# Amicus Curiae Brief — Wade v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 181

## Text

No. 91-571 cee 25 Wee

3a the Supreme Court of the United States

OCTOBER TERM, 1991

HAROLD RAY WADE, JR., PETITIONER
v.

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

aS

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

IV

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

3

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,
24

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

ee

Vv

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
v,

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

1.

2

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.

3

(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

4

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).

5

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.

6

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

7

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,

8

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-

9

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

10

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

11

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.

12

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).

13

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

14

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-

15

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).

4

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).

17

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-

18

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.

19

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

20

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,

21

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. |

22

“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-

23

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’’).

24

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-

25

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

26

‘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

27

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

28

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,

29

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.

30

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

ie

31

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

32

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.

33

CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted.

KENNETH W. STARR
Solicitor General

ROBERT S. MUELLER, II
Assistant Attorney General

WILLIAM C. BRYSON
Deputy Solicitor General

ROBERT A. LONG, JR.
Assistant to the Solicitor General

NINA GOODMAN
Attorney

FEBRUARY 1992

Uv. &. GOVERNMENT PRINTING OFrice, 1902 312324 45336

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0292%3A7. Public record. Not legal advice.