Amicus Curiae Brief — Wade v. United States

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No. 91-571 cee 25 Wee

3a the Supreme Court of the United States

OCTOBER TERM, 1991

HAROLD RAY WADE, JR., PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the district court has authority to review

the government’s decision not to file a motion under

18 U.S.C. 3553(e) or Sentencing Guidelines § 5K1.1

requesting that the court sentence a defendant be-

low the statutory minimum or the Guidelines sen-

tencing range based on the defendant’s “substantial

assistance in the investigation or prosecution of an-

other person who has committed an offense.”

(1)

TABLE OF CONTENTS

cares csececcnenscnenctuccasesnscossnecs

i eesnemaponcces saaiabeeeiiieaia

Statutes and sentencing outtdinn a

EE eeiidels

Summary of argument ................ aad etait cieainadeaitde

Argument:

Petitioner was not entitled to a reduction of his

sentence based on his claim that he provided “sub-

stantial assistance” to the Government... 10

A. A court may grant a reduced sentence for “sub-

stantial assistance” only if the Government files

an appropriate motion sae 10

B. The decision whether to file a substantial assist-

ance motion is committed to the pros. -.tor’s dis-

EE 12

C. A prosecutor's Gocteten net to make a “substan-

tial assistance” motion is subject to challenge

only if it violates the Constitution __.. 23

D. Petitioner did not make the substantial threshold

showing required to challenge the constitution-

eweude

ality of the prosecutor's decision it Se 28

Conclusion 33

TABLE OF AUTHORITIES

Cases : °

_ Alabama v. Smith, 490 U.S. 794 (1989) 30

Rell v. United States, 470 U.S. 856 (1985) | 15

Bank of Nova Scotia v. United States, 487 U.S. 250

(1988) : ———

Blackledge Vv. Perry, 417 US. 21 (1974) 30

Rolling V. Sharpe, 347 U.S. 497 (1954) : = 24

Bordenkircher V. Hayes, 434 U.S. 357 (1978) 24, 26

Chapman V. United States, 111 8. Ct. 1919 (1991) 27

Citizens to Preserve Overton Park v. Volpe, 401

CO EE 2 13

Cases—Continued :

Page

Commissioner V. Asphalt Products, Inc., 482 U.S.

117 (1987) ........ veiialeateiaaieeihacaiahdaaaiiiaamnunaemntents 22

Gardner V. Florida, 430 US. [ as 27

Harmelin Vv. Michigan, 111 8. Ct. 2680 (1991)... 27

Heckler v. Chaney, 470 U.S. 821 (1985) —............. 1

Kentucky Dep't of Corrections v. Thompson, 490

MOS ——E ee 21

McCleskey V. Kemp, 481 U.S. 279 (1987) —........... 29

Mistretta v. United States, 488 U.S. 361 (1989)... 21, 27

Newman V. United States, 382 F.2d 479 (D.C. Cir.

ee 16

New Orleans Vv. Dukes, 427 U.S. 297 (1976) en 26

North Carolina Vv. Pearce, 395 U.S. 711 (1969) —.... 30

Oyler v. Boles, 368 U.S. 448 (1962) usec. SB, 36

Santobello v. New York, 404 U.S. 257 (1971) . eo 14

Singer V. United States, 380 U.S. 24 (1965) 27

Thomas V. Arn, 474 U.S. 140 (1985) — 22

Town of Newton Vv. Rumery, 480 U.S. 386 (1987). 15

United States v. Alamin, 895 F.2d 1335 (11th

Cir.), cert. denied, 111 S. Ct. 196 (1990)... 12

United States v. Ammidown, 497 F.2d 615 (D.C.

ER 16

United States v. Ayerse, 874 F2a 647 (9th Cir.

1989), cert. denied, 493 U.S. 1047 (1990) 12, 17, 21

United States v. Batchelder, 442 U.S. 114 (1979). _ 15, 23,

United States v. Berrios, 501 F.2d 1207 (2d Cir.

1974)... 29

United States v. ‘Chemical Foundation, 272 v. s. 1

(1926) - . 28

United States v. Coleman, 895 F.2d 501 (8th Cir.

1990) . 12

United States v. Conner, 930 F.2d 1073 (4th Cir. ),

cert. denied, 112 S. Ct. 420 (1991) . a

United States v. Cowan, 524 F.2d 504 (5th Cir.

1975) . —_ 16

United States v. “Doe. 934 F2d ‘353° (D.C. Cir.),

cert. denied, 112 S. Ct. 268 (1991) 20, 21, 25, 31

United States v. Dotterweich, 320 U.S. 277 (1943) .. 28

United States v. Francois, 889 F.2d 1341 (4th Cir.

1989), cert. denied, 494 U.S. 1085 (1990) 10, 12, 21

Cases—Continued : Page

United States Vv. Gallegos-Curiel, 681 F.2d 1164

(9th Cir. 1982) ................ .. 28-29

United States v. Gardner, 931 F.2d 1097 (6th Cir.

EE See eee 10

United States v. Gonzales, 927 F.2d 139 (3d Cir.

SE setestnnenenesansineseinnieedliapetaicmanmaastiastacmecaaaaiecmmarmsscemess 25

United States v. Goodwin, 457 U.S. 368 (1982) 24, 30

United States v. Grant, 886 F.2d 1513 (8th Cir.

EE ES es Pees eae ee 17

United States v. Greenwood, 796 F.2d 49 (4th Cir.

a ee eee ee 29

EEE ee ee eT eae 20

United States v. Hasting, 461 U.S. 499 (1983) 22

United States v. Hayes, 939 F.2d 509 (7th Cir.

1991), cert. denied, 112 S. Ct. 896 (1992)... 10

United States v. Heidecke, 900 F.2d 1155 (7th Cir.

SO ictal a aaa 28, 29

United States v. Hintzman, 806 F.2d 840 (8th Cir.

1986) . . 28, 29

United States v. Beerta. “878 F.2d 89 (2a Cir.

1989), cert. denied, 493 U.S. 1046 (1996)... 12, 21, 31

United States v. Jacob, 781 F.2d 643 (8th Cir.

1986) .. 28

United States Vv. _ Kuntz, 908 F.2d 655 (10th ‘Cir.

1990) . i. 10, 20-21

United States v. LaGuardia, 902 F.2d 1010 ‘(ist

Cir. 19990) ee eT Sa a Oe ee ee Se 21, 31

United States v. Levy, 904 F.2d 1026 (6th Cir.

1990), cert. denied, 111 S. Ct. 974 (1991) _.... 21, 28

United States v. Lewis, 896 F.2d 246 (7th Cir.

1990) . . 21,31

United State es y. Lene, 936 F.2d 482 (10th Cir. ),

cert. denied, 112 S. Ct. 662 (1991) 12

United States Vv. Moon, 718 F.2d 1210 (2d Cir.

1983), cert. denied, 466 U.S. 971 (1984)... 28

United States Vv. Musser, 856 F.2d 1484 (11th Cir.

1988), cert. denied, 489 U.S. 1022 (1989) _—-.—s«21, 2%

United States v. Niron, 418 U.S. 683 (1974) : 15

United States v. Payner, 447 U.S. 727 (1980) _s-« 22, 23

Cases—Continued : — Page

United States Vv. Redondo-Lemos, No. 90-10430

(9th Cir. Feb. 5, 1992) 27

United States v. Romolo, 937 F 2d 20 (ist Cir.

OE SE ae 25

United States v. Samango, 607 F.2d 877 (9th Cir.

1979) . 26

United States V. ‘Schooleraft, 879 F.2d 64 (3d Cir. ),

cert. denied, 493 U.S. 995 (1989)... 28

United States v. Sinith, No. 90-3606 (7th Cir. Jan.

SN ae esse 4, 19, 25

United States v. Torquato, 602 F.2d 564 (3d Cir.),

cert. denied, 444 U.S. 941 (1979)... 29

United States v. White, 869 F.2d 822 (5th Cir.),

cert. denied, 490 U.S. 1112 (1989)... 17

Wayte Vv. United States, 470 U.S. 598 (1985) 15, 16, 23, 26

Weatherford v. Bursey, 429 U.S. 545 (1977) 16

Webster v. Doe, 486 U.S. 592 (1988)... ——s— 18, 14, 24

Weinberger v. Salfi, 422 U.S. 749 (1975) 24

Constitution, statutes, regulation and rule:

U.S. Const. :

| rae 24,27

Equal Protection Clause... 23

Administrative Procedure Act; 5 U.S.C. 701 et seq... 12

REE RE ORS ee Pee 13

18 U.S.C. 924(¢) _............... vecaleacustacinlasnecinnibiaiaaidideisahis 4

I 3,4

EE ee 2, 5, 7, 10, il, 12, 13,

14, 15, 18, 21, 22, 23

ESTEE RRR oek SCRE een <P OESR 3

ch cae 4

NE ee hE aM ATE econ Be 3

i eusiisseebnertioncs 2,2!

ER cee ; 16

Sentencing Guidelines :

Se ee saechanuiie 4

| |) == a a ND SOG 2s . 4

TEE OR SIRE: 1a aii 11

aR a a 4

vil

Statutes, regulation and rule—Continued : Page

FT Se 2,5, 7, 10, 11, 12, 14, 15, 20, 21, 24

Application Note 100 cee 11

on dante ererrrenncrncenieititanneaies 2-3

le teins 20

Miscellaneous :

Beale, Reconsidering Supervisory Power in Crimi-

nal Cases: Constitutional and Statutory Limits

on the Authority of the Federal Courts, 84

Column. L. Rev. 1433 (1984) ............... iene 22, 23

132 Cong. Rec. 21,964 (1986) _.............-ccecceeeeeeeeeee 19

I 11

H.R. Doc. No. 266, 99th Cong., 2d Sess. (1986)... 18,19

| In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-5771

HAROLD RAY WADE, JR., PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The Opinion of the court of appeals (J.A. 23-29)

is reported at 936 F.2d 169.

JURISDICTION

The judgment of the court of appeals was entered

on June 12, 1991. The petition for a writ of certiorari

was filed on September 10, 1991, and was granted on

December 9, 1991. J.A. 30. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

(1)

— . “_ ' ee ™ i

STATUTES AND SENTENCING

GUIDELINE INVOLVED

Section 3553(e) of 18 U.S.C. provides:

Limited authority to impose a sentence below

a statutory minimum.—Upon motion of the Gov-

ernment, the court shall have the authority to

impose a sentence below a level established by

statute as minimum sentence so as to reflect a

defendant’s substantial assistance in the investi-

gation or prosecution of another person who has

committed an offense. Such sentence shall be

imposed in accordance with the guidelines and

policy statements issued by the Sentencing Com-

mission pursuant to section 994 of title 28,

United States Code.

Section 994(n) of 28 U.S.C. provides:

The [Sentencing] Commission shall assure

that the guidelines reflect the genera! appropri-

ateness of imposing a lower sentence than would

otherwise be imposed, including a sentence that

is lower than that established by statute as a

minimum sentence, to take into account a de-

fendant’s substantial assistance in the investiga-

tion or prosecution of another person who has

committed an offense.

Sentencing Guidelines § 5K1.1 provides:

Substantial Assistance to Authorities (Policy

Statement)

Upon motion of the government stating that the

defendant has provided substantial assistance in

the investigation or prosecution of another per-

son who has committed an offense, the court may

depart from the guidelines.

(a) The appropriate reduction shall be deter-

mined by the court for reasons stated that may

include, but are not limited to, consideration of

the following:

(1) the court’s evaluation of the significance

and usefulness of the defendant’s assistance, tak-

ing into consideration the government’s evalua-

tion of the assistance rendered ;

(2) the truthfulness, completeness, and relia-

bility of any information or testimony provided

by the defendant;

(3) the nature and extent of the defendant’s

assistance;

(4) any injury suffered, or any danger or risk

of injury to the defendant o: ais family result-

ing from his assistance;

(5) the timeliness of the defendant’s assist-

ance.

STATEMENT

Following his guilty plea in the United States

District Court for the Middle District of North

Carolina, petitioner was convicted of conspiring to

distribute cocaine and to possess cocaine with intent

to distribute it, in violation of 21 U.S.C. 846: dis-

tributing cocaine and possessing cocaine with intent

to distribute it, in violation of 21 U.S.C. 841(a) (1);

and using a firearm during a drug trafficking crime,

in violation of 18 U.S.C. 924(¢)(1). J.A. 16. Peti-

tioner was sentenced to a total of 15 years’ imprison-

ment, to be followed by an eight-year term of super-

vised release. J.A. 18-19. The court of appeals af-

firmed. J.A. 23-29.

1. On October 30, 1989, police officers executed a

search warrant at petitioner’s residence in Gibson-

ville, North Carolina. After discovering 978 grams

of cocaine, two handguns, and more than $22,000

in cash, the officers arrested petitioner. Following

his arrest, petitioner admitted that he and an accom-

plice, Dwight Marks, had traveled to Florida a few

days earlier, where they had purchased a kilogram

of cocaine for resale in North Carolina. Petitioner

made a telephone call to Marks, who agreed to meet

with the officers and to cooperate in the investigation.

Presentence Report 1-2.

2. The Presentence Report noted that petitioner

was subject to a mandatory minimum sentence of

ten years’ imprisonment on the drug charges and a

mandatory consecutive sentence of five years’ im-

prisonment on the firearms charge. Presentence

Report 7; see 21 U.S.C. 841(b)(1)(B); 18 U.S.C.

924(c). In the portion of the Report that calculated

the applicable Sentencing Guidelines range, the pro-

bation officer recommended a two-level upward ad-

justment in petitioner’s offense level for obstruction

of justice, pursuant to Guidelines $ 3C1.1. The pro-

bation officer found that petitioner had obstructed

justice by writing a letter urging another man to

make a false claim that he was the owner of the

handguns found in petitioner’s residence. Presen-

tence Report 2. In the absence of a statutory mini-

mum sentence, the Presentence Report concluded that

the applicable Guidelines range for the drug offenses

would be 97 to 121 months’ imprisonment.' Because

of the ten-year statutory minimum sentence, how-

ever, the Report concluded that the actual Guidelines

range for that offense was 120 to 121 months. Pre-

sentence Report 7; see Guidelines § 5G1.1(c) (2).

1 For the firearms offense, the Guidelines sentence was the

same as the mandatory five-year term of imprisonment re-

quired by 18 U.S.C. 924(c) (1). Presentence Report 3; see

Sentencing Guidelines § 2K2.4(a).

At the sentencing hearing, petitioner’s counsel did

not object to the Presentence Report’s calculation of

the Guidelines range. Petitioner’s counsel specifically

stated that he had “no objections” to the finding that

an upward adjustment was warranted based on peti-

tioner’s obstruction of justice. J.A. 7. Counsel ar-

gued, however, that the district court should sentence

petitioner to less than the ten-year statutory mini-

mum sentence for the drug offense. Although the

government had not filed a motion requesting a down-

ward departure based on petitioner’s cooperation,

see 18 U.S.C. 3553(e); Guidelines § 5K1.1, petition-

er’s counsel argued that the court should nonetheless

sentence petitioner to less than ten years’ imprison-

ment on that count because of petitioner’s coopera-

tion with the government. J.A. 8-9. In support of

that claim, petitioner’s counsel proffered evidence

that petitioner had sought to cooperate with the

government after his arrest by meeting with federal

agents and providing them with information about

other drug traffickers. In response to the court’s

suggestion that he “state for the record * * * what

the evidence would be,” petitioner’s counsel said:

Other than the evidence, which is quite correct

that’s in the presentence report in paragraphs 9

and 10, the evidence would be that Mr. Wade met

on, I believe, several occasions with Agent Deig-

nan of the Drug Enforcement Administration,

that he was of assistance in beginning an investi-

gation which led to the arrest of an unrelated

person, a person not in this conspiracy. That

arrest and case is going on in state court now,

and to my knowledge has not been resolved as of

yet. Mr. Wade played an instrumental role in

that case.

And that, additionally, Mr. Wade has offered

to cooperate further in that case. And that, ad-

ditionally, he has provided other assistance in

the nature of identification of other people sus-

pected of drug crimes in the Middle District.

J.A. 10. The district court declined to sentence peti-

tioner below the statutory minimum based on peti-

tioner’s cooperation, concluding that it lacked the

authority to do so in the absence of a motion by the

government. J.A. 9. The court then sentenced peti-

tioner to the statutory minimum sentences on both

the drug and firearms charges. J.A. 14, 18.

3. The court of appeals affirmed. J.A. 23-29. The

court observed that there “appear[ed] to be no dis-

agreement on the fact that shortly after his arrest

and without the benefit of a plea agreement, [ peti-

tioner] began a course of cooperation which provided

valuable assistance to the government in other prose-

cutions.” J.A. 24. But the court concluded that

“{t]he unambiguous language of 18 U.S.C. 3553(e)

leads to the single conclusion that courts may not

depart downward from mandatory minimum sen-

tences because of the substantial assistance of the

defendant unless the government files a motion for

departure.” J.A. 25. Consequently, the court of ap-

peals rejected petitioner’s argument that the district

court was authorized to depart downward for his

substantial assistance, even when the government

has not filed a motion requesting such a departure.

J.A. 26.

The court of appeals also rejected petitioner’s argu-

ment that the district court should have examined

evidence concerning the value of his assistance and

the government’s reasons for not filing a motion, in

order to determine whether the government acted in

good faith. The court held that, because “the govern-

ment has the sole discretion in deciding whether to

file a motion for downward departure for substantial

assistance, it follows that the defendant may not

inquire into the government’s reasons and motives

if the government does not make the motion.” J.A.

28. The court noted, however, that a defendant could

take advantage of the provisions of 18 U.S.C. 3553

(e) and Guidelines § 5K1.1 by ‘‘negotiat[ing] a plea

agreement with the government under which the de-

fendant agrees to provide valuable cooperation [in

exchange] for the government’s commitment to file a

motion for a downward departure.” J.A. 28-29.

Absent a plea agreement, however, the court held

that “the defendant is not entitled to an explanation

for the government’s refusal to make the motion or

its refusal to enter into an agreement to make the

motion.” J.A. 29.

SUMMARY OF ARGUMENT

Section 3553(e) of Title 18 provides that a senten-

cing court may depart below a statutory minimum

sentence only “[u]pon motion of the Government.”

Sentencing Guidelines §5K1.1 likewise permits the

court to depart below the applicable Guidelines sen-

tencing range if the government files a motion re-

questing such a departure. The plain language of

both provisions makes clear that a departure for

substantial assistance to the government may not be

granted unless the government files a motion re-

questing such a departure. Moreover, the statute

provides no standards for the prosecutor to apply in

determining whether to file such a motion, indicating

that the decision whether to file the motion is com-

mitted to the prosecutor’s discretion,

The government’s decision whether to file a “sub-

stantial assistance” motion is similar to other decisions

committed to the prosecutor’s discretion, such as

Whether to initiate charges, what charges to bring,

and whether to enter into plea negotiations. Charg-

ing decisions have always been treated as matters of

Executive prerogative that are not subject to judicial

review. Challenges to such decisions have been per-

mitted only where the prosecutor’s conduct has vio-

lated the Constitution. Thus, unless the prosecutor’s

conduct is deliberately based upon an unjustifiable

standard such as race, religion, or another unconsti-

tutionally arbitrary classification, or is intended to

punish the defendant for exercising a protected statu-

tory or constitutional right, it is not subject to

judicial scrutiny.

Petitioner concedes that courts may not ordinarily

review the government’s decision not to file a sub-

stantial assistance motion, and that review is avail-

able only in the case of alleged constitutional viola-

tions. While professing to acknowledge strict limita-

tions on judicial review, however, he seeks to intro-

duce a regime of extensive judidial review through

the back door. Under the guise of seeking protection

from unconstitutional arbitrariness, petitioner argues

that a defendant must be permitted to litigate the

question whether the government has treated him

differently from other similarly situated defendants.

He further argues that the government must demon-

strate that it has not done so by explaining in detail

why it has refused to file a substantial assistance

motion in his case.

Not a shred of authority supports petitioner's

suggestion that a defendant can obtain review of a

prosecutor's exercise of discretion to file a substan-

tial assistance motion on the ground that the prose-

cutor has failed to treat similarly situated defendants

the same in a particular instance. As long as the

prosecutor avoids acting on a constitutionally for-

bidden ground, his exercise of discretion is not sub-

ject to review.

There is no need or justification for a remand in

this case to allow the district court to inquire into

the prosecutor’s reasons for refusing to file a sub-

stantial assistance motion. On this subject, as in

the case of charging decisions, the prosecutor is pre-

sumed to act in good faith. Consequently, as_peti-

tioner himself concedes, a defendant is not entitled

to discovery or a hearing unless he makes a sub-

stantial threshold showing that the prosecutor has

acted on an unconstitutional basis.

Petitioner has made no showing whatever that the

prosecutor's refusal to file a substantial assistance

motion in his case was based on an unconstitutional

motive or standard. Indeed, petitioner has not even

alleged a constitutional violation. Petitioner’s asser-

tion that the district court refused to allow him to

make a factual record on that issue is incorrect. To

the contrary, the district court invited petitioner to

make a proffer of evidence, and petitioner’s proffer

concerned only the extent and value of his assistance

to the government. In effect, petitioner’s argument

is that the prosecutor was simply wrong in deciding

that he did not offer substantial assistance in the

investigation and prosecution of others. His request

to the district court was for that court to examine

the degree of his assistance and to override the

prosecutor’s decision that a substantial assistance

motion was not called for in his case. But that is

simply » request for plenary judicial review of the

prosecutor’s decision not to file a motion, which is

what petitioner concedes is not allowed. As the

courts below properly concluded, the claim that peti-

tioner made before the district court was not subject

to judicial review.

ARGUMENT

PETITIONER WAS NOT ENTITLED TO A REDUC-

TION OF HIS SENTENCE BASED ON HIS CLAIM

THAT HE PROVIDED “SUBSTANTIAL ASSISTANCE”

TO THE GOVERNMENT

A. A Court May Grant A Reduced Sentence For Sub-

stantial Assistance Only If The Government Files An

Appropriate Motion

Section 3553(e) of Title 18 provides that “[u]pon

motion of the Government,” a court shall have the

authority to impose a sentence below the level other-

wise required “so as to reflect a defendant’s substan-

tial assistance” in an investigation or prosecution.

Sentencing Guidelines § 5K1.1 likewise authorizes a

court to impose a sentence below the Guidelines sen-

tencing range “[u]pon motion of the government

stating that the defendant has provided substantial

assistance” in the investigation or prosecution of an-

other offender. The language of the two provisions

is essentially identical, and they have therefore been

construed similarly. See United States v. Hayes, 939

F.2d 509, 511 (7th Cir. 1991), cert. denied, 112 S. Ct.

896 (1992); United States v. Gardner, 931 F.2d 1097,

1099 (6th Cir. 1991); United States v. Kuntz, 908

F.2d 655, 657 (10th Cir. 1990): United States vy.

Francois, 889 F.2d 1341, 1344-1345 (4th Cir. 1989),

cert. denied, 494 U.S. 1085 (1990) .*

*The Court granted certiorari to review the question

“(w]hether a Federal District Court has the power to review

By their terms, Section 3553(e) and Guidelines

§5K1.1 permit a sentencing court to depart downward

for substantial assistance only when the government

makes a motion to that effect. Congress and the

Sentencing Commission plainly stated their intent to

condition a downward departure for substantial as-

the United States Attorney’s decision not to file pleadings

pursuant to Section 5K1.1 of the Sentencing Guidelines.” Pet.

i. In his brief on the merits, however, petitioner addresses

only the scope of judicial review of the prosecutor’s refusal to

file a motion under 18 U.S.C. 3553(e). See Pet. Br. 9. Peti-

tioner explains (Pet. Br. 9 n.2) that he has “rephrased the

question presented” because the Sentencing Commission re-

cently requested public comment on a proposed amendment

to Guidelines §5K1.1 that would eliminate the government

motion requirement for “substantial assistance” departures

below the applicable Guidelines range. See 57 Fed. Reg. 112

(1992). But the Sentencing Commission has merely published

the proposed amendment for comment. The proposal has not

been endorsed or adopted by the Commission. See id. at 90

(“Publication of an amendment for comment does not neces-

sarily indicate the view of the Commission or any individual

Commissioner on the merits of the proposed amendment.”).

In any event, a proposal for an amendment to Guidelines

§ 5K1.1, even if endorsed by the Commission, would not alter

the question on which this Court granted certiorari.

We agree, however, that because petitioner sought a sen-

tence below the statutory minimum, both 18 U.S.C. 3553(e)

and Sentencing Guidelines §5K1.1 apply to this case. See

Guidelines § 5K1.1, Application Note 1 (defendant’s substan-

tial assistance may justify sentence below statutery minimum

“{u)nder circumstances set forth in 18 U.S.C. § 3553(e)”).

Because a statutory minimum sentence automatically becomes

the minimum Guidelines sentence if the minimum Guidelines

sentence would otherwise be below the statutory minimum

sentence, see Guidelines § 5G1.1(b), a downward departure

would have required the court to depart from both the Guide-

lines range and the statutory minimum sentence. Conse-

quently, we address both Section 3553(e) and Section 5K1.1.

sistance on the filing of a government motion. The

caption of Section 3553(e) reinforces the plain lan-

guage of the statute by emphasizing that the sentenc-

ing court has only “limited” authority to depart be-

low the statutory minimum; that is, the court’s au-

thority is limited to cases in which the government

files the requisite motion. The courts of appeals have

agreed with that construction and have held that a

motion by the government is a prerequisite to a sen-

tence below the statutory minimum or a downward

departure from the Guidelines sentencing range for

substantial assistance.*

B. The Decision Whether To File A Substantial Assist-

ance Motion Is Committed To The Prosecutor’s Discre- |

tion

Petitioner concedes (Br. 12) that “the decision to

seek a downward departure for substantial assistance

is committe| by statute to the discretion of the prose-

cutor.” That concession is consistent with the text

of Sections 3553(e) and 5K1.1, which place no limits

on the prosecutor’s decision to file a “substantial as-

sistance” motion and contain no suggestion that that

decision is subject to judicial review.

1. This Court’s decisions under the Administrative

Procedure Act (APA), 5 U.S.C. 701 et seq., are in-

structive in analyzing whether a prosecutor’s decision

* See United States v. Long, 936 F.2d 482, 483 (10th Cir.),

cert. denied, 112 S. Ct. 662 (1991); United States v. Alamin,

895 F.2d 1335, 1337 (11th Cir.), cert. denied, 111 S. Ct. 196

(1990); United States v. Coleman, 895 F.2d 501, 504-505

(8th Cir. 1990) ; United States v. Francois, 889 F.2d at 1343:

United States v. Huerta, 878 F.2d 89, 91 (2d Cir. 1989), cert.

denied, 493 U.S. 1046 (1990); United States v. Ayarza, 874

F.2d 647, 653 (9th Cir. 1989), cert. denied, 493 U.S. 1047

(1990).

not to file a substantial assistance motion is sub-

ject to review in court. Judicial review of agency

action is foreclosed under the APA if the statute

in question indicates that a particular matter is

“committed to agency discretion by law.” 5 U.S.C.

701(a)(2). See Webster y. Doe, 486 U.S. 592, 599-

601 (1988); Heckler vy. Chaney, 470 U.S. 821 (1985).

A matter is “committed to agency discretion by law”

if the statute in question “is drawn so that a court

would have no meaningful standard against which to

judge the agency’s exercise of discretion.” Heckler,

170 U.S. at 830. In that setting, the statute is drawn

“in such broad terms that in a given case there is no

law to apply.” Webster, 486 U.S, at 599, quoting Citi-

zens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402,410 (1971)).

Section 3553(e) is such a statute. It has two

parts. The second part, which is directed to the court,

authorizes the court to grant a reduction in the de-

fendant’s sentence “so as to reflect a defendant’s sub-

stantial assistance in the investigation or prosecution

of another person who has committed an offense.” The

first part, which is directed to the government, simply

provides that the court’s action is contingent on the

government’s filing a motion permitting such a reduc-

tion. The statute does not condition the government’s

exercise of its discretion to file the motion in any

way: it does not require that a motion be filed in the

case of all defendants who provide substantial as-

sistance: it dees not suggest that a motion must be

filed if the defendant has provided a particular kind

or quality of assistance; and it certainly does not

suevest that defendants who are unhappy with the

rovernment’s decision not to file a motion will be

entitled to review of the merits of that decision. In

short, the portion of Section 3553(e) that is directed

to the government is written in such broad terms that

“in a given case there is no law to apply.”

The parallel provision of the Sentencing Guidelines

likewise reflects an intention to comm‘t the decision

whether to file a motion to the governiment’s discre-

tion. Section 5K1.1 of the Guidelines provides that

the court may depart if the government files a trig-

gering motion “stating that the defendant has pro-

vided substantial assistance in the investigation or

prosecution of another person who has committed an

offense.” Like the statute at issue in Webster v. Doe,

supra, Which allowed termination of a CIA employee

whenever the Director “shall deem termination neces-

sary or advisable in the interests of the United

States,” 486 U.S. at 600, Guidelines § 5K1.1 “fairly

exudes deference” to the government’s decision. /bid.

The language of the Guideline, like the language of

the statute, does not authorize a court to question

whether the government correctly assessed the degree

and quality of the defendant's assistance. Rather, it

suggests that as long as the government recites that

the defendant has provided such assistance, the court

is authorized to grant (or refuse to grant) a reduction

of sentence on that basis. There is no hint whatever

that if the government declines to file such a motion,

the court may second-guess that decision.'

‘ A different issue is presented if the government enters into

a plea agreement that requires the government to file a sub-

stantial assistance motion. In that case, the court may enforce

the agreement or allow the defendant to withdraw his guilty

plea. See Santobello v. New York, 404 U.S. 257, 262 (1971);

United States v. Conner, 930 F.2d 1073, 1075 (4th Cir.)

(“once the government uses its § 5K1.1 discretion as a bar-

2. The discretion accorded to the prosecutor by

Congress and the Sentencing Commission in Sections

soo5(e) and 5K1.1 is analogous to the “exclusive

authority and absolute discretion” enjoyed by the

government in determining whether to prosecute, see

United States vy. Nixon, 418 U.S. 683, 693 (1974),

and what charges to bring, see Ball vy. United States,

170 U.S. 856, 859 (1985); United States vy. Batch-

eldev, 442 U.S. 114, 124-125 (1979). This Court has

said that judicial deference to the prosecutor’s “broad

discretion rests largely on the recognition that the

(decision to prosecute is particularly ill-suited to ju-

dicial review.” Wayte vy. United States, 470 U.S.

998, 607 (1985); see Town of Newton vy. Rumery,

480 U.S. 386, 596 (1987).

As the Court explained in Wayte, “[s]uch factors

as the strenyth of the case, the prosecution’s general

deterrence value, the Government’s enforcement pri-

orities, and the case’s relationship to the Government’s

overall enforcement plan are not readily susceptible

to the kind of analysis the courts are competent to

undertake.” 470 U.S. at 607. Moreover, the Court

has recognized that judicial review of prosecutorial

charging decisions “entails systemic costs of partic-

ular concern. Examining the basis of a prosecution

delays the criminal proceeding, threatens to chill law

enforcement by subjecting the prosecutor’s motives

and decisionmaking to outside inquiry, and may un-

dermine prosecutorial effectiveness by revealing the

Government’s enforcement policy.” Jhid. Because

of these “substantial concerns,” courts are “properly

gaining chip in the plea negotiation process, that discretion is

circumscribed by the terms of the agreement”), cert. denied,

112 S. Ct. 420 (1991).

hesitant to examine the decision whether to prose-

cute.” Id, at 607-608."

The prosecutor’s decision whether to file a substan-

tial assistance motion, like the decision whether to

prosecute and What charges to bring, is not readily

amenable to judicial review. In assessing the values

uf a particular defendant’s cooperation, the prosecu-

tor is likely to consider a variety of factors related

to the defendant’s assistance, including the quantity,

quality, timeliness, completeness, and usefulness of

‘hat assistance in criminal investigations and prose-

cutions. In addition, the prosecutor may consider the

devree of risk the defendant incurred by cooperating.

In evaluating those factors, the prosecutor is likely

to draw on his experience with other defendants to

_—_—

* Once charges have been filed, the decision whether to plea

baryain is also committed to the discretion of the prosecutor.

See Weatherford Vv. Bursey, 429 US. 545, 561 (1977)

(“(Tjhere is no constitutional right to plea baryain; the

prosecutor need not do so if he prefers to yo to trial.”) ;

Newman V. United States, 382 F.2d 479, 440, 442 (D.C. Cir.

1967) (treating the decision whether to plea baryvain as an

aspect of the prosecutor’s discretion to decide “when and

whether to institute criminal proceedings, or what precise

charye shall be made, or whether to dismiss a proceeding once

brought” and holding that “it is not the function of the judi-

clary to review the exercise of executive diseretion.”’)

The courts have been similarly reluctant to review prosecu-

torial decisions to dismiss charves. Although under Fed. RB.

Crim. P. 48(a), the prosecutor may dismiss an indietment

only with leave of court, the courts have emphasized that

leave of court should be yranted except in the most unusual

circumstances. Thus, in applying Rule 48% (a), the courts have

recognized # presumption that the prosecutor acted in yood

faith and that his decision should be followed. See United

States V. Cowon, 524 F.2d 504, 514 (Sth Cir. 1975); United

States Vv. Ammidown, 497 F.2d 615, 621 (D.C. Cir. 1973).

provide a basis for comparison. In addition, in de-

ciding whether to file a motion, the prosecutor must

balance the costs of seeking a lower sentence for one

defendant against the potential benefits of encouray-

ing cooperation by defendants generally. Because, as

petitioner concedes (Br. 24), the prosecutor is

“uniquely competent” to decide whether to file a sub-

stantial assistance motion, and because that decision

turns on questions of law enforcement policy that

are not well suited to judicial review, “[d]eciding

whether to make a £5K1.1 motion is fundamentally

like deciding to prosecute on lesser charges persons

who provide more assistance.” United States y. Smith,

No. 90-3606 (7th Cir, Jan. 14, 1992), slip op. 9. See

United States y. Grant, 586 F.2d 1513, 1514 (Sth

Cir, 1989) (vovernment motion requirement “is pred-

icated on the reasonable assuniption that the vovern-

ment is in the best position to supply the court with

an accurate report of the extent and effectiveness of

the defendaat’s assistance’) (quoting United States

¥. White, 86% [2d $22, 829 (Sth Cir.), cert. denied,

490 U.S. 1112 (1989) ); United States vy. Ayarza, 874

2d at €53 (“it is rational for Conyress to lodyve

sume sentencing diseretion in the prosecutor, the only

individual who knows whether a defendant's COoOpera-

tion has been helpful’ ).*

"Amicus National Association of Criminal Defense Lawyers

asserts (Br. 15) that the decisions whether to prosecute and

What charyes to bring are not analoyous to the decision

whether to file a substantial assistance motion, because “there

are several layers of protection for a defendant between the

charye and the sentence,” such as indictment by a yrand jury

and trial by jury. But if there is an equally strony prima facie

Case ayainst two individuals, the prosecutor's decision to bring

lesser charges, or none at all, avyainst one of them has a direct

and substantial effect on the prospect of conviction and punish-

The legislative history of 18 U.S.C. 3553(e) under-

scores the close parallel between the prosecutor's

charging decision and the decision to file a “substan-

tial assistance” motion. The provision that became

Section 3553(e) was proposed to Congress by the

President as Section 504 of the Drug Free America

Act of 1986, H.R. Doc. No. 266, 99th Cong., 2d Sess.

(1986). The explanation that accompanied that pro-

vision stated:

With the creation of mandatory minimum sen-

tences, such as those established by this part for

the most serious Controlled Substances Act viola-

tions, there is a need to provide an exception for

defendants who cooperate to a substantial extent

in the investigation or prosecution of others. De-

fendants would be unlikely to cooperate if they

believed that despite their efforts they would be

subjected to mandatory minimum prison terms.

The prosecution of those at the highest levels of

a drug ring, for example, would be practically

impossible without the cooperation of other de-

fendants. By providing authority for the sen-

tencing court to sentence a defendant below a

statutory minimum, this amendment allows for

a defendant’s record to reflect accurately his or

her involvement in the crime charged, rather than

a less serious offense charged by the prosecutor

to avoid mandatory minimum sentences.

ment. Indeed, the prosecutor’s exercise of discretion at the

charging stage will typically have a greater effect on the

defendant than the exercise of discretion with respect to a

substantial assistance motion, since a decision in the defend-

ant’s favor on substantial assistance merely results in a pos-

sible reduction in sentence, while a decision in the defendant’s

favor at the charging stage may make the difference between

conviction and imprisonment on the one hand, and no criminal

charges at all on the other.

Id, at 117-118 (emphasis added). See also 132 Cong.

Rec. 21,964 (1986) (remarks of Sen. D’Amato) pur-

pose of similar provision in earlier bill was “to pro-

vide our U.S. attorneys with the authority they need

to obtain cooperation and information from drug

dealers.’’)

These materials indicate that the purpose of the

substantial assistance motion was to provide a

means for prosecutors to obtain and reward cooper-

ation by major offenders, which would otherwise re-

quire the prosecutors to manipulate the charging de-

cision. Because the substantial assistance motion

was designed as simply a more straightforward

means of achieving the same end, there is no reason

to believe that Congress intended to impose a stricter

regime of judicial review for substantial assistance

decisions than for charging decisions.

Judicial review of the basis for the prosecutor’s

refusal to file a substantial assistance motion, like

judicial review of the prosecutor’s decision whether to

bring charges, would entail substantial systemic costs

and pose serious problems of administration. Because

“{djefendants often estimate the value of their as-

sistance, and the risks they have taken to provide

it, more highly thans does the prosecutor,” United

States v. Smith, slip op. 2, the prosecutor’s decision

not to file a substantial assistance motion would be-

come an issue in a large number of cases in which

the defendant cooperated with the government in some

way. Moreover, a defendant would presumably be

entitled to discovery to determine the basis for the

prosecutor’s decision, and to compare his case with

other cases. Criminal proceedings would be slowed

by the requirement of additional discovery and a hear-

ine. And ecamination of the internal deliberative

process by which such prosecutorial decisions are

made would often require that the prosecutor testify

to explain his decision. The prosecutor would often

be required to disclose details of the investigation of

defendant’s case, as well as other cases, to show that

the defendant has not received less favorable treat-

ment than other similarly situated defendants.’ In

addition to the burdens and disruption that would

result, such disclosures could impede effective law

enforcement and undermine the effectiveness of the

substantial assistance provisions as a tool for en-

couraging cooperation by providing offenders with a

“roadmap” of prosecutorial decisionmaking. Accord-

ingly, the courts are properly hesitant to examine the

prosecutor’s decision not to file a substantial assist-

ance motion.”

7 The commentary to Guidelines § 5K1.1 recognizes that

judicial inquiry into a defendant’s “substantial assistance”

may result in the disclosure of information that could endan-

ger the defendant or reveal an ongoing government investiga-

tion. See Guidelines § 5K1.1, Background (although district

court must state reasons for reducing defendant’s sentence

under § 5K1.1, court may elect to provide reasons to defendant

in camera or in writing under seal “for the safety of the

defendant or to avoid disclosure of an ongoing investigation’’).

‘ Amicus National Association of Criminal Defense Lawyers

challenges (Br. 4-19) the constitutionality of the government

motion requirement on due process and separation of powers

grounds. The petition did not present those issues, and they

are therefore not properly before this Court. See Sup. Ct. R.

24.1(a). Indeed, petitioner himself expressly disclaims reli-

ance on the arguments advanced by his amicus. Pet. Br. 20.

In any event, similar challenges have been rejected by every

court of appeals that has considered them. See, ¢.g., United

States V. Doe, 934 F.2d 353, 356-358 (D.C. Cir.), cert. denied,

112 S. Ct. 268 (1991) ; United States v. Harrison, 918 F.2d 30,

88 (5th Cir. 1990); United States v. Kuntz, 908 F.2d 655,

3. Contrary to petitioner’s contention (Br. 13-15)

the sentencing court’s “inherent supervisory power”

does not independently justify judicial inquiry into

the prosecutor’s reasons for not filing a substantial

assistance motion. It is true that a federal court

657-658 (10th Cir. 1990); United States vy. Levy, 904 F.2d

at 1035-1036; United States v. LaGuardia. 902 F 2d 1010

1013-1017 (1st Cir. 1990) ; United States v. Lewis 896 F 2d

246, 249 (7th Cir. 1990) ; United States vy. Prenceis 889 F.2d

at 1343-1345 ; United States v. Grant, 886 F.2d at 1513-1514:

United States v. Huerta, 878 F.2d at 93-94: United States v.

Ayarza, 874 F.2d at 653; United States V. Musser, 856 F.2d at

1487. a ee

Amicus rests its due process argument on the erroneous

assertion that defendants have a constitutionally protected

liberty interest in receiving a reduced sentence for rendering

substantial assistance to the government. But neither 18

U.S.C. 3553 (e) nor 28 U.S.C. 994(n) (the statutory mandate

for Guidelines § 5K1.1) places substantive limitations on the

government's discretion to file a substantial assistance motion

Consequently, neither statute creates a protected liberty in-

terest. See United States v. Doe, 934 F.2d at 360: see generally

Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454 162.

463 (1989) (statute creates a protected liberty interest wy

establishing “substantive predicates” that limit the dlecretion

of officials). Nor do Section 3553(e) and Guidelines © 5K1.1

violate separation of powers principles. Sentencing “long has

been a peculiarly shared responsibility among the Branches of

Government and has never thought of as the exclusive

constitutional province of any one Branch.” Mistretta Vv

I nited States, 488 U.S. 361, 390 (1989). Prior to 1987 the

Executive Branch shared sentencing responsibility with the

courts through the parole system. The substantial assistance

motion gives the Executive Branch even less control over

sentencing than did the parole system, since after a “sub-

stantial assistance motion the court may always refuse to

grant the reduction for which the prosecution has moved

Giving the prosecutor authority to trigger a downward do-

parture for substantial assistance therefore does not exceed

the Executive’s permissible role in sentencing. |

“Ti]n the exercise of its supervisory authority * * *

‘may, within limits, formulate procedural rules not

specifically required by the Constitution or the Con-

gress.’ Bank of Nova Scotia vy. United States, 487

U.S, 250, 254 (1988) (quoting United States v. Hast-

ing, 461 U.S. 499, 505 (1983)). But it is also “well

established” that “[e]ven a sensible and efficient use of

the supervisory power... is invalid if it conflicts with

constitutional or statutory provisions.” Bank of Nova

Scotia, 487 U.S. at 254 (quoting Thomas vy. Arn, 474

IS. 140, 148 (1985)). In enacting 18 U.S.C.

2553(e), Congress assigned to the prosecutor the au-

thority to determine whether to request a lower sen-

tence on “substantial assistance” grounds. To permit

the district court to second-guess the prosecutor's de-

termination “would confer on the judiciary discre-

tionary power to disregard the considered limits of

the law it is charged with enforcing.” United States

v. Payner, 447 U.S. 727, 737 (1980). See also Com-

missioner v. Asphalt Products, Ine., 482 US. 117,

121 (1987) (per curiam) (“Judicial perception that

a particular result would be unreasonable * * * can-

not justify disregard of what Congress has plainly

and intentionally provided.”); Beale, Reconsidering

Supervisory Power in Criminal Cases: Constitutional

and Statutory Limits on the Authority of the Federal

Courts, 84 Colum. L. Rev. 1433, 1516 (1984) (courts

may not use supervisory power to “limit the

constitutionally permissible exercise of prosecutorial

discretion” ).”

» Contrary to petitioner's contention (Br. 14-15), judicial

inquiry into the prosecutor's decision not to file a substantial

assistance motion is not “necessary to preserve the integrity

of federal criminal proceedings” or to “deter future illegal

or improper conduct by prosecutors.” As long as the prosecu-

C. A Prosecutor's Decision Not To Make A Substantial

Assistance Motion Is Subject To Challenge Only If

It Violates The Constitution

While the prosecutor’s decision whether to file a

substantial assistance motion is not routinely subject

to judicial review, that is not to say that it is en-

tirely insulated from challenge. If the prosecutor’s

refusal to make a substantial assistance motion is

based on a constitutionally invalid classification or

otherwise violates a constitutional right of the de-

fendant, a court can grant relief.

In the closely analogous context of the charging

decision, the Court has said that “although prosecu-

torial discretion is broad, it is not ‘unfettered.’ ”’

Wayte, 470 U.S. at 608. “Selectivity in the enforce-

ment of criminal laws is * * * subject to constitu-

tional constraints.” United States v. Batchelder, 442

U.S. at 125). Thus, although “the conscious exercise

of some selectivity in enforcement is not in itself a

federal constitutional violation,” Oyler v. Boles, 368

U.S. 448, 456 (1962), the Equal Protection Clause

(and the “equal protection component” of the Fifth

tor’s exercise of his discretion is within constitutional limits,

the decision not to file a substantial assistance motion is nei-

ther “illegal” nor “improper,” and it therefore cannot threaten

the integrity of the court's proceedings. See l'nited States v.

Payner, 447 U.S. at 736 n.8 (court may not exercise super-

visory power “as a substitute for established” constitutional

doctrine) ; Beale, 84 Colum. L. Rev. at 1508 (“where no provi-

sion of the Constitution, federal statutes or procedural rules

has been violated, there is no significant threat to judicial

integrity”). Cf. Bank of Nova Scotia v. United States, 487

U.S. at 264 (Scalia, J., concurring) (no basis for a court to

exercise supervisory power to discipline prosecutors “except

insofar as concerns their performance before the court and

their qualifications to be members of the court's bar’’).

Amendment Due Process Clause, see Bolling v.

Sharpe, 347 U.S. 497, 499 (1954)) forbids selective

enforcement that is “deliberately based upon an un-

justifiable standard such as race, religion, or other

arbitrary classification.” Bordenkircher v. Hayes,

434 U.S. 357, 364 (1978); see United States v.

Batchelder, 442 U.S. at 125 n.9. Similarly, a prose-

cutorial decision that is intended to punish a defend-

ant for “exercising a protected statutory or consti-

tutional right” violates the Due Process Clause.

United States v. Goodwin, 457 U.S. 368, 372 (1982) ;

see id. at 380 n.11 (“[a] charging decision does not

levy an improper ‘penalty’ unless it results solely

from the defendant’s exercise of a protected legal

right’”’).

Permitting a defendant to advance constitutional

claims despite the absence of a general right to judi-

cial review is consistent with this Court’s precedents

regarding challenges to decisions that are “commit-

ted to agency discretion by law.” Even when Con-

gress has made it clear that it does not intend to

permit judicial review of agency action, that does

not bar challenges based on colorable constitutional

claims. Rather, “where Congress intends to preclude

judicial review of constitutional claims its intent to

do so must be clear.” Webster v. Doe, 486 U.S. 592,

603 (1988). See Weinberger vy. Salfi, 422 U.S. 749,

762 (1975) (requirement avoids “serious constitu-

tional question of the validity of [a] statute” that

precludes all judicial review of constitutional claims).

Although Sections 3553(e) and 5K1.1 provide that

a sentencing court shall have authority to depart

downward for substantial assistance only upon mo-

tion of the government, there is no clear indication

that Congress intended to preclude relief even if the

government's conduct violates the Constitution. Con-

sequently, the prosecutor’s decision not to file a sub-

stantial assistance motion, like the decisions whether

to prosecute and what charges to bring, may be chal-

lenged on the ground that the prosecutor has acted

on the basis of race, religion, or some other uncon-

stitutional criterion.

By the same token, however, judicial review of

the prosecutor's decision not to file a substantial

assistance motion should be no more extensive than

judicial review of other matters committed to the

prosecutor’s discretion. See United States vy. Smith

slip op. 8-9; United States v. Romolo, 937 F.2d 20,

24 n.4 (Ist Cir. 1991); United States y. Gonzales,

927 F.2d 139, 145 (3d Cir. 1991); United States v.

Doe, 934 F.2d 353, 361 (D.C. Cir.), cert. denied. 112

S. Ct. 268 (1991). Thus, there is no basis for

petitioner’s unexplained suggestion (Pet. Br, 24-25 )

that the sentencing court should determine whether

the government's refusal to file a substantial assist-

ance motion is “the result of ‘bad faith’ or ‘arbitrari-

ness’ sufficient to constitute a substantive due process

violation.” Petitioner does not explain precisely what

he means by “arbitrariness” or “bad faith.” As the

Seventh Circuit recently explained, “arbitrariness”

refers generally to “unjustified disparities in the

treatment of similarly situated persons.” United

States v. Smith, slip op. 3. “Bad faith,” to the extent

that it means something more than the prosecutor's

consideration of a constitutionally forbidden charac-

teristic such as race, appears to be nothing more

than “an epithet that is attached to conduct that is

substantively arbitrary.” /d. at 8.

This Court has never held that “arbitrariness” is

a basis on which to challenge an exercise of prosecu-

torial discretion. To be sure, the Court has said that

a prosecutor's exercise of discretion “may not be

‘deliberately based upon an unjustifiable standard

such as race, religion, or other arbitrary classifica-

tion.”” Wayte v. United States, 470 U.S. at 608,

quoting Bordenkircher vy. Hayes, 434 U.S. at 364,

quoting, in turn, Oyler v. Boles, 368 U.S. at 456. To

the extent that the Court intended its reference to

“other arbitrary classifications” to extend beyond

constitutionally suspect classifications such as race

and religion, the reference can apply only to the

highly unlikely case in which the prosecutor classifies

defendants according to factors that are not ration-

ally related to whether they rendered substantial

assistance. See New Orleans v. Dukes, 427 U.S. 297,

303 (1976). Absent evidence of such an irrational

classification, however, a defendant’s allegation that

he provided useful assistance to the government is

not sufficient to warrant judicial review of the prose-

cutor’s decision not to move for a downward depar-

ture. If constitutionally cognizable “arbitrariness”

were understood to mean simply the treatment of

one defendant differently from others similarly situ-

ated, virtually any claim of “error” in the govern-

ment’s refusal to file a substantial assistance motion

would be subject to judicial review.”

The lone decision petitioner cites (Pet. Br. 25) in support

of his contention that discretionary decisions of the prosecutor

are reviewable for “arbitrariness” or “bad faith,” United

States v. Samango, 607 F.2d 877 (9th Cir. 1979), does not

support that proposition at all. In Samango, the court of

appeals upheld the district court’s dismissal of an indictment

based on misconduct by the prosecutor during grand jury

proceedings. Nothing in that decision suggests that either

the district court or the court of appeals believed it had au-

thority to review the government’s charging decision to de-

termine whether the prosecutor acted “arbitrarily” or in

“bad faith.” In any event, it is clear that the Ninth Circuit

does not read its precedents as petitioner does, because that

To be sure, the sentencing process “must satisfy

the requirements of the Due Process Clause.” Gard-

ner v. Florida, 430 U.S. 349, 358 (1977) (plurality

opinion). But petitioner’s assertion (Br. 25) that

unexplained sentencing disparities deny a defendant

due process is mistaken. Outside the context of capi-

tal sentencing, the Court has rejected the argument

that defendants are entitled to “an individualized

determination that their punishment is ‘appropri-

ate.’ Harmelin vy. Michigan, 111 S. Ct. 2680, 2701

(1991). See also Chapman vy. United States, 111

S. Ct. 1919, 1928 (1991); Mistretta v. United States,

488 U.S. 361, 364 (1989). When the prosecutor

withholds a substantial assistance motion, the con-

sequence is that the defendant receives the sentence

that Congress and the Sentencing Commission deter-

mined to be appropriate for his offense and criminal

history. That is all that due process requires. See

Chapman, 111 S. Ct. at 1927-1929; cf. Singer v.

United States, 380 U.S. 24, 36 (1965) (no “consti-

tutional impediment” to conditioning defendant's

Waiver of jury trial on consent of prosecutor and

trial court “when, if either refuses to consent, the

result is simply that the defendant is subject to an

impartial trial by jury—the very thing the Constitu-

tion guarantees him’’)."'

court has recently held that the prosecutor’s charging deci-

sions are not subject to review for arbitrariness. United

States v. Redondo-Lemos, No. 90-10430 (Feb. 5, 1992).

'' Contrary to petitioner's suggestion (Pet. Br. 22-23), the

Due Process Clause does not require that decisions committed

to the discretion of the prosecutor be made by a “neutral and

detached decisionmaker,” even though those prosecutorial

choices will surely “have a significant impact on [the] de-

fendant’'s liberty.” The prosecutor’s charging decisions are

D. Petitioner Did Not Make The Substantial Threshold

Showing Required To Challenge The Constitutionality

Of The Prosecvtor’s Decision

Petitioner contends (Br. 28) that this case should

be remanded to the district court with instructions to

“consider[] * * * the reasons for [the] prosecutor's

refusal to move for a downward departure.” Peti-

tioner is not entitled to a remand because he has

made no showing that the prosecutor exercised his

discretion in an unconstitutional manner.

“[{I]n the absence of clear evidence to the contrary,

courts presume that [prosecutors] have properly dis-

charged their official duties.” United States v. Chem-

ical Foundation, Inc., 272 U.S. 1, 14-15 (1926).

See also United States v. Dotterweich, 320 U.S. 277,

285 (1943). Accordingly, the courts of appeals agree

that in order to obtain discovery or a hearing on a

claim of selective or vindictive prosecution, the de-

fendant bears the burden of producing evidence, not

merely allegations, to support his claim that the

prosecutor’s motives were improper.’ Petitioner

not subject to such restrictions. And the prosecutor’s author-

ity under the substantial assistance provisions is only to

request a lower sentence; the ultimate determination of the

defendant's sentence is made by the district court, which is a

“neutral decisionmaker.” See United States v. Levy, 904 F.2d

1026, 1035 (6th Cir. 1990), cert. denied, 111 S. Ct. 974

(1991); United States Vv. Musser, 856 F.2d 1484, 1487 (11th

Cir. 1988), cert. denied, 489 U.S. 1022 (1989).

12 See, e.g., United States v. Heidecke, 900 F.2d 1155, 1158-

1160 (7th Cir. 1990) ; United States v. Schooleraft, 879 F.2d

64, 67-69 (3d Cir.), cert. denied, 493 U.S. 995 (1989) ; United

States Vv. Hintzman, 806 F.2d 840, 842 (8th Cir. 1986) ; United

States Vv. Jacob, 781 F.2d 643, 646-647 (8th Cir. 1986) ; United

States V. Moon, 718 F.2d 1210, 1229-1230 (2d Cir. 1983), cert.

denied, 466 U.S. 971 (1984) ; United States v. Gallegos-Curiel,

himself concedes (Br. 26) that there is a “strong

presumption that prosecutorial action is taken in

good faith,” and a defendant must make “a sub-

stantial threshold showing in order to obtain dis-

covery or an evidentiary hearing on allegations of

prosecutorial misconduct.” '

Petitioner has made no showing whatever that the

government’s refusal to request that he be sentenced

below the statutory minimum was based on an un-

constitutional standard such as the defendant's race,

religion, or his exercise of a protected right. Indeed,

petitioner has never even allege’ such prosecutorial

681 F.2d 1164, 1167-1171 (9th Cir. 1982) (Kennedy, J.) :

'nited States Vv. Torquato, 602 F.2d 564, 569 (3d Cir.), cert.

denied, 444 U.S. 941 (1979); United States v. Berrios, 501

F.2d 1207, 1211 (2d Cir. 1974). Cf. MeCleskey v. Kemp, 481

U.S. 279, 297 (1987) (“Because discretion is essential to the

criminal justice process, we would demand exceptionally clear

proof before we would infer that the discretion has been

abused.”’).

' The courts of appeals have applied somewhat different

formulations of the threshold showing requirement. See, e..,

United States Vv. Heidecke, 900 F.2d 1155, 1158-1160 (7th Cir.

1990) (to obtain discovery, a defendant must show a “color-

able basis” for a claim of vindictive prosecution; to obtain a

hearing, the defendant must “offer sufficient evidence to raise

a reasonable doubt that the government acted properly”) ;

United States Vv. Hinteman, 806 F.2d 840, 846 (8th Cir. 1986)

(to obtain discovery, a defendant must establish a “prima

facie” case of selective prosecution); United States v.

(rreenwood, 796 F.2d 49, 52 (4th Cir. 1986) (to obtain dis-

covery on selective prosecution charge, defendant's allegations

must raise “a legitimate issue” of government misconduct).

There is no occasion in this case for the Court to decide which

of these formulations is correct, because petitioner made no

showing of any kind that the government exercised its discre-

tion in an unconstitutional manner.

misconduct. Instead, petitioner merely urged the

sentencing court to disregard the government’s fail-

ure to file the required motion because he had in fact

provided substantial assistance to the government.

Because petitioner’s objection to the government’s

refusal to file a substantial assistance motion rested

solely on his disagreement with the prosecutor about

the value of his cooperation, petitioner failed to make

the threshold showing required to support a claim

that the prosecutor’s decision was based on an un-

constitutional ground."

4 There is no basis for entertaining a presumption that a

prosecutor’s refusal to file a substantial assistance motion is

intended to penalize a defendant for exercising some constitu-

tional or statutory right. In limited circumstances in which

action detrimental to the defendant has been taken after the

exercise of a legal right, the Court has applied such a presump-

tion of unconstitutionality. See Blackledge v. Perry, 417 U.S.

21 (1974) (prosecutor’s decision to file felony charges after

defendant demands trial de novo on a misdemeanor charge) ;

North Carolina Vv. Pearce, 395 U.S. 711 (1969) (trial court

imposes a harsher sentence following a successful appeal).

But the Court has recognized that the presumption of vindic-

tiveness “may operate in the absence of any proof of improper

motive and thus may block a legitimate response to criminal

conduct”; for that reason, the Court has declined to apply the

presumption unless there is a “reasonable likelihood” of

vindictiveness in a particular class of cases. Goodwin, 457

U.S. at 373; Alabama v. Smith, 490 U.S. 794, 799-802 (1989).

There is no “reasonable likelihood”’ that a prosecutor will act

out of vindictiveness in deciding whether to file a substantial

assistance motion. The prosecutor has a strong interest in

encouraging the cooperation of defendants and rewarding

defendants who provide substantial assistance. The prosecu-

tor’s failure to make a substantial assistance motion on

behalf of those defendants who have provided significant

assistance to the prosecution is likely to impair the effective-

ness of the prosecutor’s efforts to persuade other defendants

In any event, the record discloses a wholly legiti-

mate reason for the prosecutor’s decision not to file

a substantial assistance motion. Following petition-

ers arrest, and during the same period that he pur-

ported to be coeperating with the government, peti-

toner wrote a letter to another man urging him to

claim, falsely, that he was the owner of the guns

found at petitioner’s residence. See Presentence Re-

port 2; Pet. Br. 3-4 n.1. Because of that conduct, the

Presentence Report recommended that petitioner’s

offense level be increased for obstruction of justice,

and petitioner’s counsel stated at the sentencing hear-

ing _that the “finding[s] on both obstruction of

justice and acceptance of responsibility are correct.”

J.A. 7. It is certainly rational for a prosecutor to

require a defendant who is seeking a reduction in

sentence for substantially assisting in the investiga-

tion or prosecution of other individuals to be truthful

about the circumstances of his own offense and the

involvement of others in that offense.

Petitioner nevertheless contends that a remand is

necessary “[b]ecause the District Court in this case

refused to entertain any inquiry whatsoever into the

reasons for the prosecutor’s failure to file the mo-

tion,” and because “there is neither a finding below

nor a factual record on that issue.” Br. 27 n.19.

Petitioner also argues that “the absence of any evi-

dence in the record that the prosecutor’s motives

were improper * * * is not due to petitioner’s in-

to cooperate. See United States v. Doe, 934 F.2d at 358; id.

at 362 (Ginsburg, J., concurring) ; LaGuardia, 902 F.2d at

1016; Lewis, 896 F.2d at 249; Huerta, 878 F.2d at 93. Peti-

tioner therefore cannot meet his burden of establishing a

likelihood of unconstitutional conduct by relying ona presump-

tion that the prosecutor acted vindictively in his case.

wor

ability to produce it, but to the District Court’s re-

fusal to entertain any allegations of prosecutorial

misconduct, much less any evidence to support such

allegations.” Br. 27 n.20 (citing J.A. 10).

Petitioner’s contentions are unpersuasive. First,

as petitioner himself concedes (Br. 26), the district

court should not inquire into the government’s rea-

sons for refusing to file a substantial assistance mo-

tion absent a threshold showing by the defendant

that the government has exercised its discretion in an

unconstitutional manner. Petitioner made no such

showing; consequently, the district court was correct

not to inquire into the prosecutor’s motives or to

make any findings on that issue. Second, petitioner’s

assertion that the district court “refus[ed] to enter-

tain any allegations of prosecutorial misconduct”

(Br. 27 n.20) is simply incorrect. The district court

expressly invited petitioner’s counsel to “state for

the record * * * what the evidence would be.” J.A.

10. Petitioner proceeded to make a proffer of evi-

dence that concerned only the extent of his coopera-

tion. J.A. 10-11. Petitioner’s proffer contained noth-

ing to suggest that the prosecutor’s decision not to

file the motion was based on unconstitutional con-

siderations. Jbid. Petitioner has not made the sub-

stantial threshold showing that he himself concedes

is necessary to justify judicial inquiry into the prose-

cutor’s reasons for not filing a substantial assistance

motion. Accordingly, the courts below properly re-

jected his claim.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, II