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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 5:03cr24-RH/WCS

STEPHEN WEEKS,

Defendant.

_________________________________/

ORDER REQUIRING RESPONSE TO 

DEFENDANT’S SUBSTANTIAL ASSISTANCE MOTION

Defendant Stephen Weeks has filed what he labels a petition for writ of

habeas corpus seeking a reduction of sentence based on substantial assistance he

says he has provided in the investigation or prosecution of others. I deem this a

motion to compel the government to file a motion for reduction of defendant’s

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

cooperation agreement provided that the government would file such a motion if,

in its “sole discretion,” it determined that defendant provided substantial

assistance. 

Only the government may file a substantial assistance motion. The grounds

on which a court may review the government’s refusal to file such a motion are

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Case No: 5:03cr24-RH/WCS

exceedingly narrow. 

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

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

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Case No: 5:03cr24-RH/WCS

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)

(unpublished table decision) (applying Forney as basis for upholding denial of

relief in case from this district involving plea agreement with substantial assistance

provision substantively identical to provision in the case at bar).

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. Weeks in the

case at bar; 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

seems unlikely it ultimately would make a difference in the case at bar.

So that these matters may be appropriately addressed, 

IT IS ORDERED:

Defendant’s petition for writ of habeas corpus (document 26) is deemed a

motion to compel the government to file a motion for reduction of defendant’s

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

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Case No: 5:03cr24-RH/WCS

file a memorandum in response to the motion within 21 days. 

SO ORDERED this 11th day of September, 2005.

s/Robert L. Hinkle 

Chief United States District Judge 

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