Consider the following scenario in a criminal case before a federal court judge.

The defendant, facing a mandatory minimum sentence, argues at sentencing that the government acted in bad faith by refusing to ask the trial court judge for a “substantial assistance” departure under 18 U.S.C. §3553(e).

The defendant requests the court to hold a hearing, contending he fully provided substantial assistance, and the assistant U.S. attorney indicated the government would continue to use his assistance in the future. He also contends the government withheld the motion because it did not want to provide the defendant the benefit of his bargain in the plea agreement.

The government counters that the district court doesn’t need to hold a hearing on bare assertions. It also contends the information the defendant provided was not useful, and the defendant was not truthful when questioned.

What is the court to do?

Court has limited authority

The federal district court has limited authority under 18 U.S.C. §3553(e) to impose a sentence below a statutory minimum. (Melendez v. United States, 518 U.S. 120 (1996) (district court cannot depart below any statutory minimum sentence absent a government motion under §3553(e) attesting to the defendant’s substantial assistance in a criminal investigation))

To allow the district court to impose a sentence below a statutory minimum, the government must file a §3553(e) motion for a downward departure. Once a downward departure motion is filed, the district court “shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.”

The sentence imposed must follow the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

A government motion made pursuant to Section 5K1.1 of the Sentencing Guidelines requesting the district court to depart below the minimum of the applicable sentencing range is a separate, distinct action that does not permit the district court to depart below any statutory minimum sentence absent a §3553(e) motion. (Melendez, 518 U.S. at 122. See also United States v. Hodge, 469 F.3d 749, 755 (8th Cir. 2006) (the decision to make a §5K1.1 motion but refusing to make a §3553(e) motion is within the government’s discretion based on its rational assessment of the costs and benefits).)

The government’s power under §3553(e) is discretionary. The only permissible basis for the government to exercise, or refuse to exercise, this power is a defendant’s substantial assistance and cooperation.

If the government states that a defendant’s cooperation has not reached the level of substantial assistance and that a §3553(e) motion has not been earned by a defendant, the district court has no other option but to sentence a defendant to at or above the statutory minimum.

The district court, however, may review the government’s refusal to make a motion in limited circumstances.

First, it can review the government’s decision for an unconstitutional motive. Second, the district court can review the government’s decision if the government acknowledges the defendant provided substantial assistance, but refuses to make a motion expressly because the defendant engaged in unrelated misconduct. Third, the district court may review the government’s decision if the government acted in bad faith by refusing to make a motion.

Unconstitutional motive

In Wade v. United States (504 U.S. 181 (1992)), the U.S. Supreme Court held that district courts can review the government’s refusal to make a substantial assistance motion and to grant a remedy if they find that the government’s refusal is based on an unconstitutional motive.

The court explained that an unconstitutional motive is based on race, religion or one “not rationally related to any legitimate Government end.” An unconstitutional motive essentially involves some form of invidious discrimination.

A defendant must make a “substantial threshold showing” that the government refused to file a motion for suspect reasons before being entitled to a remedy “or even a discovery or an evidentiary hearing.” Id. at 186.

A substantive due process violation would require proof that a prosecutor’s abuse of power “shocks the conscience” (United States v. Moeller, 383 F.3d 710, 712 (8th Cir. 2004), and an equal protection violation would require proof of “unlawful, purposeful discrimination.”

The U.S. Supreme Court held in Chapman v. United States (500 U.S. 453, 464-65 (1991)) that a refusal may also be unconstitutional if it is arbitrary and irrational and such irrational refusal denies the defendant due process of law.

However, if a prosecutor states the decision not to file a §3553(e) motion is based solely on what the defendant did or did not do by way of cooperating and attempting to provide substantial assistance, and there is no evidence to contradict that assertion, then the district court will have no basis to grant the remedy for an unconstitutional motive.

Factors other than substantial assistance

The government cannot acknowledge that a defendant provided substantial assistance, but then refuse to file a motion for downward departure on a factor other than substantial assistance.

In United States v. Anzalone (148 F.3d 940, 941-42 (8th Cir. 1998), the 8th Circuit held that once the government concludes a defendant has provided substantial assistance, and “has positively assessed in that regard the cost and benefit that would flow from moving,” it should make the downward departure motion and then advise the sentencing court if there are “unrelated factors that in the government’s view should preclude or restrict any downward departure relief.”

Therefore, a district court can compel a §3553(e) motion if the government acknowledges substantial assistance, but refuses to make a motion “expressly because the defendant engaged in unrelated misconduct – a reason unrelated to the quality of the defendant’s assistance.” United States v. Freemont, 513 F.3d 884, 889 (8th Cir. 2008).

While the prosecutor’s decision in Anzalone was not based an unconstitutional motive, the 8th Circuit has held that such government concessions establish a statutory duty to file the substantial assistance motion.

Decisions based on bad faith

In the 8th Circuit, there is an intra-circuit split on whether a bad faith refusal to file a motion under §3553(e) is a basis for the district court to compel the government to file a downward departure motion.

The court in United States v. Moeller rejected the defendant’s contention that the government’s refusal to file a §3553(e) motion was in bad faith. It held that “bad faith is not a constitutional standard” and unworthy of district court review. 383 F.3d at 712.

The court stated, “When the government ties its refusal to make a §3553(e) motion to the defendant’s substantial assistance, or lack thereof, and the defendant fails to make a substantial threshold showing of improper motive, an evidentiary hearing is not warranted.” Id. at 713.

Judge Colloton’s concurrence in United States v. Davis (397 F.3d 672, 677 (8th Cir. 2005) urged discontinuance of the “bad faith” terminology following Moeller.

The court in United States v. Hodge (469 F.3d 749 (8th Cir. 2006)) stated its agreement with Moeller and Judge Colloton’s concurrence in Davis, but expressly avoided the intra-circuit debate.

On the other hand, the court in United States v. Wolf (270 F.3d 1188 (8th Cir. 2001)) and United States v. Kelly (18 F.3d 612 (8th Cir. 1994)) held that a district court may compel the government to move for a substantial assistance downward departure if the government’s refusal is motivated by bad faith.

The Wolf court cited United States v. Rounsavall (128 F.3d 665, 667-68 (8th Cir. 1997), which held that a district court may review a prosecutor’s refusal to make a substantial assistance downward departure motion and grant a defendant relief if the refusal was unconstitutional or motivated by bad faith.

Under Wolf, a defendant is entitled to an evidentiary hearing on his or her allegation of “an unconstitutional or bad faith refusal, but only if he first makes a substantial threshold showing.” 270 F.3d at 1190.

Other 8th Circuit panels have just avoided altogether this intra-circuit issue. In United States v. Pamperin and United States v. Holbdy, the panels acknowledged there is an “intra-circuit split over whether evidence of bad faith can also provide the basis for compelling the government to file a § 3553(e) motion absent an otherwise unconstitutional motive.” (Pamperin, 456 F.3d at 826, note 2, and Holbdy, 489 F.3d at 914, note 2.) The defendants in those two cases argued irrationality, not bad faith, as the government’s motive, so the courts could remain silent on that issue.

Willie J. Epps Jr. is a partner in the Kansas City, Mo. office of Shook, Hardy & Bacon L.L.P., where he focuses on product liability litigation, federal criminal defense and corporate compliance. He is a graduate of Amherst College, cum laude, and Harvard Law School.