MEMORANDUM AND ORDER On June 10, 2011, Sassine Razzouk, a former employee of Con Edison Co. of New York, Inc. (“Con Edison”) pleaded guilty to accepting bribes in violation of 18 U.S.C. §666(a)(1)(B) and three counts of tax evasion in violation of 26 U.S.C. §7201 pursuant to a cooperation agreement. See Information, ECF No. 16; Waiver of Indictment, ECF No. 17; Min. Entry for Plea Agreement Hr’g, ECF No. 18. On April 3, 2018, I sentenced the defendant to concurrent sentences of seventy-eight months of imprisonment on the bribery count and sixty months on the tax evasion counts, followed by three years of supervised release. See Sentencing Min. Entry, ECF No. 83; Oral Sentencing Op. 13 (“Oral Sent. Op.”), ECF No. 85; Tr. of Sentencing 69:1-7 (“Sent. Tr.”), ECF No. 104. I also ordered the defendant to comply with the $6,515,809 forfeiture money judgment and to pay $1,982,238.34 in restitution to the Internal Revenue Services (“IRS”) and $6,867,350.51 plus prejudgment interest in restitution to Con Edison and its insurer National Union Insurance Company. Oral Sent. Op. 14, 18; Statement of Reasons Concerning Restitution 21 (“Restitution SOR”), ECF No. 84. For the purposes of this Memorandum and Order, I presume the parties’ familiarity with the facts and circumstances of this case, as detailed in my previous opinions. See Oral Sentencing Op.; Restitution SOR.Presently before me is defendant’s motion for bail pending appeal and a stay of his financial penalties. See Def.’s Mot. for Bail Pending App. (“Def.’s Bail Mot.”), ECF No. 97. For the reasons stated below, defendant’s motion for bail pending appeal is denied. Because I have only just received defendant’s Personal Financial Statement, I reserve judgment on defendant’s motion for a stay of his financial penalties.DISCUSSIONUnder 18 U.S.C. §3143, a court “shall order” that a person who has filed an appeal be detained when they have been found guilty and sentenced to imprisonment “unless” the court finds:(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released…; and(B) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in– (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.18 U.S.C. §3143(b)(1). If a defendant has been found guilty of a crime, there is “a presumption in favor of detention.” United States v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004) (citing 18 U.S.C. §3143(a)). The defendant bears the burden of rebutting that presumption by clear and convincing evidence. Id. This burden is “plainly substantial.” Id. If the defendant makes the requisite showing, a judge “shall” order his or her release. Id. (quoting 18 U.S.C. §3143(b)(1)).The government does not contend that the defendant is a flight risk or that he poses a danger to society. In light of the defendant’s persuasive evidence to this effect, see Def.’s Bail Mot. 2, I agree.1 The resolution of this motion therefore depends on whether defendant’s appeal “raises a substantial question of law or fact likely to result in” reversal, a new trial, or a sentence that either does not include a term of imprisonment or includes a term of imprisonment less than the expected duration of the appeal process.2To meet his burden, defendant must demonstrate first that his appeal raises a substantial question. A question is “substantial” if it presents “a ‘close’ question or one that very well could be decided the other way.” United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)). It must be “one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful.” Id. (quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)). Defendant must then show that the question is “so integral to the merits of the conviction on which [he] is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.” Id. (quoting Miller, 753 F.2d at 23). The appeal “must result either in reversal, [a reduced sentence less the expected duration of the appeal process,] or a new trial on every count of conviction for which imprisonment has been imposed.” United States v. Foley, 851 F. Supp. 507, 509 (D. Conn. 1994) (citing Morison v. United States, 486 U.S. 1306, 1306 (1988)) (emphasis added).Defendant contends that he intends to raise a number of issues on appeal that constitute “substantial” questions of law or fact. See Def.’s Bail Mot. 3-4. His primary argument is that his appeal will raise substantial questions regarding the restitution order I imposed based on the Supreme Court’s recent decision in Lagos v. United States, 138 S. Ct. 1684 (2018). Def.’s Bail Mot. 3-4. Lagos held that, under the Mandatory Victims Restitution Act of 1997 (“MVRA”), a defendant cannot be forced to reimburse a victim for expenses incurred during an internal investigation of the defendant’s illegal actions, as distinct from a government investigation into or prosecution of those actions. 138 S. Ct. at 1687. Defendant also argues that his appeal will “raise several other substantial issues,” including: (1) whether bribery is an “offense against property” for purposes of the MVRA; (2) whether Con Edison suffered a loss that mandated restitution; (3) whether the government breached the cooperation agreement; and (4) whether defendant’s allocution as to the bribery offense was insufficient. Def.’s Bail Mot. 4.First, defendant’s arguments concerning restitution are irrelevant. The restitution order had no bearing on defendant’s sentence for bribery. As I made clear at sentencing, I calculated the loss amount for purposes of the United States Sentencing Guidelines (“U.S.S.G.”) based on the amount of bribes that the defendant took, not based on any demonstrated loss to Con Edison. Sent. Tr. 45:16-48:12. Therefore, as the government argues, even if the restitution order were vacated for any of the reasons that the defendant proffers, defendant’s conviction for bribery and his corresponding sentence would not be affected.3 See Gov.’s Opp’n to Def.’s Bail Mot. 3 (“Gov.’s Opp’n”), ECF No. 99 (“[T]here is no reason why [vacating the restitution order] would result in a ‘reversal’ of the conviction itself or a substantial downward revision to the term of imprisonment imposed for the conviction.”).Second, it is not necessary to address whether the sufficiency of the defendant’s bribery allocution constitutes a “substantial” question because the answer to the question does not affect the defendant’s sixty-month concurrent sentences for tax evasion.4 I agree with the government that it is highly unlikely that the defendant’s appeal will take longer than five years to resolve. Gov. Opp’n 2. Regardless of whether this question is “substantial,” therefore, defendant’s appeal would not result in reversal, a new trial, or a reduced sentence to a term of imprisonment less than the expected duration of the appeal process “on every count of conviction for which imprisonment has been imposed.” Foley, 851 F. Supp. at 509; see id. at 510 (“Even were the appellate court to vacate the jury’s verdict on Count One, such a decision would not automatically invalidate the remainder of the defendant’s sentence or cause a recalculation of the sentencing guidelines as to the remaining counts.”); see also Randell, 761 F.2d at 125–26 (holding that the defendant did not carry his burden of showing that his appeal would raise a “substantial question of law or fact…on all of the counts for which he received prison terms” where the questions he intended to raise on appeal would not affect his conviction for tax evasion).Third, there is no substantial question as to whether the government breached the cooperation agreement, such that the defendant’s guilty pleas — including those for tax evasion — would have to be vacated. Defendant argues that the government’s decision not to make a substantial assistance motion pursuant to U.S.S.G. §5K1.1 and its opposition to the inclusion of acceptance-of-responsibility points in the computation of the defendant’s offense level under the Guidelines amounted to a breach of the cooperation agreement.5 Def.’s Reply to Gov.’s Opp’n (“Def.’s Reply”) 1-3, ECF No. 101; see Def.’s Bail Mot. 4. For the first time in his reply, the defendant also argues that the government’s actions constituted “bad faith” and that the government supplied the court with “incomplete and misleading information.” Def.’s Reply 3. The government argues that “[t]he defendant ignores that the government adopted these positions only in the wake of the defendant’s own material breach of the cooperation agreement — a point that meets with no serious challenge in either” of the defendant’s submissions. Gov.’s Resp. to Def.’s Reply 1 (“Gov.’s Resp.”), ECF No. 102.“[W]here a plea agreement provides that the government will file a 5K1.1 motion if it determines that the defendant has provided substantial assistance, a court[]…’may review [the agreement]…to see if the government has lived up to its end of the bargain.’” United States v. Leonard, 50 F.3d 1152, 1157 (2d Cir. 1995) (final two alterations in original) (quoting United States v. Knights, 968 F.2d 1483, 1486 (2d Cir. 1992)). “To determine whether a plea agreement has been breached, a court must look to what the parties reasonably understood to be the terms of the agreement.” United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005) (quoting United States v. Lawlor, 168 F.3d 633, 636 (2d Cir. 1999)). “[A]ny ambiguity should be resolved against the government.” United States v. Miller, 993 F.2d 16, 20 (2d Cir. 1993) (citing United States v. Feigenbaum, 962 F.2d 230, 234 (2d Cir. 1992)).“[W]here the explicit terms of a cooperation agreement leave the acceptance of the defendant’s performance to the sole discretion of the prosecutor,” as is the case here, “that discretion is limited by the requirement that it be exercised fairly and in good faith.” United States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 1990); see Gov.’s Opp’n Ex. 1, 6 (“Coop. Ag.”), ECF No. 99-1. That is, “[t]he government may reject the defendant’s performance of his or her obligations only if it is honestly dissatisfied.” Khan, 920 F.2d at 1105; see also United States v. Reeves, 296 F.3d 113, 116 (2d Cir. 2002) (“To meet its obligation of good faith, the government need only demonstrate honest dissatisfaction with the defendant’s efforts.”). When a defendant alleges that the government acted in bad faith in refusing to move for a downward departure, “the government may rebut this allegation by explaining its reasons for refusing to depart.” Knights, 968 F.2d at 1487.6 The government cannot cite reasons that, for example, “relate to circumstances that preceded the making of the agreement” or rely on the fact that the defendant’s testimony was “inconsistent” with that of another witness. Id. at 1488.In this case, it is not “fairly doubtful” that the cooperation agreement was perfectly clear as to the defendant’s responsibilities and that the defendant — not the government — breached the agreement when he surreptitiously met with Rodolpho Quiambao and offered to perjure himself at Quiambao’s trial. See Oral Sent. Op. 2. The cooperation agreement states:The defendant agrees not to reveal his cooperation, or any information derived therefrom, to any third party without prior consent of the Office…. The defendant must at all times give complete, truthful, and accurate information and testimony, and must not commit, or attempt to commit, any further crimes. Should it be judged by the Office that the defendant has failed to cooperate fully,…has committed or attempted to commit any further crimes, or has otherwise violated any provision of this agreement, the defendant will not be released from his plea of guilty but this Office will be released from its obligations under this agreement, including (a) not to oppose a downward adjustment of three levels for acceptance of responsibility…and (b) to file the [5K1.1] motion…. The defendant will also be subject to prosecution for any federal criminal violation of which the Office has knowledge.Coop. Ag.
