13-4468-cr
United States v. John Doe

                                 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 “summary order”). A party citing 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 3rd day of December, two thousand fourteen.

PRESENT:            RALPH K. WINTER,
                    JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                    Appellee,

                            v.                                    No. 13-4468-cr

JOHN DOE,

                    Defendant-Appellant.


FOR DEFENDANT-APPELLANT:                           WILLIAM J. STAMPUR, Hurwitz Stampur &
                                                   Roth, New York, NY.

FOR APPELLEE:                                      DAVID C. JAMES, HILARY L. JAGER, Assistant
                                                   United States Attorneys, for Loretta E. Lynch,
                                                   United States Attorney for the Eastern
                                                   District of New York, Brooklyn, NY.
       Appeal from a November 4, 2013 judgment of conviction of the United States District
Court for the Eastern District of New York (I. Leo Glasser, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the cause is REMANDED to the District Court for further
proceedings consistent with this order.

        Defendant-appellant John Doe appeals the sealed judgment of conviction entered
November 4, 2013 by the District Court. Doe pleaded guilty, pursuant to a cooperation agreement,
to conspiracy to distribute cocaine base and use of a firearm in furtherance of the narcotics
conspiracy, in violation of 18 U.S.C. § 924(c) and 21 U.S.C. §§ 841, 846, both of which triggered
certain mandatory minimum sentencing terms. Doe’s cooperation agreement provided that the
government would file a motion seeking a downward departure from the mandatory minimum on
defendant’s behalf, pursuant to 18 U.S.C. § 3553(e) and the U.S. Sentencing Guidelines Manual
§ 5K1.1 (a “5K motion”), only “[i]f the [U.S. Attorney’s] Office determines that [Doe] has
cooperated fully . . . and otherwise complied with the terms of this agreement.” Whether Doe had
so complied would be established by “a good faith determination by the Office . . . and the Office’s
good faith assessment of the value, truthfulness, completeness and accuracy of the cooperation shall
be binding upon [defendant].” If Doe were determined to have “failed to cooperate fully, ha[ve]
intentionally given false, misleading or incomplete information or testimony, ha[ve] committed or
attempted to commit any further crimes, or ha[ve] otherwise violated any provision of this
agreement,” he would be considered in breach of the agreement, which would release the
government from its obligations to file a 5K motion, but would not release Doe from his plea of
guilty.

        Subsequently, the government came to believe that Doe had failed to disclose his
involvement in another criminal conspiracy, in violation of the terms of his cooperation agreement,
and consequently, the government refused to file a 5K motion. Prior to sentencing, Doe moved for
a hearing to determine whether the government had acted in bad faith in denying him a 5K motion.
Doe’s motion for a hearing was denied. In the absence of a 5K motion permitting a downward
departure, Doe was sentenced principally to 180 months imprisonment, as required by the 15-year
mandatory minimum for the relevant offenses. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues presented for our review.

          On appeal, Doe argues, inter alia, that the District Court erred in denying his motion for a
hearing on whether the government had acted in bad faith in refusing to make a 5K motion. “We
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) (citing United
States v. Reeves, 296 F.3d 113, 115-16 (2d Cir. 2002)). As we have previously noted, “[o]ur case law is
less than clear as to whether we similarly review de novo a district court's denial of a defendant's
motion for an evidentiary hearing on the government's good faith or whether we review such a

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denial for abuse of discretion.” Id. (citations omitted). We need not decide this issue here, however,
because our conclusion remains the same irrespective of which standard is applied.

         In evaluating Doe’s motion for a pre-sentencing hearing, the District Court applied the
proper three-part procedure for judicial review of the government’s refusal to make a 5K motion.
See United States v. John Doe, No. 10 CR 107(ILG), Mem. & Order at 2-3 (E.D.N.Y. July 23, 2013).
First, the defendant must allege bad faith conduct by the government. Id. (citing United States v.
Knights, 968 F.2d 1483, 1487 (2d Cir. 1992)). Then, “the government may rebut this allegation by
explaining its reasons for refusing to depart,” which may not include “pre-agreement circumstances
as reasons for not moving.” Id. (quoting Knights, 968 F.2d at 1487-88)). Finally, “[i]f the government
explains its reasons, the defendant must ‘make a showing of bad faith to trigger some form of
hearing on that issue.’” Id. (quoting United States v. Imtiaz, 81 F.3d 262, 264 (2d Cir. 1996)). If the
government has provided a neutral explanation for its denial, “[u]nless the government’s reasons are
wholly insufficient or unless the defendant’s version of events, supported by at least some evidence,
contradicts the government’s explanation, no hearing is required.” Imtiaz, 81 F.3d at 264.

        The District Court concluded that defendant was not entitled to a hearing because he failed
to make the requisite showing to rebut the government’s neutral explanation. We disagree. The
applicable standard requires that, to trigger a hearing, a defendant need only present “at least some
evidence, [that] contradicts the government’s explanation.” Id. Doe has done so by highlighting
inconsistencies in the version of events offered by government witnesses and, moreover, by
presenting the results of a polygraph Doe voluntarily underwent at his own expense, in which his
denial of involvement in the separate criminal conspiracy was deemed truthful by the polygraph
examiner. To be sure, Doe’s polygraph results may have been unreliable, as the government argues,
and in any event the government was not required to credit the polygraph results, as defendant
himself acknowledges. See Appellee’s Br. at 34-36, Def.-Appellant’s Reply Br. at 5. Nevertheless,
defendant’s proffered evidence carries more weight in light of the government’s admittedly weak
countervailing evidence of Doe’s involvement, which, by the government’s concession, would not
meet a preponderance standard. See App’x at 196.

         Accordingly, we remand in accordance with the procedures set forth in United States v.
Jacobson, 15 F.3d 19, 22 (2d Cir. 1994) for the limited purpose of having the District Court conduct a
hearing on the issue of whether the government acted in bad faith in denying Doe a 5K motion. We
in no way intimate any opinion as to whether the government did, or did not, act in bad faith in
refusing to make a 5K motion.




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                                           CONCLUSION

        For the foregoing reasons, we hereby REMAND the cause to the District Court. Upon the
conclusion of proceedings before the District Court, either party may restore jurisdiction to this
Court by filing with the Clerk a letter (along with a copy of the relevant order or transcript) advising
the Clerk that jurisdiction should be restored. In the interest of judicial economy, the renewed
appeal will be assigned to this panel.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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