United States of America v. Todd A. Miller

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4295
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
T ODD A. M ILLER ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 306—William C. Griesbach, Judge.
____________
A RGUED J UNE 7, 2006—D ECIDED A UGUST 14, 2006
____________
Before B AUER , R IPPLE , and W OOD , Circuit Judges.
B AUER , Circuit Judge. Todd Miller pleaded guilty to
possession of a firearm as a felon and possession of co-
caine with intent to distribute, and was sentenced to 188
months’ imprisonment. He challenges the government’s
decision not to file a substantial assistance motion, and
we affirm.
I. Background
After police officers executed a search warrant that
resulted in the discovery of firearms and cocaine, Miller was
arrested and charged in a three-count indictment. Count
One charged him with possession of a firearm as a felon, in

-- 1 of 5 --

2 No. 05-4295
violation of 18 U.S.C. § 922(g)(1). Count Two charged him
with possession of cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Count
Three charged him with carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(I). By agreement, Miller pleaded guilty to the
first two counts in exchange for the government’s promise
to dismiss Count Three, and promised to “fully and com-
pletely cooperate with the government in its investigation
of this and related matters.” The United States in turn
agreed:
to advise the sentencing judge of the nature and extent
of the defendant’s cooperation. The parties acknowl-
edge, understand and agree that if the defendant
provides substantial assistance to the government in
the investigation or prosecution of others, the govern-
ment, in its discretion, may recommend a downward
departure from the applicable statutory mandatory
minimum and the applicable sentencing guideline
range.
At the sentencing hearing, the government advised the
court that it had decided not to file a substantial assistance
motion pursuant to U.S.S.G. § 5K1.1 because “the officers
believed that the defendant had not been candid with them
as to the source of the cocaine that was found on his per-
son.” After the district court sentenced Miller to 188
months, he appealed.
II. Discussion
Miller challenges the government’s decision not to file
a substantial assistance motion. The Attorney General
and United States Attorneys generally have “ ‘broad dis-
cretion’ to enforce the Nation’s criminal laws,” United States
v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Wayte v.

-- 2 of 5 --

No. 05-4295 3
United States, 470 U.S. 598, 607 (1985)), based on their
statutory role “as the President’s delegates to help him
discharge his constitutional responsibility to ‘take Care that
the Laws be faithfully executed.’ ” Id. (quoting U.S. Const.,
Art. II, § 3). That discretion affords a “presumption of
regularity” to prosecutorial decisions, so that “in the
absence of clear evidence to the contrary, courts presume
that they have properly discharged their official duties.” Id.
(quoting United States v. Chem. Found., Inc., 272 U.S. 1,
14-15 (1926)). The government’s decision will be upheld
unless its refusal to file the motion was based on an
unconstitutional motive, such as race or religion, or “was
not rationally related to any legitimate Government end.”
Wade v. United States, 504 U.S. 181, 186 (1992). As there is
no indication that the government harbored an unconstitu-
tional motive in this case, we review the prosecutorial
decision for a rational basis. United States v. Wilson, 390
F.3d 1003, 1009 (7th Cir. 2004).
Miller likens his situation to that of the defendant in
Wilson, in which this Court held that no rational basis
supported the government’s decision. Id. at 1011. Yet the
government’s purpose in Wilson—preventing the defen-
dant from pursuing an unrelated civil suit—was “so far
afield from the purpose of § 5K1.1 and Rule 35(b) as to be
irrational.” Id. at 1010. Here, on the other hand, the
government declined to file the motion because it be-
lieved that Miller was not forthcoming in reference to his
cocaine source. This is precisely the type of “judgment
call” that the government is entitled to make in connec-
tion with decisions on § 5K1.1 motions. United States v.
Emerson, 349 F.3d 986, 988 (7th Cir. 2003).
According to Miller, however, the government’s reason
was revealed as pretext when one of the officers testified in
state court for purposes of a search warrant that Miller was
both truthful and reliable. Miller apparently provided

-- 3 of 5 --

4 No. 05-4295
meaningful information to law enforcement that resulted in
the filing of marijuana charges against an individual. The
fact that he was forthcoming with his knowledge of the
marijuana offense, however, does not mean that he was
forthcoming with regard to the cocaine source. The govern-
ment, by the terms of the agreement, reserved the discre-
tion to judge whether Miller rendered substantial assis-
tance in that context. It did just that, and found that Miller
was less than cooperative. Under the circumstances, the
government was under no obligation to file a substantial
assistance motion. Miller’s arguments to the contrary are
“of little importance” given “the discretion afforded to the
government and its explanation for its decision.” Emerson,
349 F.3d at 988.
Miller further complains that the government did not
properly “consider” filing the motion, as promised in the
plea agreement. The remedy he apparently seeks is a
district court hearing to examine the internal deliberation
of the U.S. Attorney’s Office. This we will not order; when
the government presents a rational basis for its decision,
our inquiry is at an end. As we have stated before, “one
branch of government cannot compel another to reveal
intra-branch deliberations just to slake its curiosity.”
United States v. Zingsheim, 384 F.3d 867, 872 (7th Cir.
2004).
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of the
district court.

-- 4 of 5 --

No. 05-4295 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-14-06

-- 5 of 5 --