                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2242
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Russell Bradley Marks,                   *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: January 9, 2001
                                  Filed: March 29, 2001
                                   ___________

Before RICHARD S. ARNOLD, FAGG, and BOWMAN, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

       Russell Bradley Marks appeals from the judgment of the District Court denying
his motion to compel specific performance of an agreement that, according to Marks,
requires the government to move for a reduction of the sentence he is currently serving
for drug-related activity. We affirm, but for a reason different from that given by the
District Court.

      In 1992, Marks pleaded guilty to two counts of a multi-count federal indictment.
On Count I, conspiracy to distribute cocaine, he was sentenced to a mandatory life
sentence. On Count II, conspiracy to launder money, he was sentenced to a term of
five years to be followed by two years of supervised release. The remaining counts
were dismissed. We affirmed his sentences on appeal. United States v. Marks, 38
F.3d 1009 (8th Cir. 1994), cert. denied, 514 U.S. 1067 (1995). In 1997, Marks's 28
U.S.C. § 2255 motion to set aside or correct his sentence was denied; this Court denied
a certificate of appealability.

       In January 1999, Marks's attorney contacted the office of the United States
Attorney for the Western District of Missouri and told an Assistant United States
Attorney (AUSA) who had been involved in Marks's case from the beginning that
Marks had information, about which he had learned while incarcerated, that criminal
activity was afoot. In exchange for the information, Marks sought a motion for
reduction of his sentence under Federal Rule of Criminal Procedure 35(b). According
to Rule 35(b), a district court, upon motion by the government, may consider a
reduction of sentence "to reflect a defendant's subsequent substantial assistance in
investigating or prosecuting another person" even more than a year "after the sentence
is imposed if the defendant's substantial assistance involves information or evidence not
known by the defendant until one year or more after sentence is imposed."1 While

      1
         In analyzing the application of Rule 35(b), we rely (as do both parties in their
briefs) upon cases decided under § 5K1.1 of the United States Sentencing Commission
Guidelines Manual (Substantial Assistance to Authorities (Policy Statement)) and 18
U.S.C. § 3553(e) (Limited Authority to Impose a Sentence Below a Statutory
Minimum). See United States v. Alegria, 192 F.3d 179, 184 (1st Cir. 1999) ("[W]ith
regard to the meaning of 'substantial assistance,' Rule 35(b) and USSG § 5K1.1 are
birds of a feather."); United States v. Gangi, 45 F.3d 28, 31 (2d Cir. 1995) ("[D]ue to
similarity of language and function, § 5K1.1 should inform our construction of Rule
35(b).") (citing United States v. Perez, 955 F.2d 34, 35 (10th Cir. 1992) ("Because of
their overlapping subject matter and similarities in language, it is instructive to examine
and compare U.S.S.G. § 5K1.1 (policy statement) and 18 U.S.C. § 3553(e) (1988)
when interpreting Rule 35(b)."); United States v. Doe, 940 F.2d 199, 203 n.7 (7th Cir.)
("Throughout our opinion, we cite precedent construing Rule 35(b), § 3553(e), and
Federal Sentencing Guidelines § 5K1.1 . . . interchangeably . . . because the language
of all three provisions is parallel."), cert. denied, 502 U.S. 869 (1991)).
                                            -2-
making no promises to file such a motion, the AUSA agreed to pass along Marks's
information to the appropriate authorities and to consider whether the information
provided the grounds to warrant a motion. Marks, through his counsel, gave his
information to the AUSA and some months later asked the government to file a motion
for reduction of sentence. In an August 19, 1999, letter to Marks's counsel, the AUSA
declined to file a Rule 35(b) motion, stating simply that a sentence reduction was not
appropriate because of an inability to substantiate claims that Marks "participated in
a meaningful way in preventing" a crime.

       Soon after, Marks filed a motion in the District Court "to compel specific
performance" of his agreement with the government. In his motion, Marks described
the "contract" this way: "Mr. Marks promised to supply the Government with
information regarding" criminal activity, and "[t]he Government then promised, in
exchange for this information, to file" with the court a Rule 35(b) motion for reduction
of sentence. Motion and Suggestion in Support of Motion to Compel Specific
Performance at 1-2. Marks maintained that he provided "accurate and substantial
information," id. at 5, and that the government nevertheless refused to file a motion.
Marks characterized the government's refusal as a breach of contract and prayed for an
order "requiring the government to render specific performance pursuant to the terms
of the contract," that is, to file a Rule 35(b) motion for reduction of sentence. Id. at 3.
The government responded that it had not agreed to file a motion in exchange for the
information Marks gave but had agreed only to evaluate the information and decide—in
its discretion—whether to file a motion for sentence reduction. Because, the
government said, the information did not result in the substantial assistance required by
Rule 35(b) (among other reasons), it had refused to file the motion.

      The District Court held a hearing and concluded that the parties had an
"understanding . . . that if the government in its discretion decided that the assistance
provided by Mr. Marks was substantial, it would file a motion for downward
departure." Tr. at 39. But the court then said that "whatever understanding there was

                                            -3-
was [not] sufficiently definite in its terms to justify enforcement of it." Id. at 40.
Marks appeals.

       We conclude there was an enforceable agreement. Indeed, both parties concur
not only in the fact of an agreement but also in the terms of the agreement: Marks
would provide information about suspected criminal activity to the government, and the
government would evaluate it, determine whether Marks had rendered substantial
assistance, and if he had, file a Rule 35(b) motion to reduce Marks's sentence.2 We
believe that the agreement is sufficiently definite in its terms, as they are now agreed
upon by the parties, to be enforceable.3 In fact, both sides have performed under the
terms of the agreement—Marks gave the government information and the government
evaluated it for substantial assistance. We hold that the District Court erred in holding
that the agreement was unenforceable. We do not hold, however, that the court's
judgment—denial of Marks's motion to compel—must be reversed. We may affirm the
District Court on any ground supported by the record, and we conclude there is such


      2
        As suggested by the language from Marks's motion quoted above, he has come
belatedly to this position. Although Marks refers in his motion to his obligation to
provide "accurate" and "substantial" information, and contends that he fulfilled that
obligation, he does not mention that the government had the discretion to determine
whether Marks's information resulted in the necessary substantial assistance. See
United States v. Due, 205 F.3d 1030, 1034 (8th Cir. 2000) ("Providing 'truthful
information' and providing 'substantial assistance' are not necessarily interchangeable.").
The essence of his argument as set forth in the motion is that he gave the government
information, and therefore the government is required file a Rule 35(b) motion. Marks
has since modified that stance and acknowledges that the government had discretion
to determine if Marks's assistance was substantial before it would be required to file
a motion. He now maintains that his information did provide the required substantial
assistance, but he has backed away from the position that he performed his part of the
bargain simply by giving the government the information he had.
      3
       Although it would have been preferable for all concerned had the agreement
been in writing, the fact that this agreement was oral has no effect on its enforceability.
                                            -4-
an alternate ground in this case. See Marolt v. Alliant Techsystems, Inc., 146 F.3d
617, 621 (8th Cir. 1998).

       As Marks now concedes, the government did not agree to forego the discretion
it has to determine whether a Rule 35(b) motion is warranted in exchange only for
information the value of which was unknown until after its disclosure. In other words,
the government did not unconditionally promise to file a motion for reduction of
sentence. The promise was simply to consider, in the government's sole discretion,
whether Marks provided substantial assistance and, only if he did, to submit to the
District Court a Rule 35(b) motion for reduction of sentence. Cf. United States v.
Johnson, No. 99-3109, 2001 WL 178500, at *2 (8th Cir. Feb. 26, 2001) (holding that,
where government "exercised [its sole] discretion when it determined that [defendant]
had provided the requisite substantial assistance[,] . . . the executed agreement
supersedes the government's otherwise broad discretion"); United States v. Barresse,
115 F.3d 610, 612 (8th Cir. 1997) ("An unambiguous, unconditional promise to file a
downward departure motion is binding on the government."). Where, as here, the
government has reserved its discretion, the AUSA's refusal to file a substantial
assistance motion should be treated as any other discretionary decision made by a
prosecutor. Wade v. United States, 504 U.S. 181, 185 (1992). In other words, review
by the courts is available, but limited.

       There are two circumstances identified by the Wade Court that can precipitate
judicial review of the government's discretionary decision not to file a motion for
sentence reduction, but the defendant must make a "substantial threshold showing" of
one of them before a court may act. Id. at 186. First, the defendant may show that the
government's "refusal was based on an unconstitutional motive," such as race or
religion. Id. at 185-86. Second, the decision may qualify for court review if the
defendant can make a threshold showing that "the prosecutor's refusal to move was not
rationally related to any legitimate Government end," for example, that the decision was
made arbitrarily or in bad faith. Id. at 186. Marks made no substantial threshold

                                          -5-
showing in the District Court of an unconstitutional motive or that the government's
refusal was not rationally related to a legitimate end, but argues that we should remand
for a second hearing, where he will be prepared to make a showing that the refusal to
file the motion was in bad faith.

        Marks comes to his claim of bad faith too late. The law is clear—a substantial
threshold showing is required. In his motion papers, there was absolutely no mention,
or even an implication, of bad faith on the part of the government in its refusal to file
a Rule 35(b) motion, much less a substantial threshold showing. Likewise, the
comments made at the hearing to which Marks, in his reply brief, directs this Court's
attention do not meet the standard for the threshold showing. See Reply Br. of
Appellant at 4-5. Some of the comments were not even made by Marks's counsel. And
as for those that were, counsel was not attempting to make a threshold showing of bad
faith in order to have a second hearing scheduled; he was only saying he wanted a
second hearing where he would take the opportunity to prove his substantial assistance
and to make a threshold showing of bad faith. Marks's claim at the hearing (a claim he
did not even articulate in his motion) that he "merely provided substantial assistance
will not entitle [him] 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 (emphasis added).

       To the extent Marks is intimating in his argument that he was misled into
believing there would be a second hearing where he might raise the issue of bad faith,
we must disagree. At the start of the hearing, Marks's counsel raised his
"understanding that the purpose of this hearing was not to in fact litigate the entire issue
in the motion but merely to litigate the first part of the motion which was whether or
not an agreement existed." Tr. at 3. The court responded, "If the court finds that an
enforceable agreement existed, then we will bifurcate the proceeding and we'll have a
subsequent hearing on the issue of an appropriate sentence." Id. at 4 (emphasis
added). At the very end of the hearing, while making its ruling from the bench, the

                                            -6-
court said the issue of bad faith would come into play only if there were an enforceable
agreement—and then concluded the agreement was not enforceable. Id. at 39-40. The
court never said anything about scheduling a later hearing on the government's bad faith
in refusing to file the motion, probably because Marks never raised the issue—and
certainly did not make a substantial threshold showing of bad faith—in his written
motion.

        In his reply brief, Marks explains how, he believes, his information resulted in
substantial assistance to the government and implies that, because he provided the
necessary assistance, the government's refusal to file a Rule 35(b) motion must have
been in bad faith. Reply Br. of Appellant at 6-7. Even assuming we would accept this
as a threshold showing when it is articulated as such for the first time on appeal, such
a res ipsa loquitur argument comes nowhere close to the substantial showing necessary
under Wade. Marks's description of the extent of his assistance is "not enough, for
although a showing of assistance is a necessary condition for relief, it is not a sufficient
one. The Government's decision not to move may have been based not on a failure to
acknowledge or appreciate [Marks's] help, but simply on its rational assessment of the
cost and benefit that would flow from moving." Wade, 504 U.S. at 187.

       In sum, we conclude there was an agreement and both parties performed
according to the terms of the agreement. Because the government retained discretion
to decide whether Marks had provided substantial assistance sufficient to warrant the
Rule 35(b) motion for reduction of sentence, review of the government's refusal to file
is now limited. Marks made no substantial threshold showing of the required
unprincipled conduct on the part of the government, so there can be no judicial review
of the government's conclusion that Marks's assistance was not substantial. Further,
because of his failure to make the threshold showing, Marks is not now entitled to
remand for a hearing in the District Court on the issue of the government's alleged bad
faith or his substantial assistance.


                                            -7-
     For the reasons stated in this opinion, the judgment of the District Court denying
Marks's motion to compel is affirmed.

      A true copy.

             Attest:

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




                                          -8-
