Opinion
Case No. 2:95cr119
December 1, 2003
ORDER
This matter is before the court on defendant Roger Charles Crobarger's Motion to Compel Filing of Rule 35(b) Motion, or in the alternative to order an Evidentiary Hearing. Richard D. McKelvie, Assistant United States Attorney for the District of Utah, represents the United States and Richard A. Van Wagoner of Snow, Christensen and Martineau represents the defendant. The motion has been fully briefed and was argued on November 6, 2003 after which it was taken under advisement.
After due consideration, this court rules that a "substantial threshold showing" has been presented that the government may have impermissibly refused to exercise its discretion to file a substantial assistance motion in this case. Indeed, the government concedes that for purposes of this motion the defendant could meet the threshold that substantial assistance was provided. The parties do not agree, however, as to the facts and circumstances or timing relative to the agreement which caused the defendant to provide the substantial assistance to the government. Accordingly, the court determines that the alternative motion for an evidentiary hearing is warranted, provided that the hearing be limited to the presentation of evidence concerning an alleged enforceable agreement by the government to file a substantial assistance motion of the kind that the government may be compelled to file. Evidence concerning the extent and degree of substantial assistance that was provided will not be necessary and would be premature.
Based upon the evidence presented at the hearing, the court will determine whether the motion to compel should be granted. If the court determines as a matter of law that the United States Attorney for the District of Utah cannot be compelled to file or permit such a motion to be filed, that may be the end of the matter. On the other hand, if the court determines that under the facts and circumstances of this case the United States Attorney for the District of Utah can and should be compelled to file such a motion or to permit such a motion to be filed by the District of Colorado, further proceedings may be necessary. Such further proceedings would be conducted to determine the extent and degree of assistance provided by the defendant, the matters and extent of a separate compelling interest in the District of Utah against filing such a motion and any other evidence which would serve the interests of justice. Accordingly, it it hereby
ORDERED, that defendant's alternative motion for an evidentiary hearing is GRANTED, to be held on December 11, 2003 at 10:00 a.m.
IT IS SO ORDERED.