                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1900
                                  ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Northern District of Iowa.
Christopher Mark Davis,               *
                                      *    [TO BE PUBLISHED]
            Defendant-Appellant.      *
                                 ___________

                             Submitted: December 14, 2004
                                Filed: February 11, 2005
                                 ___________

Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.
                          ___________

PER CURIAM.

       From 1998 to October of 2002, Christopher Davis was involved in the
distribution of methamphetamine with David Hinders and Jesus “Jay” Gonzalez. In
October of 2002, Davis chose to cooperate with law enforcement authorities. Before
his indictment for distribution and conspiracy, Davis gave a post-Miranda statement
to federal agents in North Dakota that implicated himself, Hinders, and Gonzalez in
drug trafficking. The three of them were indicted on December 17, 2002, for
conspiracy to distribute methamphetamine.
        In January of 2003, Davis was arraigned on the indictment for conspiracy to
distribute methamphetamine. After Davis’s arraignment, a detention hearing was
scheduled. Assistant United States Attorney Jamie Bowers (AUSA Bowers) feared
that if Davis were released as a result of the detention hearing, he would return to
drug abuse and potentially disappear, thus mitigating his potential value as a witness.
Before the beginning of the detention hearing, AUSA Bowers told Davis and his
lawyer that if they wished to go forward with the detention hearing, he would view
their participation as non-cooperation. As a result of AUSA Bowers’s statement,
Davis believed that if he went forward with the detention hearing, the government
would not file a United States Sentencing Guidelines (U.S.S.G.) § 5K1.1 motion for
a downward departure based upon substantial assistance on Davis’s behalf. Davis
chose not to have a detention hearing.

       In March of 2003, Davis proffered information about his activities. Bowers
was particularly interested in any information Davis could give about Gonzalez and
Hinders. Although Davis and his lawyer were apprehensive about revealing
information about Gonzalez and Hinders (because Davis was also involved in their
activities), Davis eventually provided information in hope of receiving a downward
departure for substantial assistance. On March 26, 2003, Davis signed a plea
agreement. Paragraph nine of the plea agreement stated that:

      Nothing in this agreement requires the government to accept any
      cooperation or assistance that the defendant may offer or propose. The
      decision whether and how to use any information and/or cooperation
      that the defendant provides (if at all) is in the exclusive discretion of the
      United States Attorney’s Office.

Paragraph fifteen of the plea agreement stated that:

      It is understood and agreed that no motion for downward departure shall
      be made, under any circumstances, unless the defendant’s cooperation
      is deemed “substantial” by the United States Attorney’s Office and

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      defendant has fully complied with all provisions of this plea agreement.
      The United States has made no promise, implied or otherwise, that a
      departure motion will be made or that defendant will be granted a
      “departure” for “substantial assistance.” Further, no promise has been
      made that a motion will be made for departure even if defendant
      complies with the terms of this agreement in all respects, but has not, in
      the assessment of the United States Attorney’s Office, provided
      “substantial assistance.”

Both AUSA Bowers and Davis signed the plea agreement. After its signing, Davis
requested a detention hearing so he could be released to Belcourt, North Dakota, in
order to cooperate with an officer there. Although AUSA Bowers remained opposed
to his release because he feared that Davis would return to drug abuse or disappear,
AUSA Bowers told the district judge that Davis’s request for a detention hearing
would not affect whether or not the U.S. Attorney’s Office would offer a motion for
substantial assistance.

       Davis pled guilty in July of 2003. His sentencing hearing was scheduled for
October 17, 2003. Prior to the sentencing date, both parties assumed that Davis’s
criminal history would not make him eligible for “safety valve” relief under U.S.S.G.
§ 5C1.2. However, once the final draft of Davis’s Presentence Report (PSR) was
revealed, Davis and AUSA Bowers discovered that Davis was in fact “safety valve”
eligible. His sentence would thus be lower than what was originally expected. In lieu
of the lower sentence, AUSA Bowers made a motion for upward departure pursuant
to U.S.S.G. § 4A1.3, which was denied at sentencing by the district court.

      At the sentencing hearing, AUSA Bowers did not file a motion for a
downward departure based upon substantial assistance. Davis filed a motion to
compel the government to file a § 5K1.1 motion for substantial assistance. Davis
argued that AUSA Bowers would have filed a motion for substantial assistance, but
refused to do so because Bowers was opposed to Davis’s request for a detention
hearing. Davis also believed that AUSA Bowers refused to file a motion for

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substantial assistance after he discovered that Davis was eligible for “safety valve”
relief. Davis argued that AUSA Bowers acted in bad faith by refusing to file a motion
for substantial assistance, and claimed that the information he gave federal officers
was in fact substantially helpful in getting Gonzalez and Hinders to plead guilty to
criminal charges.

        On October 28, 2003, AUSA Bowers filed the Government’s Resistance to
Defendant’s Motion to Compel Filing of a § 5K1.1 Motion. The government argued
that an evidentiary hearing and discovery on this issue was not justified because
Davis did not make a substantial threshold showing that AUSA Bowers’s refusal to
file a substantial assistance motion was motivated by bad faith. AUSA Bowers stated
that Davis’s assistance, although minimally helpful and corroborative, did not
constitute substantial assistance. AUSA Bowers also argued that the information
given by Davis was untimely–by the time Davis proffered his statements, information
from other sources was enough to force Gonzalez and Hinders to plead guilty.

       Over the government’s objection, the district court1 found that Davis was
entitled to limited discovery on the issue of whether the government acted in bad faith
by refusing to file a substantial assistance motion. The district court held seven
hearings on the issue. The district court ordered the government to produce
transcripts of testimony from individuals which led to the indictment of Gonzalez and
Hinders, and also ordered the government to provide factual information so it could
determine the extent and value of the information the government received from other
sources on Hinders and Gonzalez. The court conducted an in camera review of these
materials.




      1
      The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.

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       In February of 2004, after reviewing the information, the district court denied
Davis’s motion to compel the government to file a substantial assistance motion. The
district court found that the information supplied by the government showed that all
of the information used to prosecute Hinders and Gonzalez was in the government’s
possession prior to Davis’s post-Miranda statement in October of 2002. Davis
renewed his motion at his sentencing hearing in April of 2004, but the district court
again denied the motion. Davis was sentenced to eighty-seven months in prison. On
appeal, Davis argues that the district court should have held an evidentiary hearing
on whether the government acted in bad faith, and whether his assistance should be
deemed “substantial.”

       “Absent a motion by the government, a district court generally lacks the
authority to grant a downward departure based on a defendant’s substantial
assistance.” United States v. Wolf, 270 F.3d 1188, 1190 (8th Cir. 2001). If the
government expressly reserves discretion through a plea agreement or other
instrument, courts “will perform only a limited review of the decision not to file a
motion for downward departure for substantial assistance.” United States v. Hardy,
325 F.3d 994, 996 (8th Cir. 2003).

       The exception to the otherwise broad discretion of the government to file a
motion for substantial assistance is triggered when the government’s refusal was
“irrational, in bad faith, or based on an unconstitutional motive.” United States v.
Licona-Lopez, 163 F.3d 1040, 1042 (8th Cir. 1998). In order to show that the
government’s refusal was irrational, in bad faith, or based upon an unconstitutional
motive, the defendant must make a “substantial threshold showing”–Davis must
present evidence tending to show that the decision in the case was not rationally
related to a legitimate government interest. Wade v. United States, 504 U.S. 181, 186
(1992); United States v. Romsey, 975 F.2d 556, 558 (8th Cir. 1992). After a
substantial threshold showing of irrationality, bad faith, or unconstitutionality is
made, the defendant is entitled to discovery or an evidentiary hearing. See Wade, 504

                                         -5-
U.S. at 186 (“[A] defendant has no right to discovery or an evidentiary hearing unless
he makes a ‘substantial threshold showing.’”).

       In the instant case, we find that assuming Davis made a sufficient threshold
showing to justify the limited discovery ordered by the district court, the record at this
stage of the proceedings does not show that Davis made a substantial threshold
showing of bad faith, unconstitutional motives, or irrationality. The plea agreement
between the government and Davis made no guarantee that a motion for substantial
assistance would be filed and explicitly stated that the nature of Davis’s assistance
would be determined after all the evidence was gathered, considered, and evaluated
by the United States Attorney’s Office. Although AUSA Bowers informed Davis that
relevant information given by him may be considered substantial assistance, AUSA
Bowers also made no guarantee that a motion for substantial assistance would be
filed. There is also no indication that the government refused to file a motion for
substantial assistance because Davis requested a detention hearing or because Davis
was eligible for safety-valve relief.

       This conclusion is bolstered by the fact that the district court granted a
discovery order to determine whether or not AUSA Bowers acted in bad faith; the
district court also reviewed the government’s information to determine whether
Davis’s testimony constituted substantial assistance.2 The government provided the
district court with the information in its possession prior to Davis’s statements as well
as the testimony of AUSA Bowers, and the district court conducted an in camera


      2
       We also note that once the defendant makes a substantial threshold showing,
the defendant is entitled to an evidentiary hearing or discovery. As Wade
demonstrates, a defendant must make a substantial threshold showing of bad faith,
unconstitutional motives, or irrationality. Wade, 504 U.S. at 186. Once this
threshold finding is made, however, the defendant is entitled to discovery or an
evidentiary hearing. Id. The type of discovery granted or the extent of the
evidentiary hearing is within the discretion of the district court.

                                           -6-
review of the materials. Based on the information given by the government, the
district court found that the information given by Davis was duplicative, untimely,
and not substantial.

       As such, it was the nature of Davis’s testimony, not the bad faith or irrationality
of the government, that led to the finding that Davis’s testimony was not substantial.
Given that the information Davis provided was untimely, duplicative, and the
government did not waver from its position that it retained the sole discretion to
determine whether Davis’s assistance constituted substantial assistance, we find that
Davis is not entitled to an evidentiary hearing regarding a motion for substantial
assistance, or an order compelling the government to file such a motion.

      The ruling of the district court is AFFIRMED.

COLLOTON, Circuit Judge, concurring.

       I concur in the opinion of the court on the understanding that when the opinion
refers to a potential showing of “bad faith” by the government that might justify
discovery or an order compelling a substantial-assistance motion, ante, at 5-6, the
court means nothing more than a showing of an “unconstitutional motive” or a
decision “not rationally related to any legitimate government end,” as described by
the Supreme Court in Wade v. United States, 504 U.S. 181, 185-86 (1992). Although
the petitioner in Wade asserted that the government acted “in bad faith” when it
refused to file a substantial-assistance motion, his claim was based on an allegation
that the decision was not “rationally related to any legitimate state objective,” and the
Supreme Court responded only by inquiring whether the government’s decision was
“rationally related to any legitimate Government end.” Id. at 186. Our court recently
clarified that “bad faith” is not an independent constitutional standard to be applied
in this context. United States v. Moeller, 383 F.3d 710, 712-13 (8th Cir. 2004).



                                           -7-
        While our court sometimes has referred to “bad faith” as a standard applicable
in reviewing the government’s refusal to file a substantial-assistance motion, e.g.,
United States v. Licona-Lopez, 163 F.3d 1040, 1042 (8th Cir. 1998), my own view
is that it would be best to discontinue the use of this phraseology in light of Moeller’s
clarification of Wade. By adding “bad faith” to the discussion of constitutional
standards set by the Supreme Court, we risk confusing lawyers and judges who must
apply the standards that govern this type of motion.
                          ______________________________




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