Opinion
8:17-CR-90
03-26-2020
UNITED STATES of America, v. Hillary TRIMM, Defendant.
LISA M. FLETCHER, ESQ., Ass't United States Attorney, HON. GRANT C. JAQUITH, United States Attorney for the, Northern District of New York, P.O. Box 7198, 100 South Clinton Street, Syracuse, NY 13261. GEORGE F. HILDEBRANDT, ESQ., OFFICE OF GEORGE F. HILDEBRANDT, Attorney for Defendant, 300 Crown Building, 304 South Franklin Street, Syracuse, NY 13202.
LISA M. FLETCHER, ESQ., Ass't United States Attorney, HON. GRANT C. JAQUITH, United States Attorney for the, Northern District of New York, P.O. Box 7198, 100 South Clinton Street, Syracuse, NY 13261.
GEORGE F. HILDEBRANDT, ESQ., OFFICE OF GEORGE F. HILDEBRANDT, Attorney for Defendant, 300 Crown Building, 304 South Franklin Street, Syracuse, NY 13202.
MEMORANDUM–DECISION and ORDER
DAVID N. HURD, United States District Judge
TABLE OF CONTENTS
I INTRODUCTION ... 198
II. BACKGROUND ... 198
A. Hillary Trimm ... 198
B. Criminal Investigation and Charges ... 200
C. Plea and Cooperation Agreements ... 201
D. Subsequent Cooperation and Proceedings ... 202
E. Sentencing ... 204
F. Appeal and Subsequent Proceedings ... 206
III. DISCUSSION ... 206
A. Relevant Legal Background ... 206
B. The Instant Cooperation Agreement ... 208
C. Trimm's Challenge ... 209
1. Constitutional Claim ... 210
2. Contractual Claim ... 215
a. Dissatisfaction with a defendant's efforts ... 217
b. A defendant's breach of an agreement ... 224
IV. CONCLUSION ... 229
I. INTRODUCTION
"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous." 24 J. Am. Jud. Soc'y 18 (1940), 31 J. Crim. L. 3 (1940) (Justice Robert H. Jackson address at Conference of United States Attorneys, Washington, D.C., April 1, 1940).
But that discretion is not unfettered, particularly when exercised in the face of a plea and/or cooperation agreement. Judicial review exists to ensure the United States of America has lived up to its end of the bargain. This Court must scrutinize whether the United States of America did, or did not do so in this case.
At issue is the extent to which federal prosecutors may move for a downward departure under United States Sentencing Guidelines ("U.S.S.G.") § 5K1.1 ("5K1.1") but not 18 U.S.C. § 3553(e) (" § 3553(e)") where it is uncontroverted that the defendant provided substantial assistance to authorities.
II. BACKGROUND
This information has been taken from the confidential Presentence Investigation Report. The parties are assumed to be familiar with the specific facts relating to the sexual exploitation of the minor children and those facts will not be recounted here.
Hillary Trimm ("defendant" or "Trimm"), age 26 at the time of her initial sentencing, was born in Massena, New York. Her parents separated before she was born and she was raised by her mother and step-father. She has one maternal half sibling, and no relationship with her father or his three daughters. She was described as never being in trouble and was raised in an extended family surrounded by children. Trimm herself has three daughters, giving birth to the first when she was 23. All three of Trimm's daughters now reside with her mother since the time of her incarceration.
Trimm graduated in June 2009 from Massena Central High School. From the time of her high school graduation through 2016, she was employed at various points as a part-time cashier at Stewart's Shop and TJ Maxx, as well as Walmart, McDonald's, and a gas station. She was unemployed at the time of her arrest in March 2017. She has been described as an impulsive decision maker with low self-esteem because her older sister was favored by her maternal grandmother, who in turn, did not treat the defendant very well. She self-identifies a history of social rejection, discouragement, negative self-concept, and low self-esteem.
Trimm compensated for her low self-worth by looking for love in a series of bad relationships. She has a history of quickly getting caught up in these relationships and does not know how to get out of them. Over the years, she asked her mother for help getting out of relationships while other times she refused help. Trimm's mother first rescued her from a relationship with the father of her first child, who was allegedly controlling and had mental health issues. Trimm did not want her unborn child to grow up in this environment so her mother helped her move out of his apartment and helped her get her own apartment.
Soon after, Trimm connected with Stacey J. LaPorte, Jr. ("LaPorte"). She and LaPorte were prior acquaintances, but became re-connected in 2015, when they both worked at the Massena Walmart along with Mackenzie L. Bailey ("Bailey"). LaPorte contacted Trimm through Bailey's Facebook account and said he wanted to engage in sexual relations with she and Bailey. A few nights later Trimm and LaPorte started a sexual relationship. She has asserted that LaPorte knew how to play a vulnerable single mother well.
LaPorte and Bailey lived together while Trimm lived at a separate location with her daughter. Although she was involved in an abusive domestic relationship in the past, Trimm did not initially recognize LaPorte as a sexual predator, and then felt powerless to resist his forceful threats. According to Trimm, she was voluntarily with LaPorte for a few months, but trapped by him for a year. He emotionally and physically controlled her throughout their relationship, and threatened physical harm to her if she tried to leave or refused to participate in abusing an infant female child ("V-4"). She said she endured endless threats to the child's life and her own if his demands were not met, and repeated physical abuse if she refused.
According to Trimm, LaPorte told her that he had family connections on the Akwesasne Mohawk Reservation who would kill her, the child, and members of her family if she refused to allow and participate in abusing V-4. LaPorte used the same kind of psychological manipulation with her that he used in getting her to be complicit in abusing V-4; he would threaten harm to himself, Trimm, or Bailey, and would verbally denigrate them.
When Trimm began to have second thoughts about the abuse, showing resistance, and experiencing remorse, LaPorte increasingly voiced threats and promises of physical harm. She did not attempt to leave the relationship because she felt helpless, believed she could not escape, and believed that LaPorte would retaliate with violence and homicide. Ultimately, Trimm allowed herself to be maneuvered into a dangerously compromised situation and was not strong enough emotionally to make good decisions on behalf of the child.
As Trimm's relationship with LaPorte went on, her mother noticed changes in her and in the child, including that the baby was not well cared for. Eventually, Trimm's mother removed the child from the living situation. Trimm showed up the next day at her mother's, entered her house, fell to the ground, and cried. She stated she did not want to go back to LaPorte, but did not know how to get away from him. Her mother then walked outside and told LaPorte to go home and that her daughter would not be returning. Thereafter, Trimm gave birth to LaPorte's baby and lived with her mother until the instant offense came to light and she was ordered to stay away from her children in June 2016.
B. Criminal Investigation and Charges
During the investigation of rape allegations made by two separate teens against LaPorte, investigators uncovered evidence that LaPorte was a serial sex offender, with numerous child victims. The investigation included interviews with women who had relationships with LaPorte, including Bailey and Trimm.
In an interview on June 10, 2016, Trimm provided a five page written statement admitting that she allowed LaPorte to sexually abuse V-4. According to Trimm, she relented to LaPorte's persistent requests that she allow him to have sexual contact with V-4. According to Trimm, she did not want to do it, but gave in because on multiple occasions LaPorte threatened to kill himself. She also admitted that during her relationship with LaPorte, and at his direction, she produced sexually explicit images of herself and V-4, sent those images to LaPorte over the messaging application Kik Messenger, and later deleted the images. Following this interview, Trimm was permitted to return to her home. She was not arrested and no charges were brought against her at that time.
On October 27, 2016, a federal grand jury returned a four count Indictment against LaPorte and Bailey. 5:16-CR-320 (DNH). Both LaPorte and Bailey were charged in three of the counts with crimes involving the sexual exploitation of V-1, an infant female child. LaPorte alone was charged in the fourth count with the sexual exploitation of V-2 and V-3, minors who were 12 and 16 years old, respectively, at the time of the offense. LaPorte and Bailey were remanded to federal custody following their initial appearances on October 28, 2016.
On March 16, 2017, pursuant to a written plea agreement, Bailey entered a plea of guilty to all three counts of the Indictment in which she was charged. Bailey also entered into an unfiled cooperation agreement with the United States of American (the "Government") at the same time, and began cooperating with the Government by providing information about both LaPorte and Trimm.
On March 23, 2017, the grand jury returned a Superseding Indictment against LaPorte, adding a fifth count to the charges against him: receipt of child pornography.
Based upon information gathered in the ongoing investigation, the Government determined that it had sufficient corroboration of Trimm's statements to police that she had sexually exploited V-4 at LaPorte's request. Nine months after her initial interview, on March 23, 2017, she was arrested and charged by Complaint with conspiracy to sexually exploit a child. 8:17-MJ-123 (TWD). The Complaint charged her with conspiring with LaPorte to produce visual depictions of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. §§ 2251(a) and (e). That offense subjected her to the mandatory minimum penalty provision of 18 U.S.C. § 2251(e). Following her initial appearance on March 27, 2017 and detention hearing on March 30, 2017, she was ordered detained.
Trimm immediately chose to cooperate with the Government and on April 10, 2017, she executed a proffer agreement, providing information about her history with LaPorte including their abuse of V-4.
On April 20, 2017, Trimm and her attorney met with the Government to discuss the status of her cooperation. Trimm made the decision to plead guilty and testify against LaPorte. Trimm and the Government entered into a separate Plea Agreement and an Addendum to the Plea Agreement re: Cooperation ("Cooperation Agreement").
Though not filed, a copy of the Cooperation Agreement has been provided to the Court on multiple occasions in connection with this litigation.
C. Plea and Cooperation Agreements
Pursuant to the Plea Agreement, Trimm agreed to waive indictment and plead guilty to a single count Information charging her with conspiracy to sexually exploit V-4, in violation of 18 U.S.C. §§ 2251(a) and (e). She also acknowledged her understanding of the penalties to which she was subject, including: (1) a maximum term of 30 years of imprisonment; (2) a mandatory minimum of 15 years of imprisonment; (3) a minimum of five years of supervised release, up to a maximum of life, as well as other penalties should she violate the terms of her supervised release; (4) a maximum fine of $250,000; (5) a special assessment of $100 due at the time of sentencing; (6) interest and penalties that accrue by operation of law upon unpaid financial obligations imposed as part of his sentence; and (6) collateral consequences of a felony conviction such as the loss of the right to vote and the right to possess firearms. See Plea Agreement, ECF No. 13.
The Plea Agreement further provided that
[t]he actual sentence to be imposed upon the defendant is within the discretion of the sentencing Court, subject to the statutory maximum and mandatory minimum penalties, as described above, and the provisions of the Sentencing Reform Act and the United States Sentencing Guidelines promulgated thereunder. While the Court is not bound to impose a sentence within the applicable sentencing guidelines range, it must take into account the sentencing guidelines, along with the other factors set forth in 18 U.S.C. § 3553(a).
Plea Agreement ¶ 7(E)(d)(i).
The Government agreed that it would recommend an "acceptance of responsibility" two level downward adjustment to the applicable Sentencing Guidelines range, pursuant to U.S.S.G. § 3E1.1(a). The Government also agreed to move for an additional downward adjustment of one level in recognition of the efficiencies generated by Trimm's prompt guilty plea, so long as she otherwise qualified for such adjustment under U.S.S.G. § 3E1.1(b). The Plea Agreement noted that the Court would not be bound by its terms, or by any recommendations, stipulations, or requests made by the parties. Trimm and the Government also entered into a Cooperation Agreement. Trimm agreed to cooperate fully with the Government with respect to all of the activities of herself and others about which the Government may inquire, including truthfully disclosing all information with respect to her activities and others and truthfully testifying before the grand jury and/or at any trial or other proceedings. She also agreed not to violate any federal, state, or local law or condition of release or supervision imposed by the Court between the time the defendant signed the Cooperation Agreement and the date of sentencing.
For its part, the Cooperation Agreement obligated the Government to "advise the Court of the nature and extent of the cooperation and assistance provided by the defendant pursuant to this Addendum to the Plea Agreement." Cooperation Agreement ¶ B(1). The Cooperation Agreement included the following language:
If the United States Attorney's Office determines, in its sole discretion, that the defendant has provided "substantial assistance" in the investigation or prosecution of one or more other persons who have committed offenses, it may, in its sole discretion, credit the defendant in one or more of the following ways: (i) move for a downward departure pursuant to either or both U.S.S.G. § 5K1.1 and/or 18 U.S.C. § 3553(e) ; or (ii) move to dismiss one or more charging informations the government has filed pursuant to 21 U.S.C. § 851 concerning the defendant's conviction for one or more felony drug offenses that trigger enhanced penalty provisions in Title 21 of the United States Code, in any case in which the government has filed such information(s).
Id. ¶ B(1).
The Cooperation Agreement explicitly stated that "the United States Attorney's Office does not promise or guarantee that it will make such motion(s) for departure or to dismiss. Whether and how to credit any proffered cooperation and assistance is within the sole discretion of the United States Attorney's Office." Id. It further provided that the Government may consider any relevant facts known to it at the time the agreement was executed in determining whether Trimm "provided ‘substantial assistance’ warranting a motion for a downward departure under U.S.S.G. § 5K1.1 and/or 18 U.S.C. § 3553(e)." Id. ¶ B(2).
The Government retained sole discretion to determine the extent of its recommendation for a downward departure, should it determine that such a motion would be made. Id. ¶ B(5). However, the Cooperation Agreement provided that "the final decision as to how much, if any, reduction in sentence is warranted because of that assistance, rests solely with the sentencing Court, subject to any statutory minimum penalty." Id. ¶ B(6).
The Cooperation Agreement also provided that
[t]he defendant's failure to fully comply with the terns of this Addendum to the Plea Agreement shall constitute a breach of both the Plea Agreement and this Addendum. If the defendant breaches either the Plea Agreement or this Addendum, the [G]overnment will have the right, in its sole discretion, to void this agreement, in whole or in part, in addition to all of the remedies for breach described in the Plea Agreement.
Cooperation Agreement , 1.
D. Subsequent Cooperation and Proceedings
After signing the Plea and Cooperation Agreements on April 20, 2017, Trimm testified before the grand jury. The grand jury returned a Second Superseding Indictment against LaPorte, including a sixth count (Count 2) to the charges against him: conspiracy (with Trimm) to sexually exploit V-4 in violation of 18 U.S.C. §§ 2251(a) and (e).
On May 11, 2017, pursuant to the Plea Agreement she signed on April 20, 2017, Trimm pleaded guilty to a single count Information charging her with conspiracy to sexually exploit V-4, in violation of 18 U.S.C. §§ 2251(a) and (e). Her sentencing was adjourned multiple times so that she could fulfill her commitments under the Cooperation Agreement.
Trimm continued her cooperation with the Government by meeting with prosecutors over several days to prepare for her testimony at LaPorte's trial. She testified against him at trial, and he was convicted of all six counts. Judging from the jury's verdict, the jurors credited Trimm's trial testimony.
Not only did her trial testimony cause her to relive traumatic abuse, but it was essential in convicting LaPorte of Count 2 in the Superseding Indictment charging him with the sexual exploitation of V-4. Extensive law enforcement investigation failed to discover any files, messages, or other evidence of LaPorte's abuse of V-4. The only evidence against LaPorte with respect to Count 2 was Trimm's testimony. Her truthful and credible testimony was thus of obvious significance to the Government, which would not have secured a conviction on Count 2 without Trimm's cooperation. Further, Trimm's testimony corroborated Bailey's testimony establishing LaPorte's responsibility for the other sexual exploitation counts, and was critical in precluding any defense by him that he had not solicited the pictures of the other victims found on his electronic devices.
The Government repeatedly acknowledged the significance of her testimony:
[Trimm's] cooperation ensured that LaPorte, a dangerous serial sex offender, was held accountable for his exploitation of V-4, one of his several victims. Trimm was the only witness to LaPorte's sexual exploitation of V-4, and without her cooperation, the Government would have been unable to hold him to account for his crimes against this child.
See February 8, 2018 Confidential Letter of Assistant United States Attorney Lisa M. Fletcher ("AUSA Fletcher letter"). This was because "images produced during the commission of crimes committed against [V-4] ... were deleted long before law enforcement became involved ... As a result, Trimm's testimony about the crimes, and LaPorte's role in their conspiracy to commit them, was critical in holding LaPorte accountable." Id. As the Government further explained, "because all of the direct evidence of LaPorte's actions with V-4 came from her testimony, Trimm's cooperation with the Government was essential to the conviction of LaPorte in the conspiracy to exploit this particular child." Id.
LaPorte was convicted of all six counts in the Second Superseding Indictment. Not only was Trimm's testimony the only evidence against him regarding Count 2, but was undoubtedly very very helpful in the conviction the Government secured against him for Counts 1, 3, 4, 5, and 6.
Ultimately, LaPorte was sentenced primarily to 1,140 months (95 years) imprisonment. His conviction was affirmed by the United States Court of Appeals for the Second Circuit on October 15, 2019. United States v. LaPorte , 779 F. App'x 63 (2d Cir. 2019) (summary order). It was a great result for the Government and for society ! E. Sentencing
In advance of Trimm's February 22, 2018 sentencing, the parties each submitted sentencing memoranda indicating their respective positions. ECF Nos. 19, 20. In its sentencing memorandum, the Government agreed with the Guidelines computations of the United States Probation Officer, finding Trimm's Total Offense Level to be 43. However, because the sole count of conviction had a statutory maximum sentence of 30 years, Trimm's Guidelines range became 360 months (30 years). The Government argued that the closest Guidelines level that allowed for a 30 year sentence was level 42.
As Trimm fully accepted responsibility for her actions and entered her plea of guilty in a timely manner, the Government advised it would move for an additional one level downward adjustment under U.S.S.G. § 3E1.1(b). It advised it would not be making a motion to lift the statutory minimum pursuant to § 3553(e) and requested the Court impose a sentence of imprisonment within the applicable Guidelines range, and a Guidelines-recommended term of lifetime supervised release.
On February 8, 2018, based upon Trimm's cooperation, the Government filed the aforementioned confidential letter. See AUSA Fletcher letter. In the letter, the Government indicated its intent to make a motion at sentencing, pursuant to 5K1.1, for a five level downward departure. That departure would result in a Guidelines range of 210 to 262 months, down from a Guidelines sentence of 360 months. Ultimately, the Government recommended a sentence of 210 months. The Government's letter reiterated that it would not be making a motion under § 3553(e) to release the mandatory minimum sentence of 15 years.
On February 9, 2018, Trimm submitted a sealed motion to compel the Government to move pursuant to § 3553(e) to permit the Court to sentence her below the 15 year statutory minimum sentence. ECF No. 22. Trimm argued, inter alia , that the Government's decision to move for a Guidelines reduction pursuant to 5K1.1, but not a release from the mandatory minimum pursuant to § 3553(e), was in bad faith. Id.
The Government filed a response in opposition, namely arguing that the Cooperation Agreement gave it the sole discretion to decide whether and how to credit any cooperation and assistance, and it thus had no obligation to make a § 3553(e) motion. ECF No. 23.
At Trimm's February 22, 2018 sentencing proceeding, the Court first addressed several matters in a closed courtroom. See February 22, 2018 Sealed Transcript, ECF No. 32. The Court found the closest Guidelines level that allowed for a 30 year sentence was 40. Id. at 4:2–10. It followed that with a Guidelines range of 40 and a criminal history category of I, the Guidelines imprisonment range was 292 to 360 months. Id. at 4:9–14. The Government, as planned, moved for a five level downward departure due to valuing Trimm's cooperation at five levels. Id. at 5:18–23. Although the Government moved for a five level departure, it was ultimately construed as only a three level departure due to the Government's disagreement with the Court's offense level calculation of 40, while maintaining its recommendation of 210 months. Id. at 4:17–7:3.
The parties then asserted their respective position's on Trimm's cooperation. Id. at 7:8–11:9. The Court outlined Trimm's "remarkable cooperation," including reading from AUSA Fletcher's letter. Id. at 11:11–13:11. The Court noted how Trimm immediately agreed to cooperate with the Government; that it was nine months after her initial statement to the Government before she was actually arrested; that she continued to cooperate from day one; and that there is no indication that she in any way failed to fulfill the Cooperation Agreement with the Government. Id. at 13:12–18. Based on these "extraordinary circumstances and extraordinary testimony," the Court concluded that Trimm was entitled to a 10 level departure based on her cooperation. Id. at 13:19–21.
With a total offense level of 40, a 10 level departure bringing the offense level to 30, and a criminal history category of I, the Court calculated a Guidelines range of 97 to 120 months. Id. at 13:22–25. However, with only a 5K1.1 motion before the Court, the Guidelines range was 180 months due to the mandatory minimum of 15 years. Id. at 14:1–3.
The Court then heard argument on defendant's motion to compel a § 3553(e) motion. The Court explained: "If that motion is denied, the guideline range is one hundred and eighty [180] months. If the motion is granted, the guidelines range would be ninety-seven [97] to one hundred and twenty-one [121] months." Id. at 146–9. Defense counsel outlined all of the reasons the Court should grant Trimm's motion, including asserting that the Government's refusal to make the motion was due to its desire to prevent the Court from exercising its sentencing discretion, while emphasizing that the Government has repeatedly acknowledged that Trimm did everything and more that was expected of her and asked of her. See id. at 14:12–17:24.
In opposition, the Government argued it could not have been more explicit about what the consequences to Trimm would be upon a guilty plea and signing the Cooperation Agreement, and that there was no implicit understanding outside the four corners of the Cooperation Agreement. Id. at 19:18–24. The Government emphasized that the terms of the Cooperation Agreement control and reiterated that it acted only in good faith. See id. at 22:3–23:15. Upon inquiry, the Government acknowledged that Trimm fully complied with the terms and conditions of the Cooperation Agreement, as well as the Plea Agreement. Id. at 20:1–9. The only other argument the Government made was that it followed the United States Attorney's Office's procedures in making the five level recommendation under 5K1.1.
The Court then ruled on Trimm's motion. After reiterating the significance of Trimm's cooperation, the Court noted that nowhere in either the Government's opposition to Trimm's motion, or in its affidavit, did it give any reason why it did not make a § 3553(e) motion. Id. at 25:25–26:2. Instead, "it went into a great deal as to their discretion under the Plea Agreement, [and] it went into a great deal as to the procedure they followed in making this decision. Id. at 25:22–25. The Court restated Trimm's extraordinary assistance, and belabored that without such a § 3553(e) motion, she would not receive the benefit she was entitled to based on her extraordinary cooperation. Id. at 24:23–26:14. Such an outcome would not be fair, and the Court thereafter directed the Government to make a § 3553(e) motion. Id. at 26:14–21. The Government asserted that it had no authorization to do so, but under the unique circumstances the Court deemed the motion to have been made. Id. at 26:24–27:3.
Upon deeming the Government to have made a § 3553(e) motion, the Court concluded that the Guidelines range was 97 to 120 months, and advised defense counsel that upon moving to open court, he could move for a non-Guidelines sentence below the 97 to 120 months. In open court, defendant moved for a non-Guidelines sentence. See February 22, 2018 Sentencing Transcript, ECF No. 28. The Government opposed and moved for a sentence above the Court's resulting Guidelines range and for a sentence of 17 years, still above the mandatory minimum of 15 years.
After considering the applicable Guidelines as well as the factors listed in 18 U.S.C. § 3553(a), the Court granted defendant's motion for a non-Guidelines sentence and sentenced Trimm to a term of imprisonment of 90 months (7½ years), a sentence slightly below the advisory Guidelines range of 97 to 120 months. See ECF No. 24.
F. Appeal and Subsequent Proceedings
The Government appealed. On March 13, 2019, the Second Circuit vacated the judgment sentencing Trimm to 90 months and remanded for resentencing. United States v. Trimm , 756 F. App'x 109 (2d Cir. 2019) (summary order). The Second Circuit acknowledged the Government may not refuse to file a § 3553(e) motion based on an unconstitutional motive or in bad faith, but found that because "the district court did not find unconstitutional motive or bad faith ... it was without authority to sentence Trimm below the statutory minimum sentence of 15 years' imprisonment." Id. The Second Circuit issued the corresponding Mandate on April 3, 2019. ECF No. 36.
On April 24, 2019, this Court issued an Order vacating the February 22, 2018 sentence and judgment. ECF No. 37. On May 20, 2019, the Court directed the parties to consider whether: (1) a stipulated sentence could be reached in accordance with Federal Rule of Criminal Procedure 11(c)(1)(c) ; (2) the Government would move under § 3553(e) for imposition of a sentence below the statutory mandatory minimum; or (3) defendant planned to make "a formal motion of bad faith" against the Government. ECF No. 38.
On June 12, 2019, defendant advised as follows:
I have conferred with the government in accordance with your order of May 20, 2019. The US Attorney's office advises that they will not be filing a motion under 18 USC § 3553(e) to permit the Court to sentence Ms. Trimm without regard to the mandatory minimum. The government has instead indicated it intends to recommend the same 210 month sentence it did in the original proceeding. I have spoken with Ms. Trimm, and given the government's position, we are unable to agree on a stipulated sentence pursuant to Fed. R. Crim. P. 11(c)(1)(c).
Ms. Trimm does intend to make a motion addressing the Court's ability to sentence her without regard to the mandatory minimum despite the absence of a § 3553(e) motion, and I therefore ask that you schedule dates for the filing of submissions.
ECF No. 39. Upon receipt of defendant's letter, the Court set a briefing schedule. ECF No. 40.
Trimm then moved to compel the Government to make a motion pursuant to § 3553(e) to permit a sentence below the mandatory minimum. ECF No. 41. The Government opposed and defendant replied. ECF Nos. 44, 45. The motion has now been fully briefed and this Court has undertaken an exhaustive review of the record.
III. DISCUSSION
A. Relevant Legal Background
"When a statute sets out a mandatory minimum sentence, a defendant convicted under that statute will generally receive a sentence at or above the mandatory minimum—but not always." Koons v. United States , ––– U.S. ––––, 138 S. Ct. 1783, 1787, 201 L.Ed.2d 93 (2018). However, if a defendant, prior to being sentenced, has rendered substantial assistance to the Government in the investigation or prosecution of another person who has committed an offense, two provisions afford the possibility of lenient sentencing upon motion of the Government: § 3553(e) which allows a court to impose a sentence below the applicable statutory minimum and 5K1.1 which allows a court to impose a sentence below the Guidelines-recommended advisory range of imprisonment. United States v. Scarpa , 861 F.3d 59, 67 (2d Cir. 2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 692, 199 L.Ed.2d 588 (2018) (reviewing district court's Federal Rule of Criminal Procedure 35 ("Rule ___") sentence reduction after the Government failed to so move and noting that the only practical difference between Rule 35(b) and 5K1.1 is a matter of timing).
The full text of § 3553(e) provides:
Limited Authority to Impose a Sentence Below a Statutory Minimum. --Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
This provision "gives the Government a power, not a duty, to file a motion when a defendant has substantially assisted." Wade v. United States , 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). Without a motion by the Government pursuant to § 3553(e) "requesting or authorizing a departure below the statutory minimum," a district court "lack[s] the authority to sentence" a defendant to less than the statutory minimum. Melendez v. United States , 518 U.S. 120, 130, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996). Moreover, nothing prohibits the Government from making a motion for a departure below the Sentencing Guidelines range (under 5K1.1 ) while simultaneously declining to make a motion to depart below the statutory minimum (under § 3553(e) ). See id. at 126–27, 116 S.Ct. 2057 (discussing separately motions seeking relief under § 3553(e) and 5K1.1).
U.S.S.G. § 5K1.1 reads as follows: "[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines."
Section 3553(e) permits the Government to file a motion "so as to reflect a defendant's substantial assistance." The statute was enacted to enhance federal law enforcement by "provid[ing] our United States Attorneys with the authority they need to obtain cooperation and information from drug dealers." 132 Cong. Rec. 21964 (1986) (Statement of Sen. D'Amato). It was not however intended to grant prosecutors a general power to control the length of sentences.
Nonetheless, the inquiry is not that simple. Sentencing is "primarily a judicial function." Mistretta v. United States , 488 U.S. 361, 390, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Notwithstanding Article III's vesting of judicial power in the Supreme Court and ultimately this Court, "sentencing is not inherently or exclusively a judicial function." United States v. Huerta , 878 F.2d 89, 93 (2d Cir. 1989) (internal quotations omitted). Instead, it has "long has been a peculiarly shared responsibility among the Branches of Government." Mistretta , 488 U.S. at 390, 109 S.Ct. 647. It is well-settled for example that "the scope of judicial discretion with respect to a sentence is subject to congressional control," and mandatory minimum penalties do not categorically violate the separation of powers doctrine. Huerta , 878 F.2d at 93 (citing Mistretta , 488 U.S. at 390, 109 S.Ct. 647 ).
Likewise, though § 3553(e) delegates to the prosecutorial arm of the Executive Branch the authority to control when a judge may consider cooperation with the Government as a mitigating factor, it "does not usurp an inherently judicial function by preventing sentencing judges from exercising their constitutional prerogatives." Id. This is so because "the statute does not permit the government to engage in ‘adjudication.’ " Id. at 92. Rather, the Government decides whether to make such a motion but "[t]he power to decide the motion and to pronounce the sentence ... remain with the court." Id.
Despite any reservations this Court may have relating to actual or perceived erosions of judicial authority, "individual judges, cloaked with the authority granted by Article III of the Constitution, are not at liberty to impose their personal view of a just result in the face of a contrary rule of law." In re United States , 945 F.3d 616, 627 (2d Cir. 2019) (citing Hart v. Massanari , 266 F.3d 1155, 1171, 1175 (9th Cir. 2001) ("Judges of the inferior courts may voice their criticisms [of a law], but follow it they must.... A district court bound by circuit authority, for example, has no choice but to follow it, even if convinced that such authority was wrongly decided.")).
As such, notwithstanding the constitutionality of mandatory minimums and § 3553(e), judges still have a thing to do. The Government knows the Court has an obligation to supervise the constitutional dimensions of plea and cooperation agreements before it. The undersigned also has residual supervisory authority to oversee contracts executed under the auspices of this Court, and it must serves as a backstop to constitutional issues. This case sits at the intersection of those two issues; the Cooperation Agreement is a contractual issue that raises constitutional concerns. Trimm provided pristine, perfect cooperation and yet the Government declined to make a § 3553(e) motion. Though it did make a 5K1.1 motion, that motion had no practical effect on Trimm's sentence as it did not alone permit the Court to sentence her below the mandatory minimum, if such a sentence was fair and just under the totality of the circumstances.
B. The Instant Cooperation Agreement
The Cooperation Agreement here placed obligations on both parties, but it undeniably granted the prosecutor with a large amount of discretion. The Cooperation Agreement provided that Trimm would cooperate fully with the Government with respect to all of the activities of herself and others about which the Government may inquire, including truthfully testifying before the grand jury and at any trial or other proceedings. For the Government's part, the Cooperation Agreement obligated it to advise the Court of the nature and extent of Trimm's cooperation and assistance. In doing so, the Government retained sole discretion to determine whether Trimm provided substantial assistance in the investigation or prosecution of others who committed criminal offenses.
The Cooperation Agreement further included that should the Government determine that Trimm provided substantial assistance, it may, in its sole discretion move for a downward departure pursuant to either or both 5K1.1 and/or § 3553(e). In doing so, the Cooperation Agreement permitted the Government to consider any relevant facts known to it at the time the Agreement was executed in determining whether Trimm provided substantial assistance warranting a motion for a downward departure under 5K1.1 and/or § 3553(e). In addition, it provided that Trimm's failure to fully comply with the terms shall constitute a breach of both the Plea Agreement and the Cooperation Agreement. In the event of Trimm's breach of either Agreement, the Government retained the right, in its sole discretion, to void the Cooperation Agreement, in whole or in part, in addition to all of the remedies for breach described in the Plea Agreement.
The terms of the Cooperation Agreement, therefore, make it unambiguous that the Government had considerable discretion whether to move for a downward departure, based in part on its assessment of Trimm's cooperation and truthfulness.
At sentencing, the Government moved for a five level departure below the Sentencing Guidelines range pursuant to 5K1.1 but did not move for a departure below the statutory minimum pursuant to § 3553(e). The Government asserts, supported by no details, that its decision not to make a § 3553(e) reflected the worth of Trimm's cooperation. That is consistent with the statute and with the language of the Cooperation Agreement granting the Government sole discretion to decide whether to make the motion.
Nonetheless, that assertion is inconsistent with the overwhelming proof of Trimm's substantial assistance in this case, as well as inconsistent with the Government's own statements praising Trimm's cooperation. That evidence coupled with the Government's unchanging position as to the worth of Trimm's assistance, and in the face of absolutely no sound reason as to why it declined to make a 3553(e) motion, suggest that the Government's refusal to file the motion was for a different reason—namely, to reduce this Court's discretion to depart from the Government's notion of the appropriate total sentence.
It must be noted that even though Trimm was a very vulnerable young woman who was bullied and threatened by LaPorte, the crime she committed was terrible. However, the Government never once asserted that the nature of her crime was the reason it refused to make a § 3553(e) motion. That was proper because the nature of her crime had nothing to do with the nature and extent of her cooperation under § 3553(e). The nature of her crime can be argued by the Government at the time of sentencing, after the § 3553(e) motion has been made and granted, for a sentence even above the "former" mandatory minimum of 15 years.
C. Trimm's Challenge
To reiterate, because the Government did not move for a departure below the statutory minimum pursuant to § 3553(e), there is no authority to sentence defendant below the statutory minimum absent some other circumstance. Trimm argues the Government should be compelled to make a § 3553(e) motion because: (1) it was improperly motivated by factors other than her substantial assistance, and (2) it acted in bad faith in refusing to make the motion. Should the Government be compelled to so move, defendant could be sentenced without regard to the statutory mandatory minimum.
As the Second Circuit indicated on appeal of this matter, "[t]he government may not refuse to file the motion based on an unconstitutional motive, or, when there is a cooperation agreement in place, in bad faith." Trimm , 756 F. App'x at 110 (internal quotations and citations omitted). Essentially, though Trimm does not characterize them specifically as such, she presents both constitutional and contractual challenges to the Government's decision not to file a § 3553(e) motion.
1. Constitutional Claim
Courts generally will not review a prosecution decision not to file a § 3553(e) motion except to ensure against unconstitutional motivation, such as race, ethnicity, religion, or a reason not rationally related to any legitimate government end. Wade , 504 U.S. at 186, 112 S.Ct. 1840 ; United States v. Roe , 445 F.3d 202, 207 (2d Cir. 2006). While a prosecutor is afforded wide discretion, his or her refusal to make a substantial assistance motion may not be a product of invidious discrimination or an otherwise unconstitutional motive. United States v. Gerinson , 426 F. Supp. 2d 185, 187 (S.D.N.Y. 2006). Thus, a prosecutor's discretionary choices cannot be based, for example, on "impermissible considerations such as race, religion or the desire to prevent the defendant's exercise of constitutional rights." United States v. Ramsey , 503 F. Supp. 2d 554, 560 (N.D.N.Y. 2007) (internal quotations omitted) (citing United States v. Rexach , 896 F.2d 710, 714 (2d Cir. 1990) ).
Further, a defendant "would be entitled to relief if the prosecutor's refusal to move was not rationally related to any legitimate Government end." Wade , 504 U.S. at 186, 112 S.Ct. 1840 ; Roe , 445 F.3d at 207 ; see also Scarpa , 861 F.3d at 71–72 (finding the Government's refusal was based on legitimate government concerns); United States v. Hernandez , 404 F. App'x 521, 522 (2d Cir. 2010) (summary order) (concluding that the Government's proffered reason for not making the motion bore a rational relationship to a legitimate Government interest).
In Scarpa , 861 F.3d at 61, the defendant was convicted after trial of racketeering and narcotics trafficking offenses. Later, while incarcerated and awaiting trial on additional charges, the defendant contacted the Government and stated that he had valuable terrorism information that he obtained from another inmate. Id. Ultimately, in connection with his sentencing on the additional charges, he sought to have the Government make a 5K1.1 motion pursuant to the (then-mandatory) Sentencing Guidelines for a reduced sentence on the ground that he had provided substantial assistance to the Government in connection with terrorism plans. Id. at 61–62. The Government opposed and the district court denied his request. Id. at 62.
Later, while incarcerated, the defendant attempted to provide testimony to other district court judges in connection with crime family members' motions to overturn their convictions. Id. His testimony was found to be problematic and not credible. Id. Soon thereafter, he again attempted to obtain a (post-conviction Rule 35(b) ) substantial assistance benefit by claiming he had information about terrorism plans. Id. Ultimately, after a windy road of getting the knowledge he had to law enforcement, his information did lead to the discovery of a cache of explosive components. Id. at 63. His attorney then requested the Government move pursuant to Rule 35(b) to reduce his sentence based on his substantial assistance in the discovery of the explosives components. Id. The Government declined to make the motion. Id.
Over the next several years, the defendant continued to pursue the request, including at one point through a 28 U.S.C. § 2255 habeas corpus petition. Id. He maintained his position that the value of his assistance with respect to explosives components was indisputable, "and that therefore his past history of false testimony and whatever the government believed about ... [his] past cooperation efforts were an insufficient basis for the government's refusal to move to reduce his sentence." Id. at 64 (internal quotations omitted). Ultimately, the district court granted his Rule 35(b) motion for a sentence reduction concluding that "a rational assessment of the cost and benefit that would flow from moving for Rule 35(b) relief was not made here." Id. at 65 (internal quotations omitted).
On appeal, the Government argued that its decision not to move for a sentence reduction was justified and explained from the outset based on the defendant's prior sham proffer of cooperation, other attempts to obstruct justice, and untruthfulness with law enforcement while providing the alleged information. Id. at 66. The Second Circuit reversed, explaining that "the government may not withhold such a motion for a reason that is not related to a legitimate government concern," but concluded that "the record in the present case amply supports the government's contention that its refusal to make such a motion for Scarpa was based on legitimate government concerns." Id. at 71. Those concerns included the fact that the defendant "had committed perjury at his trial; in two other criminal cases he had submitted affidavits that the respective presiding judges found could not be credited; and ... he had purported to cooperate ... while instead actively misleading the government and affirmatively compromising the investigative efforts he caused it to undertake." Id. at 71–72.
In Hernandez , 404 F. App'x at 522, the defendant pleaded guilty to conspiracies involving firearms. After he challenged the prosecution's decision not to file a § 3553(e) motion, the district court declined to compel such a motion. Id. On appeal, the Second Circuit noted that it may only review a prosecution decision not to file a § 3553(e) motion under limited circumstances, one being "a reason not rationally related to any legitimate government end." Id. It found that "the government's proffered reason for not making a § 3553(e) motion—Hernandez's commission of further crimes—clearly bore a rational relationship to the government's legitimate interests in deterring crime both generally and specifically as to persons expecting sentencing consideration." Id.
There is no suggestion that the Government's action, or inaction, was invidious in this case. Rather, Trimm faults the Government for having no rational basis for its decision. She argues the Government's motivation in not making a § 3553(e) motion was out of an impermissible desire to control the length of her sentence, and not for reasons related to her substantial assistance.
Whether that truly was the Government's motivation in declining to make the motion may never be directly proven or admitted, but what can be evaluated is the justification offered by the Government. The Government has maintained that the Cooperation Agreement gave it the sole discretion to decide whether and how to credit any cooperation and assistance and that it used that discretion to choose to recommend a five level downward departure, and it thus had no obligation to make a § 3553(e) motion. At sentencing, the Government explained:
The government's motion for a departure as set forth in our paperwork results in a thirteen-year reduction from the defendant's guidelines range, and we think that the thirteen-year reduction not only accounts for her substantial assistance to the government,
but generously accounts for her substantial assistance to the government. The defendant's motion to go further than that oversells Ms. Trimm's usefulness to the government.
Sentencing Tr., ECF No. 32, 9:9–17. The Government continued:
It is true, as we have conceded and forthrightly put forth before this Court, that we could not have proven a case against Stacey LaPorte in regard solely to his abuse of C.T. without the testimony of Hillary Trimm, and for that, we have adequately and generously made a motion in keeping with our agreement for a downward departure for that assistance.
Id. at 9:21–10:2. Despite this acknowledgment, the Government explained that "Hillary Trimm needed that cooperation agreement more than the government needed that cooperation agreement." Id. at 11:4–6.
Conversely, Trimm maintains she could have gone to trial with the little evidence against her. Defense counsel argued that
[t]he paucity of the evidence against ... [her] is not only significant in valuing [her] testimony against LaPorte, but in assessing the significance of [her] decision to plead guilty and assist the government. The only apparent evidence against Trimm consisted of admissions she made during an interview with police on June 10, 2016, nine months before she was arrested. Her admissions would have required corroborating evidence to sustain a conviction. Trimm therefore had a viably defensible case had she chosen to go to trial.
Def.'s Mem. of Law in Support, ECF No. 41, 4 (internal citations omitted).
In opposition to defendant's instant motion to compel, the Government explained the following procedure for determining whether to make a substantial assistance motion:
In advance of Trimm's sentencing, and as a result of her cooperation against LaPorte, the United States Attorney's Office for the Northern District of New York ["USAO"] employed its established policy and procedure for determining whether to make a motion for a downward departure from the federal sentencing guidelines pursuant to U.S.S.G. § 5K1.1, and whether to make a motion for a departure from her statutory mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e). As a result, a five-level downward departure pursuant to U.S.S.G. § 5K1.1 was authorized, resulting in a Guidelines range of 210–262 months.
As evident here, and in the case against Mackenzie Bailey, the USAO generally does not make a motion for a downward departure under 18 U.S.C. § 3553(e) unless its valuation of the assistance provided in terms of the recommended number of levels of departure could be given effect only through a sentence below the statutory minimum term of imprisonment. Here, a § 3553(e) motion was not necessary to give effect to the USAO's recommended departure, as the Guidelines imprisonment range resulting from the five-level departure, 210 to 262 months, could be given effect without a departure from the statutory mandatory minimum imprisonment term of 180 months. Accordingly, consistent with USAO policy, and consistent with the cooperation agreement entered into with the defendant, the United States Attorney exercised his discretion not to authorize a departure under § 3553(e).
Gov't's Mem. of Law in Opp'n, ECF No. 44, 8–9.
Essentially, the Government has claimed that Trimm did not have much to offer. Yet, the Government knew what information she had at the time it made an agreement with her and repeatedly praised her assistance throughout the course of this litigation. Moreover, the Government has conceded that Trimm was the only person to offer anything with respect to Count 2, and that her testimony was essential for LaPorte's conviction on Count 2.
To be sure, the Government did determine that Trimm provided substantial assistance. Accordingly, it moved for a downward departure of five levels, bringing her advisory Sentencing Guidelines range from 292 to 360 months, down to 210 months to 262 months. The Government was careful to recommend a Guidelines range that was still above the mandatory minimum of 180 months. Ultimately, the Government recommended a sentence of 210 months (17½ years).
The Government's decision to recommend no more than five levels of downward departure pursuant to its 5K1.1 motion, putting Trimm's Guidelines range minimum at just above the mandatory minimum for her crime, suggests the Government's action was not based on the merits of the case and her cooperation, but instead was motivated by a desire to keep the range above the mandatory minimum. The five level downward departure also resulted in absolutely no benefit to Trimm. Instead of promptly pleading guilty and cooperating (including testifying at LaPorte's trial), she could have pleaded guilty without a Cooperation Agreement, or been convicted after trial. Had she chosen either of those options, she would have still faced the mandatory minimum of 15 years and the Court could have relied on § 3553(a) factors to go well below the advisory Guidelines range.
The Government has furnished nothing in the way of an explanation for why it declined to make a § 3553(e) motion, except to state that the five level downward departure pursuant to 5K1.1 was sufficient to reflect Trimm's cooperation and thus a § 3553(e) motion was not necessary. In other words, according to the Government, her very necessary and very thorough and truthful cooperation was not worthy of a § 3553(e) motion.
While it is true that "the government [need not] normally be required to disclose the details of its investigations or procedures that informed its legitimate-government-concern-based decision not to make a substantial-assistance motion," Scarpa , 861 F.3d at 69, there is no evidence in the record to suggest that the Government's refusal to move was rationally related to any legitimate Government end. The Government has not alleged that Trimm committed perjury at any point, was found to be incredible by any judge, offered sham information, actively misled the Government, or compromised investigative efforts. But cf. Scarpa , 861 F.3d at 62–65. Nor has Trimm committed any further crimes which might bear a rational relationship to the Government's legitimate interests in deterring crime. But cf. Hernandez , 404 F. App'x at 522. Thus there is a fundamental defect in the Government's position. Its refusal to file a substantial assistance motion was based entirely upon a reason unrelated to the quality of Trimm's assistance in investigating and prosecuting LaPorte and other offenders.
In light of the facts of this case, and what this Court observed during Trimm's plea hearing, LaPorte's lengthy trial, and Trimm's sentencing, in addition to all of the written submissions that have been reviewed, it cannot be said that the Government conducted a rational assessment of the cost and benefit that would flow from moving under § 3553(e) here. If the assessment was made, it was surely not a rational one.
The Government did not think Trimm should get less than 15 years and it made its 5K1.1 motion accordingly. It was of the view that a sentence of less than 15 years for her crime would be unfair and unjust. As it explained at sentencing, "we think that the thirteen-year reduction not only accounts for her substantial assistance to the government, but generously accounts for her substantial assistance to the government. The defendant's motion to go further than that oversells Ms. Trimm's usefulness to the government."
By not filing the § 3553(e) motion, the Government intended to prevent the Court from weighing the nature and extent of Trimm's cooperation in deciding if it would be appropriate to impose a sentence of less than 15 years. However, the prosecutor's role is limited to determining if a defendant provided substantial assistance.
The Government's decision does not survive careful analysis. Section 5K1.1 and § 3553(e) do not grant prosecutors a general power to control the length of sentences. Instead, the prosecutor's discretion under these provisions is limited to the substantial assistance issue, which is a question best left to the discretion of the officers receiving that assistance. The prosecutor's role is limited to determining whether the defendant has provided substantial assistance, advising the sentencing court as to the extent of that assistance, and recommending a substantial assistance departure. See 5K1.1 & cmt. n.3. "The desire to dictate the length of a defendant's sentence for reasons other than his or her substantial assistance is not a permissible basis for exercising the government's power under § 3553(e) [or 5K1.1]." United States v. Stockdall , 45 F.3d 1257, 1261 (8th Cir. 1995).
"[T]he government cannot base its ... decision on factors other than the substantial assistance provided by the defendant." United States v. Rounsavall , 128 F.3d 665, 669 (8th Cir. 1997). "Once the government concludes that a defendant has provided substantial assistance ... it should make the downward departure motion and then advise the sentencing court if there are unrelated factors ... that in the government's view should preclude or severely restrict any downward departure relief." United States v. Anzalone , 148 F.3d 940, 942 (8th Cir. 1998), reh'g en banc granted, opinion vacated (Sept. 22, 1998), opinion reinstated, reh'g en banc denied , 161 F.3d 1125 (8th Cir. 1998).
The Government conflates its decision to make a motion under § 3553(e) with its assessment of what sentence is appropriate under § 3553(a). The Government could have and should have in this case said we find that Trimm's assistance was substantial and she merits relief under § 3553(e) to permit the Court to sentence her below the mandatory minimum, however we feel her actions were so heinous (among other relevant facts), that even in consideration of the § 3553(a) factors, she still merits a sentence above the mandatory minimum. Making a motion under § 3553(e) does not necessarily mean the Government endorses a sentence below the mandatory minimum. Instead, it means the Government determined that the defendant substantially assisted and the Court can credit the defendant's cooperation as it finds appropriate.
Accordingly, the Government's refusal to move under § 3553(e) was not rationally related to any legitimate Government end. It was, in fact, based upon an unconstitutional motive, to wit, limit this Court's ability to render a fair and just sentence to Hillary Trim. She is therefore entitled to relief in the form of compelling the Government to make a § 3553(e) motion.
2. Contractual Claim
Alternately, even if the Government's decision survived the above constitutional analysis, it most certainly fails under the "more searching" review guaranteed to Trimm in the face of her Cooperation Agreement. See Hernandez , 404 F. App'x at 522 (citing United States v. Leonard , 50 F.3d 1152, 1157 (2d Cir. 1995) ("[W]here a plea agreement provides that the government will file a ... [substantial assistance] motion if it determines that the defendant has provided substantial assistance, a court's review of the government's decision not to file a ... [substantial assistance] motion is more searching.")).
Long ago, the Supreme Court analogized plea agreements to contracts in which the Government induces a plea by making certain promises. Santobello v. New York , 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). A presumption of fairness underlies an agreement between the defendant and prosecutor, so that when a prosecutor makes a promise and obtains in return cooperation from the defendant, the promise must be kept. See id. at 261–62, 92 S.Ct. 495. In Santobello , the Court emphasized the importance of ensuring some kind of judicial review to enforce such agreements. Id. at 262, 92 S.Ct. 495 ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."). The primary judicial purpose in reviewing plea and cooperation agreements "is to ascertain and give effect to the parties' intent as reflected in the language of the agreement." Hernandez , 404 F. App'x at 522 (citing Compagnie Financiere de CIC et de L'Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith Inc. , 232 F.3d 153, 157 (2d Cir. 2000) ). At sentencing, Trimm's defense counsel spoke about the level of trust that goes on when cooperating.
Cooperation agreements, like plea agreements, are also interpreted according to contract law principles. United States v. Vaval , 404 F.3d 144, 152 (2d Cir. 2005). They are construed "strictly against the government" and courts should "not ‘hesitate to scrutinize the government's conduct to ensure that it comports with the highest standard of fairness.’ " Id. (quoting United States v. Lawlor , 168 F.3d 633, 637 (2d Cir. 1999) ). " ‘To determine whether a plea agreement has been breached, a court must look to what the parties reasonably understood to be the terms of the agreement.’ " Id. (quoting Lawlor , 168 F.3d at 636 ). Prosecutors must meticulously perform their obligations under plea or cooperation agreements, since such agreements "require defendants to waive fundamental constitutional rights." Id.
In accordance with contract law principles, courts employ a subjective standard of good faith when analyzing whether the Government has held up its end of a cooperation agreement. Gerinson , 426 F. Supp. 2d at 187. Where a defendant contends that the Government has breached a cooperation agreement by refusing to make a substantial assistance motion, "we will look to see if the government has lived up to its end of the bargain and whether the government acted fairly and in good faith." United States v. Doe , 741 F.3d 359, 362 (2d Cir. 2013) (internal quotations omitted). Specific performance is an appropriate remedy for a prosecutor's breach of a Cooperation Agreement. See United States v. Knights , 968 F.2d 1483, 1486 (2d Cir. 1992) ; Rexach , 896 F.2d at 713–14 ; see also United States v. Harris , 188 F. Supp. 2d 294, 297 (W.D.N.Y. 2001) (holding that if in fact the Government has acted in bad faith, the remedy is to enforce the agreement, as contemplated by the parties).
"Because the prosecution often is in the best position to evaluate the quality of a defendant's cooperation and to decide whether to make a substantial-assistance motion, this decision, like other prosecutorial determinations, may be subjected to only limited review." Knights , 968 F.2d at 1487. Accordingly, "where the agreement is conditioned on satisfaction of the obligor, the condition is not met ‘if the obligor is honestly, even though unreasonably, dissatisfied.’ " Rexach , 896 F.2d at 713 (quoting Restatement (Second) of Contracts § 228, cmt. a).
Therefore, while a prosecutor is afforded wide discretion, his or her refusal to make a substantial assistance motion may not be a product of bad faith. Harris , 188 F. Supp. 2d at 300 ("[W]here the explicit terms of a cooperation agreement leave the acceptance of the defendant's performance to the judgment of the prosecutor, the prosecutor may reject the defendant's performance provided he or she is honestly dissatisfied."). "[T]he prosecution's determination that it is dissatisfied with the defendant's performance under the cooperation agreement ... may not be reached dishonestly or in bad faith." United States v. Khan , 920 F.2d 1100, 1105 (2d Cir. 1990).
Courts in this Circuit and elsewhere have examined claims relating to a prosecutor's decision not to move for a downward departure pursuant to similarly worded agreements as the Cooperation Agreement here. It is well-settled that prosecutors have broad latitude under such circumstances. See, e.g. , United States v. Resto , 74 F.3d 22, 25 (2d Cir. 1996) ; Knights , 968 F.2d at 1487 ; Rexach , 896 F.2d at 713.
There is no doubt that Trimm's Cooperation Agreement contained language preserving the Government's discretion whether to file any kind of substantial assistance motion: "[The Government] ... may , in its sole discretion ... move for a downward departure pursuant to either or both U.S.S.G. § 5K1.1 and/or 18 U.S.C. § 3553(e)." Cooperation Agreement ¶ B(1) (emphasis added). And without question, the Cooperation Agreement does not expressly obligate the Government to file a substantial assistance motion.
The Government's repetitive invocation of "discretion" as an answer to these questions has certainly been noted, both by this Court and by the Second Circuit panel at oral argument. See http://www.ca2.uscourts.gov/decisions/isysquery/9e21f69e-31ae-417d-b118-50029530b3e2/671-680/list/("The Court: In your sole discretion—you say that half a dozen times too.").
However, it bears mentioning that the record sheds no light on the degree of discretion, if any, the parties intended for the Government to retain by the use of the permissive word "may," as opposed to the mandatory "will" or shall." See Alan Ellis, Let Judges Be Judges! Downward Departures, Part 6: Substantial Assistance, Crim. Just., SPRING 1999, at 53, 54 (citing United States v. Hernandez , 17 F.3d 78, 82–83 (5th Cir. 1994) ). This Court has genuine doubts that either party meant for the Government to retain unchecked discretion simply by using "may." Id. Nor can the Court accept that Trimm knowingly and intentionally walked into an illusory bargain.
In any event, "there is little distinction between agreements that provide that the government will file a section 5K1.1 [and/or § 3553(e) ] motion if the defendant provides substantial assistance and those in which the government retaining "unfettered" and "sole" discretion may do so if the defendant renders substantial assistance." Ellis, supra , at 57. Both agreements still require that the Government act in good faith, and/or as described above, that the prosecutor's refusal is not based upon an unconstitutional motive or not rationally related to a legitimate government end. Id.
As explained above, after determining that Trimm did provide substantial assistance, the Government moved for merely a five level departure under 5K1.1. This conveniently still placed the Guidelines range above the mandatory minimum. Again, the Government has provided no reason why it declined to make a § 3553(e) motion. It has never once alleged that Trimm did not in fact substantially assist or that she somehow breached either the Plea or Cooperation Agreements. Nor has it asserted that it was honestly dissatisfied with Trimm's cooperation.
At Trimm's original sentencing, the refusal of the Government to make a § 3553(e) motion, if accepted by the Court, would have deprived her of the full benefit of her cooperation alone. This Court determined, as it is required, that her cooperation entitled her to a 10 level departure resulting in a level 30 with a Guidelines range of 97 to 120 months (eight years and one month to 10 years). However, without a § 3553(e) motion, this Court would have been required to sentence her to 180 months (15 years). This would have been based on a criminal history category of I, a level 35, resulting in a Guidelines range of 168 to 210 months. Thus she would have lost five levels from her cooperation entitlement solely for no reason other than the Government's arbitrary refusal to make a § 3553(e) motion.
a. Dissatisfaction with a defendant's efforts
By contrast, in Rexach , 896 F.2d at 711–12, the defendant entered into a cooperation agreement with the Government which provided that if he "made a good faith effort to provide substantial assistance" to the Government, then the Government would move at sentencing for a downward departure pursuant to § 3553(e) and 5K1.1. The defendant pleaded guilty and shortly before sentencing, the Government informed him that it would not move for a downward departure because it did not find he had made a good faith effort to provide substantial assistance. Id. at 712. The Government explained that his information "had been unreliable and worthless, he offered no assistance in investigating the information, no successful investigations proceeded based on that information, he provided no assistance in the prosecution of any other persons involved in large scale narcotic operations, and he failed to stay in contact with the authorities." Id.
The defendant then moved for an order, inter alia , directing specific performance of the agreement, claiming the Government was in breach. Id. The district court denied the motion, holding that the cooperation agreement placed the determination of whether the defendant had provided "substantial assistance" with the prosecutor and, since the prosecutor had made a good faith determination that the defendant had not provided substantial assistance, the Government was not in breach. Id.
On appeal, the Second Circuit agreed with the district court
that where, as here, a cooperation agreement provides for a motion for downward departure on condition the defendant provide substantial assistance to be determined in the discretion of the prosecutor, then the Court's role is limited to
deciding whether the prosecutor has made its determination in good faith. If so, the prosecutor has not breached the agreement and the Court's role is at an end.
Id. at 714 (internal quotations omitted). It concluded that "the district court correctly supported the government's rejection of Rexach's ostensible cooperation, for the government had good reasons for finding that Rexach had not made a good faith attempt to provide substantial assistance." Id.
By contrast, the Government in this case has never once rejected Trimm's cooperation or found that she did not provide substantial assistance. It has never even expressed the slightest bit of dissatisfaction with her assistance.
Similarly, in Khan , 920 F.2d at 1103, the defendant entered into a cooperation agreement with the Government which provided that if the Government determined that the defendant "made a good faith effort to provide substantial assistance to agents of the DEA and other law enforcement agencies," it would move at sentencing for a downward departure. The defendant pleaded guilty and prior to sentencing, the Government informed him that it believed he had failed to live up to his agreement, and that it would make no motion pursuant to 5K1.1 to permit the court to sentence him below the Guidelines range. Id. Defense counsel acknowledged that the Government had previously "made me understand that the proceedings, discussions with my client were not going well." Id.
Thereafter, the defendant "sought a hearing to enable the court to decide the disputed issues of fact concerning the nature and extent (or lack thereof) of Mr. Khan's offerings to Government agents." Id. at 1103–04 (internal quotations omitted). Defense counsel insisted that the defendant had made good faith efforts to provide the Government with substantial information but did not elaborate on the nature of his "offerings" nor allege that the Government acted in bad faith in withholding the motion. Id. at 1104. The district court found the defendant had made no showing that the Government had acted in bad faith and denied the request. Id. The defendant appealed.
On appeal, the Second Circuit noted that "unlike Rexach , the prosecutor did not reveal its reasons for refusing to request a downward departure, having previously only advised defense counsel generally that Khan had not lived up to his part of the agreement." Id. at 1105–06. While acknowledging that it might "have been helpful had the government explained why it believed that Khan had not fulfilled his bargain instead of standing mute at sentencing," it nevertheless affirmed because the defendant never took the first step of raising the issue of the prosecutor's bad faith. Id. at 1106.
Instead, defense counsel merely said: "I suppose ... I am saying that they acted in bad faith, but I don't really mean that." Id. (internal quotations omitted). At a proceeding prior to sentencing, defense counsel actually advised the court that "the government's position that Khan had not cooperated may very well be absolutely meritorious." Id. (internal quotations omitted). The Second Circuit concluded that "with no allegation before it by the defendant that the government was not honestly dissatisfied, the district court properly denied the request to review the government's refusal to move for downward departure at sentencing." Id.
As in Khan , the Government in this matter did not reveal its reasons for refusing to request a downward departure under § 3553(e). By contrast though, the Government here never advised or even suggested to defense counsel in any fashion that Trimm had not lived up to her part of the agreement. Instead, the defense (and the Court for that matter) was under the impression that the Government was honestly satisfied with Trimm's cooperation based on its affirmative representations of same. Moreover, Trimm took the first step to allege bad faith while defense counsel in Khan did not.
In United States v. Reeves , 296 F.3d 113, 114 (2d Cir. 2002), the defendant pleaded guilty pursuant to a plea/cooperation agreement to conspiracy to distribute and to possess with the intent to distribute a controlled substance. The agreement required him "to satisfy certain cooperation requirements, including the complete, truthful disclosure of all information requested by the Government, attendance at meetings as required, disclosure of certain tangible evidence, truthful grand jury and trial testimony, and discontinuance of all criminal behavior." Id. The Agreement also provided that
if [the United States Attorney's] Office determines that the defendant has provided substantial assistance in an investigation or prosecution, and if he has fully complied with the understandings specified in this Agreement, [the United States Attorney's] Office will file a motion, pursuant to Section 5K1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e) requesting the Court to sentence the defendant in light of the factors set forth in Section 5K1.1(a)(1)-(5).
Id.
The defendant was released on bail, and for the next year or so, he cooperated with the Government. Id. at 115. The Government ultimately claimed that the information the defendant provided or attempted to provide was insufficiently specific to be of any use. Id. Eventually, the Government moved to revoke the defendant's bail on the basis that he had breached the terms of the agreement and that he failed to provide substantial assistance. Id. He then moved to compel the Government to make a downward departure motion. Id. The district court held extensive hearings on the motion and eventually denied the motion in its entirety. Id.
On appeal, the Second Circuit held that the defendant did not meet his burden of showing prosecutorial bad faith. Id. at 117. Finding that it was "undisputed that the information Reeves provided did not lead to anything satisfactory to the United States," the Court concluded that "[t]he standard is honest, even if unreasonable, dissatisfaction of the government and the district court's factual finding that the government's dissatisfaction with Reeves's assistance was honest is not clearly erroneous." Id. (internal citations omitted).
Unlike in Reeves , the Government in this matter has never alleged any dissatisfaction with Trimm's cooperation. It has never alleged that the information she provided or attempted to provide was not of any use. To the contrary, it was critical in convicting LaPorte.
In Knights , 968 F.2d at 1485, the defendant entered into a plea agreement "that included his pledge to cooperate with the government and testify, if necessary, as a government witness." The relevant language of the agreement provided that "[d]efendant agrees to cooperate fully with the United States Attorney's office, the Drug Enforcement Administration, and such other law enforcement agencies as either of the foregoing may require by: (a) providing truthful information and testimony concerning trafficking ...." Id. It further indicated that the Government "reserves the right to evaluate the nature and extent of defendant's cooperation and to advise the Court of the nature and extent of any such cooperation at the time of sentencing." Id. The Government agreed "that if, in the sole and unfettered discretion of the United States, the circumstances of defendant's cooperation warrant a departure by the Court from the Sentencing Guidelines range determined by the Court to be applicable," it will make a 5K1.1 motion. Id.
Following execution of the agreement, the defendant pleaded guilty and testified at the trial of one of his co-defendants. Id. The co-defendant was acquitted on all counts. Id. Thereafter, the Government advised defense counsel that it would not move for a downward departure, and disclosed no reason for this decision. Id. At sentencing, the defendant contended that the Government acted in bad faith when it refused to make a substantial assistance motion. Id. In response, the Government articulated several reasons for its decision to withhold the motion, and the district court credited those reasons in finding the Government acted in good faith. Id. The defendant appealed, arguing the district court erred in finding the Government acted in good faith and that he was entitled to a hearing to present evidence. Id.
On appeal, the Second Circuit found that the defendant properly asserted the Government acted in bad faith and that even when reviewed under the permissive "subjective good faith standard," "none of the reasons offered by the Government is sufficient, as a matter of law, to justify its conduct." Id. at 1487. The Government had offered the following reasons:
1. Knights' cooperation was untimely.
2. Knights was more culpable than co-defendant McAdoo, against whom he testified.
3. Knights pled guilty only because his brother had done so.
4. The plea agreement benefited [sic] Knights in other ways.
5. The clause in the plea agreement that promised the possibility of a substantial-assistance motion "was not something that was bargained for."
6. Knights's trial testimony was "inconsistent" with the testimony of his brother.
Id. at 1487–88.
The Second Circuit concluded that reasons one through four "all relate[d] to circumstances that preceded the making of the agreement, and the government was aware of them at the time it promised to consider making the substantial-assistance motion." Id. at 1488. It explained that "[n]ot only would it be unfair for the government to rely upon such known, pre-agreement circumstances as reasons for not moving, it would have been fraudulent to have induced a defendant's plea with a promise that the government already knew it was not going to keep." Id. The Court found reason five was frivolous as the clause was part of the agreement, and that reason six was the only reason that "is addressed to whether or not Knights performed his part of the agreement." Id.
Following the execution of the plea agreement, the only cooperation requested of the defendant was to testify against his co-defendant, which he did. Id. The agreement also required him to testify truthfully, and if he failed to do so, the Government would be justified in refusing to make the substantial assistance motion. Id. However, the Government did not claim that the defendant did not testify truthfully; it merely alleged that his testimony was "inconsistent" with that of his brother. Id. The Second Circuit pointed out that "[f]rom all that appears in this record, it may well be that his brother, not Knights, was untruthful." Id.
The Court concluded:
Since none of the six reasons advanced by the government for withholding a substantial-assistance motion is sufficient, and since the district court's conclusory finding of good faith is not supported by reference to any other possible reasons, we reject the sentence that was imposed. We cannot uphold the district court's good-faith finding without knowing the basis for it.
Id. It vacated the sentence and remanded "for further proceedings on the issue of whether the government acted in bad faith in refusing to move for a downward departure." Id.
In Knights , the Government offered six reasons for its decision to withhold the motion, and on appeal, the Second Circuit rejected all of those reasons, vacated, and remanded for further proceedings to determine whether the Government acted in bad faith.
Unlike in Knights , the Government in this matter has offered no reason for its decision to withhold the motion.
In United States v. Imtiaz , 81 F.3d 262, 263 (2d Cir. 1996) (per curiam), the defendant, arrested for his role in a heroin-trafficking conspiracy, agreed to assist the authorities in its investigation of other heroin dealers. In exchange, the Government agreed to move for a downward departure if it determined that the defendant's assistance was substantial. Id. The defendant then pleaded guilty. Id.
It turned out that none of the defendant's information amounted to anything, and he ruined an undercover operation he was involved in by starting an altercation with the drug trafficker. Id. The Government notified the defendant that it would not move for a substantial assistance downward departure. Id. at 264. At sentencing, the defendant argued that the Government was acting in bad faith by refusing to move for a substantial assistance departure. Id. The district court rejected his arguments. Id. Following sentencing, the defendant appealed. Id.
On appeal, the defendant argued that the district court erred by, inter alia , imposing a sentence without conducting a hearing on the bad faith issue. Id. In response, the Government explained that his assistance was not substantial and emphasized that his altercation undermined the undercover operation. Id. The Second Circuit concluded that given the "substantial weight" that must be given "to the government's evaluation of the extent of the defendant's assistance," it could not be said that this reason was insufficient. Id. (internal quotations omitted). It further noted that the defendant did not proffer any evidence contradicting the Government's explanation. Id. Accordingly, it found that the district court did not err by refusing to hold a hearing. Id.
Unlike in Imtiaz where the defendant's information amounted to nothing and he ruined an undercover operation, Trimm's information resulted in LaPorte's conviction on Count 2, and corroboration of Bailey's testimony on other counts of conviction. Moreover, there have been no allegations that Trimm's cooperation or actions negatively affected the investigation of LaPorte, or others, in any manner.
In United States v. Tarbell , 728 F.3d 122, 124 (2d Cir. 2013), the defendant entered into separate plea and cooperation agreements with the Government. The plea agreement provided that, in exchange for the defendant pleading guilty, the Government would charge him by information with one count of conspiracy to possess with the intent to distribute and to distribute marijuana. Id. Pursuant to the amount of drugs and his prior felony drug conviction, he faced a mandatory 10 year minimum. Id. The cooperation agreement, based on his forthcoming assistance to the Government in its investigations of drug trafficking activity, stated that
[a]t or before the time of sentencing, the U.S. Attorney's Office will advise the Court of the nature and extent of the cooperation and assistance provided by the Defendant pursuant to this Agreement. If the U.S. Attorney's Office determines, in its sole discretion, that the Defendant has provided "substantial assistance" in the investigation or prosecution of other persons who have committed offenses, it may, in its sole discretion, credit the defendant in one or more of the following ways: (i) move for a downward departure pursuant to either or both U.S.S.G. § 5K1.1 and/or 18 U.S.C. § 3553(e) ; or (ii) move to dismiss one or more allegations filed pursuant to 21 U.S.C. § 851 concerning the defendant's conviction for one or more felony drug offenses that trigger the enhanced penalty provisions of 21 U.S.C. § 841(b)(1). However, the U.S. Attorney's Office has not promised that such motion(s) for departure or to dismiss will be made. Whether and how to credit any proffered cooperation and assistance is within the sole discretion of the U.S. Attorney's Office.
Id. at 124–25.
Following the defendant's guilty plea and prior to his sentencing, the Government filed a confidential letter with the district court stating that it would not move for a downward departure under 5K1.1 or § 3553(e), because the defendant had not provided "substantial assistance" to the Government's drug trafficking investigations. Id. at 125. The Government explained that he had, in fact, provided no assistance to the Government to date, "substantial or otherwise." Id. Moreover, he had provided no assistance despite numerous opportunities to do so. Id.
The defendant was ultimately sentenced to the mandatory 10 year minimum. On appeal, he argued inter alia , that the Government breached the cooperation agreement by not making in good faith a substantial assistance motion on his behalf prior to sentencing. Id. at 128. The Second Circuit found that "[t]here are no allegations here that the government engaged in constitutionally impermissible action" and thus it could not disturb the Government's decision, id. , because the Government has "a power, not a duty, to file a motion when a defendant has substantially assisted," Wade , 504 U.S. at 185, 112 S.Ct. 1840.
With respect to the cooperation agreement and the wide latitude afforded to the prosecutor's decision not to file a motion, the Court found no evidence that the Government did not act in good faith. Tarbell , 728 F.3d at 128. Specifically, "the [G]overnment explained that it refused to move for a downward departure because defendant neither made controlled purchases of narcotics nor introductions of undercover agents to drug traffickers; he has provided no information that has led to the execution of search warrants or even the identification of drug trafficking locations." Id. , n.7 (internal quotations omitted). Accordingly, the Second Circuit "decline[d] to disturb the government's decision." Id. at 128 (internal quotations omitted).
In contrast with the defendant in Tarbell who provided no assistance despite numerous opportunities to do so, Trimm provided all the assistance that was asked of her.
The theme among Second Circuit cases in which the Court upheld the Government's decision not to make a substantial assistance motion pursuant to a cooperation agreement or otherwise? The Government provided an explanation as to why it was dissatisfied with the defendant's efforts and thus found that the particular defendant did not substantially assist: the defendant provided unreliable and worthless information ( Rexach ), the information amounted to nothing ( Imtiaz ), or the defendant provided no assistance whatsoever ( Tarbell ).
In light of the deference accorded a prosecutor's decision not to file such a motion, the Government's proffered reasons, and the lack of any evidence to refute those explanations, the Court in each instance upheld the Government's decision. In Khan , the Court took issue with the Government's lack of an explanation, though noting it had previously advised defense counsel that the defendant had not lived up to his end of the bargain, but nevertheless upheld the Government's decision not to file a motion because the defendant never took the step of alleging bad faith.
In most cases, there is no "substantial threshold showing" of an improper use of a § 3553(e) motion and therefore no basis even to inquire into the Government's motives. See, e.g. , Wade , 504 U.S. at 181, 112 S.Ct. 1840. This is not most cases.
Instead, Trimm has repeatedly alleged that the Government acted in bad faith in withholding a § 3553(e) motion. This allegation requires the Government to come forward and provide a reason. Roe , 445 F.3d at 208. The Government may rebut this allegation by explaining its reasons for refusing to depart. Id. The Government has offered no explanation whatsoever as to why it declined to make the motion, except to repeatedly point to the language in the Cooperation Agreement granting it the sole discretion to decide if and when to make such a motion—which to reiterate, the Court has serious skepticism that the parties actually intended for the Government to retain all power in this relationship.
The Government has conceded that Trimm was the only witness who could testify as to the facts of Count 2. It has never alleged that she provided unreliable or worthless information, never accused her of providing information that amounted to nothing, and certainly never professed that she provided no assistance whatsoever. It has never even expressed dissatisfaction with her cooperation. To the contrary, the Government has time and time again praised Trimm's cooperation. In fact, the Government explicitly described Trimm's efforts as "critical" and "essential" in holding LaPorte accountable.
Courts outside this Circuit have analyzed cases similarly. In United States v. Hardy , 325 F.3d 994, 995 (8th Cir. 2003), the defendant pleaded guilty to possession of ammunition by a felon pursuant to a plea agreement. The Government had agreed to move for a downward departure under 5K1.1, § 3553(e), or Rule 35(b) if the defendant provided "substantial assistance." Id. Substantial assistance was defined as "cooperation that leads to the prosecution, plea, or conviction of another individual for a criminal offense." Id. The agreement also provided that "[t]he discretion to make a motion for a downward departure based on substantial assistance lies solely with the government." Id. The defendant asserted that he provided substantial assistance and the Government breached the plea agreement by refusing to move for a downward departure. Id. The district court denied his requests for discovery, an evidentiary hearing, and specific performance. Id.
On appeal, the Eighth Circuit found that the defendant did not make the requisite "substantial threshold showing of prosecutorial discrimination, irrational conduct, or bad faith." Id. at 996 (internal quotations omitted). He did not allege that the Government refused to file the motion for constitutionally impermissible reasons but rather argued that its refusal was irrational and in bad faith, in light of the information he provided to law enforcement on a fellow inmate's escape. Id. The Government had previously explained that the information he supplied was of little value, and the Court found no irrationality or bad faith in this explanation. Id. The Court concluded that in the absence of a showing of prosecutorial discrimination, irrational conduct, or bad faith, the defendant was not entitled to any remedy. Id.
In United States v. Villareal , 491 F.3d 605, 606 (6th Cir. 2007), the defendant pleaded guilty pursuant to a plea agreement to a one count indictment charging him, and eight co-defendants, with the distribution and possession with the intent to distribute five kilograms of cocaine. The agreement stated: "If in the sole discretion of the United States, the defendant provides substantial assistance, the United States will make a motion for downward departure pursuant to 5K1.1 of the Sentencing Guidelines or 18 U.S.C. § 3553(e), or both ...." Id. at 606–07. The defendant claimed that, as a result of his assistance, another defendant charged in the conspiracy pleaded guilty and he was thus deserving of a substantial assistance motion. Id. at 607. The Government did not move for a downward departure and the district court denied the defendant's motion to compel one. Id.
On appeal, the Sixth Circuit found that the language of the plea agreement obliged the Government "to analyze and determine whether substantial assistance had been rendered; they could not simply leave the question unanswered." Id. at 610 (internal quotations omitted). Yet, the Government "did not state that substantial assistance was not rendered by defendant. Rather, it left the court to assume or infer this by its refusal to file a motion for downward departure." Id. The Court found "[t]his ambiguity ... unnecessary, confusing, and contrary to the plea agreement. Thus, we hold that the government is required to advise the court and defendant of its factual determination of whether defendant provided substantial assistance." Id. Accordingly, it remanded to determine "whether the government exercised its discretion in deciding whether defendant provided substantial assistance." Id. at 611.
In reviewing cases in which a defendant challenged the Government's decision not to file a substantial assistance motion, the common theme is that the Government provided a reason why the defendant did not substantially assist or why it was dissatisfied with the defendant's cooperation. The record in this case is devoid of information concerning what quantity or quality of information and cooperation the parties contemplated that Trimm would provide in this case, and somehow did not. Not once has the Government argued Trimm did not substantially assist or that it was dissatisfied with her cooperation. Again, to the contrary, it praised her cooperation on numerous occasions.
b. A defendant's breach of an agreement
In addition to cases in which the Government declines to make a substantial assistance motion based on its dissatisfaction with the defendant's assistance or lack of assistance, another common occurrence is an allegation by the Government that the defendant breached the plea and/or cooperation agreement.
For example, in Doe , 741 F.3d at 362, the defendant pleaded guilty, pursuant to an agreement with the Government, to conspiring to violate federal narcotics laws and conspiring to commit money-laundering. The relevant portion of the agreement stated
[t]he defendant must at all times give complete, truthful, and accurate information and testimony, and must not commit, or attempt to commit, any further crimes. Should it be judged by the [United States] Attorney's Office that the defendant has failed to cooperate fully, has intentionally given false, misleading or incomplete information or testimony, has committed or attempted to commit any further crimes, or has otherwise violated any provision of this agreement, the defendant will not be released from his plea of guilty but this Office will be released from its obligations under this agreement ....
Id.
He cooperated with the Government for over two years, until he was arrested for assaulting his wife and daughter and driving while intoxicated. Id. Thereafter, the Government determined that the defendant had breached the agreement, and declined to make a motion under 5K1.11 or § 3553(e). Id. The defendant moved to compel the Government, pursuant to his agreement, to make such a motion. Id. at 361. The district court denied the request. Id. at 361–62.
On appeal, the Second Circuit concluded that "the unambiguous terms of the Agreement establish that the government had considerable discretion in deciding whether to file a motion under § 5K1.1 or § 3553(e), based in part on its assessment that Doe had remained free of criminal activities." Id. at 363. It found that "[t]he government's determination that Doe had committed the charged offenses ... was based on its own comprehensive investigation and thus made in good faith." Id. Accordingly, the defendant "failed to meet his burden of making a showing of bad faith that would rebut the government's explanation of its reasons." Id. at 364.
In Hernandez , 404 F. App'x at 522, discussed above, the defendant pleaded guilty to conspiracies involving firearms. Under the terms of his plea agreement, the defendant promised, among other things, to "commit no further crimes whatsoever." Id. After reviewing the district court's denial of the defendant's request to compel the Government to file a § 3553(e) motion, the Second Circuit concluded that "the prosecution was justified in refusing to file a § 3553(e) motion due to Hernandez's commission of further crimes." Id. at 523.
In Leonard , 50 F.3d at 1155, the defendant entered into an oral plea agreement with the Government shortly after his arrest, pursuant to which he would assist the Government in its investigation of his co-conspirators. For approximately two months, he provided his cooperation. Id. During that time, the Government sent the defendant a proposed written plea agreement with the following language:
If the Office determines that [Leonard] 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 with the sentencing court ... [that] will permit the court, in its discretion, to impose a sentence below the applicable sentencing guideline range.
Id. The defendant and his attorney signed the agreement and returned it to the Government for signature. Id.
During a subsequent proffer session to discuss the defendant's cooperation, the Government contended that he made statements inconsistent with his prior oral and written statements. Id. Further, the Government determined that he had breached his cooperation agreement by informing another criminal that he was working with the Government. Id. The Government then informed the defendant that he was not being truthful and, therefore, it would not execute the draft plea agreement. Id.
The defendant moved to enforce the plea agreement and to force the Government to make a 5K1.1 motion. Id. The district court denied the motion on the ground that he had not yet pleaded guilty. Id. at 1156. He eventually pleaded guilty but reserved his right to renew his motion, and prior to sentencing he again moved to compel the Government to make a 5K1.1 motion. Id. In opposition, the Government argued that no binding agreement existed but that even if it did, the defendant had breached it by interfering with its prosecution of another criminal and altering the story that he gave the Government at the time of his arrest, which it supported with written and oral statements. Id.
Despite evidence possibly refuting the Government's explanation, the district court denied the defendant's motion, citing the allegedly inconsistent statements and found that he had breached a condition of the agreement, namely that he not indicate that he was cooperating with the Government. Id. The defendant appealed, arguing that the Government breached the plea agreement by failing to make a 5K1.1 motion. Id. On appeal, the Second Circuit found that there was in fact a binding plea agreement and that remand was required for the district court to hold an evidentiary hearing to determine whether the Government acted in good faith. Id. at 1157.
In Resto , 74 F.3d at 24, the defendant entered into a cooperation agreement with the Government and agreed to plead guilty to a drug possession offense. He agreed to cooperate with the Government, in particular, to testify against another individual and "promised not to give false, misleading or incomplete information or to commit or attempt to commit any further crimes." Id. (internal quotations omitted). In return, the Government agreed that, if it determined the defendant met his obligations, it would file a motion pursuant to 5K1.1 and § 3553(e). Id. The defendant against whom he was scheduled to testify pleaded guilty on the morning of his scheduled trial and as a result, he was never called upon to testify. Id.
During the preparation of a pre-trial services report for the defendant's sentencing, officers learned that he had failed to disclose nearly a dozen earlier arrests even though agents had asked him about his past criminal history on several occasions. Id. He denied the prior arrests and thereafter fled, but was eventually captured. Id. at 24–25. He later pleaded guilty, prior to which the Government informed him that he had breached the cooperation agreement and it did not intend to move for a downward departure. Id. at 25. The district court found that the Government was not obligated by the terms of the agreement to move for a departure, and ultimately sentenced him to the mandatory minimum. Id.
On appeal, the Second Circuit rejected the defendant's contention that the district court erred by failing to find that the Government breached the cooperation agreement by refusing to move for a departure. Id. Noting the considerable discretion afforded to the Government by the terms of the agreement, the Court concluded that "[G]overnment's decision not to move for a downward departure was fair, and the prosecutor made it in good faith." Id. at 27. While the defendant did provide some help to the Government, he "repeatedly lied about his past criminal history, both before and after entering into the cooperation agreement, in violation of his promise to provide truthful, complete and accurate information. In addition, he violated his agreement not to commit further crimes." Id. (internal quotations omitted). For these reasons, there was "no doubt that Resto breached the agreement, and that the prosecutor had ample, good faith grounds to decline to move for a downward departure." Id.
In Roe , 445 F.3d at 203, the defendant pleaded guilty to various conspiracy, drug, weapons, arson, and money laundering claims. He entered into a cooperation agreement with the Government which provided that "if it determined that the defendant had in fact cooperated fully, provided substantial assistance, and otherwise complied with the agreement, the government would file a motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e)." Id. at 204 (internal quotations omitted). The agreement further stated that he would "provide truthful, complete and accurate information" and "not commit, or attempt to commit, any further crimes." Id. at 205.
The Government declined to file a § 3553(e) motion, alleging that the defendant breached the cooperation agreement. Id. at 204, 209. The defendant moved for, inter alia , specific performance, arguing the Government acted in bad faith in not making the motion. Id. at 206. Specifically, he contended that, "assuming arguendo that he had not been truthful during some of the proffer sessions, the government had knowledge of his untruthfulness before the cooperation agreement was executed, and therefore could not properly use pre-agreement statements or action] as bases to breach the defendant." Id. at 206 (internal quotations omitted). The district court denied the defendant's request for an evidentiary hearing and denied the motion. Id.
On appeal, the Second Circuit reiterated that "[t]he requirement that the government act in ‘good faith' demands only that the government have ‘honest dissatisfaction with the defendant's efforts.’ " Id. at 207 (quoting Reeves , 296 F.3d at 116 ). However, it emphasized that "the government may not base its dissatisfaction with a defendant's performance of an agreement on facts known to the government at the time the agreement is executed." Id. The Court concluded that "[i]f the government had honest dissatisfaction with the defendant's efforts, then, such dissatisfaction must have been based upon events that occurred before the cooperation agreement was executed." Id. at 208 (internal citation and quotations omitted). Therefore, the issue was "whether, as the defendant contends, there is evidence that would support a finding that the relevant facts were known to the government at the time the agreement was executed." Id.
According to the Government, four specific incidents constituted good faith bases to declare the defendant in breach. Id. at 208–09. The Court found "that the government had knowledge of the second and fourth alleged misrepresentations long before the cooperation agreement was signed." Id. at 209. As to the remaining two allegations, it concluded it was not clear exactly what the Government knew and when. Id. at 209–10. Because the defendant made a showing of bad faith by supporting his version of events "with at least some evidence," the Court vacated the judgment and remanded for an evidentiary hearing. Id. at 210 (internal quotations omitted).
On remand, the district court found that the Government in good faith believed the defendant had violated the cooperation agreement "by failing to fully disclose information related to his continuing to engage in drug dealing while supposedly cooperating with the government, and by refusing to meet with the government to discuss these allegations." United States v. Doe , 314 F. App'x 350, 351–52 (2d Cir. 2008) (summary order) (explaining district court's ruling). On appeal after remand, the Second Circuit concluded that the district court's findings as to these events and as to the Government's good faith were not erroneous and therefore the Government did not breach the cooperation agreement. Id. at 352.
Outside of this Circuit, in Anzalone , 148 F.3d at 940–41, the defendant pleaded guilty pursuant to a plea agreement to a cocaine distribution conspiracy offense. The plea agreement provided that he would truthfully cooperate with the Government and that "any cooperation provided by you will be considered by the government under Sentencing Guidelines § 5K1.1." Id. at 941 (internal quotations omitted). The defendant provided assistance, but the Government declined to file a 5K1.1 motion; the defendant then moved to compel its filing. Id. According to the Government, it received information that the defendant had recently used and possessed controlled substances, in violation of his plea agreement stating: "You shall not commit any additional crimes whatsoever." Id. (internal quotations omitted). The district court found that the Government's position was rational and denied the motion to compel. Id.
On appeal, the Eighth Circuit concluded that the Government's "refusal to file a substantial assistance motion was based entirely upon a reason unrelated to the quality of Anzalone's assistance in investigating and prosecuting other offenders." Id. The Court "note[d] the government has not conceded that Anzalone provided substantial assistance, only that he could make an adequate threshold showing of substantial assistance," and reversed and remanded for further sentencing proceedings. Id. at 942.
By contrast, the Government here has never once alleged that Trimm violated the terms of her Plea or Cooperation Agreements. Nor has the Government made the Court aware of anything further Trimm could have done to secure the motion, and that is because there is nothing more she could have done. As much was acknowledged during the Second Circuit panel at oral argument of this appeal, in which an exchange went something like this:
This is an unofficial transcription based solely on the recorded oral argument publicly available at http://www.ca2.uscourts.gov/decisions/isysquery/9e21f69e-31ae-417d-b118-50029530b3e2/671-680/list/, and not on any official transcript.
The Court: Is there any question that -- that she did everything she could have done?
The Government: No.
The Court: And -- and is there any question that she did everything that you knew she was going to be able to do at the time you entered into the plea agreement with her?
The Government: I'm not certain of that, but I'll assume for the record, Your Honor, that essentially we knew we wanted Ms. Trimm to testify in the -- in the trial where she did.
The Court: And she did. And she testified truthfully and completely, right?
The Government: Yes.
The Court: So -- so isn't there some unfairness in dangling out the carrot of 5K1.1 and 3553 and then saying, nuh-uh, when -- after she does everything she's supposed to do?
The Government: No, Your Honor.
This Court cannot conceive of on what basis the Government could have exercised its discretion in good faith and nevertheless determined that Trimm did not substantially assist or that it was honestly dissatisfied with her cooperation. The Government also cannot have it both ways; it cannot minimize the usefulness of her cooperation yet concede that it could not have proven a case against LaPorte in relation to Count 2 without her testimony. The latter of which was again conceded by the Government during the oral argument of this appeal.
Again, reference is made to http://www.ca2.uscourts.gov/decisions/isysquery/9e21f69e-31ae-417d-b118-50029530b3e2/671-680/list/(Government conceding that Trimm was the only witness who could testify to the facts of this particular count).
It is clear that the only reason the Government did not make a § 3553(e) motion was to prevent the Court from sentencing Trimm below the 15 year mandatory minimum. That is not a proper reason. That is a violation of the Cooperation Agreement. That is bad faith.
It was also based on an unconstitutional motive. See supra Constitutional claim, 24.
Accordingly, the Government has breached the terms of the Cooperation Agreement based on its acknowledgment of Trimm's substantial assistance but its nonetheless refusal to file a downward departure motion under § 3553(e). It did not act in good faith when it refused to make a § 3553(e) motion.
The proper method was to make a § 3553(e) motion based upon Trimm's complete cooperation and thereafter argue that she still merited a sentence above the mandatory minimum. The Government did not take the proper approach. Specific performance requires the Government to do what the contract requires—exercise its discretion in good faith. To compel the Government to do so requires it to make it a motion under § 3553(e).
IV. CONCLUSION
The United States has an indisputably compelling interest in discovering, neutralizing, convicting, and imprisoning monsters like LaPorte who sexually exploit vulnerable young women like Trimm and Bailey and prey on their children. It has an equally strong interest in encouraging the assistance of those individuals who happen to have valuable information about such predators. It does not, however, have any interest in making use of such truthful and accurate assistance, but then arbitrarily failing to give those assisting full credit. If the failure was to solely limit a Court's sentencing options, that would of course, be improper from both a constitutional and contract perspective.
Plea agreements are "an essential component of the administration of justice." Santobello , 404 U.S. at 260, 92 S.Ct. 495. It follows that cooperation agreements also play an important role in the criminal justice system. However, there is nothing just about requiring defendants to fulfill their obligations under such agreements unless the Government must do the same. See, e.g. , United States v. Doe , 865 F.3d 1295 (10th Cir. 2017). Trimm's Cooperation Agreement obligated the Government to exercise its discretion in determining whether to file a substantial assistance motion. Despite its duty, the Government violated the Constitution and failed to exercise its discretion in good faith, thereby breaching the Cooperation Agreement.
This Court has made the requisite determination that the Government's conduct was inconsistent with the parties' reasonable interpretation of what might constitute "substantial assistance," and finds it impossible to conceive of what more Trimm could have done or provided to satisfy the Government. She has in all material respects provided substantial assistance to the Government in its prosecution of LaPorte but nevertheless, the Government refused to file a § 3553(e) motion. The Government has never expressed any dissatisfaction with her efforts.
Since Trimm admittedly fulfilled completely, all of her obligations under the Cooperation Agreement, the Government's role is limited to determining whether she provided substantial assistance, advising this Court as to the extent of that assistance, and recommending a substantial assistance departure. The Government has veered from its responsibilities.
Trimm has demonstrated that the Government's refusal to make the motion was not rationally related to any legitimate government end, and alternatively, that the Government breached its obligation to exercise discretion in making downward departure motions in good faith. The remedy is to compel the Government to revisit its decision in good faith, which necessitates the Government make a § 3553(e) motion to relieve the Court from the mandatory minimum and allow sentencing in accordance with the applicable Guidelines and relevant considerations. That includes giving Trimm credit for 10 levels as the full value of her cooperation. For these reasons, defendant's motion to compel will be granted.
The Court considered holding a hearing but concluded it is unnecessary because the Government has never offered any reason it could theoretically substantiate with a hearing.
The only reason the United States Court of Appeals for the Second Circuit reversed Trimm's sentence was because this Court made no specific finding of an unconstitutional motive or bad faith by the Government. Trimm , 756 F. App'x at 110 ("But the district court did not find unconstitutional motive or bad faith."). This Court now finds that the Government's refusal to file a § 3553(e) motion is based on an unconstitutional motive and in bad faith.
Therefore, it is
ORDERED that
1. Defendant Hillary Trimm's motion to compel the United States of America to file a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) is GRANTED; and
2. The United States of America is directed to file a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) on or before April 2, 2020.
The Government may, of course, also renew its previous 5K1.1 motion at the appropriate time.
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IT IS SO ORDERED.