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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:96cr25-WS

vs.

ANDRADIS BARNEY, 

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY WRIT OF MANDAMUS

This cause is before the court on Defendant's petition for writ of mandamus. 

Doc. 81. Defendant seeks to compel the Government to evaluate his post sentence

cooperation, and claims that the failure to file a substantial assistance motion is based

on an impermissible motive. 

Defendant relies on his cooperation in United States v. Ha, 4:98cr15-RH. 

Defendant relied on his cooperation in that case in a previous motion to compel the

Government to file a substantial assistance motion. Doc. 73. Attached to that motion

and the current motion is the same letter from FBI Agent Price dated March 3, 1999,

regarding Defendant's cooperation in the Ha case. Doc. 73. 

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Case No. 4:96cr25-WS 

The Government asserted in response to the previous motion that the FBI sent

the letter without approval or knowledge of the United States Attorney, and the

representation made in the letter that the Government was "fully prepared to use Barney

at trial" in the Ha case was a misstatement. Doc. 74, p. 1. 

The case agent was told prior to the Ha trial that Barney would not be

used in any capacity by the undersigned [Assistant United States Attorney

Bruce Lowe] because of our belief that Barney was unreliable and

manipulative.

 

Mr. Barney's cooperation did not rise to the level of substantial assistance.

His information was cumulative and highly suspect and given his history of

alleged mental problems because of having been shot in the head, he

would not have made a good witness. He was never called upon by the

government to testify nor would he have been.

Doc. 74, pp. 1-2 (emphasis added, as discussed ahead) (paragraph numbers omitted). 

The Government argued that its refusal to file a substantial assistance motion

was not subject to judicial review absent a constitutionally impermissible reason. Id., p.

2 (citations omitted). The motion to compel was denied without discussion. Doc. 75. 

Defendant did not object or file an appeal. 

In the current motion, Defendant asserts that he had an oral agreement with the

Government to cooperate in the Ha case in exchange for a substantial assistance

motion "if Barney's cooperation rose to the level of substantial assistance." Doc. 81, p.

3 and n. 1. Defendant relies on the FBI letter noted above, and notes that his previous

motion to compel was denied. Id., pp. 4-5. Defendant quotes the sentence from the

Government's response, emphasized above, and claims this shows the Government

was biased against him based on a handicap, and this was a constitutionally

impermissible motive. Id., p. 5 and n. 3. Defendant claims that the Government has

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Case No. 4:96cr25-WS 

failed to fully evaluate his assistance in violation of his oral agreement (in the Ha case)

and due process. Id., pp. 7-8. 

" 'Substantial assistance' generally requires that the defendant's assistance has

yielded results that are useful to the government, not merely that the defendant

expended substantial effort or good faith in attempting to assist." United States v.

Gonsalves, 121 F.3d 1416, 1419 (11th Cir. 1997), cert. denied, 522 U.S. 1067 (1998)

(citation omitted). Moreover, the Government's refusal to file a substantial assistance

motion is subject to judicial review only upon a showing of a constitutionally

impermissible motive, such as race or religion. Wade v. United States, 504 U.S. 181,

185-86, 112 S.Ct. 1840, 1842-43, 118 L.Ed.2d 524 (1992); United States v. Forney, 9

F.3d 1492, 1499-1503 (11th Cir. 1993) (requiring unconstitutional motive for refusing to

file motion, even where there is a Government agreement to "consider" filing a motion,

where the determination of whether defendant provided substantial assistance was left

solely to the Government) (citing Wade, other citations and footnotes omitted) United

States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (citing Wade and Forney, other

citations omitted). 

"[A] claim that a defendant merely provided substantial assistance will not entitle

a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would

additional but generalized allegations of improper motive." Wade, 102 U.S. at 185-186,

112 S.Ct. at 1843-1844 (some citations omitted). There must be "an allegation and a

substantial showing" of unconstitutional motive to obtain judicial review. Forney, 9 F.3d

at 1502-03 (emphasis in original) (citing Wade, footnote omitted). See also 9 F.3d at

1500, n. 3 (fact that defendant asserted to the district court that the Government did not

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1

 From the Government's use of this phrase, it is assumed that Defendant himself

alleged to have problems due to his injury. It is not necessary to decide here, however. 

Case No. 4:96cr25-WS 

fulfill its obligations under the plea agreement did not raise or preserve a "bad faith"

issue as there was no allegation of unconstitutional or discriminatory motive by the

Government) (citations omitted). 

Defendant cites Wade and Forney, and claims that constitutionally impermissible

motive is demonstrated by the Government's reference to him being "unreliable and

manipulative," by claiming his cooperation "did not rise to the level of substantial

assistance," and reliance on his "alleged mental problems" from "having been shot in

the head." Id., pp. 11-12. 

It seems doubtful that "alleged mental problems"1 or a head injury would, like

race or religion, be matters that the Government could not constitutionally consider in

denying a substantial assistance motion. Such things go to credibility and reliability, and

would certainly factor into the decision of whether or not to call a witness. Further, the

Government noted these problems in addition to the determination that Defendant was

unreliable and manipulative, and that the information he provided was cumulative. 

Moreover, the Government made the statement on which Defendant now relies

in a document filed August 5, 1999, and Defendant's motion to compel was denied on

August 19, 1999. The current motion gives no reason for the delay in claiming

unconstitutional motive, and Defendant alleges no new evidence or additional facts not

before the court when the motion to compel was denied over seven years ago. 

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It is therefore respectfully RECOMMENDED that Defendant's petition for writ of

mandamus, doc. 81, be SUMMARILY DENIED. 

IN CHAMBERS at Tallahassee, Florida, on October 3, 2006. 

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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