# United States v. John Doe

> Court of Appeals for the Seventh Circuit · August 2, 1991 · 940 F.2d 199

URL: https://www.frixlaw.com/law-library/cases/9481883

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** August 2, 1991
- **Citations:** 940 F.2d 199; 1991 U.S. App. LEXIS 17754; 1991 WL 144500
- **Precedential status:** Published
- **Opinion:** Concurrence by Cudahy
- **Judges:** Cudahy, Ripple, Eschbach
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481883

## How later opinions describe it (automated extraction)

- holding that “a Government motion is required to trigger the current Rule 35(b)”
- noting that cases construing 35(b), § 3553(e) and § 5K1.1 can be used "interchangeably”

## Opinion text

CUDAHY, Circuit Judge,
concurring.
I agree wholly with almost all that Judge Eschbach has written for the panel. I write separately only to indicate my belief that the proper test for measuring any prosecutor’s refusal to file a Rule 35(b) motion is whether the refusal is arbitrary or in bad faith. See United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), ce rt. denied, — U.S. -, 110 S.Ct. 1493 , 108 L.Ed.2d 629 (1990). United States v. Bayles, 923 F.2d 70, 71-72 (7th Cir.1991), leans somewhat against finding such an exception, and United States v. Donatiu, 922 F.2d 1331 , 1334-35 & n. 3 (7th Cir.1991), remains agnostic on the matter; neither resolved the issue definitively. Other circuits, as Judge Eschbach points *207 out, are not consistent on the question, and at this time I believe that due process requires such an exception to the government’s discretion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481883. Public record. Not legal advice.