United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 97-1247

 

United States of America, *

*

 Appellee, *

* Appeal from the United

States

v. * District Court for the

* District of Nebraska.

Mary Ann Rounsavall, *

*

Appellant. *

 

Submitted: September 10, 1997

 Filed: October 22, 1997

 

Before BEAM, FLOYD R. GIBSON, and HEANEY, Circuit Judges.

 

HEANEY, Circuit Judge.

Mary Ann Rounsavall appeals her twenty-year sentence

for drug and money laundering. She contends that the

government acted irrationally and/or in bad faith in

refusing to file a motion pursuant to 18 U.S.C. § 3553(e)

to reduce her sentence below the statutory twenty-year

mandatory minimum. We conclude that Rounsavall has made

a sufficient threshold showing on two separate grounds to

require that this matter be remanded to the district

court for an evidentiary hearing to determine if, in

fact, the government acted irrationally and/or in bad

faith.
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I.

On November 9, 1995, Mary Ann Rounsavall entered into

a plea agreement with the government. As part of her

agreement, she pled guilty to drug and money laundering

charges. Absent such an agreement, she would have faced

360 months to life with a statutory minimum of twenty

years. Her agreement with the government provided that

if she cooperated in the prosecution of her brother, the

government would consider filing motions allowing her to

receive a sentence at or below the statutory mandatory

minimum. According to an affidavit submitted by

Rounsavall to the district court, Assistant United States

Attorney Bruce Gillan told Rounsavall that he did not

want or believe that she should go to prison for the

twenty years required by the statutory mandatory minimum

sentence if she complied with the terms of the plea

agreement. Gillan indicated Rounsavall should expect to

receive somewhere between seven to ten years for her

cooperation, although the decision as to the length of

her sentence would be entirely up to the judge. In his

affidavit, United States Attorney Thomas Monaghan stated

that the government initially sought Rounsavall’s

assistance because the government believed that once she

helped in the prosecution, Rounsavall’s brother would

also cooperate.

Rounsavall testified against her brother in two

separate criminal proceedings. First, she testified

against her brother at his drug and money laundering

trial. During his trial, she testified for four days.

She also testified against her brother for an additional

day at a forfeiture proceeding. All told, she testified
Rounsavall also helped the government recover property worth several

1

thousand dollars.

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for five days, longer than any other witness, in helping

the government convict her brother and secure a life

sentence against him.1
4

Ultimately, the government filed a § 5K1.1 motion,

under the United States Sentencing Guidelines, but not an

18 U.S.C. § 3553(e) motion. Based upon the government's

filing of the § 5K1.1 motion, Rounsavall was sentenced to

twenty years, the lowest possible sentence the district

court could order under the statutory mandatory minimum.

Because the government withheld filing a § 3553(e)

motion, the district court could not further lower

Rounsavall’s sentence. 

According to an affidavit from United States Attorney

Thomas Monaghan, the government considered but decided

against filing a § 3553(e) motion for the following

reasons:

(a) the failure of the defendant to cooperate

with the government until her second trial; (b)

the fact that a portion of her testimony

regarding money laundering given during a trial

against a codefendant was not accurate or

complete; (c) the fact that no other persons can

be prosecuted as a result of her cooperation;

and (d) the fact that she violated her plea

agreement by not giving reliable and complete

testimony regarding money laundering.

United States v. Rounsavall, No. 4:CR94-3034, at 4 (D.

Neb. Sept. 11, 1996).

The district court judge strongly disagreed with the

decision of the prosecutor not to file a § 3553(e)

motion:

In my opinion, Ms. Rounsavall’s testimony

against her brother was extremely helpful to the

Government, was, in large measure, truthful and
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was provided to the Government at great personal

cost to Ms. Rounsavall. In some ways, she’s

going to have to live the rest of her life

knowing she contributed to her brother probably

dying in prison. If the Government had filed a

motion under the statute, I would likely have

substantially departed below the sentence that I

now must impose under the law.

(Sent. Tr. at 531-32, Nov. 22, 1996). The district court

judge further stated that:
On the basis of the latter fact, the district court required the United States

2

Attorney to examine again the departure question in light of this new cooperation.

6

Since this dispute has arisen, Rounsavall,

without the government making any promises

respecting the departure question, has further

cooperated with the government by stipulating to

forfeiture of certain property. Moreover,

Rounsavall has also agreed to the entry of a

money judgment in the sum of $200,000.

Rounsavall made these concessions despite the

fact that her plea agreement did not require

them, and despite the fact that the government

had made no direct or indirect promise that

further cooperation might change the

government’s departure decision.2

Rounsavall, No. 4:CR94-3034, at 8-9 (citations omitted).

 

Despite disagreeing with the government’s decision,

the district court found that there was no reason to hold

an evidentiary hearing regarding Rounsavall’s claim of a

breach of her agreement because the government had simply

agreed to consider her cooperation and nothing more.

Rounsavall appeals the district court's denial of her

motion to compel the government to file a § 3553(e)

motion.

II. 

When the government files a substantial assistance

motion under § 5K1.1, a sentencing court may depart from

the guidelines sentencing range but not the statutory

minimum. Melendez v. United States, 116 S. Ct. 2057,

2063 (1996). When the government files a substantial

assistance motion under § 3553(e), however, a sentencing
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court may depart from the applicable mandatory minimum

sentence. Id.

In this regard, the law's practical effect is

twofold: 1) where a § 5K1.1 motion is filed, the

district court cannot sentence below the statutory

mandatory minimum; 2) where a § 3553(e) motion is filed,

on the other hand, the district court is able to depart
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below the mandatory minimum sentence otherwise required

by the sentencing guidelines.

In this case, after the government filed its § 5K1.1

motion, the district court sentenced Rounsavall to twenty

years, the lowest possible sentence under the statutory

mandatory minimum. Because the government failed to file

a § 3553(e) motion, the district court correctly believed

it could not depart below the twenty-year sentence even

though it "strongly disagree[d] with the [government's]

decision" not to file the motion. Rounsavall, No.

4:CR94-3034, at 8.

III.

"A sentencing court may not grant a downward

departure for substantial assistance absent a motion by

the government." United States v. Stockdall, 45 F.3d

1257, 1259 (8th Cir. 1995) (citing United States v.

Kelly, 18 F.3d 612, 617 (8th Cir. 1994); United States v.

Coleman, 895 F.2d 501, 504 (8th Cir. 1990)). There are,

however, limited exceptions to this rule. Kelly, 18 F.3d

at 617. “[R]elief may be granted absent a government

substantial assistance motion if a defendant shows that

the government's refusal to make the motion was based on

an unconstitutional motive, that the refusal was

irrational, or that the motion was withheld in bad

faith." Id. at 617-18 (citations omitted). A defendant

is entitled to an evidentiary hearing to determine

whether the government acted improperly if she is able to

make a substantial threshold showing that the government

acted irrationally, in bad faith, or in violation of
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one’s constitutional rights. Id. at 618 (citing Wade v.

United States, 504 U.S. 181, 186 (1992)).

We agree with the district court that United States

Attorney Monaghan should have made the § 3553(e) motion

for a statutory downward departure. We go a step

further, however, and hold that Rounsavall made a

sufficient threshold showing to require that an

evidentiary hearing be held to determine whether the

United States
10

Attorney’s reasons for not granting the motion were

irrational and/or were made in bad faith.

No credence can be given to the United States

Attorney’s first reason, that the defendant failed to

cooperate until her second trial. The fact is that the

plea agreement was not entered into until the second

trial. Thus, if the United States Attorney was going to

take into consideration that Rounsavall was late in

entering a plea, he should have said so at that time

rather than after the fact. 

Nor do we find merit in the United States Attorney’s

view that the testimony regarding money laundering given

during the trial against a codefendant was not accurate

or complete. It appears from the record that the

codefendant was her brother. She testified against him

for the better part of five days and he was convicted,

the district court found, largely because of her

testimony.

The third reason for failing to file a statutory

motion, that no other person can be prosecuted as a

result of her cooperation, is equally specious. If this,

in fact, were a condition of her agreement, then the

prosecutor should have made it clear before he accepted

her plea agreement. He failed to do so. 

On the basis of this record, we are unable to divine

the rationale behind the prosecutor’s final reason for

failing to file a statutory motion, that Rounsavall’s

testimony regarding money laundering was not reliable or
An examination of the record indicates that Rounsavall’s testimonial

3

inconsistencies were insubstantial and, as the district court found, she was a key

witness in helping the government convict her brother.

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complete. Again, her brother was not only convicted of 3

money laundering because of her testimony, but the

district court found that she had completely cooperated

post-trial in terms of her own 
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money laundering and had voluntarily agreed to the entry

of a money judgment against her in the sum of $200,000.

It is difficult to imagine a higher degree of

cooperation.

We then come to appellant’s contention that Assistant

United States Attorney Gillan told Rounsavall that she

could expect to receive between seven to ten years for

substantially assisting the government. At oral

argument, Gillan contended that whether he made such

representations to Rounsavall is outside the record. In

its memorandum and order, however, the district court

acknowledged that it reviewed Rounsavall's affidavit as

part of the entire record before making its final

determination. 

Based on the alleged representations made to

Rounsavall, as set forth in her affidavit, the

government may have violated the plea agreement in

failing to file the § 3553(e) motion. In Wade, the

Supreme Court suggested that the decision to forego

filing a § 3553(e) motion could be "superseded" by

another agreement made by the prosecutor. Wade, 504 U.S.

at 185. 

In this case, Gillan's representations to Rounsavall

may have superseded the broad discretion prosecutors

generally enjoy in determining whether to file a

substantial assistance motion under § 3553(e). In her

affidavit before the district court, Rounsavall alleged

that Gillan said that he did not believe she deserved to

go to prison for twenty years if she fully cooperated;

and although it was entirely up to the judge, she should
13

expect a seven- to ten-year sentence. As the district

court found, Rounsavall clearly cooperated in providing

substantial assistance to the government. The twentyyear sentence, therefore, may well have been a violation

of the plea agreement between Rounsavall and the

Assistant United States Attorney who prosecuted the case.

This court attempted unsuccessfully to get the Assistant

United States Attorney’s view on this matter at oral

argument. The question will have to be thoroughly

addressed on remand.
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The government argues that its only agreement was to

consider whether Rounsavall had cooperated in determining

whether it would file a § 3553(e) motion. The district

court appears to have accepted this view. We do not

believe the district court’s authority is so limited.

Notwithstanding the language of an agreement, if the

government’s refusal to file a § 3553(e) motion is

irrational and/or in bad faith, particularly in light of

representations made to a defendant, a district court may

require the government to make a downward departure

motion.

Additionally, it appears that the government may have

based its decision to enter into a plea agreement with

Rounsavall on factors other than her substantial

assistance. In Stockdall, we stated, "[t]he desire to

dictate the length of a defendant's sentence for reasons

other than his or her substantial assistance is not a

permissible basis for exercising the government’s power

under § 3553(e)." Stockdall, 45 F.3d at 1261.

In this case, United States Attorney Monaghan

admitted in his affidavit that the government had sought

Rounsavall's "assistance because we believed that her

brother would cooperate with the government once he

realized that she was helping" the government.

(Appellant's Addendum at 17; Monaghan Aff. ¶ 8). The

record indicates that Rounsavall was never informed that

the government wanted her assistance to get her brother

to cooperate. As it turned out, Rounsavall's brother did

not cooperate with the government. It appears,

therefore, that when Rounsavall's brother decided not to
The government, among many other reasons, may have hoped that in entering 4

into a plea agreement with Rounsavall's brother, he would have implicated others.

15

enter into a plea agreement, the government may have

4

acted irrationally and/or in bad faith by withholding the

§ 3553(e) motion. As we stated in Stockdall, when

contemplating filing a § 3553(e) motion, the government

cannot base its decision on factors other than the

substantial assistance provided by the defendant:
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Section 3553(e) permits the government to file a

motion "so as to reflect a defendant's

substantial assistance." The statute was

enacted to enhance federal law enforcement by

"provid[ing] our United States Attorneys with

the authority they need to obtain cooperation

and information from drug dealers." It was not

intended to grant prosecutors a general power to

control the length of sentences. As the

government has itself argued in another case,

"only factors relating to a defendant's

cooperation should influence the extent of a

departure for providing substantial assistance

under § 3553(e).”

Stockdall, 45 F.3d at 1261 (alteration in original)

(internal citations omitted) (emphasis added).

In other words, as applied to the facts of this case,

the government must base its decision whether to file a

§ 3553(e) motion on factors related to Rounsavall's

substantial assistance, not on whether her brother

ultimately decided to enter into a plea agreement. In

our view, this is another issue in which Rounsavall has

made a substantial threshold showing that the government

acted irrationally and/or in bad faith and warrants an

evidentiary hearing.

IV.

Consistent with this opinion, we reverse and remand

to the district court for an evidentiary hearing to

determine whether the government acted irrationally

and/or in bad faith in failing to file a § 3553(e) motion

in light of Rounsavall’s substantial assistance and the

government’s conduct, and whether the government
17

considered factors outside of Rounsavall’s substantial

assistance in declining to file the § 3553(e) downward

departure motion.
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A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.