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UNITED STATES v. CASSO

June 29, 1998

UNITED STATES OF AMERICA,
v.
ANTHONY CASSO, Defendant.



The opinion of the court was delivered by: BLOCK

MEMORANDUM AND ORDER

 BLOCK, District Judge:

 Pending before the Court is a motion by defendant Anthony Casso ("Casso"), a former underboss and consigliere in the Luchese crime family, for specific performance of his 1994 cooperation agreement. The government contends that it is not obligated to file a motion for a reduced sentence pursuant to § 5K1.1 of the Sentencing Guidelines because, inter alia, Casso committed crimes during the term of the cooperation agreement. *fn1" Casso contends that the government is acting in bad faith in seeking to disavow its obligation to file the § 5K1.1 motion. Specifically, he asserts that his conduct did not constitute a material breach of the cooperation agreement, that the government's stated reasons for abrogating the cooperation agreement are a pretext, and that the government entered into the agreement with the intent to breach it at a later time. Casso also challenges the conditions of his confinement and his removal from the Witness Security Program ("Program"). For the reasons set forth below, the Court determines, inter alia, that Casso's commission of other crimes while in prison, while perhaps not a material breach of the cooperation agreement, nonetheless justifies the government's honest dissatisfaction with his performance. Accordingly, Casso is not entitled to specific performance. The Court also determines that Casso must exhaust his administrative remedies in respect to his removal from the Program.

 BACKGROUND

 On March 1, 1994, Casso pleaded guilty before the Honorable Eugene H. Nickerson to 70 crimes, including racketeering and racketeering conspiracy in violation of 18 U.S.C. §§ 1962(c) and (d); murder, attempted murder, and conspiracy to murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (a)(5); and extortion in violation of 18 U.S.C. § 1951. During his plea allocution, Casso admitted to having conspired with other members and associates of the Luchese crime family to murder fifteen people. Certain of the charges to which Casso pleaded guilty carry a mandatory term of life imprisonment. In connection with his plea, Casso signed a cooperation agreement in which he pledged: (1) to be fully debriefed and to attend meetings concerning his participation in and knowledge of criminal activities; (2) to furnish to the Office of the United States Attorney for the Eastern District of New York ("Office") all documents and other materials relevant to the investigation that were in his possession, custody or control; (3) not to reveal his cooperation to any third party; (4) to testify at any proceeding in the Eastern District of New York, or elsewhere, as requested; and (5) to consent to adjournment of his sentencing. Casso also agreed to "give complete, truthful and accurate information and testimony, and [not to] commit, or attempt to commit, any further crimes." Notice of Motion ("Not. of Mot."), at Exh. "C," pg. 7. In return, "if the Office determined that the defendant had cooperated fully, provided substantial assistance to law enforcement authorities, and otherwise complied with the terms of the agreement," id., it would file a § 5K1.1 motion with the sentencing court setting forth the nature and extent of Casso's cooperation. However, the agreement also provided:

 
Should it be judged by the Office that ANTHONY CASSO . . . has failed to cooperate fully, or has intentionally given false, misleading, or incomplete information or testimony, has committed or attempted to commit any further crimes, or has otherwise violated any provision of this agreement, ANTHONY CASSO will not be released from his plea of guilty but this Office shall be released from its obligation under this agreement . . . to file the motion described . . . above.

 Not. of Mot., at Exh. "C," pg. 8.

 In addition, the agreement stated:

 
If the defendant requests and in the Office's judgment the request is reasonable, the Office will make application and recommend that the defendant . . . be placed in the Witness Security Program, it being understood that the Office has authority only to recommend, and the final decision to place an applicant in the Witness Security Program rests with the Department of Justice, which will make its decision in accordance with applicable Departmental regulations.

 Id. at pg. 9. The government did indeed recommend Casso for the Program, and the Department of Justice admitted him.

 By letter dated August 8, 1997, Casso's attorney was advised that it was the government's position that Casso had breached the cooperation agreement, and that the government would not submit a § 5K1.1 motion to the Court. Thereafter, on September 5, 1997, the government gave three reasons for its determination: (1) while imprisoned, Casso had assaulted another inmate; (2) Casso had participated in the smuggling of contraband into prison, and had bribed prison officials as part of this scheme; and (3) in an August 1, 1997 letter to the government, Casso had fabricated false information regarding the testimony of two other cooperating witnesses, Alphonso D'Arco ("D'Arco") and Salvatore Gravano ("Gravano"). Casso does not dispute having assaulted another inmate and does not contend that the assault was undertaken in self-defense, although he points out that there was bad blood between the two and that the other inmate had savagely attacked Casso several months earlier. Casso also admits to having bribed prison officials to smuggle contraband into the prison. Casso was transferred to another facility on August 29, 1997, and was removed from the Program on October 9, 1997. This motion ensued.

 In support of his claim that the government has acted in bad faith, Casso contends that: (1) his proffer session was unusually brief; (2) the government never allowed him to prove himself as a prosecution witness and would not permit him to testify at a State criminal trial in Kings County; (3) the government has not followed up on leads he provided; (4) agents from the Drug Enforcement Agency have never interviewed him; (5) the Office has repeatedly leaked information from Casso to the press; (6) the Office has warned other cooperating witnesses to stay away from him; (7) a prosecutor stated in 1995 that he believed that Casso could not be used as a witness; and (8) a former prosecutor, discussing the trial of Vincent Gigante with the New York Times several months before Gigante's trial took place, did not mention Casso as a potential witness.

 Although, as noted above, Casso admits to having assaulted another inmate and to having bribed prison guards to smuggle contraband into the prison facility, he claims that the government has singled him out for punishment and that other inmates have engaged in similar conduct without having their cooperation agreements terminated. Finally, Casso claims that he is being punished for providing information that calls into question the credibility of Gravano and D'Arco. Casso requests a hearing regarding his allegations of bad faith. He also contends that he is being treated very harshly by prison officials and that, because of risks to his personal safety, he should be reinstated to the Program and moved to a Witness Security Unit.

 The government concedes that Casso has given substantial assistance to law enforcement authorities, but argues that Casso's undisputed commission of crimes while in prison and his alleged fabrication of information regarding D'Arco and Gravano constitute breaches of the cooperation agreement that relieve the government from its contractual duty to file a § 5K1.1 motion. The government also contends that the Attorney General ...


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