Wade v. United States – Oral Argument – March 23, 1992

Media for Wade v. United States

Audio Transcription for Opinion Announcement – May 18, 1992 in Wade v. United States

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William H. Rehnquist:

We’ll hear argument next in Number 91-5771, Harold Ray Wade v. United States.

Spectators are admonished not to talk while the Court remains in session.

Mr. Martin.

J. Matthew Martin:

Mr. Chief Justice, and may it please the Court:

Good morning.

The issue today before the Court is whether the district judge has any authority to consider a defendant’s substantial assistance outside of the Government’s refusal to make a motion for downward departure.

The court of appeals of the Fourth Circuit held that because the statutory authority gives the prosecutor sole discretion in deciding whether to file a motion for downward departure for substantial assistance, that neither the defendant nor the court may inquire into the Government’s reasons and motives, if the Government does not make the motion.

The Government now concedes that there are grounds for review by the court when a defendant makes a threshold showing of un… unconstitutional activity on the part of the prosecutor.

We urge the Court to reverse the decision of the Fourth Circuit Court of Appeals.

The only uncontested issues before the Court today are what… whether the scope of judicial authority includes review of claims for bad faith or arbitrariness on the part of the prosecutor in his decision making process; and also, what circumstance… what the circumstances are surrounding the remand in this particular case.

In this case–

William H. Rehnquist:

Well, I think the Government agrees that if a showing is made, it… the judge can certainly inquire into what the… what the prosecution’s reasons were for not making a… making a motion.

But I don’t think the Government agrees that showing was made here.

I don’t think the Government agrees there should be a remand, does it?

J. Matthew Martin:

–No, Your Honor, they don’t.

What happened in this case is the district court upheld that he had no authority to entertain this inquiry, whatsoever.

William H. Rehnquist:

Well, did you make any sort of a proffer?

J. Matthew Martin:

I did make a brief proffer at the trial court–

William H. Rehnquist:

And would… what did the proffer consist of?

J. Matthew Martin:

–Basically, the proffer consisted of a recitation of what Mr. Wade’s assistance was up to that point.

William H. Rehnquist:

Well, did it consist of any showings, a prima facie showing that the Government was denying Mr. Wade his constitutional rights?

J. Matthew Martin:

Not at that time, Mr. Chief Justice.

But the judge would not let me put on any evidence–

William H. Rehnquist:

Well, but putting on evidence is different from a proffer.

I think a judge is entitled to first say you make your proffer, and then I’ll see whether I’ll let you put on evidence.

And if your proffer was insufficient, he was entitled to say, I’m not going to hear you.

J. Matthew Martin:

–I believe that would be correct.

But what happened in this case was the reverse.

If you’d look at the joint appendix, and you can see that what Judge Tilley, the district court judge did, was deny my request… not once, actually, but twice… before he allowed me to make the proffer.

So actually, he had ruled on this before he said you may state… you may make a statement.

William H. Rehnquist:

Well, but there can be good reasons and bad reasons for denying a particular motion.

And if your proffer does not show that the reason must have been bad, you’re not in good shape; as opposed to whether your proffer… your proffer, if believed, would show that the reason would have been bad.

J. Matthew Martin:

Well, the… at the trial court, the trial judge did not even think he had the authority to get to the point of making a proffer where he could hear any evidence.

He says: Well, I believe I’m going to–

William H. Rehnquist:

What page are you on?

J. Matthew Martin:

–On page 9 of the joint appendix, the court says, and I quote: Well, I believe I’m going to let you make some law with that case.

Because I believe… I do not believe so.

And I hold that I do not have that authority.

You may appeal that belief that I feel that I am imposing this sentence contrary to law, because I don’t believe that I can depart upon your motion for substantial assistance for a mandatory minimum.

He did not believe that he had any authority, whatsoever, to entertain any kind of motion with regard to this.

And, indeed, the Fourth Circuit affirmed him.

John Paul Stevens:

Well, Mr. Martin, it is true that the judge did allow you to state for the record, in the event you desired to appeal, what the evidence would be.

J. Matthew Martin:

I do not disagree with that, Your Honor.

But I was not allowed… he would… you can see on the–

John Paul Stevens:

You knew you were going to lose.

That much is perfectly clear.

But you were given the opportunity to say why you thought you ought to win.

J. Matthew Martin:

–Well, it was a very strange sentencing proceeding.

The parties in the case before us, Your Honor, had raised a very similar type of request.

And the judge was very short.

I felt like the judge was going to sentence my man to the mandatory minimum, but I didn’t want to risk his ire.

The… I guess the point–

Antonin Scalia:

But you did risk his ire.

I mean, you… you… you went on and stated for the record the evidence.

And it’s on the bottom of page 10.

And not a single iota of that evidence has anything to do with a constitutional violation.

J. Matthew Martin:

–Well, I did–

John Paul Stevens:

You just said this defendant provided a lot of assistance from the Government, they should have given him a break.

J. Matthew Martin:

–Well, that is true.

However, there is… there is additional evidence that is, frankly, just not a part of the record that is before the Court.

David H. Souter:

Well, did you try to proffer that?

J. Matthew Martin:

I did not, Your Honor.

Because–

David H. Souter:

Well, that’s the end of the… I mean that’s as far as we can go, isn’t it?

Yeah.

J. Matthew Martin:

–Well, there… there’s a… you… there’s a point in here, where, on page 10… or I suppose on page 9 and 10… where I’m going through this with the court.

And I asked the court, would it be appropriate for me to put on evidence?

I had anticipated being able to put the special agent on, so that he could discuss the contact that the agent had with the defendant and the inducements that were made to Mr. Wade by the agents of the prosecutor, that is, the Drug Enforcement Administration Agency.

That I was not allowed to do.

Anthony M. Kennedy:

Well, are you saying that implicit in your proffer is an attempt to show that the Government was acting in bad faith?

J. Matthew Martin:

Well, perhaps not in my proffer, itself, Justice Kennedy, but in… at the beginning of my discussion with the judge, I say it is again a question of that, as opposed to the prosecutorial function.

I was trying to bring this up with him.

But he just simply refused to… he actually ruled very quickly and said–

William H. Rehnquist:

Well, surely there are much more direct ways of bringing it up with him than the language you just quoted.

I would say that was oblique, at best.

J. Matthew Martin:

–I don’t necessarily disagree with that characterization, Mr. Chief Justice.

But… I suppose the only way I can say that is that this is a court that I’m extremely familiar with; that I practice in every month; prosecutors and I are, you know, very close.

And so in my mind, at the time, it was a touchy subject.

I wanted… and we still do… want to have a chance to make the showing that the Government now says we can make.

William H. Rehnquist:

Well, I think you better argue on the record before us.

J. Matthew Martin:

Well, I’m not trying to… I’m actually not trying to get off of it.

What Mr. Wade would like is an opportunity to make the showing that the Government now says he has to make.

Please remember that–

David H. Souter:

Yeah, but that… is that why we took this case?

I mean didn’t we take the case to determine whether you were entitled to something on the record that you’ve got?

J. Matthew Martin:

–Well, the–

David H. Souter:

I mean, I think you want to make a different case for us.

J. Matthew Martin:

–Justice Souter, the Fourth Circuit held that the district court has no authority to entertain–

David H. Souter:

All right, and we’re now at the point where it is conceded that there is some authority.

And the question before us is whether your proffer entitles you to some kind of relief, either given the authority that has been conceded, or given a broader authority if we should hold that.

David H. Souter:

And isn’t the sort of immediate question before us, if you concede that the proper standard is that the Court can look behind the refusal to move, if the refusal amounts to a constitutional violation, then isn’t the question before us whether you have… have proffered a basis to look behind it?

If all you say is, we cooperated and they haven’t moved to reduce, isn’t that the exact question in front of us?

J. Matthew Martin:

–I don’t believe so.

I believe the question before the Court is did the district court have any authority… if the parties now agree that the district court did have the authority, I think the question then is, isn’t it appropriate to send the case back to the district court and say, district court judge–

David H. Souter:

Well, if you had not been allowed to make a proffer of your evidence, you know, I… I would probably agree with you.

But you were made… you were allowed to do it.

And so far as I know, the only thing that you proffered, in effect, was that your client had agree… your client had cooperated, there had been no plea agreement detailing what his consequences would be, and the Government has simply refused to move for a downward… move for a reduction.

In point of fact, I don’t think you have suggested to us that you really have anything more to proffer.

A minute ago you said you weren’t claiming bad faith.

So isn’t it the case… given the fact that you were allowed to make your proffer… isn’t it the case that the only issue we can decide is whether a cooperation and a refusal are sufficient to get you to an evidentiary hearing?

J. Matthew Martin:

–I don’t believe so.

Because what… what is before the Court is the decision of the court of appeals, which really doesn’t address this issue.

It just says no authority whatsoever.

I may have misspoke.

I do believe we do have an allegation of bad faith.

I agree with you that it is not in my proffer.

And I admit that that’s a problem.

David H. Souter:

Well, does… is… I don’t think we should go outside of the record, but let’s be improper for a moment.

Are you claiming… are you claiming that, in fact, there was an agreement that was broken and that’s what the bad faith consists of?

That you did have a plea agreement?

J. Matthew Martin:

No, sir, not an agreement between… no, Your Honor, not an agreement between the prosecutor and myself, but agreements made between agents of the prosecutor and the uncounseled defendant on the night he was arrested.

That is what I believe.

That by affidavit, I could show evidence of it.

David H. Souter:

Well, why didn’t you claim that when you were in front of the court?

J. Matthew Martin:

Well, I had hoped to be able to call a special agent–

David H. Souter:

No, but I mean you wanted to call witnesses.

We understand that.

The court wouldn’t let you do it.

Why didn’t you say, Your Honor, we had an agreement.

And they’re breaking it.

David H. Souter:

Why didn’t you say that?

J. Matthew Martin:

–Your Honor, the only thing I can do to explain that to you is to tell you that I felt very pressured by the judge to move on; he was giving me clear signals that he… what sentence he was going to impose, that he was going to impose the minimum; we had already been… I don’t really want to go too far out of the record… but we had–

David H. Souter:

Right, and we shouldn’t.

I think I understand your position.

Let me just ask a final question.

If we decide the case on the record before us, isn’t the only issue before us whether cooperation, combined with no Government motion to reduce, gets you to an evidentiary hearing?

J. Matthew Martin:

–I do not–

David H. Souter:

Isn’t that the only issue we could decide on this record?

J. Matthew Martin:

–I do not believe so.

I believe that the issue before the Court is whether if… if authority exists, whether the case should be remanded for the defendant to make… to have an opportunity to make a threshold showing.

I’m not suggesting that the case, on remand, could proceed directly to some discovery-laden adversarial proceeding.

William H. Rehnquist:

Well, let me rephrase, if I may… and perhaps Justice Souter won’t regard it as a rephrasing.

Isn’t the question whether the proffer you made is… would have been sufficient if evidence to back it up were produced to obtain relief?

J. Matthew Martin:

I suppose that it could be looked at that way.

But I think the flip side of the coin is, is that at the time, this judge was aware of precedent in the Fourth Circuit which was against me, frankly.

The… with that in mind, I believe that really the question is, should the case be remanded?

William H. Rehnquist:

Well, you’ve answered… you’ve said remand, remand, remand.

We have asked you specific questions, and all you… you don’t come up, it seems to me, with any justification.

All you say is that there should be a remand.

J. Matthew Martin:

Well–

William H. Rehnquist:

You know, we’re not enlarging the record here.

We’re not interested in what went through your mind that isn’t on the record.

J. Matthew Martin:

–Your Honor, the authority of the judge was foremost in his mind.

It’s clear from the long colloquies that we had.

Assuming that he has authority… I suggest to you that that’s appropriate… I admit to you that, and I concede that there are problems with the proffer that I made on Mr. Wade’s behalf at the time.

However, and I stress to you again, this occurred after the judge had already ruled; after he had already basically cut me off.

William H. Rehnquist:

I think we’ve probably spent enough time on this particular aspect, but why don’t you go on to the rest of your argument, Mr.–

J. Matthew Martin:

Another question that remains is whether the scope of review in these circumstances would include the concepts of bad faith or arbitrariness, those motivations on the part of the prosecutor.

The Government does not agree with us with regard to that.

I suggest to the Court that that is an appropriate scope of review as well, in these cases.

David H. Souter:

–Do you take the position that arbitrariness is claimed, if you simply allege that there has been cooperation and a refusal on the part of the Government to move for a downward reduction?

J. Matthew Martin:

No, Your Honor, we do not.

David H. Souter:

Okay, what more do you have?

J. Matthew Martin:

I think what you need is a motivation on the part of the prosecutor that is not related to a governmental interest.

David H. Souter:

Okay.

Well, let’s be practical for a minute.

Are you claiming that you can raise the issue simply by a naked allegation that the Government was… was, in fact, or the prosecutor was, in fact, motivated by… by some objective unrelated to a proper governmental function?

J. Matthew Martin:

No, Your Honor, I believe that cross threshold showing that the Government agrees now must be made, that there must be evidence which satisfies the court that these conditions exist, by way of a supposed proffer, or by way of affidavits.

I’m not suggesting that a defendant can walk into the courtroom and call the prosecutor to the witness stand, and then begin essentially cross-examining him.

Antonin Scalia:

You say these conditions exist.

I’m not sure what you mean by these conditions.

I mean, arbitrariness is… is… is… a word we use to describe any basis for reversing an agency.

If the agency hasn’t acted reasonably… is that what you mean?

If the prosecutor’s refusal to grant a reduction or to ask for a reduction is unreasonable, is that enough?

J. Matthew Martin:

If the unreasonableness rises to the level of… of denying the defendant his… his fundamental rights at sentencing, the rights–

Antonin Scalia:

Well, but that’s not very helpful.

I mean–

J. Matthew Martin:

–Well, I–

Antonin Scalia:

–If we say it does, it does.

It’s just unreasonable.

This guy’s been a lot of help, and the prosecutor… he’s not denying it because of the defendant’s race; he’s not denying it because the defendant’s sister jilted him… he just unreasonably denies it.

It’s terribly unreasonable.

The fellow was a lot of help.

J. Matthew Martin:

–And I believe that that’s basically correct.

I mean, it’s almost–

Antonin Scalia:

What do you mean it’s correct?

That’s a basis for overturning it.

You want to be able to come in and say it’s just terribly unreasonable.

J. Matthew Martin:

–Well, it would be unreasonableness coupled with… with not just… not just, you treated this defendant this way, and you treated this defendant the other way.

I don’t… I don’t… I just don’t believe a defendant can make it on that.

J. Matthew Martin:

What I think we’re talking about is a very narrow, small number of cases.

Antonin Scalia:

How do you describe them?

What do you want… really unreasonable, underscore really?

I mean I can tell… you know, if you say it has to be a constitutional violation, it has to be done because of his race, for example.

I mean that narrows the class to something I can, you know, sink my teeth into.

But just to come up and say arbitrary… anything’s arbitrary.

J. Matthew Martin:

Well, or bad faith.

Byron R. White:

What’s that?

What is bad faith?

What would you say?

J. Matthew Martin:

Well, that’s–

Byron R. White:

I mean is… they’re so wrong, they’re obviously in bad faith?

J. Matthew Martin:

–I… I think that’s… it’s almost like a sort of a sniff test, Your Honor, that the district–

Byron R. White:

You know it when you see it?

[Laughter]

J. Matthew Martin:

–I believe so.

The district judges in this country can… are… are more than adequately equipped to tell when someone has got enough to cross the Rubicon, so to speak.

Byron R. White:

Well, what if we… what if we said that, well, the court of appeals is obviously wrong if it said that the Government’s… the Government’s decision is never reviewable; and we said it’s reviewable if there’s a… if there’s a con… if the Government violated a constitutional… it looks like the Government violated a constitutional right.

But we went no farther, and said but not for any other reason.

You don’t claim that there’s any constitutional violation in this case.

You made no claim of it, and you don’t claim now, I take it, that there was… that the prosecutor was violating the Constitution in refusing this motion?

J. Matthew Martin:

What we–

Byron R. White:

Do you or not?

J. Matthew Martin:

–Based upon the record before you, I have not.

Anthony M. Kennedy:

Well–

J. Matthew Martin:

And I admit that.

What we… what we would like is the opportunity to go to the district court and make the showing the the Government now says, is now agreeing, that a defendant can make.

Anthony M. Kennedy:

–Well, I take it from your brief you’d go even further.

Suppose there’s a good faith disagreement as to whether there’s been substantial cooperation.

You think there has been; the Government thinks there has not been.

Anthony M. Kennedy:

Is it your position that you’re entitled to a hearing on that dispute?

J. Matthew Martin:

No, Your Honor, I don’t believe so.

Because I believe that even to get to the point of questioning the Government’s motives, a defendant must establish, as I believe we did in this case, must establish that the assistance that the defendant rendered was substantial.

Anthony M. Kennedy:

Well, suppose the Government is just plain wrong.

There’s been substantial cooperation but the Government just is wrong because it characterizes it as insubstantial.

So long as the Government’s in good faith, in your view there’s still… there’s no hearing?

I thought your position was that you’re always entitled to show that the Government has just made a determination that’s factually incorrect.

J. Matthew Martin:

Well–

Anthony M. Kennedy:

Is that your position or isn’t it?

I don’t want to talk you into something you don’t want to argue.

J. Matthew Martin:

–It’s… it’s–

Anthony M. Kennedy:

That’s the way I read your brief.

J. Matthew Martin:

–That is really not our position.

Our position is is that the first thing the defendant must do is have performed substantial assistance that is agreed upon as substantial.

The court of appeals found that Mr. Wade’s assistance in this case was of val… I think the quote is of valuable assistance to the Government.

I don’t believe that the Government has ever disagreed that what Mr. Wade, the defense… the petitioner did–

Anthony M. Kennedy:

Well, isn’t it your position that that’s all you need?

J. Matthew Martin:

–Well, no, I think there needs to be one more step beyond that.

I do not suggest to the Court that any defendant who has told on anyone, can walk in and say, Your Honor, my… I haven’t been given credit for what I did.

I don’t make that suggestion to the Court today.

Anthony M. Kennedy:

Well, I’m not sure why not.

J. Matthew Martin:

Well, questions… questions revolving around the nature and quality of the assistance of the Government, I believe we’ve agreed with the Government that those questions are uniquely… are unique questions that the Government, in its own wisdom, can decide on.

What we’re talking about is when the Government’s decision regarding a defendant’s assistance goes beyond the sphere of… of deciding what was appropriate that that particular defendant did.

In–

Anthony M. Kennedy:

So you disagree with the brief of the National Association of Criminal Defense Lawyers?

J. Matthew Martin:

–The amicus in our case takes a broader perspective on this issue than we do.

Anthony M. Kennedy:

And so you disagree with it to that extent.

J. Matthew Martin:

To that extent, that is correct.

We do.

But I think it’s instructive to note that a defendant can, in a sentencing, in the sentencing context, when there is a guideline range, can put on evidence of his own with regard to what assistance was made, so that the determination can be made where to… where to sentence within the guideline range.

J. Matthew Martin:

Important in this case, of course, there was a mandatory minimum.

But there was, I think, a 30-day guideline range.

But nonetheless, no evidence was allowed to be put on.

I think because the district court just was… had the assumption that this… there was no review of the Government’s decision.

And–

Antonin Scalia:

Why should there be any review of this at all, I mean for anything… bad faith, arbitrariness, outrageous unreasonableness, or even unconstitutionality?

I mean if your client wants to make a deal he can make a deal.

And you can get relief for the Government’s going back on its promise.

But for the Government’s… when the Government hasn’t promised, why should you have any relief at all?

J. Matthew Martin:

–Well, Your Honor, the… I think the simple answer to that question is when Congress created this provision, it gave this discretion to the Government.

The Government cannot exercise that discretion in an improper way.

I think that’s the reason that there can be review.

Antonin Scalia:

Well, I don’t know… what about if the Government, you know, it has discretion to choose not to prosecute.

Suppose it chooses not to prosecute somebody for some unconstitutional reason.

Can somebody come in here and get that corrected?

J. Matthew Martin:

At the… at the… at… I’m not sure I know the answer to that.

Because that occurs at the earliest stages of the invocation of judicial power.

Sentencing occurs at the very end.

I think that’s the difference.

I think they’re analogous, but I, you know, I believe that that is the difference in the case.

There’s a… there are circumstances when, unfortunately, improper things occur.

There’s a case from the Ninth Circuit, from February the 5th, wherein the judge noticed that the prosecutor, the Redondo Lemos case, where the prosecutor was favoring female defendants over male defendants in making… on motions for substantial assistance.

So I think that’s… that, alone, is reason enough for there to be reviewability in the case.

The Fourth Circuit felt otherwise.

And we urge the Court to reverse the Fourth Circuit.

William H. Rehnquist:

Thank you, Mr. Martin.

Mr. Long, we’ll hear from you.

Robert A. Long, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

Before I begin my argument, let me respond to the suggestion that there may have been some sort of promises made by DEA agents in this case.

That is completely outside the record.

Robert A. Long, Jr.:

I am prepared to say other things that would go outside the record.

I think perhaps I should not, unless you invite me.

But I would simply note… first of all, under this Court’s decision in Maybury against Johnson, I think that whether or not there was a deal made that was not then adhered to, the guilty plea which the petitioner entered in this case would have been the locus of any constitutional violation.

So even assuming what has been suggested here this morning is true, and it… it is not true, to my knowledge… it would not be a constitutional violation, and so it would not entitle petitioner to the kind of relief he’s seeking here.

Byron R. White:

Well, do you defend the court of appeals decision on its face?

Robert A. Long, Jr.:

Well, we think the court of appeals decision did not go far enough.

It spoke in categorical terms.

And we think they have to be qualified.

But we think that’s not surprising–

Byron R. White:

So that the court was just wrong in saying under no circumstances, without a motion, does the court have power to go downward?

Robert A. Long, Jr.:

–Well, to the extent that the court didn’t qualify its statement, it was… it incompletely–

Byron R. White:

Well, it did say under… they just said across the board, without the motion of the statute, isn’t satisfied.

Robert A. Long, Jr.:

–Yes.

Byron R. White:

And that’s the end of the story.

Robert A. Long, Jr.:

Well, it was… this case did not–

Byron R. White:

Isn’t that right?

Isn’t that what they said?

Robert A. Long, Jr.:

–That’s what they said.

Byron R. White:

And you don’t agree with that?

Robert A. Long, Jr.:

We don’t agree with that as an unqualified statement.

But we think it’s not surprising that the Fourth Circuit made that–

Byron R. White:

And how… when is the… when is the Government’s decision not to file a motion reviewable?

Robert A. Long, Jr.:

–Well, we think it’s subject to a very limited form of judicial challenge, if the defendant can make a substantial threshold showing that the prosecutor is exercising discretion in an unconstitutional manner.

And there was no suggestion–

Byron R. White:

Is that the… is that the only… is that the limit of the reviewability?

Robert A. Long, Jr.:

–Yes, we think that is the limit.

Byron R. White:

Bad faith is… I don’t know what bad faith, particularly is.

But you wouldn’t say bad… an allegation of bad faith would entitle you to a hearing?

Robert A. Long, Jr.:

Well, I think that’s the problem.

Bad faith and arbitrariness are vague terms that can take on different meanings.

Robert A. Long, Jr.:

In–

Antonin Scalia:

Like equal protection.

Robert A. Long, Jr.:

–Well–

[Laughter]

In the petitioner’s reply brief, we understood them to adopt a very limited definition of bad faith and arbitrariness, that we think is really just another way of stating the type of judicial review that we think is–

Anthony M. Kennedy:

Mr. Long, suppose the prosecutor knows that there has been substantial assistance.

Must the prosecutor make the motion so far as the prosecutor’s duties under the law are concerned, quite without regard to whether or not this is enforceable in court?

Robert A. Long, Jr.:

–No, our view of this section is that the prosecutor does not have any obligation to make this motion in any particular case, even if the defendant has provided a tremendous amount of assistance.

That the language simply says upon motion of the Government.

It does not state any standards for the Government to follow.

Sandra Day O’Connor:

Well, if that’s true, do you concede that defendants have a protected liberty interest sufficient to trigger the due process clause in having one of these motions made?

Robert A. Long, Jr.:

No, we do not concede that, Justice O’Connor.

We do not believe that either the statute, 3553(e), or the guideline, 5K1.1, creates any protective liberty interest because it does not confine the discretion of the prosecutor in any meaningful way.

Anthony M. Kennedy:

Is this… is the discretion the same as the discretion to prosecute or not to prosecute?

Robert A. Long, Jr.:

We think it is very closely analogous to the discretion whether to bring a charge and the selection of charges to bring.

And, in fact, in a very small amount of legislative history that there is to go along with 3553(e) recognizes that express connection.

It says that this is a way of doing in the open what the prosecutor would otherwise do by manipulating the charging decision, in effect.

Sandra Day O’Connor:

Well, now, what is the situation if the Government promises the defendant to file a motion under this section–

Robert A. Long, Jr.:

Well–

Sandra Day O’Connor:

–and induces the defendant’s cooperation, and then reneges on filing any motion?

Robert A. Long, Jr.:

–Well–

Sandra Day O’Connor:

Is there any relief possible, and what?

Robert A. Long, Jr.:

–We think it is a different situation if the Government makes a plea bargain.

The Government can be held to its bargain or–

Sandra Day O’Connor:

No, the Government promises that if you will cooperate with us, I’ll make a motion at sentencing, for reduction.

And the defendant does, and then no motion is made.

Robert A. Long, Jr.:

–If the Government makes that promise, the Government can be held to it by the court.

Anthony M. Kennedy:

Because it’s a plea bargain?

Robert A. Long, Jr.:

Yes.

John Paul Stevens:

But what if it’s not in a plea bargain?

John Paul Stevens:

What if the… what if the arrangement is made, and there’s… assume ample evidence, and the prosecutor, after having it, thinks well, I made a mistake.

I shouldn’t have made that deal.

But the defendant delivers.

He says I can get Mr. X caught for you.

And we get him put in jail, and all the rest.

So total delivery.

But the Government… then, he says, and he comes up for plea bargain, the Government changes its mind.

What about that case?

Robert A. Long, Jr.:

Well, as we read your… the Court’s decision in Maybury against Johnson, as long as the defendant then goes ahead and pleads guilty, and it’s a properly counseled guilty plea, there’s no constitutional violation in that case.

That may be unethical behavior by the prosecutor, and it may be redressable in some other way.

But it would not be a constitutional violation.

John Paul Stevens:

Well, would it be redressable by some kind of an action for specific enforcement to compel the Government to make the motion pursuant to its promise, for which there was a consideration?

Robert A. Long, Jr.:

We would say not.

But I think that’s a question of plea bargains.

And this case doesn’t involve a plea bargain.

Under… we would say certainly that would not be allowed under 5K1.1, itself, or–

David H. Souter:

Would the answer… would the answer depend on whether or not the Government made it plain before the guilty plea that it was not going to honor the agreement?

Robert A. Long, Jr.:

–Oh, yes.

I think if the guilty plea–

David H. Souter:

So if the Government says… the Government says we’re not going to honor it, no problem at all.

If the Government… Government doesn’t say we’re not going to honor it, still no problem?

Robert A. Long, Jr.:

–If the… if the… if the guilty plea is induced by a misrepresentation of the Government, then under Santabello and other cases, then the guilty plea is invalid.

David H. Souter:

Well, is it induced when it’s not made part of the formal plea agreement at the time the plea is entered, but nonetheless had been the subject of an informal agreement when the Government never indicates that it’s going to renege on that agreement?

Is that inducing it?

Robert A. Long, Jr.:

Well, I think it could be.

But again, that’s a question that… we think that’s a question of plea bargaining rather than a question particular to 5K1.1.

David H. Souter:

So you’re just saying in effect that that the plea bargain is not limited to a formal plea bargain immediately preceding the entry of the plea?

Robert A. Long, Jr.:

Well, I think… in a particular case, that would… that likely would be the Government’s position.

We’d try to get the plea bargain written down–

David H. Souter:

But not necessarily.

Robert A. Long, Jr.:

–and it says specifically that anything that’s not written in this agreement is not part of the agreement, and you’re not relying on any other promises.

David H. Souter:

Okay, that makes it clear.

Robert A. Long, Jr.:

What about apart from plea bargain situation, what… what do you envision as constituting these constitutional violation exceptions?

Well–

Antonin Scalia:

Suppose in the instance that counsel posed, that you do have a prosecutor who seems to be more lenient towards women defendants than towards men.

Is that a denial of equal protection of the laws to the–

Robert A. Long, Jr.:

–Well, we think–

Antonin Scalia:

–to the male defendants?

Robert A. Long, Jr.:

–We think that it could be.

In this case it’s prosecutorial discretion decisions, like the way he exercises discretion.

If it was deliberately intended to disfavor a suspect classification like race, or a semisuspect classification like sex, we think that could give rise to a constitutional violation.

But… I’m familiar with the particular case you mentioned, Redondo Lemos.

And it’s… simply showing that there’s some sort of discrepancy in the sentences that men and women receive, I think, would not go nearly far enough to show any sort of a constitutional violation.

Because it may well be that the women defendants are not similarly-situated… that is, they may have a more minor role in crimes as a group, or they may be more willing to provide assistance to the prosecutor.

Those, of course, are perfectly legitimate considerations.

William H. Rehnquist:

Mr. Long, a couple of times you’ve mentioned the case of Maybury against Johnson, which I don’t find cited in your brief.

Could you give us a citation to that?

Robert A. Long, Jr.:

Yes, Your Honor, that’s at 467 U.S. 504.

Anthony M. Kennedy:

What is the theory that permits the court to inquire if there’s a constitutional violation, that the processes of the court cannot be used to reach an unconstitutional result?

Robert A. Long, Jr.:

I think that’s it.

We derived this from this Court’s prior decisions on prosecutorial discretion cases, which have never found a violation, but have always suggested that the court could inquire.

We think it is part of the inherent supervisory power of the court, in the course of sentencing, or in the course of proceeding on charges.

Anthony M. Kennedy:

Well, if you can inquire under the supervisory powers to prevent a constitutional violation, why not to prevent a statutory violation?

Robert A. Long, Jr.:

Well, because it’s established under the Bank of Nova Scotia and other decisions that the court cannot exercise its supervisory power to negate statutes.

And we think it’s clear… indeed, we think the petitioner concedes… that Congress intended, in 3553(e), and the Sentencing Commission intended in 5K1.1, to commit to the prosecutor’s discretion this decision whether to file a motion.

If the court were to simply begin second-guessing it under an arbitrary and capricious–

Anthony M. Kennedy:

Well, let’s assume for the moment that there’s a violation of the prosecutor’s discretion, and therefore the statute.

Robert A. Long, Jr.:

–So there’s been an unconstitutional exercise.

Anthony M. Kennedy:

No, not unconstitutional, just an abuse of discretion… unless you’re saying all abuses of discretion are unconstitutional.

Robert A. Long, Jr.:

Well, no, our view of this is that it commits the decision to the prosecutor’s discretion in the sense that–

Anthony M. Kennedy:

But I’m assuming that this discretion has been abused.

Robert A. Long, Jr.:

–Well, our view of it is the only type of abuse that’s created here is the… is the decision for unconstitutional reason.

We believe the prosecutor could refuse to file this motion for any reason, or for no reason… as long as it’s not an unconstitutional reason.

That’s our position.

Antonin Scalia:

Well, I must say that’s… we have a lot of statutes that commit things to the discretion of agents of the executive branch.

And I don’t… I don’t know that that is ever taken to mean absolute discretion.

It means reasonable discretion.

And if you act arbitrarily or capriciously, you’re acting unlawfully.

Robert A. Long, Jr.:

Well, again, Justice Scalia, we don’t think this is the typical case of agency action, where there’s a strong presumption of judicial review.

If there were that presumption we’d take the language of the statute that says upon motion of the Government and refute it.

But in addition, we’re–

Antonin Scalia:

Oh, I don’t deny that.

I… I’m… like Justice Kennedy, I’m just bemused at why we have somehow have authority to move in for constitutional violations, but not for statutory violations.

Against the law is against the law.

Robert A. Long, Jr.:

–Well, I think the distinction, and we draw it from this Court’s decision in cases such as Webster against Doe, is that if the Congress means to preclude review of constitutional questions, unless they say so extremely clearly… there’s a kind of a plain statement requirement… and, of course, we also draw it from cases closer to this situation in prosecutorial discretion cases, such as Wayte, Bordenkircher, and Boiler against Bowles, where this Court has always assumed that that kind of violation would be subject to a judicial review.

And we think that it is a… a proper exercise of the court’s supervisory authority, if confined to this very narrow situation.

Anthony M. Kennedy:

Can a United States attorney, in your view properly, say that in this district we’re not going to give any credit for cooperation, ever?

We’re just not going to enforce that part of the statute.

Robert A. Long, Jr.:

Yes, we think that would be proper if, for example, the U.S. Attorney decided that they were getting good cooperation from defendants in that district, and there was no particular reason to allow defendants to have less than the minimum sentence that Congress has established… or the sentencing commission has established.

We think that would be perfectly appropriate.

Anthony M. Kennedy:

And you think that this is consistent with the intent of the Congress, as expressed in the words of the statute?

Robert A. Long, Jr.:

Yes, we do.

In fact, we think it is required by the language that the Congress used, and they emphasized it in 3553(e), in the heading.

It says a limited authority may impose the statute below… a sentence, rather, below the statutory minimum.

That is authority limited to the situation in which… in which the prosecutor files a motion.

And we think, even in addition to the language and the legislative history, which draws the express connection to other matters committed to prosecutorial discretion, such as the charging decision, we think the nature of this substantial assistance decision really is quite analogous to the charging decision.

The judicial review of this would require courts to get into matters that are really not well-suited to judicial review.

Anthony M. Kennedy:

Suppose the United States attorney in the District said that you have to give credit for cooperation.

But an assistant United States attorney took the other position.

He says this is just not necessary, and it’s a… our sentences are too low.

Anthony M. Kennedy:

And he refused to follow the orders of the United States attorney.

Could the… would the defendant be entitled to a hearing in that instance?

Would there be an abuse of discretion there?

Robert A. Long, Jr.:

Well, first of all, let me say that we have internal guidelines–

Anthony M. Kennedy:

Well, just play with the hypothetical, if you could.

Robert A. Long, Jr.:

–Well, we would think that that would not be unconstitutional.

The defendant has no right to any particular process within the U.S. Attorney’s office.

Anthony M. Kennedy:

And there’s no abuse of discretion in that instance?

Robert A. Long, Jr.:

Well, again, there might be abuse of discretion in a sort of ordinary, administrative law sense.

But we… in this area of prosecutorial discretion, we don’t think that that’s something that the courts can or should review.

I wanted to add that there is an internal procedure now in effect, that these motions can only be filed with the approval of the U.S. Attorney, First Assistant U.S. Attorney, or one of the supervisors in the Criminal Division of the U.S. Attorney’s Office.

So that your question really is a hypothetical one and it should not happen in practice.

It was mentioned that this sort of question, if reviewed by courts, would require them to get into factors that really are not suitable for judicial review.

They’d have to balance the deterrent value of going ahead and sentencing a convicted defendant to at least the minimum sentence proscribed by law, against the potential benefit of encouraging other defendants to cooperate with the Government… which we think is the whole purpose of these substantial assistance provisions.

And that sort of judgment will often turn on the Government’s enforcement priorities, and enforcement plan, as in the charging decision that this Court discussed in Wayte.

Review would also impose some very significant, systemic costs.

It would certainly delay proceedings; the deliberations of the U.S. Attorneys would be opened to outside inquiry.

And we think that the prosecutorial effectiveness might be undermined if the Government’s enforcement policies were revealed.

If defendants knew exactly how much cooperation they had to supply in order to come within some standards, they would probably do the minimum, and not give all the cooperation that they could.

We think it’s clear that defendants would seek extensive discovery… not just about their own case, but about other cases… because they’d want to make comparisons; they would want the prosecutor to explain, probably take the stand… if they could get him to do it… and explain the basis for the decision.

And really, that’s precisely what the petitioner is asking for in this case.

At page 11 of his petition, he said that he wanted an inquiry on the record as to the… as to the decision-making process in the Middle District of North Carolina, in general; as well as the decision-making process in this case, in particular.

John Paul Stevens:

Of course we could… we wouldn’t necessarily allow all that discovery, if we disagreed with your position.

Robert A. Long, Jr.:

Well, that’s right.

And no doubt we would–

John Paul Stevens:

You could require him to just tell his own story, and see what–

Robert A. Long, Jr.:

–That’s right.

I’m sure we would oppose that discovery if we got to that point.

But that would be the direction in which we would be headed.

Finally, I’d like to point out if I could what we think is a basic difference between the substantial assistance provision and certain adjustments to the base offense level that the sentencing guidelines recognize.

Robert A. Long, Jr.:

There are adjustments for obstruction of justice, for acceptance of responsibility; there’s a victim-related adjustment; adjustment for role in the offense.

Now, those adjustments are required in certain circumstances, by the language of the guidelines.

And we think that’s so because they are things that the defendant really has control over.

The defendant controls whether he obstructs justice, or whether he took a minor role in the offense or not.

And we think they also go to the defendant’s level of culpability.

We think substantial assistance is really different in a basic way.

The defendant may be very willing to help, and wants to do all he can for the Government, truly sorry for his offenses.

But if he hasn’t got valuable information, he’s not going to get this substantial assistance motion.

He’s not entitled to it.

In fact, the sentencing commission amended 5K1.1 in 1989 to make it clear that a good-faith effort is not good enough.

You have to produce results.

And you may, through no fault of your own, just be unable to produce results.

So we think the substantial assistance motion is not something that’s a right to any particular defendant.

It doesn’t necessarily reflect their culpability.

Rather, it is a tool that’s available to the prosecutor, like the charging decision, to conduct his business, and in the public interest, and to encourage cooperation, while still attempting to prosecute the guilty.

Anthony M. Kennedy:

–Can you tell me, suppose the defendant thinks he can produce a very important result.

Is it practicable for him to insist on a plea agreement at this early stage of investigations, or are plea agreements usually so close to the time of a plea that the cooperation would have either taken place or not, by that point?

Robert A. Long, Jr.:

I don’t want to tell you something I’m not sure of.

I’m not positive.

My strong feeling is that plea agreements can be made at different stages in the prosecution… not just at the end, but at the beginning.

So I think it would be practicable for a defendant to make that kind of agreement.

But I’m not positive.

Let me say just a word about the arbitrary and capricious standard of review.

We’ve addressed that already.

As long as petitioner confines himself to the narrow definition that he adopted in his reply brief, we think that’s really just another way of stating the kind of review that we think is available, we don’t object to it.

And I think I heard–

William H. Rehnquist:

Which is a constitutional violation, is that right?

Robert A. Long, Jr.:

–Yes.

I think I heard him this morning revert back to what he seemed to be suggesting… not in any detail in his opening brief… which is that a decision couldn’t violate substantive due process, if it was just very wrong, a big mistake.

And we think that’s not correct.

Robert A. Long, Jr.:

This Court has recognized that defendants are not entitled to individualized sentencing outside the capital sentencing context.

Petitioner was convicted in accordance with laws.

So we think he’s eligible for any punishment that’s authorized by the statute, as long as it’s not cruel and unusual, or based on the kind of arbitrary distinction that would violate the equal protection component of the Fifth Amendment Due Process Clause.

And finally, let me just say a word about the remand question.

There may not be much left to say about that.

But let me just read from page 10 of the joint appendix.

This was the sentencing hearing.

In fact, let me just back up for a minute, and point it out.

On page 8, petitioner was really making a very different argument to the district court.

If you look on page 8, at about the middle of the page, it says, my argument is that at section 5K2.0 of the guidelines… a different provision of the guidelines, which is the general provisions of departure… the court is allowed to take into consideration items and information and evidence, which, if it considers them not to have been treated, or if it considers them not to have been adequately taken into consideration.

And my argument to you is that the evidence in the pre-sentence report would indicate that there is a level of cooperation… and although the Government, in its wisdom, chose not to grant substantial assistance… they may not have been adequately taken into consideration by the sentencing commission, that this type of evidence might allow for a downward departure.

That’s really a very different argument.

He helped so much in this case that the sentencing commission really couldn’t have taken into account this level of assistance.

And therefore, this goes beyond 5K1.1 and takes him into the realm of this other guideline.

And the court, quite reasonably, responded well, maybe that’s true or maybe it’s not.

But here we have a 15-year mandatory minimum sentence.

You’re not suggesting that I could go below a sentence established directly by Congress, are you?

And the petitioner responded, well, I believe that you could.

I do not… I’m now on page 9 of the joint appendix… I do not have a case to cite to you on that.

And that’s the point where the court said well, I believe I’m going to let you make some law.

Because I do not believe so.

I do not believe I have that authority… addressing this other argument that petitioner made.

And then, of course, the… on page 10 of the joint appendix, the part that we’ve already been over, the court did say, you may state for the record, in the event you desire to appeal, what the evidence would be, inviting petitioner to make a proffer.

And then he did.

He went on for several paragraphs proffering his evidence.

He went exclusively to the help he’d given, the cooperation he’d given.

And the court said, all right, sir.

And petitioner’s lawyer said, that would be our proffer.

So we think that petitioner has had a perfectly adequate full opportunity to present whatever his evidence would be.

And so a remand in this case is certainly not warranted.

Robert A. Long, Jr.:

If there are no further questions, I thank the Court.

William H. Rehnquist:

Thank you, Mr. Long.

Mr. Martin, you have 3 minutes remaining.

J. Matthew Martin:

Thank you, Mr. Chief Justice.

To respond to a question that Justice Kennedy asked Mr. Long, with regard to what happens in the situations where assistance is provided right up front, which is clear from the record what happened in this situation, I think that it’s… that it’s appropriate to note that those… that that type of cooperation, and whatever is said to bring that about, is known by the prosecutor at the time later his decision-making process goes into effect.

Quite often… I would say, in fact, virtually every time… that type of situation occurs, the defendant is uncounseled, and is there on his own at that point.

I believe that this Sentencing Reform Act–

John Paul Stevens:

I’m a little puzzled by it… how do you know that he’s uncounseled at that time?

J. Matthew Martin:

–I… I… I believe that it’s clear from the record and from the court of appeals brief that immediately upon his arrest, he made this cooperation.

And additionally, in the record that the Court has, it notes when I was appointed to represent him, which was sometime after that.

I guess you can infer that there were no other attorneys.

But in the record you will see where I was appointed, on October 30.

I was certainly not appointed to represent the petitioner when he was arrested.

What we ask the Court to do is to reverse the Fourth Circuit and hold that there are circumstances that… wherein the district court may inquire into the Government’s reasons for denying the substantial assistance motion, and remand this case to the district court for further proceedings in that context, to allow the defendant the opportunity to make a threshold showing.

Thank you.

William H. Rehnquist:

Thank you, Mr. Martin.

The case is submitted.