United States v. Mark Forney

America, UNITED STATES

Plaintiff-Appellee, Defendant-Appellant. FORNEY,

Mark 92-2220.

No. Appeals, Court of States Circuit.

Eleventh 27,

Dec. CLARK, BIRCH, Judge, Circuit

Before *, Judge, and HOEVELER Senior Circuit Judge. District Senior BIRCH, Judge: Circuit appeal, defendant-appellant he should have received contends pursu- departure in his sentence downward govern- his with ant to depart court declined ment. The district substantial assistance downward based on for government did not move because the of rec- departure. After review the such ord, we AFFIRM.

I. BACKGROUND Forney pleaded Defendant-appellant Mark possess guilty conspiracy with intent kilograms or more of a sub- distribute five containing cocaine in violation of stance 841(a)(1) § one U.S.C. U.S.C. multiple-count indictment count coconspirators. charged he into which entered following contains provisions: relevant l.(b) cooperate fully agrees Defendant testify, subject government and to with the prosecution perjury making a to a for statement, truthfully fully and false before proceed- any District Court grand ing jury in connection federal charges and other case matters, cooperation further in- such complete of all clude full and disclosure information, including production relevant books, any papers, all documents objects possession in his or con- and other matters, relating to and mak- trol relevant by law for interviews himself available Martinez, Kessler, Bruce Mar- D. J. Victor cooperation is officers. enforcement If FL, Kessler, Tampa, for defendant- tinez & sentencing, completed prior to appellant. agrees to such co- consider whether Preston, qualifies as “substantial assis- Phipps, Gregory operation James Tamra W. 8553(e), Fernandez, Kehow, to 18 Attys., pursuant tance” U.S.C. Jack E. Asst. U.S. Sentencing FL, plaintiff-appellee. Guide- Tampa, Section * Hoeveler, sitting by designation. Dis- Honorable William M. Senior U.S. Florida, Judge trict Southern District lines, policy solely the United States will be and the case determined Attorney Middle Flori- District Court. understands Defendant further da, warranting filing required a motion at Court consider recommending applicable sentencing guidelines the time but depart guidelines applicable downward those under some from If guideline range. cooperation circumstances. subsequent sentencing, completed

government agrees to consider whether qualifies as “substantial 6. Defendant understands Count to 35(b) pursuant assistance” to Rule plead guilty which he will carries the fol- Procedure, and Federal Rules of Criminal lowing penalties: policy Attorney of the United States (a) punishable by Count Three is a max- Florida, for the Middle District of warrant- imprisonment years imum term of of 10 filing of motion for a of reduction life, $4,000,000, and a fine of and a year imposition sentence within one of the of supervised term release of at least case, of sentence. In either the defendant years. five understands that determination as to provided

whether he as- “substantial solely government,

sistance” rests with the agrees and the cannot he 16. It further understood that decision, challenge and will not is limited to the Office of the or appeal, whether collateral attack oth- Attorney for the Middle Dis- erwise. trict of Florida and cannot bind other fed-

eral, prosecuting authorities, state local although this bring Office will defendant’s cooperation, any, if to the attention of oth- (d) sentencing, At the time of prosecuting others, er officers or if re- ment known will make to the Court and quested. other relevant authorities the nature and and, cooperation, extent Rl-121-1-3, 5-6, 10-11 of defendant’s mitigating circumstances indicative arraignment 12,1991, At the on November intent to rehabilitate of defendant’s coconspirators, of and one of his and to assume the himself fundamental judge stipulations by district reviewed the duty reporting civic crime. of parties plea agreement. under the He (e) sentencing, At of pursuant the time that Forney ascertained understood 11(e)(1)(B) Rule of the of Federal Rules cooperate fully government Procedure, Criminal will give testimony requested and to if to do so. oppose request not the defendant’s “give The was to consideration Court and States Probation filing to the of so-called substantial assis- (2) Office that the defendant receive a two motions, seeking tance modification of sen- adjustment level acceptance downward defendants, pursuant tence behalf both pursuant responsibility to Section 3E1.1 statute, applicable sentencing guide- to the Sentencing of the Guidelines. “[wjhether line, or rule” and there [wa]s (f) 11(e)(1)(A) Pursuant to Rule of the [wa]s not a substantial assistance Procedure, Federal Rules of Criminal at government agree[d] in both cases to make sentencing, time of sentencing known to the court at the time will remaining move to dismiss the count cooperation.” the extent the defendant’s against the defendant. R2-4-5. The district court also ascertained 3. guilty understands that he will be understood that his Defendant pursuant sentenced to the Federal Sen- Three of Count the indictment received a tencing promulgated by imprisonment Guidelines law. maximum term of life with a particular ten-year mandatory minimum, years understands that the five Defendant sentencing guidelines, any, applicable supervised potential release and a fine of if The issue of downward departure on motion $4,000,000, “absent assistance is noted Para- substantial at government.” Report and 80 of the Presentence graph (PSR) report calculates presentence The 1(b) agreement. subsection Forney’s level based offense sentencing guide- Pursuant 5K1.1 of involving kilo- five fifteen drug transaction motion for file a lines the under U.S.S.G. cocaine grams departure at the time of sen- a downward 2Dl.l(c)(6). adjustment After two-level such motion has tencing, § but at this time Forney’s to- responsibility, and thus the Presentenee acceptance of not been filed accurately noted that the Report has 21 U.S.C. level is 30. Whereas tal offense adversely affect the does not 841(b)(1)(A) range provides sentencing guideline this case. calculations minimum, ten-year mandatory term life, correctly object the PSR did PSR. maximum term of to a mandatory mini- because states February At years, imprison- the Guidelines mum ten judge all of ob- district addressed 5Gl.l(c)(2) range U.S.S.G. jections to the PSR.1 (10 years years, it intended to 120-121 months asked the twice month). departure assigned a criminal move for a based was downward assistance; gov- both times substantial Concerning any other history category 1. of it informed court that did ernment departure, the PSR states that potential R3-5, Concern- departure. seek such a cooperative with has been “[t]he departure for as- downward substantial during investigation and sistance, Forney’s attorney engaged in the fac- cooperation may[ be considered a ] interchange following district court: with warranting departure downward tor [Forney’s attorney]: If I Mr. Crooks sentencing guidelines.” of federal that, clarify' Your Honor. at 14. PSR that, again, my here I think statement objections Forney’s attorney filed to the assumption upon an that there was based respect possibility of For- PSR. With government, would be 5K1 motion departure receiving a for ney’s downward the sen- and that course would of affect as assistance described substantial tencing. objec- attorney’s agreement, his stated just simple It statement. That was did affect “[t]he tion was that disagreeable with was not intended to be because of enhanced calculation general in her probation officer state- procure substantial just law enforcement that with It to remind that ment. existed, Attorney’s possibility Judge. from the U.S. office. assistance option plea agreement such an right. Without All THE COURT: PSR, not exist.” In an addendum the did objection to The addendum reflected an responded to Probation Office the U.S. that the statement Concerning objections by Forney. raised would have no effect the sentence. it, departure And, position for assis- I your substantial understand downward simply it tance, respect to that was that states that: with the PSR addendum Forney’s knowledge participation and that he should sion that in the 1. In addition his contention drug trafficking conspiracy precluded him departure for downward substantial receive a being participant, warranting a a minor assistance, Forney contended that he was in- 3B1.2, adjustment. See U.S.S.G. downward kilograms five of a cocaine substance volved with comment, (nn. 1-2) (A decrease in offense level six, receive a down- instead of that should are for minimal role who covers “defendants being participant adjustment ward for a minimal plainly among culpable [T]he de- the least .... drug trafficking conspiracy. The district knowledge understanding or lack of fendant’s agreed probation judge officer’s assess- scope enterprise and and structure Guidelines, that, five six kilo- under the a role as a activities others indicative grams yielded cocaine the same offense level. adjust- participant.... downward [T]he minimal 2D1.1(c)(6). Additionally, the district participant U.S.S.G. be used will ment quently."). minimal infre- agreed probation judge officer's conclu- provided Part Regarding agreement, Forney would have because stat- 5K motion ed: MR. CROOKS: That’s correct. I think I don’t have signed would ever agreement] THE COURT: —to made that I [the if knew that. I coop- have signed ernment it deemed would never if I knew defendant’s they going eration to rise to the level what were substantial to do. Because I up assistance. I don’t see re- So told them front I what could do for quires any ruling by I them, court at them and what try further to do for every single thing and I this time. did I told them try do, everything. could No, MR. sir. CROOKS: They right. happy they THE were COURT: All when talked to they happy me at first and get were me objections Then are there sign plea agreement, because I report, presentence Mr. Crooks? thought my they mind that were going No, sir, MR. CROOKS: Your Honor. give me this motion because what I added). at 13-14 (emphasis prior told signing them that. Following exchange the dis- between Id. at 21 judge Forney’s counsel, trict the district object respond did not to the statements PSR, judge adopted including facts by Forney and his counsel. legal regarding conclusions judge explained specifically recognized sentence. The reasons imposing sentence statutory mandatory without because of the the absence of a years, minimum ten guide- sentence of “the requested and sentencing specifically a range line becomes 120 to 121 re- sponse months, defense: departure.” absent Id. at In 15. government’s

view of the refusal to move just THE guideline COURT: This is not 5K1.1 to for depart substantial assis- 5K2 sentence. would authorize a down- tance, judge gave Forney’s the district attor- ward under the circumstances to ney opportunity to be heard. Defense applies prescribed guide- which it from a explained Forney “attempted counsel that say guideline line sentence —that is to government,” provide assistance that promulgated by the States Sen- Forney felt “that his assistance was substan- tencing Commission. tial,” but that no 15- arrests occurred. Id. at dealing this But in case we’re with Additionally, attorney “I 16. stated that statutory mandatory minimum sentence quarrel understand I no and have with the months, becomes the that as to discretion matter of therefore guideline sentence they but at same time they whether will will or not do a 5K1 statutory mandatory remains mini- motion.” Id. at 15. mum, which the court no discretion to judge gave The district also Forney the vary depart to, respect downward opportunity speak concerning mitigating except very in one and narrow limited circumstances to his mandatory relative sen- circumstance, on and that is motion for describing tence. Without util- the nature or substantial assistance made the United ity usefulness, Forney his he claimed that And there States. is no motion in information,” gave “a lot of this case. him, pictures that identified shown to that regularly government, he worked So it matter of seems me as a law I “many that arrests” could been completely depart have am without discretion Id. at any made. 19-20. said or impose except sentence in this case agent months, informed I going him that he 120 to 121 unless upward beyond chose not to act his depart on information because which I can “they are say too small for me to do.” Id. at here now I don’t intend to do. added). (emphasis 21-22 The

Id. district at judge then months sentenced record, clearly on stated has been [A]s years supervised imprisonment, five application ultimate result requisite special and the assessment release case re- guidelines statute and status, Forney’s view of financial $50. court in in a determination sults judge imposition of an addi- waived any as it is left without discretion this case monetary judge fine The or sanction. tional insofar a term relates to explicitly counsel if he asked defense had is concerned. commitment upon; objections had ruled not been not motion question The whether or negatively. Forney is attorney responded so- departure is made downward incarcerated. assistance a determi- called substantial exclusively places law nation that II. DISCUSSION States, the United within the discretion branch, say Claiming the executive which is to that the district court er And, indeed, plea agree- roneously Sentencing applied the court. Guidelines abundantly this case makes that ment in breached terms Forney appeals his plea agreement, clear. question of dis “Th[e] whether a sentence. added). 17-18, (emphasis 20-21 depart trict from the downward they judge asked counsel understood guideline applicable range under consequence analysis that he was governmental of a motion is absence impose a sentence of 120 months required to subject pure question law to our de novo Forney’s attorney legally re- to be correct. Chotas, 913 review.” United States v. sponded: “I the court’s reason- understand (11th Cir.1990) curiam), (per cert. just accept ing, Honor. will Your —I denied, ruling Id. at 18 court’s matter.” ability A court’s L.Ed.2d 473 district statutory mini impose sentence below also addressed controlling mum restricted statutes two understood that the contention that he moves instances when going to make a 5K1.1 motion ernment was departure upon such a based a defendant’s departure signing as condition of his substantial assistance: plea agreement: authority impose Limited a sentence Well, your plea agreement THE COURT: statutory Upon mo- below minimum. — [coop- Forney, says, Mr. that in either case Government, the court shall tion sentencing] the de- eration before or after authority impose a sentence have quoting ei- fendant understands —I’m —in by as below a level established statute understands that ther case defendant as to reflect a minimum sentence so defen- as the determination to whether has dant’s assistance in the investi- substantial assistance, quote, provided, substantial gation person prosecution or of another quote, solely close rests with the who has committed an offense. Such sen- ment, agrees and the that he defendant imposed tence shall in accordance with challenge cannot and will not that deci- guidelines policy statements issued appeal, by whether collateral attack sion Sentencing by pursuant to Commission otherwise, quote. close 28, 994 of title United States Code. section signature your And at the bot- added). 3553(e) (emphasis § 18 U.S.C. initials, page your rather. tom the —or (Pol- And we time when went over at the Substantial Assistance to Authorities Statement) your entry plea you icy told me you under oath that what that understood stating Upon motion you? meant. Didn’t provided that the defendant has substan- THE DEFENDANT: Yeah. investigation pros- tial assistance person right. who has commit- THE All ecution another COURT:

1499 lines.”). offense, may depart Forney appears ted an the court to contend that the guidelines. district of his own volition should have awarded him a downward for his U.S.S.G. Su government. We are preme policy Court has held Guidelines mindful judge gave statements, 5K1.1, such as are bind section every sentencing concession in him to ing on federal Stinson v. 120 courts. United — months, States, U.S.—,—, 1913, 113 lowest allowable sentence S.Ct. (1993). 1917, statutory sentence, mandatory 123 L.Ed.2d 598 Based minimum interpreted Supreme monetary these statutes and in waiving as fine or sanction circuit, beyond dispute Court and it is $4,000,000. that could have much been as depart that a cannot Nevertheless, from a judge properly the district rec- mandatory minimum sentence the absence ognized authority that he was without a 5K1.1 motion Wade depart mandatory downward from the mini- States, —, —, v. United U.S. 112 mum sentence absent a (1992) 1840, 1842-43, S.Ct. 118 L.Ed.2d 524 about inquired during which he twice (unanimous opinion); States v. Brum sentencing proceeding. (11th lik, Cir.1991) 912, (per 947 F.2d Alamin, curiam); govern v. United States also claims (11th 1335, Cir.), denied, cert. agree the terms breached 873, 196, 112 L.Ed.2d 158 commentary ment. his at sentencing, Forney clearly cooperated states that he statutory mandatory Given minimum so that Forney’s our review of recommended would make a 5K1.1 sentence, attorney his error there is no the PSR assumption. verified that this was the adopted by Indeed, the district court. For- agreement, however, provides ney only complained has not that his sentence was would “consider” miscalculated manner. See 18 U.S.C. whether 3742(a)(2) (A may appeal qualified defendant aid for substantial assis imposed sentence it was “as a result of tance and that this determination was “sole application ly” incorrect the sentencing guide- that of government.2 Rl-121-2. inapplicable 2. The dissent finds Wade because a left sole discretion to the to deter- assistance, is not involved. This has not mine substantial de- been the conclusion of circuits that have cision not to file a 5K1.1 motion was unavailable See, plea agreements following reviewed Wade. judicial allega- review under Wade absent an Woods, e.g., United States v. F.2d impermissible motive”.); "constitutionally tion of (7th 2, 1993) (Based WL at *2 Cir. Mar. Sims, 1992 WL Wade, on the "limited review” afforded (4th 1992) Aug. (per at *2 Cir. cu- court declined to allow defendant to with- riam) pro (Although the se had entered plea government draw his did when the not file a plea agreement government into a in which the pursuant plea agreement ato stat- agree did not to make a 5K1.1 and de- motion ing government that the "will make” the motion so, clined to do Wade that the court found under "if” the was defendant's assistance substantial. the of bad defendant's contention faith the government that the determined defendant's government provided because she had substan- helpful, information was and the not defendant tial assistance was insufficient that the dis- allege government's unwilling- failed to that the government's trict court could review the deci- suspect ness to make the was "based a motion on only government’s sion if "the refusal was the invalid.”); classification or otherwise United motives.”). product of unconstitutional 735, 336462, Murry, States v. 1992 WL Lifting phrase comparative a (8th 18, 1992) and citations curiam) (per at *1-2 Cir. Nov. Wade, from the dissent believes Santobello v. (Although plea agreement the stated that the York, 495, 257, New 404 U.S. S.Ct. 30 L.Ed.2d government 92 “shall a 5K1.1 file” motion if the (1971), 427 and contract law controls this case provided defendant substantial assistance and exception and seeks to create a faith only bad pro- the defendant claimed not that he had judicial involving assistance, plea agree- review in cases vided such but also that he was black ments, government where the has reserved and one of dis- the few cases in which the all-white motion, prosecutors Interestingly, cretion to a file a 5K1.1 motion. had not filed 5K1.1 the generalized plea agree- a court Wade Santobello did not involve written ment, concluded under that a improper government's keep claim of an but the failure to motive insufficient for relief.); promise Romsey, United 975 oral to the that it would not States v. F.2d defendant (8th Cir.1992) (Because plea agreement the make a sentence if the defen- recommendation plea agree- 3553(e) accurately in the is stated 5K1.1 the condi- both “[I]n ment, he will sen- which also states that be authority gives the limiting the court’s tion Sentencing under the Guidelines. tenced duty, not a to file power, Government substantially defendant motion when a Forney’s attempt allege bad at-, Wade, S.Ct. assisted.” making a government the for not agreed not to chal- Forney further at 1843. not unavailing motion because he did 5K1.1 is appeal objection decision. district court at lenge or raise v. sentencing proceeding.3 sentence, statutory absent a 5K1.1 Forney’s Wade, generally Subsequent to other circuits plead guilty to of- a lesser-included dant sentencing, government principles recom- va At used to review and fense. have contract sentence, blatantly break- challenging govern mended maximum sentences in cases cate promise ing defendant. Hence its oral motion where the ment’s refusal to file 5K1.1 oft-quoted of the determination context for the particular plea agreement explicit of a terms vacating is that “when a the sentence Court in government motion for a down controlled the significant degree promise plea any rests See, departure for substantial assistance. ward prosecutor, agreement so it can of the or Dixon, e.g., United v. States part or consider- to be of the inducement said (4th 1993) (Because government agreed Cir. ation, promise fulfilled.'' Id. at must be plea agreement to make a 5K1.1 motion in the S.Ct. at 499. to be "in deemed Dixon’s assistance substantial comparative cited in Wade for The other case investigation prosecution per another upon by sup purposes the dissent in and relied son,” until it could not withhold analysis port of its is States contract prosecution, substantial assistance in Dixon’s denied, Conner, (4th Cir.), cert. 930 F.2d 1073 government he had when the had admitted that U.S.-, 116 L.Ed.2d 440 investiga provided assistance substantial agreement plea did involve a written Conner drag trafficking organizations.); large of two tion agreed provide "to which the defendant truthful Hernandez, 996 F.2d 65-66 United States v. (5th Cir.1993) (The any activity about and all criminal information plea provision agree knowledge" government and the within stating if Hernandez rendered sub agreed to the court of his substantial inform assistance, then stantial assistance, whereupon "the United States will illusory bargain.). make a 5K1.1 motion was an to the Court that active sentence recommend factually distinguishable San- case is against This imposed Court Mr. Connor should tobello, Connor, contract-analysis (empha and the cases thirty exceed months." Id. at 1074 not dissent, sentencing, by the breaches in cited which involve clear sis At respective plea agree- specific that it would not make a 5K1.1 formed terms regard Forney's plea agreement unequivocally motion because Connor was not truthful ments. conspiracy. ing drug his involvement in required “to consider” and not the district court's deter Fourth Circuit affirmed judge care- motion. The district 5K1.1 file up did end "that Connor not live to his mination fully term reviewed this bargain." Id. at arraignment and verified at at his cases, presents Through exam these two Wade provisions of that he understood the breaking negoti ples government's an oral signed when he it. Because plea promise, comply and a not ated defendant’s Forney apparently supplied no useful informa- promise contained in written tion, government did make a mo- not promises agreement. these are memori Whether 4. There is no evidence that the tion. See n. infra is A in a written irrelevant. alized assistance, consider did not purposes of these two cases for fair distillation promised to This is that it do. all comparison by the Wade Court is that both the simply where the failed a case prom must fulfill comply explicit provision of the with this plea agreement. ises made achieve These go agreement. for us to There no reason straightforwardly analyzed were as the fail cases parties bargain behind examine parties comply respective with ex ure of the Therefore, provision. respect made this agreed plicit, plea the with terms of per- analysis the contract that the dissent would analysis of the reasons or motivation for out noncompliance, implicated not of this issue form is for resolution as The bad faith. contract- appeal. agreements analysis plea by cited the cases of dissent from our circuit are similar. See United "Forney himself contends that 3. The dissent Rewis, (11th Cir.1992); F.2d States v. 969 Jefferies, 985 placed squarely issue the the bad faith before (11th States v. 908 F.2d 1520 United by explaining that he had fulfilled district court Arnett, 1990); (11th re 804 F.2d 1200 Cir. In agreement, obligations while under the curiam). his Cir.1986) (per none While involve not.” Dissent at n. 1. motions, had 1504 the statutorily are discretion 5K1.1 misapprehends dissent that decision specific The ary government, do concern all obligations his government promises kept. whether had fulfilled that were not

1501 (11th Cir.1991). 1541, 5Kl.l(a) Jones, § F.2d 1547 sistanee. (giving See U.S.S.G. and, consequently, court The district by factors to be considered sentencing evaluate the rendered court do not assistance evaluating in a defendant’s assistance offering by a as a defendant to determine an appropriate departure). his and until term of unless Thus, precluded the courts are from intrud- a makes 5K1.1 motion for prosecutorial Wade, into discretion.4 See downward based on substantial as- abandoned, filing matter, objec- under the sufficient a as a factual was and not to assess an- government's purported tion to the bad faith nounce, but the decision of the un- fulfilling obligations agree- its under the statutes, 3553(e) operative der the 18 U.S.C. upholds ment. judge’s Wade the district inter- 5K1.1, according and U.S.S.G. pretation ruling as accurate. The facts of to make this See discretion determination. dispositive support infra this case law will not discretion). (discussing government n. 4 As we position preserved dissent's that discussed, Wade, Supreme Court's have objection government's bad to the faith refusal to directly addressing govern- unanimous decision file a motion. 5K1.1 refusing discretion in a 5K1.1 mental motion, make general principles, and not contract con- 4. The dissent intrude into the zone Wade, trols this case. See n. 2. Under infra prosecutorial Supreme discretion. The Court Forney's comments at were insuffi- upheld emphatically sepa sanctity preserve cient to raise or appeal the issue of bad faith on prosecutorial prop rateness of discretion for the allege he did not unconstitu- because functioning justice system. er of our criminal discriminatory gov- tional or motivation “[tjhis The Court has concluded that broad dis Wade, making ernment in not See motion. particularly judicial cretion ... ill-suited to at-, (Claims -U.S. 112 S.Ct. at 1844 review,” and that the factors that a court would “generalized allegations assistance or substantial prosecutorial consider to review such a decision improper by a are motive” insuffi- readily susceptible analy "are not to the kind of judicial discovery inquiry, cient to elicit or an competent sis the are courts to undertake.” evidentiary hearing.). Even with references States, 607, 598, Wayte v. United 470 U.S. during sentencing proceeding, bad faith (1985). Citing 84 L.Ed.2d 547 determined not Tenth Circuit that it could ad- Wayte, the Wade Court "we determined that see argument relating bad dress a to the why no prosecutor's reason courts should treat a ernment’s refusal to make a 5K1.1 “Af- motion: record, refusal to file substantial-assistance dif reviewing motion ter we to address decline ferently Wade, prosecutor's argument adequately other because it was not decisions." — therefore, at—, preserved raised below and U.S. S.Ct. at 1843. Fol Lee, citation, appeal.” lowing Wayte States v. the Wade reiter Court (10th Cir.1993) (footnote omitted). holding: ated its "[W]e initial hold that federal Additionally, Forney's acquiesced authority prose attorney district courts have review interpretation the court's to file a the discretion cutor’s refusal mo substantial-assistance government to file grant remedy they a 5K1.1 motion under the tion and to if find that ("I statute. See R3-15 I have understand and no based on an refusal was mo unconstitutional quarrel government's at-, discretion tive.” S.Ct. at 1843-44. they they matter as whether will will not do obviously analogous Wayte. Wade Both motion."). Forney’s attorney a 5K1 also ac- prosecutorial Wayte, involve discretion: quiesced judge’s interpreta- in the district correct Wade, prosecute; decision of whom to and in controlling tion of the statutes that was with- decision of whether to file a 5K1.1 The motion. authority depart Forney's out downward in specifically Wayte Wade Court cites the Court’s mandatory minimum sentence without recognition prosecutorial limit- discretion is (Rather See id. 18at constraints, race, ed constitutional and names objecting judge’s explanation, than to the district religion arbitrary Id. at classification. Forney’s attorney stated that "I understand the -, (citing Wayte, at 1843 112 S.Ct. 470 U.S. at reasoning, accept Your will court’s Honor.... 1531). Wayte 105 S.Ct. ex- Court matter.”). ruling judge on the court’s allegation plains discriminatory ef- mere Forney, subsequent then addressed to the com- insufficient, discriminatory pur- cites, fect is and that the dissent ments that Forney and verified pose is essential. U.S. at 105 S.Ct. at arraign- told had him under oath at his Wayte, allegation discriminatory In provision ment that he understood the of his showing discriminatory pur- effect agreement concerning without discre- Wade, pose was insufficient for Finally, relief. tion to make 5K1.1 motion. description specifically Forney's Court Wade’s attorney asked there determined were by his any objections upon. attorney assistance counsel at the district court's to be ruled relief,” “necessary responded negatively. invitation was a condition for Therefore, acquiesced cognizable and his but not "sufficient" to state a uncon- counsel ' interpretation warranting judicial court’s re- stitutional motive — at-, and law at the time of and view. U.S. S.Ct. Wade 112 at 1844. 1502 of a -, assistance motion because In substantial 112 at 1843. at S.Ct. U.S. is appropriate when contrast, judicial motivation, review constitutionally impermissible substantial, allegation and a show- there is an at-, 112 religion.5 as or race file prosecution refused to a ing that the appropriate, judicial when exception substantial assistance motions since it cooperation. for re- a restricted establishes dependant upon defendants' is future government's a refusal to make 5K1.1

view the Wade,-U.S. at-, at 112 S.Ct. allegation must of unconsti- there be motion: Doe, 353, (citing F.2d 1844 United States v. 934 tutional motivation. - denied, -, (D.C.Cir.), 112 cert. 358 in institute our circuit the The dissent would (1991); 268, States 116 L.Ed.2d 221 United singular process in States v. described United 1010, Guardia, (1st Cir. La 902 F.2d 1016 (2d 1992), Knights, 1487 Cir. to 968 F.2d 1990)). cases within which these The context the refusal bad faith in determine gov the Wade instances where are cited in are involving Knights, a to file a 5K1.1 motion. may acknowledge a defendant's assis ernment providing government that the tance, enough to assess it to be beneficial but not "sole unfettered discretion” to the and reserved Clearly, cases these warrant a 5K1.1 motion. cooperation the war determine if defendant's challenge presenting a constitutional to section enun the Second Circuit ranted a 5K1.1 government used to show that the 5K1.1 were determining procedure distinct for ciated a disadvantage did not to its own if it work government bad faith had acted in whether the by refusing responsibly. use 5K1.1 motions assistance mo to make a substantial entering agreement, a defen- into a When adopted has at 1485. No other circuit tion. Id. unintentionally may intentionally misre- dant indicating procedure, present con Knights a ability govern- present help value of to Indeed, accept to the Second clusion not it. Implicit statutory requirement in ment. the Knights to We find not cited date. Circuit has government is to to make the 5K1.1 motion only procedure an invasion Knights to be not ability give prosecution the to evaluate a discretion, prosecutorial but also antithetical opening a defendant's assistance. Rather than judicial holding clear in Wade that to the Court's requiring judicial watershed review whenever government's to file a decision not review of the a motion as refuses to make 5K1.1 only appropriate is when unconsti 5K1.1 do, clearly the dissent would Wade reinforces alleged. has been tutional motivation prosecutorial to into the Court's reluctance enter govern- appears to distrust The dissent ap- It arena of the executive branch. discretion a defendant's assistance ment’s evaluation of pears that us that the discretion to making to whether to file a 5K1.1 the decision as 3553(e) Congress placed U.S.C. has in 18 imply govern- We decline to motion. Sentencing U.S.S.G. 5K.1.1is the present Commission deciding to file a discretion in when ment's precisely to cover situation. Our ploy or can a carrot snare be system making justice 5K1.1 mo- criminal pleading guilty. We are unwill- defendants into ing govern- operates under the dictates of these tions ing cavalier behavior to attribute such as reiterated the Court Wade. statutes Certainly, government generally. this case does relating Any change governmental discretion exemplify such not conduct these must motions stated in statutes conceded, resulted As has no arrests Congress Sentencing or the Commis- come from sion, gave govern- that he from the information and not courts. plea agreement. pursuant to Addition- ment Wade, po acknowledged 5. Prior to other circuits ally, testify in other has not been asked prosecutor’s good judicial review of the tential cognizant prosecutions. We are that faith determination of a defendant's substantial coopera- plea agreement requiring ment drafts a pursuant a with a assistance not so that it will tion from defendant govern discretionary provision concerning the obligated unless to make a 5K1.1 motion See, Conner, filing e.g., ment's 5K1.1 motion. assistance, misrepresented have been 1075; Vargas, at States v. 930 F.2d United entering plea agree- prior to the defendant (10th Cir.1991); States v. F.2d obtaining purpose denied, Rexach, (2d Cir.), cert. Brumlik, agreement, See is useful. 111 S.Ct. 112 L.Ed.2d 498 U.S. (In plea agreement, similarly worded a de Wade “that a claim that clarified agreed cooperate wherein the defendant merely provided assistance substantial fendant will not entitle government agreed to "consider” whether remedy to a or even qualified assis- the tance, substantial evidentiary hearing. discovery Nor or an it would not advised that generalized allegations would additional but motion.). This is the essence of make a 5K1.1 Wade, at-, improper motive." -U.S. prosecutorial discretion. Wade S.Ct. at 1844 Because only Importantly, Wade underscores that complained refused had not to make a 5K1.1 motion because of determiner of defen- the best an unconsti assistance, great motivation, that it incen- but also dant’s the Court denied him relief tutional accurately. Wade perform develop tive this evaluation opportunity remand "to or claim propositions for the cites two circuit cases constitu the Government violated his position withholding rights by the best deter- assis tional substantial ” 'arbitrarily' cooperation, or 'in bad faith.’ tance motion mine a defendant's government Id.; to refuse to make has no reason Jones, at 1843-44. unconstitutional No motive 933 F.2d at 1547. Forney Since re- alleged in has been this case. mandatory ceived a sentence, minimum we additionally only possible note that fur- appeal, Forney additionally On ther reduction in his sentence would have refuge provision seeks of the through been by a 5K1.1 motion agreement, government agrees wherein the Therefore, ment. remand for resentencing present the extent of his and on this basis would have no effect on For- mitigating sentencing, circumstances at ney’s sentence.7 by to show a breach While by this term was recited the district Nevertheless, court at we are by troubled arraignment, our government’s review the record failure to comport with a Forney’s dispute convinces us that with the plea agreement term of the agreed that it government regarding perform.8 agreements Plea binding are on government’s district concerned the parties that enter into them. gov motion, failure make a 5K1.1 and not this ernment is not exceptional, and must abide provision, 1(d), paragraph additional by of the agreements its as must the defendant. plea agreement.6 Notably, judge on this As drafter of agreement provisions pro panel supplementary had to cite provi viding potential 5K1.1 motions for substantial sion to argument. counsel at oral assistance and decisionmaker as to whether Forney’s complaint concerning As in gov occurred, such assistance has govern motion, ernment’s failure to make a 5K1.1 no ment has an negotiating position enhanced objection sentencing pro was made at the plea bargaining plea agreements. It ceeding on provision the basis of this latter poorly government reflects on the when it precludes and this omission our review. See cannot fulfill promises its own to a defendant. Wade, (4th see United States v. applies 936 F.2d Supreme sion Court’s unanimous Cir.1991) (Wade's argument clearly bad holding addressing precisely in Wade the issue of was before the Fourth Circuit: "The more diffi government's motion, refusal to file a 5K1.1 question cult query raised Wade is whether he when the has retained its discretion faith of the in refus to do so. ing to make the [5K1.1] [with motion.... quoted extensively 6. We have proceedings review[ing] only strength court's] district not in this case to Forney demonstrate that showing his evidence the value of his assis and, attorney sought apparently, expected tance but also the government reasons and motives of the motion.’’), making from the in not for down- aff'd,-U.S.-, departure sentencing. ward appeal, 112 S.Ct. 118 L.Ed.2d On not in (1992). court, Forney has focused on this latter provision government's to show government's While breach of the decision “to make or plea agreement. prosecu- withhold a 5K1.1 motion is a form of discretion,” torial that “is not reviewable for Forney represented has not faith,” that he desires to guilty plea arbitrariness or bad induced " Moreover, plea. withdraw specific perfor- his unkept promise "to make a 5K1.1 motion agreement respect mance involuntary the term applies and contract law to allow government's Burrell, presenting Forney's cooper- plea. withdrawal of the United States v. (7th Cir.) accomplish nothing added), ation would relative to (emphasis 963 F.2d his - denied, Boatner, -, sentence. See cert. United States v. 113 S.Ct. (11th Cir.1992). Therefore, agreement, L.Ed.2d 270 In a simi wherein, remedy lar to the one have no in this case remand for resentenc- sole secondary provision based on discretion to make a 5K1.1 motion remained government, agreement, the Seventh even if his claim were Circuit deter determined to mined that require “the did meritorious. exchange to move for position 8. The guilty plea.” has taken the [the defendant's] Wade, attorney opportunity After the had the direction of we view our present Forney's consideration evidence of assistance at refusal sentencing specific government, make where a and that the contrac not ob- jecting, tual a substantial indicated that the assistance information was cor- file involved, government’s position motion is not plainly to be limited to rect. The those falls constitutionally impermissible agreed cases in plea agree- which a short what to do in the ment; is, alleged. motive has been We are at a loss to for the to communi- understand the dissent's characterization and cate to the the extent of For- holding ney's statement of our cooperation, in this case. Our deci whatever it was. Forney’s plea agreement. This provision of a Forney’s only possibility down- Since through departure is the exchange ward in for For- provision provides government has ver- which the 5K1.1 investiga- full in ney’s cooperation criminal make, not remand resen- that it will ified government the prosecutions, tions and will purpose no tencing in this case would serve recommending filing a motion consider 5K1.1 judicial efficiency because would thwart and sentence; provision goes to a lesser the unchanged.9 Forney’s would sentence government to the the sole discretion reserve appro- a 5K1.1 motion is to decide whether III. CONCLUSION that, regardless majority holds priate. The Claiming that breached Forney’s cooperation, the extent of making a by not 5K1.1 his absolutely obligated is to do departure for sub- for downward his nothing. This result is inconsistent with Su- by presenting the not stantial assistance precedents preme governing plea Court cooperation sentencing, at For- his extent law, principles to ney appealed agreements, sentence. decision with of contract discretionary a 5K1.1 motion is with make with fundamental fairness. government, and the district court could promised filing a ment to consider mandatory Forney’s minimum not reduce motion; required must be to act in it Although motion. sentence without this fulfilling promise. As faith in this Forney’s present government did not assis- agreement, promise in a dis- agreed in to court as tance promise trict court ensure this is must plea agreement, this is inconse- omission case, this court fulfilled. district Forney’s mandatory minimum quential to authority judge that he was without believed sentence, only pursu- could be reduced inquire Forney’s allegations to into by to a ant declining to government acted in bad faith by the Accordingly, imposed the sentence file a 5K1.1 motion.1 The district court district court AFFIRMED. only authorized, judge was not but was obli- CLARK, dissenting: Judge, Senior Circuit inquiry. According- gated, to make such an ly, I would remand the case for district Respectfully, ease dissent. This turns upon interpretation court to decide whether act- parties Forney’s perhaps this While counsel 9. Both come to court unclean erroneous. preserved Forney objection, agree- hands because each has breached the could have better squarely placed plea agree- himself the bad faith issue before ment. The breached by explaining Forney's court that he had ful- presenting district not assistance at the obligations agreement, filled his under the sentencing proceeding, breached the 1497, Maj.Op. not. while the had at plea agreement by appealing government's judge recog- quoting Forney. The district court to decision not move for downward him; bad issue before nized that the based on his substantial assistance. This con- Forney's allega- address merits rather than purpose duct is a to the and function disservice tions, however, pointed judge district court plea agreements justice within the criminal language and conclud- system. We remind the another inquire authority ed that was without into he agreements plea agreement, of its which is declining government's motives for file the provide revisit he assistance should 1498, Maj.Op. quoting 5K1.1 motion. district assistance while incarcerated that warrant judge judge. Had district court under- pursuant a motion for reduction sentence stood that he was authorized to make such 35(b) Federal Rule Criminal Procedure so, certainly inquiry, done even would have subsequent substantial assistance. See Fed. counsel, prevent objection by absent an 35(b) ("The authority to R.Crim.P. court’s reduce Thus, Forney. subsequent attack collateral subsection includes the sentence necessary permit the district court remand is authority to a be- to reduce such sentence level e.g., inquiry. See Pullman- make low that established statute as minimum Swint, Standard v. 456 U.S. 102 S.Ct. sentence,”). (“where (1982) 72 L.Ed.2d 66 find- appears ings majority’s holding are of an erroneous view of 1. The in this case infirm because law, part upon finding proper"); v. Wain- rest at a remand is Scott least in (11th Cir.1983) ("dis- wright, did raise bad faith issue with sentencing. findings Maj.Op. an erroneous court at at 1500. To the trict court based remanded”). ordinarily finding, perception majority of the law are extent the makes such a and, declining so, ed bad faith file a 5K1.1 if whether the defendant has satis- ease. fied his obligations. contractual York, In Santobello v. New Supreme

I. Court plea stated that “when a rests in York, 257, significant In Santobello v. New 404 degree U.S. promise on a agree- or 262, 499, 495, (1971), prosecutor, 92 S.Ct. 30 ment of the L.Ed.2d 427 so that it can be part said to Supreme be of the Court held that inducement or “when con- sideration, promise such must any significant degree be fulfilled.” promise rests on a bargain represented by Where the agreement prosecutor, so that it can frustrated, the district court part said to be the inducement or positioned is best to determine whether consideration, promise ful must be specific performance, equitable re- Circuit, filled.” The Fourth in lief, withdrawal is called for. We Conner, (4th Cir.), v. 930 F.2d 1073 cert. perceive why — no reason principle this same denied, —, 112 U.S. S.Ct. apply respect should not to a condi- (1991), applied principle L.Ed.2d 440 promise § tional to make a 5K1.1 motion. government’s promise to file a 5K1.1 (citations omitted). 930 F.2d at 1075-76 motion. The issue Con provided: provide ner Mr. “Should Conner Conner, After the Fourth Circuit decided ..., substantial assistance then the United Supreme Court rendered its decision in — States will recommend” a sentence below the States, —, v. Wade United U.S. statutory (1992). minimum. 930 F.2d at 1074. S.Ct. 118 L.Ed.2d 524 Wade When the complained declined to file a had failed to 5K1.1 substantial-assistance motion at file a 5K1.1 sentencing proceed motion at his sentencing hearing, ing despite defendant’s the defen his substantial assistance. The Supreme grant Court charged dant declined to had Wade relief allege because he did not govern agreement. govern breached the ment’s refusal to that, file the motion was position based took the even in the face on an unconstitutional motive: “[W]e hold plea agreement, the decision whether that federal district authority courts have to file a 5K1.1 motion was within its sole prosecutor’s review a refusal to file a sub discretion; thus, government argued, stantial-assistance grant motion and to authority district court without to review remedy they if find the refusal was charge. the defendant’s The Fourth Circuit — based on an unconstitutional motive.” rejected argument: at-, U.S. 112 S.Ct. at 1843-44. plea agreements, In the context of courts Thus, proposition Wade stands for the that a readily acknowledged have that the courts authority court is without to review powerless are not in the face of a breach refusal to file a 5K1.1 mo plea agreement by allegation tion absent an of unconstitutional

motive; however, did not Wade involve a plea agreement. Indeed, specifically refer Circuit, The Fourth every as has circuit Conner, encing Supreme Santobello and issue, that has been faced with this has Court said:

upheld § against various constitu- 3553(e) § Wade concedes ... im- However, tional attacks. once the poses the condition of a Government mo- ment uses its 5K1.1 discretion as a bar- authority tion the district court’s gaining chip plea negotiation pro- depart, argue ... and he does other- cess, that discretion is circumscribed respect wise 5K1.1. He does not agreement. the terms of the The task of claim that the Government-motion re- the trial court is to quirement determine ... superseded in this case agreed ernment has in fact by any agreement to make the on the Government’s assistance, motion in return for substantial a substantial-assistance mo- behalf file (court Cir.1992) York, tion, v. New noted when cf. Santobello U.S. 495, 498-499, 257, 262-263, prosecutor, 92 S.Ct. leaves discretion (1971); deciding States Con L.Ed.2d 427 role is limited court’s whether (CA4), ner, 1075-1077 cert. prosecutor made determination in — denied, U.S.-, 112 S.Ct. 116 faith), denied, U.S.—, cert. 113 S.Ct. (1991). L.Ed.2d 440 123 L.Ed.2d 478 at-, at 1843 II. Wade, then, abrogate does not Conner. split the The issue that has the circuits is above, in By language quoted the Court the presented a one To what extent is here: principles announced Wade indicated gov- court authorized review the district to Santobello, principles in the announced in a motion ernment’s decision not file 5K1.1 Wade, promise in govern prosecutor’s a here, when, language as the Thus, file motion. agreement to a 5K1.1 agreement specifically reserves the Santobello, obligated a district court is the wheth- ernment sole discretion decide promise file government’s enforce the appropriate. er such a motion is On the one just obligated as is to enforce hand, that, the Second Circuit has held while promises plea agreements. in There other is language imparts prosecutorial such broad general dispute principle. no Since over discretion, limited Wade, this discretion is the every circuit that has addressed the implied obligation good deal- published opinion specif fair issue in a has either ically principles ing. Thus: decided or assumed applicable to announced in Santobello are cooperation agreement [WJhen a allows government’s promise in a conditional contingent motion substantial-assistance agreement e.g. to file a 5K1.1 motion. See government’s subjective on the evaluation 1483, 1486 Knights, 968 United States v. F.2d cooperate, efforts to a defendant’s (2d Cir.1992) (court subjected cooperation only court district review to deter- provisions plea agreement to Santobello prosecution whether its mine based Dixon, analysis); United States v. 998 F.2d impermissible on decision considerations Cir.1993) (court (4th held when 228 religion, such as race whether government promises to file 5K1.1 motion prosecutor made its in has determination cooperation, on conditional defendant’s dis good faith. power “the trict court has review the Knights, v. F.2d 1487 United States 968 at just government’s refusal make quotations added and internal any alleged as it breach of the omitted). Likewise, Tenth Circuit Watson, agreement”); v. United States 988 plea agreement held: “When leaves discre (5th Cir.1993) (court F.2d held that 553 prosecutor, tion court’s role is authority prose had enforce prosecutor deciding limited to whether the motion), peti promise cutor’s to file a 5K1.1 cert, good has made its faith.” determination 29, 1993); (July tion United filed Robinson, v. F.2d United States 978 at 1569. (7th Cir.) Burrell, States v. 963 F.2d 985 hand, language On the the face (court noted that is defendant entitled to placing government, discretion with prosecutor “promises ... make relief Eighth Seventh and Circuits have declined plea, exchange guilty 5K1.1 motion in for a review, permissive “good faith” even under a bargain”), de and then on the cert. welshes standard, government’s decision not to nied, —, 121 (1992); file 5K1.1 motion. United States v. Bur- L.Ed.2d Rom rell, 985; Cir.1992) (in (8th F.2d at United States v. Rom sey, 975 F.2d sey, For relief, explained reasons denying part court relied below, “carefully-worded plea I would follow Second and Tenth [that] preserved Circuits. would hold that the broad discre not to discretion motion”); granted language file a tion substantial assistance (10th Robinson, 1554, 1569 plea in this States v. one implied obligation case is limited of The provision in this case is dealing; good accordingly, one-sided; faith and fair obligated to file district court is authorized to review only decides, a 5K1.1 motion if it in its sole government’s decision not to file a 5K1.1 discretion, assistance was sat- motion to ensure that the decision was made isfactory. (often agreements Such one-sided good faith. “promises called personal conditional on sat- isfaction”) Santobello, provided are valid Supreme Court noted contracts duty good many advantages disposing dealing of criminal faith and fair imposed charges through plea negotiations parties. and then “Under interpretation “However, promise said: all of these considerations personal [of a conditional on satisfac- presuppose securing agreement tion], fairness in judgment the exercise of must be in prosecutor.” between an accused and a duty accordance faith and general- U.S. at 92 S.Ct. at 498. Courts dealing, reason, fair agree- and for this ly interpret plea agreements according to illusory.” ment is not Id. at 228 cmt. a. principles borrowed from contract law. majority The impose upon declines to Jefferies, v. United States 908 F.2d government duty good of faith and fair (11th Cir.1990). Because of the necessi- dealing. holding This only is not inconsistent ty insuring defendant, of “fairness” to the contracts; with the law of it flies in the face however, government courts hold the to a obligation of the federal court’s to ensure higher applied standard than would essence, plea proceedings. fairness in dispute. example, civil contract For “‘[a] majority exchange holds for the de- appropriate is not an context promise cooperate fendant’s to thereby government rigidly for the to resort to a place family danger himself and his approach literal in the construction of the reprisal, government promises absolutely Arnett, language.’” In re 804 F.2d nothing. majority The will not require even (11th Cir.1986) (quoting government good to make a faith evalua- Bowler, (7th Cir.1978)). 585 F.2d tion of whether the cooperation defendant’s Thus, accept “hyper- a court should not warrants a 5K1.1 motion. majority’s reading” plea agreement. technical of a Jef- interpretation of the provision feries, 908 F.2d at In interpreting 1523. provision illusory. renders that We are obli- plea agreement, a court must look to “the gated interpret plea agreement in accor- understanding reasonable at the defendant’s ” dance with “the defendant’s un- reasonable plea. time he entered the United States v. derstanding.” utterly I fail to understand Rewis, (11th Cir.1992) (em- 969 F.2d majority how the can conclude that its inter- added); Arnett, phasis see also 804 F.2d at pretation cooperation of the com- Any ambiguous 1202-03. terms in a ports with “the defendant’s reasonable un- against must be construed derstanding.” In United States v. Hernan- Jefferies, 908 F.2d at 1523. (5th dez, Cir.1993), Finally, requires this circuit agreement provided that “the strictly plea agree- “adhere to the terms of may make a motion for Arnett, departure downward ments.” 804 F.2d at 1204. The ra- sentencing.” at .Remanding Id. at 63. tionale for these agree- rules is “that a determine, case for the district court light ment must be construed in fact among things, meaning that it the word constitutes a waiver of ‘substantial “may” plea agreement, rights’ context of the requiring constitutional that the de- the Fifth Circuit said: adequately fendant be warned of the conse- quences plea.” Jefferies, of the 908 F.2d at impossible find it We difficult any hopes believe that defendant who principles,

Under traditional receive motion for a downward contract “[e]very imposes knowingly contract party agree- each would enter into a duty dealing fair ment in in its which the retains un- performance and its enforcement.” Restate- fettered discretion to make or not to make (Second) Contracts even if the defendant should evidentiary hearing is matter formal assistance. provide substantial

indisputably case, discretion of the dis- lies within the sound of this On remand legalistic trict court. make the heard to not be should merely using the word argument that (citation at and inter- Knights, 968 F.2d to exercise free “may” the omitted). remand quotations nal discretion whether the prosecutor’s this case with instructions departure. downward motion for make the beginning by re- procedure, court follow admirably candid concessions Given the explain refusal quiring its argument, in oral this court made to Forney’s As case. file a hereafter insist government cannot faith, showing I would Forney’s of bad knowingly intentionally Hernandez al- that there is note for the district court “bargain.” illusory into such an walked ready in the record evidence any de- Frankly, are incredulous that we faith, namely, ment’s bad consciously make such fendant would extent present failure to extremely obviously deal absent some bad it to the cooperation. I would leave plead than stand compelling need to rather evi- to determine whether this district court trial. faith, combined with the dence bad explanation and other evi-

ernment’s presented Forney, is dence sufficient remand deter- must] court on [district hearing require the bad faith issue. parties concern- mine the intentions “may” in ing of the word the use IV. though we have serious —even Judge passage I conclude with a party for that either meant doubts Highsmith’s opinion in v. government to unbridled discretion retain (S.D.Fla.1992). Ganz, F.Supp. The by using word. merely that cooperation provision 65-66. Ganz, case, reserved in like one in princi- contract apply I traditional would to the sole discretion impose upon the ples and appropri- a motion decide whether duty dealing. fair good faith and decided, Highsmith a hear- Judge ate. after cooperation agreement hold a re- when ing, government had acted in bad government the discretion tains for the sole declining in to faith file a 5K1.1 motion ap- to whether a 5K1.1 motion determine government to file the motion. ordered the propriate, district court authorized response to the government’s decision to ensure review the reconsideration, argued in it good in faith. it was rendered upon Judge Highsmith imposing in had erred faith, obligation act good it a contractual III. Judge Highsmith said: developed proce- The Circuit has Second attempts government’s renewed when dure a district court follow “obligation prompt skirt the contract” alleges defendant repeat expand its discus- the Court failing faith a 5K1.1 acted in to file bad legal per- sovereign’s duty to sion of the motion: obligation con- specified form of that provides a better govern- tract. No document a defendant claims that the

When In- refusing starting point than our Declaration of acted in bad faith in ment has we, dependence, people, com- departure, gov- where as for a downward move by government that de- ex- mitted ourselves to a allegation rebut this ernment “just powers from refusing depart. rives its the consent plaining its reasons for governed.” Inde- showing The Declaration must then make a (U.S. 1776). para. 3 The consent pendence of hear- trigger of bad faith some form by phi- theory government, expounded ing on that issue.... [W]hether Jean losophers Locke and merely argument or include a John oral should Jacques adopted Rousseau and our fathers,

founding supports concept of a YANAKAKIS; Basil Leesfield; Ira H. people entrusted Roger Blackburn, L. Leesfield & d/b/a carrying on the affairs common to us all: Blackburn, P.A., a Florida Professional Assoc., Plaintiffs-Appellees, Government, What is but a Trust com- All, Most, One, mitted or the or a Few, upon who are to attend the Affairs CHANDRIS, S.A., Foreign Corp.; Chan All, every may, one dris, Inc., Lines, Chandris Cruise d/b/a Security, more attend his own? Foreign Corporation, Defendants-Appel Gordon, Letter, Thomas Cato’s No. lants, July reprinted 1 Phillip B. Kur- Lerner, Ralph land & The Founders’ Con- Miliaresis, Matrona Nikolas stitution, at 46 Miliaresis, Defendants, people, As the trustee Transport Services, Inc., Mutual higher carry- ment is held to a standard Foreign Corporation, duties, including out our common Defendant-Appellant. prosecution higher of crimes. This stan- requires sovereign perform dard its No. 91-5542. contractual with a sharpened duties sense Appeals, United States Court of fair dealing. The fact Eleventh Circuit. party that the other to the contract is a criminal defendant does not alter the Dec. duty. ernment’s Hugo accurately

Justice L. Black por-

trayed duty para- this stricter when he

phrased Justice Oliver Wendel Holmes’

earlier statement that “Men must turn

square they corners when deal with the Island,

Government.” Rock A & L.R. Co. States, 141, 143,

v. United 254 U.S. 55, 56, 65 L.Ed. 188 Justice

Black stated: good

“It is no less morals and law

that the square Government should turn dealing people

corners than people square should turn cor- dealing

ners in with their Government.” States, Regis Paper

St. Co. v. United 208, 229, 289, 301, 82 S.Ct. (1961) (Black,

L.Ed.2d 240 dissenting). J.

Gam, F.Supp. majority’s at 1575. The

holding in this case flies in the face of these principles.

fundamental Accordingly, I dis-

sent.

Case Details

Case Name: United States v. Mark Forney

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 27, 1993

Citation: 9 F.3d 1492

Docket Number: 92-2220

Court Abbreviation: 11th Cir.