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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:00cr42-RH/WCS 

CURLEY LEE MILLER,

Defendant.

___________________________________/

ORDER REQUIRING RESPONSE TO

MOTION FOR SPECIFIC PERFORMANCE

Defendant Curley Lee Miller has filed a motion for specific performance of

the plea agreement. Mr. Miller asserts he has provided substantial assistance to the

government in the investigation or prosecution of others and that the government

therefore should be compelled to file a motion for reduction of Mr. Miller’s

sentence under Federal Rule of Criminal Procedure 35(b).

As Mr. Miller seems to acknowledge, only the government may file a

substantial assistance motion. The grounds on which the government’s

determination not to file a substantial assistance motion may be reviewed by the

court are exceedingly narrow. 

This principle is most firmly established in cases not involving a plea

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Case No: 4:00cr42-RH/WCS

agreement. See, e.g., Wade v. United States, 504 U.S. 181, 112 S. Ct. 1840, 118 L.

Ed. 2d 524 (1992) (holding in case not involving plea agreement that court could

review government’s failure to file substantial assistance motion only for

unconstitutional motive such as racial or religious discrimination); United States v.

Nealy, 232 F.3d 825 (11th Cir. 2000) (stating in case not involving plea agreement

that government has discretion whether or not to file substantial assistance motion

and that government’s decision is reviewable only for unconstitutional motive, and

upholding government’s election, based on defendant’s commission of another

offense, not to file a substantial assistance motion, even though defendant in fact

provided substantial assistance). 

When there is a plea agreement, the government of course must comply with

it. See, e.g., Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427

(1971). But at least in this circuit, any such agreement that retains for the

government the sole discretion to determine whether a defendant has provided

substantial assistance is reviewable by the court only for unconstitutional motive,

the same grounds recognized in Wade and Nealy. See United States v. Forney, 9

F.3d 1492 (11th Cir. 1993) (suggesting in dicta that plea agreement that preserves

government discretion whether to file substantial assistance motion does not

authorize court to review under “bad faith” standard the government’s exercise of

that discretion); United States v. Wilcoxson, 77 Fed. Appx. 505 (11th Cir. 2003)

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(unpublished table decision) (applying Forney as basis for upholding denial of

relief in case from this district involving plea agreement).

Other circuits have taken a different approach. See, e.g., United States v.

Rexach, 896 F.2d 710 (2d Cir. 1990) (holding that when a plea agreement provides

that substantial assistance will be determined in the discretion of the prosecutor,

then "the Court’s role is limited to deciding whether the prosecutor has made its

determination in good faith”). But that of course does not help Mr. Miller; this

case is being litigated in the Eleventh Circuit and thus is controlled by Forney. 

And while the circuit split on this issue presents a nice question, it is not at all clear

that this ultimately would make a difference in the case at bar. 

So that these matters may be appropriately addressed, 

IT IS ORDERED:

The government shall file within 21 days a memorandum in response to

defendant’s motion for specific performance. 

 SO ORDERED this 17th day of June, 2005.

s/Robert L. Hinkle 

Chief United States District Judge

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