                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-1998

United States v. Isaac
Precedential or Non-Precedential:

Docket 97-7139




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Filed April 10, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-7139

UNITED STATES OF AMERICA; GOVERNMENT OF THE
VIRGIN ISLANDS

v.

RUPERT ISAAC,
       Appellant

On Appeal From the United States District Court
For the District of the Virgin Islands
(D.C. Crim. Action No. 95-cr-00038)

Argued December 11, 1997

BEFORE: SLOVITER, STAPLETON and MANSMANN,
Circuit Judges

(Opinion Filed April 10, 1998)

       Azekah E. Jennings
       James R. Fitzner (Argued)
       Office of the United States Attorney
       1108 King Street, Suite 201
       Christiansted, St. Croix
       USVI 00820
        Attorney for Appellees
       Albert J. Meade (Argued)
       50 Queen Street
       Frederiksted, St. Croix
       USVI 00840
        Attorney for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Rupert Isaac appeals from a final judgment of sentence.
We will reverse and remand for reconsideration of Isaac's
motion to enforce the plea agreement he reached with the
government.

I

Defendant Rupert Isaac was pulled over by the Virgin
Islands police for a routine traffic violation. During the
stop, the officers observed an empty holster in the side
pocket of the vehicle door. After conducting a search of the
vehicle, they found a box of live rounds of .357-caliber
ammunition and a quantity of marijuana divided into a
number of plastic "dime" bags. After arresting Isaac, the
officers conducted an inventory search of his vehicle and
located a loaded .357-caliber revolver underneath the
driver's seat floor mat.

Isaac was named in a two-count indictment charging him
with (1) carrying a firearm during and in relation to a drug
trafficking crime, contrary to 18 U.S.C. S 924(c)(1); and (2)
possession of a controlled substance with intent to
distribute, in violation of 21 U.S.C. S 841(a)(1). Shortly
thereafter, Isaac pled guilty to both counts, pursuant to an
agreement with the government, which included the
following provisions:

       1. The defendant agrees to cooperate fully and
       truthfully with the government . . . .

       . . .

       4. If the Government in its sole discretion determines
       that the defendant has fulfilled his obligations of

                                  2
       cooperation as set forth above, at the time of
       sentencing or within one (1) year thereof the
       government will . . .

       . . .

       b. Make a motion to allow the Court to depart from
       the Sentencing Guidelines pursuant to Sentencing
       Guideline S 5K1.1, if the government, in its sole
       discretion, determines that the defendant has
       provided substantial assistance in the investigation
       or prosecution of another person who has committed
       an offense.

App. at 24, 27.

The government held a series of meetings with the
defendant pursuant to the agreement. Ultimately, however,
the government determined that it would not request a
downward departure under U.S.S.G. S 5K1.1.

When no motion was filed, Isaac moved for an order
directing the government to file a S 5K1.1 motion or,
alternatively, for an order allowing him to withdraw his
guilty pleas. The motion asserted that the pleas were
entered in reliance on the government's commitment to file
a S 5K1.1 motion and that the government had failed to
honor that commitment in "bad faith." App. at 89. Isaac's
primary argument was that the plea agreement should be
specifically enforced, but he pointed out that under
Santobello v. New York, 404 U.S. 257 (1971), the court
could, in the alternative, grant him permission to withdraw
his pleas.

The government's response to this motion "readily
concede[d] that defendant Isaac did meet with law
enforcement officials on a few occasions in an attempt to
fulfill his end of the bargain. However, [the response
continued,] nothing he provided during these discussions
could [be] verified or corroborated independently to date.
Hence, his counsel was advised that the government [had]
determined, in its sole discretion, that the defendant [had]
not provided `substantial assistance.' " App. at 83.

At the oral argument on Isaac's motion, his counsel
candidly acknowledged that he had no reason to believe the

                                3
government's refusal to file a motion was based on race or
other constitutionally suspect grounds. Rather, he relied on
the plea agreement and a written supplemental agreement
in which the government had specified the kind of
information it sought from Isaac. Counsel represented to
the court that Isaac had supplied the information that he
had of the character sought, that the government had
indicated it had some reason to believe the information
might be truthful, but that it had declined to file a S 5K1.1
motion solely because it could not independently
corroborate that information. As counsel put his argument,
"[t]he government just hasn't used its vast resources to
verify what the defendant has said but that is not[a]
sufficient" reason to justify not filing the motion. App. at
56.

In response, the government's primary position was that
it had no duty to explain its decision not to file the motion
because the court had no jurisdiction to review the exercise
of "its sole discretion" under the agreement. The
government did, however, confirm that Isaac had provided
some information about criminal activity of others of the
character specified in the supplemental agreement. It
added, by way of explanation, that it had been unable to
independently verify the information provided and further
indicated that it believed Isaac had been selective in his
disclosures.

The district court denied the motion, determining that
because the agreement gave the government "sole
discretion" to decide whether a substantial assistance
motion was warranted, the court had no power to review
the government's refusal to file the motion.

Isaac moved for reconsideration. In the motion and the
course of the ensuing evidentiary hearing, Isaac advanced
new grounds, independent of the plea agreement, in
support of his application for permission to withdraw his
pleas. He asserted that there was "no factual basis" for his
pleas. App. at 107. With respect to the weapons count, he
insisted that it was clear, based on the government's own
evidence, that he had not used or carried the gun in
relation to a drug offense. With respect to the possession

                               4
count, he alleged that the government's evidence did not
demonstrate that the substance possessed was marijuana.

After an evidentiary hearing at which the district court
heard the government's evidence, the motion for
reconsideration was denied. In its opinion, the court
concluded that the government's evidence demonstrated
that Isaac had carried a gun in relation to the drug offense
of possession with intent to distribute. It pointed
specifically to the large amount of marijuana found in the
car, the presence of packaging and paraphernalia used in
distributing marijuana, the fact that the gun was loaded
and the fact that it was in a place readily accessible to
Isaac as he drove. With respect to the second count, the
court concluded that the substance discovered in Isaac's
vehicle was marijuana, pointing to the testimony of Lt.
Harvey. Harvey testified that he had field tested for
marijuana and received positive results and that he had
received a report from the DEA lab stating that the
substance had tested positive for marijuana.

The court then sentenced Isaac to the statutory
mandatory minimum five years on Count I, a consecutive
24 months for Count II, three years supervised release, a
$1,000 fine, and a $100 special assessment. This appeal
followed.

II

Isaac contends the district court erred in determining
that it had no power to review the government's refusal to
file a substantial assistance motion pursuant to the plea
agreement. The district court characterized Isaac's motion
as a request for the court to "review independently the
quality of his assistance to determine whether it was indeed
`substantial.' " App. at 95. The district court declined this
invitation, choosing to rely upon the agreement's language
that the government had "sole discretion" whether to make
the S 5K1.1 motion. The question on appeal is whether this
approach was erroneous. Our review of this question of law
is plenary. See United States v. Moscahlaidis, 868 F.2d
1357, 1360 (3d Cir. 1989).

                               5
The sentencing guidelines provide that "[u]pon motion of
the government stating that the defendant has provided
substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court
may depart from the guidelines." U.S.S.G. S 5K1.1. The
language of S 5K1.1 requires that the government make a
motion before a district court can depart from the
sentencing guidelines range in recognition of a defendant's
substantial assistance. Since S 5K1.1 expressly leaves
discretion to the government, it is clear that, in the absence
of a plea agreement, a district court has an extremely
limited role in reviewing the government's refusal to move
for a departure.

In Wade v. United States, 504 U.S. 181 (1992), the
Supreme Court outlined a narrow space for a defendant to
challenge the government's refusal to file a S 5K1.1 motion
in the absence of a plea agreement. Wade voluntarily
provided the government with information used to secure a
conviction of another person, and then sought to require
the government to file a S 5K1.1 motion. The Court
determined that the prosecutor's discretion to file the
motion was almost unfettered: the government's refusal
could only be challenged if it "was based on an
unconstitutional motive," like race or religion. 504 U.S. at
185-86. "It follows that 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."
Id. at 186. Thus, where the defendant has not entered a
plea agreement, it is clear that the prosecutor has almost
unreviewable discretion over whether to file a substantial
assistance motion.

However, it is equally clear that when a defendant has
entered into a plea agreement expressly requiring the
government to make a S 5K1.1 motion, a district court has
broad powers to enforce the terms of the plea contract. In
Santobello v. United States, 404 U.S. 257 (1971), the
Supreme Court held that a plea agreement reached with
the government is enforceable against the government.
Santobello was initially charged with two gambling
violations. He agreed to enter a guilty plea to one offense in
return for the prosecutor's promise not to recommend a

                               6
specific sentence before the judge. However, at sentencing
the prosecutor nonetheless recommended the maximum
prison term allowed for the offense. In these circumstances,
the Court had little difficulty vacating the sentence since
Santobello had expressly " `bargained' . . . for a particular
plea . . . on [the] condition that no sentence
recommendation would be made by the prosecutor." 404
U.S. at 262. Thus, the Court held that "when a plea rests
in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be
fulfilled." Id.

This court has reasoned from Santobello to the general
proposition that "[a]lthough a plea agreement occurs in a
criminal context, it remains contractual in nature and is to
be analyzed under contract-law principles." United States v.
Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989). Thus,
"once the government makes an agreement with a
defendant to file a [S 5K1.1] motion, it is bound by the
terms of the agreement. It is a simple matter of contract
law." United States v. Carrara, 49 F.3d 105, 107 (3d Cir.
1995).1 The scope of review given a prosecutor's refusal to
make a substantial assistance motion under S 5K1.1 is
thus dependant upon the existence of a contractual
relationship between the defendant and the government. In
the absence of a plea agreement, review is allowed only for
an unconstitutional motivation. If the plea agreement
contemplates a motion, however, the district court is free to
apply contract principles to determine whether the
agreement has been satisfied.

In this case, Isaac reached a plea agreement with the
government that does not expressly promise that the
government will file a S 5K1.1 motion; rather, the
government has retained "sole discretion" whether to make
_________________________________________________________________

1. The Court in Wade did not reach the question of the effect of a plea
agreement on the prosecutor's discretion to file a substantial assistance
motion. Indeed, the Court refused to upset prior precedent in this area,
specifically noting that an "agreement on the Government's behalf to file
a substantial-assistance motion" was not at issue. 504 U.S. at 185
(citing Santobello, 404 U.S. at 262-63).

                               7
the motion. The question this case presents is whether the
district court can review a prosecutor's refusal to make the
motion under such restrictive terms. The district court
decided that though "Wade did not involve a plea
agreement, its holding nonetheless applies" to these facts.
App. at 97. The district court distinguished the contract
analysis typically used to construe a plea agreement by
reference to the discretion afforded the government in the
agreement. Since Isaac agreed to leave the government with
"sole discretion" whether or not to make theS 5K1.1
motion, the district court found this case closer to Wade
than to Santobello. See App. at 97-100; see also United
States v. Forney, 9 F.3d 1492, 1501-02 (11th Cir. 1993)
(holding Wade controls on similar facts).

We conclude that this was error. A close reading of Wade
indicates that its teachings are confined to situations in
which there is no plea agreement. Given the general rule
that plea agreements are contractual in nature, district
courts must be able to review the parties' performance
under the terms of such an agreement. Our recent decision
in United States v. Roman, 121 F.3d 136, 142-143 (3d Cir.
1997), illustrates this principle. At issue in Roman was
whether the defendant had provided information sufficiently
"complete" to trigger the government's promise to file a
S 5K1.1 motion. The district court had reviewed the terms
of the plea agreement and evaluated the cooperation the
defendant provided, concluding that the government
correctly refused to make the substantial assistance motion
under the circumstances. We treated the issue of
compliance with the plea agreement as a straight forward
matter of contract law and affirmed the district court. See
121 F.3d at 142-43.

Two other circuits considering whether to enforce a plea
agreement that reserves to the government "sole discretion"
have similarly applied contract principles. While recognizing
the wide discretion afforded the prosecutor by the language
of the plea agreement, these cases have nevertheless
required district courts to make certain the prosecutor
exercises "good faith" in carrying out her obligations under
the contract. In United States v. Rexach, 896 F.2d 710 (2d
Cir. 1990), like the case before us, the Second Circuit

                               8
reviewed "a cooperation agreement [that] provide[d] for a
motion for downward departure on condition the defendant
provide substantial assistance to be determined in the
discretion of the prosecutor." Id. at 714. The court applied
the contract principle that "where the agreement is
conditioned on satisfaction of the obligor, the condition is
not met `if the obligor is honestly, even though
unreasonably, dissatisfied.' " Id. at 713 (quoting
Restatement (Second) of Contracts S 228, Comment a). The
court reasoned from this principle that a prosecutor's
discretion under such a plea agreement, though broad, is
"not completely unlimited." Id. at 714. The court concluded
that a district court's review of the government's refusal to
file the S 5K1.1 motion under such an agreement "is limited
to deciding whether the prosecutor has made its
determination in good faith." Id. Thus, the government's
reservation of discretion in the plea agreement merely limits
and does not strip the district court of power to review the
government's performance under the agreement. The Tenth
Circuit has since adopted the Rexach analysis. See, e.g.,
United States v. Lee, 989 F.2d 377, 380 (10th Cir. 1993);
United States v. Vargas, 925 F.2d 1260, 1266 (10th Cir.
1991).2

The district court here relied upon the Eleventh Circuit's
opinion in Forney to reject the analysis of Rexach. Forney,
as well as the district court, reasoned that Rexach was
flawed because it does not survive the Supreme Court's
decision in Wade. See 9 F.3d at 1499 n. 2.3 We disagree. As
we suggested above, Wade did not involve a plea
agreement, and the Court specifically excluded
consideration of a plea agreement in rendering its opinion.
_________________________________________________________________

2. The Tenth Circuit's recent decision in United States v. Courtois, 131
F.3d 937 (1997), cited in the dissent, contains language seemingly to the
contrary. However, Courtois did not involve an allegation of bad faith and
did nothing to impugn the earlier decisions in Lee and Vargas.

3. Forney more generally suggested that courts have refused to follow a
contract analysis post-Wade. See 9 F.3d at 1501 n. 4. However, both the
Second Circuit's decision in United States v. Knights, 968 F.2d 1483 (2d
Cir. 1992), and the Tenth Circuit's decision in United States v. Lee, 989
F.2d 377, 380 (10th Cir. 1993), were decided post-Wade and fully
adopted the Rexach analysis.

                               9
See 504 U.S. at 185. To apply Wade in this case would
reject settled Third Circuit precedent that construes plea
agreements according to traditional contract principles.
Accordingly, we find more persuasive the analysis of the
Second Circuit in Rexach that a district court is empowered
to examine for "good faith" a prosecutor's refusal to file a
S 5K1.1 motion pursuant to a plea agreement that gives the
prosecutor "sole discretion" to determine whether the
defendant's assistance was substantial.4

As we have explained, the difference between the
situation now before us and that in Wade is that the
defendant here has bargained away important rights. When
a defendant pleads guilty pursuant to a plea agreement, he
gives up his rights to a fair trial, confrontation, and a
potential acquittal by a jury; the government, in return,
secures its conviction without effort or risk. When the
agreement contains a S 5K1.1 provision like the one
involved here, it is not the case that the clause regarding
government discretion deprives the defendant of any
reasonable expectation of receiving something in return for
the surrender of his rights. Isaac did not strike an illusory
bargain. He, as would anyone else in the same position,
had a reasonable expectation that there would be a
discretionary evaluation of his cooperation in good faith. As
_________________________________________________________________

4. The dissent, post at p. 18-19, suggests that the "overwhelming
majority" of other circuits to decide this issue have determined that
Wade applies in the context of a plea agreement that gives the
prosecution "sole discretion" to determine whether to file a S 5K1.1
motion. However, most of the cases cited by the dissent do not involve
an allegation of bad faith on the part of the prosecution, nor do they
apply contract principles in construing the plea agreement at issue. See
United States v. Price, 95 F.3d 364 (5th Cir. 1996) (no discussion of bad
faith or contract principles); United States v. Romsey, 975 F.2d 556 (8th
Cir. 1992) (same); United States v. Raynor, 939 F.2d 191 (4th Cir. 1991)
(same); United States v. Mote, 1996 WL 528437 (9th Cir. Sept. 19, 1996)
(unpublished opinion) (no discussion of bad faith). Only the Eleventh
Circuit in Forney and, arguably, the Seventh Circuit in United States v.
Burrell, 963 F.2d 976, 984-85 (7th Cir. 1992), and the Fifth Circuit in
United States v. Aderholt, 87 F.3d 740, 742-43 (5th Cir. 1996), have
come close to addressing the precise issue decided in this case.
Comparing the analysis in those cases to that of the Second and Tenth
Circuits, we find the latter more persuasive.

                               10
a result, this is not a situation where nothing "is
reasonably due [him] in the circumstances." Santobello, 404
U.S. at 262.

Nor is it the case that Isaac's reasonable expectation
cannot be honored, and the government held to its bargain,
without taking the courts into foreign territory and
undermining the Congressional intent behind S 5K1.1.
Good faith is not a concept novel to the courts. Since
"[e]very contract imposes upon each party a duty of good
faith and fair dealing in its performance," Restatement
(Second) of Contracts S 205, determining whether an
allegation of bad faith has been established is a common
occurrence in the enforcement of contracts. All that our
decision requires of the district courts is that they apply
settled principles of contract law to a particular type of
contract. Nor does our decision require a district court to
interfere with the prosecutorial discretion that we believe
Congress intended United States Attorneys to exercise. The
sole requirement is that the government's position be based
on an honest evaluation of the assistance provided and not
on considerations extraneous to that assistance.5

We thus hold that a district court has jurisdiction to
determine whether the government's refusal to file a
S 5K1.1 motion in circumstances such as these is
attributable to bad faith and, accordingly, in violation of the
plea agreement. By so holding we do not suggest that an
evidentiary hearing must be held every time a defendant
challenges the prosecutor's exercise of discretion. Rather,
_________________________________________________________________

5. The dissent, post at p. 18, contends that "Isaac could not have
reasonably believed that the government would automatically file a
S 5K1.1 motion if he cooperated." This argument misses the point. The
issue is not whether the government agreed to automatically file a
S 5K1.1 motion upon cooperation; rather, the issue is whether Isaac
could reasonably believe that under the plea contract, the government
would evaluate his cooperation in good faith. It seems to us that the
analysis of the dissent leads inescapably to the conclusion that a
defendant who secures a S 5K1.1 commitment from the government like
the one involved here stands in exactly the same position after he
extracts his bargain from the government as he did before. That analysis
thus renders superfluous the provision of the plea contract concerning
the filing of a S 5K1.1 motion.

                               11
we agree with the approach that is taken in the Second
Circuit as articulated in United States v. Imtiaz, 81 F.3d
262, 264 (2d Cir. 1996):

       [T]o trigger judicial review of the prosecutor's decision,
       the defendant "must first allege that he . . . believes the
       government is acting in bad faith." United States v.
       Khan, 920 F.2d 1100, 1106 (2d Cir. 1990), cert. denied,
       499 U.S. 969, 111 S.Ct. 1606, 113 L.Ed.2d 669 (1991).
       The government "may rebut this allegation by
       explaining its reasons for refusing to depart." Knights,
       968 F.2d at 1487. If the government explains its
       reasons, the defendant must "make a showing of bad
       faith to trigger some form of hearing on that issue." Id.
       (internal quotation marks omitted). Unless the
       government's reasons are wholly insufficient, id. at
       1487-89, or unless the defendant's version of events,
       supported by at least some evidence, contradicts the
       government's explanation, see United States v.
       Leonard, 50 F.3d 1152, 1157-58 (2d Cir. 1995), no
       hearing is required.

In this case, Isaac alleged in his original motion that the
government acted in bad faith when it decided not to file a
S 5K1.1 motion. The district court did not specifically call
upon the government to explain its refusal to file a motion
because it ultimately concluded that it had no jurisdiction
to review the government's decision. Before us, the
government has urged only that the district court was
correct in its view of the law and that the government has
no duty to tender an explanation. While the record contains
some explanatory comments from the prosecutor during
oral argument on Isaac's motion, we conclude that the
government should have the opportunity to formally state
its explanation. On remand, the district court will call upon
the government to explicate its reasoning and, assuming
that a facially plausible reason is advanced, will provide
Isaac with an opportunity to produce evidence giving
reason to question the justification advanced. Only if Isaac
comes forward with such evidence will the district court be

                                12
required to hold a hearing and make a finding as to
whether the government has acted in good faith. 6

III

Isaac raised new grounds in his motion for
reconsideration in support of his contention that he should
be permitted to withdraw his guilty pleas. The district court
considered those grounds on their merits despite Isaac's
tardiness in raising them and for that reason, we will not
regard them as procedurally barred. If the district court
resolves on remand that there has been no breach of the
plea agreement by the government, it will still have these
alternative grounds before it. Since the district court has
already expressed its view regarding their merit, and since
we perceive no point in waiting until an appeal from their
second rejection, we now proceed to pass on the propriety
of the district court's disposition of Isaac's alternative
arguments.

Fed. R. Crim. P. 32(e) provides that "[i]f a motion to
withdraw a plea of guilty . . . is made before sentence is
imposed, the court may permit the plea to be withdrawn if
the defendant shows any fair and just reason." It is the
defendant's burden to demonstrate a "fair and just reason"
for withdrawing his or her guilty plea. Government of the
Virgin Islands v. Berry, 631 F.2d 214, 220 (3d Cir. 1980).
Since the rule leaves discretion to the district court, we
have determined that "there is no absolute right to
_________________________________________________________________

6. Presumably based on the prosecutor's comments at oral argument,
the district court's opinion observes that the government decided not to
file a S 5K1.1 motion "because the information defendant provided could
not be independently verified or corroborated." It did not have occasion
to address whether this alone would support a finding that the
government acted in good faith. We express no opinion on that issue, but
it may be necessary for the district court to do so on remand. If, for
example, it turns out that this is an accurate characterization of the
government's reasoning and Isaac is able to show that he provided full,
detailed and complete information about the commission of a crime by
another which the government acknowledged that it believed to be true,
the district court would have to decide whether a refusal to file based
solely on the government's inability to independently corroborate Isaac's
information constitutes a good faith refusal.

                               13
withdraw a guilty plea" and that a decision not to grant
such a motion "will only be disturbed if the court has
abused its discretion." Id. at 219-20; see also United States
v. Huff, 873 F.2d 709, 712 (3d Cir. 1989).

With respect to the weapons count, Isaac asserted only
that there was no factual basis to support his plea. The
district court correctly determined that this is not the case.
There is ample evidence to support a finding of guilt on this
count. See United States v. Eyer, 113 F.3d 470, 475-76 (3d
Cir. 1997). While it may be argued that the government's
evidence does not require a finding that he carried a
firearm in relation to a drug offense, that is clearly not
alone enough to warrant withdrawal of a guilty plea that
was knowingly and voluntarily entered. Once a defendant
has entered a voluntary and informed plea, the fact that he
changes his mind about his chances at trial is simply not
enough to justify relieving him of the consequences of his
solemn admission. See United States v. Jones, 979 F.2d
317, 318 (3d Cir. 1992); Everett v. United States, 336 F.2d
979, 982-83 (D.C. Cir. 1964).7

With respect to the possession with intent to distribute
count, Isaac asserted only that there was no factual basis
to support his plea because the government's evidence did
not establish the substance in his vehicle to be marijuana.
The district court correctly determined that there was a
factual basis for believing that substance to be marijuana.
Again, we perceive no "fair and just" reason for permitting
Isaac to withdraw his plea.

IV

The judgment of the district court will be reversed and
the case will be remanded to the district court for further
proceedings consistent with this opinion.
_________________________________________________________________

7. We note that Isaac asserts no other "fair and just" reason that would
justify permission to withdraw his plea. The record contains no affidavit,
for example, averring that his decision not to plead guilty to Count I was
made in reliance on a state of the controlling law that changed between
the time of his plea and the time of his motion to withdraw.

                               14
MANSMANN, Circuit Judge, dissenting.

In this appeal we are asked to determine the extent to
which a district court may review the government's decision
to refrain from filing a 5K1.1 motion where the government
has entered into a plea agreement which preserves its
discretion to determine whether such a motion is
appropriate. While I agree with the majority that Santobello
v. New York, 404 U.S. 257 (1971), provides the analytical
framework we must initially apply in evaluating the terms
of a plea agreement, I disagree with the majority's
conclusion that where a plea agreement grants a prosecutor
sole discretion to determine whether a defendant's
assistance was substantial, the court must nevertheless
evaluate the prosecutor's exercise of that discretion to
determine if the prosecutor made his decision in good faith.
In addition, I do not subscribe to the majority's adoption of
the Second Circuit's approach for determining when a
hearing in necessary to assess the government's good faith.
Accordingly, I respectfully dissent.

I.

In our criminal justice system, we have historically
entrusted the government with broad discretion to make
prosecutorial decisions. Consequently, we have generally
limited our review of this discretion to decisions based on
an unconstitutional motive. Wade v. United States, 504
U.S. 181 (1992); Wayte v. United States, 470 U.S. 598
(1985). We have restricted our review because the
appropriate exercise of prosecutorial discretion is
particularly ill-suited to judicial review; prosecutorial
decisions generally are not readily susceptible to the kind of
analysis courts are competent to undertake. Wayte, 470
U.S. at 607. Moreover, extensive judicial supervision of
prosecutorial discretion might prove detrimental to the
criminal justice system; review subjects the prosecutor's
motives and decisionmaking to outside inquiry thereby
chilling law enforcement and undermines prosecutorial
effectiveness by revealing the government's enforcement
policy. Id.

Congress has deemed it appropriate to confer
prosecutorial discretion upon the government for the

                               15
purposes of recommending a departure from sentencing
guidelines due to a defendant's substantial assistance. See
18 U.S.C. S 3553(e)(1994); U.S. Sentencing Guidelines
Manual (U.S.S.G.) S 5K1.1 (1997). Under section 5K1.1, a
district court may award a downward departure from an
otherwise mandatory sentencing range only if the
government files a motion stating that the defendant has
provided substantial assistance in investigating or
prosecuting another person. U.S.S.G. S 5K1.1. This section
gives the government the power, but not the duty, tofile a
motion when the defendant has substantially assisted,
thereby leaving the decision of whether to file a substantial
assistance motion in the sole discretion of the government.
Wade, 504 U.S. at 185. A prosecutor's refusal tofile a
5K1.1 motion is evaluated like all other prosecutorial
decisions; it is subject to judicial review only where the
defendant can make a substantial showing of an
unconstitutional motive. Id. at 185-86.

A.

The Wade mandate restricting judicial review of a
prosecutor's refusal to file a 5K1.1. motion does not apply,
however, where a prosecutor has specifically bargained
away his discretion by entering into a plea agreement which
obligates the government to file a 5K1.1 motion. Wade did
not involve a plea agreement. In fact, citing Santobello v.
New York, 404 U.S. 257, 262-63 (1971) and United States
v. Conner, 930 F.2d 1073, 1075-77 (4th Cir. 1991), the
Court specifically noted that the defendant in Wade did not
claim that the government's discretion to file a 5K1.1
motion was superseded by an agreement. Wade, 504 U.S.
at 185. Implicit in Wade, therefore, is the proposition that
a court may review a prosecutor's decision not tofile a
5K1.1 motion for more than just unconstitutional motive if
the prosecutor has entered into a plea agreement which
specifically limits his otherwise broad discretion to file a
substantial assistance motion.

The Court's references to Santobello and Conner are
instructive on this point. In Santobello, the Court held that
"when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be

                               16
part of the inducement or consideration, such promise
must be fulfilled." Santobello, 404 U.S. at 262. In Conner,
our sister court of appeals, for the Fourth Circuit, applied
the holding of Santobello to a plea agreement in which the
government promised to file a 5K1.1 motion in return for
the defendant's substantial assistance. Conner, 930 F.2d at
1076-77. The court held that "once the government uses its
S 5K1.1 discretion as a bargaining chip in the plea
negotiation process, that discretion is circumscribed by the
terms of the agreement." Id. at 1075.

After Conners, courts have consistently held that a
prosecutor's plea agreement promise to file a 5K1.1 motion
in exchange for a defendant's substantial assistance is
subject to judicial review. See, e.g., United States v. Roman,
121 F.3d 136 (3d Cir. 1997), cert. denied, 118 S. Ct. 722
(1998); United States v. Dixon, 998 F.2d 228 (4th Cir.
1993). It is therefore clear that when a prosecutor enters
into a plea agreement which diminishes his discretion to
determine whether the defendant has rendered substantial
assistance, courts may review a prosecutor's decision not to
file a 5K1.1 motion to determine if the defendant's
assistance was substantial and if the prosecutor acted in
good faith in failing to file the motion.

B.

The more interesting question presented by this appeal,
however, is whether a district court may review the
government's decision to refrain from filing a 5K1.1 motion
when the plea agreement provides that the government
retains sole discretion to determine whether the motion is
appropriate.

To answer this question, we must start with the
approach to analyzing plea agreements annunciated in
Santobello. Under Santobello, we must determine whether
the prosecutor has made a promise to file a 5K1.1 motion
which induced the defendant to enter into the plea
agreement. As noted by the majority, the plea agreement
here provides, in relevant part, as follows:

       1. The defendant agrees to cooperate fully and
       truthfully with the government . . . .

                               17
       4. If the Government in its sole discretion determines
       that the defendant has fulfilled his obligations of
       cooperation as set forth above, at the time of
       sentencing or within one (1) year thereof the
       government will . . .

       b. Make a motion to allow the Court to depart from
       the Sentencing Guidelines pursuant to Sentencing
       Guideline S 5K1.1, if the government, it in its sole
       discretion, determines that the defendant has
       provided substantial assistance in the investigation
       or prosecution of another person who has committed
       an offense . . . .

App. at 24, 27. Given that the plea agreement clearly states
that a 5K1.1 motion will only be filed if the government, in
its sole discretion, determines that Isaac has provided
substantial assistance, Isaac could not have reasonably
believed that the government would automatically file a
5K1.1 motion if he cooperated. Accordingly, under
Santobello, the government has not made a promise to file
a 5K1.1 motion which reasonably induced Isaac to enter
the plea agreement.

In the absence of a promise by the prosecutor tofile a
5K1.1 motion which induced Isaac to enter the plea
agreement, the principles set forth in Santobello are
inapposite. We are therefore left with the same
prosecutorial discretion that was at issue in Wade;
discretion that has not been limited by a plea agreement. In
this situation, Wade inescapably governs the extent of our
review. Accordingly, because Isaac concedes that there is
no reason to believe that the government's refusal to file a
5K1.1 motion was based on constitutionally suspect
grounds, the district court correctly refused to review that
decision pursuant to Wade.

The overwhelming majority of our sister courts that have
decided this issue have reached this conclusion. See, e.g.,
United States v. Courtois, 131 F.3d 937, 939 (10th Cir.
1997)(holding that where plea agreement states that the
discretion to file a downward departure motion rests with
the government, the government does not obligate itself to
file a 5K1.1 motion and the court reviews only for

                               18
unconstitutional motive); United States v. Mote, 97 F.3d
1462, 1996 WL 528437 (9th Cir. September 19,
1996)(unpublished opinion)(holding that government does
not breach plea agreement by refusing to file 5K1.1 motion
where agreement states that the government alone will
determine whether to file the motion); United States v. Price,
95 F.3d 364, 368 (5th Cir. 1996)(stating "where the plea
agreement expressly states that the government retains
`sole discretion' over the decision as to whether or not to
submit a motion, we have held that a refusal to do so is
reviewable only for unconstitutional motive."); United States
v. Forney, 9 F.3d 1492 (11th Cir. 1993); United States v.
Romsey, 975 F.2d 556 (8th Cir. 1992)(holding that where
plea agreement preserves prosecutorial discretion tofile
5K1.1 motion, court will only review for unconstitutional
motive); United States v. Burrell, 963 F.2d 976 (7th Cir.
1992); United States v. Raynor, 939 F.2d 191, 195 (4th Cir.
1991)(holding that where plea agreement did not promise a
5K1.1 motion, court correctly refused to inquire into
government's reasons for not filing the motion ).1

In United States v. Burrell, 963 F.2d 976 (7th Cir. 1992),
for example, the Court of Appeals for the Seventh Circuit
rejected the defendant's argument that the government had
breached its plea agreement by refusing to file a 5K1.1
motion where the plea agreement granted the government
sole discretion to file the motion. The court reasoned that
because the agreement did not require the government to
move for a departure in exchange for the defendant's guilty
plea, there was no breach of the agreement. Id. at 985. The
_________________________________________________________________

1. I disagree with the majority's characterization of Mote, Price, Romsey,
and Raynor. These cases do apply contract principles in construing the
plea agreements at issue. See, e.g., Mote, 1996 WL 528437 at *1 (stating
"[a] plea agreement is contractual in nature and is subject to contract
law standards"); Price, 95 F.3d at 368 (stating that issue turns on
"specific language of the plea agreement at issue"); Romsey, 975 F.2d at
558 (basing decision on "carefully-worded plea agreement"); Raynor, 939
F.2d at 195 (holding that government did not promise to file a 5K1.1
motion under terms of plea agreement). In addition, each of these cases
holds that where the government has entered into a plea agreement
which preserves its discretion to file a 5K1.1 motion, the courts may only
review for unconstitutional motive. Under this rule, allegations of
prosecutorial bad faith are irrelevant.

                               19
court further determined that because the defendant had
not asserted that the government's refusal was based on an
unconstitutional motive, the government's refusal to move
for a departure was within its prosecutorial discretion. Id.

Similarly, in United States v. Forney, 9 F.3d 1492, 1501-
02 (11th Cir. 1993), the Court of Appeals for the Eleventh
Circuit applied the Wade standard to a prosecutor's
decision not to file a 5K1.1 motion where the plea
agreement preserved the government's prosecutorial
discretion. The plea agreement at issue in Forney required
only that the government consider filing a 5K1.1 motion.
The court reasoned that because there was no evidence
that the government did not consider filing the motion,
which is all it promised to do, the government had not
failed to comply with the explicit provisions of the plea
agreement. Forney, 9 F.3d at 1500 n.2. The court
concluded that the contract analysis suggested by
Santobello therefore was not implicated. Id.

C.

The majority's holding that when a plea agreement is
involved courts must review a prosecutor's failure to file a
5K1.1 motion for good faith even if the plea agreement
reserves the prosecutor's discretion to make the motion
fails to adhere faithfully to Wayte, Santobello and Wade
and, moreover, undermines the policies underlying those
decisions.

I believe the majority's position contravenes the basic
policies the Court outlined in Wayte. Wayte teaches that
judicial review is inappropriate for prosecutorial decisions
that are not readily susceptible to the kind of analysis
courts are competent to undertake. Wayte, 470 U.S. at 607.
Because a prosecutor can legitimately exercise his
discretion to not file a substantial assistance motion for a
variety of reasons which are unrelated to the amount of
assistance the defendant has provided, where a plea
agreement specifically preserves that discretion, courts are
not competent to review the decision not to file. See
generally, Wade, 504 U.S. at 187 (noting that the
government may choose not to move "simply on its rational

                                20
assessment of the cost and benefit that wouldflow from
moving"). Wayte further emphasizes that review of
prosecutorial discretion detrimentally affects the
administration of justice. Wayte, 470 U.S. at 607. Where a
plea agreement specifically preserves prosecutorial
discretion, judicial scrutiny of the prosecutor's decision not
to file a substantial assistance motion chills the
government's ability effectively to obtain a defendant's
cooperation by undermining the government's policy on
what assistance should be deemed to be substantial.

The majority's position also contravenes Santobello. The
Court explained in Santobello that plea agreements are an
essential and highly desirable component of the
administration of justice and are to be encouraged when
properly obtained. Santobello, 404 U.S. at 260-61. As long
as the defendant has been properly apprised of the terms of
the agreement and voluntarily enters the plea agreement,
the plea agreement must be enforced. Santobello requires
only that the defendant receive "what is reasonably due in
the circumstances." Id. at 262. Where, as here, a plea
agreement provides that the prosecutor retains sole
discretion to file a substantial assistance motion, the
defendant cannot sensibly contend that he did not receive
what he was reasonably due when the prosecutor exercises
the discretion he has retained by not filing the motion. The
majority's contrary position is inconsistent with the basic
premise of Santobello that a plea bargain, like any contract,
should be interpreted in accordance with the reasonable
expectations of the parties.2
_________________________________________________________________

2. The majority's analysis disregards the government's reasonable
expectations in entering into the plea agreement with Isaac. As noted by
the court in Forney:

       [T]he government drafts a plea agreement requiring cooperation from
       a defendant so that it will not be obligated to make a 5K1.1 motion
       unless the assistance, which may have been misrepresented by the
       defendant prior to entering the plea agreement or for the purpose
of
       obtaining a plea agreement, is useful.

Forney, 9 F.3d at 1503 n.4. The government's expectation that the
unambiguous sole discretion language in Isaac's plea agreement would
accomplish this goal is inherently reasonable and should be afforded due
consideration.

                               21
In light of the policy concerns underlying Wayte and
Wade and the fact that, under Santobello, the plea
agreement here does not abrogate but rather preserves the
extent of prosecutorial discretion at issue in Wade, I must
dissent. While Wade may not apply to a case where a
prosecutor has bargained away his discretion, this is not
such a case.

Furthermore, the majority's position fails to take into
account that Congress has specifically set forth a statutory
scheme which places the broad discretion to determine
whether a defendant's assistance is substantial in the
hands of prosecutors, not judges.3 Absent a plea agreement
in which the government specifically bargains away this
broad discretion, the courts must not interfere with the
system Congress established. As aptly noted by one court,
"[a]ny change in governmental discretion relating to 5K1.1
motions stated in these statutes must come from Congress
or the Sentencing Commission, and not from the courts."
Forney, 9 F.3d at 1502 n.4.

II.

I also disagree with the majority's adoption of the Second
Circuit's test in United States v. Imtiaz, 81 F.3d 262 (2d Cir.
1996) which sets forth the burdens of production that
would trigger judicial review. Under Imtiaz, a defendant's
mere allegation that the government acted in bad faith is
sufficient to trigger the government's obligation to explain
its reasoning for refusing to depart. Imtiaz, 81 F.3d at 264.
Based on the previously articulated policy concerns relating
to prosecutorial discretion, at a minimum the defendant
should be required to produce some evidence that the
government has acted in bad faith before the government
should be required to state its reasons for refusing to file a
_________________________________________________________________

3. As several courts have recognized, the government is not only in the
best position to determine whether the defendant has provided
substantial assistance but also has a very strong incentive to exercise
its
discretion fairly in order to encourage future cooperation. Forney, 9 F.3d
at 1503 n.4; United States v. Doe, 934 F.2d 353, 358 (D.C. Cir. 1991);
United States v. La Guardia, 902 F.2d 1010, 1015-16 (1st Cir. 1990).

                               22
substantial assistance motion. Accordingly, I would not
adopt the Imtiaz approach.

III.

For the foregoing reasons, I would affirm the district
court's order in its entirety.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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