Opinion
No. 96 CR. 450 (DLC).
October 18, 2000.
Juan Suarzo Fed. Reg. No. 43016-054.
John M. Hillebrecht Assistant United States Attorney.
OPINION and ORDER
Defendant Juan Suarzo has moved to compel the United States Attorney to file an application for a reduction of his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure ("Rule 35"). For the following reasons, defendant's request is denied.
Background
The following facts are undisputed. On or about October 21, 1996, Juan Suarzo pled guilty to Count One of Indictment No. 96 Cr. 450, conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846. On June 10, 1997, Suarzo was sentenced to 151 months incarceration and five years of supervised release.
In September 1998, Drug Enforcement Agency Agents Yoos and Moran ("the Agents") approached Suarzo and asked for information regarding Raphael Garza a/k/a "Rafael Vidal." Suarzo provided the Agents with information that led to Garza's arrest.
On July 6, 2000, Suarzo moved this Court either to compel the Government to move pursuant to Rule 35(b) for a reduction of his sentence, or to conduct an evidentiary hearing to determine whether the Government had acted in bad faith when it failed to move for a Rule 35(b) sentence reduction. In his motion, Suarzo asserted that the Agents told him that "they were sent to interview [him] on the authority of AUSA Hillebrecht," that Suarzo would be "entitled" to a Rule 35(b) sentence reduction following his cooperation, and that the Agents "promised [him] they would meet with [his] prosecutor and get [him] a sentence reduction pursuant to R.35(b)." In its opposition, the Government denied that the Agents made any promises to Suarzo regarding any sentence reduction beyond telling him that they would bring his cooperation to the attention of the prosecutor. In his reply, Suarzo acknowledges that the Agents "apparently do not work for [Hillebrecht]" and "probably never specifically promised [him] the relief that [he] believe[d] [he] was to receive," but maintains that they created the impression that his sentence would be reduced in return for his cooperation (emphasis in original). In an additional letter, dated October 4, Suarzo elaborates on the Agents' representations. He writes that the Agents "may not have said the specific words that, `I promise you that you will get the Rule 35 motion.' But, they assured [him] that they would do their part and convinced [him] that it "would go smoothly based on their influence with the prosecutor.'"
Discussion
Rule 35(b) states, in relevant part:
If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant's subsequent substantial assistance in investigating or prosecuting another person, in accordance with the guidelines and policy statements issued by the Sentencing Commission under 28 U.S.C. § 994. The court may consider a government motion to reduce a sentence made one year or more after the sentence is imposed if the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after sentence is imposed.
Rule 35(b) is similar to United States Sentencing Guideline § 5K1.1, and the Second Circuit has held that the same rules of construction apply to both. See United States v. Gangi, 45 F.3d 28, 30-31 (2d Cir. 1995)
Federal prosecutors "have considerable discretionary control over whether to move . ., for a downward departure by reason of cooperation."United States v. Brechner, 99 F.3d 96, 99 (2d Cir. 1996). Section 5K1.1, and by analogy Rule 35(b), grants the Government "the power, not the duty" to file motions for sentence reduction. United States v. Leonard, 50 F.3d 1152, 1157 (2d Cir. 1995)
Courts have limited authority to review a federal prosecutor's decision to deny a Rule 35(b) application. When there is an agreement between the Government and a defendant, a court should conduct a "searching" review, to determine whether "`the government has lived up to its end of the bargain.'" Leonard, 50 F.3d at 1157 (quoting United States v. Knights, 968 F.2d 1483, 1486 (2d Cir. 1992)). See also Brechner, 99 F.3d at 99. A defendant is entitled to specific performance of the terms of the agreement, see Knights, 968 F.2d at 1484, and the court should inquire whether the Government has acted fairly and in good faith, see United States v. Resto, 74 F.3d 22, 26 (2d Cir. 1996). When a defendant makes a claim that the Government acted in bad faith, the Government "may rebut this allegation by explaining its reasons" for refusing to make the application. Knights, 968 F.2d at 1487. After the Government provides an explanation, the defendant must "make a showing of bad faith to trigger some form of hearing on that issue." Id. "Unless the government's reasons are wholly insufficient, or unless the defendant's version of events, supported by at least some evidence, contradicts the government's explanation, no hearing is required." United States v. Imtiaz, 81 F.3d 262, 264 (2d Cir. 1996) (internal citations omitted)
When there is no agreement between a defendant and a prosecutor, a court's authority is narrower. A court can review a prosecutor's refusal to file a Rule 35 motion in such circumstances only if it finds that the refusal was based "on an unconstitutional motive," such as the defendant's race or religion. Wade v. United States, 504 U.S. 181, 185-86 (1992) See also Brechner, 99 F.3d at 99. In order to merit an evidentiary hearing, a defendant must make a "substantial threshold showing" of improper motivation, and will be entitled to relief only if the Government's refusal to make an application "was not rationally related to any legitimate Government end." Wade, 504 U.S. at 186. See also United States v. Difeaux, 163 F.3d 725, 729 (2d Cir. 1998)
In this case, Suarzo alleges that the Government's failure to move for a Rule 35(b) sentence reduction constitutes "bad faith" because they "refuse[d] to come to [his] aid as promised" and did so "without any rationally related legitimate justification." There was no written agreement between the Government and Suarzo, and Suarzo has acknowledged that the Agents made no explicit promises to him. Even if the Agents implied that they would be able to convince the Assistant U.S. Attorney to make a Rule 35(b) motion on Suarzo's behalf, these representations would be insufficient to create a binding agreement. Cf. Difeaux, 163 F.2d at 727-28. Consequently, this Court may review the Government's decision not to file a Rule 35(b) motion only upon a showing of an unconstitutional motive. Suarzo has not alleged that the Government's refusal to make a Rule 35(b) motion was based on any such motive.
In addition, the Government has explained that it decided not to make a Rule 35 application for Suarzo in light of his "criminal history and background" and a fear that the information he provided "necessarily came from some third party." These reasons are rationally related to legitimate prosecutorial goals. In light of these facts, there is no need to hold a hearing.
Conclusion
Having failed to make a substantial showing of an unconstitutional motive, or the lack of a rational relationship to a legitimate government interest, defendant's request to compel a Rule 35(b) motion or, in the alternative, for an evidentiary hearing on his entitlement to a sentence reduction is hereby denied.
SO ORDERED: