The opinion of the court was delivered by: Sidney H. Stein, United States District Judge.
Defendant Elizabeth Truesdale brings this motion for a hearing to determine whether the Government acted in bad faith and in contravention of an alleged oral cooperation agreement with Truesdale by failing to file a motion on her behalf pursuant to U.S.S.G. § 5K1.1 requesting a downward departure from the Sentencing Guidelines based on her substantial assistance to the Government in the investigation and prosecution of another person. Because no written cooperation agreement existed and because Truesdale is not entitled to a hearing solely on the basis of an alleged oral agreement, her motion for a hearing is denied.
Elizabeth Truesdale was arrested in early 2000 and was indicted shortly thereafter for conspiring to distribute and possess with intent to distribute Dilaudid, a controlled substance, in violation of 21 U.S.C. § 846. On June 23, 2000, Truesdale and her attorney met with representatives of the Government in the U.S. Attorney's Office for the Southern District of New York where Truesdale provided the Government with information and responded to questions in regard to criminal wrongdoing by herself and others. (Gov't Letter, Mar. 10, 2003 at 3.) Thereafter, Truesdale and her counsel met with the Government in similar sessions, known as "proffer" sessions, on at least three other occasions. (Id.) In these interviews, Truesdale described her own conduct and the conduct of others in connection with the charged Dilaudid conspiracy and other matters. (Id.)
On November 20, 2000, Truesdale pled guilty to the sole count in the indictment without the benefit of a written plea agreement. Before the plea allocution took place, the Government provided Truesdale with a letter pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), setting forth the Government's position with respect to the application of the United States Sentencing Guidelines to defendant's case.
Both parties agree that Truesdale never entered into a written cooperation agreement or plea agreement with the Government. However, defendant maintains that in the proffer sessions and through conversations with her counsel, an oral cooperation agreement was entered into, obligating the Government to move for a downward departure from the Sentencing Guidelines pursuant to U.S.S.G. § 5K1.1.
The Government asserts that no such oral agreement existed at any time. It points to the written agreements that Truesdale and her counsel signed prior to each proffer session, providing that: the proffer agreement "is not a cooperation agreement"; the Government "does not agree" to make any motion on the defendant's behalf or enter into any agreement with her, and "makes no representation" concerning the likelihood of such an agreement; and the defendant agrees that no "understandings, promises, agreements, and/or conditions" will be entered into "unless in writing and signed by all parties." (Gov't Letter, Apr. 12, 2003 at 8-9.)
Because no written cooperation agreement was ever executed by the parties, Truesdale is not entitled to a hearing to determine whether the Government acted in "bad faith" in not granting her a § 5K1.1 letter.
The United States Court of Appeals for the Second Circuit has determined that where a written plea agreement provides that the Government intends to file a § 5K1.1 motion for a downward departure due to a defendant's cooperation and substantial assistance in prosecuting another person, the Court may review the Government's ultimate decision not to file such a motion "to determine whether [the Govermnent] has acted in "good faith."' United States v. Leonard, 50 F.3d 1152, 1157 (2d Cir. 1995) (citing United States v. Knights, 968 F.2d 1483, 1486-87 (2d Cir. 1992); United States v. Rexach, 896 F.2d 710, 713-14 (2d Cir. 1990), cert. denied, 498 U.S. 969 (1990)). See also United States v. Kaye, 65 F.3d 240, 243 (2d Cir. 1995) rev'd on other grounds, 140 F.3d 86 (1998) ("Those defendants who have signed agreements in which the government promised to make a 5K1.1 motion in exchange for substantial assistance are entitled to a `more searching' review [than those who have not cooperated pursuant to a plea agreement] of a claim that the government should have, but did not, make such a motion.") (quoting Leonard, 50 F.3d at 1157). Thus, where a defendant has entered into a written cooperation agreement with the Government, a court may "look to see `if the government has lived up to its end of the bargain," United States v. Brechner, 99 F.3d 96, 99 (2d Cir. 1996) (quotation omitted) and "whether the government acted fairly and in good faith," id. (citing United States v. Resto, 74 F.3d 22, 26 (2d Cir. 1996).
However, in a situation such as Truesdale's, where no written plea or cooperation agreement existed, the Government's failure to make a § 5K1.1 motion can be challenged only if defendant makes a "substantial threshold showing" of an "unconstitutional motive" — such as the race or religion of the defendant — or a lack of a rational relationship to a legitimate government objective. Wade v. United States, 504 U.S. 181, 185-86 (1992); see also Leonard, 50 F.2d at 1157 ("In the absence of a plea agreement, a court may review a prosecutor's decision whether to file a 5K1.1 motion only to determine whether it was based on an unconstitutional motive."); United States v. Jacobs, 914 F. Supp. 41, 43 (E.D.N.Y. 1995).
Here, Truesdale has made no "substantial threshold showing" — indeed, she does not even purport to have made any showing whatsoever — of an unconstitutional motive, nor can this Court say that the government's failure to move pursuant to U.S.S.G. § 5K1.1 was not rationally related to a legitimate government purpose.
Truesdale relies heavily on United States v. Leonard, 50 F.3d 1152 (2d Cir. 1995) in support of her contention that she is entitled to a "bad faith" hearing notwithstanding the absence of a written cooperation agreement. However, her reliance on Leonard is misplaced.
In Leonard, the defendant entered into an oral plea agreement with the Govermnent shortly after his arrest. Pursuant to that agreement, he was to assist the Government in its investigation of his co-conspirators. Leonard, 50 F.3d at 1154-55. However, during the period of cooperation, the prosecutor sent the defendant a draft ...