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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1976 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                         JOSE E. ALEGRIA, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Prez-Gimnez, U.S. District Judge] <br> <br>                                  <br> <br> <br>                              Before <br> <br>                    Selya, Boudin and Lipez, <br>                                 <br>                        Circuit Judges. <br>                                 <br>                                 <br>                                 <br>     Alan M. Dershowitz, with whom Nathan Z. Dershowitz, Amy <br>Adelson, and Dershowitz & Eiger, P.C. were on brief, for appellant. <br>     Jorge E. Vega-Pacheco, Assistant United States Attorney, with <br>whom Guillermo Gil, United States Attorney, and Nelson Prez-Sosa, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br> <br> <br> <br>September 30, 1999 <br> <br> <br> <br>                                 <br>

  SELYA, Circuit Judge.  This appeal requires us, inter <br>alia, to explore the circumstances in which the government may be <br>compelled to move for a downward departure under USSG 5K1.1.  We <br>conclude that the district court did not err either in refusing to <br>force the government to take such action or in any other material <br>respect.  Consequently, we affirm. <br>                                I <br>  A federal grand jury indicted defendant-appellant Jos E. <br>Alegra on sixteen counts of filing false statements with financial <br>institutions, 18 U.S.C.  1014, and bank fraud, 18 U.S.C.  1344.  <br>He entered into a plea agreement with the government (the <br>Agreement), pled guilty to all charges, and met twice with <br>government agents pursuant to a promise to cooperate.  We have no <br>detailed account of these debriefing sessions, but the appellant <br>states in a declaration (filed below in connection with his motion <br>for an evidentiary hearing) that he furnished the government with <br>whatever information he possessed concerning wrongdoing at the <br>financial institutions with which he was associated. <br>  Despite the appellant's cooperation, the prosecutor <br>elected not to file a downward departure motion.  The appellant <br>asserted that the prosecutor's decision contravened the Agreement <br>and, in the bargain, violated due process.  The sentencing court <br>rejected these animadversions, see United States v. Alegra, 3 F. <br>Supp. 2d 151 (D.P.R. 1998), denied the appellant's motion for an <br>evidentiary hearing, and proceeded to impose a 30-month <br>incarcerative sentence.  In this forum, the appellant continues to <br>press his claim that the government wrongly refused to file a <br>downward departure motion and embellishes it with a challenge to <br>the lower court's calculation of his guideline sentencing range. <br>                                II <br>  We start with the appellant's major premise:  that the <br>government obligated itself to file a downward departure motion by <br>virtue of promises it made during the negotiations that led up to <br>the execution of the Agreement and in the Agreement itself.  For <br>argument's sake, we take the facts from the appellant's <br>declaration. <br>  After the indictment was returned and the appellant <br>entered a "not guilty" plea, the parties began discussing the <br>possibility of a plea bargain.  In his declaration, the appellant <br>states that he had misgivings about whether the United States <br>Attorney's office would reward cooperation with a favorable <br>sentencing recommendation (he traces these misgivings to a previous <br>case in which the United States Attorney allegedly made similar <br>overtures to another bank executive, but subsequently reneged), and <br>therefore arranged to meet personally with Guillermo Gil, the <br>United States Attorney for the District of Puerto Rico, prior to <br>settling upon a course of action.  According to the appellant, Gil <br>assured him (in the presence of his then-counsel) that if he would <br>"tell the truth, be available, and cooperate," the government would <br>move for a departure under USSG 5K1.1 (permitting a sentencing <br>court to depart downward on the prosecution's motion, based on a <br>defendant's "substantial assistance").  The appellant asserts that <br>this specific representation persuaded him to sign the Agreement <br>and change his plea.  Hence, he asks that we hold the government to <br>Gil's word. <br>  As a general rule, nothing precludes a prosecutor from <br>bargaining away something over which he has discretion in return <br>for promises extracted from a criminal defendant.  See United <br>States v. Doe, 170 F.3d 223, 226 (1st Cir. 1999); United States v. <br>Hernandez, 17 F.3d 78, 82 (5th Cir. 1994).  Relatedly, a binding <br>prosecutorial representation that is accepted by a defendant and <br>becomes the basis for a change of plea must be performed.  See <br>Santobello v. New York, 404 U.S. 257, 262 (1971) (holding that <br>"when a plea rests in any significant degree on a promise or <br>agreement of the prosecutor, so that it can be said to be part of <br>the inducement or consideration, [the] promise must be fulfilled").  <br>In the appellant's view, these uncontroversial axioms carry the <br>day. <br>  But this conclusion depends entirely on the assumption <br>that what Gil allegedly said has legal force   and that assumption <br>stands on shaky ground because the Agreement, which purports to <br>encompass the sum and substance of the arrangement between the <br>parties, was signed after Gil allegedly made the crucial <br>representation and contains no reference to it.  The essential and <br>logically prior question, then, is whether the representation, even <br>if made, survives execution of the Agreement. <br>                                A <br>  Courts customarily treat plea agreements, for purposes of <br>construction, more or less in the same manner as they do contracts.  <br>See United States v. Atwood, 963 F.2d 476, 479 (1st Cir. 1992); <br>United States v. Anderson, 921 F.2d 335, 337-38 (1st Cir. 1990).  <br>We say "more or less" because this analogy has its limitations.  <br>See United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988) <br>(observing that plea agreements are similar to commercial <br>contracts, but only "in certain respects").  Thus, although <br>contract law supplies a useful reference point for construing plea <br>agreements in federal criminal cases, such agreements are not <br>governed by the law of contracts.  See United States v. Kelly, 18 <br>F.3d 612, 616 (8th Cir. 1994). <br>  If a plea agreement unambiguously resolves an issue, that <br>usually ends the judicial inquiry.  See id.; Anderson, 921 F.2d at <br>338.  If, however, a plea agreement lacks clarity or is manifestly <br>incomplete, the need to disambiguate may justify resort to <br>supplementary evidence or other interpretive aids.  See Anderson, <br>921 F.2d at 338.  We examine the text of the Agreement in light of <br>this dichotomy. <br>  The appellant calls our attention to paragraph 8 of the <br>Agreement, which embodies his pledge to "cooperate fully and <br>truthfully with the United States."  After spelling out the <br>elements of this cooperation   which include the typical assurances <br>that the appellant will remain available for debriefing, appear as <br>a witness, speak truthfully, provide documents, and so forth   the <br>paragraph explains that he is not expected to "make a case" against <br>anyone.  This is a shorthand way of saying that the government's <br>obligations under the Agreement are not conditioned upon the <br>achievement of any particular objective (e.g., the conviction of <br>some other person), but, in the language of the Agreement, "only <br>upon [Alegra] providing full, complete and truthful cooperation."  <br>The appellant maintains that this phraseology imports the United <br>States Attorney's oral representation into the Agreement.  We think <br>that this is a more ambitious reading of the passage than either <br>the text or the surrounding circumstances allow. <br>  USSG 5K1.1 provides the background understanding against <br>which the parties signed the Agreement and through which their <br>arguments must be filtered.  See United States v. Huang, 178 F.3d <br>184, 187-89 (3d Cir. 1999).  The appellant's construction <br>contemplates an equivalency between "full, complete and truthful <br>cooperation," on the one hand, and "substantial assistance," on the <br>other.  But the language and structure of section 5K1.1 belie the <br>idea that "full, complete and truthful cooperation" necessarily <br>constitutes "substantial assistance."  The guideline suggests five <br>non-exclusive factors that a court should consider when deciding <br>whether it will grant a prosecutor's motion for a downward <br>departure predicated on a defendant's substantial assistance.  See <br>USSG 5K1.1(a)(1)-(5).  Full, complete and truthful cooperation <br>corresponds to only one of these five factors.  See id. <br>5K1.1(a)(2).  The others include things well beyond the purview of <br>cooperation per se, such as the significance and utility of the <br>information provided, id. 5K1.1(a)(1), the nature and extent of <br>the defendant's assistance, id. 5K1.1(a)(3), and the timeliness of <br>the proffer, id. 5K1.1(a)(5).  In short, full, complete and <br>truthful cooperation, in and of itself, is not coextensive with the <br>substantial assistance of which the sentencing guidelines speak. <br>  In the case at bar, the Agreement, read as a whole, <br>plainly was meant to be understood in terms of the general approach <br>limned in section 5K1.1.  Although conditioned on the appellant's <br>conformance with paragraph 8, nothing in the text of the Agreement <br>suggests that the parties agreed either to collapsing the <br>substantial assistance determination into the relatively narrow <br>confines of paragraph 8 or to some other special definition of <br>substantial assistance.  This point is made pellucid by paragraph <br>11, which memorializes the appellant's express agreement that "the <br>United States' decision whether to file a motion based on <br>'substantial assistance' as that phrase is used in Rule 35(b) of <br>the Federal Rules of Criminal Procedure and Section 5K1.1 of the <br>Sentencing Guidelines and Policy Statements . . . rests in the sole <br>discretion of the United States," and further provides that <br>disputes about that decision will not be referred to the district <br>court. <br>  The obvious implication of this explicit reference to <br>section 5K1.1 is that the prosecutor will take into account all the <br>factors delineated in that guideline when determining whether to <br>move for a downward departure   and those factors, as we have <br>noted, go well beyond full, complete and truthful cooperation.  In <br>this way, the Agreement makes it quite clear that compliance with <br>the covenants contained in paragraph 8 constitutes a necessary, but <br>not an independently sufficient, precondition to the filing of a <br>section 5K1.1 motion.  Moreover, the reference in paragraph 11 to <br>Fed. R. Crim. P. 35(b) bolsters, rather than weakens, this <br>conclusion:  with regard to the meaning of "substantial <br>assistance," Rule 35(b) and USSG 5K1.1 are birds of a feather.  <br>See United States v. Gangi, 45 F.3d 28, 30 (2d Cir. 1995). <br>  The appellant's exhortation that our decision in Doe, 170 <br>F.3d 223, points in a different direction is easily dispatched.  <br>Although the Doe court spoke of internal "tension" within the <br>contours of a plea agreement, that tension related to a completely <br>different problem:  the plea agreement purported to preserve the <br>government's absolute discretion in regard to section 5K1.1 <br>motions, but at the same time stated that "the defendant's failure <br>to 'make a case' shall not relieve the government of exercising its <br>discretion" under section 5K1.1.  Id. at 226.  The government <br>decided not to file a downward departure motion because Doe's <br>assistance "came too late."  Id.  In that situation, we suggested <br>that the government's performance arguably conflicted with the <br>assurance contained in the plea agreement.  Concerned that the <br>government may have declined to file a section 5K1.1 motion because <br>Doe's help had come "too late" to permit it to "make a case" <br>against a third party, we found some tension between what the <br>government said it would do (i.e., not peg the substantial <br>assistance determination on whether Doe had made a case against <br>someone) and what it actually did.  See id. <br>  There is a critical difference between this case and Doe.  <br>The Agreement sub judice does not tie the government's exercise of <br>its section 5K1.1 discretion to whether the defendant has (or has <br>not) made a case against a third party, and thus does not contain <br>the language that caused the contretemps in Doe.  What is more, Doe <br>does not in any way intimate that the mere inclusion of a <br>cooperation clause in a plea agreement somehow circumscribes ex <br>proprio vigore the government's discretion anent the filing of such <br>motions.  Indeed, Doe never argued (as Alegra does) that <br>cooperation, if rendered, mandates the filing of a section 5K1.1 <br>motion. <br>  We have said enough on this score.  The short of it is <br>that the concepts of "full, complete and truthful cooperation" and <br>"substantial assistance" are neither congruent nor interchangeable, <br>and the plain text of paragraph 11 refutes the appellant's <br>contention that the parties expressly modified this basic <br>understanding.  Consequently, the government's election not to file <br>a section 5K1.1 motion did not violate the stated terms of the <br>Agreement. <br> <br> <br> <br>                                B <br>  The appellant has a fallback position.  He invites us to <br>supplement the Agreement by engrafting onto it the oral <br>representation allegedly made by the United States Attorney during <br>the pre-plea negotiations.  We decline the invitation. <br>  The appellant's position flies in the teeth of paragraph <br>22 of the Agreement, which states flatly that the written document <br>constitutes the complete agreement between the parties and that the <br>"United States has made no promises or representations except as <br>set forth in writing in this plea agreement and deny [sic] the <br>existence of any other terms and conditions not stated herein."  <br>Where, as here, an unambiguous plea agreement contains an <br>unqualified integration clause, it normally should be enforced <br>according to its tenor.  That means, of course, that an inquiring <br>court should construe the written document within its four corners, <br>"unfestooned with covenants the parties did not see fit to <br>mention."  Anderson, 921 F.2d at 338. <br>  In United States v. Burns, 160 F.3d 82, 83 (1st Cir. <br>1998), we decisively rejected a similar attempt by a defendant to <br>read into a written plea agreement an implied constraint on the <br>government.  Burns, in the course of appealing the district court's <br>enhancement of his sentence under a guideline provision, argued <br>that a clause in the plea agreement which restrained the government <br>from recommending such an increase "at sentencing" implied a duty <br>not to oppose Burns's effort to set aside the increase on appeal.  <br>See id. at 83.  We rejected this argument, explaining that the <br>government's promise simply did not go so far.  See id.  Moreover, <br>we admonished that "significant plea-agreement terms should be <br>stated explicitly and unambiguously."  Id.  Alegra, in effect, <br>asks us to ignore the obvious wisdom of the Burns court's <br>admonition and to read into the Agreement a representation that <br>nowhere appears in the text.  We are unwilling to freelance in this <br>fashion.  See id. (warning that the defense, like the prosecution, <br>"must be alert to the need for clear and explicit articulation of <br>all pertinent terms in any plea agreement"). <br>  Two other considerations buttress the government's <br>position that the Agreement should be read as written.  In the <br>first place, soft-pedaling the integration clause and slipping an <br>antecedent oral promise into the text would render other of the <br>Agreement's relevant passages, such as paragraph 11, entirely <br>nugatory.  And this would contravene the rule that plea agreements, <br>like contracts generally, should be construed where possible to <br>give effect to every term and phrase.  See Feinberg v. Insurance <br>Co. of N. Am., 260 F.2d 523, 527 (1st Cir. 1958) ("In construing a <br>contract, we must give reasonable effect to all terms whenever <br>possible."). <br>  In the second place, inserting a new promise into the <br>Agreement would turn the change-of-plea colloquy into a farce.  At <br>that time, the district court placed the appellant (who was <br>assisted by counsel and does not question their effectiveness) <br>under oath and carefully questioned him.  See generally Fed. R. <br>Crim. P. 11(e).  The appellant assured the court that the <br>prosecution had made no promises to him apart from those that were <br>written explicitly into the Agreement.  Although Alegra's <br>appellate counsel tries to slough this off as a legal fiction and <br>admonishes us that all defendants prevaricate during change-of-plea <br>colloquies, courts cannot operate on the assumption that parties <br>feel free to lie with impunity in response to a judge's <br>interrogation.  We believe, therefore, that a defendant who asserts <br>a fact in answer to a judge's question during a change-of-plea <br>proceeding ought to be bound by that answer, absent exceptional <br>circumstances (say, for example, the emergence of newly discovered <br>evidence that places what was reasonably thought to be a fact in a <br>different light).  See, e.g., United States v. Doyle, 981 F.2d 591, <br>594 (1st Cir. 1992); United States v. Butt, 731 F.2d 75, 80 (1st <br>Cir. 1984).  We see no reason either to deviate today from this <br>salutary rule or to give the appellant the benefit of the long-odds <br>exception to it. <br>  The appellant attempts in several ways to denigrate the <br>effect of the integration clause and the other circumstances we <br>have mentioned.  Citing United States v. Rounsavall, 128 F.3d 665, <br>668-69 (8th Cir. 1997), he argues that oral representations <br>routinely are used to augment written plea agreements.  That case <br>(in which the precise wording of the plea agreement is never <br>discussed) simply does not stand for the proposition that prior <br>oral representations may trump unambiguous language in a plea <br>agreement that expressly purports to be integrated.  Moreover, the <br>same court elsewhere has indicated that it will rely on extrinsic <br>evidence only when, after considering a plea agreement as a whole, <br>the parties' intent remains ambiguous.  See Kelly, 18 F.3d at 616. <br>  The appellant also cites United States v. Leonard, 50 <br>F.3d 1152 (2d Cir. 1995), for the same proposition.  The case makes <br>no such holding.  While the plea agreement there apparently <br>contained an integration clause, the only relevant issue before the <br>appellate court concerned a much different question:  the good <br>faith vel non of the government's decision not to move for a <br>downward departure.  See id. at 1157-58.  So, too, for obvious <br>reasons, we find inapposite the appellant's citations to a line of <br>cases in which courts have deemed terms outlined in transmittal <br>letters accompanying plea agreements to be part and parcel of those <br>agreements.  See, e.g., United States v. Garcia, 956 F.2d 41, 44 <br>(4th Cir. 1992); United States v. Melton, 930 F.2d 1096, 1098-99 <br>(5th Cir. 1991). <br>  When all is said and done, the Agreement's integration <br>clause   paragraph 22   withstands the appellant's bombardment.  <br>Accordingly, we hold that it is not reasonable for Alegra to seek <br>the benefit of a prior oral representation by the government after <br>he signed a fully integrated writing that did not contain the <br>claimed representation, and expressly affirmed to the district <br>court in the change-of-plea colloquy that he had not been <br>influenced by extrinsic representations of any kind. <br>                                C <br>  Although the plain language of the Agreement provides no <br>succor and the effort to supplement it fails, the appellant tries <br>an end run.  He posits that, in construing plea agreements, courts <br>should imply a duty of good faith in performance.  Thus, even <br>though a plea agreement states unambiguously   as this one does   <br>that the government retains absolute discretion with respect to the <br>filing of a section 5K1.1 motion, the accused is entitled to expect <br>that the government will honestly evaluate the appropriateness of <br>seeking a downward departure.  In his peroration, the appellant <br>asserts that the government thwarted this expectation and that the <br>district court erred by not holding an evidentiary hearing. <br>  This argument is not new.  United States v. Garcia, 698 <br>F.2d 31 (1st Cir. 1983)   not cited to us by either the appellant <br>or the government   deals effectively with it.  That case arose <br>before the sentencing guidelines (and, hence, section 5K1.1) went <br>into effect.  It involved a written, fully integrated plea <br>agreement in which the government promised, in its discretion, to <br>make a lenient recommendation at sentencing if the defendant's <br>cooperation were complete and truthful.  See id. at 35 n.3.  We <br>concluded that allowing the government to retain absolute <br>discretion in these circumstances would "render a significant <br>element of the consideration for appellant's change of plea <br>illusory."  Id. at 36.  We lent substance to this element by <br>requiring the government "to show a good faith consideration of <br>[the defendant's] cooperation," that is, "to set forth in the <br>record sufficient reasons for its belief that [the defendant] has <br>not cooperated fully and that . . . a recommendation [of probation] <br>is not proper."  Id. at 35 (quoting decision below). <br>  To be sure, given the passage of time, the emergence of <br>the federal sentencing guidelines, and the Court's decision in Wade <br>v. United States, 504 U.S. 181 (1992), Garcia is arguably <br>distinguishable.  But we think that its central concept   that the <br>government must perform in good faith the discretionary obligations <br>that it affirmatively undertakes in a plea agreement   remains good <br>law.  Of course, this does not mean that courts can add material <br>conditions to plea agreements.  See, e.g., Garcia, 698 F.2d at 36 <br>(emphatically eschewing such a course).  Nor does it mean that <br>every challenge to the government's good faith necessitates <br>protracted proceedings.  The government's burden of showing good <br>faith is only a burden of production, not of persuasion.  As long <br>as the government satisfies this modest burden, the trial court <br>need go no further unless the defendant makes a substantial <br>threshold showing that the government acted in bad faith.  See <br>Kelly, 18 F.3d at 618; United States v. Khan, 920 F.2d 1100, 1106 <br>(2d Cir. 1990); cf. United States v. Catalucci, 36 F.3d 151, 154 <br>(1st Cir. 1994). <br>  A myriad of practical, commonsense considerations <br>recommend this approach.  We mention five of them.  First, for a <br>court to inquire into the adequacy of a defendant's performance <br>under a plea agreement and assess the good faith of the <br>prosecutor's evaluation, it likely will need to delve into <br>sensitive matters   a course that ineluctably will have a <br>disruptive effect on the prosecutorial function.  Second, the <br>quantum of knowledge about ongoing investigations that is necessary <br>to make an informed decision often may be very high and the process <br>of acquiring that knowledge may be very time-consuming.  Third, an <br>uncontrolled good faith exception will provide criminal defendants, <br>after the fact, with virtual carte blanche.  Many of them, having <br>little to lose, will depict their performance glowingly, inviting <br>district courts to regard the prosecution's contrary statements as <br>pretextual (thus prompting further inquiry).  We doubt that a <br>proliferation of such collateral litigation would square either <br>with the Supreme Court's decision in Wade, 504 U.S. at 185-87, or <br>with the orderly administration of the criminal justice system.  <br>Fourth, recognizing a duty of good faith on the prosecutor's part <br>creates possibilities for opportunism in a manner that threatens to <br>countermand the goals of the criminal law   and these possibilities <br>multiply as the ground rules for such challenges become more lax.  <br>We made this point emphatically in Doe, when we explained that <br>"[d]efendants, asked for information to incriminate others, have <br>good reasons to fear for their safety and, unless the prosecutor <br>holds the whip hand, the defendant may offer up some information <br>and hold back the more vital balance in the hope that the court <br>will find the government 'unreasonable' and infer 'bad faith.'"  <br>Doe, 170 F.3d at 225.  Thus, diminishing the bite of the whip <br>through overzealous enforcement of the duty of good faith would be <br>counterproductive.  Finally, the path that we have mapped out <br>comports with our oft-stated belief that, in criminal cases, <br>evidentiary hearings should be the exception, not the rule: <br>    We have repeatedly stated that, even in the <br>  criminal context, a defendant is not entitled <br>  as of right to an evidentiary hearing on a <br>  pretrial or posttrial motion.  Thus, a party <br>  seeking an evidentiary hearing must carry a <br>  fairly heavy burden of demonstrating a need <br>  for special treatment. <br>                                                                  <br>United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993) <br>(citations omitted); accord United States v. Isom, 85 F.3d 831, 838 <br>(1st Cir. 1996). <br>  In this case, the pertinent portion of the plea agreement <br>is the government promise to consider whether the appellant had <br>rendered substantial assistance, and, thus, merited a section 5K1.1 <br>motion.  See supra Parts II(A)-(B).  This commitment carried with <br>it an obligation to evaluate the appellant's assistance in good <br>faith (although the "sole discretion" language in which the promise <br>was couched informed the nature of the obligation).  The government <br>proffered facially adequate reasons for its conclusion that the <br>appellant had failed to achieve the substantial assistance <br>benchmark:  the supplied information was "[on] occasions . . . <br>hearsay and on others . . . just too meager," and also included <br>"self-serving rationalizations" (a characterization that the <br>government punctuated with a telling example).  This rejoinder <br>satisfied the government's burden of production.  Taken at face <br>value, the appellant's counter-proffer showed that he attended two <br>debriefing sessions with FBI agents and that he was responsive and <br>truthful.  He described in some detail information that he gave <br>regarding alleged kickbacks received by a certain bank officer, and <br>referred the government agents to a company that had been <br>transferring large sums of money between Puerto Rico and the <br>Dominican Republic under suspicious circumstances. <br>  We do not believe that the district court erred in <br>deeming this proffer insufficient to warrant further proceedings.  <br>Although the appellant professes to be sanguine about the value of <br>the information that he furnished, the record contains no <br>indication that any of it was useful to the government.  By like <br>token, the appellant wholly fails to explain how this information <br>relates to any ongoing criminal investigation.  The lower court <br>therefore lacked any kind of reliable framework within which it <br>could even begin to assess whether this "assistance" helped the <br>government to any degree, let alone whether it proved <br>"substantial." <br>  In a last gasp, the appellant calumnizes the government's <br>failure to respond to information contained in a supplementary <br>letter that he transmitted.  We need not linger over this <br>correspondence.  The appellant again fails to show how that <br>information was any more useful than the material cited in his <br>declaration.  In addition, we explained in Doe that the <br>government's failure to pursue such information, without more, <br>amounts at most to carelessness and does not suffice to make out a <br>case of bad faith.  See Doe, 170 F.3d at 225-26. <br>  To say more on this point would be supererogatory.  We <br>review the district court's decision as to whether to go further, <br>that is, whether to convene an evidentiary hearing on the issue of <br>the government's good faith, for abuse of discretion.  See David v. <br>United States, 134 F.3d 470, 477 (1st Cir. 1998).  Stripped of <br>rhetorical flourishes, the appellant offers a wealth of conclusory <br>assertions, but no persuasive evidence of either substantial <br>assistance or bad faith.  On this gossamer record, we cannot <br>conclude that the sentencing court abused its discretion in ruling <br>that the appellant failed to attain the requisite threshold.  It <br>follows inexorably that the government did not breach the duty of <br>good faith in performance that due process imposes. <br>                                D <br>  The appellant's final departure-related argument is that, <br>if the absence of a government motion places section 5K1.1 beyond <br>his reach, the district court, given his cooperation, nonetheless <br>should have departed downward under the general departure <br>guideline, USSG 5K2.0.  See generally Koon v. United States, 518 <br>U.S. 81, 94-95 (1996) (discussing the circumstances in which <br>departures under 5K2.0 are proper); United States v. Dethlefs, 123 <br>F.3d 39, 44 (1st Cir. 1997) (same).  We need not linger over this <br>importuning.  The three courts of appeals that have addressed the <br>question since Koon agree that section 5K1.1 occupies the field and <br>that departures for substantial assistance, however labeled, are <br>available only under section 5K1.1.  See In re Sealed Case, 181 <br>F.3d 128, 140-42 (D.C. Cir. 1999); United States v. Solis, 169 F.3d <br>224, 227 (5th Cir. 1999), petition for cert. filed, ___ U.S.L.W. <br>___ (U.S. June 3, 1999) (No. 98-9623); United States v. Abuhouran, <br>161 F.3d 206, 213 (3d Cir. 1998), cert. denied, 119 S. Ct. 1479 <br>(1999). <br>  We had left the question open in a pre-Koon case.  See <br>United States v. Romolo, 937 F.2d 20, 25 (1st Cir. 1991).  We now <br>answer it, adopt the reasoning of our sister circuits, and hold <br>that a defendant's assistance to the prosecutor cannot serve as the <br>basis for a section 5K2.0 departure.  By necessary implication, <br>then, the district court did not err in refusing to depart downward <br>based on Alegra's cooperation. <br>                               III <br>  We turn last to the calculations underpinning the <br>appellant's sentence.  For economic crimes like bank fraud, amount <br>of loss is a critical component in formulating the guideline <br>sentencing range.  See, e.g., United States v. Rostoff, 53 F.3d <br>398, 407-08 (1st Cir. 1995); United States v. Tardiff, 969 F.2d <br>1283, 1285 (1st Cir. 1992).  The appellant claims that the district <br>court erred in calculating the pecuniary losses caused by his <br>conduct.  Because this challenge cannot be divorced from the facts, <br>we sketch the contours of the offenses of conviction.  As is the <br>custom in sentencing appeals, we draw our factual insights from the <br>change-of-plea colloquy, the presentence investigation report, and <br>the transcript of the disposition hearing.  See, e.g., United <br>States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).  In this case, <br>moreover, we also have the benefit of our opinion in related <br>litigation.  See Sheils Title Co. v. Commonwealth Land Title Ins. <br>Co., 184 F.3d 10 (1st Cir. 1999). <br>  The appellant served as the president of Bankers Finance <br>Mortgage Corporation (BFMC).  In the ordinary course of its <br>business, BFMC made residential mortgage loans.  Many of these <br>loans were refinancings.  In such a refinancing, BFMC's business <br>plan called for it to pay off the borrower's existing first <br>mortgage and make a new loan secured by a new first mortgage.  It <br>then bundled groups of these loans and peddled the packages to <br>large financial institutions (most prominently, Citibank), in each <br>case representing that the purchaser would receive the functional <br>equivalent of a first mortgage, viz., an assignment of BFMC's first <br>mortgage.  When a loan was sold, BFMC would send the purchaser an <br>assignment and a certificate of title insurance.  Simultaneously, <br>BFMC would notify the borrower to make future payments directly to <br>the purchaser.  The purchaser would then pay the agreed purchase <br>price to BFMC. <br>  The major snag in this scenario was that, in certain <br>instances, BFMC never paid off the original mortgages.  Thus, the <br>purchasers held second rather than first mortgages.  Moreover, the <br>mortgagors went into default on the original mortgages, <br>notwithstanding their payments to the purchasers.  BFMC's chicanery <br>came to light when some of the original lenders initiated <br>foreclosure actions.  The purchasing institutions were in many <br>instances left holding an empty bag. <br>  The indictment focused on BFMC's transactions with <br>Citibank, which lost approximately $3,100,000 as a result of the <br>scheme.  Citibank managed to recoup some two-thirds of this amount <br>from BFMC and the appellant, reducing its net loss to roughly <br>$1,200,000.  This amount was reimbursed by the title insurer.  See <br>Sheils, 184 F.3d at 12-13 (describing scheme and recounting details <br>of title insurer's involvement). <br>  Against this mise-en-scene, the district court concluded <br>that the essence of the criminal conduct more closely resembled <br>theft than simple fraud (in that the appellant took value from <br>Citibank without intending to give anything of value in return).  <br>See United States v. Orton, 73 F.3d 331, 334 (11th Cir. 1996) <br>(explaining difference between theft and simple fraud); United <br>States v. Smith, 951 F.2d 1164, 1167 (10th Cir. 1991) (similar); <br>United States v. Kopp, 951 F.2d 521, 528-29 (3d Cir. 1991) <br>(similar); see also United States v. Flowers, 55 F.3d 218 (6th Cir. <br>1995) (declining to treat check-kiting cases like fraudulent loan <br>application cases); United States v. Frydenlund, 990 F.2d 822, 825- <br>26 (5th Cir. 1993) (similar); cf. United States v. Schneider, 930 <br>F.2d 555, 558 (7th Cir. 1991) (distinguishing between fraud in <br>which the fraudfeasor intends to deprive the victim of the entire <br>value of an object and fraud in which the fraudfeasor returns <br>something of value to the victim).  Having reached this conclusion, <br>the court ignored the title insurer's payments and fixed the amount <br>of loss attributable to the scheme at $1,200,000.  See USSG <br>2F1.1(b).  This, in turn, dictated the guideline sentencing range <br>and influenced the length of the prison sentence that the court <br>imposed. <br>  We review sentencing determinations under a bifurcated <br>standard.  Quintessentially legal questions, including <br>determinations as to the meaning and application of particular <br>guidelines, engender de novo review.  See United States v. St. Cyr, <br>977 F.2d 698, 701 (1st Cir. 1992).  The sentencing court's <br>factfinding, however, is reviewed deferentially and will be <br>disturbed only if it is shown to be clearly erroneous.  See id.  We <br>assume here, favorably to the appellant, that the de novo standard <br>of review obtains. <br>  The appellant's principal objection to the district <br>court's loss calculation is that it failed to take into account the <br>fact that Citibank, because it enjoyed the benefit of title <br>insurance, never ran a risk of losing anything on the mortgage <br>transactions.  In the appellant's view, the title insurance <br>functioned essentially as pledged assets, see USSG 2F1.1, comment. <br>(n.8(b)); the transactions between BFMC and Citibank thus were <br>equivalent to fraudulent loan transactions, see id.; and, <br>therefore, any amounts recovered by Citibank from the title insurer <br>must be offset in computing the amount of loss. <br>  Although the parties debate longiloquently the question <br>of whether the appellant's conduct was tantamount to a series of <br>fraudulent loan transactions, we need not force our way into <br>Procrustean taxonomies to resolve the underlying dispute.  Cf. <br>United States v. Riley, 143 F.3d 1289, 1291-92 (9th Cir. 1998) <br>(endorsing economic reality approach to sentencing).  Even assuming <br>that this scheme is best characterized as involving fraudulent <br>loans, we find no error in the court's decision not to shrink the <br>amount of loss to reflect the receipt of title insurance proceeds.  <br>Insurance, unlike pledged assets, does not diminish the impact of <br>the fraud.  Rather, insurance simply shifts the loss to another <br>victim (the insurance company), so it is irrelevant in calculating <br>the amount of loss for sentencing purposes.  See United States v. <br>Daniels, 148 F.3d 1260, 1262 (11th Cir. 1998) (per curiam). <br>  We need go no further.  There is no question but that <br>the appellant engaged in willful misconduct.  The mere fact that <br>his victim was insured puts him in a worse, not a better, position <br>from the standpoint of the criminal law:  he not only committed <br>fraud, but his knowledge that Citibank had title insurance <br>permitted him to gamble with other people's money.  It would be <br>perverse to hold that criminals need not account for fraudulent <br>losses because they know that, regardless of their machinations, <br>their principal victim will be made whole by an insurance company.  <br>The sentencing guidelines surely do not compel such a conclusion. <br> <br>Affirmed.</pre>

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