The Eleventh Circuit Court of Appeals handed down an interesting opinion -- interesting because it brings up a question of ethics regarding plea bargains and sentencing.
James Dorsey was convicted of drug conspiracy and drug distribution. After his arrest, Dorsey cooperated with the police. He called his distributor and gave them the name of an undercover cop. The distributor called the cop to make the sell. When the distributor arrived to deliver the drugs, he was arrested.
Dorsey said that he was promised that he would receive a § 5K1.1 sentence departure for his cooperation if he pled guilty. The sentence departure, however, requires the government to file a motion -- the Judge cannot give it without the motion.
The government has a "power, not a duty, to file a motion when a defendant has substantially assisted." Therefore, a district court cannot grant a downward departure for substantial assistance absent a motion by the government.
The problem came when Dorsey decided to have a jury trial and not plead guilty. The government did not file the motion. Dorsey appealed on the grounds that the government was punishing him for exercising his Constitutional right to a trial by jury.
The Supreme Court, in Wade, 504 U.S., held that federal district courts have the authority to examine a prosecutor's refusal to file the motion and grant a remedy if it finds that the refusal was based on an unconstitutional motive.
The Eleventh Circuit had not previously determined that not filing the motion because the defendant wanted a jury trial was an unconstitutional motive, but the Third and Ninth Circuit Courts had held that it was.
While the government may refuse to file a § 5K1.1 for many reasons, and it is within the government's discretion to do so, 'to punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.'
The Eleventh Circuit agreed and remanded the case back to the District Court and the burden is on Dorsey to establish a "substantial showing" that the government refused to file the motion as punishment for his decision to go to trial.