# United States v. Mark Forney

> Court of Appeals for the Eleventh Circuit · December 27, 1993 · 9 F.3d 1492

URL: https://www.frixlaw.com/law-library/cases/9486149

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Mark FORNEY, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** December 27, 1993
- **Citations:** 9 F.3d 1492; 1993 U.S. App. LEXIS 33574; 1993 WL 501726
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Birch, Clark, Hoeveler
- **Cited by:** 155 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/9486149

## How later opinions describe it (automated extraction)

- holding that where government retains discretion to file substantial assistance motion in plea agreement "courts are precluded from intruding into prosecutorial discretion” unless there is "an allegation and a substantial showing that the prosecution refused to file a substant…
- concluding that, because the government did not break a promise to consider the defendant’s assistance, and never promised that it would file a substantial-assistance motion, it did not fail to comply with the terms of the plea agreement
- concluding that judicial review of failure to file substantial assistance motion is limited to unconstitutional motive and acknowledging “[c]ourt’s reluctance to enter into the pros-ecutorial discretion arena of the executive branch”
- explaining that, under “the [Supreme] Court’s clear holding in Wade [,] ... judicial review of the government’s decision not to file a 5K1.1 motion is appropriate only when unconstitutional motivation has been alleged”
- holding that judicial review of the government’s refusal to file a § 5K1.1 motion is appropriate where the plea agreement contained a specific agreement by the government to file a substantial-assistance motion

## Opinion text

CLARK, Senior Circuit Judge,
dissenting:
Respectfully, I dissent. This ease turns upon the interpretation of the cooperation provision of Forney’s plea agreement. This provision provides that, in exchange for For-ney’s full cooperation in criminal investigations and prosecutions, the government will consider filing a 5K1.1 motion recommending a lesser sentence; the provision goes on to reserve to the government the sole discretion to decide whether a 5K1.1 motion is appropriate. The majority holds that, regardless of the extent of Forney’s cooperation, the government is obligated to do absolutely nothing. This result is inconsistent with Supreme Court precedents governing plea agreements, with principles of contract law, and with fundamental fairness. The government promised to consider filing a 5K1.1 motion; it must be required to act in good faith in fulfilling this promise. As with any other promise in a plea agreement, the district court must ensure that this promise is fulfilled. In this case, the district court judge believed that he was without authority to inquire into Forney’s allegations that the government acted in bad faith in declining to file a 5K1.1 motion. 1 The district court judge was not only authorized, but was obligated, to make such an inquiry. Accordingly, I would remand the case for the district court to decide whether the government act *1505 ed in bad faith in declining to file a 5K1.1 motion in Forney’s ease.
I.
In Santobello v. New York, 404 U.S. 257, 262 , 92 S.Ct. 495, 499 , 30 L.Ed.2d 427 (1971), the Supreme Court held that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” The Fourth Circuit, in United States v. Conner, 930 F.2d 1073 (4th Cir.), cert. denied, — U.S. —, 112 S.Ct. 420 , 116 L.Ed.2d 440 (1991), applied this principle to the government’s promise to file a 5K1.1 motion. The plea agreement at issue in Conner provided: “Should Mr. Conner provide substantial assistance ..., then the United States will recommend” a sentence below the statutory minimum. 930 F.2d at 1074 . When the government declined to file a 5K1.1 substantial-assistance motion at the defendant’s sentencing hearing, the defendant charged that the government had breached the plea agreement. The government took the position that, even in the face of the plea agreement, the decision whether to file a 5K1.1 motion was within its sole discretion; thus, the government argued, the district court was without authority to review the defendant’s charge. The Fourth Circuit rejected this argument:
In the context of plea agreements, courts have readily acknowledged that the courts are not powerless in the face of a breach of a plea agreement by the government.
The Fourth Circuit, as has every circuit that has been faced with this issue, has upheld § 5K1.1 against various constitutional attacks. However, once the government uses its § 5K1.1 discretion as a bargaining chip in the plea negotiation process, that discretion is circumscribed by the terms of the agreement. The task of the trial court is to determine if the government has in fact agreed to make the motion in return for substantial assistance, and, if so, whether the defendant has satisfied his contractual obligations.
In Santobello v. New York, the Supreme Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Where the bargain represented by the plea agreement is frustrated, the district court is best positioned to determine whether specific performance, other equitable relief, or plea withdrawal is called for. We perceive no reason why this same principle should not apply with respect to a conditional promise to make a § 5K1.1 motion.
930 F.2d at 1075-76 (citations omitted).
After the Fourth Circuit decided Conner , the Supreme Court rendered its decision in Wade v. United States, — U.S. —, 112 S.Ct. 1840 , 118 L.Ed.2d 524 (1992). Wade complained that the government had failed to file a 5K1.1 motion at his sentencing proceeding despite his substantial assistance. The Supreme Court declined to grant Wade relief because he did not allege that the government’s refusal to file the motion was based on an unconstitutional motive: “[W]e hold that federal district courts have authority to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive.” — U.S. at-, 112 S.Ct. at 1843-44 . Thus, Wade stands for the proposition that a district court is without authority to review the government’s refusal to file a 5K1.1 motion absent an allegation of unconstitutional motive; however, Wade did not involve a plea agreement. Indeed, specifically referencing Santobello and Conner , the Supreme Court said:
Wade concedes ... that § 3553(e) imposes the condition of a Government motion upon the district court’s authority to depart, ... and he does not argue otherwise with respect to § 5K1.1. He does not claim that the Government-motion requirement ... is superseded in this case by any agreement on the Government’s behalf to file a substantial-assistance mo *1506 tion, cf. Santobello v. New York, 404 U.S. 257, 262-263 , 92 S.Ct. 495, 498-499 , 30 L.Ed.2d 427 (1971); United States v. Conner, 930 F.2d 1073, 1075-1077 (CA4), cert. denied, 502 U.S.-, 112 S.Ct. 420 , 116 L.Ed.2d 440 (1991).
— U.S. at-, 112 S.Ct. at 1843 (emphasis added).
Wade , then, does not abrogate Conner . By the language quoted above, the Court in Wade indicated that the principles announced in Santobello, not the principles announced in Wade , govern a prosecutor’s promise in a plea agreement to file a 5K1.1 motion. Thus, under Santobello , a district court is obligated to enforce the government’s promise to file a 5K1.1 motion just as it is obligated to enforce other promises in plea agreements. There is no dispute over this general principle. Since Wade , every circuit that has addressed the issue in a published opinion has either specifically decided or assumed that the principles announced in Santobello are applicable to the government’s conditional promise in a plea agreement to file a 5K1.1 motion. See e.g. United States v. Knights, 968 F.2d 1483, 1486 (2d Cir.1992) (court subjected cooperation provisions of plea agreement to Santobello analysis); United States v. Dixon, 998 F.2d 228 (4th Cir.1993) (court held that, when government promises to file 5K1.1 motion conditional on defendant’s cooperation, district court has “the power to review the government’s refusal to make the motion just as it would any alleged breach of the plea agreement”); United States v. Watson, 988 F.2d 544, 553 (5th Cir.1993) (court held that district court had authority to enforce prosecutor’s promise to file a 5K1.1 motion), petition for cert, filed (July 29, 1993); United States v. Burrell, 963 F.2d 976, 985 (7th Cir.) (court noted that defendant is entitled to relief if prosecutor “promises ... to make a § 5K1.1 motion in exchange for a guilty plea, and then welshes on the bargain”), cert. denied, — U.S. —, 113 S.Ct. 357 , 121 L.Ed.2d 270 (1992); United States v. Romsey, 975 F.2d 556, 558 (8th Cir.1992) (in denying defendant relief, court relied in part on “carefully-worded plea agreement [that] preserved the government’s discretion not to file a substantial assistance motion”); United States v. Robinson, 978 F.2d 1554, 1569 (10th Cir.1992) (court noted that, when cooperation agreement leaves discretion to prosecutor, court’s role is limited to deciding whether prosecutor made determination in good faith), cert. denied, — U.S.—, 113 S.Ct. 1855 , 123 L.Ed.2d 478 (1993).
II.
The issue that has split the circuits is the one presented here: To what extent is a district court authorized to review the government’s decision not to file a 5K1.1 motion when, as here, the language of the plea agreement specifically reserves for the government the sole discretion to decide whether such a motion is appropriate. On the one hand, the Second Circuit has held that, while such language imparts broad prosecutorial discretion, this discretion is limited by the implied obligation of good faith and fair dealing. Thus:
[WJhen a cooperation agreement allows for a substantial-assistance motion contingent on the government’s subjective evaluation of a defendant’s efforts to cooperate, the district court may review only to determine whether the prosecution based its decision on impermissible considerations such as race or religion, or whether the prosecutor has made its determination in good faith.
United States v. Knights, 968 F.2d at 1487 (emphasis added and internal quotations omitted). Likewise, the Tenth Circuit has held: “When a plea agreement leaves discretion to the prosecutor, the court’s role is limited to deciding whether the prosecutor has made its determination in good faith.” United States v. Robinson, 978 F.2d at 1569 . On the other hand, in the face of language placing discretion with the government, the Seventh and Eighth Circuits have declined to review, even under a permissive “good faith” standard, the government’s decision not to file a 5K1.1 motion. United States v. Bur-rell, 963 F.2d at 985 ; United States v. Romsey, 975 F.2d at 558 . For reasons explained below, I would follow the Second and Tenth Circuits. I would hold that the broad discretion granted the government by the language of a plea agreement such as the one in this *1507 case is limited by the implied obligation of good faith and fair dealing; accordingly, a district court is authorized to review the government’s decision not to file a 5K1.1 motion to ensure that the decision was made in good faith.
In Santobello , the Supreme Court noted the many advantages of disposing of criminal charges through plea negotiations and then said: “However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor.” 404 U.S. at 261 , 92 S.Ct. at 498 . Courts generally interpret plea agreements according to principles borrowed from contract law. United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir.1990). Because of the necessity of insuring “fairness” to the defendant, however, courts hold the government to a higher standard than would be applied in a civil contract dispute. For example, “‘[a] plea agreement is not an appropriate context for the government to resort to a rigidly literal approach in the construction of the language.’” In re Arnett, 804 F.2d 1200, 1203 (11th Cir.1986) (quoting United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978)). Thus, a court should not accept a “hyper-technical reading” of a plea agreement. Jef-feries, 908 F.2d at 1523 . In interpreting a plea agreement, a court must look to “the defendant’s reasonable understanding at the time he entered the plea. ” United States v. Rewis, 969 F.2d 985, 988 (11th Cir.1992) (emphasis added); see also Arnett, 804 F.2d at 1202-03 . Any ambiguous terms in a plea agreement must be construed against the government. Jefferies, 908 F.2d at 1523 . Finally, this circuit requires the government to “adhere strictly to the terms of plea agreements.” Arnett, 804 F.2d at 1204 . The rationale for these rules is “that a plea agreement must be construed in light of the fact that it constitutes a waiver of ‘substantial constitutional rights’ requiring that the defendant be adequately warned of the consequences of the plea.” Jefferies, 908 F.2d at 1523 .
Under traditional contract principles, “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Restatement (Second) of Contracts § 205 (1981). The plea agreement provision in this case is one-sided; the government is obligated to file a 5K1.1 motion only if it decides, in its sole discretion, that Forney’s assistance was satisfactory. Such one-sided agreements (often called “promises conditional on personal satisfaction”) are valid contracts provided the duty of good faith and fair dealing is imposed upon the parties. “Under any interpretation [of a promise conditional on personal satisfaction], the exercise of judgment must be in accordance with the duty of good faith and fair dealing, and for this reason, the agreement is not illusory.” Id. at § 228 cmt. a.
The majority declines to impose upon the government the duty of good faith and fair dealing. This holding is not only inconsistent with the law of contracts; it flies in the face of the federal court’s obligation to ensure fairness in plea proceedings. In essence, the majority holds that, in exchange for the defendant’s promise to cooperate and thereby place himself and his family in danger of reprisal, the government promises absolutely nothing. The majority will not even require the government to make a good faith evaluation of whether the defendant’s cooperation warrants a 5K1.1 motion. The majority’s interpretation of the cooperation provision renders that provision illusory. We are obligated to interpret a plea agreement in accordance with “the defendant’s reasonable understanding.” I utterly fail to understand how the majority can conclude that its interpretation of the cooperation agreement comports with “the defendant’s reasonable understanding.” In United States v. Hernandez, 996 F.2d 62 , (5th Cir.1993), the plea agreement provided that “the government may make a motion for downward departure at sentencing.” Id. at 63 . .Remanding the case for the district court to determine, among other things, the meaning of the word “may” in the context of the plea agreement, the Fifth Circuit said:
We find it difficult if not impossible to believe that any defendant who hopes to receive a motion for a downward departure would knowingly enter into a plea agreement in which the government retains unfettered discretion to make or not to make that motion, even if the defendant should *1508 indisputably provide substantial assistance. On remand of this case, the government should not be heard to make the legalistic argument that merely by using the word “may” the government is free to exercise the prosecutor’s discretion whether to make the motion for downward departure. Given the admirably candid concessions it made to this court in oral argument, the government cannot hereafter insist that Hernandez knowingly and intentionally walked into such an illusory “bargain.” Frankly, we are incredulous that any defendant would consciously make such an obviously bad deal absent some extremely compelling need to plead rather than stand trial.
The [district court on remand must] determine the intentions of the parties concerning the use of the word “may” in the agreement — even though we have serious doubts that either party meant for the government to retain unbridled discretion merely by using that word.
Id. at 65-66 .
I would apply traditional contract principles and impose upon the government the duty of good faith and fair dealing. I would hold that, when a cooperation agreement retains for the government the sole discretion to determine whether a 5K1.1 motion is appropriate, a district court is authorized to review the government’s decision to ensure that it was rendered in good faith.
III.
The Second Circuit has developed a procedure for a district court to follow when a defendant alleges that the government has acted in bad faith in failing to file a 5K1.1 motion:
When a defendant claims that the government has acted in bad faith in refusing to move for a downward departure, the government may rebut this allegation by explaining its reasons for refusing to depart. The defendant must then make a showing of bad faith to trigger some form of hearing on that issue.... [W]hether 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.
Knights, 968 F.2d at 1487 (citation and internal quotations omitted). I would remand this case with instructions that the district court follow this procedure, beginning by requiring the government to explain its refusal to file a 5K1.1 motion in Forney’s case. As to Forney’s showing of bad faith, I would note for the district court that there is already in the record evidence of the government’s bad faith, namely, the government’s failure to present at sentencing the extent of Forney’s cooperation. I would leave it to the district court to determine whether this evidence of bad faith, combined with the government’s explanation and any other evidence presented by Forney, is sufficient to require a hearing of the bad faith issue.
IV.
I conclude with a passage from Judge Highsmith’s opinion in United States v. Ganz, 806 F.Supp. 1567 (S.D.Fla.1992). The cooperation provision of the plea agreement in Ganz , like the one in this case, reserved for the government the sole discretion to decide whether a 5K1.1 motion was appropriate. Judge Highsmith decided, after a hearing, that the government had acted in bad faith in declining to file a 5K1.1 motion and ordered the government to file the motion. In response to the government’s motion for reconsideration, in which it argued that Judge Highsmith had erred in imposing upon it a contractual obligation to act in good faith, Judge Highsmith said:
The government’s renewed attempts to skirt the “obligation of a contract” prompt the Court to repeat and expand its discussion of the sovereign’s legal duty to perform the specified obligation of that contract. No document provides a better starting point than our Declaration of Independence, where we, as a people, committed ourselves to a government that derives its “just powers from the consent of the governed.” The Declaration of Independence para. 3 (U.S. 1776). The consent theory of government, expounded by philosophers such as John Locke and Jean *1509 Jacques Rousseau and adopted by our founding fathers, supports the concept of a government entrusted by the people with carrying on the affairs common to us all:
What is Government, but a Trust committed by All, or the Most, to One, or a Few, who are to attend upon the Affairs of All, that every one may, with the more Security, attend upon his own?
Thomas Gordon, Cato’s Letter, No. 38, 22 July 1721, reprinted in 1 Phillip B. Kur-land & Ralph Lerner, The Founders’ Constitution, at 46 (1987).
As the trustee of the people, the government is held to a higher standard in carrying out our common duties, including the prosecution of crimes. This higher standard requires the sovereign to perform its contractual duties with a sharpened sense of good faith and fair dealing. The fact that the other party to the contract is a criminal defendant does not alter the government’s duty.
Justice Hugo L. Black accurately portrayed this stricter duty when he paraphrased Justice Oliver Wendel Holmes’ earlier statement that “Men must turn square corners when they deal with the Government.” Rock Island, A & L.R. Co. v. United States, 254 U.S. 141, 143 , 41 S.Ct. 55, 56 , 65 L.Ed. 188 (1920). Justice Black stated:
“It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their Government.”
St. Regis Paper Co. v. United States, 368 U.S. 208, 229 , 82 S.Ct. 289, 301 , 7 L.Ed.2d 240 (1961) (Black, J. dissenting).
Gam, 806 F.Supp. at 1575 . The majority’s holding in this case flies in the face of these fundamental principles. Accordingly, I dissent.
. The majority’s holding in this case appears to rest at least in part upon a finding that Forney did not raise the bad faith issue with the district court at sentencing. Maj.Op. at 1500. To the extent the majority makes such a finding, it is erroneous. While Forney’s counsel perhaps could have better preserved the objection, Forney himself squarely placed the bad faith issue before the district court by explaining that he had fulfilled his obligations under the plea agreement, while the government had not. Maj.Op. at 1497, quoting Forney. The district court judge recognized that the bad faith issue was before him; rather than address the merits of Forney's allegations, however, the district court judge pointed to the language of the plea agreement and concluded that he was without authority to inquire into the government's motives for declining to file the 5K1.1 motion. Maj.Op. at 1498, quoting district court judge. Had the district court judge understood that he was authorized to make such an inquiry, he certainly would have done so, even absent an objection by counsel, to prevent a subsequent collateral attack by Forney. Thus, remand is necessary to permit the district court judge to make this inquiry. See e.g., Pullman-Standard v. Swint, 456 U.S. 273, 292 , 102 S.Ct. 1781, 1792 , 72 L.Ed.2d 66 (1982) (“where findings are infirm because of an erroneous view of the law, a remand is proper"); Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir.1983) ("district court findings based upon an erroneous perception of the law are ordinarily remanded”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486149. Public record. Not legal advice.