bronx after about a year n y p d investigators discovered that mr diaz had come into the hospital with burns on the night of one of the arsons and they proceeded to track him down and question him and what mr diaz did instead of remaining silent or wondering what type of hipaa violation resulted in a hospital telling police officers that he received treatment for burns he mediately started cooperating st with the mr diaz they entered into an agreement which had seven think that happens he had seven things they had to do and what the government did was their entire case they had nothing when they began other which included not lying to the government and he did that right well i can say that he did he didn't have mr to admit to making false statements that's not why he didn't  that that that certainly lead to in dispute there may be a dispute as because i perform what i understand the facts were that there was one time he said that he did lie and then he he walked it back i thought i understood ultimately that he admitted to involvement in the st of the three fires he didn't exactly he had initially said just a nd didn't know about the st or the rd then i thought on confrontation he in front of the jury to say what happens if you lie that this person has every incentive to tell the truth because if this thing gets ripped up and you're saying that we should say that's too tough but the government negotiated for this deal right they did and they also knew that when they were negotiating they were negotiating with a career criminal who has mental and physical health issues i'm not sure what we're supposed to make with that because it sounds like what you're saying is that in as much as they take their witnesses they get and they should assume that someone who has a history of lying and criminality will never be able to abide by the provisions of the cooperation agreement you don't want to say that do you know i don't want to say that but what i what i can say is that we've all is what you are blind to do and it tells you what happens if you know the that's true and i can argue that what i can argue and the only thing i can argue here today is that if the government did not believe what mr dia said and chose to believe his coconspirators why didn't how could they rely on diaz's evidence for these indictments don't they have to walk those back to if they've relied on diaz's stuff but the government didn't they didn't dismiss the indictments and bring new ones or supersede because your client breaches and the government is obliged to give back all his cooperation in no i think what they had to do was they had to cooperate to other people instead of using him as the one cooperated they needed to cooperate to other people to substantiate the stuff he was supposed to tell them at the outset i've wouldn't say what happened here is that miss but but for mr diaz substantially of truth there's there's a lot of truth here all the truths created the evidence that made the government able to indict the three others before you argue substantial performance to judge something such as telling the truth you don't really get to argue substantial performance in the event of a breach of one of those material terms if it is simply there is there's big breaches in little breaches in contract law and there's substantial performance which is small breaches substantial performance in the only argument that i can make to you today is that based on that agreement he substantially perform or there were there were it was a through gene you think one jury would view that as a group no but the government was able the government was not prejudiced by that particular small breach i had to cooperate to others and they could not use him as a witness at trial the only thing that they would have needed him there all the witness it wasn't that they were cooperating to others those two others chose and the government agreed to allow them to cooperate this is not you know people volunteer  cooperate but it's up to the government always to decide whether they're interested in the cooperation that doesn't occur until after they've proffered quite a few times course but of perhaps had your client been more candid about the entire scope of his involvement they would not have seen a need to bring on two other cooperators my point still remains he was useless as a trial witness which was part of the reason they got him in the st instance is that not correct i don't know that it was completely useless i have seen witnesses admit that they lied on the stands and the government bring them in and do the they have horrible he's a career criminal it would have taken them about i don't know half an hour just to go through all and they knew this when they entered into the agreement maybe they were never thinking of bringing him in as the trial witness but certainly he was around for the grand jury he's and he was not presentable he's not the kind of guy that you would want to throw up on the witness stand specially if you've got two others who are a little bit more presentable was good morning and may please the court my name is michael mcguinness and i'm an assistant united states attorney in the southern district of new york i represent the united states on this appeal as i did in the district court below the district court to not plainly air and not finding the government t breached the terms of the cooperation agreement in fact the defendant violated the terms of his cooperation agreement by failing to disclose the full extent of his criminal activity and thereby rendering himself unusable as a trial witness in addition to the fact that he was not able to be used as a trial witness the government was also unable to introduce a recording between mr diaz and the trial defendant where the trial defendant largely admitted to the crime and so the government experienced prejudice from the defendant's breach in addition the government lost the ability to charge the trial defendant with that crime as a result of the defendant's breach and in accordance with the terms of the cooperation agreement the government was just charge from his obligation to file a section five k letter at the time of sentencing accordingly the government acted in good faith and did not breach the terms of the cooperation agreement when it declined to submit a five k letter and just to clarify briefly the order of operations the defendant denied involvement initially in the december two thousand and thirteen fire although he did admit it for the march two thousand and fourteen fire after the government approached jonathan martin who provided the government with new information perhaps instead of burying myself any further if it doesn't have any questions i will just respectfully request that the sens be vacated factory sentencing because of the government's breach of this agreement look the bottom line is and this is supposed to be done under contract principles substantial performance and that are my argument thank you for listening to it