U.S. v. Davis, 04-1900.

• Decision Date: 11 February 2005
• Docket Number: No. 04-1900.,04-1900.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher Mark DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

397 F.3d 672

UNITED STATES of America, Plaintiff-Appellee, v. Christopher Mark DAVIS, Defendant-Appellant.

No. 04-1900.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2004.

Filed: February 11, 2005.

Robert Tiefenthaler, argued, Sioux City, Iowa, for appellant.

Robert Lee Teig, argued, Assistant U.S. Attorney, Cedar Rapids, Iowa, for appellee.

Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.

PER CURIAM.

From 1998 to October of 2002, Christopher Davis was involved in the distribution of methamphetamine with David Hinders and Jesus "Jay" Gonzalez. In October of 2002, Davis chose to cooperate with law enforcement authorities. Before his indictment for distribution and conspiracy, Davis gave a post-Miranda statement to federal agents in North Dakota that implicated himself, Hinders, and Gonzalez in drug trafficking. The three of them were indicted on December 17, 2002, for conspiracy to distribute methamphetamine.

In January of 2003, Davis was arraigned on the indictment for conspiracy to distribute methamphetamine. After Davis's arraignment, a detention hearing was scheduled. Assistant United States Attorney Jamie Bowers (AUSA Bowers) feared that if Davis were released as a result of the detention hearing, he would return to drug abuse and potentially disappear, thus mitigating his potential value as a witness. Before the beginning of the detention hearing, AUSA Bowers told Davis and his lawyer that if they wished to go forward with the detention hearing, he would view their participation as non-cooperation. As a result of AUSA Bowers's statement, Davis believed that if he went forward with the detention hearing, the government would not file a United States Sentencing Guidelines (U.S.S.G.) § 5K1.1 motion for a downward departure based upon substantial assistance on Davis's behalf. Davis chose not to have a detention hearing.

In March of 2003, Davis proffered information about his activities. Bowers was particularly interested in any information Davis could give about Gonzalez and Hinders. Although Davis and his lawyer were apprehensive about revealing information about Gonzalez and Hinders (because Davis was also involved in their activities), Davis eventually provided information in hope of receiving a downward departure for substantial assistance. On March 26, 2003, Davis signed a plea agreement. Paragraph nine of the plea agreement stated that:

Nothing in this agreement requires the government to accept any cooperation or assistance that the defendant may offer or propose. The decision whether and how to use any information and/or cooperation that the defendant provides (if at all) is in the exclusive discretion of the United States Attorney's Office.

Paragraph fifteen of the plea agreement stated that:

It is understood and agreed that no motion for downward departure shall be made, under any circumstances, unless the defendant's cooperation is deemed "substantial" by the United States Attorney's Office and defendant has fully complied with all provisions of this plea agreement. The United States has made no promise, implied or otherwise, that a departure motion will be made or that defendant will be granted a "departure" for "substantial assistance." Further, no promise has been made that a motion will be made for departure even if defendant complies with the terms of this agreement in all respects, but has not, in the assessment of the United States Attorney's Office, provided "substantial assistance."

Both AUSA Bowers and Davis signed the plea agreement. After its signing, Davis requested a detention hearing so he could be released to Belcourt, North Dakota, in order to cooperate with an officer there. Although AUSA Bowers remained opposed to his release because he feared that Davis would return to drug abuse or disappear, AUSA Bowers told the district judge that Davis's request for a detention hearing would not affect whether or not the U.S. Attorney's Office would offer a motion for substantial assistance.

Davis pled guilty in July of 2003. His sentencing hearing was scheduled for October 17, 2003. Prior to the sentencing date, both parties assumed that Davis's criminal history would not make him eligible for "safety valve" relief under U.S.S.G. § 5C1.2. However, once the final draft of Davis's Presentence Report (PSR) was revealed, Davis and AUSA Bowers discovered that Davis was in fact "safety valve" eligible. His sentence would thus be lower than what was originally expected. In lieu of the lower sentence, AUSA Bowers made a motion for upward departure pursuant to U.S.S.G. § 4A1.3, which was denied at sentencing by the district court.

At the sentencing hearing, AUSA Bowers did not file a motion for a downward departure based upon substantial assistance. Davis filed a motion to compel the government to file a § 5K1.1 motion for substantial assistance. Davis argued that AUSA Bowers would have filed a motion for substantial assistance, but refused to do so because Bowers was opposed to Davis's request for a detention hearing. Davis also believed that AUSA Bowers refused to file a motion for substantial assistance after he discovered that Davis was eligible for "safety valve" relief. Davis argued that AUSA Bowers acted in bad faith by refusing to file a motion for substantial assistance, and claimed that the information he gave federal officers was in fact substantially helpful in getting Gonzalez and Hinders to plead guilty to criminal charges.

On October 28, 2003, AUSA Bowers filed the Government's Resistance to Defendant's Motion to Compel Filing of a § 5K1.1 Motion. The government argued that an evidentiary hearing and discovery on this issue was not justified because Davis did not make a substantial threshold showing that AUSA Bowers's refusal to file a substantial assistance motion was motivated by bad faith. AUSA Bowers stated that Davis's assistance, although minimally helpful and corroborative, did not constitute substantial assistance. AUSA Bowers also argued that the information given by Davis was untimely-by the time Davis proffered his statements, information from other sources was enough to force Gonzalez and Hinders to plead guilty.

Over the government's objection, the district court¹ found that Davis was entitled to limited discovery on the issue of whether the government acted in bad faith by refusing to file a substantial assistance motion. The district court held seven hearings on the issue. The district court ordered the government to produce transcripts of testimony from individuals which led to the indictment of Gonzalez and Hinders, and also ordered the government to provide factual information so it could determine the extent and value of the information the government received from other sources on Hinders and Gonzalez. The court conducted an in camera review of these materials.

In February of 2004, after reviewing the information, the district court denied Davis's motion to compel the government to file a substantial assistance motion. The district court found that the information supplied by the government showed that all of the information used to prosecute Hinders and Gonzalez was in the government's possession prior...