                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4439



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


JACK EARL BEST,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-02-243)


Argued:   October 24, 2006                 Decided:   January 17, 2007


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Douglas Everette Kingsbery, THARRINGTON, SMITH, L.L.P.,
Raleigh, North Carolina, for Appellant.     Anne Margaret Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Frank
D. Whitney, United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Jack Earl Best appeals his convictions and life sentence

for various drug-trafficking crimes. Best, who represented himself

during a portion of his trial and at sentencing, contends that he

is entitled to a new trial because the district court failed to

suppress certain evidence and because of restrictions the court

placed on his ability to cross-examine witnesses.                 Best further

contends that the government’s refusal to move for a downward

departure at sentencing was based on an unconstitutional motive.

Because   Best’s       arguments   are       unpersuasive,   we   affirm    his

convictions and sentence.



                                     I.

           In a superceding indictment filed on August 4, 2004, Best

was   charged   with    four   drug-related      offenses:    conspiring     to

distribute and possess with intent to distribute five kilograms or

more of cocaine in violation of 21 U.S.C. § 846; distributing

cocaine in violation of 21 U.S.C. § 841(a)(1); possessing with

intent to distribute cocaine in violation of 21 U.S.C. § 841(a);

and maintaining a place for the purposes of manufacturing and

distributing cocaine in violation of 21 U.S.C. § 856.                      These

charges stemmed from a controlled buy that a confidential informant

for the Sheriff’s Department of Wayne County, North Carolina, made

from Best at his home on April 4, 2002.               The informant, Derwin


                                         2
Wallace, bought a half kilogram of cocaine from Best using $14,000

provided to him by the police.      Shortly after the sale, law

enforcement agents obtained and executed a search warrant for

Best’s house, yielding 87 grams of cocaine and $51,000 in cash.

While the search was in progress, Special Agent John Rea of the

North Carolina State Bureau of Investigation spoke with Best,

encouraging him to cooperate with the police.   Rea had known Best

for 15 years as a result of other investigations and told Best that

if he cooperated, the officers would inform the state or federal

prosecutor of his assistance, and the prosecutor would then relay

that information to the sentencing judge.    Best agreed to assist

the police and began by telling them where they could find the

cocaine and $37,640 in cash that was hidden throughout his house.

Although Best did not tell the officers about the $14,000 that he

had just received from the controlled buy, the police found this

money as well.

          To prevent Best’s suppliers from being made aware of his

cooperation, the police decided not to arrest him immediately after

concluding the search and instead asked him to drive down to the

police station to be interviewed.     A short time later at the

station, Best identified his suppliers, brothers whom he knew only

as Sal and Louie, and gave details about the quantity and frequency

of his cocaine purchases from each. Based on this information, the

police instructed Best to contact both suppliers and arrange for


                                3
controlled buys.        Best set up controlled buys to take place a few

days later on April 9, 2002.             The buys went as planned and both

men,   whose   real     names    are   Nicandro    and   Flavio   Alvarez,    were

arrested, prosecuted and sentenced. Following the Alvarez arrests,

police met once more with Best and encouraged him to set up

additional controlled buys with other suppliers.                    Rather than

continue cooperating, Best stopped communicating with police and

fled North Carolina.            Best’s family members were unable to tell

police   where    he    had   gone.      These    circumstances    prompted    the

authorities      to    obtain    a   federal     indictment   against   Best   on

September 17, 2002, and a bench warrant was issued for his arrest.

           On August 13, 2003, Best was arrested in Maryland and

returned to North Carolina. According to Best’s former lawyer, the

government, during plea negotiations, offered to make a substantial

assistance motion for a downward departure at Best’s sentencing if

he agreed to plead guilty.               Best declined to make any such

agreement even after being informed that if he went to trial, the

government planned to introduce the incriminating information he

had provided during his initial debriefing as well as the testimony

of his former suppliers, the Alvarez brothers. Although Best moved

to suppress his statements and all evidence which flowed from them,

the district court adopted the magistrate judge’s recommendation

that this motion be denied.            Notwithstanding this adverse ruling,

Best chose to go to trial.             Shortly before the trial began, the


                                          4
government filed a notice of intent to seek enhanced penalties

pursuant    to   21   U.S.C.   §   851,       given   Best’s   three   prior   drug

felonies.

            On the second day of his trial, Best asked for permission

to represent himself for the remainder of the proceedings. At this

point, three government witnesses had already testified and been

cross-examined.       In the process of advising Best of his right to

represent himself as well as the potential pitfalls of doing so,

the district court stated, “You know that you cannot ask leading

questions and you can only ask questions of what they’ve already

testified about. You cannot cross certain lines; that is ask about

criminal records that are more than 10 years old as an example and

things like that.”      J.A. 290.    Best responded, “Yes, I know that.”

Id. After a thorough inquiry, the district court accorded Best his

right to proceed pro se.       The court also appointed Best’s lawyer as

standby counsel and told Best that he could confer with the lawyer

during the remainder of the trial.              Best chose to have the lawyer

sit with him at counsel table.

            Best was convicted on all four counts and sentenced on

April 5, 2005.        At the sentencing hearing, it was agreed that

absent a substantial assistance motion pursuant to 18 U.S.C.

§ 3553(e), the district court would be required, under 21 U.S.C.

§§ 841(b)(1)(A) and 851, to impose mandatory minimum sentences of

life imprisonment (count 1), 360 months (counts 2 and 3) and 240


                                          5
months (count 4).        Although the prosecutor reminded the court of

Best’s role in obtaining the arrests of the Alvarez brothers, he

also stated that the government would not be making a substantial

assistance motion.         While Best, who was representing himself,

objected to the government’s decision not to request a downward

departure, the district court noted that only the government could

decide    if    his   cooperation   warranted   a   substantial   assistance

motion.    After Best was given an opportunity to state any reasons

supporting a downward departure, the district court sentenced him

to life imprisonment for count 1, 360 months for counts 2 and 3,

and 240 months for count 4, all to be served concurrently.

               Best appeals his convictions and sentence.



                                      II.

               Best contends that the district court erred in allowing

the government to introduce into evidence information that he

volunteered during his April 4, 2002, interview at the police

station regarding his suppliers and his dealings with them.              The

prosecution used Best’s statements to prove his participation in

the drug conspiracy charged in count 1 as well as the allegations

of drug amounts involved in the several counts.           Best asserts for

the first time on appeal that the police had made an implied

promise that the information he volunteered in the process of his

cooperation would not be used against him.               Essentially, Best


                                       6
claims that he had impliedly been given use immunity in return for

his cooperation.

          Rule 12(b)(3) of the Federal Rules of Criminal Procedure

requires that motions to suppress evidence be filed prior to trial.

Best’s only pretrial motion objecting to the introduction of this

evidence was made under the theory that his statements had been

coerced and that police had disregarded the procedural safeguards

guaranteed to him by Miranda v. Arizona, 384 U.S. 436 (1966).    The

district court denied this motion.     After failing at the pretrial

stage to have his statements suppressed by arguing coercion and

Miranda violations, Best now argues to us that his statements were

voluntary but should have been excluded nevertheless on the theory

of use immunity.   But Best made no pretrial motion to suppress on

this basis.   Under Rule 12(e) failure to make a pretrial motion to

suppress “constitutes waiver of the defense or objection unless the

defendant can demonstrate just cause for the failure.”        United

States v. Ricco, 52 F.3d 58, 62 (4th Cir. 1995).    Best has made no

attempt to demonstrate cause, and we therefore conclude that he has

waived this assignment of error.



                                III.

          Best next attacks his conviction by arguing that the

district court erred when it instructed him that, in representing

himself, he could not ask leading questions of government witnesses


                                   7
or inquire about subjects they had not been questioned about on

direct examination.    Because Best raised no objection to this

instruction below, we review this claim for plain error.      United

States v. Olano, 507 U.S. 725, 731 (1993) (reiterating that plain

error affecting substantial rights may be noticed).

          A review of the trial transcript shows that Best inquired

about subjects not addressed on direct examination and asked each

witness leading questions.   Moreover, Best has not established any

prejudice flowing from the district court’s unheeded restrictions

because he has not mentioned any subjects he was precluded from

exploring on cross-examination.       Because any error here did not

affect Best’s substantial rights, we reject this argument.



                                IV.

          Best also contests his sentencing, asserting that the

district court erred in refusing to compel the government to move

for a downward departure for substantial assistance pursuant to 18

U.S.C. § 3553(e).   That subsection, entitled “Limited authority to

impose a sentence below a statutory minimum,” reads in full:

     Upon motion of the Government, the court shall have the
     authority to impose a sentence below a level established
     by statute as a minimum sentence so as to reflect a
     defendant’s substantial assistance in the investigation
     or prosecution of another person who has committed an
     offense. Such sentence shall be imposed in accordance
     with the guidelines and policy statements issued by the
     Sentencing Commission pursuant to section 994 of title
     28, United States Code.


                                  8
18 U.S.C. § 3553(e).          Best contends:            (1) that the government had

agreed   to    make    a    substantial        assistance       motion    and    that    the

district court should have required the government to honor this

agreement; (2) that the district court erred in depriving him of

the opportunity to prove that the government had made such an

agreement; and (3) that the government’s refusal to file the motion

was   based    on     an   unconstitutional             motive.     We    examine       each

contention in turn.

                                            A.

              Best    claims       that     the         district    court       improperly

disregarded     an     agreement        made       by   the    government   to     make    a

substantial assistance motion.                 To support his claim, Best points

to testimony given by Officer Rea at trial wherein Rea recounted

telling Best that if he cooperated, law enforcement officers would

tell state or federal prosecutors of his cooperation, and these

prosecutors would in turn inform the sentencing judge.                          Best does

not   claim    that    he    had    a     sentencing          agreement   with     federal

prosecutors, the only officials who have “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).                         Because § 3553(e)

entrusts wide discretion to federal prosecutors in deciding whether

to make a substantial assistance motion, and no agreement was

established here that would constrain this discretion, the district




                                               9
court did not err in refusing to compel the government to make the

motion.

                                   B.

              Best’s contention that the district court prevented him

from proving the government’s agreement to make a substantial

assistance motion is equally unavailing.          The portion of the

sentencing transcript that Best cites in support of his claim that

the district court would not “permit [him] to make any further

showing on whether the government was contractually bound” to make

a motion deals only with Best’s repeated claim that the government

promised that he would not be prosecuted at all.        Appellant’s Br.

at 17-18 (citing J.A. 550).        The district court appropriately

declined to allow Best to continue contesting at his sentencing

hearing the basic fact that he had been charged and convicted.

Later in the hearing, the district court asked Best if he had any

basis for a downward departure that he wished to place before the

court.       Best then recounted his role in the drug busts of the

Alvarez brothers and stated that he felt he deserved a downward

departure. No limitations were placed on Best’s ability to present

additional arguments or other evidence.       As a result, this claim

also fails.

                                   C.

              Finally, Best argues that the government’s refusal to

file     a    substantial   assistance   motion   was   based   on   an


                                   10
unconstitutional   motive,   namely     to    retaliate   against   him   for

exercising his right to a trial by jury.           Because this claim is

raised for the first time on appeal, we review for plain error the

district court’s decision to refuse to compel the motion.            Olano,

507 U.S. at 731.

           Although § 3553(e) accords the government the power to

decide whether to file a substantial assistance motion, the Supreme

Court in Wade v. United States established “that a prosecutor’s

discretion when exercising that power is subject to constitutional

limitations that district courts can enforce.”            504 U.S. at 185.

Wade held that “federal district courts have authority to review a

prosecutor’s refusal to file a substantial assistance motion and to

grant a remedy if they find that the refusal was based on an

unconstitutional motive.” Id. at 185-86. A “refusal to move [that]

was not rationally related to a legitimate Government end” or a

refusal based on the defendant’s race or religion were given as

examples   of   unconstitutional   motive       that   would   entitle    the

defendant to relief.    Id. at 186-87. However, before a court may

order any relief, including discovery or an evidentiary hearing,

the defendant must make a “substantial threshold showing.”           Id. at

186.   This threshold requirement is not satisfied by claims “that

a defendant provided substantial assistance” nor by “generalized

allegations of improper motive.”        Id.




                                   11
               The Third Circuit has recognized that the government’s

refusal to make a substantial assistance motion in retaliation for

the    defendant’s       exercise     of     his    trial    right    constitutes      an

unconstitutional motive under Wade.                 See United States v. Paramo,

998    F.2d    1212,   1219     (3d   Cir.    1993).        We   do   not   reach   that

circumstance today because Best is unable to make the required

threshold       showing    of     impropriety.            Best     argues    that   the

unconstitutional motivation of the government was revealed at the

sentencing hearing when the district court asked the prosecutor if

he wished to make a statement on the record as to Mr. Best’s

cooperation.        The Assistant U.S. Attorney began by recounting

Best’s role in setting up the Alvarez brothers. The AUSA continued

by stating that:

       [T]he defendant subsequently broke off all communications
       with law enforcement agents and I would submit to the
       Court was a fugitive for approximately a year before
       being apprehended in Maryland by a state trooper up
       there. I would submit to the Court furthermore that by
       the defendant denying any guilt in this case by requiring
       the government to go to trial, which he has that right to
       do, has not accepted responsibility and therefore should
       not qualify under 5K1 for a motion for substantial
       assistance based on the totality of the evidence as
       received by this Court.

J.A.    555.      Best    correctly        points   out     that   the   AUSA   made   a

misstatement when he asserted that Best did not qualify for a

downward departure under the Sentencing Guidelines pursuant to

§ 5K1.1 because he had not “accepted responsibility” by pleading

guilty.       Application Note 2 to § 5K1.1 makes clear that:


                                             12
     The sentencing reduction for assistance to authorities
     shall be considered independently of any reduction for
     acceptance of responsibility. Substantial assistance is
     directed to the investigation and prosecution of criminal
     activities by persons other than the defendant, while
     acceptance of responsibility is directed to the
     defendant’s affirmative recognition of responsibility for
     his own conduct.

18 U.S.S.G. § 5K1.1, Application Note 2.                     We do not find the

prosecutor’s misstatement to be material.                    First, for sake of

clarity,    we   note   that   motions       pursuant    to    §   5K1.1   are   not

interchangeable with motions pursuant to § 3553(e).                  See Melendez

v. United States, 518 U.S. 120, 130-31 (1996).                      A substantial

assistance motion pursuant to § 5K1.1 asks the district court to

consider sentencing the defendant below the advisory Guidelines

range, while only a motion made by the government under § 3553(e)

authorizes   the   district     court    to    impose     a   sentence     below   a

statutory minimum.      In this case Best’s sentencing was driven by

statutorily mandated minimums.               Still, even assuming that the

Sentencing Commission intended the Application Notes to § 5K1.1 to

govern substantial assistance motions under both the Guidelines and

statutory minimums, see 28 U.S.C. § 994(n), Best cannot make a

threshold    showing    of     unconstitutional         motive     based   on    the

prosecutor’s     statement     at   sentencing.         In    responding    to   the

district court’s question about Best’s degree of cooperation, the

prosecutor highlighted the fact that after setting up the Alvarez

brothers, Best “subsequently broke off all communications with law

enforcement agents and . . . was a fugitive for approximately one

                                        13
year before being apprehended.”          J.A. 555.   After the Alvarez

brothers were arrested, the police asked Best to continue setting

up other dealers.   Rather than continue providing assistance, Best

fled.     Refusing to make a substantial assistance motion for a

partially    cooperative   former    fugitive   is   well   within   the

government’s legitimate discretion.

            Best nonetheless argues that the record shows that his

flight was not the government’s true reason for refusing to move

for a downward departure.    He relies on the representation of his

standby counsel at sentencing that in pretrial negotiations Best

had been offered a substantial assistance motion on the condition

that he plead guilty.    It is well established that “[a] guilty plea

may justify leniency.”     Brady v. United States, 397 U.S. 742, 752

(1970).     On the other hand, the Supreme Court has condoned “the

prosecutorial practice of threatening a defendant with increased

charges if he does not plead guilty, and following through on that

threat if the defendant insists on his right to stand trial.”        Ala.

v. Smith, 490 U.S. 794, 802 (1989) (citing Bordenkircher v. Hayes,

434 U.S. 357, 363 (1978)).    Given the pressure that the prosecutor

may legitimately apply “at the bargaining table [] to persuade the

defendant to forgo his right to plead not guilty,” Bordenkircher,

434 U.S. at 364, Best cannot impugn the government’s motivation

simply by pointing to the prosecutor’s reference to a potential

substantial assistance motion in connection with plea discussions.


                                    14
          Best has not made the “substantial threshold showing”

that would allow him to proceed with his claim of unconstitutional

motive. Again, the district court did not commit error in refusing

to compel a substantial assistance motion.

                              * * *

          Best’s convictions and sentence are

                                                        AFFIRMED.




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