In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2170

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

REGINALD D. WILSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01-CR-30040-MJR—Michael J. Reagan, Judge.

____________

ARGUED NOVEMBER 13, 2003—DECIDED DECEMBER 2, 2004

____________

Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. This appeal represents the tail

end of Reginald Wilson’s protracted effort to obtain a

shorter prison sentence for his July 2001 conviction for

possession with intent to distribute crack cocaine. See 21

U.S.C. § 841(a)(1). Wilson pleaded guilty pursuant to a plea

agreement contemplating the possibility that, based on

Wilson’s cooperation, the government would move for a

reduced sentence on his behalf under either U.S.S.G.

§ 5K1.1 or Rule 35(b) of the Federal Rules of Criminal

Procedure. Wilson did cooperate, and indeed the government admitted at sentencing that it intended to file a Rule

35(b) motion, so after waiting nearly a year for the govern-
2 No. 03-2170

ment to take action to trigger a sentence reduction, Wilson

moved to compel the government to file a Rule 35(b) motion

on his behalf. The district court ultimately denied Wilson’s

motion, and he appeals. Because the government’s decision

not to file a Rule 35(b) motion lacked a rational relationship

to a legitimate government interest and was made in bad

faith, we vacate the order denying Wilson’s motion and

remand for further proceedings.

I. BACKGROUND

In November 2000 police arrested Wilson after discovering 25 grams of crack cocaine in his car. At the time, Wilson

was serving a term of supervised release for a 1993 drug

conviction. Following this November arrest, Wilson cooperated with the government in various ways. He confessed

that he had obtained 56 grams of cocaine from a supplier,

whom he identified to government agents. He also identified

several individuals from whom he had purchased marijuana. And from December 2000 to February 2001, Wilson

worked as a confidential informant for the government.

Ultimately the government charged him with possessing

with intent to distribute in excess of five grams of crack, in

violation of 21 U.S.C. § 841(a)(1). 

Wilson and the government executed a written plea

agreement, which provides in relevant part: 

Defendant and the Government agree that based

upon substantial assistance rendered through the

complete and total cooperation of Defendant, the

Government may, in the sole discretion of the

United States Attorney, file either a motion under

§ 5K1.1 of the Sentencing Guidelines or a motion

under Rule 35 of the Federal Rules of Criminal

Procedure advising the Court of a recommended

reduction in sentence. The Motion, if any, will only

be filed if the assistance rendered by the Defendant
No. 03-2170 3

is found to be complete and thoroughly truthful,

regardless of the outcome of any trial or hearing at

which the Defendant may testify. The Defendant

understands that any reduction of sentence, and

the extent of that reduction, lies in the discretion of

the Court. 

(emphasis in original). Wilson also agreed to waive his right

to appeal any sentence or fine within the statutory maximum and his right to challenge his sentence in a collateral

attack. 

Wilson pleaded guilty pursuant to this agreement, but

before sentencing he and his attorney discovered that

Wilson had spent two extra years in prison for his 1993

conviction. The presentence investigation report for Wilson’s

current conviction revealed that the government had requested, and the district court had granted, a downward

departure under Rule 35(b) vis-á-vis the former conviction.

On that conviction Wilson had originally been sentenced to

a term of 70 months’ imprisonment in July 1993. Nearly a

year later, the government had moved to reduce his sentence to 46 months’ imprisonment—a motion the district

court granted in November 1995. But on account of a bureaucratic bungle, the reduction was never communicated to

the individuals who could effectuate it (presumably officials

at the Bureau of Prisons). Thus, Wilson neither learned

about nor received the benefit of the two-year reduction the

district court had granted him. 

The discovery, in part, prompted Assistant Federal Public

Defender Lawrence Fleming (who did not represent Wilson

in the 1993 case) to move for a downward departure in the

current case. The motion requested that the court depart

downward to 120 months from the range otherwise yielded

by the relevant guidelines calculations (188 to 235 months)

to account for the lost two years and because, Fleming

argued, Wilson’s criminal history category overstated the
4 No. 03-2170

seriousness of his prior offenses. Before filing the motion,

Fleming had tried to bring the situation to the attention of

the prosecutor, Assistant United States Attorney James

Porter (who also prosecuted Wilson’s 1993 case), but Fleming

never got through to Porter, who did not return Fleming’s

voice mails. Fleming thus went ahead and filed the motion

and with the service copy included a transmittal letter to

Porter “confirming” what his telephone messages had explained: that the unexpected discovery of Wilson’s two extra

years in prison had precipitated the unusual departure

request. Fleming’s letter also explained that the downward

departure motion contemplated that the government would

still file its own motion to reward Wilson for his assistance.

In closing, Fleming expressed his hope that Porter “and the

powers that be” would not object to the motion, which

Fleming thought was “the right thing to do.” 

Porter objected. He wrote Fleming a letter of his own,

announcing that he was “simply floored” by Fleming’s attempt to secure a downward departure on Wilson’s behalf,

a move Porter labeled “unconscionable.” And although no

term in Wilson’s plea agreement can even arguably be read

to prohibit Wilson from moving for a downward departure,

Porter took the position in his letter that Wilson had

breached the plea agreement by filing his motion. Thus,

warned Porter, unless Wilson withdrew his motion, Porter

would “cease any and all cooperation” with Wilson and suggest to the district court that Wilson be allowed to withdraw

his guilty plea so that all matters against him could be

“reset ab initio for trials or hearings.” In closing, Porter

condemned Wilson’s motion as “overreaching by a threetime convicted felon” that made Porter “shudder to think”

whether he would be doing his job if he “did any less than

ensure that Mr. Wilson never gets to see the light of day

again given his current situation.”

Fleming—“shocked and disheartened” by Porter’s response—immediately replied with another letter (complying
No. 03-2170 5

with a demand in Porter’s letter that they communicate

only in writing). Fleming laid out his reasons for filing the

downward departure motion and assured Porter that he

would approach Wilson about Porter’s demand that the

motion be withdrawn. Fleming acknowledged that it would

not be in Wilson’s interest to withdraw his guilty plea, and

reiterated his desire that Porter move, as contemplated by

the plea agreement, for a downward departure under U.S.S.G.

§ 5K1.1 or after sentencing under Rule 35(b). To that end,

Fleming proposed the following potential “solution”: Porter

would agree to file a § 5K1.1 motion at sentencing, and then

Wilson could argue to the district court that the botched

handling of the court’s order compelling his early release on

the 1993 conviction warranted reducing his current sentence by more than the a customarily recommended by the

government. 

In several telephone conversations, Porter and Fleming

discussed the possibility Fleming proposed. Ultimately,

though, Porter refused to file a § 5K1.1 motion at sentencing. Instead, the lawyers agreed that if Wilson would withdraw his motion for a downward departure, he would qualify

for a later-filed Rule 35(b) motion if he remained willing to

cooperate at the government’s request. Then when the

government filed a Rule 35(b) motion, Wilson could argue

for an additional reduction premised on the two extra years

he wrongly spent in prison. In a letter to Porter that met

with no disagreement from the prosecutor, Fleming memorialized this arrangement, which, he explained, “of course,

contemplates the good faith of the Government in affording

[Wilson] the benefit of Rule 35 provided he continues to

cooperate.” Wilson then moved to withdraw his downward

departure motion “pursuant to negotiations with Government counsel.” 

Thus on July 30, 2001, Wilson was sentenced pursuant to

the original plea agreement. In keeping with the parties’
6 No. 03-2170

subsequent agreement, Wilson, as noted, had withdrawn

his motion for a downward departure, and the government

did not move to reduce his sentence under § 5K1.1. The

district court sentenced Wilson to 188 months’ imprisonment, the bottom of the applicable guidelines range, followed by four years of supervised release, and imposed a

$2,500 fine and a $100 special assessment. Before the court

settled on a sentence, Porter offered the following regarding

a substantial-assistance reduction: 

In mitigation we would point out the defendant has

been cooperating with the Government since before

his arrest in this matter, and based upon that

cooperation the Government has indicated in the

plea agreement it would be intending to file at the

appropriate time a Rule 35 motion, which we’re not

prepared to file, obviously, today, but because of

that, we would recommend a sentence at the low

end of the guideline range. 

Wilson did not appeal his conviction or sentence. 

As the one-year deadline for the government to file a Rule

35(b) motion approached, see Fed. R. Crim. P. 35(b) (providing that the district court may reduce a sentence “[u]pon

the government’s motion made within one year of sentencing”), a new dispute over Wilson’s sentence broke out. It

started with a May 1, 2002, letter from Fleming to Porter,

reminding Porter that the one-year deadline was approaching and requesting that he file a “placeholder” Rule 35(b)

motion so that the deadline did not lapse. After seeing

Fleming’s letter, Wilson sent a letter of his own. He addressed his May 8 letter to various individuals, including

Porter, whom he thought shared responsibility for the extra

two years he had spent in prison on the 1993 conviction. In

his letter Wilson protested that the government was “far

from remorseful over the miscarriage of justice,” as evidenced by Porter’s earlier threat to put him “in prison for
No. 03-2170 7

life” instead of trying to remedy the situation. Wilson also

set out his belief that those involved were not “acting in

good faith and with clean hands” in the matter. He characterized his letter as a “NOTICE OF INTENT TO INSTITUTE LEGAL ACTION” and demanded that all of its

recipients (save Fleming) respond within 10 days “and set

forth any facts by which you claim that I have not been

injured by your acts and or omissions, by virtue of which

you are personally liable to me for damages.” 

Having received both Fleming’s and Wilson’s letters,

Porter wrote back to Fleming and told him that “the United

States intends to do nothing” for Wilson. Porter claimed

that such a stance was necessary in light of the “pending

litigation,” and because of Wilson’s failure to pay his fine or

special assessment and the “threats” in his letter. In his

reply to Porter, Fleming portrayed Wilson’s letter as an “ill

advised and inappropriate” reaction to his frustration over

having spent two extra years in prison, but also told Porter

that no lawsuit had been filed and that Wilson’s letter could

not be fairly construed to suggest there was any “pending

litigation” about the untimely release. Fleming also noted

his own belief that Wilson’s letter had been drafted by a

jailhouse lawyer who was providing “help” to Wilson.

Fleming invited Porter to reconsider his position on the

Rule 35(b) motion and again urged him to file a “placeholder” motion that would allow the parties to negotiate

“the extent of the sentence reduction, if any.” In return,

Fleming would advise Wilson to “withhold any further

action on whatever it is he may be contemplating” and also

to pay the $100 assessment. Porter, though, was unmoved

and wrote back to summarize his “bottom line:” “[U]nless

and until your client changes his stance and returns to

being a cooperating person fully in compliance with his plea

agreement, nothing will be done. Please file whatever

motions you deem appropriate given this. The clock is, in

fact, running.” 
8 No. 03-2170

The motion Fleming apparently deemed appropriate was

a “Motion to Enforce Plea Agreement and Agreement

Regarding Withdrawal of Motion for Downward Departure

and to Compel Government to File Rule 35 Motion,” which

he filed on June 4, 2002. In it Fleming argued that the

government was obligated to file a Rule 35(b) motion under

both the terms of Wilson’s plea agreement and the separate

agreement reached when Wilson withdrew his downward

departure motion. On July 29, 2002—the day before the

one-year mark—the government filed a “placeholder” Rule

35(b) motion “as an accommodation to the Court and the

defendant.” The district court determined that under Wade

v. United States, 504 U.S. 181 (1992), Wilson was entitled

to a hearing on his motion to compel. In Wade the Supreme

Court held that a district court may review a prosecutor’s

refusal to move for a substantial-assistance reduction if the

defendant makes a “substantial threshold showing” that the

refusal is based on an unconstitutional motive or lacks a

rational relationship to any legitimate government objective. Wade, 504 U.S. at 185-86. Although the court did not

have space on its calendar to conduct a hearing on Wilson’s

motion before the one-year deadline elapsed, the government’s “placeholder” motion preserved the court’s jurisdiction to reduce Wilson’s sentence if it ruled in his favor on

the motion to compel. 

In September 2002 the district court held a hearing on

Wilson’s motion. By then the parties (and the district court)

had brokered a tentative agreement. Wilson would abandon

his “threat” to file a lawsuit, and the government would

proceed with its downward departure under Rule 35(b). The

court would then grant the motion and both reduce Wilson’s

sentence by a and take off an additional two years to

compensate Wilson for his previous prison time. In short, if

Wilson would forego filing suit, he would be guaranteed a

prison term of 101 months, just over seven years less than

the 188-month guideline minimum that he was currently
No. 03-2170 9

serving. But Wilson would not agree, even after the court

explained that he risked getting “no time off” his sentence.

Wilson insisted that he did not “really want to discuss that,

because I mean my understanding on that is I ain’t really

set right as far as even dwelling on it at this time because

I am focused more on getting my reductions in this case.”

He emphasized that he was not interested in having the

district court reduce his current sentence to compensate him

for the extra time he had spent in prison on the previous

conviction; instead, he reiterated that his only concern was

in getting the a reduction for having provided substantial

assistance in this case. 

Wilson’s unwillingness to accept the government’s “offer”

prompted Fleming to request an evaluation to ensure that

Wilson was competent. The district court agreed to

Fleming’s request and continued the hearing on Wilson’s

motion to compel. The resulting evaluation established that

Wilson was indeed competent, and so in mid-December

2002 the district court reconvened the hearing on Wilson’s

motion to compel. This time the government moved to withdraw its “placeholder” Rule 35(b) motion. Porter represented

that the government sought to withdraw the motion because he believed that Wilson, by contemplating what

Porter deemed to be a “frivolous and vexatious” lawsuit,

had not rendered substantial assistance after all. To support their respective positions, the parties stipulated to the

admission of the attachments to Wilson’s motion to compel,

consisting primarily of the correspondence between Porter

and Fleming. Over Fleming’s objection, the district court

then granted the government’s motion to withdraw its Rule

35(b) motion, rendering Wilson’s motion to compel “ripe for

consideration.” 

Almost four months later, on April 22, 2003, the district

court denied Wilson’s motion. The court first considered

whether Wilson had shown his entitlement to relief under
10 No. 03-2170

Wade because the government’s refusal to move for a downward departure was not rationally related to a legitimate

government interest, see id. at 186. In defense of its refusal

to file the Rule 35(b) motion, the government had proffered

the following three reasons: (1) by threatening the government with a lawsuit, Wilson created an adversarial relationship inconsistent with his obligation to provide assistance

if asked; (2) the government has an interest in deterring

“frivolous and vexatious lawsuits” against it; and (3) Wilson

had breached the plea agreement by failing to pay the fine

and special assessment. 

The district court rejected each of these reasons and found

them “pretextual for the real reason”—the government’s

desire to use its control over the Rule 35(b) motion as a tool

to secure a release from liability for the two extra years

Wilson spent in prison on his previous conviction. As for the

first reason, the district court explained that it could see no

reason why the “possibility of a civil suit” would interfere

with Wilson’s ability to render assistance; more importantly, though, the court reminded the government of its

stated position that Wilson had already provided substantial

assistance. The court then posed the following question in

dismissing the government’s second reason: “If Wilson’s

civil lawsuit was ‘frivolous and vexatious,’ why did the

Government use Federal Rule of Criminal Procedure 35 as

a civil bargaining tool in the instant case rather than

Federal Rule of Civil Procedure 12 or Federal Rule of Civil

Procedure 50 in the wrongful incarceration civil case?” And

as for the third reason, the court pointed out that the

government would have been unconcerned about Wilson’s

fine and special assessment had he been willing to waive

his civil claim against it and, regardless, Wilson was paying

his financial obligations under the terms of the BOP

financial responsibility program. Nonetheless, even after

“seriously question[ing] the legitimacy” of the government’s

stated reasons, the court concluded that Wilson had not met
No. 03-2170 11

“his heavy burden” of proving that the government’s action

was not rationally related to a legitimate government

interest.

Because the court concluded that the real reason for the

government’s refusal to move for a sentence reduction was

unrelated to the type or quality of Wilson’s assistance, it

also considered whether he could receive relief under an

Eighth Circuit case, United States v. Anzalone, 148 F.3d 940

(8th Cir. 1998). Anzalone holds that the government may

not withhold a motion for a downward departure for reasons unrelated to whether the defendant provided substantial assistance. Although the district court thought Anzalone

was well-reasoned and offered a “check and balance on

overreaching prosecution,” the court did not think the opinion could be squared with the limits for relief set out in

Wade. Thus, the court rejected Anzalone’s approach, under

which Wilson would have prevailed. 

The court also rejected Wilson’s argument that the government’s use of its power to trigger a reduced sentence as

leverage to prevent him from filing a civil suit amounted to

an unconstitutional motive. See Wade, 504 U.S. at 186. The

court cursorily reasoned that the government’s effort to

block Wilson’s suit was not on par with refusing to file

based on a defendant’s race or religion, the examples cited

in Wade. See id.

Finally, the district court found that the government had

not promised to file a Rule 35(b) motion in exchange for

Wilson’s withdrawal of his downward departure motion.

Instead, the court found, the government had promised to

“act in good faith” regarding the motion. And although the

government’s behavior was “questionable,” the court continued, it did not amount to “bad faith.” 
12 No. 03-2170

II. ANALYSIS

A. Rational Relationship

On appeal, Wilson maintains that, apart from the terms

of his plea agreement, he is entitled to relief under Wade,

which sets forth two limitations on a prosecutor’s refusal to

file a substantial-assistance motion. First, the prosecutor’s

decision must have some rational relationship to a legitimate government interest. See Wade, 504 U.S. at 186;

Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994);

see also United States v. Duncan, 242 F.3d 940, 950 (10th

Cir. 2001). Additionally, the decision may not be based on

an unconstitutional motive, such as race or religion. Wade,

504 U.S. at 185-86; Bischel, 32 F.3d at 263. Although

Wilson claims here that the government’s decision ran afoul

of both limitations, he does not develop his assertion that

the government harbored an unconstitutional motive, i.e.,

impeding his right of access to the courts. See United States

v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (even arguments

raising constitutional claims are waived when undeveloped

and unsupported by pertinent legal authority). We thus

focus on Wilson’s contention that the government’s refusal

to file a Rule 35(b) motion lacked a rational relationship to

some legitimate government objective. 

Wilson argues that, in light of the district court’s conclusion that each of the government’s asserted reasons was

pretextual, the refusal to file a Rule 35(b) motion on his behalf could not have been rationally related to a legitimate

government end. We agree. Instead of acknowledging the

district court’s factual findings about its motive, the government simply reasserts the reasons the district court

rejected (it does abandon reliance on Wilson’s alleged failure

to pay his fine and special assessment). Nowhere does the

government argue that the district court clearly erred by

disbelieving its asserted reasons for refusing to file a Rule

35(b) motion. See United States v. Butler, 272 F.3d 683, 686
No. 03-2170 13

(4th Cir. 2001). Thus, if we are to review anything at all, we

would consider the reason that the district court found was

really motivating the government’s conduct: the government

was using its discretion over the filing of a Rule 35(b)

motion in this case to force Wilson to abandon his effort to

redress the extra two years he spent in prison on another

case because of apparent negligence by government employees. The government avoids directly defending this reason,

and instead urges us to reject Anzalone and conclude that

a reason wholly unrelated to the defendant’s cooperation is

one that is rationally related to a legitimate government

objective. 

In Anzalone the Eighth Circuit held that “the government

cannot base its [Rule 35(b)] decision on factors other than

the substantial assistance provided by the defendant.”

Anzalone, 148 F.3d at 941 (internal quotations omitted).

The court reasoned that since the defendant admittedly had

provided substantial assistance the government could not

refuse to file a departure motion on the ground that he was

suspected of subsequently possessing and using a controlled

substance—a reason “unrelated to the quality of [his]

assistance in investigating and prosecuting other offenders.” Id. The Fourth Circuit, however, has expressly rejected

Anzalone as inconsistent with Wade. See Butler, 272 F.3d at

687. In Butler the government refused to file a downward

departure motion under § 5K1.1 after receiving word that

the defendant, before sentencing, had threatened to kill one

of his co-defendants, along with the co-defendant’s family

and his dogs. Id. at 685. The panel in Butler rejected Butler’s contention that his threats were unrelated to the “type

or quality of assistance he rendered.” Id. at 687. But the

court went further and concluded that “even if it were

somehow the case that Butler’s threats were not rationally

related to the assistance he provided, that is not the relevant inquiry under Wade.” Id. Thus, the court concluded

that the government’s refusal to file could be defended with
14 No. 03-2170

reference to the general governmental interest in “deterring

a defendant from threatening the life of a co-defendant.” Id.

The other case to flatly reject Anzalone, United States v.

Nealy, 232 F.3d 825 (11th Cir. 2000), is unhelpful because

it appears to have disregarded the Wade rational basis test

altogether, limiting the defendant’s recourse to those

instances when the government harbors an “unconstitutional motive” for refusing to file a substantial-assistance

motion. Id. at 831. 

We need not resolve the conflict between the extreme

positions articulated in Anzalone and Butler to decide that

the government has simply failed to convincingly articulate

a rational reason for withholding the Rule 35(b) motion. We

do not go so far as to endorse Anzalone and say that the

government’s reason must always be related to the quality

of a defendant’s assistance. Here, however, the government’s attempt to block Wilson from pursuing his unrelated

(and, as far as we know, still unrealized) civil suit is so far

afield from the purpose of § 5K1.1 and Rule 35(b) as to be

irrational. It has nothing whatsoever to do with even

general prosecutorial aims, which our circuit and others

have assumed should animate a refusal to move for a

substantial-assistance departure. See, e.g., United States v.

Emerson, 349 F.3d 986, 988 (7th Cir. 2004) (noting that

defendant could not show that government’s reason for

refusing to depart lacked a rational basis because government gets to decide “whether ‘substantial assistance’ has

been rendered” (emphasis added)); Duncan, 242 F.3d at 949

(noting that government’s refusal to move for downward

departure was rationally related to “legitimate law enforcement ends”) (emphasis added). This, coupled with the

district court’s rejection of the government’s stated justifications (and the government’s failure to challenge the court’s

factual findings on appeal) convinces us that the government’s refusal to file a Rule 35(b) motion was not rationally

related to a legitimate government interest. See United
No. 03-2170 15

States v. Hawkins, 274 F.3d 420, 433-34 (6th Cir. 2001)

(noting that government’s refusal to file § 5K1.1 motion was

not rationally related to any legitimate end when it was

undisputed that defendant performed obligations under

plea agreement).

B. Bad Faith

That leaves Wilson’s alternate contention that the government acted in bad faith by refusing to file a Rule 35(b)

motion. Although Wilson acknowledges that we do not

generally review a prosecutor’s refusal to file a downward

departure motion for “bad faith,” see United States v. Burrell,

963 F.2d 976, 985 (7th Cir. 1992), he points out that here

the district court expressly found that the government had

promised Wilson that it would act in good faith if he

withdrew his own motion for a downward departure. That

motion, of course, had nothing to do with substantial assistance and, as we have said, was not forbidden by any

term of Wilson’s plea agreement. Wilson contends that, once

the district court rejected the government’s proffered

reasons for refusing to move for a downward departure, the

court erred by nonetheless concluding that the government

had not acted in bad faith. As evidence of the government’s

bad faith, Wilson points out that the government itself

acknowledged that he had upheld his end of the bargain by

providing substantial assistance. And, as the government

demanded, he also withdrew his motion for a downward

departure, which was premised in part on the additional

two years he mistakenly spent in prison. Wilson contends

that he justifiably expected that the government in turn

would fairly, and in good faith, decide whether to file a Rule

35(b) motion on his behalf; instead, he argues, the government injected a new condition into the agreement— his

willingness to release it from liability for the extra two

years he spent in prison—and then asserted pretextual
16 No. 03-2170

reasons for its refusal to reward his substantial assistance

by filing an otherwise routine Rule 35(b) motion.

Although in the context of contract disputes we review

deferentially a district court’s finding of good faith, see

Great Lakes Dredge & Dock Co. v. City of Chicago, 260 F.3d

789, 797 (7th Cir. 2001), we agree with Wilson that the

underlying facts found by the district court in this case lead

inescapably to the conclusion that the government acted in

bad faith. After rejecting each of the government’s stated

reasons for refusing to file, the district court noted that “the

propriety of the [government’s] decision not to file for

downward departure is questionable.” Without explaining

further, the court then concluded that it “cannot say that

the Government’s actions amount to bad faith.” 

Yet, as Wilson points out, the court’s factual findings

compel the opposite conclusion for several reasons. First, by

conditioning its willingness to file a Rule 35(b) motion on

Wilson’s assent to forego suit, the government unilaterally

inserted a new, unbargained-for term into the agreement

obligating Wilson to withdraw his downward departure

motion. At that point Wilson had fully performed his obligations by providing substantial assistance and withdrawing his motion for a downward departure. It was thus

unfair for Porter to then announce that the government

would ignore its reciprocal obligation to perform unless

Wilson jumped over new hurdles that were not part of the

bargain. See Venture Assoc. Corp. v. Zenith Data Sys. Corp.,

987 F.2d 429, 433 (7th Cir. 1993) (introducing new demands

late in negotiating process may constitute bad faith). 

Moreover, the government overreached by requiring

Wilson to withdraw his motion for a downward departure

in the first place. Nothing in the plea agreement prohibited

him from filing such a motion, yet the government refused

to move under Rule 35(b) unless he withdrew it, and in

exchange promised Wilson only that it would “act in good
No. 03-2170 17

faith”—something it was already obligated to do by the

general duty of good faith and fair dealing implied in every

agreement. See Restatement (Second) of Contracts § 205; cf.

Contempo Design Inc. v. Chicago and N.E. Ill. Dist. Council

of Carpenters, 226 F.3d 535, 550 (7th Cir. 2000) (en banc)

(promise to perform pre-existing duty does not supply

consideration). And since the government conceded in the

district court that it was satisfied with the assistance

Wilson had provided, it cannot now claim that it was

honestly dissatisfied with his performance. See United

States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 1990) (relying

on Restatement (Second) of Contracts for proposition that

government may characterize defendant’s performance as

inadequate “only if it is honestly dissatisfied”). Finally, the

district court’s finding that the government advanced

pretextual reasons for its refusal to move for a downward

departure evidences bad faith on the government’s part. See

Entergy Ark., Inc. v. Nebraska, 358 F.3d 528, 551 (8th Cir.

2004) (upholding district court’s finding of bad faith when

defendant offered pretextual reason to cover up real reason

for refusing to carry out plan for radioactive waste disposal

site); see also United States v. Knights, 968 F.2d 1483, 1487-

88 (2d Cir. 1992) (vacating and remanding district court’s

finding that prosecutor acted in good faith when none of

government’s reasons for refusing to move for downward

departure suggested that defendant had not fulfilled his

obligations). 

We are unpersuaded by the government’s general contention that it acted “with abundant good-faith.” To support

its position, the government points out that it offered to

move under Rule 35(b) to reduce Wilson’s sentence by a

and to recommend that the district court take two additional years off the sentence (which the district court assured

Wilson that it would do) if Wilson would only forego any

claim arising from the two extra years he spent in prison.

The government contends that its offer was so good that
18 No. 03-2170

Wilson’s own attorney questioned his competence when he

rejected it. Thus, the argument goes, the government must

have been acting in good faith. But its position makes no

sense: that Wilson acted irrationally by refusing the “solution” has little or no bearing on whether the government

acted in good faith by conditioning its willingness to file on

Wilson’s forbearance from suit in the first place. No amount

of window dressing can hide the fact that Porter told Wilson

in no uncertain terms that the government would not even

consider carrying out its part of the bargain unless Wilson

accepted the government’s new one-sided demand. In sum,

the district court concluded that the parties had an independent agreement that the government would act in “good

faith” regarding Wilson’s Rule 35(b) motion, and by subsequently conditioning its willingness to file on a reason

unrelated to Wilson’s admittedly satisfactory assistance, the

government instead acted in bad faith. 

III. CONCLUSION

The district court rejected each of the government’s

explanations for refusing to file a Rule 35(b) motion on

Wilson’s behalf. It then concluded nonetheless that the

refusal was rationally related to a legitimate government

interest and made in good faith. Given the district court’s

factual findings, and the sequence of events precipitating

the government’s ultimate withdrawal of its “placeholder”

motion, the government neither furthered a legitimate government objective nor acted in good faith when it refused to

file a Rule 35(b) motion in exchange for the substantial

assistance it concedes that Wilson provided. We thus VACATE

the district court’s order allowing the government to

withdraw its Rule 35(b) motion, REVERSE its order denying

Wilson’s motion to compel, and REMAND for further proceedings.

Pursuant to Circuit Rule 36, this case shall be reassigned

to a new district court judge.
No. 03-2170 19

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-2-04