into the Agreement, and followed the Government's instructions with respect to gathering evidence. The Government alleges, however, that Hoffenberg failed to disclose the existence and, later, the scope, of his involvement in DCC, and that it conducted an independent investigation which supported the allegations that Hoffenberg exercised control of DCC. According to the Government, prior to their taking the deposition of a confidential witness regarding their investigation of DCC, Hoffenberg prepared the witness to lie for the purpose of concealing Hoffenberg's interest in the company.
In January of 1994, the Government met with Hoffenberg to put him on notice of the ways in which the government believed he had violated the Agreement and to enable him or his counsel to respond. The Government informed Hoffenberg that it believed he had violated the Agreement by (i) misrepresenting his actual role and interest in DCC to avoid having to comply with the Consent Order; (ii) suborning perjury to conceal his role at DCC; and (iii) lying about his participation in Stratford. A second meeting between the Government and Hoffenberg was held in February 1994. The Government alleges that Hoffenberg did not adequately explain or refute their allegations that he had violated the Agreement.
On February 17, 1994, the Government advised Hoffenberg that the Agreement had been terminated and that he would be arrested. On April 20, 1994, an indictment was returned against Hoffenberg in the Southern District of New York charging him, in addition to securities and mail fraud and obstruction of justice charges related to the SEC investigation of Towers, with a separate obstruction count relating to alleged circumvention of the Consent Order (the "Indictment").
Argument was heard on the present motion to enforce the Agreement on June 29, 1994, and further submissions were received until July 8, 1994, at which time this motion was considered fully submitted.
The Motion to Compel a 5K Letter is Premature
Despite the Indictment, the Government asserted upon argument that it is willing to allow Hoffenberg to plead to the same charges provided for in the Agreement, but that it will not make a 5K Motion on his behalf. (See also Gov. Mem. at 18.) In other words, a motion to enforce the Agreement with respect to the charges brought could be granted in the absence of opposition. The 5K Motion, therefore, is the sole outstanding issue. In the event of a plea, Hoffenberg can challenge the Government's good faith in refusing to make a 5K Motion and the Government's determination that he violated the Agreement.
In United States v. Leonard, 817 F. Supp. 286 (E.D.N.Y. 1992), the defendant made a pretrial motion to enforce a plea agreement which indicated, among other things, that he would plead guilty to the charge in the indictment, and that the Government would make a 5K Motion on his behalf. Apparently becoming dissatisfied with the defendant's adherence to the plea agreement, the Government indicated that it did not intend to make a 5K Motion, although it intended no alteration of the charges against the defendant.
The court found that, in light of the fact that the plea agreement contained the same charge as in the indictment, the only open question was the government's obligation to make a 5K Motion. The court further found that the defendant could move under the procedures outlined in United States v. Knights, 968 F.2d 1483 (2d Cir. 1992) for a hearing to address the government's alleged bad faith in failing to make a 5K Motion prior to the imposition of sentence, but that until that time a motion to enforce the agreement was premature. Leonard, 817 F. Supp. at 304-05.
In United States v. Denich, 91 Cr. 1053, 1992 U.S. Dist. LEXIS 5960, at *13 (S.D.N.Y. April 29, 1992), the defendant moved, prior to trial, for an order compelling the Government to make a 5K Motion on his behalf, claiming that, although there was no plea agreement in effect, he had afforded the Government substantial assistance. This Court stated that the defendant had "neither pled guilty nor been found guilty. He moves now to compel the government to ask for a reduction in his sentence, but he has not even been tried. [The defendant's] motion is therefore premature and must be denied on that ground alone."
Likewise, in United States v. Ghent, 29 F.3d 416, 1994 WL 324092 (8th Cir. 1994), the defendant, after sentencing, claimed that the Government had breached a plea agreement in which it had promised either to make a 5K Motion or to move for a reduction in the defendant's sentence pursuant to Rule 35, Fed. R. Cr. P.
Since the time for a Rule 35 motion had not yet expired, the court found that the defendant's claim was premature. Ghent, 1994 U.S. App. LEXIS 16897, *5, 1994 WL 324092, at *2.
At this juncture, it is unknown whether Hoffenberg will face sentencing in this Court, and it is also unknown whether circumstances may arise to alter the Government's present position with regard to a 5K Motion on Hoffenberg's behalf. Contrariwise, were the Agreement to be specifically enforced at this time, it is unknown what actions Hoffenberg might take in the future that could again influence the Government to withhold a 5K Motion. To decide this issue at the present time would be tantamount to issuing "an advisory opinion, 'a practice greatly disfavored.'" United States v. Badaracco, 954 F.2d 928, 943 (3d Cir. 1992) (declining to address claim that district court would retaliate against defendant for appeal prior any action being taken by the district court).
For the reasons discussed above, Hoffenberg's motion for specific performance of the Agreement is denied as premature.
It is so ordered.
New York, N. Y.
July 21, 1994
ROBERT W. SWEET