United States v. Diaz ( 2019 )

17‐3795
United States v. Diaz
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 31st day of October, two thousand nineteen.
PRESENT: BARRINGTON D. PARKER,
RICHARD J. SULLIVAN,
Circuit Judges,
KATHERINE POLK FAILLA,
District Judge.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 17‐3795‐cr
ROBERTO DIAZ, AKA CUTI
Defendant‐Appellant,

Judge Katherine Polk Failla of the United States District Court for the Southern District
of New York, sitting by designation.
Tory Barnes, Jonathan Martin, Ravi Bishunath,
Defendants.
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FOR APPELLANT: STACEY VAN MALDEN (Lawrence
A. Dubin, New York, NY, on the brief),
Bronx, NY.
FOR APPELLEE: MICHAEL MCGINNIS, Assistant
United States Attorney (Stephanie
Lake, Daniel B. Tehrani, Assistant
United States Attorneys on the brief),
for Geoffrey S. Berman, United States
Attorney for the Southern District of
New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (William H. Pauley III, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Roberto Diaz appeals from a judgment of the district court (Pauley, J.)
convicting him, after a guilty plea pursuant to a cooperation agreement with the
government, of conspiracy to commit arson, in violation of 18 U.S.C. § 371; arson,
in violation of 18 U.S.C. § 844(i); and conspiracy to distribute marijuana, in
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violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The court sentenced him
principally to a term of imprisonment of 60 months on each count, to run
concurrently. Although it is undisputed that Diaz made false statements to the
government while he was cooperating, Diaz argues on appeal that the government
breached the cooperation agreement when it failed to move for a reduction in
sentence pursuant to 18 U.S.C. § 3553(e) and Section 5K1.1 of the United States
Sentencing Guidelines (“5K1.1 motion”). We assume the parties’ familiarity with
the underlying facts and the record of prior proceedings, to which we refer only
as necessary to explain our decision to affirm.
In general, “[w]e review a district court’s interpretation of a cooperation
agreement de novo and examine its related findings of fact for clear error.”
United States v. Roe, 445 F.3d 202, 206 (2d Cir. 2006). If a new argument is raised
on appeal, however, we review only for plain error. See United States v.
MacPherson, 590 F.3d 215, 218 (2d Cir. 2009). “To prevail on plain error review,
an appellant must show that (1) there is error, (2) it is plain, (3) it affects a
substantial right, and (4) it seriously affects the fairness of the judicial proceedings,
resulting in a miscarriage of justice.” Id. at 218–19; see also United States v. Marcus,
560 U.S. 258, 262 (2010).
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1. Good Faith
Diaz first argues, as he did in the court below, that the government acted in
bad faith in declining to make a 5K1.1 motion. “Cooperation agreements are
interpreted according to principles of contract law.” United States v. Doe, 741 F.3d
359, 362–63 (2d Cir. 2013). Where a defendant contends that the government has
breached a cooperation agreement by refusing to make a 5K1.1 motion, we assess
whether “the government has lived up to its end of the bargain and whether the
government acted fairly and in good faith.” Id. (quoting United States v.
Fernandez, 127 F.3d 277, 285–86 (2d Cir. 1997)). Where, as here, “the agreement is
conditioned on [the] satisfaction of the obligor, the condition is not met if the
obligor is honestly, even though unreasonably, dissatisfied.” Id. (quotation
marks omitted).
We have previously recognized that “a cooperating defendant’s
truthfulness about his own past conduct is highly relevant to the quality of his
cooperation,” and a defendant’s failure to be truthful provides a good‐faith basis
for the government to decline to make a 5K1.1 motion. United States v. Brechner,
99 F.3d 96, 99 (2d Cir. 1996). Diaz argues that the government acted in bad faith
when it credited the testimony of other cooperators over his. But, in reality, the
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government was not required to weigh competing testimony because Diaz
admitted he had not been truthful. Because there is no evidence in the record to
suggest that the government was not actually dissatisfied with Diaz’s cooperation
or was otherwise motivated by a nefarious purpose, we have no reason to second‐
guess the government’s refusal to file a 5K1.1 motion.
2. Substantial Performance
Diaz next argues, for the first time on appeal, that he “substantially
performed” under the cooperation agreement and that the government therefore
acted unreasonably in declining to file a 5K1.1 motion. But as we have previously
held, “substantial performance is ordinarily not applicable to excuse the non‐
occurrence of an express condition precedent.” Doe, 741 F.3d at 364 (quotation
marks omitted). “A court may excuse such a condition to avoid disproportionate
forfeiture only if the condition was not a material part of the exchange.” Id.
(citing Restatement (Second) of Contracts § 229).
Neither Diaz nor the government disputes that Diaz assisted the
government during the course of his cooperation. But it cannot be doubted that
Diaz’s dishonesty “diminished [his] reliability and thus inhibited the
government’s ability to use [him] as a witness in future proceedings.” Id.
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Indeed, Diaz did not testify against his co‐defendant, which limited the
government’s ability to use evidence that Diaz had collected. Diaz’s dishonesty
therefore “was clearly material.” Id. Accordingly, Diaz provides no basis for
compelling the government to enforce the cooperation agreement and make a
belated 5K1.1 motion.
We have considered Diaz’s remaining arguments and conclude that they are
without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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