## United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-1247

United States of America, * * Appellee, * * Appeal from the Unite d 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, Cir cuit Judges.

HEANEY, Circuit Judge.
Mary Ann Rounsavall appeals her twenty-year sentence for d rug and money laundering. She contends that th e gove rnment acted irrationally and/or in bad faith i n refusing to file a motion pursuant to 18 U.S. C. § 3553(e) to r educe her sentence below the statutory twenty-yea r mandatory minimum. We conclude that Rounsavall has made a sufficient threshold showing on two separat e grounds to
re quire that this matter be remanded to the distric t
co urt for an evidentiary hearing to determine if, i n fact , the government acted irrationally and/or in ba d faith.2 I.

OnNovember 9, 1995, Mary Ann Rounsavall entered int o a ple a agreement with the government. As part of he r agreement, she pled guilty to drug and money launderin g charges. Absent such an agreement, she would have faced 360 m onths to life with a statutory minimum of twent y years. Her agreement with the government provided tha t if she coo perated in the prosecution of her brother, the government would consider filing motions allowing her to
rece ive a sentence at or below the statutory mandator y mini mum. According to an affidavit submitted b y Rounsavall to the district court, Assistant U nited States Attorne yBruce Gillan told Rounsavall that he did no t want or believe that she should go to prison for th e twenty yea rs required by the statutory mandatory minimum
sen tence if she complied with the terms of the ple a agreement. Gillan indicated Rounsavall should expect to
re ceive somewhere between seven to ten years for he r coop eration, although the decision as to the length o f her sentence would be entirely up to the judge. In hi s affidavit, United States Attorney Thomas Monaghan stated that the government initially sought Rounsavall’ s assistance because the government believed that once she helpe d in the prosecution, Rounsavall’s brother woul d also cooperate.

Rouns avall testified against her brother in tw o sepa rate criminal proceedings. First, she testifie d ag ainst her brother at his drug and money launderin g trial. During his trial, she testified for four days

. She also t estified against her brother for an additional day at a f orfeiture proceeding. All told, she testifiedRounsavallalso helped the government recover property worth several 1 thousand dollars.
3 for five d ays, longer than any other witness, in helping th e government convict her brother and secure a lif e sentence against him. 14

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 twen tyyears, the lowest possible sentence the distric t court coul d order under the statutory mandatory minimum. Beca use the government withheld filing a § 3553(e ) moti on, the district court could not further lowe r Rounsavall’s sentence.
Accordingto an affidavit from United States Attorne y Thomas Monaghan, the government considered but decide d again st filing a § 3553(e) motion for the followin g reasons:
(a) t he failure of the defendant to cooperat e withthe government until her second trial; (b) the f act that a portion of her testimon y regarding money laundering given during a trial again st a codefendant was not accurate o r complete; (c) the fact that no other persons can be pr osecuted as a result of her cooperation ; and (d) the fact that she violated her ple a agr eement by not giving reliable and complet e testimony regarding money laundering.
Unit ed States v. Rounsavall , No. 4:CR94-3034, at 4 (D

. Neb. Sept. 11, 1996).
The district court j udge strongly disagreed with the de cision of the prosecutor not to file a § 3553(e ) motion:

In my opinion, Ms. Rounsavall’s testimon y against her brother was extrem ely helpful to the Government, was, in large measure, truthful and5

was provided to the Government at great personal cost t o Ms. Rounsavall. In some ways, she’ s going to have to live the rest of her lif e knowing she contributed to her brother probably dying in prison. If the Government had filed a motio n under the statute, I would likely hav e substantially departed below t he sentence that I now must impose under the law. (Sent. Tr. at 531-32, Nov. 22, 1996). The di strict court judge further stated that:Onthe basis of the latter fact, the district court required the United State s 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 promise s respecting the departure question, has furthe r cooperated with the government by stipulating to forfeiture of certain property. Moreover , Rounsa vall has also agreed to the entry of a mo neyjudgment in the sum of $200,000

. Rounsavall made these concessions despite th e fact that her plea agreement did not requir e them, and despite the fact that the governmen t had m ade no direct or indirect promise tha t fu rther cooperation might change th e 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 re ason to hold an evident iary hearing regarding Rounsavall’s claim of a breach of her agreement because the governmen t had simply agre ed to consider her cooperation and nothing more

. Roun savall appeals the district court's denial of he r mot ion to compel the government to file a § 3553(e ) motion.

II.

Wh en the government files a substantial assistanc e motion und er § 5K1.1, a sentencing court may depart from the guidelines sentencing range but not the statutor y minim um. Melendez v. United States , 116 S. Ct. 2057 , 2063 (1 996). When the government files a substantia l assistance motion under § 3553(e), however, a sentencing7

cour t may depart from the applicable mandatory minimu m sentence. Id.

In this regard, the law's practical effect i s twofo ld: 1) where a § 5K1.1 motion is filed, th e di strict court cannot sentence below the statutor y mandatory minimum; 2) where a § 3553(e) moti on is filed, on the other hand, the district court is able to depart8

below the mandatory minimum sentence otherwise require d by the sentencing guidelines.
In this case, after the government filed its § 5K1.1 motion, the district court sentenced Rounsava ll to twenty year s, the lowest possible sentence under the statutor y mandatory minimum. Because the government fa iled to file a § 3553(e) motion, the district court correc tly believed it could not depart below the twenty-year sentence eve n 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 downwar d depa rture for substantial assistance absent a motion b y the gov ernment." United States v. Stockdall , 45 F.3 d 1257, 1259 (8th Cir. 1995) (citing United States v

. Kelly , 18 F.3d 612, 617 (8th Cir. 1994); Unit ed States v. Coleman , 8 95 F.2d 501, 504 (8th Cir. 1990)). There are, however, limited exceptions to this rule. Ke lly , 18 F.3d at 617. “[R]elief may be granted absent a governmen t subs tantial assistance motion if a defendant shows tha t the government's refusal to make the motion was based on
an unconstitutional motive, that the refusal wa s irrational, or that the motion was withheld in ba d faith." I d. at 617-18 (citations omitted). A defendant is e ntitled to an evidentiary hearing to determin e whether the government acted improperly if sh e is able to make a sub stantial threshold showing that the government
ac ted irrationally, in bad faith, or in violation o f9

one’s cons titutional rights. Id. at 618 (citing Wade v. United States , 504 U.S. 181, 186 (1992)).

We agre e with the district court that United State s Attorney Monaghan should have made the § 3553(e) motio n for a statutory downward departure. We go a ste p furt her, however, and hold that Rounsavall made a suffi cient threshold showing to require that a n evid entiaryhearing be held to determine whether th e United States10

Atto rney’s reasons for not granting the motion wer e irrational and/or were made in bad faith.

No credence can be given to the United State s Atto rney’s first reason, that the defendant failed t o coope rate until her second trial. The fact is that th e pl ea agreement was not entered into until the secon d trial. Th us, if the United States Attorney was going to take into consideration that Rounsavall was late i n entering a plea, he should have said so at that tim e 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 accurat e or complete. It appears from the record that th e code fendant was her brother. She testified against hi m for the better part of five days and he was convicted , the district court found, largely because of he r testimony.

The third reason for failing to file a statutor y mot ion, that no other person can be prosecuted as a result of her cooperation, is equally speciou s. If this, in f act, were a condition of her agreement, then th e prosecutor should have made it clear before he accepte d 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 fo r fail ing to file a statutory motion, that Rounsavall’ s testimony regarding money laundering was not reliable orAnex amination of the record indicates that Rounsavall’s testimonial 3 inconsis tencies were insubstantial and, as the district court found, she was a ke y witness in helping the government convict her brother.
11 complete. Again, her brother was not only convicted of

3
mone ylaundering because of her testimony, but th e dist rict court found that she had completely cooperate d post-trial in terms of her own12

money laun dering and had voluntarily agreed to the entry of a money judgment against her in the sum of $200,000

. It is d ifficult to imagine a higher degree o f cooperation.

We then come to appellant’s contention that Assistan t Unit ed States Attorney Gillan told Rounsavall that sh e could expect to receive between seven to ten years fo r substantiallyassisting the government. At ora l argu ment, Gillan contended that whether he made suc h representa tions to Rounsavall is outside the record. In its memorandum and order, however, the district cour t acknowledged that it reviewed Rounsavall's affidavit a s par t of the entire record before making its fina l determination.

Ba sed on the alleged representations made t o Rounsavall, as set forth in her affidavit, th e gove rnment may have violated the plea agreement i n faili ng to file the § 3553(e) motion. In Wade , th e Supr eme Court suggested that the decision to foreg o filing a § 3553(e) motion could be "superseded" b y another agreement made by the prosecutor. Wa de , 504 U.S. at 185.
In this case, Gillan 's representations to Rounsavall may have superseded the broad discretion prosecutor s gene rallyenjoy in determining whether to file a subs tantial assistance motion under § 3553(e). In he r affidavit before the district court, Rounsavall allege d that Gilla n said that he did not believe she deserved to go to prison for twenty years if she fully cooperated ; and althou gh it was entirely up to the judge, she should13

expect a seven- to ten-year sentence. As the distric t court found, Rounsavall clearly cooperated in providin g substantial assistance to the government. The twenty

year sente nce, therefore, may well have been a violation of t he plea agreement between Rounsavall and th e Assistant United States Attorney who prosecut ed the case. This court attempted unsuccessfully to get the Assistant Un ited States Attorney’s view on this matter at ora l argument. The question will have to be thoroughl y addressed on remand.14

The government argue s that its only agreement was to consider whether Rounsavall had cooperated indetermining wheth er it would file a § 3553(e) motion. The distric t court appears to have accepted this view. We do no t beli eve the district court’s authority is so limited

. Notw ithstanding the language of an agreement, if th e government’s refusal to file a § 3553(e) motion i s irrational and/or in bad faith, particularly in light of representations made to a defendant, a distri ct court may requ ire the government to make a downward departur e motion.
Additionally, it appears that the government may hav e based its decision to enter into a plea agreement wit h Rounsavall on factors other than her substantia l assi stance. In Stockdall , we stated, "[t]he desire t o dictate th e 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 powe r under § 3553(e)." Stockdall , 45 F.3d at 1261.

In this case, United States Attorney Monagha n admitted i n his affidavit that the government had sought Rouns avall's "assistance because we believed that he r brot her would cooperate with the government once h e real ized that she was helping" the government

. (Appe llant's Addendum at 17; Monaghan Aff. ¶ 8). Th e record ind icates that Rounsavall was never informed that the government wanted her assistance to get her brothe r 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 toThe 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 hav e 4 acted irrationally and/or in bad faith by wit hholding the § 3553(e) motion. As we stated in Stockdall , whe n cont emplating filing a § 3553(e) motion, the governmen t cannot base its decision on factors other than th e substantial assistance provided by the defendant:16

Section 3553(e) permits the go vernment to file a mo tion "so as to reflect a defendant' s substantial assistance." The statute wa s ena cted to enhance federal law enforcement b y "provid[ing] our United States Attorneys wit h the authority they need to obtain cooperatio n and information from drug dealers." It was not intended to grant prosecutors a general power to contr ol the length of sentences. As th e gov ernment has itself argued in another case , " onlyfactors relating to a defendant' s co operationshould influence the extent of a departure for providing substantial assistanc e under § 3553(e). ”
Stoc kdall , 45 F.3d at 1261 (alteration in original ) (internal citations omitted) (emphasis added).

Inother words, as applied to the facts of this case , the gov ernment must base its decision whether to file a § 35 53(e) motion on factors related to Rounsavall' s su bstantial assistance, not on whether her brothe r ultima telydecided to enter into a plea agreement. I n our vie w, this is another issue in which Rounsavall ha s made a sub stantial threshold showing that the government acte d irrationally and/or in bad faith and warrants a n evidentiary hearing.

IV.

Consistent with this opinion, we reverse and reman d to th e district court for an evidentiary hearing t o determine whether the government acted irrationall y and/or in bad faith in failing to file a § 35 53(e) motion in l ight of Rounsavall’s substantial assistance and th e government’s conduct, and whether the governmen t17

considered factors outside of Rounsavall’s substantia l assista nce in declining to file the § 3553(e) downwar d departure motion.18

A true copy.

Attest.

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

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