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United States District Court, S.D. New York

October 11, 2005.

ALEX RUDAJ, et al., Defendants.

The opinion of the court was delivered by: DENISE COTE, District Judge


Defendant Ljusa Nuculovic moves to suppress a statement he made to agents of the Federal Bureau of Investigation ("FBI") on the ground that the statement was made in reliance on a promise of confidentiality that has been breached by the Government. A hearing was held on September 15, 2005, on a previous suppression motion arguing that the statement had been made involuntarily (this motion was denied in a ruling from the bench that same day). The following findings of fact are based on evidence presented at that hearing. Background

  In 2004, the FBI was years into an investigation of a criminal organization, of which it considered Nuculovic to be a primary member. An agent with the FBI contacted Nuculovic in April to warn him that he might be in danger from other members of the organization. At that meeting, the agent gave Nuculovic his business card in case Nuculovic wished to contact him in the future.

  Several months later, Nuculovic contacted the agent and asked to meet. Nuculovic knew that he was being surveilled and believed that the FBI had gathered a great deal of information about his criminal organization and that his arrest and the arrest of his confederates was imminent. Three meetings followed over a two-week period in September.

  At the three meetings, Nuculovic presented a proposal to the agents that he become an informant. The agents gave Nuculovic an opportunity to speak, and he made numerous inculpatory statements as part of his effort to convince the agents that he would be more valuable to them if he were allowed to remain "on the street" instead of being arrested and prosecuted. After checking with others, at the second meeting, the agents told Nuculovic that the only circumstances under which he could cooperate with the Government were for him to get an attorney, enter into a written cooperation agreement with the prosecutors, and agree to testify truthfully in criminal proceedings against his confederates. Nuculovic indicated that he would rather not use an attorney, and as is obvious, has decided not to enter into a cooperation agreement.

  During the discussions about the parameters of entering a cooperation agreement with the Government, and the fact that his confederates would inevitably learn of his cooperation, Nuculovic expressed concern about the safety of his family and the effect on his sons' marriage prospects if he cooperated in the way outlined by the agents. At some point during these conversations about safety, but after Nuculovic had made substantial inculpatory statements, the agents conveyed to Nuculovic that they would not disclose his identity to his co-conspirators during the course of their informal meetings. As the agent in charge of these meetings described at the hearing, he told Nuculovic that he would "protect his identity in these three meetings."

  The primary dispute between the parties, as relates to this motion, is over the consequences of this promise of confidentiality. Nuculovic argues that he was promised that his identity as an informant would not be revealed to his co-defendants unless he entered into a formal cooperation agreement, which the agents explained, would likely require that he testify against them. Because he never entered into such an agreement, Nuculovic maintains, the Government is bound by the agents' promise that they would not disclose his identity. Discussion

  "It is well settled that the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant's cooperation." United States v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002). A court looks to the principles of contract law when interpreting these agreements, whether written or oral, formal or informal. Id.; United States v. Rexach, 896 F.2d 710, 713 (2d Cir. 1990). The terms of any agreement are construed against the Government. Aleman, 286 F.3d at 90. A court must determine "what the parties reasonably understood" the terms of the agreement to be and what they intended the remedies to be in the case of a breach. Id.

  "[A] defendant who seeks specifically to enforce a promise [made by the Government] must show both that the promisor had actual authority to make the particular promise and that he (the defendant) detrimentally relied on it. If either part of this showing fails, the promise is unenforceable." United States v. Flemmi, 225 F.3d 78, 84 (1st Cir. 2000) (citation omitted); see also Doe v. Civiletti, 635 F.2d 88, 96 (2d Cir. 1980) ("[I]t is axiomatic that the United States is not bound by the unauthorized acts of its agents."); Roe v. United States Attorney, 618 F.2d 980, 982 (2d Cir. 1980) (per curiam) (denying specific enforcement where "there was no detrimental reliance" on the promise).

  Although the Second Circuit has not yet addressed the question, the First Circuit has held that "a promise of use immunity made independently by an FBI agent exceeds the scope of his actual authority (and is, therefore, unenforceable)." Flemmi, 225 F.3d at 88. The court began with the principle that "[a]ctual authority may be conferred either expressly or by necessary implication." Id. at 85; accord Dinaco, Inc. v. Time Warner, Inc. 346 F.3d 64, 68 (2d Cir. 2003). It then noted that no law or regulation expressly grants the FBI the authority to make promises of immunity. Flemmi, 22d F.3d at 85. Nor, the court reasoned, could this authority be implied as "integral to . . . or otherwise necessary for the due accomplishment of those tasks" that are expressly assigned to FBI agents. Id. (citing H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989)); see also id. at 86 (describing the "connection between a promise of immunity and the FBI's duty to investigate as far too attenuated"). Finally, the First Circuit observed that its conclusion comported with case law holding that "officials having lesser authority over prosecutions than United States Attorneys, such as FBI agents, may not bind the United States either to dismiss an indictment or to refrain from prosecution." Id. at 87 (collecting cases). The First Circuit's opinion in Flemmi is thoughtful and well reasoned, and its conclusion is adopted here: the agents who interviewed Nuculovic lacked authority to grant him use immunity.*fn1 Nuculovic argues that "the lack of authority of an agent to promise immunity [is] a non-issue here" because the promise he seeks to enforce guarantees confidentiality of his identity rather than use immunity for the statement he made to the agents.*fn2 Indeed, the First Circuit in Flemmi observed that "[a] promise of confidentiality and a promise of use immunity are separate and distinct assurances." Id. at 88. Nuculovic looks to this statement to support his argument, but then proceeds to blur the distinction he relies upon when he argues that the "promise of confidentiality means statements to the FBI which have the effect of identifying [the] defendant as an informant cannot be used against him." In the same passage cited by Nuculovic, the First Circuit rejected an attempt to smuggle use immunity into a promise of confidentiality. See Flemmi, 225 F.3d at 88 ("Simply because an FBI agent appropriately may keep an informant's identity to himself does not by some mysterious alchemy imbue the agent with the (otherwise nonexistent) power to promise use immunity."). For if the power to confer use immunity is not necessarily implied by the FBI's duty to investigate crimes, then it certainly would not be necessarily implied by the authority to promise informants confidentiality, itself an implied authority incident to the duty to investigate crimes. See id. at 86 ("The idea that the authority to promise use immunity is linked to the FBI's responsibility to develop informants (and, thus, more efficiently investigate crimes) requires a much greater leap of faith.").

  Even assuming that the FBI agents had the authority to make the promise Nuculovic seeks to enforce (or alternatively, that the actual authority doctrine did not apply), Nuculovic would still need to demonstrate detrimental reliance in order to obtain specific performance of the promise. This he has utterly failed to do. Nuculovic initiated the meetings with the FBI without any promise from the agents. Nuculovic was promised that his identity would remain confidential only after he expressed concern for his safety and that of his family. This promise was made at the earliest in the second meeting. By that time, Nuculovic had already made significant incriminating statements.

  Moreover, Nuculovic had no reasonable basis to believe that the agents would conceal his statement from the prosecutors. As a consequence, Nuculovic could not have formed any reasonable belief that any statement he made to the agents after they promised him limited confidentiality would constrain the prosecutors in shaping their evidence against him at trial. Faced with what he believed to be his imminent prosecution, Nuculovic gambled and sought to convince the agents to use him as an informant rather than arrest him. Fundamentally, this was the bargain Nuculovic sought to strike, and the agents rejected his offer. Because there was no evidence presented at the hearing that Nuculovic "furnished any information on reliance on the [agents'] representation or promise," he "has no right under the Due Process Clause or on any other grounds to specific performance of the promise[]" he seeks to enforce by suppressing his statement. Roe, 618 F.2d at 982.


  Nuculovic's motion to suppress his statement to FBI agents on the ground that use of the statement would necessarily reveal his identity as an informant in violation of the Government's agreement to keep his identity confidential is denied. Although framed in terms of confidentiality, the promise Nuculovic seeks to enforce is in fact a promise of use immunity, which the FBI agents had no authority to confer. Moreover, Nuculovic failed to demonstrate at his suppression hearing that he detrimentally relied on any promise of immunity the agents made to him. For these reasons, the Government is not required to grant Nuculovic immunity with respect to the statement and may use it against him in its prosecution.



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