         United States Court of Appeals
                   FOR THE EIGHTH CIRCUIT


                         No. 97-1247


United States of America,     *
                              *
           Appellee,          *
                              * Appeal      from   the   United
States
          v.                  * District Court for the
                              * District of Nebraska.
Mary Ann Rounsavall,          *
                              *
          Appellant.          *


               Submitted:   September 10, 1997

                            Filed:   October 22, 1997


Before BEAM, FLOYD R. GIBSON, and HEANEY, Circuit Judges.


HEANEY, Circuit Judge.

    Mary Ann Rounsavall appeals her twenty-year sentence
for drug and money laundering.     She contends that the
government acted irrationally and/or in bad faith in
refusing to file a motion pursuant to 18 U.S.C. § 3553(e)
to reduce her sentence below the statutory twenty-year
mandatory minimum. We conclude that Rounsavall has made
a sufficient threshold showing on two separate grounds to
require that this matter be remanded to the district
court for an evidentiary hearing to determine if, in
fact, the government acted irrationally and/or in bad
faith.
                           I.

    On November 9, 1995, Mary Ann Rounsavall entered into
a plea agreement with the government.     As part of her
agreement, she pled guilty to drug and money laundering
charges. Absent such an agreement, she would have faced
360 months to life with a statutory minimum of twenty
years. Her agreement with the government provided that
if she cooperated in the prosecution of her brother, the
government would consider filing motions allowing her to
receive a sentence at or below the statutory mandatory
minimum.     According to an affidavit submitted by
Rounsavall to the district court, Assistant United States
Attorney Bruce Gillan told Rounsavall that he did not
want or believe that she should go to prison for the
twenty years required by the statutory mandatory minimum
sentence if she complied with the terms of the plea
agreement. Gillan indicated Rounsavall should expect to
receive somewhere between seven to ten years for her
cooperation, although the decision as to the length of
her sentence would be entirely up to the judge. In his
affidavit, United States Attorney Thomas Monaghan stated
that the government initially sought Rounsavall’s
assistance because the government believed that once she
helped in the prosecution, Rounsavall’s brother would
also cooperate.

    Rounsavall testified against her brother in two
separate criminal proceedings.     First, she testified
against her brother at his drug and money laundering
trial. During his trial, she testified for four days.
She also testified against her brother for an additional
day at a forfeiture proceeding. All told, she testified

                            2
for five days, longer than any other witness, in helping
the government convict her brother and secure a life
sentence against him.1




     1
       Rounsavall also helped the government recover property worth several
thousand dollars.
                                     3
    Ultimately, the government filed a § 5K1.1 motion,
under the United States Sentencing Guidelines, but not an
18 U.S.C. § 3553(e) motion. Based upon the government's
filing of the § 5K1.1 motion, Rounsavall was sentenced to
twenty years, the lowest possible sentence the district
court could order under the statutory mandatory minimum.
Because the government withheld filing a § 3553(e)
motion, the district court could not further lower
Rounsavall’s sentence.

    According to an affidavit from United States Attorney
Thomas Monaghan, the government considered but decided
against filing a § 3553(e) motion for the following
reasons:

    (a) the failure of the defendant to cooperate
    with the government until her second trial; (b)
    the fact that a portion of her testimony
    regarding money laundering given during a trial
    against a codefendant was not accurate or
    complete; (c) the fact that no other persons can
    be prosecuted as a result of her cooperation;
    and (d) the fact that she violated her plea
    agreement by not giving reliable and complete
    testimony regarding money laundering.

United States v. Rounsavall, No. 4:CR94-3034, at 4 (D.
Neb. Sept. 11, 1996).

    The district court judge strongly disagreed with the
decision of the prosecutor not to file a § 3553(e)
motion:

    In my opinion, Ms. Rounsavall’s testimony
    against her brother was extremely helpful to the
    Government, was, in large measure, truthful and

                            4
    was provided to the Government at great personal
    cost to Ms. Rounsavall.     In some ways, she’s
    going to have to live the rest of her life
    knowing she contributed to her brother probably
    dying in prison. If the Government had filed a
    motion under the statute, I would likely have
    substantially departed below the sentence that I
    now must impose under the law.

(Sent. Tr. at 531-32, Nov. 22, 1996).   The district court
judge further stated that:




                            5
      Since this dispute has arisen, Rounsavall,
      without the government making any promises
      respecting the departure question, has further
      cooperated with the government by stipulating to
      forfeiture of certain property.          Moreover,
      Rounsavall has also agreed to the entry of a
      money   judgment   in  the    sum   of   $200,000.
      Rounsavall made these concessions despite the
      fact that her plea agreement did not require
      them, and despite the fact that the government
      had made no direct or indirect promise that
      further    cooperation     might     change    the
                                        2
      government’s departure decision.

Rounsavall, No. 4:CR94-3034, at 8-9 (citations omitted).

    Despite disagreeing with the government’s decision,
the district court found that there was no reason to hold
an evidentiary hearing regarding Rounsavall’s claim of a
breach of her agreement because the government had simply
agreed to consider her cooperation and nothing more.
Rounsavall appeals the district court's denial of her
motion to compel the government to file a § 3553(e)
motion.

                                       II.

    When the government files a substantial assistance
motion under § 5K1.1, a sentencing court may depart from
the guidelines sentencing range but not the statutory
minimum.   Melendez v. United States, 116 S. Ct. 2057,
2063 (1996).   When the government files a substantial
assistance motion under § 3553(e), however, a sentencing


      2
       On the basis of the latter fact, the district court required the United States
Attorney to examine again the departure question in light of this new cooperation.
                                         6
court may depart from the applicable mandatory minimum
sentence. Id.

    In this regard, the law's practical effect is
twofold:    1) where a § 5K1.1 motion is filed, the
district court cannot sentence below the statutory
mandatory minimum; 2) where a § 3553(e) motion is filed,
on the other hand, the district court is able to depart




                           7
below the mandatory minimum sentence otherwise required
by the sentencing guidelines.

    In this case, after the government filed its § 5K1.1
motion, the district court sentenced Rounsavall to twenty
years, the lowest possible sentence under the statutory
mandatory minimum. Because the government failed to file
a § 3553(e) motion, the district court correctly believed
it could not depart below the twenty-year sentence even
though it "strongly disagree[d] with the [government's]
decision" not to file the motion.        Rounsavall, No.
4:CR94-3034, at 8.

                          III.

    "A sentencing court may not grant a downward
departure for substantial assistance absent a motion by
the government."    United States v. Stockdall, 45 F.3d
1257, 1259 (8th Cir. 1995) (citing United States v.
Kelly, 18 F.3d 612, 617 (8th Cir. 1994); United States v.
Coleman, 895 F.2d 501, 504 (8th Cir. 1990)). There are,
however, limited exceptions to this rule. Kelly, 18 F.3d
at 617. “[R]elief may be granted absent a government
substantial assistance motion if a defendant shows that
the government's refusal to make the motion was based on
an unconstitutional motive, that the refusal was
irrational, or that the motion was withheld in bad
faith." Id. at 617-18 (citations omitted). A defendant
is entitled to an evidentiary hearing to determine
whether the government acted improperly if she is able to
make a substantial threshold showing that the government
acted irrationally, in bad faith, or in violation of



                            8
one’s constitutional rights. Id. at 618 (citing Wade v.
United States, 504 U.S. 181, 186 (1992)).

    We agree with the district court that United States
Attorney Monaghan should have made the § 3553(e) motion
for a statutory downward departure.      We go a step
further, however, and hold that Rounsavall made a
sufficient threshold showing to require that an
evidentiary hearing be held to determine whether the
United States




                           9
Attorney’s reasons for not granting the     motion   were
irrational and/or were made in bad faith.

    No credence can be given to the United States
Attorney’s first reason, that the defendant failed to
cooperate until her second trial. The fact is that the
plea agreement was not entered into until the second
trial. Thus, if the United States Attorney was going to
take into consideration that Rounsavall was late in
entering a plea, he should have said so at that time
rather than after the fact.

    Nor do we find merit in the United States Attorney’s
view that the testimony regarding money laundering given
during the trial against a codefendant was not accurate
or complete.     It appears from the record that the
codefendant was her brother. She testified against him
for the better part of five days and he was convicted,
the district court found, largely because of her
testimony.

    The third reason for failing to file a statutory
motion, that no other person can be prosecuted as a
result of her cooperation, is equally specious. If this,
in fact, were a condition of her agreement, then the
prosecutor should have made it clear before he accepted
her plea agreement. He failed to do so.

    On the basis of this record, we are unable to divine
the rationale behind the prosecutor’s final reason for
failing to file a statutory motion, that Rounsavall’s
testimony regarding money laundering was not reliable or



                           10
complete.3 Again, her brother was not only convicted of
money laundering because of her testimony, but the
district court found that she had completely cooperated
post-trial in terms of her own




      3
       An examination of the record indicates that Rounsavall’s testimonial
inconsistencies were insubstantial and, as the district court found, she was a key
witness in helping the government convict her brother.
                                       11
money laundering and had voluntarily agreed to the entry
of a money judgment against her in the sum of $200,000.
It is difficult to imagine a higher degree of
cooperation.

    We then come to appellant’s contention that Assistant
United States Attorney Gillan told Rounsavall that she
could expect to receive between seven to ten years for
substantially assisting the government.         At oral
argument, Gillan contended that whether he made such
representations to Rounsavall is outside the record. In
its memorandum and order, however, the district court
acknowledged that it reviewed Rounsavall's affidavit as
part of the entire record before making its final
determination.

    Based on the alleged representations made to
Rounsavall, as set forth in her          affidavit, the
government may have violated the plea agreement in
failing to file the § 3553(e) motion.      In Wade, the
Supreme Court suggested that the decision to forego
filing a § 3553(e) motion could be "superseded" by
another agreement made by the prosecutor. Wade, 504 U.S.
at 185.

    In this case, Gillan's representations to Rounsavall
may have superseded the broad discretion prosecutors
generally enjoy in determining whether to file a
substantial assistance motion under § 3553(e). In her
affidavit before the district court, Rounsavall alleged
that Gillan said that he did not believe she deserved to
go to prison for twenty years if she fully cooperated;
and although it was entirely up to the judge, she should

                           12
expect a seven- to ten-year sentence. As the district
court found, Rounsavall clearly cooperated in providing
substantial assistance to the government.     The twenty-
year sentence, therefore, may well have been a violation
of the plea agreement between Rounsavall and the
Assistant United States Attorney who prosecuted the case.
This court attempted unsuccessfully to get the Assistant
United States Attorney’s view on this matter at oral
argument.    The question will have to be thoroughly
addressed on remand.




                           13
    The government argues that its only agreement was to
consider whether Rounsavall had cooperated in determining
whether it would file a § 3553(e) motion. The district
court appears to have accepted this view.      We do not
believe the district court’s authority is so limited.
Notwithstanding the language of an agreement, if the
government’s refusal to file a § 3553(e) motion is
irrational and/or in bad faith, particularly in light of
representations made to a defendant, a district court may
require the government to make a downward departure
motion.

    Additionally, it appears that the government may have
based its decision to enter into a plea agreement with
Rounsavall on factors other than her substantial
assistance. In Stockdall, we stated, "[t]he desire to
dictate the length of a defendant's sentence for reasons
other than his or her substantial assistance is not a
permissible basis for exercising the government’s power
under § 3553(e)." Stockdall, 45 F.3d at 1261.

    In this case, United States Attorney Monaghan
admitted in his affidavit that the government had sought
Rounsavall's "assistance because we believed that her
brother would cooperate with the government once he
realized   that   she  was   helping"  the   government.
(Appellant's Addendum at 17; Monaghan Aff. ¶ 8).     The
record indicates that Rounsavall was never informed that
the government wanted her assistance to get her brother
to cooperate. As it turned out, Rounsavall's brother did
not cooperate with the government.          It appears,
therefore, that when Rounsavall's brother decided not to



                           14
enter into a plea agreement,4 the government may have
acted irrationally and/or in bad faith by withholding the
§ 3553(e) motion.     As we stated in Stockdall, when
contemplating filing a § 3553(e) motion, the government
cannot base its decision on factors other than the
substantial assistance provided by the defendant:




      4
        The government, among many other reasons, may have hoped that in entering
into a plea agreement with Rounsavall's brother, he would have implicated others.
                                       15
    Section 3553(e) permits the government to file a
    motion   "so   as  to   reflect   a  defendant's
    substantial assistance."       The statute was
    enacted to enhance federal law enforcement by
    "provid[ing] our United States Attorneys with
    the authority they need to obtain cooperation
    and information from drug dealers." It was not
    intended to grant prosecutors a general power to
    control the length of sentences.         As the
    government has itself argued in another case,
    "only   factors   relating   to   a  defendant's
    cooperation should influence the extent of a
    departure for providing substantial assistance
    under § 3553(e).”

Stockdall, 45 F.3d at 1261 (alteration in original)
(internal citations omitted) (emphasis added).

    In other words, as applied to the facts of this case,
the government must base its decision whether to file a
§ 3553(e) motion on factors related to Rounsavall's
substantial assistance, not on whether her brother
ultimately decided to enter into a plea agreement. In
our view, this is another issue in which Rounsavall has
made a substantial threshold showing that the government
acted irrationally and/or in bad faith and warrants an
evidentiary hearing.

                          IV.

    Consistent with this opinion, we reverse and remand
to the district court for an evidentiary hearing to
determine whether the government acted irrationally
and/or in bad faith in failing to file a § 3553(e) motion
in light of Rounsavall’s substantial assistance and the
government’s   conduct,   and   whether  the   government

                           16
considered factors outside of Rounsavall’s substantial
assistance in declining to file the § 3553(e) downward
departure motion.




                          17
A true copy.

    Attest.

        CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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