DOMINGO REXACH, PETITONER V. UNITED STATES OF AMERICA No. 90-5212 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A) is reported at 896 F.2d 710. The opinion of the district court (Pet. App. B) is reported at 713 F. Supp. 126. JURISDICTION The judge of the court of appeals (Pet. App. D) was entered on February 20, 1990. A petition for rehearing was denied on April 24, 1990 (Pet. App. C). The petitin for a writ of certiorari was filed on July 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Section 3553(e) of Title 18 and Sentencing Guideline Section 5K1.1 provide that with respect to a defendant who has cooperated with the government, a sentencing court may impose a sentence below the statutory minimum and below the recommended Guidelie range on the government's motion. The question presented is whether, in the circumstances of this case, the government was obligated to request favorable sentencing treatment for petitioner. STATEMENT Petitioner pleaded guilty in the United States District Court for the Southern District of New York to one count of distributing cocaine within 1000 feet of a public school, in violation of 21 U.S.C. 845a(a). He was sentenced to a term of 14 months' imprisonment, to be followed by a six-year term of supervised release. The court of appeals affired. Pet. App. A. 1. The pertinent facts are summarized in the opinion of the court of appeals. Pet. App. A2-A3. On August 8, 1988, petitioner was charged with distributing three vials of cocaine near an elementary school (Count 1) and with possessing nine additional vials of cocaine with the intent to distribute them (Count 2). Petitioner and his counsel thereafter unsuccessfully attempted to negotiate a cooperation agreement with the government. In spite of the parties' failure to reach an agreement, petitioner identified the person who had supplied the cocaine to him and provided other information regarding the whereabouts of a heroin dealer. As a result of that information, three individuals were eventually arrested. In the ensuing weeks, however, petitioner neither contacted nor provided further assistance to the government. On October 6, 1988 -- approximately one week before petitioner's scheduled trial -- petitioner and his counsel again met with the prosecutor. Petitioner represented that he could introduce undercover officers to large-scale cocaine distributors and that he could also provide information regarding heroin distributors. Based on those representations, petitoner and the government entered into a cooperation agreement. Under the agreement, petitioner agreed to plead guilty to Count 1, which carried a mandatory minimum one-year term of imprisonment, and to cooperate fully with the government in its investigative efforts. In return, the government promised to dismiss Count 2 of the indictment and to advise the sentencing judge and the probation department regarding the nature and the extent of petitioner's cooperation. In addition, the agreement provided: (I)f it is determined by this Office that (petitoner) has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, this Office will file a motion, (a) pursuant to (18 U.S.C. 3553(e)) so that the sentencing Judge shall have authority to impose a sentence below a level established by statute as a minimum sentence, and (b) pursuant to Section 5K1.1 of the Sentencing Guidelines * * * advising the sentencing Judge of all relevant facts pertaining to that determination and requesting the Court to sentence (petitoner) in light of the factors set forth in Section 5K1.1(a)(1)-(5). Gov't C.A. Br. 6. Prior to sentencing, the government notified petitoner that it would not move for favorable sentencing treatment under Section 3553(e) and Sentencing Guideline Section 5K1.1, because it did not consider petitioner to have made a good faith effort to provide substantial assistance in the investigation and prosecution of other persons. The government stated that petitioner's information about large quantities of narcotics 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, having dropped out of sight for significant periods of time." Pet. App. A3. In view of these circumstances, the government concluded that petitoner "had not complied with the agreement and had offered only minimal assistance." Ibid. 2. Petitioner thereafter moved for an order directing specific performance of the cooperation agreement, or, in the alternative, declaring Section 3553(e) and Sentencing Guideline Section 5K1.1 unconstitutional. The district court denied relief. Pet. App. B. It first held that the government had not breached the cooperation agreement. The court stated that the coopertion agreement expressly "place(d) the sole responsibility and discretion for determining what constitutes 'substantial assistance' on the prosecutor." Id. at 3. Noting that its review was limited to determining whether the prosecutor had acted in good faith in refusing to file a "substantial assistance" motion, the court found that there was "a sufficient basis * * * to conclude that (petitioner) ha(d) not rendered 'substantial assistance.'" Id. at 3-4 & n.3. The court next rejected petitoner's constitutional challenge to Section 3553(e) and Sentencing Guideline Section 5K1.1. It held that since Congress could remove all sentencing discretion from the judiciary, it could condition a court's authority to sentence below the applicable statutory minimums and Guideline ranges on the prosecutor's determination that the accused had rendered substantial assistance to the government. Id. at 4-6. The court thereafter sentenced petitoner to a term of 14 months' imprisonment -- a sentence that was both within the Guidelines range and above the statutory mandatory minimum. 3. The court of appeals affirmed. Pet. App. A. The court stated that "(w)here there is a cooperation agreement and where, as here, it provides for a downward departure motion pursuant to the guidelines and incorporates the 'substantial assistance' language of the statute, then the prosecutor's discretion determines whether the defendant's conduct has risen to the level of 'substantial assistance' and thus, whether to make the motion." Id. at 4-5. That discretion, the court noted, is subject to review only to the extent that it is exercised "invidiously or in bad faith." Id. at 5. The court found that there was no such impermissible conduct in this case. Like the district court, the court of appeals found that "the government had good reasons for finding that (petitoner) had not made a good faith attempt to provide substantial assistance." Ibid. The court of appeals thus explained that although petitoner "arguably made some effort to offer information prior to entering into the agreement," once he signed the agreement he made "no effort to assist in verifying his later, apparently unreliable information, to keep in contact with the prosecutor, or even to notify the prosecutor of his whereabouts." Id. at 5-6. Under these circumstances, the court declined to "second guess the prosecutor." Id. at 6. ARGUMENT Petitioner does not challenge the constitutionality of 18 U.S.C. 3553(e) or Sentencing Guideline Section 5K1.1, which assign to the prosecutor the task of determining whether a criminal defendant should be considered for favorable sentencing treatment because he has "substantially assisted" the government. /1/ Rather, petitioner contends that a prosecutor's discretinary refusal to file a "substantial assistance" motion should always be reviewable to determine whether the prosecutor's decision was objectively reasonable. As the court of appeals held, however, neither the "substantial assistance" provisions nor the terms of petitoner's cooperation agreement provide any basis for reviewing the prosecutor's good faith determination that petitioner did not provide substantial assistance in this case. 1. Section 3553(e) of Title 18 provides that "(u)pon motion of the Government, the court shall have the authority to impose a sentence below a level estabished by statute as minimum sentence so as to reflect adefendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." Sentencing Guideline Section 5K1.1 similarly provides that a court may depart from the Guidelines sentencing range "(u)pon motion of the Government stating that the defendant has provided substantial assistance" to the government. As the courts of appeals have consistently held, a sentencing court has no authority to impose a sentence below the statutory minimums or the Guidelines ranges in the absence of a motion by the government. See, e.g., United States v. LaGuardia, 902 F.2d 1010, 1013-1017 (1st Cir. 1990); United States v. Alamin, 895 F.2d 1335, 1337 (11th Cir. 1990); United States v. Coleman, 895 F.2d 501, 504-505 (8th Cir. 1990); United States v. Francois, 889 F.2d 1341, 1345 (4th Cir. 1989), cert. denied, 110 S. Ct. 1822 (1990). The prerogative accorded to the government by Congress and the Sentencing Commission in promulgating the "substantial assistance" provisions is akin to the "exclusive authority and absolute discretion" enjoyed by the government in determining whether to prosecute, United States v. Nixon, 418 U.S. 683, 693 (1974), or what charges to bring, United States v. Batchelder, 442 U.S. 114, 124-125 (1979). See United States v. Huerta, 878 F.2d 89, 92 (2d Cir. 1989), cert. denied, 110 S. Ct. 845 (1990). Like decisions about whether and how to prosecute, the government's decision not to file a "substantial assistance" motion is not subject to judicial review. Id. at 94. See also United States v. Kuntz, 908 F.2d 655, 657 (10th Cir. 1990). To be sure, several courts of appeals have left open the question whether the bad faith refusal by the government to file a "substantial assistance" motion is subject to judicial scrutiny. See United States v. LaGuardia, 902 F.2d at 1017 & n.6; United States v. Poston, 902 F.2d 90, 100 n.11 (D.C. Cir. 1990); United States v. Justice, 877 F.2d 664, 668-669 (8th Cir. 1989); United States v. White, 869 F.2d 822, 829 (5th Cir. 1989). But the court of appeals in this case did not find that the government acted in bad faith, so there is no conflict between the decision in this case and the cases that have left open the question whether a court could review the government's decision not to make a "substantial assistance" motion where that decision is found to be in bad faith. Moreover, no court of appeals has ever held the government's refusal to file a "substantial assistance" motion to be in bad faith, even in situations in which the defendant provided greater assistance than petitoner furnished here. See United States v. Brown, 912 F.2d 453 (10th Cir. 1990); United States v. Spees, 911 F.2d 126, 127 (8th Cir. 1990) (defendant wore wire transmitter and later testified in prosecution of a co-defendant); United States v. LaGuardia, 902 F.2d at 1017-1018 (defendant identified others involved in criminal activity and gave information regarding the timing and location of a drug delivery); United States v. Coleman, 895 F.2d at 503 (defendant provided significant testimony against a drug kingpin); United States v. Smitherson, 889 F.2d 189, 190 (8th Cir. 1989) (defendant identified persons involved in gambling and drug activities and offered to set up drug deals). 2. A different result is not required because in this case there was a cooperation agreement. As the court of appeals recognized, petitoner's cooperation agreement fully delineated the duties of the respective parties: petitioner was to "cooperate fully" in investigative and prosecutorial efforts, and the government was to determine whether petitioner's cooperation amounted to substantial assistance. Pet. App. A45. The cooperation agreement thus accorded the prosecutor the same expansive prerogatives as the "substantial assistance" provisions themselves. Had petitioner wished to limit the prosecutor's discretion, he could have done so when he negotiated the coopertion agreement. /2/ He did not do so, however. Petitioner therefore may not complain about the prosecutor's discretionary refusal to file a "substantial assistance" motion in the absence of any indication that it was "invidious() or in bad faith." Id. at 5. Petitioner is incorrect in arguing that general contract principles allow courts to review the objective reasonableness of a prosecutor's refusal to file a "substantial assistance" motion. The question whether a defendant's cooperation has risen to the level of substantial assistance to the government "is self-evidently a question that the prosecution is uniquely fit to resolve." United States v. Huerta, 878 F.2d at 93. See also United States v. Chotas, No. 89-8427 (11th Cir. Oct. 2, 1990), slip op. 40. In such situations, when one party agrees to act only on the condition that it is satisfied with the other party's performance, "(i)f the agreement leaves no doubt that it is only honest satisfaction that is meant and no more * * * the condition does not occur if the obligor is honestly, even though unreasonably, dissatisfied." Restatement (Second) of Contracts, Section 228, comment a. See also id. at Section 205, comments a & d (bad faith typically requires some element of misconduct); 5 S. Williston, A Treatise on the Law of Contracts, Section 675A, at 190 (3d ed. 1961) (good faith requires performance to be satisfactory "in the exercise of honest judgment"). /3/ The contract created by the cooperation agreement in this case was plainly more akin to an employment agreement and other contracts where only honest satisfaction is required. Thus, the government was required only to exercise its discretion honestly, as the court of appeals held it did, Pet. App. A5, in order to comply with its obligations under the cooperation agreement. 3. Even if the prosecutor's exercise of discretion was subject to review for reasonableness, petitoner has failed to establish that he could have prevailed under that standard. As the district court stated, "the prosecutor has provided a sufficient basis for * * * conclud(ing) that (petitoner) has not rendered 'substantial assistance' to the Government." Pet. App. B4 n.3. Petitioner entered into the cooperation agreement after representing that he was could provide information about large-scale drug dealers. Despite petitioner's obligations under the agreement to "truthfully disclose all information," to "cooperate fully," to "attend all meetings at which his presence is requested," and to "truthfully testify," Gov't C.A. Br. 5, the courts below found that petitioner failed to assist the government in verifying apparently unreliable information, to keep in contact with the prosecutor, or to notify the prosecutor of his whereabouts. See Pet. App. A5-A6; Pet. App. B4 n.3. Petitioner does not contend that he rendered "substantial assistance" after the cooperation agreement was executed. Rather, petitoner asserts that he was willing to cooperate, but that there were rumors in the community that he was cooperating with law enforcement officers, which made his future cooperation dangerous and diminished the degree to which he could provide useful assistance. However, "substantial assistance" motions are devices to reward extraordinary levels of cooperation. See United States v. LaGuardia, 902 F.2d at 1017-1018. Defendants who expect to benefit from a "substantial assistance" motion may not decline to render full cooperation merely because it may prove dangerous. See United States v. Ortez, 902 F.2d 61, 64-65 n.** (D.C. Cir. 1990). Nor did petitoner's pre-agreement cooperation constitute "substantial assistance." The government did not promise to file a "substantial assistnce" motion if the initial information provided by petitoner was verified. Moreover, an agreement obligating petitoner to provide future cooperation would not have been required if the parties had regarded petitoner's preagreement cooperation as sufficient to satisfy the requirement of "substantial assistance." In similar situations, other courts of appeals have held that criminal defendants have failed to render "substantial assistance" to the governmentt. See United States v. Ortez, supra (although providing some cooperation, the defendant refused to wear a wire transmitter or to set up an undercover drug buy for an agent); United States v. Francois, 889 F.2d at 1343 (defendant provided unreliable information). Review by this Court of the factual question whether petitioner's assistance to the government was "substantial" is therefore unnecessary. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney OCTOBER 1990 /1/ The courts of appeals have uniformly upheld the constitutionality of the "substantial assistance" provisions. See, e.g., United States v. LaGuardia, 902 F.2d 1010, 1013-1017 (1st Cir. 1990); United States v. Lewis, 896 F.2d 246, 249 (7th Cir. 1990); United States v. Francois, 889 F.2d 1341 (4th Cir. 1989), cert. denied, 110 S. Ct. 1822 (1990); United States v. Huerta, 878 F.2d 89, 91-94 (2d Cir. 1989), cert. denied, 110 S. Ct. 845 (1990); United States v. Grant, 886 F.2d 1513 (8th Cir. 1989); United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990); United States v. Musser, 856 F.2d 1484, 1487 (11th Cir. 1988), cert. denied, 109 S. Ct. 1145 (1989). /2/ For example, petitioner could have specified that the information that predated the agreement regarding his cocaine supplier would constitute substantial compliance under the agreement. He also could have insisted that the prosecutor agree to leave the "substantial assistance" determination to the court. /3/ Professor Williston gives as an example a contract of employment, where an employer may discharge an employee "if he is in fact honestly dissatisfied with his work and did not use such dissatisfaction as a mere pretense." Id. Section 675A, at 196.