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August 18, 1997

JOSE FLORES a/k/a "Blue"

The opinion of the court was delivered by: DUBOIS


 AUGUST 18, 1997

 Presently before the Court is the request *fn1" of defendant Jose Flores for an order compelling the Government to file a motion to depart downward from the United States Sentencing Commission Guidelines ["U.S.S.G."] imprisonment range under U.S.S.G. § 5K1.1 and the mandatory minimum term of imprisonment under 18 U.S.C. § 3553(e). *fn2" Defendant seeks this remedy because he contends that the Government breached his Plea Agreement of March 4, 1994 by acting with an unconstitutional motive, a purpose not rationally related to a legitimate government end, or bad faith in refusing to file a downward departure motion. See Defendant's Supplemental Memo. of Law, at 3. It is the position of the Government that in failing to provide full and truthful cooperation, defendant did not comply with the terms of the Plea Agreement and, because of this breach, the Government is released from its obligations under the Agreement, including the provisions relating to the filing of a downward departure motion.

 The Court concluded that defendant was entitled to a hearing on the issue. Cf. United States v. Khan, 920 F.2d 1100, 1102 (2d Cir. 1990), cert. denied, 499 U.S. 969, 113 L. Ed. 2d 669, 111 S. Ct. 1606 (1991). The hearing was held on April 12, 1996 and was continued on April 26, 1996.

 I. Background

 An Indictment filed on July 28, 1993 charged defendant and eleven others with, inter alia, conspiracy to distribute cocaine during the period March 1991 to October 1991. As part of the conspiracy, defendant worked for Cristobal Paz, *fn3" a major distributor of cocaine in the Philadelphia area. Initially, defendant was primarily responsible for coordinating the delivery of that cocaine to two other associates of Paz in the Baltimore area, James Graham and Earl Andrews, and collecting the proceeds from such sales. Pre-Sentence Report, at PP 102, 104. The cocaine defendant delivered for Paz was obtained by Paz from Oscar Delapuente, a co-defendant in Florida, and sources in New York. Defendant's relationship with Paz was short-lived due to a dispute over missing drug proceeds. Thereafter, for a short time, Delapuente, independently of Paz, supplied defendant with cocaine which defendant, in turn, distributed to Graham and Andrews. Significantly, although unknown to the Government until the Fall of 1995, defendant also was supplied with cocaine by Fernando Robles; defendant also sold that cocaine to Graham and Andrews.

 On March 4, 1994, defendant pled guilty to Count One of the Indictment, charging him with conspiracy to distribute more than fifty kilograms of cocaine. In his written Plea Agreement dated that same day, defendant agreed to cooperate by providing "truthful, complete and accurate information," including "all information concerning his knowledge of, and participation in, the distribution of cocaine from in or about March 1991 through in or about October 1991, and any other crimes about which he has knowledge." Plea Agreement at P 2(a), (b). Defendant also agreed that he would not "protect any person or entity through false information or omission." Id. at P 2(c). Under the Agreement, defendant's obligation to cooperate was ongoing and was to continue even after sentencing. Id. at P 2(i). The Agreement also stated that "if the government determines that defendant has not provided full and truthful cooperation ... the agreement may be voided by the government." Id. at P 2(j).

 The filing of a downward departure motion by the Government was covered in Paragraph 4(c) of the Agreement, which provides:

If the Government in its sole discretion determines that the defendant has fulfilled his obligations of cooperation as set forth above, at the time of sentencing, the government will . . . make a motion to allow the Court to depart from the Sentencing Guidelines pursuant to Sentencing Guidelines § 5K1.1 and the mandatory minimum term of imprisonment pursuant to 18 U.S.C. § 3553(e), if the government, in its sole discretion, determines that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.

 Id. at P 4(c). Thus, the Government's obligation to file a downward departure motion as contemplated in Paragraph 4(c) is contingent upon defendant meeting two conditions. First, the Government must determine that defendant has provided truthful, complete and accurate information as required by Paragraph 2 of the Plea Agreement. Id. Second, the Government must conclude that defendant has "provided substantial assistance in the investigation or prosecution of another person who has committed an offense." Id.

 On June 13, 1994, the Government filed a Consolidated Sentencing Memorandum in which it explained that "each of the eleven defendants being sentenced [the twelfth defendant, Lucy Rosario, was awaiting trial] at this time have cooperated with the government to a sufficient degree for the government to move to depart from their sentencing guidelines and their mandatory minimum terms of imprisonment that would otherwise be applicable." Sent. Memo. at 1-2. With respect to defendant, the Government stated that he should "receive full credit" for his cooperation and assistance. Sent. Memo. at 21.

 In assessing the degree of defendant's cooperation in the Consolidated Sentencing Memorandum, the Government ranked defendant as having been the eighth best cooperator out of the eleven cooperating defendants. The Government described his cooperation as "at best fair" and noted that he waited until shortly before trial to plead and cooperate and that "to date, he has failed either to admit or convincingly refute his alleged involvement in the theft of $ 150,000 in drug proceeds." Sent. Memo. at 20-21. Nevertheless, because "his decision to plead guilty was essential to the decision of his close friend, Jose Rosario, to also plead guilty" and because "he was willing to testify against Lucy Rosario, but ultimately was not needed," the Government stated in the Sentencing Memorandum that it would file a downward departure motion at sentencing, despite the inadequacies of defendant's cooperation known at that time. Id.; see also Apr. 12, 1996, Tr. at 37. At the hearing on this matter the parties stipulated that in June 1994 the Government would have moved at sentencing for a downward departure for defendant "based on what [it] knew at the time." Apr. 26, 1996, Tr. at 62-63.

 During the interview on March 7, 1994, in response to questions about drug activities, defendant did not tell the Government about Robles or Katelas. Prior to interviewing Katelas, the Government had no information that defendant had a drug relationship with Robles; additionally, Special Agent McGowan did not know about Katelas or his dealings with defendant until Special Agent Hadden reported to him about the Katelas interviews in October and November 1995 interviews.

 Robles was a "major drug trafficker" who had been investigated by the Government beginning in the Summer of 1994. The Government had sought corroborative evidence in furtherance of that investigation but was unsuccessful and closed the investigation in the Fall of 1994. Apr. 26, 1996, Tr. at 10, 55-56. After receiving Katelas' information, the agents who had been assigned to the Robles case, Special Agent Hadden, along with Special Agent Grizzle of the FBI, asked Special Agent McGowan, to arrange an interview with defendant, who was on bail and awaiting sentencing, in order to determine whether defendant could provide information which would warrant reopening the Robles investigation. Id. at 57.

 On November 9, 1995, Special Agent McGowan contacted defendant while defendant was reporting to his probation officer. Special Agent McGowan requested that defendant submit to questioning with Special Agents Hadden and Grizzle either at that time or at an appointed time, Apr. 26, 1996, Tr. at 99, and informed defendant that defendant should call his attorney if he wanted him to be present, id. at 99. Defendant's attorney had not been informed of this meeting, and defendant began the interview without his attorney. Defendant was initially "reluctant to interview," Apr. 12, 1996, Ex. G-3 at 2, because he believed that he had already completed his cooperation and was no longer obligated to answer questions, Apr. 26, 1996, Tr. at 61. After Special Agent McGowan showed him a copy of his Plea Agreement and correctly informed him that the Agreement required him to cooperate with the Government regarding his knowledge of and participation in the charged conspiracy and any other crime about which he had knowledge, defendant agreed to be interviewed by Special Agents Hadden and Grizzle. Id. In the interview Special Agents Hadden and Grizzle advised defendant they had received information that defendant had been supplied with cocaine by someone whom defendant had not previously disclosed to Special Agent McGowan during his interviews in the Spring of 1994. Thereafter, defendant identified Robles and several other people from photographs, but said that he had no information concerning their drug trafficking activities. See Apr. 26, 1996, Tr. at 59. After having done so defendant stopped the interview in order to consult with his attorney. "He was told that the agents assigned to the investigation did not believe his responses ... and [that] after he spoke to his attorney, he should contact the agents again." Apr. 26, 1996, Tr. at 78-79, see also id. at 62, 109. ...

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