17‐3795
United States v. Diaz

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@).       A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 31st day of October, two thousand nineteen.

        PRESENT: BARRINGTON D. PARKER,
                         RICHARD J. SULLIVAN,
                                 Circuit Judges,
                         KATHERINE POLK FAILLA,
                                 District Judge.
        ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
        UNITED STATES OF AMERICA,

                        Appellee,

                   v.                                                        No. 17‐3795‐cr

        ROBERTO DIAZ, AKA CUTI

                        Defendant‐Appellant,



  Judge Katherine Polk Failla of the United States District Court for the Southern District
of New York, sitting by designation.
      Tory Barnes, Jonathan Martin, Ravi Bishunath,

                      Defendants.

      ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐

      FOR APPELLANT:                                   STACEY VAN MALDEN (Lawrence
                                                       A. Dubin, New York, NY, on the brief),
                                                       Bronx, NY.

      FOR APPELLEE:                                    MICHAEL MCGINNIS, Assistant
                                                       United States Attorney (Stephanie
                                                       Lake, Daniel B. Tehrani, Assistant
                                                       United States Attorneys on the brief),
                                                       for Geoffrey S. Berman, United States
                                                       Attorney for the Southern District of
                                                       New York, New York, NY.

      Appeal from a judgment of the United States District Court for the Southern

District of New York (William H. Pauley III, Judge).

      UPON        DUE       CONSIDERATION,                  IT     IS      HEREBY   ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Roberto Diaz appeals from a judgment of the district court (Pauley, J.)

convicting him, after a guilty plea pursuant to a cooperation agreement with the

government, of conspiracy to commit arson, in violation of 18 U.S.C. § 371; arson,

in violation of 18 U.S.C. § 844(i); and conspiracy to distribute marijuana, in



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violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The court sentenced him

principally to a term of imprisonment of 60 months on each count, to run

concurrently. Although it is undisputed that Diaz made false statements to the

government while he was cooperating, Diaz argues on appeal that the government

breached the cooperation agreement when it failed to move for a reduction in

sentence pursuant to 18 U.S.C. § 3553(e) and Section 5K1.1 of the United States

Sentencing Guidelines (“5K1.1 motion”). We assume the parties’ familiarity with

the underlying facts and the record of prior proceedings, to which we refer only

as necessary to explain our decision to affirm.

      In general, “[w]e review a district court’s interpretation of a cooperation

agreement de novo and examine its related findings of fact for clear error.”

United States v. Roe, 445 F.3d 202, 206 (2d Cir. 2006). If a new argument is raised

on appeal, however, we review only for plain error.               See United States v.

MacPherson, 590 F.3d 215, 218 (2d Cir. 2009). “To prevail on plain error review,

an appellant must show that (1) there is error, (2) it is plain, (3) it affects a

substantial right, and (4) it seriously affects the fairness of the judicial proceedings,

resulting in a miscarriage of justice.” Id. at 218–19; see also United States v. Marcus,

560 U.S. 258, 262 (2010).



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   1. Good Faith

      Diaz first argues, as he did in the court below, that the government acted in

bad faith in declining to make a 5K1.1 motion.      “Cooperation agreements are

interpreted according to principles of contract law.” United States v. Doe, 741 F.3d

359, 362–63 (2d Cir. 2013). Where a defendant contends that the government has

breached a cooperation agreement by refusing to make a 5K1.1 motion, we assess

whether “the government has lived up to its end of the bargain and whether the

government acted fairly and in good faith.”          Id. (quoting United States v.

Fernandez, 127 F.3d 277, 285–86 (2d Cir. 1997)). Where, as here, “the agreement is

conditioned on [the] satisfaction of the obligor, the condition is not met if the

obligor is honestly, even though unreasonably, dissatisfied.”        Id. (quotation

marks omitted).

      We have previously recognized that “a cooperating defendant’s

truthfulness about his own past conduct is highly relevant to the quality of his

cooperation,” and a defendant’s failure to be truthful provides a good‐faith basis

for the government to decline to make a 5K1.1 motion. United States v. Brechner,

99 F.3d 96, 99 (2d Cir. 1996). Diaz argues that the government acted in bad faith

when it credited the testimony of other cooperators over his. But, in reality, the



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government was not required to weigh competing testimony because Diaz

admitted he had not been truthful. Because there is no evidence in the record to

suggest that the government was not actually dissatisfied with Diaz’s cooperation

or was otherwise motivated by a nefarious purpose, we have no reason to second‐

guess the government’s refusal to file a 5K1.1 motion.

   2. Substantial Performance

      Diaz next argues, for the first time on appeal, that he “substantially

performed” under the cooperation agreement and that the government therefore

acted unreasonably in declining to file a 5K1.1 motion. But as we have previously

held, “substantial performance is ordinarily not applicable to excuse the non‐

occurrence of an express condition precedent.” Doe, 741 F.3d at 364 (quotation

marks omitted). “A court may excuse such a condition to avoid disproportionate

forfeiture only if the condition was not a material part of the exchange.”    Id.

(citing Restatement (Second) of Contracts § 229).

      Neither Diaz nor the government disputes that Diaz assisted the

government during the course of his cooperation. But it cannot be doubted that

Diaz’s dishonesty “diminished [his] reliability and thus inhibited the

government’s ability to use [him] as a witness in future proceedings.”        Id.



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Indeed, Diaz did not testify against his co‐defendant, which limited the

government’s ability to use evidence that Diaz had collected. Diaz’s dishonesty

therefore “was clearly material.” Id. Accordingly, Diaz provides no basis for

compelling the government to enforce the cooperation agreement and make a

belated 5K1.1 motion.

      We have considered Diaz’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                    FOR THE COURT:
                                    Catherine O=Hagan Wolfe, Clerk of Court




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