or prosecution, this Office will file a motion . . . requesting the Court to sentence Defendant in light of the factors set forth in Section 5K1.1(a)1-5." The Government terminated Armstrong's cooperation agreement on December 14, 1992, because it found that he had lied regarding the source of an improperly held passport.
The Second Circuit has held that "absent a specific agreement, the decision by a prosecutor to refuse to recommend a downward departure is generally not subject to judicial review." United States v. Khan, 920 F.2d 1100, 1104 (2d Cir. 1990), cert. denied, 499 U.S. 969, 113 L. Ed. 2d 669, 111 S. Ct. 1606 (1991); see also United States v. Rexach, 896 F.2d 710, 713 (2d Cir.), cert. denied, 498 U.S. 969, 112 L. Ed. 2d 417, 111 S. Ct. 433 (1990); United States v. Huerta, 878 F.2d 89, 94 (2d Cir. 1989), cert. denied, 493 U.S. 1046, 107 L. Ed. 2d 839, 110 S. Ct. 845 (1990). Even where a plea agreement specifically provides for a departure motion, "the prosecutor's discretion is generally the sole determinant of whether the defendant's conduct warrants making the motion." Khan, 920 F.2d at 1104; see also Guidelines § 5K1.1, Application Note 3 ("Substantial weight should be given to the government's evaluation of the extent of the defendant's assistance . . . .").
A prosecutor's decision not to honor a specific agreement to move for a cooperation departure is reviewable only for misconduct or bad faith. United States v. Agu, 949 F.2d 63, 67 (2d Cir. 1991), cert. denied, 119 L. Ed. 2d 205, 112 S. Ct. 2279 (1992). In challenging such a decision by the prosecutor, the defendant must first allege that he or she believes the government is acting in bad faith. Such an allegation requires the government to explain briefly its reasons for refusing to make a downward motion. Following the government's explanation, the defendant must make a showing of bad faith sufficient to trigger some form of hearing on the issue. Khan, 920 F.2d at 1106.
Armstrong's attorney claims that bad faith is shown by, among other things, telephone conversations with a United States Attorney that took place immediately after the Government discovered Armstrong's prevarication. In these conversations, Armstrong's attorney received the impression that the United States Attorney was incensed at Armstrong and that "he had taken the passport statement personally." (Dec. 7 Letter at 6.)
The fact that the Government found it necessary to terminate Armstrong's cooperation agreement because Armstrong gave false information in the course of his debriefing is sufficient indication that the Government's refusal to move for a downward departure is not the result of bad faith. The cooperation agreement specifically required that "Armstrong must at all times give complete, truthful, and accurate information." The failure of a defendant to give reliable information is sufficient justification for the Government to refuse to move for a downward departure. Khan, 920 F.2d at 1106. Armstrong's prevarication also eliminated his potential usefulness as a witness at the trial of his co-conspirators, since his credibility would have been placed in doubt by having pled guilty to making false statements. There has not been a sufficient showing of bad faith on the part of the Government to warrant a hearing on their refusal to move for a downward departure.
Armstrong also argues that, notwithstanding the Government's refusal to make a Guidelines § 5K1.1 motion for a downward departure, the Court should grant a downward departure from the applicable Guidelines range based on Armstrong's substantial assistance to the government and to the administration of justice pursuant to Guidelines § 5K2.0.
Guidelines § 5K2.0 provides that "the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'" Actions taken by a defendant that facilitate the proper administration of justice in the district courts can be treated as mitigating circumstances not adequately taken into consideration by the Sentencing Commission within the meaning of Guidelines § 5K2.0. United States v. Garcia, 926 F.2d 125 (2d Cir. 1991).
In Garcia, the defendant's cooperation helped the government develop its case and "broke the logjam" in a multi-defendant case. The defendant's early guilty plea and willingness to testify against co-defendants induced others to enter guilty pleas, which conserved judicial resources and facilitated the disposition of the case without a trial. In such cases, the Second Circuit held that the district court could exercise "sensible flexibility" in departing from the sentencing guidelines. Garcia, 926 F.2d at 128.
The present case is not analogous to Garcia. The Government was forced to terminate Armstrong's cooperation agreement on December 14, 1992, because the information supplied by Armstrong was not trustworthy. Although Armstrong claims that his assistance was a factor in moving the principal defendant in this case to plead guilty, this principal defendant did not actually plead guilty until March 10, 1993, nearly three months after the termination of the Armstrong cooperation agreement. The Government believes that this later plea was in no way the result of Armstrong's abortive cooperation agreement. Report at 38. No downward departure for facilitation of justice is warranted in this case.
Finally, Armstrong argues that the Court should consider granting a downward departure in view of the possibility that the principal defendant in this case may be repatriated to the United Kingdom to serve his sentence and would, under the laws in effect in that country, serve a reduced sentence.
Even if Armstrong's predictions with regard to the principal defendant's future come to pass, consideration of disparity between the sentences of individual codefendants is not a proper basis for a downward departure from the Guidelines. See United States v. Minicone, 960 F.2d 1099, 1112 (2d Cir. 1992). "To reduce the sentence by a departure because the judge believes that the applicable range punishes the defendant too severely compared to a co-defendant creates a new and entirely unwarranted disparity between the defendant's sentence and that of all similarly situated defendants throughout the country." United States v. Restrepo, 936 F.2d 661, 671 (2d Cir. 1991) (quoting United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991)). Any disparity between Armstrong's sentence and those of his co-defendants is not a ground for departing downward from the Guidelines.
Consistent with the range provided by the Guidelines, Armstrong shall be sentenced to 42 months of imprisonment to be followed by three years of supervised release, during which he shall abide by the Standard Conditions of Supervision 1 through 13. As further conditions of his supervised release, Armstrong shall: satisfy a fine in the amount of five thousand dollars, at a rate and schedule to be determined by the Probation Department; shall provide full financial disclosure, upon the request of the Probation Department; shall not incur any lines of credit during his period of supervision without the prior approval of the Probation Department; and shall enter into an alcohol aftercare treatment program, if deemed necessary by the Probation Department. An assessment of $ 200.00 is mandatory pursuant to 18 U.S.C. § 3013. This sentence is subject to the sentencing hearing now set for January 12, 1994.
It is so ordered.
New York, N. Y.
January 10, 1994
Robert W. Sweet
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