REMEDY IN THE EVENT OF BREACH
Aluzzo's failure to abide by the terms of the agreement warrants a remedy that deprives him of its primary benefit. The two specific remedies listed were merely supplemental to the agreement, corresponding to the additional benefits offered for the defendant's cooperation. The government's remedy for breach is limited only when it is clear from the agreement that this was the parties' intent. United States v. Pelletier, 898 F.2d 297, 299 (2d Cir. 1990) (Oral cooperation agreement explicitly limited government's remedy to prosection for perjury); United States v. Macchia, 861 F. Supp. 182 (E.D.N.Y. 1994).
Aluzzo's agreement provides that should he commit further crimes he "will also be subject to prosecution for any federal criminal violation of which the office has knowledge ..." (emphasis added). This agreement clearly does not evidence any intent of the government to limit its remedies in the event of a breach. See United States v. Castelbuono, 643 F. Supp. 965 (E.D.N.Y. 1986).
SUBSEQUENT CRIMINAL ACTIVITY
Another purpose of this agreement was to discourage the defendant's future criminal activities. In United States v. Lagatta, 1991 U.S. Dist. LEXIS 10688, 1991 WL 150735 (E.D.N.Y. July 31, 1991) (Nickerson, J.), the government agreed not to prosecute the defendant for conspiracy to distribute marihuana in exchange for his cooperation, including his promise not to commit further crimes. The defendant committed a subsequent crime, at which time the government initiated a prosecution of the marihuana offense. The defendant moved to dismiss the indictment, relying on the cooperation agreement. The Court rejected this argument, concluding that "it would have been a strange agreement for the government to make had it voluntarily abandoned as a deterrent to future crimes the potential of prosecution on the marihuana offense." Id., *1. Likewise, the, government permitted Aluzzo to plead guilty to a misdemeanor charge and hoped to deter his future criminal behavior by reserving the potential to prosecute Mr. Aluzzo for felony tax evasion.
The defendant greatly misstates the power of the government when he claims that "as long as the investigation is not marked as being closed and until they call him in to take the plea, Mr. Aluzzo could, be charged for the rest of his life with any one of a thousand-and-one-acts." Def. Mem. at 6. In fact, the cooperation agreement only subjects Mr. Aluzzo to being charged with the crimes that were the subject of that agreement. The government maintains an interest in the defendant obeying the law and makes such agreements to discourage criminal behavior. "Nothing suggests that his obligation to comply with the law was limited to that narrow period of time during which he actively cooperated with the government." Resto at 26. The defendant contends that "his actual involvement with the government died with his work in the Asaro case," while ignoring the fact that his involvement with the government originated with his own criminal acts and will subside with the defendant's restitution for his crimes.
The government is afforded considerable latitude in determining if a defendant has met the terms of a cooperation agreement, as long as the government acts in good faith and without unconstitutional motives. United States v. Resto, 74 F.3d 22, 25, 26 (2d Cir. 1996). The government cannot, however make this determination unilaterally. This Court must also be convinced beyond a preponderance of the evidence of the defendant's subsequent criminal activities. United States v. Macchia, 861 F. Supp. 182, 190 (E.D.N.Y. 1994). The evidence reviewed by this court meets this burden, and the defendant is not entitled to a hearing on this matter.
The primary benefit offered by the government in this cooperation agreement was a reduction of the charge from felony to misdemeanor tax evasion. The defendant agreed not to commit further crimes. There is substantial evidence that the defendant breached the agreement. He can not, therefore, reasonably expect to derive the primary benefit of the agreement. The motion to dismiss the indictment is DENIED.
Dated: September 30, 1996
Brooklyn, New York
Sterling Johnson, Jr.
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