                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2829
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Theresa Weaver, also known as            *
Theresa Fletcher,                        *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: March 3, 2000

                                   Filed: July 6, 2000
                                    ___________

Before McMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
                          ___________

LOKEN, Circuit Judge.

       Theresa Weaver pleaded guilty to conspiring to manufacture methamphetamine
in violation of 21 U.S.C. §§ 841 and 846. She appeals her mandatory minimum
sentence of ten years in prison and five years of supervised release, arguing that the
government violated the plea agreement by refusing to file a downward-departure
motion under 18 U.S.C. § 3553(e), and alternatively that the district court1 erred in
finding that the government had a rational basis not to file the motion. We affirm.

        At Weaver’s sentencing hearing, Assistant U.S. Attorney David Barnes
conceded that Weaver had given considerable assistance to the government’s
investigation and prosecution of other drug offenders, including offering to testify
against one defendant who pleaded guilty before trial. However, Barnes decided not
to file a downward departure motion because Weaver had testified as a defense witness
in another drug case, and Barnes agreed with the AUSA in charge of that case,
Katharine Fincham, that Weaver had given false testimony that undermined the
testimony of a key government witness. Weaver’s counsel argued that she should have
been believed, and in any event that this credibility dispute between Weaver and
another witness in another trial was an irrational basis upon which to withhold a
substantial assistance motion.

       The district court then held a thorough evidentiary hearing on this issue, which
included submission of a lengthy affidavit and testimony by Fincham explaining the
basis for her opinion that Weaver had testified falsely in the other case. Cf. United
States v. Pipes, 125 F.3d 638, 641 (8th Cir. 1997), cert. denied, 523 U.S. 1012 (1998)
(remanding for a hearing in a rather similar situation). At the conclusion of this hearing,
the court found (i) that Barnes and Fincham rationally believed that Weaver gave false
testimony in the other case (the court itself made no finding as to whether Weaver had
been truthful); and (ii) that Barnes’s decision not to file a substantial assistance motion
for this reason was “rationally related to [a] legitimate Government end.” Wade v.
United States, 504 U.S. 181, 186 (1992). Accordingly, lacking a substantial assistance
motion, the court concluded that it had no authority to depart downward from the


      1
      The HONORABLE D. BROOK BARTLETT, United States District Judge for
the Western District of Missouri, who to our great regret has passed away since
completing his work on this case.

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mandatory minimum sentence based upon Weaver’s substantial assistance. See United
States v. Kelly, 18 F.3d 612, 617 (8th Cir. 1994).

      On appeal, Weaver first argues that the government has conceded she provided
substantial assistance in other investigations before her alleged false testimony.
Therefore, the government was obligated to file a substantial assistance motion under
the portion of paragraph 9 of the plea agreement that provides:

      Upon the determination by the United States Attorney . . . that the
      defendant has provided “substantial assistance,” the government shall
      request the Court to reduce the sentence defendant would otherwise
      receive under . . . 18 U.S.C. § 3553(e).

However, Weaver’s argument overlooks the remaining portion of paragraph 9:

      The government reserves the right to make the sole determination as to
      whether and when the defendant has provided such substantial assistance
      and further whether to request a reduction generally or a specific sentence
      or sentence reduction.

This provision expressly preserved the government’s discretion to decide “whether and
when” Weaver had provided sufficiently substantial assistance. See United States v.
Wilkerson, 179 F.3d 1083, 1086 (8th Cir. 1999). The government acted within the
scope of that discretion in weighing the value of Weaver’s prior assistance against the
detrimental effect of her subsequent failure (in the government’s view) to give truthful
testimony in another drug prosecution. See United States v. Licona-Lopez, 163 F.3d
1040 (8th Cir. 1998). And Weaver’s allegedly untruthful testimony related directly to
her overall assistance, so this is not a case where the government’s refusal to file the
motion was “based entirely upon a reason unrelated to the quality of [the defendant’s]
assistance.” United States v. Anzalone, 148 F.3d 940, 941 (8th Cir. 1998).



                                          -3-
       Alternatively, Weaver argues that the government’s refusal to file the motion was
irrational because her allegedly false testimony was truthful and the government
attorneys had no valid basis for believing it was not. The district court conducted a full
hearing on this issue and found that Barnes and Fincham had a rational, good-faith basis
for believing Weaver had given false testimony in the other case. This credibility
determination is not clearly erroneous. It is well-settled that a legitimate belief the
defendant’s cooperation has been untruthful is a sufficient basis, under the governing
standard of Wade, for refusing to file a substantial assistance motion. “Refusing to file
a motion for a defendant who has not been completely truthful with authorities
advances the legitimate governmental interest in providing an incentive for defendants
to cooperate fully.” Licona-Lopez, 163 F.3d at 1042. Accordingly, we have no legal
basis to reverse the denial of a downward departure.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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




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