United States v. John Doe, Docket No. 04-5677-cr (L) (2d Cir. March 27, 2006) (Cardamone, Sack, Casey (by desig’n)): This decision does not appear to break new ground in remanding the case back to the district court for an evidentiary hearing on whether the Government’s refusal to file a § 3553(e) / § 5K1.1 letter was made in bad faith. In United States v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992), the Court sensibly ruled that the Government cannot refuse to file a 5K letter on the basis of facts known to it at the time the agreement was executed. As the Court explained there, “Not only would it be unfair for the government to rely upon . . . known, pre-agreement circumstances as reasons for not moving [under 3553(e) / 5K], 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.
In this case, the record was unclear as to whether the Government’s refusal to file a 5K letter for Doe was based on information it already possessed when it entered into the cooperation agreement. Of the 4 reasons proffered, 2 were clearly based on misconduct that the Government knew about when it entered into the agreement. Because it was unclear from the record whether the Government knew about the other 2 purported reasons before entering the agreement, the district court should have conducted an evidentiary hearing before denying Doe’s request for specific performance. See Knights, 968 F.2d at 1487 (defendant need only make a “showing of bad faith” to trigger evidentiary hearing).