United States v. Wilson, Reginald ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2170
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REGINALD D. WILSON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01-CR-30040-MJR—Michael J. Reagan, Judge.
____________
ARGUED NOVEMBER 13, 2003—DECIDED DECEMBER 2, 2004
____________
Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This appeal represents the tail
end of Reginald Wilson’s protracted effort to obtain a
shorter prison sentence for his July 2001 conviction for
possession with intent to distribute crack cocaine. See 21
U.S.C. § 841(a)(1). Wilson pleaded guilty pursuant to a plea
agreement contemplating the possibility that, based on
Wilson’s cooperation, the government would move for a
reduced sentence on his behalf under either U.S.S.G.
§ 5K1.1 or Rule 35(b) of the Federal Rules of Criminal
Procedure. Wilson did cooperate, and indeed the govern-
ment admitted at sentencing that it intended to file a Rule
35(b) motion, so after waiting nearly a year for the govern-
2 No. 03-2170
ment to take action to trigger a sentence reduction, Wilson
moved to compel the government to file a Rule 35(b) motion
on his behalf. The district court ultimately denied Wilson’s
motion, and he appeals. Because the government’s decision
not to file a Rule 35(b) motion lacked a rational relationship
to a legitimate government interest and was made in bad
faith, we vacate the order denying Wilson’s motion and
remand for further proceedings.
I. BACKGROUND
In November 2000 police arrested Wilson after discover-
ing 25 grams of crack cocaine in his car. At the time, Wilson
was serving a term of supervised release for a 1993 drug
conviction. Following this November arrest, Wilson cooper-
ated with the government in various ways. He confessed
that he had obtained 56 grams of cocaine from a supplier,
whom he identified to government agents. He also identified
several individuals from whom he had purchased mari-
juana. And from December 2000 to February 2001, Wilson
worked as a confidential informant for the government.
Ultimately the government charged him with possessing
with intent to distribute in excess of five grams of crack, in
violation of 21 U.S.C. § 841(a)(1).
Wilson and the government executed a written plea
agreement, which provides in relevant part:
Defendant and the Government agree that based
upon substantial assistance rendered through the
complete and total cooperation of Defendant, the
Government may, in the sole discretion of the
United States Attorney, file either a motion under
§ 5K1.1 of the Sentencing Guidelines or a motion
under Rule 35 of the Federal Rules of Criminal
Procedure advising the Court of a recommended
reduction in sentence. The Motion, if any, will only
be filed if the assistance rendered by the Defendant
No. 03-2170 3
is found to be complete and thoroughly truthful,
regardless of the outcome of any trial or hearing at
which the Defendant may testify. The Defendant
understands that any reduction of sentence, and
the extent of that reduction, lies in the discretion of
the Court.
(emphasis in original). Wilson also agreed to waive his right
to appeal any sentence or fine within the statutory maxi-
mum and his right to challenge his sentence in a collateral
attack.
Wilson pleaded guilty pursuant to this agreement, but
before sentencing he and his attorney discovered that
Wilson had spent two extra years in prison for his 1993
conviction. The presentence investigation report for Wilson’s
current conviction revealed that the government had re-
quested, and the district court had granted, a downward
departure under Rule 35(b) vis-á-vis the former conviction.
On that conviction Wilson had originally been sentenced to
a term of 70 months’ imprisonment in July 1993. Nearly a
year later, the government had moved to reduce his sen-
tence to 46 months’ imprisonment—a motion the district
court granted in November 1995. But on account of a bur-
eaucratic bungle, the reduction was never communicated to
the individuals who could effectuate it (presumably officials
at the Bureau of Prisons). Thus, Wilson neither learned
about nor received the benefit of the two-year reduction the
district court had granted him.
The discovery, in part, prompted Assistant Federal Public
Defender Lawrence Fleming (who did not represent Wilson
in the 1993 case) to move for a downward departure in the
current case. The motion requested that the court depart
downward to 120 months from the range otherwise yielded
by the relevant guidelines calculations (188 to 235 months)
to account for the lost two years and because, Fleming
argued, Wilson’s criminal history category overstated the
4 No. 03-2170
seriousness of his prior offenses. Before filing the motion,
Fleming had tried to bring the situation to the attention of
the prosecutor, Assistant United States Attorney James
Porter (who also prosecuted Wilson’s 1993 case), but Fleming
never got through to Porter, who did not return Fleming’s
voice mails. Fleming thus went ahead and filed the motion
and with the service copy included a transmittal letter to
Porter “confirming” what his telephone messages had ex-
plained: that the unexpected discovery of Wilson’s two extra
years in prison had precipitated the unusual departure
request. Fleming’s letter also explained that the downward
departure motion contemplated that the government would
still file its own motion to reward Wilson for his assistance.
In closing, Fleming expressed his hope that Porter “and the
powers that be” would not object to the motion, which
Fleming thought was “the right thing to do.”
Porter objected. He wrote Fleming a letter of his own,
announcing that he was “simply floored” by Fleming’s at-
tempt to secure a downward departure on Wilson’s behalf,
a move Porter labeled “unconscionable.” And although no
term in Wilson’s plea agreement can even arguably be read
to prohibit Wilson from moving for a downward departure,
Porter took the position in his letter that Wilson had
breached the plea agreement by filing his motion. Thus,
warned Porter, unless Wilson withdrew his motion, Porter
would “cease any and all cooperation” with Wilson and sug-
gest to the district court that Wilson be allowed to withdraw
his guilty plea so that all matters against him could be
“reset ab initio for trials or hearings.” In closing, Porter
condemned Wilson’s motion as “overreaching by a three-
time convicted felon” that made Porter “shudder to think”
whether he would be doing his job if he “did any less than
ensure that Mr. Wilson never gets to see the light of day
again given his current situation.”
Fleming—“shocked and disheartened” by Porter’s re-
sponse—immediately replied with another letter (complying
No. 03-2170 5
with a demand in Porter’s letter that they communicate
only in writing). Fleming laid out his reasons for filing the
downward departure motion and assured Porter that he
would approach Wilson about Porter’s demand that the
motion be withdrawn. Fleming acknowledged that it would
not be in Wilson’s interest to withdraw his guilty plea, and
reiterated his desire that Porter move, as contemplated by
the plea agreement, for a downward departure under U.S.S.G.
§ 5K1.1 or after sentencing under Rule 35(b). To that end,
Fleming proposed the following potential “solution”: Porter
would agree to file a § 5K1.1 motion at sentencing, and then
Wilson could argue to the district court that the botched
handling of the court’s order compelling his early release on
the 1993 conviction warranted reducing his current sen-
tence by more than the a customarily recommended by the
government.
In several telephone conversations, Porter and Fleming
discussed the possibility Fleming proposed. Ultimately,
though, Porter refused to file a § 5K1.1 motion at sentenc-
ing. Instead, the lawyers agreed that if Wilson would with-
draw his motion for a downward departure, he would qualify
for a later-filed Rule 35(b) motion if he remained willing to
cooperate at the government’s request. Then when the
government filed a Rule 35(b) motion, Wilson could argue
for an additional reduction premised on the two extra years
he wrongly spent in prison. In a letter to Porter that met
with no disagreement from the prosecutor, Fleming memo-
rialized this arrangement, which, he explained, “of course,
contemplates the good faith of the Government in affording
[Wilson] the benefit of Rule 35 provided he continues to
cooperate.” Wilson then moved to withdraw his downward
departure motion “pursuant to negotiations with Govern-
ment counsel.”
Thus on July 30, 2001, Wilson was sentenced pursuant to
the original plea agreement. In keeping with the parties’
6 No. 03-2170
subsequent agreement, Wilson, as noted, had withdrawn
his motion for a downward departure, and the government
did not move to reduce his sentence under § 5K1.1. The
district court sentenced Wilson to 188 months’ imprison-
ment, the bottom of the applicable guidelines range, fol-
lowed by four years of supervised release, and imposed a
$2,500 fine and a $100 special assessment. Before the court
settled on a sentence, Porter offered the following regarding
a substantial-assistance reduction:
In mitigation we would point out the defendant has
been cooperating with the Government since before
his arrest in this matter, and based upon that
cooperation the Government has indicated in the
plea agreement it would be intending to file at the
appropriate time a Rule 35 motion, which we’re not
prepared to file, obviously, today, but because of
that, we would recommend a sentence at the low
end of the guideline range.
Wilson did not appeal his conviction or sentence.
As the one-year deadline for the government to file a Rule
35(b) motion approached, see Fed. R. Crim. P. 35(b) (provid-
ing that the district court may reduce a sentence “[u]pon
the government’s motion made within one year of sentenc-
ing”), a new dispute over Wilson’s sentence broke out. It
started with a May 1, 2002, letter from Fleming to Porter,
reminding Porter that the one-year deadline was approach-
ing and requesting that he file a “placeholder” Rule 35(b)
motion so that the deadline did not lapse. After seeing
Fleming’s letter, Wilson sent a letter of his own. He ad-
dressed his May 8 letter to various individuals, including
Porter, whom he thought shared responsibility for the extra
two years he had spent in prison on the 1993 conviction. In
his letter Wilson protested that the government was “far
from remorseful over the miscarriage of justice,” as evi-
denced by Porter’s earlier threat to put him “in prison for
No. 03-2170 7
life” instead of trying to remedy the situation. Wilson also
set out his belief that those involved were not “acting in
good faith and with clean hands” in the matter. He charac-
terized his letter as a “NOTICE OF INTENT TO INSTI-
TUTE LEGAL ACTION” and demanded that all of its
recipients (save Fleming) respond within 10 days “and set
forth any facts by which you claim that I have not been
injured by your acts and or omissions, by virtue of which
you are personally liable to me for damages.”
Having received both Fleming’s and Wilson’s letters,
Porter wrote back to Fleming and told him that “the United
States intends to do nothing” for Wilson. Porter claimed
that such a stance was necessary in light of the “pending
litigation,” and because of Wilson’s failure to pay his fine or
special assessment and the “threats” in his letter. In his
reply to Porter, Fleming portrayed Wilson’s letter as an “ill
advised and inappropriate” reaction to his frustration over
having spent two extra years in prison, but also told Porter
that no lawsuit had been filed and that Wilson’s letter could
not be fairly construed to suggest there was any “pending
litigation” about the untimely release. Fleming also noted
his own belief that Wilson’s letter had been drafted by a
jailhouse lawyer who was providing “help” to Wilson.
Fleming invited Porter to reconsider his position on the
Rule 35(b) motion and again urged him to file a “place-
holder” motion that would allow the parties to negotiate
“the extent of the sentence reduction, if any.” In return,
Fleming would advise Wilson to “withhold any further
action on whatever it is he may be contemplating” and also
to pay the $100 assessment. Porter, though, was unmoved
and wrote back to summarize his “bottom line:” “[U]nless
and until your client changes his stance and returns to
being a cooperating person fully in compliance with his plea
agreement, nothing will be done. Please file whatever
motions you deem appropriate given this. The clock is, in
fact, running.”
8 No. 03-2170
The motion Fleming apparently deemed appropriate was
a “Motion to Enforce Plea Agreement and Agreement
Regarding Withdrawal of Motion for Downward Departure
and to Compel Government to File Rule 35 Motion,” which
he filed on June 4, 2002. In it Fleming argued that the
government was obligated to file a Rule 35(b) motion under
both the terms of Wilson’s plea agreement and the separate
agreement reached when Wilson withdrew his downward
departure motion. On July 29, 2002—the day before the
one-year mark—the government filed a “placeholder” Rule
35(b) motion “as an accommodation to the Court and the
defendant.” The district court determined that under Wade
v. United States, 504 U.S. 181 (1992), Wilson was entitled
to a hearing on his motion to compel. In Wade the Supreme
Court held that a district court may review a prosecutor’s
refusal to move for a substantial-assistance reduction if the
defendant makes a “substantial threshold showing” that the
refusal is based on an unconstitutional motive or lacks a
rational relationship to any legitimate government objec-
tive. Wade, 504 U.S. at 185-86. Although the court did not
have space on its calendar to conduct a hearing on Wilson’s
motion before the one-year deadline elapsed, the govern-
ment’s “placeholder” motion preserved the court’s jurisdic-
tion to reduce Wilson’s sentence if it ruled in his favor on
the motion to compel.
In September 2002 the district court held a hearing on
Wilson’s motion. By then the parties (and the district court)
had brokered a tentative agreement. Wilson would abandon
his “threat” to file a lawsuit, and the government would
proceed with its downward departure under Rule 35(b). The
court would then grant the motion and both reduce Wilson’s
sentence by a and take off an additional two years to
compensate Wilson for his previous prison time. In short, if
Wilson would forego filing suit, he would be guaranteed a
prison term of 101 months, just over seven years less than
the 188-month guideline minimum that he was currently
No. 03-2170 9
serving. But Wilson would not agree, even after the court
explained that he risked getting “no time off” his sentence.
Wilson insisted that he did not “really want to discuss that,
because I mean my understanding on that is I ain’t really
set right as far as even dwelling on it at this time because
I am focused more on getting my reductions in this case.”
He emphasized that he was not interested in having the
district court reduce his current sentence to compensate him
for the extra time he had spent in prison on the previous
conviction; instead, he reiterated that his only concern was
in getting the a reduction for having provided substantial
assistance in this case.
Wilson’s unwillingness to accept the government’s “offer”
prompted Fleming to request an evaluation to ensure that
Wilson was competent. The district court agreed to
Fleming’s request and continued the hearing on Wilson’s
motion to compel. The resulting evaluation established that
Wilson was indeed competent, and so in mid-December
2002 the district court reconvened the hearing on Wilson’s
motion to compel. This time the government moved to with-
draw its “placeholder” Rule 35(b) motion. Porter represented
that the government sought to withdraw the motion be-
cause he believed that Wilson, by contemplating what
Porter deemed to be a “frivolous and vexatious” lawsuit,
had not rendered substantial assistance after all. To sup-
port their respective positions, the parties stipulated to the
admission of the attachments to Wilson’s motion to compel,
consisting primarily of the correspondence between Porter
and Fleming. Over Fleming’s objection, the district court
then granted the government’s motion to withdraw its Rule
35(b) motion, rendering Wilson’s motion to compel “ripe for
consideration.”
Almost four months later, on April 22, 2003, the district
court denied Wilson’s motion. The court first considered
whether Wilson had shown his entitlement to relief under
10 No. 03-2170
Wade because the government’s refusal to move for a down-
ward departure was not rationally related to a legitimate
government interest, see id. at 186. In defense of its refusal
to file the Rule 35(b) motion, the government had proffered
the following three reasons: (1) by threatening the govern-
ment with a lawsuit, Wilson created an adversarial relation-
ship inconsistent with his obligation to provide assistance
if asked; (2) the government has an interest in deterring
“frivolous and vexatious lawsuits” against it; and (3) Wilson
had breached the plea agreement by failing to pay the fine
and special assessment.
The district court rejected each of these reasons and found
them “pretextual for the real reason”—the government’s
desire to use its control over the Rule 35(b) motion as a tool
to secure a release from liability for the two extra years
Wilson spent in prison on his previous conviction. As for the
first reason, the district court explained that it could see no
reason why the “possibility of a civil suit” would interfere
with Wilson’s ability to render assistance; more impor-
tantly, though, the court reminded the government of its
stated position that Wilson had already provided substantial
assistance. The court then posed the following question in
dismissing the government’s second reason: “If Wilson’s
civil lawsuit was ‘frivolous and vexatious,’ why did the
Government use Federal Rule of Criminal Procedure 35 as
a civil bargaining tool in the instant case rather than
Federal Rule of Civil Procedure 12 or Federal Rule of Civil
Procedure 50 in the wrongful incarceration civil case?” And
as for the third reason, the court pointed out that the
government would have been unconcerned about Wilson’s
fine and special assessment had he been willing to waive
his civil claim against it and, regardless, Wilson was paying
his financial obligations under the terms of the BOP
financial responsibility program. Nonetheless, even after
“seriously question[ing] the legitimacy” of the government’s
stated reasons, the court concluded that Wilson had not met
No. 03-2170 11
“his heavy burden” of proving that the government’s action
was not rationally related to a legitimate government
interest.
Because the court concluded that the real reason for the
government’s refusal to move for a sentence reduction was
unrelated to the type or quality of Wilson’s assistance, it
also considered whether he could receive relief under an
Eighth Circuit case, United States v. Anzalone, 148 F.3d 940(8th Cir. 1998). Anzalone holds that the government may
not withhold a motion for a downward departure for rea-
sons unrelated to whether the defendant provided substan-
tial assistance. Although the district court thought Anzalone
was well-reasoned and offered a “check and balance on
overreaching prosecution,” the court did not think the opin-
ion could be squared with the limits for relief set out in
Wade. Thus, the court rejected Anzalone’s approach, under
which Wilson would have prevailed.
The court also rejected Wilson’s argument that the gov-
ernment’s use of its power to trigger a reduced sentence as
leverage to prevent him from filing a civil suit amounted to
an unconstitutional motive. See Wade, 504 U.S. at 186. The
court cursorily reasoned that the government’s effort to
block Wilson’s suit was not on par with refusing to file
based on a defendant’s race or religion, the examples cited
in Wade. See id.Finally, the district court found that the government had
not promised to file a Rule 35(b) motion in exchange for
Wilson’s withdrawal of his downward departure motion.
Instead, the court found, the government had promised to
“act in good faith” regarding the motion. And although the
government’s behavior was “questionable,” the court con-
tinued, it did not amount to “bad faith.”
12 No. 03-2170
II. ANALYSIS
A. Rational Relationship
On appeal, Wilson maintains that, apart from the terms
of his plea agreement, he is entitled to relief under Wade,
which sets forth two limitations on a prosecutor’s refusal to
file a substantial-assistance motion. First, the prosecutor’s
decision must have some rational relationship to a legiti-
mate government interest. See Wade, 504 U.S. at 186;
Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994);
see also United States v. Duncan, 242 F.3d 940, 950 (10th
Cir. 2001). Additionally, the decision may not be based on
an unconstitutional motive, such as race or religion. Wade,
504 U.S. at 185-86; Bischel, 32 F.3d at 263. Although
Wilson claims here that the government’s decision ran afoul
of both limitations, he does not develop his assertion that
the government harbored an unconstitutional motive, i.e.,
impeding his right of access to the courts. See United States
v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (even arguments
raising constitutional claims are waived when undeveloped
and unsupported by pertinent legal authority). We thus
focus on Wilson’s contention that the government’s refusal
to file a Rule 35(b) motion lacked a rational relationship to
some legitimate government objective.
Wilson argues that, in light of the district court’s con-
clusion that each of the government’s asserted reasons was
pretextual, the refusal to file a Rule 35(b) motion on his be-
half could not have been rationally related to a legitimate
government end. We agree. Instead of acknowledging the
district court’s factual findings about its motive, the gov-
ernment simply reasserts the reasons the district court
rejected (it does abandon reliance on Wilson’s alleged failure
to pay his fine and special assessment). Nowhere does the
government argue that the district court clearly erred by
disbelieving its asserted reasons for refusing to file a Rule
35(b) motion. See United States v. Butler, 272 F.3d 683, 686
No. 03-2170 13
(4th Cir. 2001). Thus, if we are to review anything at all, we
would consider the reason that the district court found was
really motivating the government’s conduct: the government
was using its discretion over the filing of a Rule 35(b)
motion in this case to force Wilson to abandon his effort to
redress the extra two years he spent in prison on another
case because of apparent negligence by government employ-
ees. The government avoids directly defending this reason,
and instead urges us to reject Anzalone and conclude that
a reason wholly unrelated to the defendant’s cooperation is
one that is rationally related to a legitimate government
objective.
In Anzalone the Eighth Circuit held that “the government
cannot base its [Rule 35(b)] decision on factors other than
the substantial assistance provided by the defendant.”
Anzalone, 148 F.3d at 941 (internal quotations omitted).
The court reasoned that since the defendant admittedly had
provided substantial assistance the government could not
refuse to file a departure motion on the ground that he was
suspected of subsequently possessing and using a controlled
substance—a reason “unrelated to the quality of [his]
assistance in investigating and prosecuting other offend-
ers.” Id. The Fourth Circuit, however, has expressly rejected
Anzalone as inconsistent with Wade. See Butler, 272 F.3d at
687. In Butler the government refused to file a downward
departure motion under § 5K1.1 after receiving word that
the defendant, before sentencing, had threatened to kill one
of his co-defendants, along with the co-defendant’s family
and his dogs. Id. at 685. The panel in Butler rejected But-
ler’s contention that his threats were unrelated to the “type
or quality of assistance he rendered.” Id. at 687. But the
court went further and concluded that “even if it were
somehow the case that Butler’s threats were not rationally
related to the assistance he provided, that is not the rele-
vant inquiry under Wade.” Id. Thus, the court concluded
that the government’s refusal to file could be defended with
14 No. 03-2170
reference to the general governmental interest in “deterring
a defendant from threatening the life of a co-defendant.” Id.
The other case to flatly reject Anzalone, United States v.
Nealy, 232 F.3d 825 (11th Cir. 2000), is unhelpful because
it appears to have disregarded the Wade rational basis test
altogether, limiting the defendant’s recourse to those
instances when the government harbors an “unconstitu-
tional motive” for refusing to file a substantial-assistance
motion. Id. at 831.
We need not resolve the conflict between the extreme
positions articulated in Anzalone and Butler to decide that
the government has simply failed to convincingly articulate
a rational reason for withholding the Rule 35(b) motion. We
do not go so far as to endorse Anzalone and say that the
government’s reason must always be related to the quality
of a defendant’s assistance. Here, however, the govern-
ment’s attempt to block Wilson from pursuing his unrelated
(and, as far as we know, still unrealized) civil suit is so far
afield from the purpose of § 5K1.1 and Rule 35(b) as to be
irrational. It has nothing whatsoever to do with even
general prosecutorial aims, which our circuit and others
have assumed should animate a refusal to move for a
substantial-assistance departure. See, e.g., United States v.
Emerson, 349 F.3d 986, 988 (7th Cir. 2004) (noting that
defendant could not show that government’s reason for
refusing to depart lacked a rational basis because gov-
ernment gets to decide “whether ‘substantial assistance’ has
been rendered” (emphasis added)); Duncan, 242 F.3d at 949(noting that government’s refusal to move for downward
departure was rationally related to “legitimate law enforce-
ment ends”) (emphasis added). This, coupled with the
district court’s rejection of the government’s stated justifica-
tions (and the government’s failure to challenge the court’s
factual findings on appeal) convinces us that the govern-
ment’s refusal to file a Rule 35(b) motion was not rationally
related to a legitimate government interest. See United
No. 03-2170 15
States v. Hawkins, 274 F.3d 420, 433-34 (6th Cir. 2001)
(noting that government’s refusal to file § 5K1.1 motion was
not rationally related to any legitimate end when it was
undisputed that defendant performed obligations under
plea agreement).
B. Bad Faith
That leaves Wilson’s alternate contention that the gov-
ernment acted in bad faith by refusing to file a Rule 35(b)
motion. Although Wilson acknowledges that we do not
generally review a prosecutor’s refusal to file a downward
departure motion for “bad faith,” see United States v. Burrell,
963 F.2d 976, 985 (7th Cir. 1992), he points out that here
the district court expressly found that the government had
promised Wilson that it would act in good faith if he
withdrew his own motion for a downward departure. That
motion, of course, had nothing to do with substantial as-
sistance and, as we have said, was not forbidden by any
term of Wilson’s plea agreement. Wilson contends that, once
the district court rejected the government’s proffered
reasons for refusing to move for a downward departure, the
court erred by nonetheless concluding that the government
had not acted in bad faith. As evidence of the government’s
bad faith, Wilson points out that the government itself
acknowledged that he had upheld his end of the bargain by
providing substantial assistance. And, as the government
demanded, he also withdrew his motion for a downward
departure, which was premised in part on the additional
two years he mistakenly spent in prison. Wilson contends
that he justifiably expected that the government in turn
would fairly, and in good faith, decide whether to file a Rule
35(b) motion on his behalf; instead, he argues, the gov-
ernment injected a new condition into the agreement— his
willingness to release it from liability for the extra two
years he spent in prison—and then asserted pretextual
16 No. 03-2170
reasons for its refusal to reward his substantial assistance
by filing an otherwise routine Rule 35(b) motion.
Although in the context of contract disputes we review
deferentially a district court’s finding of good faith, see
Great Lakes Dredge & Dock Co. v. City of Chicago, 260 F.3d
789, 797 (7th Cir. 2001), we agree with Wilson that the
underlying facts found by the district court in this case lead
inescapably to the conclusion that the government acted in
bad faith. After rejecting each of the government’s stated
reasons for refusing to file, the district court noted that “the
propriety of the [government’s] decision not to file for
downward departure is questionable.” Without explaining
further, the court then concluded that it “cannot say that
the Government’s actions amount to bad faith.”
Yet, as Wilson points out, the court’s factual findings
compel the opposite conclusion for several reasons. First, by
conditioning its willingness to file a Rule 35(b) motion on
Wilson’s assent to forego suit, the government unilaterally
inserted a new, unbargained-for term into the agreement
obligating Wilson to withdraw his downward departure
motion. At that point Wilson had fully performed his obli-
gations by providing substantial assistance and withdraw-
ing his motion for a downward departure. It was thus
unfair for Porter to then announce that the government
would ignore its reciprocal obligation to perform unless
Wilson jumped over new hurdles that were not part of the
bargain. See Venture Assoc. Corp. v. Zenith Data Sys. Corp.,
987 F.2d 429, 433 (7th Cir. 1993) (introducing new demands
late in negotiating process may constitute bad faith).
Moreover, the government overreached by requiring
Wilson to withdraw his motion for a downward departure
in the first place. Nothing in the plea agreement prohibited
him from filing such a motion, yet the government refused
to move under Rule 35(b) unless he withdrew it, and in
exchange promised Wilson only that it would “act in good
No. 03-2170 17
faith”—something it was already obligated to do by the
general duty of good faith and fair dealing implied in every
agreement. See Restatement (Second) of Contracts § 205; cf.
Contempo Design Inc. v. Chicago and N.E. Ill. Dist. Council
of Carpenters, 226 F.3d 535, 550 (7th Cir. 2000) (en banc)
(promise to perform pre-existing duty does not supply
consideration). And since the government conceded in the
district court that it was satisfied with the assistance
Wilson had provided, it cannot now claim that it was
honestly dissatisfied with his performance. See United
States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 1990) (relying
on Restatement (Second) of Contracts for proposition that
government may characterize defendant’s performance as
inadequate “only if it is honestly dissatisfied”). Finally, the
district court’s finding that the government advanced
pretextual reasons for its refusal to move for a downward
departure evidences bad faith on the government’s part. See
Entergy Ark., Inc. v. Nebraska, 358 F.3d 528, 551 (8th Cir.
2004) (upholding district court’s finding of bad faith when
defendant offered pretextual reason to cover up real reason
for refusing to carry out plan for radioactive waste disposal
site); see also United States v. Knights, 968 F.2d 1483, 1487-
88 (2d Cir. 1992) (vacating and remanding district court’s
finding that prosecutor acted in good faith when none of
government’s reasons for refusing to move for downward
departure suggested that defendant had not fulfilled his
obligations).
We are unpersuaded by the government’s general con-
tention that it acted “with abundant good-faith.” To support
its position, the government points out that it offered to
move under Rule 35(b) to reduce Wilson’s sentence by a
and to recommend that the district court take two addi-
tional years off the sentence (which the district court assured
Wilson that it would do) if Wilson would only forego any
claim arising from the two extra years he spent in prison.
The government contends that its offer was so good that
18 No. 03-2170
Wilson’s own attorney questioned his competence when he
rejected it. Thus, the argument goes, the government must
have been acting in good faith. But its position makes no
sense: that Wilson acted irrationally by refusing the “solu-
tion” has little or no bearing on whether the government
acted in good faith by conditioning its willingness to file on
Wilson’s forbearance from suit in the first place. No amount
of window dressing can hide the fact that Porter told Wilson
in no uncertain terms that the government would not even
consider carrying out its part of the bargain unless Wilson
accepted the government’s new one-sided demand. In sum,
the district court concluded that the parties had an inde-
pendent agreement that the government would act in “good
faith” regarding Wilson’s Rule 35(b) motion, and by subse-
quently conditioning its willingness to file on a reason
unrelated to Wilson’s admittedly satisfactory assistance, the
government instead acted in bad faith.
III. CONCLUSION
The district court rejected each of the government’s
explanations for refusing to file a Rule 35(b) motion on
Wilson’s behalf. It then concluded nonetheless that the
refusal was rationally related to a legitimate government
interest and made in good faith. Given the district court’s
factual findings, and the sequence of events precipitating
the government’s ultimate withdrawal of its “placeholder”
motion, the government neither furthered a legitimate gov-
ernment objective nor acted in good faith when it refused to
file a Rule 35(b) motion in exchange for the substantial
assistance it concedes that Wilson provided. We thus VACATE
the district court’s order allowing the government to
withdraw its Rule 35(b) motion, REVERSE its order denying
Wilson’s motion to compel, and REMAND for further proceed-
ings.
Pursuant to Circuit Rule 36, this case shall be reassigned
to a new district court judge.
No. 03-2170 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-2-04