In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2612

IN THE MATTER OF:

UNITED STATES OF AMERICA,

Petitioner.

____________

Petition for a Writ of Mandamus to the United States

District Court for the Southern District of Illinois.

No. 06-CR-40024-JPG—J. Phil Gilbert, Judge.

____________

SUBMITTED SEPTEMBER 5, 2007—DECIDED OCTOBER 1, 2007

____________

Before EASTERBROOK, Chief Judge, and POSNER and

RIPPLE, Circuit Judges.

EASTERBROOK, Chief Judge. Katie Heath was charged by

indictment with making and distributing methamphetamine, in violation of 21 U.S.C. §841(a)(1). Because she

is a repeat offender, the statutory minimum sentence of

20 years lies above the Guideline range of 135 to 168

months. See 21 U.S.C. §841(b)(1)(A)(viii), §851. Heath

agreed to plead guilty; in return, the prosecutor promised

that, if she provided enough information helpful in the

prosecution of other persons, a motion would be filed under

U.S.S.G. §5K1.1 so that the judge could give a sentence

below 240 months. See also 18 U.S.C. §3553(a)(3), 28

U.S.C. §994(n). The agreement adds that whether Heath

has provided enough useful assistance is an issue committed to the prosecutor’s decision.
2 No. 07-2612

A presentence report was completed before the hearing

at which Heath attempted to plead guilty. (This is how

we know that the Guidelines suggest a sentence between

135 and 168 months.) Yet instead of accepting or rejecting Heath’s plea, the district court decided to postpone

decision until after Heath had provided whatever information and assistance she could render and the prosecutor

had revealed whether a motion under §5K1.1 would be

filed. The United States moved for reconsideration,

observing that the process of cooperation, including

Heath’s testimony in other cases, might last a year or

more. Until it has been accepted, a plea may be withdrawn

for any or no reason. See Fed. R. Crim. P. 11(d)(1). The

prosecutor expressed concern that Heath would wait

until the time provided by the Speedy Trial Act, 18 U.S.C.

§3161, had run, withdraw her offer to plead guilty, and

move for dismissal of the charge—for a district court’s

desire to wait until cooperation has been completed is not

among the reasons that the Act allows for deferring trial.

This motion led the district judge to insist that the

United States provide all information that the judge

thought necessary to make an immediate decision about

Heath’s eligibility for favorable treatment under §5K1.1.

The judge propounded this set of interrogatories to the

United States Attorney:

1. What are the names of the case agents that

are interviewing the defendant with respect to

her cooperation on other investigations?

2. What is the status of the other investigations

referred to by the government including:

a. The names of the individual or individuals that are the targets of these investigations?

b. Whether these will be federal or state

prosecutions, and if state prosecutions,
No. 07-2612 3

in what county will the indictment or

information be filed?

c. Has the defendant provided law enforcement with oral or written statements regarding her information on

the targets of these investigation[s]?

d. Have the defendant’s statements been

thoroughly truthful, complete, and

reliable?

e. When does the government expect

criminal charges to be filed against the

targets of these investigations for

which the defendant is providing substantial assistance?

f. Does the government anticipate that

this defendant will be called to testify

in any current or future cases on behalf of the government, and if so,

which ones?

3. To date, has the defendant breached her plea

agreement with the government?

4. Does the government or its agents plan on

interviewing the defendant again with respect

to her cooperation and if so, when?

5. Assuming continued cooperation by this defendant, in light of the answers above, when does

the government believe it will be in a position

to make the determination whether or not [to]

file a substantial assistance motion?

6. Does the government have any reason to

believe that this defendant will not continue to

cooperate with the government even if it files

a substantial assistance motion before sentencing? If so, why?
4 No. 07-2612

7. Where § 5K1.1 motions for downward departure are designed to consider a defendant’s

presentence cooperation and Rule 35(b) motions for downward departure are designed to

consider a defendant’s post-sentence cooperation, what is the government’s rational basis

for failing to file a § 5K1.1 motion for downward departure based on the defendant’s

presentence cooperation at this time?

The district judge’s demand for this information, before

he would act on the motion for reconsideration, led the

United States to file a petition for a writ of mandamus.

Although the district judge has expressed concern that,

without knowing the answers to the interrogatories, Heath

cannot make an informed decision to plead guilty, Heath

herself has not expressed any such reservation. She

appears to believe that she has struck the best bargain

available, even if—as the judge fears—the prosecutor

will not value her assistance highly enough to reward it

with a motion under §5K1.1.

If the prosecutor should act unreasonably in failing to

make a §5K1.1 motion after Heath’s cooperation has been

completed, that would provide “a fair and just reason” for

her to withdraw the plea. See Fed. R. Crim. P. 11(d)(2)(B).

If the prosecutor should act so unreasonably that the

decision not to make a motion lacks even a rational

basis, the court might be entitled to proceed as if such a

motion had been made. See Wade v. United States, 504

U.S. 181 (1992). The existence of these options after the

prosecutor had made a decision makes it unnecessary to

postpone action on a guilty plea. It is inappropriate for a

court to presume that the prosecutor will act unreasonably. What is more, a judicial effort to supervise the

process of reaching a decision intrudes impermissibly

into the activities of the Executive Branch of government.
No. 07-2612 5

Judges in the United States resolve the parties’ disputes

rather than initiate their own factual inquiries on issues

that the parties have not contested; that’s a major difference between adversarial and inquisitorial systems.

Although judges sometimes may reject plea agreements

with which the parties are satisfied, ordinarily they do so

to protect the Judicial Branch’s interests. For example,

although Fed. R. Crim. P. 11(c)(1)(C) allows the prosecutor

and the defendant to agree on a sentence, Rule 11(c)(5)

allows the judge to reject the bargain if the agreed sentence would be one the judge deems inappropriate. Similarly, a judge may reject a proposed consent decree in civil

litigation if implementing the decree would create a

drain on judicial resources or place the judiciary in an

inappropriate position vis-à-vis other governmental bodies.

Sometimes it makes sense to postpone accepting a guilty

plea when the existing record does not permit the judge to

make an intelligent decision under Rule 11(c)(5), or when

the potential sentence is so uncertain that a motion to

withdraw the plea under Rule 11(d)(2)(B) is a significant

prospect until the presentence report has been prepared.

See, e.g., United States v. Shaker, 279 F.3d 494, 497 (7th

Cir. 2002). But in none of these situations does (or may) a

court use discretion to reject a plea, or postpone decision,

as a means to supervise the internal operations of another branch of the national government.

The judge’s interrogatories seek the names of case agents

and witnesses, ask the prosecutor to disclose the status of

ongoing investigations, and direct the prosecutor to reveal

tentative conclusions such as whether Heath has so far

provided “enough” assistance and how the prosecutor

thinks that Heath would react to a lower sentence imposed

before her cooperation has been completed. These are

questions a United States Attorney might well ask of an

Assistant United States Attorney; they are not appropriate

questions for the Judicial Branch to ask of the Executive
6 No. 07-2612

Branch. Multiple privileges cover the internal deliberations of the Executive Branch, just as they do for the

Judicial Branch’s internal deliberations. As we explained

in In re United States, 398 F.3d 615, 618 (7th Cir. 2005),

“[h]ow the United States reaches its litigating positions,

who said what to whom within the prosecutor’s office, and

so on, are for the Attorney General and the President to

evaluate. The Judicial Branch is limited to assessing

counsel’s public deeds.” See also, e.g., Cheney v. United

States District Court, 542 U.S. 367 (2004); United States v.

Zingsheim, 384 F.3d 867 (7th Cir. 2004).

The Supreme Court held in Wade that a prosecutor’s

decision not to file a motion under §5K1.1 should be

treated just like the selection of a charge or a decision not

to engage in plea negotiations. Whether to reward a

given defendant’s cooperation depends on how much

assistance the prosecution needs; defendants may compete

to supply assistance, and a reduced sentence is a price

that the prosecutor pays. How steep the price may be

depends on conditions of supply and demand, which

prosecutors and law-enforcement agencies observe but

judges do not. See also Melendez v. United States, 518 U.S.

120 (1996) (a prosecutor is entitled to make separate

decisions about whether a defendant’s substantial assistance justifies a sentence below the Guidelines and below

a statutory minimum; the prosecutor may invite one kind

of departure while withholding authority for the other).

Rewards for assistance may be supplied not only

through motions under §5K1.1 but also via decisions not

to prosecute at all, or to dismiss charges after they have

been filed. All of these decisions are similar in kind and

therefore, Wade and Melendez conclude, are covered by

the same legal rule that curtails judicial oversight of

decisions to file or dismiss charges.

Exercises of prosecutorial discretion may be overseen

only to ensure that the prosecutor does not violate the
No. 07-2612 7

Constitution or some other rule of positive law. See Wayte

v. United States, 470 U.S. 598 (1985); In re United States,

345 F.3d 450 (7th Cir. 2003) (a judge must dismiss a

charge on the prosecutor’s motion as part of a plea bargain unless the bargain violates a rule of law). The Court

added in United States v. Armstrong, 517 U.S. 456 (1996),

that judicial review of a prosecutor’s discretionary choices

is permissible only after the defendant has made a prima

facie showing that impermissible considerations such as

race have affected the prosecutor’s decision. Discovery

into the prosecutor’s decision-making processes may follow,

but must never precede, such a showing. United States v.

Bass, 536 U.S. 862 (2002). And, if the prosecutor declines

to comply, the remedy is to dismiss the indictment rather

than hold an inquest.

Heath has not made a prima facie demonstration that

the prosecutor has violated the Constitution or any statute

or treaty. She has not even asserted this. (Recall that she

wants to plead guilty on the plea agreement’s terms; the

judge, not the defendant, kicked off this proceeding.) No

such claim would be tenable, because the prosecutor has

yet to reach a decision. It follows that there is no basis

for an inquiry of any kind, let alone for access to the

Executive Branch’s ongoing deliberations.

Every defendant contemplating a step as momentous

as pleading guilty is entitled to enough information to

make an intelligent decision. See United States v. O’Neill,

437 F.3d 654 (7th Cir. 2006). The district judge observed

that motions under §5K1.1 are significantly less frequent

in his jurisdiction than in the federal system as a

whole—about 5% of all cases in the Southern District of

Illinois, as opposed to 14.4% across the nation. See United

States Sentencing Commission, 2006 Annual Report 36. It

is entirely appropriate for a judge to inform defendants

and their lawyers about the rarity of §5K1.1 motions in a

given district or in cases handled by a particular Assistant
8 No. 07-2612

United States Attorney. But when an informed defendant

decides to take her chances or to make the best of a bad

situation, a judge’s belief that prosecutors should reward

cooperation more frequently is not a good reason to reject a plea.

Heath agreed to a deal under which the United States

holds discretion over whether to make a motion under

§5K1.1. That it may have been possible for the United

States to make a firm commitment (or agree to objective

criteria for evaluating Heath’s assistance) does not entitle

the district court to treat the bargain as if such a commitment had been made. That step would not only

intrude on the Executive Branch’s constitutional authority

but also disable the parties from reaching agreements

that may make both sides better off. Told that it must

make a firm commitment or none at all, the prosecutor

might well choose “none at all,” to the detriment of this

defendant and the process of investigating and prosecuting other crimes. The deal Heath actually struck leaves

matters to the prosecutor’s discretion; judges must respect the agreement that the parties have reached. See

United States v. Artley, 489 F.3d 813, 824–25 (7th Cir.

2007).

The judge’s response to the petition for mandamus tells

us that he is certain that Heath has revealed everything

she knows and therefore should be rewarded. Yet, under

Wade and the plea agreement, whether even complete

disclosure is helpful enough to earn a lower sentence is

an issue committed to the prosecutor, not the judge. Not

that the judiciary can be confident that Heath has told all.

Agents who have interviewed her—and who have other

sources of information about the drug-distribution network

in which she participated—are better situated to assess

her candor. A prosecutor is entitled to be skeptical about

a defendant’s protestation that she has come clean. Even

if Heath has been completely cooperative so far, it may
No. 07-2612 9

be sensible to hold out the lure of a §5K1.1 motion as a

reason to provide that information on the stand at other

persons’ trials, and not just in private. The Executive

Branch is entitled to adopt a hard-nosed negotiating

and litigating strategy.

The petition for a writ of mandamus is granted. The

district judge must rule on the motion for reconsideration

without requiring access to information about ongoing

investigations or deliberations within the Executive

Branch. In resolving the motion for reconsideration, the

district judge must be mindful of the principles we

have discussed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-1-07