U.S. v. Rexach

• Decision Date: 20 February 1990
• Docket Number: No. 310,D,310
• Citation: 896 F.2d 710
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Domingo REXACH, Defendant-Appellant. ocket 89-1286.
• Court: U.S. Court of Appeals — Second Circuit

Page 710

896 F.2d 710

UNITED STATES of America, Plaintiff-Appellee, v. Domingo REXACH, Defendant-Appellant.

No. 310, Docket 89-1286.

United States Court of Appeals Second Circuit.

Argued Nov. 3, 1989.

Decided Feb. 20, 1990.

Carol L. Sipperly, Asst. U.S. Atty., S.D.N.Y. (Benito Romano, U.S. Atty., S.D.N.Y., Vincent Briccetti, Asst. U.S. Atty., of counsel), for plaintiff-appellee.

Robert E. Precht, New York City (The Legal Aid Society, Federal Defender Services Unit, of counsel), for defendant-appellant.

Before VAN GRAAFEILAND, PIERCE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

On this appeal we consider whether the district court erred in denying defendant's motion for specific performance of his cooperation agreement with the government. The agreement provided that if defendant Domingo Rexach "made a good faith effort to provide substantial assistance" to the government, then the government would move at sentencing for a downward departure. 18 U.S.C. Sec. 3553(e); United States Sentencing Commission, Guidelines Manual Sec. 5K1.1 (1989) [hereinafter Guidelines ]. The government, however, determined that Rexach had not provided substantial assistance and refused to make the motion. District Court Judge Kimba M. Wood held that the government had not breached its agreement and denied Rexach's motion for specific performance. United States v. Rexach, 713 F.Supp. 126, 128 (S.D.N.Y.1989).

We hold that where a cooperation agreement provides that the prosecutor will move for a downward departure under the sentencing guidelines in return for the defendant's good faith effort to provide substantial assistance, evaluation of defendant's effort lies in the discretion of the prosecutor and may be reviewed only on a showing of prosecutorial misconduct or bad faith. The district court's judgment that Rexach is not entitled to specific performance is affirmed.

BACKGROUND

Rexach was indicted on August 8, 1988, for distributing three vials of cocaine within 1000 feet of a public elementary school in the Bronx and for possessing with intent to distribute cocaine. 21 U.S.C. Secs. 812; 841; 845.

On September 1, 1988, Rexach and his counsel met with an assistant United States attorney at a proffer session preliminary to a possible cooperation agreement. No agreement was reached, but at that meeting Rexach identified a purported narcotics dealer and named two locations of sources for cocaine. Later and as a result of this information, three individuals were arrested at the named locations.

For over a month after the agreement, Rexach offered no more information; indeed he did not even contact the prosecutor. Approximately one week before the trial date, Rexach claimed he could offer information about large-quantity narcotics dealers and distributors. Based on these representations, the government entered Under the agreement Rexach was to disclose information, cooperate fully, attend meetings, and testify regarding any matters or persons the government requested. The parties agreed that

into the cooperation agreement with Rexach on October 7, 1988.

if it is determined by this Office that Domingo Rexach has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, this Office will file a motion * * * pursuant to Title 18, United States Code, Section 3553(e) so that the sentencing judge shall have the authority to impose a sentence below a level established by statute as a minimum sentence, and * * * pursuant to Section 5K1.1 of the Sentencing Guidelines.

Rexach, 713 F.Supp. at 127 (emphasis added). The same day, pursuant to the agreement, Rexach pled guilty to distributing cocaine, and the government dropped the possession charge. He was released pending sentencing.

Shortly before the sentencing, the government informed Rexach that it would not move for a downward departure because it did not find he had made a good faith effort to provide substantial assistance. Rexach's information about large quantities of narcotics had been unreliable and worthless, he offered no assistance in investigating the information, no successful investigations proceeded based on that information, he provided no assistance in the prosecution of any other persons involved in large scale narcotic operations, and he failed to stay in contact with the authorities, having dropped out of sight for significant periods of time. In short, according to the government, Rexach had not complied with the agreement and had offered only minimal assistance.

Rexach then moved for an order directing specific performance of the agreement, claiming the government was in breach. Alternatively, he asked for a finding that 18 U.S.C. Sec. 3553(e) and sentencing guideline Sec. 5K1.1 violated due process and the separation of powers doctrine because they conditioned a downward departure motion on a prosecutor's discretionary determination of substantial cooperation.

The district court denied the motion, rejecting both grounds. Judge Wood refused to order specific performance, holding that the cooperation agreement placed the determination of whether Rexach had provided "substantial assistance" with the prosecutor and, since the prosecutor had made a good faith determination that Rexach had not provided substantial assistance, the government was not in breach. Rexach, 713 F.Supp. at 128. Judge Wood also refused to find the downward departure provision of the guidelines unconstitutional, citing United States v. Vizcaino, 870 F.2d 52 (2d Cir.1989) (sentencing guidelines generally do not violate due process) and United States v. Musser, 856 F.2d 1484 (11th Cir.1988) (18 U.S.C. Sec. 3553(e) does not violate due process or separation of powers). Rexach, 713 F.Supp. at 129.

The applicable sentencing range was twelve to sixteen months. Judge Wood sentenced Rexach to fourteen months' imprisonment, followed by a six year period of supervised release and a special assessment of $50.00. We have no way of knowing whether she would have imposed a lesser sentence had the government moved for a downward departure.

Rexach now appeals, complaining only about the government's refusal to move for a downward departure.

DISCUSSION

Two weeks after Judge Wood's decision, this court in United States v. Huerta, 878 F.2d 89 (2d Cir.1989), upheld the relevant provisions of the statute against due process and separation of powers claims, thereby mooting, for this panel, Rexach's constitutional arguments. While Huerta also discussed the Sec. 5K1.1 provision for downward departures from a guideline range, it explicitly upheld only the similarly worded Sec. 3553(e), which permits a judge, but only upon the government's motion, to "impose a sentence below a level established by statute as [a] minimum sentence". If the constitution is not offended by such a limitation on a judge's power to consider a downward departure when applied to a congressionally imposed statutory minimum, then a fortiori, a similar provision limiting judicial power in respect to a mere guideline range is also constitutional.

Thus in Huerta, we upheld as constitutional the express grant of broad discretion to prosecutors in making motions for downward departures under the statute itself, 18 U.S.C. Sec. 3553(e). 878 F.2d at 92. Some language in our opinion might be read as implying that the prosecutor's discretion is completely unlimited and unreviewable. Id. at 94. However, at that time, we were not asked to, nor did we, consider whether prosecutorial discretion might be limited or reviewable when exercised in the context of an agreement for cooperation. Specifically, Huerta did not address either whether cooperation agreements may limit the prosecutor's discretion, or whether or under what standard a prosecutor's refusal to make a downward departure motion pursuant to such an agreement might be reviewable. We take up those issues now.

Rexach argues that the government breached its duty of good faith in refusing to move for a downward departure. He claims that the government's refusal to be satisfied with his performance was objectively unreasonable, and that the district court erred when it employed a subjective good faith standard in reviewing the prosecutor's determination that Rexach did not provide "substantial assistance".

Cooperation agreements, like plea bargains, are interpreted according to principles of contract law. United States v. Carbone, 739 F.2d 45, 46 (2d Cir.1984); see United States v. Alexander, 869 F.2d 91, 95 (2d Cir.1989); see also Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971) (specific performance is an appropriate remedy for breach of plea agreement). Whether the district court applied correct principles is a matter of law that we may review de novo. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

In a contract, where the agreement is conditioned on satisfaction of the obligor, the condition is not met "if the obligor is honestly, even though unreasonably, dissatisfied." Restatement (Second) of Contracts Sec. 228, Comment a. Thus, where the explicit terms of a cooperation agreement leave the acceptance of the defendant's performance to the judgment of the prosecutor, the prosecutor may reject the defendant's performance provided he or she is honestly dissatisfied.

This subjective standard draws some support from the language of the statute, 18 U.S.C. Sec. 3553(e), and of the policy statement, Guidelines Sec. 5K1.1, both of which provide for downward departure motions based on a defendant's providing substantial assistance; but such departures may be made only "[u]pon motion of the Government". 18 U.S.C. Sec. 3553(e); Guidelines Sec. 5K1.1. The decision to make the motion is thus expressly lodged in the prosecutor's discretion. See Huerta, 878 F.2d at 92. The question of "substantial assistance" is ...