*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 4/9/96

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, No. 95-3037

v. (D.C. No. 94-CR-40018)

JAY E. BAZY, (D. Kan.)

Defendant - Appellant.

 

ORDER AND JUDGMENT*

Before EBEL, McKAY and HENRY, Circuit Judges.

The parties have agreed that this case may be submitted on the briefs. After

examining the briefs and the appellate record, this panel has determined unanimously that

oral argument would not materially assist the determination of this appeal. See Fed. R.

App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral

argument.

Defendant Jay Bazy pled guilty to conspiracy to possess crack cocaine with intent

to distribute in violation of 21 U.S.C. § 846. Mr. Bazy claims that the government failed
2

to comply with the terms of his plea agreement and that the district court erred when it

denied his motion to enforce the plea agreement. For the following reasons, we affirm.

Under the terms of the plea agreement, Mr. Bazy agreed to give a “full and

truthful” statement concerning his involvement, as well as the involvement of other

people, with the activities charged in his indictment. R., vol. I, no. 57, Plea Agreement at

¶ 4. Mr. Bazy was also required to submit to a polygraph examination in order to test the

truthfulness of the representations made in his statement. Id. at ¶ 5. In return, the

government promised to file a motion to reduce Mr. Bazy’s sentence pursuant to U.S.S.G.

§ 5K.1 if it determined that Mr. Bazy had provided “substantial assistance” in the

investigation or prosecution of other persons. Id. at ¶ 7(e). The agreement expressly

provided, however, that the government had complete and sole discretion to determine

whether Mr. Bazy had provided substantial assistance. Id. at ¶ 8.

The government interviewed Mr. Bazy twice. It gave Mr. Bazy a polygraph

examination after the first interview, but did not give him a polygraph examination after

the second interview. Mr. Bazy filed a motion with the district court, claiming that the

government did not comply with the plea agreement because it had not filed a motion for

reduction of sentence based on his substantial assistance. The district court denied this

motion. On appeal, Mr. Bazy argues that the government did not comply with the plea
3

agreement because it did not give him the opportunity to take a polygraph examination

regarding his second interview. He also argues that the government knew the contents of

the statement he would make and that it had assured him that this statement would

constitute substantial assistance.

“[A]bsent an unconstitutional motive for refusing to do so, the prosecutor enjoys

complete discretion in determining whether to file a substantial assistance motion . . . .” 

United States v. Massey, 997 F.2d 823, 824 (10th Cir. 1993) (citing Wade v. United

States, 112 S. Ct. 1840, 1844 (1992)). Without a sufficient allegation of an

unconstitutional motive, the court will not review a prosecutor’s determination that

substantial assistance has not been provided. See id. Mr. Bazy has not claimed that the

prosecutor acted with any improper motive in this case other than a conclusory allegation

of bad faith. As a result, we will not review the prosecutor’s determination that Mr. Bazy

did not provide substantial assistance.

Mr. Bazy contends, however, that the government did not comply with the terms of

the plea agreement. Where a defendant asserts that the plea agreement was not complied

with, rather than merely attacking the substantial assistance determination, this court will

consider the defendant’s argument. Id. Thus, we may properly consider Mr. Bazy’s

argument that the plea agreement was not followed. We review such claims de novo. Id.
4

Mr. Bazy first argues that the government did not comply with the plea agreement

because it did not give him the opportunity to take a polygraph examination. He contends

that the polygraph examination was necessary to show that his statements were truthful. 

This argument ignores, however, the government’s position that Mr. Bazy had not

provided substantial assistance even if everything he said in his statement were true. R.,

vol. I, no. 94, at 10 (motion and sentencing hearing). Thus, the failure to give Mr. Bazy a

polygraph examination could not have affected the prosecutor’s discretionary decision not

to file a substantial assistance motion.

Mr. Bazy also argues that the government knew what he would say in his

statement and that it assured him that this information would constitute substantial

assistance. The plea agreement itself does not support this contention. Nowhere does it

indicate that the government would file a substantial assistance motion simply because

Mr. Bazy gave a statement. Rather, the plea agreement clearly states that the government

retains complete discretion to determine whether Mr. Bazy’s statement constituted

substantial assistance. R., Vol. I, No. 57, Plea Agreement at ¶ 8.

It appears from his brief, however, that Mr. Bazy is also arguing that the

prosecutor made a promise or inducement not contained in the plea agreement. “[T]he

party who asserts a breach of a plea agreement has the burden of proving the underlying
5

facts that establish a breach by a preponderance of the evidence.” Allen v. Hadden, 57

F.3d 1529, 1534 (10th Cir.), cert. denied, 116 S. Ct. 544 (1995). Here, Mr. Bazy simply

supports his contention by citing to a letter which his own counsel wrote to the

prosecutor. This evidence is insufficient to establish the existence of a promise not

contained in the plea agreement. Thus, this claim fails as well.

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge