United States v. Brechner

99 F.3d 96 (2nd Cir. 1996)

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Nature of the Case

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Facts

Brechner (D) was involved in a tax fraud scheme. He got suppliers to issue inflated invoices, and then they kicked back the differences in cash. Eventually, D was caught and offered to plead guilty and did plead guilty to three charges. Seeking to lower his own sentence, D offered to provide information about bank bribes, and the details regarding his tax evasion scheme and to turn in the companies that had assisted him. D gave over the details, and a written cooperation agreement was issued and signed that provided for D, to tell the truth, give complete and accurate information regarding his criminal activities, participate in undercover work, and testify at proceedings upon request. In exchange for this assistance, the government agreed to move for a downward sentencing departure if the U.S. Attorney determines that D had lived up to his end of the agreement. The agreement stated that the assessment of the U.S. Attorney as to the value of D's cooperation would be binding upon D. Explicit warnings were part of the agreement. As the events unfolded, D was not truthful with the government, but after counseling by his attorney, D changed his story. D was then informed that the government was not inclined to move for a downward departure because of D's misrepresentations. D moved to compel departure alleging prosecutorial bad faith. The trial judge found that D cooperated fully and completely and that his substantial assistance despite his false statements were enough to warrant a Section 5K1.1 motion.