Case: 17-13790 Date Filed: 06/15/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13790 Non-Argument Calendar ________________________
D.C. Docket No. 0:13-cr-60258-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ALI BRYANT, SR.,
Defendant-Appellant.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(June 15, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Ali Bryant, Sr., appeals the district court’s denial of his motion to
compel the government to file a Fed. R. Crim. P. 35 motion to reduce his sentence. Case: 17-13790 Date Filed: 06/15/2018 Page: 2 of 6
On appeal, Bryant argues that: (1) the government negotiated in bad faith when it
told him that it would file a Rule 35 motion if he testified truthfully at a trial and
then considered factors beyond his testimony when deciding not to file a Rule 35
motion; and (2) the government’s decision not to file a Rule 35 motion was not
rationally related to the legitimate government end of promoting truthful testimony
because there was no empirical evidence showing that he testified untruthfully.
After careful review, we affirm.
We review de novo whether the district court may compel the government to
make a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993) (reviewing de novo a district court’s refusal to depart
downward in the absence of a U.S.S.G. § 5K1.1 motion by the government);
United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998) (reviewing de
novo the question of whether the government has breached a plea agreement).
The government has a power, but not a duty, to file a substantial assistance
motion. United States v. Dorsey, 554 F.3d 958, 960-61 (11th Cir. 2009). The
prosecutorial discretion to refuse to file a substantial assistance motion is subject to
judicial review only if it is based on an unconstitutional motive, such as the
defendant’s race or religion, or is not rationally related to any legitimate
government end. Wade v. United States, 504 U.S. 181, 185-86 (1992) (discussing
motions under § 5K1.1); see United States v. McNeese, 547 F.3d 1307, 1309 (11th
2 Case: 17-13790 Date Filed: 06/15/2018 Page: 3 of 6
Cir. 2008) (extending Wade to Rule 35(b) motions). Judicial review is appropriate
where the defendant alleged a constitutionally impermissible motive and made a
substantial showing that the government’s refusal to file a substantial assistance
motion is because of that motive. Dorsey, 554 F.3d at 961. Consequently, when a
defendant merely claims he provided substantial assistance or makes generalized
allegations of improper motive, he is not entitled to a remedy or even to an
evidentiary hearing. Wade, 504 U.S. at 185-86. Thus, for example, in Wade, the
Supreme Court said that the defendant had not made an adequate claim that the
government’s decision was not rationally related to legitimate ends. Id. at 186-87.
The Court held that it was necessary, but not sufficient, for a defendant to show he
in fact provided assistance, and that a defendant claiming that the government
acted in bad faith must point to specific facts showing that the government’s
decision was not rationally related to legitimate government ends. Id.
We’ve noted that the government’s decision not to file a substantial
assistance motion is not reviewable for arbitrariness or bad faith where the
government merely promised to consider filing such a motion. See Forney, 9 F.3d
at 1502 & n.5. But we’ve also recognized that there may be a bad faith exception
where the government has induced a defendant to plead guilty based on a promise
to file, rather than to consider filing, a substantial assistance motion. See id. at
1502 n.5. Neither we nor the Supreme Court has directly addressed when the
3 Case: 17-13790 Date Filed: 06/15/2018 Page: 4 of 6
government’s decision not to file a Rule 35 motion would not be rationally related
to legitimate government ends.
Here, Bryant argues that the government acted in bad faith when it said in an
e-mail exchange that his truthful testimony to introduce a videotape -- which
showed him selling names and Social Security numbers -- would be sufficient to
warrant a Rule 35 motion, but then decided not to move based on its dissatisfaction
with his truthful testimony. He also claims that the government’s decision not to
move based on its dissatisfaction with his testimony was not rationally related to
the legitimate government end of promoting truthful testimony. Bryant focuses on
the lack of empirical support for the government’s proffered explanation for its
decision, specifically noting that the magistrate judge credited his testimony as
truthful. But this finding suggests only that the government was objectively
incorrect in stating that Bryant testified untruthfully, not that the government
subjectively did not believe that his testimony was untruthful or that the
government actually acted with some other improper motivation. Notably, the
magistrate judge here did not find that the government’s proffered reason for not
filing a Rule 35 motion was pretextual. Instead, when the magistrate judge found
that the government’s belief that Bryant testified untruthfully was based on factors
beyond his trial testimony, it said it was based at least in part on its dissatisfaction
with Bryant’s prior cooperation. Thus, as the district court determined, the
4 Case: 17-13790 Date Filed: 06/15/2018 Page: 5 of 6
government’s belief was rational in light of those other factors -- including
Bryant’s previous conduct when cooperating with the government, his history as a
fraudster, his phone records, and the inconsistencies between his PSI and his trial
testimony -- all of which arguably were indicia of his reliability of as a witness.
Further, Bryant has not presented any affirmative evidence that the
government acted with an improper motive, instead relying on the fact that there
was no empirical evidence that he testified untruthfully. 1 Because the
government’s decision was based on factors related to Bryant’s reliability as a
cooperating witness, the government’s motivation was rationally related to the
government’s undisputedly legitimate interest in promoting truthful testimony.
As for his reliance on United States v. Brumlik, 947 F.2d 912 (11th Cir.
1991), and Forney, we did not review the defendants’ arguments in those cases that
the government had acted in bad faith by failing to make a substantial assistance
motion at sentencing, because the defendants had not raised this argument in the
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Case: 17-13790 Date Filed: 06/15/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13790 Non-Argument Calendar ________________________
D.C. Docket No. 0:13-cr-60258-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ALI BRYANT, SR.,
Defendant-Appellant.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(June 15, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Ali Bryant, Sr., appeals the district court’s denial of his motion to
compel the government to file a Fed. R. Crim. P. 35 motion to reduce his sentence. Case: 17-13790 Date Filed: 06/15/2018 Page: 2 of 6
On appeal, Bryant argues that: (1) the government negotiated in bad faith when it
told him that it would file a Rule 35 motion if he testified truthfully at a trial and
then considered factors beyond his testimony when deciding not to file a Rule 35
motion; and (2) the government’s decision not to file a Rule 35 motion was not
rationally related to the legitimate government end of promoting truthful testimony
because there was no empirical evidence showing that he testified untruthfully.
After careful review, we affirm.
We review de novo whether the district court may compel the government to
make a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993) (reviewing de novo a district court’s refusal to depart
downward in the absence of a U.S.S.G. § 5K1.1 motion by the government);
United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998) (reviewing de
novo the question of whether the government has breached a plea agreement).
The government has a power, but not a duty, to file a substantial assistance
motion. United States v. Dorsey, 554 F.3d 958, 960-61 (11th Cir. 2009). The
prosecutorial discretion to refuse to file a substantial assistance motion is subject to
judicial review only if it is based on an unconstitutional motive, such as the
defendant’s race or religion, or is not rationally related to any legitimate
government end. Wade v. United States, 504 U.S. 181, 185-86 (1992) (discussing
motions under § 5K1.1); see United States v. McNeese, 547 F.3d 1307, 1309 (11th
2 Case: 17-13790 Date Filed: 06/15/2018 Page: 3 of 6
Cir. 2008) (extending Wade to Rule 35(b) motions). Judicial review is appropriate
where the defendant alleged a constitutionally impermissible motive and made a
substantial showing that the government’s refusal to file a substantial assistance
motion is because of that motive. Dorsey, 554 F.3d at 961. Consequently, when a
defendant merely claims he provided substantial assistance or makes generalized
allegations of improper motive, he is not entitled to a remedy or even to an
evidentiary hearing. Wade, 504 U.S. at 185-86. Thus, for example, in Wade, the
Supreme Court said that the defendant had not made an adequate claim that the
government’s decision was not rationally related to legitimate ends. Id. at 186-87.
The Court held that it was necessary, but not sufficient, for a defendant to show he
in fact provided assistance, and that a defendant claiming that the government
acted in bad faith must point to specific facts showing that the government’s
decision was not rationally related to legitimate government ends. Id.
We’ve noted that the government’s decision not to file a substantial
assistance motion is not reviewable for arbitrariness or bad faith where the
government merely promised to consider filing such a motion. See Forney, 9 F.3d
at 1502 & n.5. But we’ve also recognized that there may be a bad faith exception
where the government has induced a defendant to plead guilty based on a promise
to file, rather than to consider filing, a substantial assistance motion. See id. at
1502 n.5. Neither we nor the Supreme Court has directly addressed when the
3 Case: 17-13790 Date Filed: 06/15/2018 Page: 4 of 6
government’s decision not to file a Rule 35 motion would not be rationally related
to legitimate government ends.
Here, Bryant argues that the government acted in bad faith when it said in an
e-mail exchange that his truthful testimony to introduce a videotape -- which
showed him selling names and Social Security numbers -- would be sufficient to
warrant a Rule 35 motion, but then decided not to move based on its dissatisfaction
with his truthful testimony. He also claims that the government’s decision not to
move based on its dissatisfaction with his testimony was not rationally related to
the legitimate government end of promoting truthful testimony. Bryant focuses on
the lack of empirical support for the government’s proffered explanation for its
decision, specifically noting that the magistrate judge credited his testimony as
truthful. But this finding suggests only that the government was objectively
incorrect in stating that Bryant testified untruthfully, not that the government
subjectively did not believe that his testimony was untruthful or that the
government actually acted with some other improper motivation. Notably, the
magistrate judge here did not find that the government’s proffered reason for not
filing a Rule 35 motion was pretextual. Instead, when the magistrate judge found
that the government’s belief that Bryant testified untruthfully was based on factors
beyond his trial testimony, it said it was based at least in part on its dissatisfaction
with Bryant’s prior cooperation. Thus, as the district court determined, the
4 Case: 17-13790 Date Filed: 06/15/2018 Page: 5 of 6
government’s belief was rational in light of those other factors -- including
Bryant’s previous conduct when cooperating with the government, his history as a
fraudster, his phone records, and the inconsistencies between his PSI and his trial
testimony -- all of which arguably were indicia of his reliability of as a witness.
Further, Bryant has not presented any affirmative evidence that the
government acted with an improper motive, instead relying on the fact that there
was no empirical evidence that he testified untruthfully. 1 Because the
government’s decision was based on factors related to Bryant’s reliability as a
cooperating witness, the government’s motivation was rationally related to the
government’s undisputedly legitimate interest in promoting truthful testimony.
As for his reliance on United States v. Brumlik, 947 F.2d 912 (11th Cir.
1991), and Forney, we did not review the defendants’ arguments in those cases that
the government had acted in bad faith by failing to make a substantial assistance
motion at sentencing, because the defendants had not raised this argument in the
district court. Forney, 9 F.3d at 1500; Brumlik, 947 F.2d at 913-14. Indeed,
Brumlik did not discuss at all the potential viability of a preserved bad faith
argument. See 947 F.2d at 913-14. As for the panel in Forney, it noted in dicta
1 Bryant has not alleged that the government’s decision not to file a substantial assistance motion was based on his membership in a protected class, such as a race or religion. Further, Bryant does not argue that promoting truthful testimony is not a legitimate government end. He also does not argue that the government’s proffered reason for its decision -- that it believed that his testimony was untruthful -- was not rationally related to the legitimate end of promoting truthful testimony. Bryant further concedes that the government did not create a new, separate contractual obligation apart from his plea agreement in the e-mail exchange with his counsel. 5 Case: 17-13790 Date Filed: 06/15/2018 Page: 6 of 6
that judicial review only was appropriate to review allegations of unconstitutional
motivations and that mere allegations of bad faith were insufficient to warrant
review. 9 F.3d at 1501-02 & n.5. Bryant’s bad faith argument is not premised on
an unconstitutional motive such as race or religion or a government promise to file
a Rule 35 motion in order to induce a guilty plea. See id. Thus, Bryant is incorrect
in relying on these cases to argue that his claim that the government acted in bad
faith is subject to judicial review.
Accordingly, the district court did not err in determining that Bryant was not
entitled to an order compelling the government to file a Rule 35 motion.
AFFIRMED.