Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.united States of America, Appellee, v. Dale Eugene Owens, Appellant, 72 F.3d 134 (8th Cir. 1995)

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U.S. Court of Appeals for the Eighth Circuit - 72 F.3d 134 (8th Cir. 1995) Submitted Sept. 29, 1995. Filed Dec. 7, 1995

Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.


Dale Eugene Owens appeals the sentence imposed on him by the district court1  following a jury verdict finding him guilty of conspiracy to commit bank robbery, bank robbery, and use of a firearm in a crime of violence, in violation of 18 U.S.C. §§ 2, 371, 924(c) (1), and 2113(a) & (d). We affirm.

Following his conviction, Owens expressed a willingness to cooperate with the government in the prosecution of his co-defendants for an unrelated bank robbery, in exchange for a U.S.S.G. Sec. 5K1.1 departure motion. The government then interviewed Owens pursuant to an agreement between the parties to assess what information, if any, Owens had to offer. At sentencing, the government refused to file the motion and Owens alleged bad faith. The district court conducted an evidentiary hearing, at which the government presented evidence showing that Owens's statements had been untruthful and the information unhelpful. The district court found the government's refusal was not in bad faith and overruled the objection.

On appeal, Owens argues the government's refusal to file the section 5K1.1 motion was based on bad faith and an unconstitutional motive. After reviewing the record, we conclude the district court did not err by finding the government was not acting in bad faith when it refused to move for departure. See United States v. Stockdall, 45 F.3d 1257, 1259-61 (8th Cir. 1995); see also United States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994). Even assuming Owens preserved the argument, we conclude he has not shown the government's refusal was unconstitutionally motivated. See Wade v. United States, 112 S. Ct. 1840, 1843-44 (1992). Finally, we grant appellant's motion to supplement the record and deny appellee's motion to strike appellant's reply brief.

The judgment is affirmed.

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The Honorable Robert G. Renner, United States District Judge for the District of Minnesota