12-2855-cr
United States v. Doe




                                     In the
                United States Court of Appeals
                          For the Second Circuit
                                    ________
                               AUGUST TERM 2013
                                No. 12-2855-cr

                           UNITED STATES OF AMERICA,
                                    Appellee,

                                        v.

                                   JOHN DOE,
                               Defendant-Appellant.
                                    ________

                   Appeal from the United States District Court
                      for the Eastern District of New York.
                   No. 08-CR-29 ― Sterling Johnson, Jr., Judge.
                                     ________

                          SUBMITTED: DECEMBER 9, 2013
                          DECIDED: DECEMBER 20, 2013
                                   ________
Before: CABRANES, SACK, and WESLEY, Circuit Judges.
                            ________

     Defendant-appellant John Doe appeals from the June 20, 2012
judgment of the United States District Court for the Eastern District
of New York (Sterling Johnson, Jr., Judge). We consider on appeal
whether the District Court erred in denying Doe’s motion to compel
the government to provide him with a recommendation letter under
U.S.S.G. § 5K1.1 or 18 U.S.C. 3553(e) pursuant to a Cooperation
Agreement. We hold that the government properly exercised its
discretion in deciding not to file a § 5K1.1 or § 3553(e) motion based
on its good-faith assessment that Doe had breached his agreement to
remain free of criminal activities. Accordingly, we AFFIRM the
judgment of the District Court.
                               ________

                   Katherine Alfieri, Law Offices of Katherine
                   Alfieri, New York, NY, for Appellant John Doe.

                   Emily Berger, Nathan D. Reilly, Assistant United
                   States Attorneys, for Loretta E. Lynch, United
                   States Attorney, United States Attorney’s Office
                   for the Eastern District of New York, Brooklyn,
                   NY, for Appellee United States of America.
                              ________

JOSÉ A. CABRANES, Circuit Judge:

       Defendant-appellant John Doe (“defendant” or “Doe”)
appeals from the June 20, 2012 judgment of conviction of the United
States District Court for the Eastern District of New York (Sterling
Johnson, Jr., Judge), sentencing him principally to a term of 72
months’ imprisonment for participation in a conspiracy to violate
the federal narcotics laws, in violation of 21 U.S.C. § 846, and for
participating in a money-laundering conspiracy, in violation of 18
U.S.C. § 1956(h). We consider two issues on appeal: (1) whether the
District Court erred in denying Doe’s motion to compel the
government to provide him with a recommendation letter under
U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e) pursuant to a Cooperation
                                   2
Agreement (the “Agreement”); and (2) the reasonableness of his
sentence.

      We hold that the government properly exercised its discretion
in deciding not to file a § 5K1.1 or § 3553(e) motion based on its
good-faith assessment that Doe had breached his agreement to
remain free of criminal activities, and that Doe’s sentence was
reasonable. Accordingly, we AFFIRM the judgment of the District
Court.

                         BACKGROUND

       In late 2007, Doe was arrested for coordinating shipments of
cocaine from Mexico to the United States for a Mexican-based drug
trafficking organization. Upon his arrest, Doe entered into the
Agreement with the government, the relevant portion of which
stated that

      [t]he defendant must at all times give complete,
      truthful, and accurate information and testimony, and
      must not commit, or attempt to commit, any further
      crimes. Should it be judged by the [United States
      Attorney’s] Office that the defendant has failed to
      cooperate fully, has intentionally given false,
      misleading or incomplete information or testimony, has
      committed or attempted to commit any further crimes,
      or has otherwise violated any provision of this
      agreement, the defendant will not be released from his
      plea of guilty but this Office will be released from its
      obligations under this agreement . . . .

App’x 82-83.

                                 3
       Doe cooperated with the government substantially for over
two years, until he was arrested in Utah in April 2010 for assaulting
his wife and daughter and driving while intoxicated. Doe initially
denied these allegations to the United States Attorney’s Office, and
the State of Utah eventually dismissed the charges without
prejudice. The United States Attorney’s Office then conducted its
own investigation into the domestic violence incident, concluding
that Doe had in fact committed the charged offenses
notwithstanding their dismissal. Once confronted with the results of
the Office’s investigation, Doe admitted that he had been intoxicated
and had committed the charged assaults. Thereafter, the
government decided that Doe had breached the Agreement, and
declined to make a motion under U.S.S.G. § 5K1.11 or 18 U.S.C.
§ 3553(e)2 on his behalf—a decision which the District Court
ultimately upheld.

      At sentencing, the District Court imposed a below-guideline
sentence of 72 months’ imprisonment. This appeal followed.

                                                    I

       “Where a defendant contends that the government has
breached a cooperation agreement by refusing to make a § 5K1.1
motion, we will look to see if the government has lived up to its end
of the bargain and whether the government acted fairly and in good
faith.” United States v. Fernandez, 127 F.3d 277, 285-86 (2d Cir. 1997)

          1 The relevant portion of U.S.S.G. § 5K1.1 provides that, “[u]pon motion of the government

stating that the defendant has provided substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may depart from the guidelines.”
          2 The relevant portion of 18 U.S.C. § 3553(e) provides that, “[u]pon motion of the

Government, the court shall have the authority to impose a sentence below a level established by
statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation
or prosecution of another person who has committed an offense.”
                                                   4
(internal quotation marks omitted). Cooperation agreements are
interpreted according to principles of contract law. See United States
v. Gregory, 245 F.3d 160, 165 (2d Cir. 2001). Although we review the
terms of a cooperation agreement de novo, see United States v. Padilla,
186 F.3d 136, 139 (2d Cir. 1999), “[b]ecause the prosecution often is
in the best position to evaluate the quality of a defendant’s
cooperation and to decide whether to make a substantial-assistance
motion, this decision, like other prosecutorial determinations, may
be subjected to only limited review.” United States v. Knights, 968
F.2d 1483, 1487 (2d Cir. 1992). Accordingly, “where the agreement is
conditioned on satisfaction of the obligor, the condition is not met ‘if
the obligor is honestly, even though unreasonably, dissatisfied.’”
United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) (citing
Restatement (Second) of Contracts § 228, cmt. a).

       In the instant case, the unambiguous terms of the Agreement
establish that the government had considerable discretion in
deciding whether to file a motion under § 5K1.1 or § 3553(e), based
in part on its assessment that Doe had remained free of criminal
activities. The government’s determination that Doe had committed
the charged offenses in Utah was based on its own comprehensive
investigation and thus made in good faith.

       Doe asserts that he did not “commit” any crimes within the
meaning of the Agreement because the state charges against him
were dismissed. It is well settled, however, that uncharged conduct
may give rise to a breach of a cooperation agreement, so long as the
evidence provides a good-faith basis for the government to believe
that the defendant committed such crimes. See United States v.
Pollack, 91 F.3d 331, 336 (2d Cir. 1996) (noting that the defendant
“would soon be indicted” for a further crime); United States v. Resto,
74 F.3d 22, 27 (2d Cir. 1996) (holding that defendant’s “flight from
                                   5
the courthouse and failure to appear for sentencing, although never
prosecuted, constituted” a further crime).

      That the charges were ultimately dismissed does not
necessarily call into question the government’s good-faith belief that
Doe breached the Agreement. For instance, in United States v.
Gregory, 245 F.3d 160 (2d Cir. 2001), we rejected the argument that a
defendant had not breached a cooperation agreement because state
charges against him had been dismissed. Id. at 164. We held that

      [t]he fact that the charges ultimately were dismissed—
      after the imposition of a 262 month sentence—is of no
      moment. The Government based its decision on the
      undisputed fact that [defendant] was arrested as well as
      on information provided in the arrest warrant, warrant
      application, and related reports. The charges filed
      against [defendant] provided a good faith basis for the
      Government to determine that he had breached his
      obligation not to commit any further crimes. The
      Government's determination that [defendant] had
      committed a crime and thus breached the cooperation
      agreement was not premised on bad faith,
      invidiousness,      dishonesty,   or    unconstitutional
      considerations. The Government was thus justified in
      voiding [defendant’s] cooperation agreement.

Id. at 164 (citations, internal quotation marks, and alterations
omitted).

      It is of no consequence that the state charges in Gregory were
not dismissed until after the federal sentencing, whereas the state
charges against Doe were dismissed before the government decided

                                   6
not to make a § 5K1.1 or § 3553(e) motion. The crux of the holding in
Gregory was the government’s good faith basis for finding that the
defendant had committed further crimes—namely, the arrest
warrant, warrant application, and related reports. Id. The
government in the instant case relied not only on the arrest report
and statements of family members provided by Utah law
enforcement, but also on its own interviews of the relevant
individuals and, of course, on Doe’s own admission. Accordingly,
the government had a good-faith belief that Doe had breached the
Agreement by committing further crimes in Utah, whether or not
those state charges were dismissed.

       With regard to his initial denial of the assault allegations to
the United States Attorney’s Office, Doe now maintains that he is
innocent of the Utah charges; that his confession was coerced; and
that, in any event, his statements about the Utah incident are
unrelated to the case at hand. After a review of the record, we find
no evidence of coercion. Because we conclude that the government
had a good-faith basis to find that Doe had breached his cooperation
agreement by committing further crimes, we need not decide
whether Doe’s false statements to investigators about this incident
constituted an additional breach of the Agreement.

       We recognize that Doe provided substantial cooperation in
the two years leading up to his arrest in Utah. Under principles of
contract law, however, “substantial performance is ordinarily not
applicable to excuse the non-occurrence of an express condition
precedent.” Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86
N.Y.2d 685, 693 (1995). A court may excuse such a condition to
avoid disproportionate forfeiture only if the condition was not a
material part of the exchange. See Restatement (Second) of Contracts
§ 229. In this case, the breached condition, which diminished Doe’s
                                  7
reliability and thus inhibited the government’s ability to use Doe as
a witness in future proceedings, was clearly material.

        Accordingly, Doe has failed to meet his burden of making a
showing of bad faith that would rebut the government’s explanation
of its reasons for withdrawing the motion.

                                    II

      Doe also challenges the procedural and substantive
reasonableness of his sentence.

      Where, as here, a defendant has not preserved a claim of
procedural unreasonableness, “rigorous plain error analysis is
appropriate.” United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir.
2007). A finding of “plain error” requires that

      (1) there is an error; (2) the error is plain, that is, the
      error is clear or obvious, rather than subject to
      reasonable dispute; (3) the error affected the appellant's
      substantial rights, which in the ordinary case means it
      affected the outcome of the district court proceedings;
      and (4) the error seriously affects the fairness, integrity
      or public reputation of judicial proceedings.

United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal
quotation marks and brackets omitted). Although a District Judge
need not robotically incant the factors prescribed by 18 U.S.C.
§ 3553(a), see United States v. Toohey, 448 F.3d 542, 545 (2d Cir. 2006),
after a review of the record, we find that the District Court’s cursory
discussion of those factors was inadequate. However, in light of the
Court’s conclusory statement that a term of imprisonment of 72
months—a substantial variance below the guideline range of 168 to
                                    8
210 months—was “sufficient but not greater than necessary to meet
the ends of 3553(a),” App’x 142, we cannot say that this error was
“clear” or “obvious” or affected the outcome of the proceedings. See
United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (“[W]e
presume, in the absence of record evidence suggesting otherwise,
that a sentencing judge has faithfully discharged her duty to
consider the statutory factors . . . .”).

      In examining the substantive reasonableness of a sentence, we
review the length of the sentence imposed to determine whether it
“cannot be located within the range of permissible decisions.”
United States v. Watkins, 667 F.3d 254, 261 (2d Cir. 2012). In light of
quantity of cocaine for which Doe was responsible, the District
Court’s imposition of a term of imprisonment of 72 months—again,
a substantial variance below the guideline range—was not
substantively unreasonable.

                           CONCLUSION

      To summarize, we hold that:

   (1) The government properly exercised its discretion in not filing
       a § 5K1.1 or § 3553(e) motion. Although the state charges
       against Doe were dismissed prior to his federal sentencing,
       the government’s own investigation into the misconduct
       furnished a good-faith basis to believe that Doe had breached
       his agreement to remain free of criminal activities.

   (2) Doe’s sentence was neither substantively nor procedurally
       unreasonable.

       For the reasons stated above, we AFFIRM the judgment of the
District Court, entered June 20, 2012.
                                   9
