What are the conditions of a deferred prosecution agreement with the government on the issue of the appellant's failure to cooperate with the prosecution?

United States v. Gogarty, 533 F.2d 93 (CA2 1976), cited by the government on the question of appellant's failure to cooperate, is far afield. It does not even involve an allegation of vindictive prosecution. There, the defendant entered into a formal written agreement with the prosecution in which he made a number of specific promises. The substance of the holding in Gogarty is that a defendant who is a party to a deferred prosecution agreement may not invoke the agreement against the government if he has violated the agreement. The defendant there had breached the agreement himself and had no contractual right not to be prosecuted. In Gogarty, there was clear cut evidence that the agreement had been violated on a number of occasions. Here, there is no formal agreement. For that matter, the appellant claims that he did fully cooperate in accordance with (his understanding of) the agreement, while the government claims that he violated the agreement in refusing to appear before the grand jury and testify at a trial. If, in fact, these conditions were a part of the agreement, the government was advised of the appellant's refusal to comply with them in the month of January and yet did nothing until October. When this evidence is combined with the fact that the government at no time expressed any dissatisfaction with the appellant's cooperation (from January to October), it becomes clear that it was not relying upon the breach of any such agreement to justify the felony indictment against the appellant. We hold that the government failed to overcome the appearance of vindictiveness so manifest on the face of this record.