BLD-027 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3464

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UNITED STATES OF AMERICA

v.

CHAD FRANK, 

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-04-cr-00029)

District Judge: Berle M. Schiller

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Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 27, 2011

Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

(Filed: November 10, 2011)

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OPINION OF THE COURT

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PER CURIAM.

Federal inmate Chad Frank appeals from an order of the District Court denying a

motion for reconsideration in his criminal proceedings. The order effectively upheld the 

District Court’s earlier denial of Frank’s motion to compel the Government to move for a

substantial assistance-based sentence reduction. We will summarily affirm.
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I.

Frank was sentenced to a term of 420 months of imprisonment following an open 

guilty plea to criminal offenses that involved child pornography. Frank’s sentence was 

outside the recommended guidelines range of 262-327 months. We found no error in the 

District Court’s application of certain sentencing enhancements, and we concluded that 

its ultimate sentence—the product of an upward departure—was reasonable. See United 

States v. Frank, 195 F. App’x 114, 117 (3d Cir. 2006). 

Years later, Frank filed a pro se motion for “specific performance,” in which he 

asked the District Court to compel the Government’s filing of a motion under Rule 35(b) 

of the Federal Rules of Criminal Procedure. That rule provides for the reduction of a 

defendant’s sentence if he provides the Government with “substantial assistance in 

investigating or prosecuting another person.” 

In his motion, Frank made the following general averments: (1) that he had 

“cooperated with the government’s prosecution of a large pedophile, child molester and 

distribution of pornography ring”; (2) that “the government asserted that defendant’s 

cooperation was essential, imperative and crucial to its cause and target of prosecution”; 

and (3) that “the United States advised defendant that it intended to make a substantial 

assistance motion pursuant to the terms of and conditions of the plea agreement at the 

conclusion of the investigation.” Frank also described the specific nature of his 

participation in the relevant criminal investigation:

Prior to defendant’s conviction and sentence and in 

conjunction with the written agreement, he did provide fact 

specific information regarding one Dustan Dennington. As 
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an initial matter defendant informed authorities of a ‘boy 

lovers’ gathering in Philadelphia and Dennington’s 

participatory role. Further, defendant provided authorities 

with Dennington’s online screen name, ‘Weatherboy,’ which 

allowed authorities an intricate viewing of illicit activities.

* * *

Accordingly, the government agents used the information 

provided by the defendant, in large part, to obtain search 

warrants that resulted in obtaining crucial evidence against 

Dennington. Defendant’s cooperation was significant and 

substantial to the extent he was ‘furloughed’ during the 

pendency of his case for the purpose of cooperating with law 

enforcement officials communicating online with other 

individuals known to be sexually interested in children.

The Government responded to Frank’s motion by pointing out that “[b]ecause 

Frank refused to sign a written guilty plea agreement, there were no specific terms and 

conditions of an agreement which the government is now bound to honor.” In addition, 

the Government stated that “[t]here is no active investigation or prosecution underway in 

the Eastern District of Pennsylvania of a child pornography ring based upon information 

provided by the defendant, nor is counsel aware of any investigations or prosecution that 

are active in any other district based on information provided by the defendant.” By 

order entered June 14, 2011, the District Court denied Frank’s Rule 35(b) motion for the 

reasons given in the Government’s response.

Frank filed a motion for reconsideration. Attached to Frank’s motion was a 

portion of our opinion in United States v. Dennington, 399 F. App’x 720 (3d Cir. 2010). 

The opinion explained that an affidavit from Frank was used as the basis for a 

government search warrant application that targeted the home of Dennington. The search 
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of Dennington’s home “turned up a computer on which were stored between 10 and 150 

unlawful images” of child pornography. Id. at 721. Dennington was arrested and 

eventually pleaded guilty to violating 18 U.S.C. § 2252. He was sentenced to five years 

of imprisonment. We affirmed Dennington’s criminal judgment on appeal. See id. at 

728.

The District Court denied Frank’s motion for reconsideration in a one-sentence,

August 22, 2011 order. Frank appealed.

II.

The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 

3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

The denial of a motion for reconsideration is reviewed for abuse of discretion. 

United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010). The purpose of a motion for 

reconsideration “is to correct a clear error of law or to prevent a manifest injustice in the 

District Court’s original ruling.” Id.

III.

In this case, no evidence of a cooperation agreement between the Government and 

Frank was presented to the District Court. In the absence of such an agreement, “it is 

clear that the prosecutor has almost unreviewable discretion over whether to file a 

substantial assistance motion.” United States v. Isaac, 141 F.3d 477, 481 (3d Cir. 1998). 

Two exceptions permitting federal court review of such prosecutorial discretion

have been found to exist: where there is evidence that Government’s refusal is “based on 

an unconstitutional motive,” and where there is evidence that the refusal is “not rationally 
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related to any legitimate Government end.” Wade v. United States, 504 U.S. 181, 185-86 

(1992). “[A] claim that a defendant merely provided substantial assistance will not 

entitle a defendant to a remedy or even to discovery or an evidentiary hearing.” Id. at 

186. Rather, the movant must make a “substantial threshold showing” of impropriety in 

the Government’s refusal to seek a sentence reduction. Id. at 185. 

We have carefully considered the parties filings in the District Court and Frank’s 

submission on appeal. We conclude that Frank has failed to make the extraordinary 

showing necessary under the Wade standard and, as result, we conclude that the District 

Court cannot be found to have abused its discretion in denying reconsideration of the 

June 14, 2011 order denying Frank’s motion for specific performance. Specifically, 

Frank failed to put forth any evidence in the District Court indicating impropriety in the 

Government’s refusal to file a Rule 35(b) motion. 

Accordingly, we will summarily affirm the August 22, 2011 order of the District 

Court.