Full opinion text
OPINION AND ORDER SOTOMAYOR, District Judge. Defendant Clarence Heatley challenges the superseding indictment in this case on several grounds, all of which stem from a series of proffer sessions in which Heatley made various inculpatory statements. Heatley moves for either dismissal of the indictment or an order directing the United States to grant Heatley a cooperation agreement. For the reasons to be discussed, the Court denies Heatley’s motion. BACKGROUND The following constitute the Court’s findings of fact, as shown by a preponderance of the evidence. Defendant Clarence Heatley was indicted on July 15, 1996, on three counts of murder and conspiracy to murder in aid of racketeering activity. On August 12, 1996, Heatley was arrested by detectives of the New York City Police Department and transferred to federal custody. (Heatley moved for suppression of statements made that day, a motion which was denied by this Court in a separate Opinion and Order. See United States v. Heatley, 32 F.Supp.2d 131 (S.D.N.Y.1998). Familiarity with that Opinion is assumed; however, pertinent facts relating to his arrest and post-arrest statements are included here.) After being transferred to the Federal Bureau of Investigation offices at 26 Federal Plaza that evening, Heatley received proper Miranda warnings and validly agreed to waive his rights and speak to the agents, chiefly FBI Special Agent David Higgins and NYPD Detective Vincent Flynn. Heatley asked the agents about how (and whether) he could help himself through cooperation, and Higgins explained in some detail the process of cooperation, including information regarding the Federal Sentencing Guidelines and what a § 5K.1 letter is. The agents never promised Heatley a cooperation agreement if he agreed to talk. However, according to Detective Flynn, he and Higgins did tell Heatley that “the only thing that would be asked of him was to tell the truth when he did cooperate” and “all he would ever asked to do is to be truthful.” Tr. (11/13/97) at 109, 127. Heatley made various inculpatory statements about himself and others during the next two or three hours, and continued to express interest in cooperating. The agents informed Heat-ley that they would take the statements made at 26 Federal Plaza and bring them to the attention of the United States Attorney. The next day, August 13, Detective Flynn contacted AUSA Sharon McCarthy and informed her both of Heatley’s statement and of his desire to explore cooperation. McCarthy told her supervisor, Elizabeth Glazer, of this development. Later that day, after Heatley’s presentment before Magistrate Judge Peck, McCarthy met with Andrew Schapiro, the Legal Aid Society defense counsel assigned to defend Heatley. McCarthy told Schapiro that Heatley had been under investigation for quite some time and that the U.S. Attorney’s office considered him the leader of a criminal enterprise and personally responsible for significant criminal activity. The original indictment, she explained, was only “the tip of the iceberg” as far as the government was concerned. The purpose of this discussion, according to McCarthy, was to make Schapiro “understand the severity of the crimes that we believed, based upon our investigation, Mr. Heatley had been involved in for sometime in order for him to understand the full risks associated with a proffer.” Tr., at 18. McCarthy asked Schapiro to follow up on Heatley’s expressed desire to cooperate; Schapiro said he would talk to McCarthy after he had a chance to speak to Heatley about it. Schapiro consulted with Heatley and confirmed that he was interested in cooperating. On or about August 16, Schapiro told McCarthy over the phone that they were interested in discussing cooperation; they tentatively set the first proffer session for August '21. Also about that time, Schapiro sent a copy of the indictment to Robert Gottlieb, an attorney who had represented Heatley in the past; Schapiro assumed that Heatley was considering retaining' Gottlieb for his defense. After reviewing the indictment, Gottlieb met with Heatley at the Metropolitan Correctional Center (MCC), and Heatley decided to stay with Schapiro’s representation. On August 19, Heatley called Schapiro to relay certain information about individuals who might be in danger which he thought would be helpful to the government as a show of good faith. During this conversation, Heatley also told Schapiro that Gottlieb had expressed serious concern about taking Heatley into a proffer session with the government. According to Schapiro, Heatley told him that “Gott-lieb had told [Heatley] that Sharon McCarthy is not a straight shooter and that ... 1, Andrew Schapiro, didn’t know what I was doing for setting up a proffer session; that no lawyer worth his salt would take a defendant in on a case like this; and that the U.S. Attorney’s office would cross him up and use Legal Aid to do it.” Tr., at 314. Schapiro in turn told Heatley that, in his experience, McCarthy was “definitely a straight shooter” and that their relationship was good. Schapiro assured Heatley that he had never seen the U.S. Attorney “cross up” a defendant in the manner Gottlieb described, and that the U.S. Attorney had an obligation to act in good faith and in his experience had always done so. In addition, Heatley expressed the concern that if he did proffer, McCarthy might not have the “juice” — i.e., the authority within the U.S. Attorney’s Office — to make the cooperation agreement happen. Schapiro told Heatley that he would make sure McCarthy’s superiors were involved in the process. Schapiro also, however, shared these concerns to some extent and they “gave [him] pause about whether to bring [Heatley] in at all.” Tr., at 317. Schapiro relayed to McCarthy the information about the threats to persons that Heatley had told him; she asked Schapiro for some more details. The next day, August 20, Schapiro met with Heatley and got the necessary detail, which he then relayed in a phone call to McCarthy. Also during that conversation, Schapiro conveyed his concerns to McCarthy about proffering Heatley. He told her he was concerned because “he was the lead defendant on this indictment and because he clearly had a significant criminal history, and ... I would not take him in and proffer him if at the end of the process they were just going to turn around and tell me, I’m sorry, we’re just not going to sign him up because he’s the lead defendant or because he was too bad a guy.” Tr., at 325. McCarthy, in the first of three key assurances relied on heavily in Heat-ley’s moving papers, told Schapiro that Heatley “would not be disqualified from getting a cooperation agreement simply because he was the lead defendant or because he was too bad a guy.” Id. In McCarthy’s words, she told Schapiro that “the fact that [Heatley] was a leader of the gang and had committed a number of murders would not rule him out as a cooperator.” Tr., at 126. Schapiro also asked McCarthy “to inform me if we ever reached a point during the proffer sessions where things were going wrong and it appeared that Mr. Heatley’s chances of getting a cooperation agreement at the end were significantly in jeopardy.” Id. In this way, Schapiro could try to correct the problem or end the sessions. McCarthy assured him — the second key assurance relied upon by Heat-ley’s motion — that she would let him know “if it wasn’t going anywhere.” Tr., at 151. McCarthy did not, however, agree to constantly evaluate Heatley’s performance; she told Schapiro that it was her policy never to say to a person “how they’re doing.” Tr., at 71. Moreover, McCarthy told him that a final answer as to a cooperation agreement would not be forthcoming until after the end of the proffer sessions. McCarthy also assured Schapiro that she would keep her supervisors abreast of what was happening and involved in the process — the third of the key assurances Heatley refers to. This assurance was in response to Sehapiro’s concerns about whether her level of authority in the USAO was sufficient to make a cooperation agreement happen. According to Schapiro, he took this to mean that McCarthy’s supervisors would make a determination after each proffer session as to whether any more should be held, but McCarthy did not explicitly say this. Finally, although Schapiro discussed with McCarthy the information that Heat-ley could provide on a number of homicides, he never asked her whether that would be enough, in light of what they knew of Heatley’s activities, to warrant a cooperation agreement. Moreover, Scha-piro did not ask whether Heatley would have to provide information on persons outside his alleged criminal enterprise (i.e., the “Crew”) in order to obtain an agreement, nor did McCarthy make any representation as to the quantity or quality of information Heatley would have to provide. Schapiro also did not provide an attorney proffer of the information Heat-ley had to offer in order to ask the government to assess the likelihood of a cooperation agreement prior to the proffers. In their phone conversation on August 19, Schapiro asked McCarthy what she expected to be the focus of the first proffer session on the 21st. McCarthy told him that because they knew so much about Heatley’s activities, the discussion in the first session would not be limited to the charges in the indictment. McCarthy described the first session as a “truthfulness meter” — i.e., that they would be focusing on events largely known to law enforcement in order to assess Heatley’s truthfulness and credibility. As noted, on August 20 Schapiro met with Heatley at the MCC. Also during that meeting, Schapiro relayed to Heatley what McCarthy had said about the focus in the first session being truthfulness. Schapiro told Heatley “that it was critical if this was going to succeed that he be entirely honest and not hold back and not exaggerate anyone’s roles and not minimize anyone’s roles.” Tr., at 318. Schapiro also told him that a cooperation agreement requires, at a minimum, that the cooperator be able to provide useful and truthful information about other persons’ criminal activity. Finally, Schapiro also cautioned Heatley that a cooperation agreement was not a sure thing- — that in Schapiro’s experience, they usually had a “happy ending,” but not always. The two also discussed the types of information Heatley might be able to provide, and Schapiro noted that Heatley could provide substantial information in around ten or eleven homicides, some of which, Schapiro believed, did not involve Heatley himself. Despite this discussion, however, Schapi-ro admitted that he did not have full knowledge of Heatley’s culpability prior to going into the first proffer session. Furthermore, Schapiro did not investigate the circumstances surrounding Heatley’s post-arrest statement to determine whether there was any significant basis on which to suppress it. The fact of the post-arrest statement made Schapiro more willing to take Heatley in to proffer, because he felt it made going to trial much more difficult. The first proffer session took place on August 21, 1996, at approximately 10 a.m. Present at the proffer session were Heat-ley, Schapiro, McCarthy, and two NYPD officers. McCarthy presented Heatley with a standard proffer agreement used by the USAO. The agreement states, in relevant part, that (1) the USAO will not use any statements made by Heatley during the proffer session in its case-in-chief or at sentencing; (2) the USAO may use Heat-ley’s statements as leads to other evidence which may be used against him; and (3) the USAO may use his statements for impeachment or rebuttal purposes should Heatley testify at trial. Finally, the agreement includes an integration clause which states that “no understandings, promises, agreements, and/or conditions have been entered into with respect to the meeting other than those set forth in this Agreement and none will be entered into unless in writing and signed by all parties.” Gov.Hrng.Exh. 1; Def.Mot.Exh. H. After a private discussion between Scha-piro and Heatley, McCarthy and the agents returned to the room. McCarthy discussed the proffer agreement with Heatley, explained the provisions, and warned him that he could be, in effect, precluding the possibility of testifying on his own behalf at trial because it would open the door to the admission of his proffer statements. McCarthy asked him if he understood the risks of continuing, and Heatley indicated that he did and signed the agreement. After Heatley executed the agreement, McCarthy described the basic mechanics of cooperation to him. She told him that, in the federal system, he would have to basically tell everything he had done as well as everything he knew about others’ activities. She said he would have to be absolutely truthful and that “after he had been fully debriefed, we would be able to determine whether or not a cooperation agreement could in fact be offered to him.” Tr., at 34. She specifically told him, however, that there was no guarantee of a cooperation agreement. Heatley told McCarthy he wanted to cooperate, and asked her what he needed to do, to which she responded that he had to be completely honest and provide substantial assistance to the government.- She also confirmed to Heatley her earlier assurance to Schapiro that she would keep her supervisors informed and involved in the decision process, and that she was not bringing Heatley in to proffer in bad faith — i.e., trying to milk Heatley for information when there was no hope of an agreement. There were a total of five proffer sessions: August 21, 23, 27, 28, and 30, covering a total of between 20 and 25 hours. Prior to each session, Heatley signed a proffer agreement identical to the one described above except for the date. It is mostly unnecessary for purposes of this motion for the Court to relate the substance of Heatley’s statements during the five sessions. Three points are important, however. First, Heatley’s statements were, of course, largely inculpatory. Second, Heatley relayed information about criminal activity engaged in by others as well as himself. Third, however, most if not all of the information provided by Heatley — at least, the information to which he could testify to at a trial — related to the criminal activity of persons who were, in the government’s opinion, under Heatley’s control or part of the alleged enterprise run by Heatley. At various points throughout the proffer sessions, McCarthy was skeptical of Heat-ley’s truthfulness, skepticism based upon specific information available to McCarthy from independent sources which contradicted Heatley’s statements. McCarthy expressed her skepticism to Heatley and Schapiro at various points, although according to Schapiro he took this as par for the course for a proffer session — i.e., that he had “never been in a cooperation situation or a proffer session where there isn’t pushing, where there isn’t skepticism, where the U.S. Attorneys simply take as a given everything that a defendant says to them and just accept everything without pressing him or her.” Tr., at 348. Generally speaking, Schapiro felt these points of skepticism were resolved to everyone’s satisfaction; no one, at least, specifically told him during the sessions that the government thought Heatley was lying about particular incidents. McCarthy also expressed concerns initially with Heatley’s willingness to accept responsibility for his actions, but she did feel he made progress on that point throughout the sessions and communicated that to Schapiro. McCarthy testified, however, that by the end of the fifth session she felt Heatley had not either fully accepted responsibility or been completely honest. At various times throughout the sessions, Schapiro asked McCarthy for an assessment of how Heatley was doing. McCarthy told Schapiro that it was not her practice to give a potential cooperator an ongoing assessment of “how he was doing” — that the assessment of the potential for a cooperation agreement could, and would, only be made at the end of the proffering process. McCarthy did, however, tell Schapiro that Heatley “had been making some progress in his candor.” Tr., at 71. At the beginning of the fourth proffer session, on August 28, McCarthy had become concerned that Heatley’s expectations of the possible terms of cooperation were unrealistic. Accordingly, McCarthy discussed with Heatley and Schapiro her belief, based upon discussions with her supervisor, that any potential cooperation agreement would have to include a “floor”- — -i.e., rather than the typical cooperation agreement whereby complete discretion is left to the judge at sentencing, the agreement with Heatley would likely include a minimum acceptable sentence, probably about 20 years. McCarthy did not promise, however, that any cooperation agreement would in fact be forthcoming, only that if it were, Heatley should not" expect it to be less than 20 years. Also at this fourth proffer session, McCarthy reminded Heatley of the process for cooperation — namely, that there was no certainty of an agreement, but rather that the U.S. Attorney’s office “would have to weigh what information Mr. Heatley was able to offer as against what he had done criminally himself to determine whether or not to give him an agreement.” Tr., at 72. Sehapiro testified that he was surprised at this “weighing” formulation, it apparently being the first time it was explicitly stated in this manner. Despite this surprise, Sehapiro did not object to McCarthy’s statement or stop the proffers because he believed that it was not intended as a significant change to the “ground rules,” Tr., at 441, and also because by that point Heatley had already provided so much information that there was little choice but to continue to push for a cooperation agreement. Later during the fourth session, apparently while McCarthy was not in the room, Agent Walsh asked Heatley for some information which Walsh could use to help “flip” another person into cooperation— i.e., information that only Heatley would know which the government could use to convince this person that Heatley was already cooperating. Heatley complied with Walsh’s request. According to Sehapiro, he considered this a sign that the government was “considering [Heatley] a member of Team USA already in asking for his help in bringing other people onto the team.” Tr., at 399. At the fifth proffer session, Heatley spent some time talking further to Walsh about others who might be likely targets for cooperation and encouraging Walsh to work on those persons. Throughout the process, McCarthy had been in almost daily touch with her supervisor, Elizabeth Glazer, in order to keep Glazer informed of what was transpiring during the proffer sessions. McCarthy mostly relayed the information that Heat-ley had provided, but on at least one important issue expressed her doubts to Glazer about the truthfulness of Heatley’s statements. Despite these doubts, at no point during the proffer sessions did McCarthy tell Sehapiro that she felt the proffering was “going nowhere”; moreover, neither she nor Glazer had come to that conclusion while the proffers were ongoing. After the fifth session, Sehapiro left to go on vacation. In McCarthy’s view, the proffer sessions were not over — i.e., Heat-ley had not been completely debriefed at this point, at least as far as his complete truthfulness was concerned. She did, however, believe that they had fairly exhausted the areas of salient information which Heatley could provide. McCarthy prepared a memo which summarized the information received during the proffer sessions, which she gave to Glazer and Steven Cohen, deputy chief of the Violent Gangs Unit of the USAO. The memo was subsequently shared with Matthew Fishbein, chief of the Criminal Division, and the U.S. Attorney herself, Mary Jo White. On September 5, White, Glazer, Cohen, Fishbein, and McCarthy met to determine whether to continue the proffers; it was decided at that meeting that no cooperation agreement would be offered, and McCarthy was directed to hold no further sessions. Following Schapiro’s return from vacation on September 11, McCarthy called Sehapiro to tell him that the offer of cooperation had been rejected by the U.S. Attorney. When asked why, McCarthy told Sehapiro that “it was the office’s view that [Heatley] had not provided significant information other than information about people under him in the crew ...” Tr., at 80. In Schapiro’s words, “he had too much baggage, too much of a bad history, and that unless he would have been able to give them all sorts of other people besides those in his own crew” there would be no deal. Tr., at 406. McCarthy also expressed her personal view to Schapiro that she would have preferred to continue the proffer sessions, because she felt that “if I spent some more time with him I could get him to come around to the truth on many of the things that we had problems with.” Tr., at 81. Schapiro and McCarthy also met briefly the next day, and Schapiro asked if there was any way possible to salvage an agreement; McCarthy responded that if Heatley had “other information about people of the same caliber in the criminal world that that might be worth a try with the office again.” Tr., at 276. After Schapiro expressed an interest in attempting to pitch Heatley as a cooperator directly to McCarthy’s superiors, a meeting was set up between them, but the meeting was canceled because Heatley requested that Schapiro be relieved in favor of present counsel. On November 15, 1996, McCarthy, Glazer, and Heatley’s new counsel, Joel Cohen and David Ruhnke, met to discuss, among other things, whether there was still a possibility of a cooperation agreement. Glazer began by stating that one reason for not offering a cooperation agreement was that, given Heatley’s record, it would be unreasonable to expect any judge to give a substantial downward departure regardless of the extent of his assistance. Ruhnke responded that that was a risk Heatley was willing to take. Glazer then stated that the other reason for denying him a cooperation agreement was that Heatley had primarily provided information against his own crew. Glazer also told the new defense counsel that one of the problems the U.S. Attorney’s office had with Heatley was that they did not believe he had been completely truthful in his proffers, although Ruhnke in his testimony and Cohen in an affidavit disputed that Glazer made this statement. She further stated that, should Heatley have information in other areas, the government would be willing to accept an attorney proffer as to the information he could provide and would take the new information into account. Subsequently, on December 31, 1996, McCarthy, Glazer, Ruhnke, Joel Cohen, Steven Cohen, Gregg Sofer, a special AUSA, and Dan Rather, of the New York County District Attorney’s office, met to discuss further the possibility of cooperation. Ruhnke and Joel Cohen provided an attorney proffer which summarized for the group the additional information which Heatley could provide if he were to be a cooperator. Steven Cohen told defense counsel that the office would consider the additional information and get back to them. Within a couple of weeks, the government told defense counsel that no cooperation agreement would be forthcoming. On May 2, 1997, Ruhnke and Cohen met with representatives of the U.S. Attorney’s office, including among others McCarthy and Steven Cohen; the purpose of the meeting was for Heatley’s defense counsel to attempt to persuade the office not to seek authorization to pursue the death penalty against Heatley. At this meeting, part of Ruhnke’s argument was that Heat-ley had been willing to proffer through five sessions with the government; no one at this meeting suggested that Heatley had not been honest in his proffers. Finally, on September 12,1997, a similar meeting was held with the Attorney General’s capital review committee in Washington, D.C. Again, Ruhnke argued that Heatley had proffered truthfully, and that this was a reason not to seek the death penalty. This time, McCarthy interjected that no, Heatley had not been completely honest. Ruhnke testified that this was the first time he had been confronted with an accusation that Heatley had been less than truthful in his proffer sessions. Heatley has now moved this Court to dismiss the superseding indictments in this case, based on the government’s alleged breach of various obligations with respect to the proffer sessions and the allegation that the superseding indictments were obtained directly or indirectly from the statements made by Heatley during those sessions. In the alternative, Heatley seeks specific performance in the form of an order from this Court requiring the USAO to give Heatley a cooperation agreement. DISCUSSION I. Breach of Assurances & the Duty of Good Faith Heatley’s first argument is that the United States Attorney’s office breached obligations it assumed when it undertook to bring Heatley in for proffer sessions. Heatley bases this claim in part on the government’s alleged breach of the three express assurances McCarthy gave Scha-piro prior to the first proffer session. Heatley claims that each of these express assurances gives rise to a claim for breach of contract or promissory estoppel. Heat-ley also argues the broader point that the USAO breached its duty of good faith in denying Heatley a cooperation agreement. A. Breach of Express Assurances It is well-settled that when the a defendant waives rights in reliance upon a government promise, due process requires that the defendant be entitled to have the government held to its end of the bargain. Thus, for example, promises in a plea agreement are binding upon the government, see Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984); Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); United States v. Salameh, 152 F.3d 88, 120 (2d Cir.1998); United States v. Knights, 968 F.2d 1483, 1486 (2d Cir.1992). Likewise, a suspect’s post-árrest statements may be deemed involuntary if induced by the government’s unfulfilled or unfulfillable promises. See United States v. Ruggles, 70 F.3d 262, 265 (2d Cir.1995); United States v. Fisher, 700 F.2d 780, 783 (2d Cir.1983). The Court can see no logical reason why the government should not equally be held to its assurances if those assurances were relied upon by the defendant in deciding whether to enter a proffer session. A defendant entering a proffer session is waiving valuable rights — first and foremost, his or her Fifth Amendment right not to incriminate oneself — which, even if that waiver is mitigated somewhat by the government’s agreement not to use the statements directly in its case-in-chief, still may provide substantial leads or material for impeachment which the defendant would otherwise be free not to provide. In order for the waiver of these rights to be truly knowing, voluntary, and intelligent, there must be some assurance that the promises made by the government which induce that waiver will be enforced. The Court, further, has no difficulty finding that McCarthy did, in fact make the three assurances alleged by Heatley, and that Heatley relied upon those assurances in making his decision to proffer. Schapiro’s testimony made it clear that both he and Heatley were concerned about the risks going into a proffer, and that Schapiro sought the assurances made by McCarthy prior to the proffer session precisely for the purpose of lessening the risks involved. Had those assurances not been given, Schapiro would in all likelihood not have advised Heatley to proffer. There is actually little dispute between the parties over the facts surrounding these promises — i.e., what was said, and what was done. The disagreement between Heatley and the government over whether the government breached any of its promises boils down primarily to a dispute over the interpretation of McCarthy’s promises. In construing language in a plea agreement, the courts look to the “reasonable understanding of the parties, and resolve any ambiguities in the agreement against the government.” United States 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); see also United States v. Carbone, 739 F.2d 45, 46 (2d Cir.1984) (“In determining whether a particular plea agreement has been breached, we look to ‘what the parties to the plea agreement reasonably understood to be the terms of the agreement.’ ”) (quoting Paradiso v. United States, 689 F.2d 28, 31 (2d Cir.1982)). With these principles in mind, the Court turns to each of the three assurances. 1. Heatley Would Not Be Ruled Out Based on his Culpability The first assurance given by McCarthy to Schapiro was that Heatley would not be ruled out from a cooperation agreement on the grounds that he was, in Schapiro’s words, “too bad a guy.” The precise meaning of this promise is the crux of the dispute between Heatley and the government in this case. The government’s position is that this promise meant, in effect, that despite his extensive (in the government’s opinion) criminal culpability, they would still in good faith consider making Heatley a cooperator if he could prove valuable enough in that role — i.e., if he gave them sufficiently valuable information and was truthful during the proffer sessions. Heatley’s position is that this promise was much stronger — namely, that Heatley’s culpability would not even be a factor in the decision whether to offer him a cooperation agreement. Heatley’s position is simply unreasonable. No reasonable person could have understood McCarthy’s promise — even phrased in Schapiro’s words, i.e., that Heatley “would not be disqualified from getting a cooperation agreement simply because he was the lead defendant or because he was too bad a guy” — -to mean that his culpability would not be weighed in the balance. To accept this interpretation is to accept that the position that, as long as Heatley was truthful, McCarthy had promised to grant a cooperation agreement regardless of how minimally useful his information was’. Obviously, no prosecutor would ever agree to such a thing, and no defense counsel could reasonably believe otherwise. Even Sehapiro, when pressed by this Court during his testimony, could not say that was really his understanding of the assurance. The closest he came was that he thought that they “had already weighed” his criminal history. Obviously, this makes no sense, in that it was impossible for the government to weigh his history against either the substantiality of his assistance or his honesty prior to the proffer sessions, the very purpose of which is to allow the government to find out what information he has to offer and to test his credibility. Sehapiro also testified that when McCarthy told Heatley that he needed to be truthful and to provide “substantial assistance,” that he took this to mean the same thing as “substantial assistance” does in the U.S. Sentencing Guidelines, namely, “substantial assistance in the investigation or prosecution of another person who has committed an offense.” U.S.S.G. § 5K1.1. Again, when pressed, he would not say that he understood this literally — i.e., that substantial assistance in the prosecution of one other person for any federal crime, no matter how minor, would suffice to trigger an obligation on the part of the government to offer him a cooperation agreement — but he did say that “we knew that he was going to be cooperating, it was understood, against the people in what the government called the Preacher crew.” Tr., at 370. If Schapiro “understood” this, it was certainly not because of any assurances given by McCarthy, who, as noted earlier, gave no indication whatsoever of the type of information which would suffice to win Heatley a cooperation agreement. The only reasonable interpretation of McCarthy’s promise is that, given what the government knew (or suspected) of Heat-ley’s criminal past, he would not be ruled out of the possibility of a cooperation agreement, provided that he was truthful and provided assistance which was substantial enough, in the government’s assessment, to warrant allowing a plea to lesser charges. McCarthy did not promise that the government would or would not consider any particular factors in assessing the substantiality of Heatley’s assistance. Heatley makes a point that McCarthy never said that he would have to provide assistance in prosecuting those outside the Preacher’s Crew, but of course, she never said the contrary either, and at least for purposes of a breach-of-promise analysis, that is the key issue. The government cannot be held to promises which it did not even impliedly make. With McCarthy’s assurance so interpreted, it becomes clear that the government did not breach it. The only way, it seems, this promise could have been breached is if the government knew, at some point prior to the end of the proffers, that there was no reasonable chance for Heatley to earn a cooperation agreement. There is no evidence of this fact. The sole piece of evidence which Heatley points to is the fact that Elizabeth Glazer, at the November 15 meeting with Ruhnke and Cohen, stated that one reason for denying Heatley a cooperation agreement was that, with his past, no judge could be expected to grant Heatley any substantial downward departure. If this were the sole reason for the government’s decision, there might be a basis for Heatley’s claim that the government breached its promise, given the government’s professed knowledge of Heatley’s criminal activities. However, Glazer’s statement in full context does not support the conclusion that the government’s decision was based solely or even principally on the improbability of a downward departure. For one thing, McCarthy was present at the meeting at which the decision was made, and she never mentioned this as a basis for decision to Schapiro on the two occasions at which they discussed the reasons for the denial. Nor did McCarthy testify directly that this was a reason. Nor was this ever stated as a reason to defense counsel other than this one time. It is much more likely that Glazer was trying to deflect the concerns of Heatley’s defense counsel at the November 15 meeting by attempting (unsuccessfully, one might add) to convince Ruhnke and Cohen that the denial of the cooperation was, in effect, harmless. Whatever the reason for the statement, the Court does not find that this statement represents evidence of a breach of the government’s promise. 2. McCarthy Would Keep Her Supervisors Informed The second assurance made by McCarthy was that she would keep her supervisors apprised of the content of the proffer sessions. As McCarthy testified, she did not have the authority to grant or deny a cooperation agreement, so this assurance was designed to make sure that those who did — namely, her supervisors— would be informed on an ongoing basis. The importance of this assurance becomes clear when coupled with the third promise — that McCarthy would inform Sehapiro if it “wasn’t going anywhere.” The need to keep the supervisors informed was important because that way, if those in charge ever reached the point where, based on reports of McCarthy, it became obvious that no deal would be forthcoming, the proffer sessions could be stopped immediately. Clearly, if her supervisors were not kept so informed, they would have no way of making this assessment. Addressing first only the promise to keep her supervisors informed, McCarthy testified that she was in daily contact with Glazer and, while not giving Glazer a complete rundown of everything Heatley said, McCarthy gave Glazer a general idea of the scope of the proffer sessions. Moreover, on at least one occasion McCarthy told Glazer of a concern she had for Heat-ley’s veracity and acceptance of responsibility. The Court has no reason to disbelieve McCarthy’s testimony on this point, and Heatley has adduced no evidence to suggest that McCarthy did not live up to her promise. 3. McCarthy Would Let Sehapiro Know if it “Wasn’t Going Any-tohere” Finally, McCarthy promised that she would let Sehapiro know if there ever came a time when the proffering “wasn’t going anywhere.” As with the first assurance, there is some difference in the interpretation of this promise. Heatley appears to argue that this promise required McCarthy to apprise Sehapiro and Heatley immediately of any position taken by Heatley which, if ultimately held to, would prove fatal to a cooperation agreement. The government’s position, on the other hand, is that the most this promise meant was that if McCarthy (or her superiors) ever reached the point where they felt that further proffering was pointless because there was no reasonable chance of a deal, then McCarthy would inform Heatley and Sehapiro of that fact. The government’s interpretation is the only reasonable one in light of the proffering process. As the government correctly points out, and as McCarthy directly stated to Heatley, a great part of the proffer process is a means for determining the credibility and veracity of the potential cooperator. If the government immediately responded to the defendant every time he said something with which the government disagreed, the potential cooperator would be able to tailor his statements to meet the government’s expectations, and the value of the proffers as a “truthfulness meter” would be severely impaired. In fact, requiring otherwise might even work against cooperators, in that once the government clearly expressed that it had reason to believe the profferer was lying, any change to the potential cooperator’s story would have far less credibility than if he came around spontaneously. It is not unreasonable for the government to simply urge the potential cooperator to tell the truth, then take his statements and judge for themselves whether he is doing so. Moreover, as McCarthy testified, it is not uncommon for a potential cooperator to come the truth gradually rather than to be completely honest from the start, particularly if the crime is one for which it is particularly difficult to take responsibility. Often a prosecutor can, by continuing to press the profferer, bring him around to the truth, and McCarthy testified that that is precisely what she felt was going on during the sessions — that Heatley was “making progress.” Given this reality, it would not be fair to say, immediately upon the first problem the government had with Heatley’s testimony — even a fairly major problem — that the proffer sessions had reached the point of “not going anywhere.” In fact, McCarthy testified that she did not feel they had reached any point that represented an impasse so difficult that it was unlikely to be overcome. McCarthy felt that she was developing a rapport and a trust with Heatley and was convinced that she could bring him around on any problems. However optimistic this might have been on McCarthy’s part, the relevant fact is she never considered the proffer sessions to be going nowhere, and this Court credits her testimony on this point. The government therefore did not breach this last assurance. B. The Good Faith of the Government’s Denial Heatley’s next claim is a more general assertion that the government acted in bad faith when it denied Heatley a cooperation agreement. The first question to be addressed is the scope of review which this Court has over the government’s decision. Heatley relies upon the line of Second Circuit cases dealing with the government’s refusal, as part of a plea agreement, to make a substantial assistance motion under U.S.S.G. § 5K1.1, and the courts’ ability to scrutinize that refusal for good faith. See United States v. Imtiaz, 81 F.3d 262, 264 (2d Cir.1996); United States v. Leonard, 50 F.3d 1152, 1157-58 (2d Cir.1995); United States v. Knights, 968 F.2d 1483, 1486-88 (2d Cir.1992); United States v. Khan, 920 F.2d 1100, 1104-05 (2d Cir.1990); United States v. Rexach, 896 F.2d 710, 712-14 (2d Cir.1990). The government, in response, argues that, absent an agreement, the government’s refusal can only be scrutinized for unconstitutional motivation. See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 1843-14, 118 L.Ed.2d 524 (1992). In Rexach, the Second Circuit outlined the principles for judicial review of prose-cutorial discretion to make substantial-assistance motions under U.S.S.G. § 5K1.1. Rexach held that, where a plea agreement includes an obligation by the government to make a § 5K1.1 motion in exchange for the defendant’s cooperation, the prosecutor’s decision not to make the motion is judicially reviewable. This is so even if the determination of whether the defendant has rendered “substantial assistance” is expressly left to the discretion of the prosecutor. The prosecutor’s discretion is not completely unlimited because there is an implied obligation of good faith and fair dealing in every contract. The scope of the government’s discretion, though broad, does not “permit it to ignore or renege on contractual commitments to defendants.” Of course, where the government has made no contractual commitments, such as when there is no cooperation agreement, the government is free to refuse to make a substantial-assistance motion on any ground it chooses, limited only by the obligation that limits all prosecutorial decisions — the obligation to uphold the constitution. Thus, only if the decision is based on “such impermissible considerations as race, religion, or the desire to prevent the defendant’s exercise of constitutional rights” may the decision be overturned. Rexach may be summed up this way: the prosecution may never base its decision on an unconstitutional motive, and the government will be held to any commitments it makes. Concomitant with these principles, the Second Circuit in later cases laid out the procedure to be followed when a defendant challenges a prosecutor’s decision not to make a § 5K1.1 motion. Where there is no cooperation agreement — i.e., no commitment on the government’s part to make a motion under any circumstances- — the defendant may only challenge an unconstitutional motivation, and must therefore present evidence of, and prove, such a motive. To warrant a hearing on such a claim, the defendant must make a “substantial threshold showing.” Wade, 504 U.S. at 186, 112 S.Ct. at 1844. Where, however, the government has undertaken a commitment to make a motion, a defendant can subject the government’s failure to do so to more searching review, see Leonard, 50 F.3d at 1157, and his or her burden to gain an evidentiary hearing is correspondingly lower. In such cases, there is a three-step procedure to trigger judicial review of the prosecutor’s decision. First, the defendant “must first allege that he believes the government is acting in bad faith.” Imtiaz, 81 F.3d at 264 (quoting Khan, 920 F.2d at 1106). This shifts the burden to the government to “ ‘rebut this allegation by explaining its reasons for refusing to depart.’ ” Id. (quoting Knights, 968 F.2d at 1487). The burden is then on the defendant to “make a showing of bad faith to trigger some form of hearing on that issue.” Id. Such a showing may be made if “the government’s reasons are wholly insufficient” or “the defendant’s version of events, supported by at least some evidence, contradicts the government’s explanation.” Id. With these principles in mind, the Court turns to the case at hand. There was, of course, no cooperation agreement in this case, so Rexach. and its progeny are not directly applicable. However, the Court sees no reason why the principles underlying these cases are not fully applicable. Thus, as the government concedes, its decision not to give Heatley a cooperation agreement cannot be based on an unconstitutional motive, a point addressed later in this Opinion. The more disputed question is whether the government undertook any specific commitments to Heatley in setting up the proffer sessions (other than the three discussed earlier). The government contends that it did not, and that therefore this Court has no power to review its decision not to offer Heatley an agreement. The Court disagrees, but only to a very limited extent. When the government sat down with Heatley for the proffer sessions, it made one commitment: that the U.S. Attorney’s office would consider in good faith whether to offer Heatley a cooperation agreement. This promise is implicit in the very structure of the proffer session/cooperation process — needless to say, most defendants would not simply walk in and, in effect, confess to the charges against them without some possibility of leniency. It is, moreover, implicit, if not explicit, in everything McCarthy told Heatley prior to the first proffer session about the cooperation process. See, e.g., Tr., at 34 (“After he had been fully debriefed, we would be able to determine whether or not a cooperation agreement could in fact be offered to him.”); id. (describing benefits of cooperation agreement to Heatley); id. at 35-36 (information would be reviewed with supervisors to decide whether or not to offer a cooperation agreement). Thus, in contrast to the situation in which there is no agreement, the government here has undertaken some commitment which this Court finds is subject to judicial review — namely, a commitment to give good-faith consideration to offering Heatley a cooperation agreement. To state this commitment, however, is to state how minimal a commitment this really is— and, correspondingly, how minimal the scope of judicial review is. Unlike the situation in which the government actually has an obligation to make a motion which is triggered by the defendant’s substantial assistance — and which a court is competent to review to determine whether the government has any good-faith basis for claiming that obligation has not been triggered — the government here undertook no such commitment to Heatley — that is, the government never said that upon fulfillment of certain conditions, Heatley would receive a cooperation agreement. The most that could be said is that the government promised that, if Heatley were truthful and his information were sufficiently useful, he would get a cooperation agreement, but it is immediately apparent that the nature of this “sufficiently useful” condition is much different than the conditions upon which the government’s obligations in, for example, Knights rested. In Knights, the plea agreement required the defendant to “provid[e] truthful information and testimony” and to “appear[ ] at such grand jury proceedings, hearings, trials, and other judicial proceedings” as required by the U.S. Attorney. See Knights, 968 F.2d at 1487. All that was ever asked of the cooperator was to testify at the trial of a codefendant, which he did. The government refused to make a § 5K1.1 motion, citing among other things the fact that Knights’ testimony was inconsistent with that-of another witness. The Second Circuit held that this was an insufficient reason, despite the fact that the plea agreement gave the U.S. Attorney “sole and unfettered discretion” whether to make the motion, because all that was required of the cooperator was truthful testimony. Moreover, the court noted, although a court is usually obliged “to allow considerable deference to the government’s evaluation of a defendant’s cooperation,” because the cooperation agreement only required truthful testimony, “the district court [was] well-situated to review the defendant’s performance of his obligations under the plea agreement.” Id. at 1488. In contrast to Knights, however, whether a defendant’s information is useful to the government is an assessment uniquely available to the prosecution, for it rests on many considerations known only to the government, not the least of which is the value of pursuing prosecutions against the potential cooperator and those against whom his information is potentially useful. Not only is this an assessment which courts are patently not competent to make, even if they were, to do so would represent a judicial invasion of Executive Branch prerogatives that almost certainly would be unconstitutional. Thus, this Court’s review of the decision not to offer Heatley a cooperation agreement is limited to one question: did the government give good-faith consideration to making Heatley a cooperator? The Court has no evidence that it did not. McCarthy testified that the decision to deny an agreement and stop the proffer sessions was made at a meeting of her supervisors, based upon McCarthy’s report of the sessions. Further, the topic of a possible cooperation agreement was reopened at the November 15 meeting and discussed again at the December 31 meeting. There is thus every indication that the decision was carefully considered. Moreover, the reason for denying Heatley an agreement — namely, that the value of his cooperation was insufficient to outweigh his culpability — does not begin to approach the level of unsupportability on the record that would be necessary to find bad faith. Moreover, it is clear that Heatley is not entitled to further evidentiary hearings on the government’s good faith. Applying the procedure set forth in Khan and its progeny, Heatley has presented no evidence which contradicts the government’s version on the issue of its good faith consideration. The Court finds that the government did not breach its obligation of good faith consideration under the proffer agreements. II. Unconstitutional Motivation Heatley also asserts that there is evidence suggesting an unconstitutional motive on the part of the government in denying Heatley a cooperation agreement — namely, that the decision was made on the basis of (1) Heatley’s race, or (2) the desire of the Southern District U.S. Attorney’s Office to bring its first capital prosecution. As proof of this fact, Heatley cites to evidence of various white defendants who received cooperation agreements “despite criminal conduct that far exceeded that which Heatley allegedly committed.” Def.Rep.Supp.Mem., at 7. Heatley does not contend that this point has been proven, only that the evidence presented warrants further discovery as to the government’s decisionmaking processes. As noted, the government concedes that its decision not to offer Heatley a cooperation agreement cannot be based on an unconstitutional motive, such as discrimination on the basis of race or religion, or the desire to prevent the exercise of constitutional rights. See Gov’t Opp. Mem.Supp., at 9; Wade, 504 U.S. at 185, 112 S.Ct. at 1843-14 (1992) (prosecutor’s decision not to move for downward departure based on substantial assistance subject to review for unconstitutional motive); United States v. Brechner, 99 F.3d 96, 99 (2d Cir.1996) (same). Nor can the government’s decision be wholly arbitrary — i.e., it must be rationally related to a legitimate government objective. See Wade, 504 U.S. at 186, 112 S.Ct. at 1844. The government contends, however, that there is no evidence to support the defendant’s claim. As noted, Heatley does not contend that he has proven his claim, merely that he has shown enough to warrant further discovery. While Heatley’s claim is not precisely the same as the selective prosecution claim pressed in United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), in that Heatley challenges not the initial charging decision as in Armstrong but rather the government’s continued prosecution in the face of an offer to cooperate, the Court sees no reason why the threshold showing for discovery should differ from Armstrong on that ground. As in Armstrong, Heatley’s claim asks the Court “to exercise judicial power over a ‘special province’ of the Executive.” Id. at 464, 116 S.Ct. at 1486. The factors going into the prosecution decision in Armstrong —“the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan” id. at 465, 116 S.Ct. at 1486 — and which were held to be “not readily susceptible to the kind of analysis the courts are competent to undertake,” id., are all present in the government’s decision not to offer a cooperation agreement to Heatley. In fact, there is at least one more factor to add to the list — the value of Heatley’s assistance to the government, an assessment only possible, if at all, if the government were to reveal the evidence already available to it in the cases for which Heat-ley possibly could have supplied assistance. Even more so than in Armstrong, the concern “not to unnecessarily impair the performance of a core executive constitutional function,” id., is particularly high in evaluating decisions to offer cooperation. In order to establish entitlement to discovery on a selective prosecution claim, the defendant must present “ ‘some evidence tending to show the existence of the essential elements of the defense,’ discriminatory effect and discriminatory intent.” Id. at 468, 116 S.Ct. at 1488 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). In order to establish discriminatory effect, the defense must, at a minimum, produce “some evidence that similarly situated defendants of other races could have been prosecuted, but were not....” Id. at 469, 116 S.Ct. at 1488. As for intent, this may be established by, among other things, direct evidence of intent (perhaps in the form of statements by the decisionmaker) or circumstantial evidence of disproportionate impact. See United States v. Armstrong, 48 F.3d 1508, 1513 (9th Cir.1995), rev’d on other grounds, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); see also Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69 (1986) (“Circumstantial evidence of invidious intent may include proof of disproportionate impact”); cf. Catanzaro v. Weiden, 140 F.3d 91, 96 (2d Cir.1998) (statistical evidence plus comments by decisionmaker preclude summary judgment on issue of invidious intent in equal protection claim). As to discriminatory effect, Heatley provides evidence, in the form of affidavits and testimony from his defense counsel, of five defendants — all white — who received cooperation agreements despite committing crimes allegedly as serious as those charged against Heatley. See Futerfas Aff.; Tr., at 502-04. Even assuming that Heatley’s counsel are competent to testify as to these five cooperators, this evidence is insufficient to establish the discriminatory effect prong. First, the affidavits only allege that these defendants were offered cooperation agreements by “the government,” and do not assert that they were offered by the Southern District of New York U.S. Attorney; the most stated is that two of these men have testified in Southern District cases. Even assuming, however, that the relevant decisionmaker against whom selective prosecution is being alleged is the United States government as a whole (as embodied, perhaps in the Attorney General), there is insufficient evidence from which to conclude, even as a prima facie showing, that these defendants are “similarly situated” to Heatley, for we know nothing about these five cooperators other than the number of murders and other crimes allegedly committed. We know nothing about these defendant’s positions in their relevant organizations, and importantly, there is no evidence of the quantity or quality of assistance provided by these cooperators. Given the importance of this factor in the Heatley denial, it is impossible to determine if these defendants are similarly situated, and this Court will not lightly presume these facts given the “substantial threshold showing” required for an evidentiary hearing. See Wade, 504 U.S. at 186, 112 S.Ct. at 1844; Armstrong, 517 U.S. at 468, 116 S.Ct. at 1488 (requiring “rigorous” standard for discovery in a selective prosecution claim). Even were this a sufficient showing of discriminatory effect, however, there is no evidence of discriminatory intent. The sole piece of evidence offered is the remark by Elizabeth Glazer at the November 15 meeting, in which she said that one reason for denying Heatley a cooperation agreement was the low probability that, given the crimes alleged, any judge would entertain a serious downward departure. In light of the five cases cited, Heatley says, Glazer must have known this statement to be false and, therefore, it “only makes sense if Ms. Glazer devalued Heat-ley’s cooperation compared to similarly situated white defendants.” Def. Rep.Supp.Mem., at 7. The Court will not join Heatley in this extraordinary inferential leap. While, as noted earlier, the Court is inclined to agree with the defense that Glazer’s statement was probably disingenuous — i.e., the risk that Heatley might cooperate yet receive no benefit from a sentencing judge is highly unlikely to be more of a concern to the USAO than to the defendant himself — such dissembling hardly suggests racial animus. As for Heatley’s argument that the denial was due to a desire on the part of the Southern District office to pursue a capital case, that claim fails as well. First, while this Court would hope that no member of the U.S. Attorney’s office would reject a cooperation agreement and pursue a prosecution solely for the purpose of getting his or her first death sentence, it is far from clear that such a motive would be unconstitutional, provided that the prosecution could in good faith assert that the defendant had committed a capital crime which was of sufficiently unusual severity to “warrant” the death penalty. The gov-eminent could believe that the deterrence value of the death penalty is severely undermined by a complete lack of capital prosecutions, and whether this Court would agree with that assessment or not, it would be difficult to conclude that such reasoning runs afoul of the minimal standards of the rational-basis test. Having failed to make the required “substantial threshold showing” on the claim that the decision to deny Heatley a cooperation agreement was based on an unconstitutional motive, the Court denies the request for further discovery on this issue. III. Mutual Mistake Heatley also argues that, should this Court disagree with his breach of promise and bad faith arguments, rescission of the proffer agreements is warranted based upon “mutual mistake” — in this case, the apparent difference in meaning attached to McCarthy’s first promise. Schapiro believed that this promise meant that Heatley’s culpability would not be weighed at all in the decisionmaking process, while McCarthy believed that it meant his culpability would not automatically rule Heatley out as a cooperator if he provided sufficiently substantial assistance. As noted, this Court has found McCarthy’s interpretation to be the reasonable meaning of the assurance. To begin with, Heatley is incorrect to argue that this disagreement is governed by the contract doctrine of mutual mistake. The mutual mistake doctrine concerns only mistakes as to facts existing at the time of contract formation. See, e.g., Restatement (Second) of Contracts §§ 151, 152. Moreover, the mistake here was obviously not “mutual,” in that both parties shared the same erroneous assumption, but rather it is unilateral. Heatley’s claim is, instead, one of misunderstanding as to the meaning of the promise and, thus, a failure of mutual assent. It is clear that, under general contract law principles, a party may not be bound by the meaning attached to a promise by the other party if the first party had no reason to know of the other