as a practical matter the defendant cannot claim to have met the objective terms of the agreement in the instant case when it is unquestionable that the defendant opted out of one of the terms -- testifying. Whether an individual fully cooperates or provides substantial assistance is a nebulous concept rendered more so in the instant case by the actions of the defendant.
Applying the aforementioned standards, there is little question that the government was not required to file a substantial assistance motion. Dealing first with Wade, there has been no serious suggestion on the part of the defendant that the prosecutor's actions were in any way driven by an unconstitutional motive. In response to a cue from the Court, defendant's counsel raised due process concerns. But as Wade makes clear, the constitutional infirmities it contemplated went to improper motive such as race or religion. 112 S. Ct. at 1844. The defendant, rather than making the requisite threshold showing which would entitle him to an evidentiary hearing, has made no showing of unconstitutional motive.
As for bad faith, the defendant has likewise failed to make the requisite threshold showing which would entitle him to a hearing. First, the defendant's agreement, like the one in Jones, imposed upon the government a contingent obligation predicated on the finding of substantial assistance. Like Jones, when the Departure Committee concluded that the defendant had failed to provide substantial assistance, the contingent obligation was not triggered. Second, this case differs from Jones in several significant respects which remove it from that class of cases which appear to have reached an unfair result. The relevant language of the agreements is different. In Jones the language of the agreement provided that the government "retains its discretion concerning whether to file a motion for a reduction in his sentence. . . ." 58 F.3d at 690. In the present case the language stated: "your client understands that the determination of whether he has provided substantial assistance is within the sole discretion of the United States Attorney for the District of Columbia and is not reviewable by the Court." In the Court's view, this language is sufficiently different to require a different outcome, although in light of the sweeping pronouncement in Jones the Court is unclear if it is a difference that the court of appeals would treat as significant.
Perhaps the most significant difference is that unlike the case in Jones, there is no suggestion that this defendant complied with the terms of the agreement. In fact, the overwhelming evidence before the Court is that the defendant did not cooperate fully. In this case the defendant gave the government limited information, information of no value, and inaccurate and incomplete information regarding Mr. Blackstock's and Mr. Barker's activities. Jones involved the difficult situation of a defendant fully satisfying the technical requirements of the agreement, i.e., full cooperation, without satisfying the subjective element of giving substantial assistance. In the present case there is no suggestion that the defendant has complied with either the objective or subjective obligations of the agreement. In addition, there is no suggestion in this case that the government submitted inaccurate information to the Departure Committee. Rather, the government's action of reviewing thoroughly the information in the application with defendant's counsel is to be commended.
The defendant has presented no evidence of bad faith aside from his claim of certain side agreements with the government. However, reliance on understandings outside the terms of the agreement takes the defendant farther and farther away from the basis of his bad faith claim -- the contract itself. A predicate to arguing that the government acted in bad faith in complying with the terms of the agreement must be establishing that the government had an obligation in the first place. The government's obligation here is a contingent one -- contingent on the defendant's meeting his obligations, and in the present case there is little evidence that the defendant did this.
In this Court's view the defendant seeks to gain the benefit of his bargain without suffering the burdens of that bargain. Unfortunately for the defendant, it takes more than a mere promise to cooperate to garner the benefits of cooperation. Accordingly, the Court will not hold an evidentiary hearing, will not require the government to submit its notes for review by the Court, and denies the defendant's motion to compel.
July 2nd, 1996
Thomas F. Hogan
United States District Judge