In an interesting Idaho Court of Appeals decision, the writing is on the wall for anyone cutting a cooperation deal that requires the Defendant to assist a drug task force by “identifying, apprehending, and convicting those people involved in the use, distribution, and manufacture of controlled substances.” No drugs – no deal! In State v. Chacon, Judge Lansing finds that the appellant had breached his cooperation agreement with the State when he was unable to buy dope as directed by the drug task force. Instead of a recommendation of five years fixed (twenty more indeterminate), the court upheld a sentence of fifteen fixed and twenty years indeterminate. Chacon, the Court reasoned, had breached his agreement. For his part, Chacon argued that it was impossible to perform because the good folks in the drug community figured he likely had some reason for his release from jail pending the outcome of the case. They were right – he had made a deal to dance, but the community cut off his legs. Nobody wanted to sell him drugs. My only question about this case is whether Chacon’s breach was intentional. Sure – he agreed to buy dope and help out the task force, but sometimes, no matter how hard they work at it, informants cannot get it done. The opinion suggests Chacon did not work very hard at this, so perhaps the result is not unexpected. Still, there is a good lesson here – a defendant’s failure to live up to the terms of his cooperation agreement will likely not be excused. There appears little room to argue about whether performance was impossible. More importantly for criminal defense lawyers with clients looking for an earlier release based on cooperation, make certain that your client can get it done.