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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11155
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:93-cr-00357-ODE-JMF-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

FREDRIC W. TOKARS,

                                                         Defendant-Appellant.
                      ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (January 31, 2020)

Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Fredric Tokars appeals the district court’s order denying his motion to

compel the government to file a motion to reduce his sentence pursuant to Rule

35(b) of the Federal Rules of Criminal Procedure. Finding no error, we affirm.

                                          I.

      Tokars, a former attorney and state prosecutor, is now serving multiple

concurrent life sentences in federal prison for the murder-for-hire of his wife and

various racketeering, drug trafficking, and money laundering crimes. While

serving his sentences in Iowa, Tokars was approached by a fellow inmate (Dustin

Honken) who threatened to tell other prisoners that Tokars used to be a prosecutor

if Tokars did not help him with his legal papers. In the course of seeking Tokars’s

assistance, Honken disclosed details about five murders that Honken and his

girlfriend, Angela Johnson, had committed several years earlier. Tokars related

this information to federal prosecutors and cooperated in the subsequent

investigation and prosecution of Honken and Johnson. Tokars testified at

Honken’s murder trial, and Honken was convicted and sentenced to death.

      Tokars also cooperated with state authorities in Arizona under similar

circumstances. Robert Orloff, a prisoner housed with Tokars in Wisconsin,

coerced Tokars into helping him with a habeas petition and subsequently disclosed

details about a murder that Orloff had committed many years earlier. According to


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a Maricopa County prosecutor, Tokars’s extensive cooperation and assistance was

critical in the successful prosecution of Orloff for murder, burglary, and arson.

      Based on Tokars’s assistance in these matters, Tokars’s attorney contacted

federal prosecutors in the Northern District of Georgia (where Tokars was

convicted and sentenced) requesting that the government file a Rule 35(b) motion

to reduce Tokars’s sentence. According to counsel, the U.S. Attorney declined to

file a substantial-assistance motion and informed counsel that the government

would never request a reduction in Tokars’s sentence, regardless of the

significance of his cooperation.

      Tokars moved to compel the government to file a substantial-assistance

motion. The district court denied Tokars’s motion, and this appeal followed.

                                           II.

      Rule 35(b) provides that, “[u]pon the government’s motion” the district

court may reduce a sentence if the defendant provided “substantial assistance” in

the investigation or prosecution of another person. Fed. R. Crim. P. 35(b)(1)–(2).

The Supreme Court has held that this language “gives the Government a power,

not a duty, to file a motion when a defendant has substantially assisted.” Wade v.

United States, 504 U.S. 181, 185 (1992) (interpreting language in 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K1.1 authorizing substantial-assistance reductions


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“[u]pon motion of the Government”). In other words, the decision whether to file

a substantial-assistance motion is a matter of prosecutorial discretion, and the mere

fact that a defendant has provided substantial assistance does not mean that the

government is obligated to seek a sentence reduction. See id. at 186, 187. In the

absence of an enforceable promise by the government to file a substantial-

assistance motion, judicial review of the exercise of this discretion “is appropriate

only ‘when there is an allegation and a substantial showing that the prosecution

refused to file a substantial assistance motion because of a constitutionally

impermissible motivation.’” United States v. Dorsey, 554 F.3d 958, 961 (11th Cir.

2009) (emphasis in original) (quoting United States v. Forney, 9 F.3d 1492, 1502

(11th Cir. 1993)).

      Tokars argues that the government’s refusal to file a substantial-assistance

motion in his case was in bad faith, motivated by personal animosity and a desire

to retaliate against him for the exercise of his constitutional right to a jury trial, and

was otherwise “not rationally related to any legitimate Government end.” Wade,

504 U.S. at 186. Tokars’s argument is essentially that he earned a reduction in his

sentence through his “extraordinary cooperation” with federal authorities in Iowa

and state prosecutors in Arizona. This argument rests on two predicates, both of

which are fatally flawed.


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                                         A.

      First, Tokars contends that the government was contractually obligated to

consider filing a Rule 35(b) motion based on his “cooperation agreement” with

federal prosecutors in the Northern District of Iowa. In support of this contention,

he submits a letter from C.J. Williams, an Assistant U.S. Attorney in the Northern

District of Iowa, in which Williams informed his counterparts in the Northern

District of Georgia of Tokars’s “substantial contribution” to the capital murder

prosecutions of Honken and Johnson. Williams stated that he was providing

information about Tokars’s assistance “for your use in determining whether you

believe a reduction of Mr. Tokars’s sentence is appropriate.” But—setting aside

whether Williams’s office had the authority to make any commitment on behalf of

prosecutors in another district—Williams did not promise that federal prosecutors

in Georgia would file, or even consider filing, a motion to reduce Tokars’s

sentence.

      To the contrary, Williams explained in his letter that his office “made it clear

to Mr. Tokars at all times that we could not make such a motion and that such

power rested exclusively with your office. We advised him that all we could and

would do is to advise your office of the nature and extent of his cooperation. We

told him that we would not make a recommendation one way or the other, but


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rather, would simply relate his cooperation.” Williams kept the government’s end

of this bargain by writing to the U.S. Attorney’s office in Georgia and describing

in detail Tokars’s assistance and its usefulness in the Iowa murder prosecutions.

The government was not contractually obligated to file, or even to consider filing,

a Rule 35(b) motion.

                                          B.

      Second, Tokars contends that the government’s decision whether to file a

substantial-assistance motion should be based solely on whether and to what extent

the defendant has cooperated. Considering his own significant contributions to

three separate murder prosecutions, his argument goes, the government can have

no good reason for refusing to file a motion for him, and so its motivation must

have been improper. We have rejected this argument before. See United States v.

Nealy, 232 F.3d 825, 831 (11th Cir. 2000).

      In Nealy, as here, the defendant argued that “the government cannot refuse

to file a substantial assistance motion for ‘reasons other than the nature of

[defendant’s] substantial assistance.’” Id. (alteration in original) (quoting United

States v. Anzalone, 148 F.3d 940, 941 (8th Cir. 1998)). As we explained in Nealy,

“this contention is not supported by Wade and is contrary to the broad grant of

prosecutorial discretion recognized by this court.” Id. (citing Forney, 9 F.3d at


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1503 n.4). Once again, we reject the suggestion that we should infer an

unconstitutional motive based solely on the extent of the defendant’s cooperation

with the government. A “claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing. Nor would additional but generalized allegations of improper

motive.” Wade, 504 U.S. at 186.

      Moreover, the government’s stated reason for refusing to request a reduction

in Tokars’s sentence—ensuring just punishment given the nature and severity of

Tokars’s criminal conduct—is valid. Tokars used his legal education and

experience as a prosecutor to commit money laundering crimes in aid of a drug

trafficking conspiracy, and when his wife discovered his crimes, he arranged for

her to be murdered at a time when he knew that his young sons were likely to be

present—which they were. The government’s “rational assessment of the cost and

benefit that would flow from moving” for a reduction in Tokars’s sentence is the

kind of exercise that falls squarely within the arena of prosecutorial discretion. Id.

at 187.

                                         III.

      Tokars has not made the required “substantial showing” that the

government’s reasons for refusing to file a motion to reduce his sentence were


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unconstitutional. Dorsey, 554 F.3d at 961. Accordingly, we affirm the district

court’s denial of Tokars’s motion to compel.

      AFFIRMED.




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