United States v. Michael Ali Bryant, Sr. ( 2018 )


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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    [DO NOT PUBLISH]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.
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    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
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    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
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    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
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    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.
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    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.
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