                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-2612
IN THE MATTER OF:
   UNITED STATES OF AMERICA,
                                                       Petitioner.

                        ____________
      Petition for a Writ of Mandamus to the United States
       District Court for the Southern District of Illinois.
        No. 06-CR-40024-JPG—J. Phil Gilbert, Judge.
                        ____________
 SUBMITTED SEPTEMBER 5, 2007—DECIDED OCTOBER 1, 2007
                        ____________


  Before EASTERBROOK, Chief Judge, and POSNER and
RIPPLE, Circuit Judges.
  EASTERBROOK, Chief Judge. Katie Heath was charged by
indictment with making and distributing methamphet-
amine, in violation of 21 U.S.C. §841(a)(1). Because she
is a repeat offender, the statutory minimum sentence of
20 years lies above the Guideline range of 135 to 168
months. See 21 U.S.C. §841(b)(1)(A)(viii), §851. Heath
agreed to plead guilty; in return, the prosecutor promised
that, if she provided enough information helpful in the
prosecution of other persons, a motion would be filed under
U.S.S.G. §5K1.1 so that the judge could give a sentence
below 240 months. See also 18 U.S.C. §3553(a)(3), 28
U.S.C. §994(n). The agreement adds that whether Heath
has provided enough useful assistance is an issue commit-
ted to the prosecutor’s decision.
2                                            No. 07-2612

   A presentence report was completed before the hearing
at which Heath attempted to plead guilty. (This is how
we know that the Guidelines suggest a sentence between
135 and 168 months.) Yet instead of accepting or reject-
ing Heath’s plea, the district court decided to postpone
decision until after Heath had provided whatever informa-
tion and assistance she could render and the prosecutor
had revealed whether a motion under §5K1.1 would be
filed. The United States moved for reconsideration,
observing that the process of cooperation, including
Heath’s testimony in other cases, might last a year or
more. Until it has been accepted, a plea may be withdrawn
for any or no reason. See Fed. R. Crim. P. 11(d)(1). The
prosecutor expressed concern that Heath would wait
until the time provided by the Speedy Trial Act, 18 U.S.C.
§3161, had run, withdraw her offer to plead guilty, and
move for dismissal of the charge—for a district court’s
desire to wait until cooperation has been completed is not
among the reasons that the Act allows for deferring trial.
  This motion led the district judge to insist that the
United States provide all information that the judge
thought necessary to make an immediate decision about
Heath’s eligibility for favorable treatment under §5K1.1.
The judge propounded this set of interrogatories to the
United States Attorney:
    1. What are the names of the case agents that
       are interviewing the defendant with respect to
       her cooperation on other investigations?
    2. What is the status of the other investigations
       referred to by the government including:
       a. The names of the individual or individ-
          uals that are the targets of these in-
          vestigations?
       b. Whether these will be federal or state
          prosecutions, and if state prosecutions,
No. 07-2612                                              3

            in what county will the indictment or
            information be filed?
       c.   Has the defendant provided law en-
            forcement with oral or written state-
            ments regarding her information on
            the targets of these investigation[s]?
       d. Have the defendant’s statements been
          thoroughly truthful, complete, and
          reliable?
       e.   When does the government expect
            criminal charges to be filed against the
            targets of these investigations for
            which the defendant is providing sub-
            stantial assistance?
       f.   Does the government anticipate that
            this defendant will be called to testify
            in any current or future cases on be-
            half of the government, and if so,
            which ones?
   3. To date, has the defendant breached her plea
      agreement with the government?
   4. Does the government or its agents plan on
      interviewing the defendant again with respect
      to her cooperation and if so, when?
   5. Assuming continued cooperation by this defen-
      dant, in light of the answers above, when does
      the government believe it will be in a position
      to make the determination whether or not [to]
      file a substantial assistance motion?
   6. Does the government have any reason to
      believe that this defendant will not continue to
      cooperate with the government even if it files
      a substantial assistance motion before sentenc-
      ing? If so, why?
4                                             No. 07-2612

    7. Where § 5K1.1 motions for downward depar-
       ture are designed to consider a defendant’s
       presentence cooperation and Rule 35(b) mo-
       tions for downward departure are designed to
       consider a defendant’s post-sentence coopera-
       tion, what is the government’s rational basis
       for failing to file a § 5K1.1 motion for down-
       ward departure based on the defendant’s
       presentence cooperation at this time?
The district judge’s demand for this information, before
he would act on the motion for reconsideration, led the
United States to file a petition for a writ of mandamus.
  Although the district judge has expressed concern that,
without knowing the answers to the interrogatories, Heath
cannot make an informed decision to plead guilty, Heath
herself has not expressed any such reservation. She
appears to believe that she has struck the best bargain
available, even if—as the judge fears—the prosecutor
will not value her assistance highly enough to reward it
with a motion under §5K1.1.
  If the prosecutor should act unreasonably in failing to
make a §5K1.1 motion after Heath’s cooperation has been
completed, that would provide “a fair and just reason” for
her to withdraw the plea. See Fed. R. Crim. P. 11(d)(2)(B).
If the prosecutor should act so unreasonably that the
decision not to make a motion lacks even a rational
basis, the court might be entitled to proceed as if such a
motion had been made. See Wade v. United States, 504
U.S. 181 (1992). The existence of these options after the
prosecutor had made a decision makes it unnecessary to
postpone action on a guilty plea. It is inappropriate for a
court to presume that the prosecutor will act unreason-
ably. What is more, a judicial effort to supervise the
process of reaching a decision intrudes impermissibly
into the activities of the Executive Branch of government.
No. 07-2612                                               5

   Judges in the United States resolve the parties’ disputes
rather than initiate their own factual inquiries on issues
that the parties have not contested; that’s a major differ-
ence between adversarial and inquisitorial systems.
Although judges sometimes may reject plea agreements
with which the parties are satisfied, ordinarily they do so
to protect the Judicial Branch’s interests. For example,
although Fed. R. Crim. P. 11(c)(1)(C) allows the prosecutor
and the defendant to agree on a sentence, Rule 11(c)(5)
allows the judge to reject the bargain if the agreed sen-
tence would be one the judge deems inappropriate. Simi-
larly, a judge may reject a proposed consent decree in civil
litigation if implementing the decree would create a
drain on judicial resources or place the judiciary in an
inappropriate position vis-à-vis other governmental bodies.
Sometimes it makes sense to postpone accepting a guilty
plea when the existing record does not permit the judge to
make an intelligent decision under Rule 11(c)(5), or when
the potential sentence is so uncertain that a motion to
withdraw the plea under Rule 11(d)(2)(B) is a significant
prospect until the presentence report has been prepared.
See, e.g., United States v. Shaker, 279 F.3d 494, 497 (7th
Cir. 2002). But in none of these situations does (or may) a
court use discretion to reject a plea, or postpone decision,
as a means to supervise the internal operations of an-
other branch of the national government.
  The judge’s interrogatories seek the names of case agents
and witnesses, ask the prosecutor to disclose the status of
ongoing investigations, and direct the prosecutor to reveal
tentative conclusions such as whether Heath has so far
provided “enough” assistance and how the prosecutor
thinks that Heath would react to a lower sentence imposed
before her cooperation has been completed. These are
questions a United States Attorney might well ask of an
Assistant United States Attorney; they are not appropriate
questions for the Judicial Branch to ask of the Executive
6                                               No. 07-2612

Branch. Multiple privileges cover the internal delibera-
tions of the Executive Branch, just as they do for the
Judicial Branch’s internal deliberations. As we explained
in In re United States, 398 F.3d 615, 618 (7th Cir. 2005),
“[h]ow the United States reaches its litigating positions,
who said what to whom within the prosecutor’s office, and
so on, are for the Attorney General and the President to
evaluate. The Judicial Branch is limited to assessing
counsel’s public deeds.” See also, e.g., Cheney v. United
States District Court, 542 U.S. 367 (2004); United States v.
Zingsheim, 384 F.3d 867 (7th Cir. 2004).
  The Supreme Court held in Wade that a prosecutor’s
decision not to file a motion under §5K1.1 should be
treated just like the selection of a charge or a decision not
to engage in plea negotiations. Whether to reward a
given defendant’s cooperation depends on how much
assistance the prosecution needs; defendants may compete
to supply assistance, and a reduced sentence is a price
that the prosecutor pays. How steep the price may be
depends on conditions of supply and demand, which
prosecutors and law-enforcement agencies observe but
judges do not. See also Melendez v. United States, 518 U.S.
120 (1996) (a prosecutor is entitled to make separate
decisions about whether a defendant’s substantial assis-
tance justifies a sentence below the Guidelines and below
a statutory minimum; the prosecutor may invite one kind
of departure while withholding authority for the other).
Rewards for assistance may be supplied not only
through motions under §5K1.1 but also via decisions not
to prosecute at all, or to dismiss charges after they have
been filed. All of these decisions are similar in kind and
therefore, Wade and Melendez conclude, are covered by
the same legal rule that curtails judicial oversight of
decisions to file or dismiss charges.
  Exercises of prosecutorial discretion may be overseen
only to ensure that the prosecutor does not violate the
No. 07-2612                                               7

Constitution or some other rule of positive law. See Wayte
v. United States, 470 U.S. 598 (1985); In re United States,
345 F.3d 450 (7th Cir. 2003) (a judge must dismiss a
charge on the prosecutor’s motion as part of a plea bar-
gain unless the bargain violates a rule of law). The Court
added in United States v. Armstrong, 517 U.S. 456 (1996),
that judicial review of a prosecutor’s discretionary choices
is permissible only after the defendant has made a prima
facie showing that impermissible considerations such as
race have affected the prosecutor’s decision. Discovery
into the prosecutor’s decision-making processes may follow,
but must never precede, such a showing. United States v.
Bass, 536 U.S. 862 (2002). And, if the prosecutor declines
to comply, the remedy is to dismiss the indictment rather
than hold an inquest.
  Heath has not made a prima facie demonstration that
the prosecutor has violated the Constitution or any statute
or treaty. She has not even asserted this. (Recall that she
wants to plead guilty on the plea agreement’s terms; the
judge, not the defendant, kicked off this proceeding.) No
such claim would be tenable, because the prosecutor has
yet to reach a decision. It follows that there is no basis
for an inquiry of any kind, let alone for access to the
Executive Branch’s ongoing deliberations.
   Every defendant contemplating a step as momentous
as pleading guilty is entitled to enough information to
make an intelligent decision. See United States v. O’Neill,
437 F.3d 654 (7th Cir. 2006). The district judge observed
that motions under §5K1.1 are significantly less frequent
in his jurisdiction than in the federal system as a
whole—about 5% of all cases in the Southern District of
Illinois, as opposed to 14.4% across the nation. See United
States Sentencing Commission, 2006 Annual Report 36. It
is entirely appropriate for a judge to inform defendants
and their lawyers about the rarity of §5K1.1 motions in a
given district or in cases handled by a particular Assistant
8                                              No. 07-2612

United States Attorney. But when an informed defendant
decides to take her chances or to make the best of a bad
situation, a judge’s belief that prosecutors should reward
cooperation more frequently is not a good reason to re-
ject a plea.
  Heath agreed to a deal under which the United States
holds discretion over whether to make a motion under
§5K1.1. That it may have been possible for the United
States to make a firm commitment (or agree to objective
criteria for evaluating Heath’s assistance) does not entitle
the district court to treat the bargain as if such a com-
mitment had been made. That step would not only
intrude on the Executive Branch’s constitutional authority
but also disable the parties from reaching agreements
that may make both sides better off. Told that it must
make a firm commitment or none at all, the prosecutor
might well choose “none at all,” to the detriment of this
defendant and the process of investigating and prosecut-
ing other crimes. The deal Heath actually struck leaves
matters to the prosecutor’s discretion; judges must re-
spect the agreement that the parties have reached. See
United States v. Artley, 489 F.3d 813, 824–25 (7th Cir.
2007).
   The judge’s response to the petition for mandamus tells
us that he is certain that Heath has revealed everything
she knows and therefore should be rewarded. Yet, under
Wade and the plea agreement, whether even complete
disclosure is helpful enough to earn a lower sentence is
an issue committed to the prosecutor, not the judge. Not
that the judiciary can be confident that Heath has told all.
Agents who have interviewed her—and who have other
sources of information about the drug-distribution network
in which she participated—are better situated to assess
her candor. A prosecutor is entitled to be skeptical about
a defendant’s protestation that she has come clean. Even
if Heath has been completely cooperative so far, it may
No. 07-2612                                             9

be sensible to hold out the lure of a §5K1.1 motion as a
reason to provide that information on the stand at other
persons’ trials, and not just in private. The Executive
Branch is entitled to adopt a hard-nosed negotiating
and litigating strategy.
  The petition for a writ of mandamus is granted. The
district judge must rule on the motion for reconsideration
without requiring access to information about ongoing
investigations or deliberations within the Executive
Branch. In resolving the motion for reconsideration, the
district judge must be mindful of the principles we
have discussed.

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—10-1-07
