Opinion
No. CR-01-203703S
November 30, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION IN LIMINE
The issue presented to this court is whether or not the defendant breached the proffer agreement dated February 13, 2001 by invoking his Fifth Amendment privilege at the trial of Miguel Estrella.
For the following reasons this court finds that the defendant acted in bad faith in invoking his Fifth Amendment privilege and thereby breached the proffer agreement rendering same null and void.
The defendant breached paragraph 4 of the proffer agreement which provides: "It is understood that in the event Mr. Rivers becomes a witness at any trial and his testimony is materially different from any statements or information disclosed at this meeting, the State may and will use Mr. Rivers' statements at this meeting to impeach or cross-examine Mr. Rivers. It is also understood that materially different testimony at trial indicates a lack of candor by Mr. Rivers, either in the original statement or at trial, which constitutes a breach of the agreement. The agreement will then become null and void.
DISCUSSION
"Our Supreme Court has held that a plea agreement is akin to a contract that the well-established principles of contract law can provide guidance in the interpretation of a plea agreement." State v. Lopez, 77 Conn.App. 67, 77, 822 A.2d 948, aff'd, 269 Conn. 799, 850 A.2d 143 (2004). "Plea agreements are unique contracts, and we temper the application of ordinary contract principles with special due process concerns for fairness and the adequacy of procedural safeguards . . . Plea agreements involve a waiver of constitutional and statutory rights, and for this reason, such agreements are to be interpreted narrowly." (Citation omitted; internal quotation marks omitted) U.S. v. Granik, United States Court of Appeals, Docket No. 02-1523 (2d Cir. October 15, 2004). The court has recognized that "[contract] rules have to be applied to plea agreements with two things in mind . . . First, the defendant's underlying contract right is constitutionally based and therefore reflects concerns that differ fundamentally from and run wider than those of commercial contract law. Second, with respect to federal prosecutions, the court's concerns run even wider than protection of the defendant's individual constitutional rights-to concerns for the honor of the government, public confidence in the fair administration of justice in a federal scheme of government." (Internal quotation marks omitted.) U.S. v. Ready, 82 F.3d 551, 558 (2d Cir. 1996), quoting, United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) "In determining whether any particular plea agreement has been breached, [the court] look[s] to the reasonable understanding of the parties . . . and resolve[s] any ambiguities in the agreement against the government." (Citation omitted; internal quotation marks omitted) U.S. v. Rodgers, 101 F.3d 247, 253 (2d Cir. 1996), cert. Denied, 520 U.S. 1188, 117 S.Ct. 1472, 137 L.Ed.2d 685 (1997). Furthermore, "[i]t is axiomatic that the duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." De La Concha of Hartford, Inc. v. Aetna Life Ins. Co. 269 Conn. 424, 432, 849 A.2d 382 (2004). Also, as in all contracts, plea agreements include an implied obligation of good faith and fair dealing. U.S. v. Jones, 58 F.3d 688, 692 (D.C. Cir. 1995), cert. Denied, 516 U.S. 970, 116 S.Ct. 430, 133 L.Ed.2d 346 (1995); U.S. v. Castelbuono, 643 F.Sup. 965, 970 (E.D.N.Y. 1986). "To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must be taken to have been made in bad faith." (Internal quotation marks omitted.) De La Concha of Hartford Inc. v. Aetna, supra, 433.
The state argues that it should be permitted to offer in its case-in-chief against Mr. Rivers all statements it obtained from Mr. Rivers as a result of its proffer agreement because it claims that Mr. Rivers breached the agreement in bad faith when he refused to testify and thus the agreement is rendered null and void. In support of this proposition, the state relies on U.S. v. Castelbuono. The defendant argues when a person invokes a constitutionally protected right, he cannot, as a matter of law and fairness, be punished or be deemed to have acted in bad faith.
In Castelbuono, the defendant entered into a cooperation agreement with the government which stated that if it was ever determined that the defendant made a statement which was "false in any material respect" the agreement would be null and void. Castelbuono, supra, 643 F.Sup. 969, 974. After entering into the agreement the defendant refused to fully cooperate with the government by revealing misleading and incomplete information and withholding documents, tapes and other information from the government. Id., 968. In Castelbuono the court found that the defendant breached the agreement even though there was no provision in the agreement explicitly requiring the defendant to do a particular act because the defendant did not use reasonable efforts in supplying information. Id., 970, 971. Also, the court found that even though "an inadvertent omission or oversight would not rise to the level of a materially false statement so as to constitute a breach of the agreement, a bad faith, intentional, substantial omission . . . does constitute a materially false statement and thereby a breach of the agreement." Id., 971.
In the present case, there was no explicit provision in the proffer agreement requiring Mr. Rivers to testify. However, the defendant breached the agreement by failing to fulfill his obligation under the agreement in good faith.
Here the defendant intentionally pled the Fifth Amendment and in bad faith failed to testify and as in Castelbuono this type of intentional action rises to the level of a materially false statement and thus a breach of the agreement. The defendant cannot claim that the invocation by him of his Fifth Amendment privilege due to his arrests subsequent to the proffer agreement was simply a good faith exercise of his constitutional fight when in reality it was being used in bad faith by the defendant in an attempt to violate the spirit of the proffer agreement and yet still reap its benefits.
The written agreement should be viewed against the background of the negotiations and should not be interpreted to directly contradict any oral understanding. This court must decide whether the actions of the State are inconsistent with what the defendant reasonably understood at the time of entering into the proffer agreement. One can glean the defendant's understanding from a reading of the letter from the defendant's former attorney, John Ivers to Attorney Clark dated August 9, 2002 wherein Mr. Ivers stated that his client has held up his end of the bargain that was struck with the State of Connecticut in that at the hearing in probable cause of Mr. Estrella, Mr. Rivers told the truth and testified consistently with his prior statement.
Here, the State bargained for Mr. Rivers' testimony against Mr. Estrella in exchange for Mr. Rivers' reduced sentence and charges. Since the State has not received the benefit of its bargain, then Mr. Rivers should not be allowed to unjustly enrich himself with the reduced charges and reduced sentence.
To accept the argument of the defendant would result in bad public policy. A defendant facing the possibility of extensive criminal charges would be eager to enter into a cooperation agreement knowing that if it were poorly drafted and it did not specify with particularity the consequences related to every possible breach, it might be possible in bad faith not to comply with the demands of the agreement and yet still be awarded its benefits.
This would be an absurd result.
Accordingly, the defendant's motion is denied.
Richard A. Damiani