              Case: 17-13790    Date Filed: 06/15/2018   Page: 1 of 6


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-13790
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:13-cr-60258-WJZ-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                      versus

MICHAEL ALI BRYANT, SR.,

                                                             Defendant-Appellant.

                          ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                         ________________________

                                 (June 15, 2018)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Michael Ali Bryant, Sr., appeals the district court’s denial of his motion to

compel the government to file a Fed. R. Crim. P. 35 motion to reduce his sentence.
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On appeal, Bryant argues that: (1) the government negotiated in bad faith when it

told him that it would file a Rule 35 motion if he testified truthfully at a trial and

then considered factors beyond his testimony when deciding not to file a Rule 35

motion; and (2) the government’s decision not to file a Rule 35 motion was not

rationally related to the legitimate government end of promoting truthful testimony

because there was no empirical evidence showing that he testified untruthfully.

After careful review, we affirm.

      We review de novo whether the district court may compel the government to

make a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993) (reviewing de novo a district court’s refusal to depart

downward in the absence of a U.S.S.G. § 5K1.1 motion by the government);

United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998) (reviewing de

novo the question of whether the government has breached a plea agreement).

      The government has a power, but not a duty, to file a substantial assistance

motion. United States v. Dorsey, 554 F.3d 958, 960-61 (11th Cir. 2009). The

prosecutorial discretion to refuse to file a substantial assistance motion is subject to

judicial review only if it is based on an unconstitutional motive, such as the

defendant’s race or religion, or is not rationally related to any legitimate

government end. Wade v. United States, 504 U.S. 181, 185-86 (1992) (discussing

motions under § 5K1.1); see United States v. McNeese, 547 F.3d 1307, 1309 (11th


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Cir. 2008) (extending Wade to Rule 35(b) motions). Judicial review is appropriate

where the defendant alleged a constitutionally impermissible motive and made a

substantial showing that the government’s refusal to file a substantial assistance

motion is because of that motive. Dorsey, 554 F.3d at 961. Consequently, when a

defendant merely claims he provided substantial assistance or makes generalized

allegations of improper motive, he is not entitled to a remedy or even to an

evidentiary hearing. Wade, 504 U.S. at 185-86. Thus, for example, in Wade, the

Supreme Court said that the defendant had not made an adequate claim that the

government’s decision was not rationally related to legitimate ends. Id. at 186-87.

The Court held that it was necessary, but not sufficient, for a defendant to show he

in fact provided assistance, and that a defendant claiming that the government

acted in bad faith must point to specific facts showing that the government’s

decision was not rationally related to legitimate government ends. Id.

      We’ve noted that the government’s decision not to file a substantial

assistance motion is not reviewable for arbitrariness or bad faith where the

government merely promised to consider filing such a motion. See Forney, 9 F.3d

at 1502 & n.5. But we’ve also recognized that there may be a bad faith exception

where the government has induced a defendant to plead guilty based on a promise

to file, rather than to consider filing, a substantial assistance motion. See id. at

1502 n.5. Neither we nor the Supreme Court has directly addressed when the


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government’s decision not to file a Rule 35 motion would not be rationally related

to legitimate government ends.

       Here, Bryant argues that the government acted in bad faith when it said in an

e-mail exchange that his truthful testimony to introduce a videotape -- which

showed him selling names and Social Security numbers -- would be sufficient to

warrant a Rule 35 motion, but then decided not to move based on its dissatisfaction

with his truthful testimony. He also claims that the government’s decision not to

move based on its dissatisfaction with his testimony was not rationally related to

the legitimate government end of promoting truthful testimony. Bryant focuses on

the lack of empirical support for the government’s proffered explanation for its

decision, specifically noting that the magistrate judge credited his testimony as

truthful.   But this finding suggests only that the government was objectively

incorrect in stating that Bryant testified untruthfully, not that the government

subjectively did not believe that his testimony was untruthful or that the

government actually acted with some other improper motivation. Notably, the

magistrate judge here did not find that the government’s proffered reason for not

filing a Rule 35 motion was pretextual. Instead, when the magistrate judge found

that the government’s belief that Bryant testified untruthfully was based on factors

beyond his trial testimony, it said it was based at least in part on its dissatisfaction

with Bryant’s prior cooperation.       Thus, as the district court determined, the


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government’s belief was rational in light of those other factors -- including

Bryant’s previous conduct when cooperating with the government, his history as a

fraudster, his phone records, and the inconsistencies between his PSI and his trial

testimony -- all of which arguably were indicia of his reliability of as a witness.

       Further, Bryant has not presented any affirmative evidence that the

government acted with an improper motive, instead relying on the fact that there

was no empirical evidence that he testified untruthfully. 1                          Because the

government’s decision was based on factors related to Bryant’s reliability as a

cooperating witness, the government’s motivation was rationally related to the

government’s undisputedly legitimate interest in promoting truthful testimony.

       As for his reliance on United States v. Brumlik, 947 F.2d 912 (11th Cir.

1991), and Forney, we did not review the defendants’ arguments in those cases that

the government had acted in bad faith by failing to make a substantial assistance

motion at sentencing, because the defendants had not raised this argument in the

district court. Forney, 9 F.3d at 1500; Brumlik, 947 F.2d at 913-14. Indeed,

Brumlik did not discuss at all the potential viability of a preserved bad faith

argument. See 947 F.2d at 913-14. As for the panel in Forney, it noted in dicta

1
         Bryant has not alleged that the government’s decision not to file a substantial assistance
motion was based on his membership in a protected class, such as a race or religion. Further,
Bryant does not argue that promoting truthful testimony is not a legitimate government end. He
also does not argue that the government’s proffered reason for its decision -- that it believed that
his testimony was untruthful -- was not rationally related to the legitimate end of promoting
truthful testimony. Bryant further concedes that the government did not create a new, separate
contractual obligation apart from his plea agreement in the e-mail exchange with his counsel.
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that judicial review only was appropriate to review allegations of unconstitutional

motivations and that mere allegations of bad faith were insufficient to warrant

review. 9 F.3d at 1501-02 & n.5. Bryant’s bad faith argument is not premised on

an unconstitutional motive such as race or religion or a government promise to file

a Rule 35 motion in order to induce a guilty plea. See id. Thus, Bryant is incorrect

in relying on these cases to argue that his claim that the government acted in bad

faith is subject to judicial review.

      Accordingly, the district court did not err in determining that Bryant was not

entitled to an order compelling the government to file a Rule 35 motion.

      AFFIRMED.




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