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April 27, 1998

UNITED STATES OF AMERICA, against CHANDRADUTT HARPAUL, also known as "Ronnie," and SEWDUTT HARPAUL, also known as "Mike," Defendants.

The opinion of the court was delivered by: SPATT


 SPATT, District Judge.

 This case is one of first impression in which the Court is requested to review a decision made by the Government not to issue letters pursuant to United States Sentencing Commission Guidelines Manual § 5K1.1 ("5K1.1 letter"). The two prosecutors assigned to this case believe that such letters are well-deserved due to the defendants' assistance in a Government investigation. In addition, the postal inspector assigned to this case has described the defendants' cooperation as "outstanding." However, because no prosecution resulted and the investigation was allegedly not "furthered" in any manner as a result of the defendants' cooperation, the Government has concluded that substantial assistance has not been rendered. The question presented under these novel circumstances is, has the Government acted in good faith in declining to issue the 5K.1.1 letters?

 On August 29, 1997, the defendants, Chandradutt Harpaul, a/k/a "Ronnie," and Sewdutt Harpaul, a/k/a "Mike," were each convicted, upon their pleas of guilty, of: (1) knowingly and willfully attempting to evade income tax for the tax year 1993, in violation of 26 U.S.C. § 7201; (2) mail fraud, in violation of 18 U.S.C. § 1341; and (3) conspiracy to commit these crimes, in violation of 18 U.S.C. § 371. Both pleas were entered pursuant to cooperation agreements with the Government. Presently before the Court are the defendants' motion seeking specific performance by the Government of their cooperation agreements or, in the alternative, the withdrawal of their guilty pleas.


 The defendants are co-owners of a number of Sizzler franchise restaurants. By an indictment returned on April 9, 1997, the defendants were charged with conspiracy, tax fraud, and mail fraud based on allegations that they inaccurately; reported the income earned from one of their restaurants. The defendants were arraigned on April 25, 1997 and entered not guilty pleas. Subsequently, the defendants entered into cooperation agreements with the Government and pled guilty on August 29, 1997.

 Pursuant to the requirements of Rule 11 of the Federal Rules of Criminal Procedure, the Court conducted exhaustive allocutions with the defendants before accepting their pleas of guilty. During the plea allocutions, the Court established that the defendants fully understood the charges against them and the rights that they would be waiving as a result of pleading guilty. The Court also established that the defendants understood the maximum penalties for the charges to which they were pleading and emphasized that, notwithstanding any promises or representations which may have been made to them, the Court alone determines the sentence to be imposed. The Court also questioned the defendants about the cooperation agreements that they had entered into with the Government. The defendants stated that they had reviewed the cooperation agreements with their respective attorneys and that the agreements met with their approval. The Court also explained the meaning of the federal sentencing guidelines and discussed those complex rules. At the time the pleas were entered, the Court was satisfied that the pleas were knowing and voluntary and not the result of any promises beyond those contained in the cooperation agreements.

 The Court notes that although the defendants have attached a copy of an unexecuted proposed plea agreement, the Court assumes that, since neither party has claimed otherwise, the agreements entered into are identical to the attached proposed plea agreement. With respect to cooperation, the proposed plea agreement provides that

if the Office determines that the defendant has cooperated fully, provided substantial assistance to law enforcement authorities and otherwise complied with the terms of this agreement, the Office will file a motion pursuant to Guidelines Manual § 5K1.1 and 18 U.S.C. § 3553(e) with the sentencing Court setting forth the nature and extent of his cooperation . . . . In this connection, it is understood that the Office's determination of whether the defendant has cooperated fully and provided substantial assistance, and the Office's assessment of the value, truthfulness, completeness and accuracy of the cooperation, shall be binding upon him.

 (Notice of Mot., Ex. A. P 5.) In addition, the final paragraph of the agreement provided that "no promises, agreements or conditions have been entered into other than those set forth in this agreement, and none will be entered into unless memorialized in writing and signed by all parties." (Id. P 9.)


 The gravamen of the defendants' complaint is that the Government breached the cooperation agreements after receiving the benefit of the defendants' unreserved assistance. The defendants seek specific performance by the Government of their cooperation agreements, requiring the Government to make motions for downward departure pursuant to Guidelines § 5K1.1, see United States v. Pollack, 91 F.3d 331, 334 (2d Cir. 1996) (plea agreements are construed according to contract law); United States v. Knights, 968 F.2d 1483, 1486 (2d Cir. 1992) ("specific performance may also be available when the government breaches a plea agreement containing a cooperation clause"); United States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 1990) ("cooperation agreements, like plea bargains, may usefully be interpreted with principles borrowed from the law of contract), cert. denied, 499 U.S. 969, 111 S. Ct. 1606, 113 L. Ed. 2d 669 (1991); United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990) ("Cooperation agreements, like plea bargains, are interpreted according to principles of contract law."), or, in the alternative, to permit the defendants to withdraw their guilty pleas pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure.

 In Wade v. United States, 504 U.S. 181, 185-86, 112 S. Ct. 1840, 1843-44, 118 L. Ed. 2d 524 (1992), the Supreme Court held that even absent the existence of a cooperation agreement, defendants are entitled to assurance that the Government's refusal to file a substantial-assistance motion is not based on an unconstitutional motive. Where such an agreement exists, defendants are entitled to a "'more searching review.'" United States v. Brechner, 99 F.3d 96, 99 (2d Cir. 1996) (citing United States v. Kaye, 65 F.3d 240, 243 (2d Cir. 1995)). There is such an agreement here. Accordingly, the defendants are entitled to a more searching review of the Government's decision not to grant them 5K1.1 letters.

 The Government has broad discretion in deciding whether to make a motion pursuant to Guidelines § 5K1.1, which decision "may be subjected to only limited review by a district court." Knights, 968 F.2d at 1487; see also United States v. Resto, 74 F.3d 22, 25 (2d Cir. 1996); Rexach, 896 F.2d at 713. The question of "substantial assistance" is "self-evidently a question that the ...

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