MEMORANDUM OPINION
This case is before the Court on the motion of the United States to withdraw a previously filed motion for reduction of sentence, under Fed.R.Crim.P. 35(b), as to Erskine LaRue Hartwell (“Hartwell”). The motion has been fully briefed and counsel have argued their respective positions. For the reasons explained below, the Motion to Withdraw Motion for Reduction of Sentence of the United States is granted. Hartwell’s Motion for Evidentia-ry Hearing to prove a breach of the plea agreement is denied, as is his Motion to Strike the affidavit filed on July 7, 2003.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
On April 27, 2000, Hartwell, pursuant to a plea agreement, pled guilty to a one-count criminal information charging him with murder-for-hire in violation of 18 U.S.C. § 1958. One condition of the plea agreement obligated Hartwell to provide full, complete and truthful cooperation to the United States. Plea Agreement, at 5 ¶ 9. The plea agreement also provided that the United States reserved its option to
After sentencing, Hartwell provided assistance to the United States in criminal cases pending in Maryland and the District of Columbia. Specifically, Hartwell assisted: (1) authorities in Maryland in their investigation of [ ] [ ] ; (2) the United States Attorney’s office for the District of Columbia in its capital murder prosecution of [ ] [ ], the alleged leader of a criminal organization dubbed “[] []”; (3) the United States Attorney’s office for the District of Columbia in the murder prosecution of [ ] [ ], ultimately providing testimony in a criminal case prosecuted in the local District of Columbia courts; and (4) the United States Attorney’s office for the District of Maryland by providing testimony against [ ] [ ] (“[ ]”).
Hartwell’s assistance and cooperation, however, were significantly flawed when, after he testified at the [ ] trial, he told agents with the Federal Bureau of Investigation (“FBI”) that he had perjured himself at the trial under pressure from the prosecuting attorney and law enforcement agents in Maryland. Hartwell subsequently retracted that post-trial statement, and, in so doing, reported that he had fabricated the claims of perjury because of his dislike of the law enforcement officials in Maryland who investigated the [ ] case. As a result of this troubling turn of events, as well as the unrelated discovery that Hartwell had withheld information from law enforcement officers about certain homicides, the United States entered into a supplemental cooperation agreement with Hartwell that was memorialized in a March 14, 2001 letter. In the supplemental agreement, Hartwell admitted that he falsely had told FBI agents that he had perjured himself during the [ ] prosecution. Moreover, the supplemental agreement reflects the fact that the United States took very seriously Hartwell’s lies, chicanery and omissions. Nonetheless, the United States agreed to continue to consider filing a Rule 35(b) motion if Hartwell thereafter provided truthful and complete cooperation and assistance.
Notwithstanding that Hartwell’s assistance was still ongoing as of August 14, 2001, the United States filed in this Court, on that date, a Motion for Reduction in Sentence in order to comply with the one-year time limitation imposed by Fed. R.Crim.P. 35(b). Several subsequent status reports required by this Court resulted in the determination that, because of the ongoing nature of Hartwell’s cooperation, his assistance was not likely to end soon. Thus, the Court set a date for resolving the Rule 35(b) motion; and, at the instance of the Court, the United States filed on March 10, 2003 a memorandum in support of its motion in which the United States recommended a reduction in Hartwell’s sentence from life imprisonment to thirty-eight years imprisonment.
On June 6, 2003, Hartwell, expressing grave dissatisfaction with the thirty-eight year imprisonment recommendation made by the United States, filed a
pro se
motion entitled “Motion for Evidentiary Hearing” to which he attached an affidavit styled as Exhibit 6. In that affidavit, Hartwell stated that: “On or about February 26, 2000, AUSA David Novae [sic] from Virginia entered an agreement and promised plaintiff and previous counsel William Purpura Esq., that after receiving a life sentence he was going to reduce plaintiff sentence [sic] to 18 years on a 35(b) motion.” Gov’t’s
Whether the United States can withdraw the previously filed Rule 35(b) motion is the issue here to be decided.
DISCUSSION
The position of the United States is that, under the plea agreement, it reserved, for its sole discretion, the decision whether to file a motion under Rule 35(b) and that, “[although the agreement does not specifically address ... [withdrawal] of such a motion, such a decision clearly falls within the Government’s inherent ability to evaluate the defendant’s entitlement to a reduction of sentence.” Gov’t’s Reply to Def. Mot. in Resp., at 4. Further, the United States contends that the decision to withdraw a Rule 35(b) motion, once made, is reviewable only for bad faith or unconstitutional motive, neither of which are present here.
Cf. Wade v. United States,
Hartwell mounts a multi-part attack on the positions taken by the United States. First, Hartwell argues that nothing in the plea agreement permits the United States to withdraw the Rule 35(b) motion and thus that withdrawal would constitute breach of the contract. In a related contention, urged for the first time at oral argument, Hartwell contends that the plea agreement was modified by the text of the memorandum supporting the Rule 35(b) motion and that, for this additional reason, withdrawal of the Rule 35(b) motion would constitute a breach of the plea agreement. Next, Hartwell contends that the plea agreement in this case was part of a so-called “global plea agreement” and that, given the nature and extent of Hartwell’s cooperation, the global agreement would be frustrated if the motion to withdraw is granted. Hartwell also argues that the United States has acted in bad faith because it has predicated its withdrawal motion on a relatively insignificant matter which he characterizes as a misunderstanding regarding a promised sentence. Additionally, he asserts that, if granted, the motion to withdraw would work a “miscarriage of justice.” Finally, Hartwell additionally asks for an evidentiary hearing in order to afford him the opportunity to prove an impermissible breach.
I. The Terms of the Plea Agreement Illustrate that the United States Retained the Discretion to Withdraw its Rule 35(b) Motion for a Reduction in Sentence.
Hartwell and the United States agree that contract principles apply to the interpretation of plea agreements.
See, e.g., United States v. Wallace,
The plea agreement quite clearly reserved to the prosecution the unfettered ability to move for a reduction of Hart-well’s sentence if, in the United States’ sole discretion, it determined that such a motion was appropriate. Plea Agreement, at 5 ¶ 10. Hence, the failure or refusal of the United States to move for sentence reduction, absent bad faith or a constitutionally infirm reason, would not be a breach of the plea agreement.
Another document that properly can be considered part of the plea agreement is the March 14, 2001 supplemental agreement and letter prepared by the United States (specifically by the prosecutors in this case and in the District of Maryland) and signed by Hartwell and the lawyers representing him in this case, in the District of Columbia and the District of Maryland. 1 As recounted in the statement of facts, this letter outlined the position of the United States that Hartwell had violated the terms of the plea agreement in this case and in the District of Maryland by withholding information about his criminal activity and by lying to federal agents in Maryland when he told them that he had lied at the [ ] trial. The letter also made clear that the United States would continue to allow Hartwell to cooperate only if he abided by certain conditions additional to those contained in the original plea agreement of April 27, 2000, and the letter reiterated that Hartwell was obligated to cooperate fully and truthfully with the United States.
Importantly for this motion, the letter in no way abrogated the discretion reserved by the United States in the original plea agreement in this case respecting whether to file a Rule 35(b) motion. Indeed, the letter quite clearly evinces the intent of the United States to retain that discretion. See Letter of January, 31, 2001, signed March 14, 2001, at 2 (“If Mr. Hartwell agrees to these conditions and abides by them, our offices will continue to consider him for a sentence reduction at the appropriate time.”) (emphasis added).
Thus, it is beyond question that the United States originally had, and retained, the absolute discretion to refuse to file the Rule 35(b) motion on Hartwell’s behalf. Settled law in this circuit clearly establishes that the refusal of the United States to move for a sentence reduction is unreviewable unless the defendant shows that the refusal was animated by bad faith or unconstitutional motives.
United States v. Snow,
Of course, the United States chose to exercise its discretion in favor of Hartwell when, on August 14, 2001, it moved for a reduction of sentence under Rule 35. To construe the terms of the plea agreement in this case, therefore, it is necessary also to consider the terms of that motion because, under certain circumstances, the text of a Rule 35(b) motion can alter and modify the terms of a plea agreement.
See United States v. Saunders,
The United States also filed, on March 10, 2003, a memorandum in support of its Rule 35(b) motion. Hartwell argues that this memorandum further modified the plea agreement and that the withdrawal of the Rule 35(b) motion by the United States violated the terms of the plea agreement as modified by the text of the March 10, 2003 memorandum.
That memorandum discussed, inter alia, Hartwell’s cooperation in the ongoing case against [ ] [ ]. Specifically, in a footnote, the United States explained that:
Mr. [ ], who is currently in custody serving a sentence for [ ] from the District of [ ], has not yet been indicted for reasons not related to defendant. See United States v. [], [] F.3d [] (4th Cir.[2000]), cert. denied, [] S.Ct. [] (2002). The Government considers defendant’s anticipated truthful testimony against Mr. [ ] as the principal basis for the filing of this motion. If, for any reason, defendant fails to provide truthful testimony during the [] prosecution, the Government will take the position that defendant has engaged in a material breach of his plea agreement’ and his commitment to provide substantial assistance to the Government.
Gov’t’s Mem. in Supp. of Mot. for Reduct, of Sent., at 5 n. 1 (emphasis added).
Hartwell contends that, by virtue of that footnote, the United States obligated itself to support and maintain the Rule 35(b) motion unless Hartwell gave untruthful testimony in the [ ] case. Because he remains willing and able to give such testimony, and because the asserted reasons for withdrawing the Rule 35(b) motion are unrelated to the [ ] case, Hartwell asserts that the withdrawal of the Rule 35(b) motion is a breach of the plea agreement as modified by the March 10, 2003 memorandum.
To support this argument, Hartwell points to
United States v. Saunders,
Saunders did not dispute that, under the original plea agreement in his case, the United States possessed discretion over the decision to file a Rule 35(b) motion. Id. at 797. Saunders, however, argued that the terms of the conditional Rule 35(b) motion filed by the United States served to modify this discretion. In support of this proposition, Saunders pointed to language in the Rule 35(b) motion which stated:
“The defendant’s assistance to the government has not been completed as of the filing of this motion.... This motion is expressly contingent upon the defendant’s continuing complete and truthful cooperation. The government will file a supplemental memorandum detailing the defendant’s substantial assistance, ivhen his cooperation with the government is completed.”
Saunders,
Absent the final sentence, this motion arguably would not have modified the government’s discretion. Yet the motion clearly changes the original [plea] agreement; it asserts in the final sentence that “[t]he government will file a supplemental memorandum ... when his cooperation with the government is completed.”... This positive promise to pursue a sentence reduction when Saunders’ cooperation is completed modifies the prior agreement; this promise to act supercedes the complete discretion to act found in the original plea agreement. In other words, the motion changed an agreement that was purely discretionary ... to one that is potentially binding. ... Therefore, although the agreement remains contingent on Saunders’ “complete and truthful cooperation,” the government no longer retains the discretion not to pursue a reduction if these conditions are met. In sum, the motion’s language operates to obligate the government to pursue the Rule 35(b) motion if, in the end, Saunders’ cooperation is complete and truthful.
Id. at 801-02 (emphasis and brackets in original).
Hartwell argues that footnote 1 of the memorandum filed by the United States on March 10, 2003 in this case had a similar effect on the unfettered discretion reserved in the Rule 35(b) motion respecting the potential withdrawal of the motion for a reduction in sentence. According to Hartwell, although the United States originally had reserved to itself the ability to withdraw its Rule 35(b) motion without objection, the language of footnote 1 obligated the United States to support its Rule 35(b) motion once Hartwell provides truthful testimony in the [] prosecution.
This argument fails because the clear language of footnote 1 of the memorandum illustrates that Hartwell’s obligations under the plea agreement contract are not limited to providing truthful testimony in the [ ] case. The footnote states that the
More importantly, nothing in this footnote — or for that matter in the March 10, 2003 memorandum — served to modify the United States’ ability, as specifically retained in the text of the Rule 35(b) motion of August 14, 2001, to withdraw the motion for a reduction of sentence without objection by Hartwell. The footnote did not supercede or diminish, in any manner, the ability of the United States to withdraw the Rule 35(b) motion without objection. Unlike the language at issue in
Saunders
(the “government
will file
a supplemental memorandum detailing the defendant’s substantial assistance, when his cooperation with the government is completed,”
Saunders,
For the foregoing reasons, the terms of the plea agreement as it stood on July 1, 2003, the date that the United States moved to withdraw its Motion for Reduction of Sentence, permitted the United States in its discretion, to withdraw the previously filed Rule 35(b) motion. 2 The decision to withdraw its Rule 35(b) motion does not, therefore, constitute a breach of contract. 3
Hartwell further argues that the plea agreement in this case was a “global plea agreement”; and that, therefore, contract principles aside, the global nature of the plea agreement limits the power of the United States to withdraw the Rule 35(b) motion. Thus, Hartwell urges the Court to review more rigorously than would ordinarily be warranted the decision to withdraw the Rule 35(b) motion.
Hartwell premises the “global plea” argument principally on the facts that: (1) the plea in Maryland was contingent upon his plea to the Virginia charge; and (2) this Court ordered his sentence in the murder-for-hire case to run concurrently with his Maryland sentence. Additionally, Hartwell points to the assistance that he provided in Maryland and the District of Columbia as evidence of the global nature of the plea agreement. Finally, Hartwell contends that letters submitted by prosecutors in other jurisdictions outlining his assistance is evidence of the global nature of the plea agreement. From that springboard, he argues that:
to allow the government to withdraw the Rule 35(b) motion would frustrate the purpose of the global plea, would provide the defendant with no recourse for Virginia’s unilateral decision to undo a complex and multi-jurisdictional process that has developed over a period of years, and would render all cooperation and efforts the defendant made in the jurisdictions at issue meaningless, and the other motions and Order in federal court to reduce his sentence, a nullity.
Def.’s Mem. in Resp. to Gov’t’s Mot. to Withdraw Mot. for Reduct, of Sent, at 1-2. In support of this argument, Hartwell relies on the decision in
United States v. Nguyen,
In
Nguyen,
the court addressed the question “whether a sentencing judge may depart downward, over the objection of the local United States Attorney, on the basis of a ‘[§ ]5K1.1 letter’ (motion) in favor of the same defendant but written by a different prosecutor, in a different jurisdiction, but in a similar case.”
Nguyen,
The United States Attorney for the Southern District of New York filed no similar § 5K1.1 motion with respect to the sentencing hearing in Nguyen’s New York case. In fact, that office opposed a down
Nguyen, however, is distinguishable from this case. In Nguyen, the United States Attorney in New Jersey had submitted an actual § 5K1.1 letter to the New Jersey court. Although the United States Attorneys for Maryland and the District of Columbia submitted letters in this case that outlined Hartwell’s cooperation in prosecutions in those districts, neither United States Attorney filed an actual Rule 35(b) or § 5K1.1 motion in their respective jurisdictions. It also is true that Assistant United States Attorney Timothy Heaphy of the District of Columbia submitted a letter in support of the original Motion for Sentence Reduction filed in this case. As explained by the government, however:
the genesis of this unsigned letter was the Court’s suggestion during a conference call on March 18, 2003, that the defense establish the full extent of the defendant’s cooperation with the District of Columbia through affidavit or other written form. As a courtesy to [defense counsel], [AUSA Novak] asked AUSA Heaphy to draft a letter detailing the defendant’s cooperation in lieu of his testimony. The unsigned letter is simply a description of the full extent of the defendant’s cooperation with the United States Attorney’s Office for the District of Columbia, not a motion for downward departure.
Gov’t’s Reply to Def.’s Mem. in Resp. to Gov’t’s Mot. to Withdraw its Mot. for Re-duct. of Sent., at 3. Moreover, the United States notes that AUSA Heaphy now supports its motion to withdraw the Rule 35(b) motion in this case. Thus, unlike the situation in Nguyen, where the New Jersey United States Attorney’s office had submitted an actual § 5K1.1 motion that was opposed by the New York office, the United States speaks with one voice in this case: both United States Attorney’s offices support the Motion to Withdraw the Motion for Reduction of Sentence. For these reasons, Nguyen is not helpful to Hartwell.
Finally and more basically, the terms of the plea agreement in this case undermine Hartwell’s effort to construe the plea agreement as “global.” The plea agreement states that: “Except where specifically noted, this plea agreement binds only the United States Attorney’s Office for the Eastern District of Virginia and the defendant; it does not bind any other prosecutor in any other jurisdiction.” Plea Agreement, at 3 ¶ 5. Although the plea agreement required the United States to recommend to this Court that the sentence in this case should run concurrently with any sentence that the Defendant received in Maryland, it did not bind in any way prosecutors in other districts. And, nothing else in the plea agreement has the effect that Hartwell urges.
Considering that the text of the plea agreement in this case cannot accurately be described as “global” and the factual differences between this case and
Nguyen,
Hartwell’s reliance on
Nguyen
and the “global plea” theory is misplaced. For that reason and because the plea agreement simply does not support the contention that it is a “global agreement” that affects the ability of the United States to
III. The Defendant is Unable to Satisfy the Substantial Threshold Showing Prerequisite to the Holding of an Evidentiary Hearing.
Hartwell has moved the Court to order an evidentiary hearing in order to determine whether the decision of the United States to withdraw its Rule 35(b) motion is otherwise proper. Although the United States Court of Appeals for the Fourth Circuit has not specified the standard for entitlement to an evidentiary hearing on a motion to withdraw a Rule 35(b) motion, it has outlined the framework for judicial review of the refusal of the United States to make such a motion in the first instance. As explained above, the plenary power of the United States to file a Rule 35(b) motion in the first instance in Hartwell’s case was replaced with the plenary power to withdraw such a motion once filed. Therefore, the decisional law respecting judicial review of the refusal of the United States to make a Rule 35(b) motion also provides the appropriate framework for analyzing the related issue presented in this case.
Before a court may order discovery or hold an evidentiary hearing on the United States’ refusal to make a motion for a reduction in sentence, the defendant must make a “substantial threshold showing” that the refusal resulted from improper or suspect motives.
United States v. LeRose,
Hartwell does not assert that the withdrawal decision here at issue was prompted by an unconstitutional motive. Rather, he argues that the decision to withdraw the Rule 35(b) motion was motivated by bad faith. As Hartwell observes, if the Rule 35(b) motion is withdrawn, he will serve a life sentence notwithstanding his not insubstantial cooperation with the United States; and, says Hartwell, the withdrawal decision was prompted by a relatively trivial act: a lie that he promptly sought to withdraw. Withdrawal under those circumstances, says Hartwell, constitutes bad faith. Hartwell also contends that, because his role in the underlying murder-for-hire was minor, the United States is acting in bad faith in seeking to withdraw the Rule 35(b) motion and allowing his life sentence to stand. These contentions are without merit.
The record here shows that the decision to withdraw the Rule 35(b) motion was made principally because of Hartwell’s lies, the last of which was made in Hartwell’s
pro se
memorandum filed on June 6, 2003 (which he attempted to retract on July
7,
2003 after the United States moved to withdraw the Rule 35 motion). The undisputed record is that Hartwell has lied to
Moreover, the decision to withdraw the Rule 35(b) motion was rationally related to legitimate governmental interests, namely, that Hartwell’s repeated lies undermined the effectiveness of his cooperation and served to undermine the administration of justice. The decision in
United States v. Butler,
Similarly, the decision to withdraw the motion here is rationally related to a legitimate government end. Hartwell’s repeated lies and retractions, similar to the threats made by the defendant in Butler, served to undermine the effective operation of the criminal justice system and to diminish the value of Hartwell’s cooperation. The decision to withdraw the motion, therefore, was rationally related to the legitimate governmental purposes of requiring truth-telling in the criminal justice process and ensuring the effectiveness of Hartwell’s cooperation. It serves the additional valid governmental end of serving notice on cooperating defendants that lying has serious repercussions. This outcome, therefore, encourages other cooperating witnesses to be truthful. 4
CONCLUSION
For the foregoing reasons, the Motion to Withdraw Motion for Reduction of Sentence of the United States (Docket No. 47) is hereby GRANTED. Thus, the Sealed Motion of the United States of August 14, 2001 (Docket No. 17) is hereby withdrawn. Furthermore, the Defendant’s Motion for an Evidentiary Hearing in this matter is DENIED. 5
The Clerk is directed to send a copy of this Memorandum Opinion to all counsel of record.
It is so ORDERED.
Notes
. Although Hartwell and his lawyers signed the document on March 14, 2001, the date on the heading of the letter is January 31, 2001.
Because of the signature date, however, this document will be referred to as the March 14, 2001 letter.
. Because the terms of the plea agreement as modified granted the United States the virtually unreviewable authority to withdraw its already filed Rule 35(b) motion, it is unnecessary to reach the argument put forth by the United States that it has the inherent power to withdraw an already filed Rule 35(b) motion without regard to the terms of any plea agreement.
Cf. Snow,
. The United States Court of Appeals for the Second Circuit has issued an opinion that, at first blush, appears to be on point and to reach a result contrary to the ultimate resolution reached in this case. In
United States v. Padilla,
. Hartwell also asserts that, due to his role in the offense of conviction and his personal characteristics, allowing a life sentence to stand in his case would constitute a "miscarriage of justice.” As an initial matter, these facts are simply irrelevant to the resolution of the issue here because whatever the Court may think about the United States' decision to withdraw its Rule 35(b) motion, the decision is, excepting bad faith and unconstitutional motives, solely for the United States to make. Moreover, on the merits, Hartwell's crime and his personal traits have already been considered adequately by the Court in sentencing him originally. At sentencing, the Court found that a life sentence was in the interest of justice and consistent with the United States Sentencing Guidelines — -these findings are equally applicable at this stage of the proceedings.
. Hartwell's Motion to Strike his affidavit and its Exhibit 6 (Pleading No. 48) is denied because it was a basis for the subsequent motion of the United States to withdraw its Rule 35 motion, and granting the Defendant’s motion would serve no valid purpose. Indeed, because the Defendant's affidavit contains a material lie which is significant in resolving the motion to withdraw the sentence, it would be inappropriate to strike the pleading.