Appeal from the United States District Court for the District of Idaho. D.C. No. CR-92-00006-HLR. Wm. Fremming Nielsen, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: Alfred T. Goodwin, Dorothy W. Nelson, and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Goodwin.
Order AND AMENDED OPINION
Roderick D. Hier appeals his sentence for marijuana offenses, arguing that prosecutors impermissibly refused to move for a downward departure for providing substantial assistance after he testified before a grand jury. U.S.S.G. § 5K1.1. We vacate Hier's sentence and remand for resentencing.*fn1
After the district court denied Hier's motion to suppress evidence, Hier's counsel contacted the government and offered to negotiate a cooperative plea agreement, whereby Hier would testify against other defendants in exchange for a downward departure. The government declined the offer. See Letter of June 29, 1992. Hier then pled guilty to conspiracy to manufacture marijuana, 21 U.S.C. §§ 846, 841, and manufacturing marijuana. 21 U.S.C. § 841. At the plea proceedings, Hier's counsel reiterated that Hier would cooperate against other defendants if the government promised to move for a downward departure. The government again declined the offer.
Thereafter, the government made ex parte contact with Hier, subpoenaing him to testify at a grand jury proceeding without notifying Hier's counsel or obtaining counsel's consent. Hier contacted his lawyer, who promised to contact the Assistant United States Attorney. Counsel and his associate attempted to reach the prosecutor, but their calls were not returned. Hier then testified before the grand jury, apparently assuming that his lawyer had reached the prosecutor and that the government would move for the downward departure mentioned at the plea proceedings.
Hier's grand jury testimony was very similar to that given by Richard Nolte, a codefendant. After Nolte testified, the government made a substantial-assistance motion on his behalf, allowing the sentencing court to grant him a downward departure. U.S.S.G. § 5K1.1. However, the government refused to make a similar motion on Hier's behalf, stating that Hier's testimony was redundant with Nolte's.
At sentencing, Hier challenged the government's refusal to move for a downward departure, arguing that its refusal was unjustified and asking the district court to award him the downward departure. The district court denied the motion and sentenced Hier, a first offender, to the mandatory minimum of ten years. Hier appeals.
Section 5K1.1 allows a downward departure "upon 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."*fn2 A sentencing court ordinarily cannot grant a downward departure for substantial assistance in the absence of a government motion. United States v. Cueto, 9 F.3d 1438, 1441-42 (9th Cir. 1993). However, "federal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive." Wade v. United States, 112 S. Ct. 1840, 1843-44, 118 L. Ed. 2d 524 (1992).
In order to be entitled to such relief, or even to obtain discovery or an evidentiary hearing on the issue, a defendant must make a "substantial threshold showing." Id. at 1844. This showing must include more than "a claim that [he has] provided substantial assistance" and "generalized allegations of improper motive." Id. Rather, it must involve some specific allegations such as evidence "that the Government refused to file a motion for suspect reasons such as his race or his religion," or that "the prosecutor's refusal to move was not rationally related to any legitimate Government end." Id.
Circuit courts have held that a defendant has made such a showing where the government's refusal to move for a substantial assistance departure was a retaliation for his decision to exercise his constitutional right to a trial, United States v. Paramo, 998 F.2d 1212, 1219-20 (3d Cir. 1993), cert. denied, 127 L. Ed. 2d 393, 114 S. Ct. 1076 (1994); where the government's refusal constituted a breach of its plea agreement, United States v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir. 1993) (allowing courts to order specific performance in such circumstances);*fn3 and where the government's refusal was an ...