Eighth Circuit: June 21, 2007

United States v. Eddie Holbdy, No. 06-3196, filed 6/21/07 (appeal from D. of Minnesota, Hon. John R. Tunheim, presiding).

 Your client, facing a mandatory minimum 15 years in prison, snitches off a friend-since-childhood, agrees to testify against his co-conspirator and otherwise bleeds all over the proffer room floor. But the co-conspirator has already entered a guilty plea and the case against the childhood friend is not yet ripe for prosecution.  The Assistant U.S. Attorney, or the Snitch Committee, is unmoved by your client's performance and refuses to file or authorize a motion for downward departure based upon substantial assistance.  What can you do?

 The solution Mr. Holbdy's counsel (MACDL member Bill Orth) pursued was to move for an evidentiary hearing for purposes of testing the rationality of the government's refusal to make the motion. 

  In Wade v. United States, 504 U.S. 181 (1992), the Supreme Court permitted district courts to review the refusal of the government to move for a cooperation departure if there is evidence that the refusal was based upon an "unconstitutional motive", i.e., because of the defendant's race or religion, for instance, or if the refusal is "not rationally related to any legitimate government end."  504 U.S. at 186.  The Eighth Circuit has said a showing that the refusal is just plain irrational is also a ground for district court action because "an irrational refusal denies the defendant due process of law."  United States v. Wolf, 270 F.3d 1188, 1190 (8th Cir. 2001).

 The Eighth Circuit has interpreted Wade to require a defendant to make a "substantial threshhold showing" that the government's refusal to make the motion was premised on an improper motive.  United States v. Mullins, 399 F.3d 888, 890 (8th Cir. 2005).  A mere declaration that the defendant indeed rendered substantial assistance, or a generalized complaint of improper government motives, will not suffice.

 The Court of Appeals concluded that Mr. Holbdy did not allege sufficient specific facts to warrant an evidentiary hearing.  Holbdy's allegations merely amounted to his own opinion that he had rendered substantial assistance, and his speculation that the government hadn't made the motion because he didn't start cooperating promptly after being brought before the federal court.  The description in the opinion permits an inference that the facts upon which the defendant's claims of improper motive were based were uncontested and therefore no evidentiary hearing was necessary, but the appeals court couched its opinion in terms of whether the defendant met his burden of coming forward.

 This was not a 'bad faith' of the government case, though we often use the expression as shorthand for attacks on the government's motive for not filing a substantial assistance motion.  The opinion observes in a footnote that there is an intra-circuit split over whether evidence of 'bad faith' by the government can constitute a ground for relief for the government's failure to file a motion under 3553(e) (for a sentence below the mandatory minimum) absent an otherwise unconstitutional motive.

 In my observation, the problem of government refusals to move for substantial assistance departures has grown significantly over the last year.  Whereas in the past an AUSA could move for the departure if all your client did was proffer truthfully, currently many AUSAs seem to be saying they won't, or can't, make the motion unless the client actually testifies or provides information which leads to an actual arrest and prosecution.  The more sympathetic assistants appear to be grasping for any tangible benefit to the government which can justify the motion.  Because of this, there is a greater risk in proffering cooperation - today you are by no means guaranteed a departure motion.

Keep in mind Rule 35, which permits post-sentencing downward departures for cooperation if made by the government within a year of sentencing (or later if the government moves for an extension of time within the year).  There are some districts, such as in South Dakota, which use Rule 35 almost exclusively instead of Section 5K. This could be a solution in those cases in which the government isn't ready to prosecute the new target before your client's sentencing.

 If you must challenge the government's motives for failing to make the departure motion, keep in mind that the district judges in Minnesota are aware of how little "cooperation" a defendant had to render in the past in order to get the motion and may be looking for an excuse to depart in sympathetic cases.  I suggest staying away from "bad faith" claims (which sound too much like "Franks" search warrant issues) and focus on alleging specific facts which underscore how unreasonable the government is being.  It is often possible to show the government is being unreasonable, and the court may be willing to treat unreasonableness as irrationality for Wade purposes.

2007-06-22   James Ostgard

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