Similarly, although Katelas was the sole individual who informed the Government that Robles had supplied the cocaine to defendant which defendant sold to Graham and Andrews in the Baltimore area, see Apr. 26, 1996, Tr. at 116, 121, Special Agent McGowan testified that circumstantial evidence known to him as the lead agent investigating defendant's case corroborated Katelas' statement. He explained that after defendant stopped working for Paz and after Delapuente was no longer supplying cocaine to defendant, Graham and Andrews continued to receive cocaine. Apr. 26, 1996, Tr. at 121. Based on his interview with Graham, Special Agent McGowan also learned that, after defendant's relationship with Paz and Delapuente ended, Graham and Andrews obtained cocaine through defendant. See Apr. 12, 1996, Ex. D-2, at 3-4 (report of Special Agent McGowan's interview of December 21, 1993 with Graham); see also Apr. 26, 1996, Tr. at 21. And, there is no evidence of any supplier of cocaine to defendant other than Robles after defendant ended his relationships with Paz and Delapuente. Taken collectively, the information known to Special Agent McGowan before March 25, 1996 corroborated Katelas' statement that Robles supplied cocaine to defendant and that defendant sold it to Graham and Andrews.
The Court concludes that although the Government did not reinterview any witnesses other than Katelas before filing its Consolidated Supplemental Sentencing Memorandum on March 25, 1996, in light of the fact that the Government had already gathered credible evidence and sufficient corroboration to support its determination that defendant had lied from the very beginning about material issues, the Government's approach was not inappropriate. And, statements by Rosario and Graham after March 25, 1996 also corroborate Katelas' admission that he was a courier for defendant.
Nor does the Court find that the Government's decision was made in a hasty or improper manner. On March 20, 1996, Special Agent McGowan, former AUSA Suddath, and AUSA Schwartz and decided to investigate further before making a final decision regarding whether to seek a downward departure for defendant. Apr. 26, 1996, Tr. at 78-80. It was not until Special Agent Hadden reinterviewed Katelas on March 21, 1996 and reported that he still found Katelas to be credible that the Government decided it would not move for a downward departure. Apr. 26, 1996, Tr. at 80-81. In addition, AUSA David B. Webb, Chief of the President's Organized Crime & Drug Enforcement Task Force, and AUSA Louis R. Pichini, Chief of the Criminal Division, reviewed and approved this decision. Apr. 26, 1996, Tr. at 82.
Finally, the Government was not required to afford defendant an opportunity to correct his statements and omissions, especially in view of the fact that, as explained infra, see Part II.B.2, the Government was prejudiced in its investigation of Robles by defendant's initial lies. See United States v. Brechner, 99 F.3d 96, 99 (2d Cir. 1996) (finding that although defendant had corrected his lies, breach of cooperation agreement was still material); United States v. Hoffenberg, 908 F. Supp. 1265, 1280 (S.D.N.Y. 1995) ("The government may permit a defendant to cure his dishonesty, but it is not required to do so and certainly need not do so continuously."). Moreover, although not necessary to the Court's decision, it can be argued that defendant passed up an opportunity to cure his breach after stopping the November 9, 1995 interview
because he did not contact the agents again and did not accept their offer to take a polygraph examination. That Mr. Mozenter thereafter asked the Government to contact him before interviewing defendant does not alter the fact that neither Mr. Mozenter nor defendant took any affirmative steps to cure defendant's breach.
2. Treatment of Jose Rosario vis-a-vis Defendant
Second, defendant asserts that the Government's treatment of him, for whom it did not move for a downward departure, relative to Jose Rosario, on whose behalf the Government did make such a motion, is evidence of an unconstitutional motive, a purpose not rationally related to a legitimate government end, or bad faith. Defendant's argument is based upon the premise that he and Rosario, in failing to truthfully provide all known information to the Government, acted improperly to the same degree. Defendant's premise is faulty; because there are material differences between their situations, see generally Letter from AUSA Schwartz, dated April 29, 1996, at 1-2,
the Government was justified in moving for a downward departure for Rosario but not for defendant. See United States v. Paramo, 998 F.2d 1212, 1221 (3d Cir. 1993), cert. denied, 510 U.S. 1121, 127 L. Ed. 2d 393, 114 S. Ct. 1076 (1994).
Initially, by way of background, the Court notes that defendant played a more integral role in drug trafficking than did Rosario. Defendant was responsible for coordinating the delivery of Paz's cocaine and distributing cocaine provided by others--Delapuente and Robles. Rosario, on the other hand, assisted defendant in transporting cocaine, serving primarily as a courier. Pre-Sentence Report, PP 102, 137.
Defendant's direct link with Robles is quite significant in distinguishing defendant from Rosario. Although information from Katelas, initially received in the Fall of 1995, regarding Robles' drug activities in the Philadelphia area corroborated information received in the Summer of 1994 from an individual in Florida, the Government did not believe that its information from Katelas and the Florida informant was sufficient to warrant reopening its investigation against Robles. Apr. 26, 1996, Tr. at 55-56. However, had defendant, who had direct dealings with Robles, disclosed that information to the Government in March of 1994, the Government would have had additional corroborating evidence to consider in connection with the decision in the Fall of 1994 to continue or end the Robles investigation. Apr. 26, 1996, Tr. at 57. To the contrary, like Katelas, Rosario did not have direct dealings with Robles, but, like Katelas, either knew of defendant's dealings with Robles through personal observation or conversations with defendant, according to Katelas.
Apr. 12, 1996, Tr. at 79-80, 103; Apr. 26, 1996, Tr. at 113. As a result, Rosario, like Katelas, could not have been as valuable a witness in the investigation and prosecution of Robles as defendant.
Additionally, defendant lied in response to direct questioning when asked to identify his cocaine suppliers at his March 7, 1994 interview--and never recanted any of his statements prior to the sentencing phase of his case. Apr. 26, 1996, Tr. at 75; see also Apr. 12, 1996, Tr. at 14-17. On the other hand, Rosario corrected his false testimony, at least in part, on the same day on which he was confronted about it. Special Agent McGowan testified that this distinction was a significant factor in deciding not to file a downward departure motion for defendant but to file such a motion on behalf of Rosario. Apr. 26, 1996, Tr. at 87, 103; Government's Supplemental Memo. Regarding its Decision to Not File a Downward Departure Motion, at 2. Although Rosario recanted his statements regarding only Katelas, not Robles, and, even then, was not completely forthcoming, according to Special Agent McGowan, Apr. 26, 1996, Tr. at 114, it was significant to the Government that he admitted he lied, and corrected his statements to some extent, as compared to defendant who did not admit his mendaciousness to any extent. Thus, rather than not moving for a downward departure for Rosario, the Government opted to make that information known to the Court at Rosario's sentencing, Apr. 26, 1996, Tr. at 85-86, and asked for a limited departure. Apr. 11, 1996, Rosario Sentencing Tr. at 10-11, 22.
3. The Change in the Government's Position Regarding the Filing of a Downward Departure Motion
The Government's final decision not to file a downward departure motion, after having stated in its Consolidated Sentencing Memorandum dated June 13, 1994 that it had decided to do so, was not made with an unconstitutional motive, a purpose not rationally related to a legitimate end or bad faith. The Plea Agreement conditioned the Government's obligation to file a downward departure motion upon two requirements: the Government in its sole discretion must determine that defendant provided both (1) complete and truthful cooperation and (2) substantial assistance in the investigation or prosecution of another person. In the Consolidated Sentencing Memorandum the Government stated that defendant's cooperation was "fair," and noted that "to date" he had failed to admit or refute his alleged involvement in the theft of drug proceeds. Consol. Sent. Memo. at 21. Nevertheless, the Government explained that "he should receive full credit for having another defendant [Jose Rosario] plead guilty after [defendant] decided to cooperate" and because defendant "was willing to testify against Lucy Rosario, but ultimately was not needed." Id.18
The Government's subsequent discovery of defendant's incomplete and false cooperation justified it in reversing its initial decision. See United States v. Edwin Ramos, 971 F. Supp. 199, 1997 U.S. Dist. LEXIS 10877, 1997 WL 404028, *9 (E.D. Pa. 1997). It is clear that the Government did not become aware of defendant's lies and omissions regarding Robles and Katelas until the Fall of 1995, long after it had filed its Consolidated Sentencing Memorandum in June 1994. Thus, in March 1996, by which time the Government had established through sufficiently corroborated information that defendant had failed to provide complete and truthful cooperation, the Government could, in good faith, refuse to file a downward departure motion because defendant had failed to satisfy the first of the two pre-requisites for the filing of such a motion. See United States v. Stringfellow, 1996 U.S. App. LEXIS 13387, *10, No. 95-1397, 1996 WL 315750 (10th Cir. June 5, 1996) (where defendant breached plea agreement by not appearing for sentencing Government was justified in withdrawing motion for downward departure, which had been filed the day before the scheduled sentencing) (unpublished opinion), cert. denied, 136 L. Ed. 2d 333, 117 S. Ct. 435 (1996).
Moreover, because the Plea Agreement provides that any untruthful cooperation may void the Agreement, the Government would have been justified in voiding the entire Agreement, not just the provisions relating to a downward departure motion for substantial assistance.
The Court concludes that defendant has not met his burden of proving by a preponderance of the evidence that the Government acted with an unconstitutional motive, a purpose not rationally related to legitimate government end or in bad faith in refusing to file a downward departure motion. The Government did not breach the Plea Agreement. Rather, after carefully considering the record, the Court finds that there was sufficient evidence to justify the Government's determination that defendant lied and withheld material information in his March 7, 1994 interview and thus breached the Plea Agreement. The Court also finds that the Government acted both reasonably and fairly in refusing to file a motion for downward departure on behalf of defendant, even after it had previously stated in its Consolidated Sentencing Memorandum that, at that time, it had decided to file such a motion. Similarly, because the Court concludes that there were material differences between the conduct of Rosario and defendant, the Government was further justified in moving for a downward departure on behalf of Rosario while refusing to do so on defendant's behalf. As a result, defendant's request for an order compelling the Government to file a downward departure motion will be denied.
An appropriate order follows.
AND NOW, to wit, this 18th day of August, 1997, upon consideration of the request of defendant, Jose Flores, a/k/a "Blue," for an order compelling the Government to file a downward departure motion pursuant to § 5K1.1 of the United States Sentencing Guidelines and 18 U.S.C. § 3553(e), and the submissions of the parties relating to that request, following a hearing on April 12, 1996, continued to April 26, 1996, for the reasons set forth in the attached Memorandum, IT IS ORDERED that defendant's request for an order compelling the Government to file a downward departure motion pursuant to § 5K1.1 of the United States Sentencing Guidelines and 18 U.S.C. § 3553(e) is DENIED.
IT IS FURTHER ORDERED that, in addition to exhibits received in evidence at the hearing on April 12, 1996, continued to April 26, 1996, the following documents also ARE RECEIVED IN EVIDENCE :
(1) the letter from AUSA Schwartz to Robert B. Mozenter dated April 1, 1996;
(2) the FBI report of the March 7, 1994 interview with defendant Jose Flores; and,