substantial- assistance motion:

Not only would be it unfair for the government to rely upon such known, pre-agreement circumstances as reason for not moving, it would have been fraudulent to have induced the defendant’s plea with a promise that the government already knew it was not going to keep.

After finding that reason number five was “frivolous,” and that reason number six–that Knight’s trial testimony was “inconsistent” with that of another witness–did not equate with a claim that he did not testify truthfully, the court of appeals rejected the lower court’s conclusory finding of “good faith” and remanded for further proceedings on the issue of whether the government acted in back faith in refusing to move for a downward departure.

In United States v. Lezine, No. 97-2571, 1999 U.S. App. LEXIS 1111, 13-14 (7th Cir. Jan. 28, 1999), the Seventh Circuit held that when the government seeks to escape an obligation under a plea agreement on the grounds that the defendant has failed to meet some precondition, the defendant is entitled to an evidentiary hearing. In Lezine, the plea agreement provided that “assuming the defendant’s full and truthful cooperation,” the government “shall” move the court to depart downward from the applicable sentencing guideline range for a statutory minimum sentence. The court of appeals found that the plea agreement imposed a specific obligation on the government. Because the government made a definitive promise to Lezine, his due process rights demanded that the court determine whether or not he had failed to meet the precondition of “full and truthful cooperation.” (Id. at 21.)

Earlier this year, in United States v. Mikaelian, No. 97-50174, 1999 U.S. App. LEXIS 2337 (9th Cir., Feb. 17, 1999), the Ninth Circuit held that although the government has the discretion to decide whether to file a § 5K1.1 motion, “it does not have the last and only on whether a defendant provided substantial assistant.” If a defendant contends that he or she did, indeed, cooperate and that the government is acting in bad faith in refusing a motion, a factual dispute arises requiring an evidentiary hearing.

Defendant Not Allowed to Cooperate

In addition, if a court finds that the government in bad faith barred a defendant from additional opportunities to cooperate under circumstances wherein the government agreed to file a § 5K1.1 motion upon the defendant’s providing substantial assistance, the court should order the government to file a § 5K1.1 motion even if a defendant did not, as a result, provide “substantial assistance.” (See United States v. Laday, 56 F.3d 24 (5th Cir. 1995) (cooperation agreement implies government will give defendant adequate opportunity to cooperate); United States v. Ringling, 988 F.2d 504 (4th Cir. 1993) (same).) In Laday, the defendant was charged with exporting and conspiracy to export stolen vehicles after authorities discovered a scheme to export a stolen backhoe to the country of Belize. Laday and the prosecutor entered into a plea agreement in which he agreed to plead guilty to exportation of a stolen vehicle and the government agreed, in part, to move at sentencing for a § 5K1.1 downward departure if Laday provided substantial assistance to the government’s further actions in the matter.

Laday subsequently entered a plea of no contest rather than guilt, and continued maintaining a lack of guilty knowledge in his interview with the probation office. Because of his continued protestation of innocence, the government made no effort to determine whether he could furnish substantial assistance in its investigation or prosecution of others. At the sentencing hearing, Laday moved to withdraw his plea, contending that the government breached the plea agreement by denying him an opportunity to provide substantial assistance. The district court rejected the motion, concluding that to force the government to interview Laday would be a futile exercise considering his denial of knowledge that the backhoe was stolen.

On appeal to the Fifth Circuit, the government argued that Laday’s denial of such knowledge made any assistance he might offer unsubstantial, thus excusing its conduct. The circuit court disagreed:

The government was aware of Laday’s claim of a lack of guilty knowledge when it committed to the amended plea agreement calling for his plea of nolo contendere. The government may not now use that claim to avoid its obligations under the express terms of the plea agreement.(Id. at 26.)

The Fifth Circuit thus remanded for specific performance of the cooperation agreement to allow the defendant the opportunity to cooperate and for appropriate resentencing before a different judge. (Id.) Similarly, in Ringling, the government entered into a plea agreement with the defendant that included a cooperation provision that the government would bring the defendant’s cooperation to the attention of the sentencing judge. The Fourth Circuit ruled that this “implicitly required the government to debrief Ringling prior to sentencing in order that the government could make known ‘at the time of sentencing’ the extent of Ringling’s cooperation.” (Ringling, 988 F.2d at 505.) The government, however, did not debrief Ringling and consequently could not provide the court with information regarding his cooperation at sentencing. The Fourth Circuit remanded the case to the district court for resentencing, expressly directing that “[p]rior to the resentencing, Ringling should be given a reasonable opportunity to provide the Government with information of the nature contemplated by the plea agreement.”(Ibid.)

Nonconstitutional Impermissible Reasons

InUnited States v. Anzalone, 148 F.3d 940 (8th Cir. 1998), vacated by the court on grant of rehearing on September 22, 1998, reinstated by the court on denial of rehearing October 7, 1998, the Eighth Circuit held that the government could not base its decision whether to file a § 5K1.1 motion on factors other than the substantial assistance provided by the defendant. In Anzalone, the government advised the court that it had received information that defendant Anzalone had used and possessed controlled substances, violating a provision of his plea agreement that he “not commit any additional crimes whatsoever.” The government refused to file a § 5K1.1 motion because of the defendant’s violation of the plea agreement. The district court held that the government’s position was rational. The Eighth Circuit reversed and remanded to the district court to determine whether the defendant’s assistance was substantial.

In particular, the court explained:

Once the government concludes that a defendant has provided substantial assistance, and has positively assessed in that regard “the cost and benefit that would flow from moving,” (Wade, 112 S. Ct. at 1844), it should make the downward departure motion and then advise the sentencing court if there are unrelated factors, such as [defendant]’s alleged post-plea agreement drug use, that in the government’s view should preclude or severely restrict any downward departure relief. The district court may of course weigh such alleged conduct in exercising its downward departure discretion. Id.; see also United States v. Stockdall, 45 F.3d 1257, 1261 (8th Cir. 1995).

Sentencing is “primarily a judicial function.” Mistretta v. United States, 488 U.S. 361, 390, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989). The prosecutor’s role in this aspect of sentencing is limited to determining whether the defendant has provided substantial assistance with respect to “a sentence,” advising the sentencing court as to the extent of that assistance, and recommending a substantial assistance departure. See U.S.S.G. s 5K1.1 & comment. (n.3). The desire to dictate the length of a defendant’s sentence for reasons other than his or her substantial assistance is not a permissible basis for exercising the government’s power under s 3553(e). (Id. at 261.)

In addition, unless the defendant breached his cooperation agreement in a way that damaged the case in which he was cooperating, and unless the basis of the breach was unknown and unanticipated at the time the government entered into the cooperation agreement, the defendant’s breach does not justify the government’s refusal to make a § 5K1.1 motion. (Compare United States v.Brechner, 99 F.3d 96, 100 (2d Cir. 1996) (reversing order that compelled government to make s 5K1.1 motion after defendant had lied to government).)

§ 5K2.0 departure for substantial assistance Courts have found that a departure is permitted under § 5K2.0 in the absence of a government motion for substantial assistance under various circumstances.

Notwithstanding the absence of a government § 5K1.1 motion, the courts have already held that a departure for substantial assistance under § 5K2.0 was permitted where defendant provided substantial assistance to branches of government other than those that engage in prosecutorial activities when the assistance does not involve “the investigation or prosecution of another 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, 782 F. Supp. 17, 19 (E.D.N.Y. 1992) (assistance to a congressional committee).

In addition, the Second Circuit has held that a district court could consider a departure under § 5K2.0 for a defendant who cooperated with local law enforcement authorities. (United States v. Kaye, 140 F.3d 86 (2d Cir. 1998).) The cutting edge solution is that post-Koon a court can depart downward under § 5K2.0 based on substantial assistance notwithstanding the prosecutor’s refusal to so move under § 5K1.1. Such an approach encourages a court to recognize that it no longer has its hands tied by an often arbitrary decision by the government as to what constitutes “substantial assistance.” Koon made it crystal clear that unless a particular factor had been declared “off limits” by the U.S. Sentencing Commission, (e.g., race, sex, national origin, creed, religion, socio-economic status, lack of guidance as a youth, or drug or alcohol dependence), the factor may be a ground for a downward departure.In short, the court may not depart based on a forbidden ground. Anything else is fair game.

As the D.C. Circuit initially held in In re: Sealed Case (Sentencing Guidelines “Substantial Assistance”), 149 F.3d 1198 (D.C. Cir. 998), vacated, in part, reh’g, en banc, granted, 159 F.3d 1362, 1998 U.S. App. LEXIS 29803 (D.C. Cir. 1998), because substantial assistance without a government motion is an unmentioned factor under the guidelines, “even where the government files no motion, Koon authorizes district courts to depart from the Guidelines based on a defendant’s substantial assistance where circumstances take the case out of the relevant guideline heartland.” (Id.)


It appears, when all is said and done, that there is little distinction between agreements that provide that the government will file a § 5K1.1 motion if the defendant provides substantial assistance and those in which the government retaining “unfettered” and “sole” discretion may do so if the defendant renders substantial assistance. Both agreements still require that the government act “in good faith” and/or that the prosecutor’s refusal to file is not not based upon an unconstitutional motive or not rationally related to a legitimate government end. Thus, in those districts where a defendant has provided substantial assistance, but nonetheless wishes to exercise his or her constitutional right to trial or even simply to present evidence in mitigation of punishment, the government cannot withhold an otherwise earned § 5K1.1 motion. Nor can the government withhold a § 5K1.1 motion merely because the defendant has breached an unrelated term of the plea agreement. This may invite inquiry into the prosecutor’s decision-making process and, in some cases, judicial review as to whether the cooperation did, in fact, rise to the level of “substantial assistance.” In any case, it appears that § 5K1.1 motions are no longer solely the province of the prosecution.

Note: The assistance of Wayne Anderson, an associate in the firm’s California office, is gratefully acknowledged.[/vc_column_text][/vc_column][/vc_row]

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus