United States District Court, Southern District of New York
January 9, 2002
UNITED STATES OF AMERICA,
DANIEL CHAPARRO, DEFENDANT.
The opinion of the court was delivered by: Denise Cote, United States District Judge:
OPINION AND ORDER
Having been unsuccessful in his effort to obtain a cooperation
agreement from the United States Attorney's Office (the "Government"),
defendant Daniel Chaparro ("Chaparro") has moved for a Section 5K2.0
downward departure at his sentence based on substantial assistance he
provided to the Bronx District Attorney's Office ("DA's Office") in its
prosecution of a murder case. The Government has opposed the motion,
relying in part on statements Chaparro made during proffer sessions not
only to the DA's Office but also to the Government. It contends that
Chaparro's statements demonstrate that Chaparro was not entirely
truthful when speaking with the DA's Office. Chaparro now seeks to
preclude the Government from relying on the statements he made during
these proffer sessions. Chaparro's motion to preclude is denied.
For years, brothers Oscar and Edgar Ortega (the "Ortegas") ran a heroin
and crack cocaine trafficking operation near 156th Street and Union
Avenue in the Bronx, New York. Oscar Ortega, the leader of the
organization, set prices, distributed drugs to his managers and
collected proceeds from drug sales. Edgar Ortega assisted Oscar with the
daily operation of the organization, supplied the managers with drugs,
offered discounts for purchases of larger quantities of drugs, collected
money from drug sales and acted as a lookout for the organization.
With the exception of those months in which he was incarcerated for
narcotics convictions, Chaparro worked for the Ortegas during the 1990s
until his arrest on May 10, 2000. Chaparro and Gilbert Ruiz ("Ruiz")
were managers in the Ortegas' organization. Ruiz managed the day shift
and Chaparro managed the evening shift. As managers, Chaparro and Ruiz
recruited, trained and supervised "pitchers" (individuals who sold drugs
hand-to-hand), distributed drugs to the pitchers, collected and divided
the money from the sales and submitted the profits to the Ortegas.
Typically, at the conclusion of his shift, Chaparro would provide the
Ortegas with thousands of dollars from drug sales. Chaparro often
recruited pitchers from the nearby junior high school, Public School
184. Andres Martinez ("Martinez") and Angel Gonzalez ("Gonzalez") worked
On April 25, 2000, a federal grand jury indicted six members of the
Ortegas' organization in eight counts for violations of federal
narcotics laws. Chaparro was indicted in four counts.*fn1 Among other
things, the indictment charged that the Ortegas, Chaparro, Ruiz,
Martinez and Gonzalez were part of a conspiracy to distribute cocaine
and heroin. The Ortegas and Chaparro were arrested on May 10, 2000;
Martinez on May 18, 2000; Ruiz on October 17, 2000; and Gonzalez on
November 30, 2000. At all times since his arrest, Chaparro has been
represented by assigned counsel.
On July 18, 2000, approximately two months following his arrest,
Chaparro asked for and attended a meeting with the Government to discuss
his possible cooperation with the federal authorities. At the beginning
of the meeting, which is also referred to as a proffer session,*fn2
Chaparro and the Government executed the Government's standard two page
proffer agreement (the "Agreement"), in which Chaparro agreed to "provide
the Government with information, and to respond to questions, so that
the Government may evaluate [his] information and responses in making
prosecutive decisions." The Agreement limited the use that the Government
could make of Chaparro's statements, in essence, excluding their use as
direct proof, but permitting their use in rebuttal, including at the
time of sentencing. Specifically, the Government agreed that
[s]hould any prosecutions by brought against [Chaparro]
by this Office, the Government will not offer in
evidence on its case-in-chief, or in connection with
any sentencing proceeding for the purpose of
determining an appropriate sentence, any statements
made by [Chaparro] at the meeting . . . .
The Agreement further provided that,notwithstanding this provision, the
may use statements made by [Chaparro] at the meeting
and all evidence obtained directly or indirectly
therefrom . . . to rebut any evidence or arguments
offered by or on behalf of [Chaparro] (including
arguments made or issues raised sua sponte by the
District Court) at any stage of the criminal
prosecution (including bail, trial, and sentencinG)
should any prosecution of [Chaparro] be undertaken.
(Emphasis in original and supplied.) The Agreement was signed by
Chaparro, his attorney Jennifer Brown, Assistant United States Attorney
Steven Glaser and a witness.
During the July 18 session, Chaparro began, without prompting, to
discuss the murder two years earlier of eighteen year old Jose
Perez.*fn3 Chaparro had refused to cooperate with the police regarding
the Perez murder prior to his federal indictment. At the July 18
Chaparro stated that he knew that two men were being
prosecuted for the murder and that the case was close to trial. While
Chaparro admitted working in a drug distribution operation, he claimed
that he had worked for the murder victim, Perez, and had "knowledge" of
the Ortegas' drug dealing activities, although he admitted that he had
"suspicions" that the Ortegas might be involved in drug dealing.*fn4 He
also denied his involvement in the events that led to his prior arrest
by the police on February 11, 2000.*fn5 Chaparro, Gonzalez and a
juvenile were arrested on February 11, 2000, after Chaparro was observed
putting objects that later tested positive for crack cocaine and heroin
in a false step of a residential building, handing a bag of cash to
Gonzalez and instructing him to run.
Shortly thereafter, in a taped conversation between Chaparro and his
co-defendant Oscar Ortega on July 31, 2000, Chaparro explained to Oscar
Ortega that he had met with the Government to obtain a "5K1," and had
given the Government information about the Perez murder, but assured
Oscar Ortega that he had denied having any information about the
Ortegas' involvement in drug activities. Chaparro explained that a "5K1"
was "[w]hen you snitch and they . . . send a letter to the judge . . .
and they cut your time." Chaparro stated further that "it's not
snitching, though. It's just helping yourself out." Chaparro stated that
he "talked about it and I told him everything about it," referring to
the Perez murder. Chaparro stated that "if they use it, they gotta give
me the letter." He also informed Oscar Ortega that he had been
questioned about the Ortegas' drug dealing activities, and that he had
responded by stating that
I don't know because I never, I never dealt with him.
I never went up to them and asked them you know . . .
It was one of my business . . . So he [the AUSA] was
like oh, but you ever? No I ever . . . I've never seen
nothin . . . they always kept to themselves. You
know they're brothers . . . . He said so, so, where did
this guy get? I don't know . . . . And then he was
like but you never seen? No man. So how about, how
about, how about this, this and that. I was like I
never seen that. And then I got it. And I got it from
this and that. You understand what I'm saying right?
Chaparro explained further to Oscar Ortega: "Basically I told him nothing,
you know what I'm saying?"
Meanwhile, having concluded that Chaparro was not truthful during the
July 18 proffer session, the Government declined to offer him a
cooperation agreement. The Government did inform the DA's Office,
however, that Chaparro had information regarding the Perez murder,
although it also conveyed the Government's view that Chaparro had
"serious credibility problems." Assistant District Attorney Nancy Borko
("ADA Borko") expressed an interest in meeting with Chaparro. At the
request of Chaparro and ADA Borko, a proffer session was held at the
United States Attorney's Office on September 8, 2000. Chaparro, defense
attorney Brown, AUSA Glaser and ADA Borko were present at that meeting.
The Agreement was re-executed and re-initialed at the September 8
meeting by Chaparro, Brown, Glaser
and a witness. Neither the Government
nor defense counsel has described what was said during this interview.
A third and final proffer session, attended by Chaparro, Brown, Glaser
and Borko, was held at the United States Attorney's Office on October
3, 2000. The Agreement was re-initialed and re-executed by Brown,
Chaparro and Glaser. At that proffer session, Chaparro stated that he
had no "information" that the Ortegas "dealt drugs" and that he had
"never worked" for the Ortegas. The Government informed Chaparro that it
would no longer meet with him or facilitate his meetings with the DA's
The DA's Office and Chaparro thereafter agreed that the DA's Office
would limit its questioning to the Perez murder and would not inquire
about the pending federal drug charges. An additional interview without
the Government's involvement took place at the DA's Office on October
16, 2000. At that meeting, Chaparro told ADA Borko under oath that Perez
was murdered by rival drug dealers in retaliation for Sean's beating.
Chaparro acknowledged that Edgar Ortega was present at Perez's murder
and that the Ortegas took part in Sean's beating. When questioned by ADA
Borko about why Sean was attacked, however, Chaparro replied that Sean
had been working for "us," which he promptly amended to identify as
himself, Perez, and a third individual amed Abraham Carrera ("Carrera").
Chaparro didn ot reveal that he, Perez and Sean all worked for the
Ortegas, or that the Ortegas had beaten Sean because he had betrayed
them by also working for the rival organization.
ADA Borko informed the Government that she intended to call Chaparro as
a witness, but would not question him about his drug dealing. She
assumed that Chaparro would assert his Fifth Amendment rights if
questioned about his involvement in or knowledge of the Ortegas' drug
operation. Although Chaparro had agreed to testify in the Perez case, he
did not do So; having been informed that Chaparro and others were
prepared to testify, Smalls and Brooks pleaded guilty to second degree
manslaughter on October 24, 2000.
A trial date of November 13, 2000, had been set in this case on June
9, 2000. Because of the arrest of Ruiz, on October 23, the trial date
was reset for January 22, 2001. All of the defendants except Edgar
Ortega pleaded guilty between December 27, 2000 and January 17, 2001.
Oscar Ortega and Ruiz pleaded guilty on December 27, 2000; Martinez on
January 12, 2000; and Gonzalez and Chaparro on January 17, 2000.
Chaparro pleaded guilty to Counts One, Six and Eight of his indictment
without the benefit of a plea agreement.*fn6 Chaparro is a Career
Offender. The Pimentel*fn7 letter the Government provided to Chaparro
prior to his plea reflected the Government's calculation of a guidelines
range of 360 months to life. Edgar Ortega was found guilty on January
25, 2001, by a jury.
Chaparro has moved for a Section 5K2.0 departure based on his
substantial assistance to the DA's Office. See United
States v. Kaye,
140 F.3d 86, 88-89 (2d Cir. 1998). He contends that in considering the
extent of a departure, this Court should weigh those factors relevant to
a departure pursuant to Section 5K1.1, including "the truthfulness,
completeness, and reliability of any information or testimony provided
by the defendant," as well as "the nature and extent of the defendant's
assistance." U.S. Sentencing Guidelines Manual § 5K1.1(a)(2), (3)
In support of his request for a departure, Chaparro makes the following
statements regarding his cooperation with the DA's Office:
"Ms. Borko found Mr. Chaparro's information credible."
"In Ms. Borko's estimation, Mr. Chaparro provided
truthful and complete information."
"While Mr. Chaparro did not actually testify, Ms.
Borko prepared him to do so. She intended to use
his testimony, which in her view was truthful, at
trial. Indeed, the truthfulness of Mr. Chaparro' s
account is demonstrated circumstantially. . . ."
"Mr. Chaparro provided truthful and complete
information in the prosecution of two men."
In addition to the evidence and statements that directly refer to the
veracity and completeness of his assistance, Chaparro also states that
he "agreed to testify at trial against the two defendants" and that he
"prepared to testify and stood ready to do so."
Chaparro has submitted a letter from ADA Borko in which the ADA
described Chaparro's initial refusal to cooperate and his decision to
cooperate after federal charges were filed:
Mr. Chaparro had always been unwilling to work with the
Detectives assigned to this homicide. However, at some
point, Mr. Chaparro decided to work with the Government
to benefit himself and law enforcement.
ADA Borko acknowledged the limited nature of Chaparro's assistance to the
The information that [Chaparro] was able to supply the
government was only in relation to the death of Mr.
Perez. Although his cooperation agreement with the
Government did not come to fruition, he did continue to
assist this office in it's [sic] prosecution of Mr.
Brooks and Mr. Smalls.
The ADA emphasized the truthfulness, completeness and importance of
Chaparro's assistance to the DA's Office in its prosecution of Smalls and
Mr. Chaparro gave a full account of all the events
he knew that may have related to the murder. He
also gave a sworn statement as to exactly what he
saw and heard when the murder occurred. . . .
[Chaparro's] eventual willingness to testify and
giving us the information to locate other witnesses
proved invaluable for the aforementioned
In his submissions, Chaparro also made a number of statements about his
attempt to cooperate with federal authorities:
"Eager to improve his situation, he [Chaparro]
sought to cooperate with federal authorities."
"Ms. Brown [Chaparro's attorney] explored the
prospect of having Mr. Chaparro cooperate with the
"[Chaparro] met with the Government with an eye
The submissions explained the absence of a cooperation agreement with the
Government in the following way: "The federal government apparently did
not find Mr.
Chaparro credible with respect to his involvement in the
conspiracy charged in this indictment and declined to enter into a
cooperation agreement with him."
Relying, in part, on statements Chaparro made during the proffer
sessions on July 18 and October 3, 2000, the Government maintains that
Chaparro's request for a departure should not be granted because he did
not provide truthful or complete information to state authorities.
Arguing that Chaparro engaged in a cynical scheme to win a departure by
providing evidence only against members of a rival drug organization, the
Government contends that Chaparro did not truthfully describe the
Ortegas'narcotics activity even when it was necessary to describe the
motive for the murder accurately and to explain the presence of the
Ortegas at Sean's beating, and argues that Chaparro would have perjured
himself if called to testify at the state murder trial.
Chaparro has opposed the introduction of his proffer session statements
on the ground that these statements are privileged under Federal Rule of
Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6), and that
that privilege was waived through the execution of the proffer agreement
only to the extent that Chaparro's statements during the interviews
"directly and squarely" rebut arguments he has made at sentence. In
essence, the parties dispute whether Chaparro has waived the protection
of Rules 410 and 11(e)(6) by virtue of the arguments he makes or
evidence he submits in support of his request for a departure.
Although a defendant's statements made during plea egotiations may not
ordinarily be admitted against him under Rules 410 and 11(e)(6), "an
agreement to waive the exclusionary provisions of the plea-statement
Rules is valid and enforceable" at least so long as the agreement is
entered knowingly and voluntarily. United States v. Mezzanatto,
513 U.S. 196, 210 (1995). There is no claim by Chaparro that he entered into
the Agreement unknowingly or involuntarily; he was represented by
counsel each time he signed the proffer Agreement, and his counsel also
signed the Agreement.
Agreements between the Government and a criminal defendant "are
interpreted according to principles of contract law." United States v.
Gregory, 245 F.3d 160
, 165 (2d Cir. 2001) (citation omitted)
(cooperation agreement); see also United States v. Liranzo,
944 F.2d 73
, 77 (2d Cir. 1991) (proffer agreement). Nonetheless, because
agreements between a defendant and the Government are "unique contracts
in which special due process concerns for fairness and the adequacy of
procedural safeguards obtain," United States v. Ready, 82 F.3d 551, 558
(2d Cir. 1996) (citation omitted), courts must "resolve any ambiguities
in the agreement against the government," United States v. Rodgers,
101 F.3d 247, 253 (2d Cir. 1996); see also Gregory, 245 F.3d at 165. The
Government is held "to the most meticulous standards of both promise and
performance." Altro v. Altro (In re Altro), 180 F.3d 372
, 375 (2d Cir.
1999) (citation omitted) (enforcing integration clause in plea
The terms of the Agreement at issue here are ot ambiguous, and Chaparro
does not suggest otherwise. The Agreement allows the Government to rely
on Chaparro's proffer statements to "rebut any evidence or arguments
offered by or on" Chaparro's behalf at sentencing. Thus, Chaparro has
waived the protection of Rules 410 and 11(e)(6) to the extent his
statements rebut any argument he
advances or evidence he presents in favor of his Section 5K2.0 departure
It is worth noting in the first instance that the defendant does not
dispute that the Government is entitled to rely on a significant amount
of the evidence to which it points in opposing the departure motion.
This includes Chaparro's telephone call to Oscar Ortega explaining
that, although he had met with the Government to obtain a departure by
talking about the murder, he had lied to protect the Ortegas. In
addition, the Government is clearly entitled to rely on the transcript
of the October 16 meeting with ADA Borko in which Chaparro answered
questions under oath. At that session, Chaparro said that Sean was
beaten because he was working for Perez, Chaparro and Carrera, and
omitted any disclosure about the Ortegas' ownership and management of the
drug organization or explanation for their presence at Sean's beating.
This motion addresses the propriety of the Government's use of
Chaparro's statements on two other occasions: July 18 and October 3.
1. October 3, 2000 Session with ADA Borko and the Government
Taking the two sessions in reverse chronological order, Chaparro
contends, in reliance on the terms of the Agreement executed that day,
that the Government may not describe his statements on October 3, 2001,
even though those statements were made to ADA Borko as well as to the
federal authorities since both were present that day. Chaparro's
statements may be admitted if they rebut arguments he has made or
evidence he has submitted in support of his motion for a departure. In
support of his motion, Chaparro has argued that he "provided truthful
and complete information" to ADA Borko, and has submitted evidence that
he gave ADA Borko "a full account of all the events he knew that may
have related to the murder." (Emphasis added.) At the proffer session on
October 3, 2001, Chaparro told ADA Borko that he had no information that
the Ortegas dealt drugs and that he had ever worked for the Ortegas.
Chaparro's statements of October 3 rebut arguments and evidence he
submitted in support of his motion for a departure. First, the fact that
Chaparro lied to ADA Borko directly rebuts his contention that he
provided "truthful" information to the DA's Office. Second, Chaparro's
employment by the Ortegas and his information regarding the Ortegas'
drug activities are clearly relevant to the Perez murder, including, but
not limited to, the motives of the individuals accused of the murder.
Chaparro's statements thus fairly and directly rebut his argument that
he provided ADA Borko with a "full account" of "all the events" he knew
that "may have related" to Perez's murder.
In addition, Chaparro maintains that in considering his motion for a
departure, this Court should apply those factors relevant to a departure
pursuant to Section 5K1.1, including "the truthfulness, completeness, and
reliability of any information or testimony provided by the defendant,"
as well as "the nature and extent of the defendant's assistance." U.S.
Sentencing Guidelines Manual § 5K1.1(a)(2), (3) (2001). By
requesting the Court to consider Section 5K1.1 factors in evaluating his
motion for a departure, Chaparro has waived the protection of the
Agreement to the extent that the statements he made to the ADA on
October 3 are relevant to the truthfulness, completeness, reliability,
nature and extent of the assistance he has described giving to the DA's
2. July 18, 2000 Proffer Session with the Government
The Government has also relied on statements made by Chaparro on July
2000, during the first interview covered by the Agreement. ADA Borko
was not present at this interview.
The Government argues that Chaparro's statements during this interview
may be used to rebut three statements made in support of his departure
motion regarding his effort to cooperate with federal authorities: that
he "sought to cooperate with federal authorities," that his attorney
"explored the prospect" of having him cooperate, and that he met with
the Government with "an eye toward cooperation." Chaparro's lies on July
18 regarding his own and the Ortegas' drug activities demonstrate that
Chaparro did not seek to cooperate with the federal authorities in good
faith. Cf. United States v. Reynoso, 239 F.3d 143, 148 (2d Cir. 2000)
(Congress did not intend to reward a defendant who trades on false
information). To the extent that Chaparro's explanation for the
Government's failure to offer him a cooperation agreement §§
that "the federal government apparently did not find Mr. Chaparro
credible" §§ implies that Chaparro was truthful but that the
Government did not consider him so, then that statement also allows the
Government to offer evidence of the July 18 statements in rebuttal.
Chaparro maintains, however, that the statements in his initial
submissions simply describe his acts of contacting and meeting with the
Government and were provided solely as background. His most recent
submission acknowledges that Chaparro did not do "what was required" to
receive a cooperation agreement, and argues that his submissions were
"quite frank" with the Court in this regard.
It is commonly understood that there are two principal requirements for
a defendant to receive a cooperation agreement from the Government: 1)
truthful disclosure of your own criminal activity and that known to you
in which others have engaged, and 2) a sufficient likelihood of being
able to provide substantial assistance in the prosecution of others.
See United States v. Doe, No. 96 Cr. 749 (JG), 1999 WL 243627, at *10
(E.D.N.Y. Apr. 1, 1999). The former requirement of full and honest
disclosure is ecessary for a number of reasons, including all of the
reasons which mandate that the Government not present perjurious
testimony through its witnesses. To the extent that there was any
ambiguity in the defendant's original submission in support of his
departure motion, it is now evident that he is not contending that he was
truthful when speaking with the federal authorities. With that
clarification, the Government may not offer Chaparro's statements at the
July 18 meeting on the issue of whether he sought to cooperate in good
faith with the federal authorities.
The only remaining issue is whether Chaparro's lies to the Government
on July 18 may be used as circumstantial evidence to rebut his arguments
and evidence concerning the veracity and completeness of his state
cooperation. They are not direct evidence on this point since ADA Borko
did not attend this interview. The Government contends that Chaparro's
lies on July 18 make it more likely that his omissions and untruthful
statements to the DA's Office were not inadvertent, but were instead
part of a calculated effort to win a sentencing reduction by providing
information against rivals while protecting himself to some extent, and
more importantly his bosses, through lies.
The Agreement provides that the Government may use the defendant's
statements "to rebut any evidence or arguments offered by or on behalf of
Client (including arguments raised or issues raised sua sponte by the
District Court) at any stage" of the prosecution, including at
sentence. Even when construed against the Government, this is a broadly
worded waiver. The defendant's own definition of the word rebut —
"to contradict or oppose by formal legal argument, plea or
countervailing proof; to expose the falsity of" §§ indicates
that the use of the July 18 statements to show that Chaparro
intentionally lied in later statements to the DA's Office would "rebut"
Chaparro's arguments and evidence that he had been truthful and complete
when speaking with the ADA. That is, his July 18 statements assist in
contradicting, opposing, and exposing the falsity of his contentions in
Consideration of the defendant's statements on July 18 is also relevant
to the argument that a departure is warranted because the defendant
stood ready to testify at the murder trial. This argument is composed of
many parts, including the contention that a significant departure is
warranted because of the risk that the defendant took by having
murderers learn of his cooperation. But, another essential even if
implicit part of the argument is that the defendant was prepared to
testify truthfully and would not have committed perjury. It is
inconceivable that Chaparro's examination at the murder trial would have
avoided questioning about his criminal past, the drug organization for
which he and the murder victim both worked, and the motives each
participant — including the Ortegas — had for beating
Sean the night before the murder. While the prosecutor may have believed
that she could fashion an effective direct examination of Chaparro in a
way that would not elicit false testimony, the best she hoped for cross
examination was that Chaparro would refuse to answer questions by
invoking his Fifth Amendment rights. of course, it is impossible to know
how Chaparro would have testified if called: whether he would have
answered all questions truthfully, committed perjury, or invoked his
Fifth Amendment rights, and in the latter case, whether his entire
testimony would have been stricken. What is known, however, is that it
would be misleading to argue that Chaparro is entitled to a departure
because he was prepared to testify at the murder trial, and by
implication, to testify truthfully, without also informing the Court
that at no time prior to the time that his testimony became unnecessary
had Chaparro truthfully described to the state prosecutors all the events
and relationships that were likely to be the subject of examination at
the murder trial.
Information regarding a defendant's veracity is not only significant
because Chaparro has urged that the Court evaluate the completeness,
reliability, and extent of his assistance to the state prosecutors, it
is crucial in the context of any departure based on substantial
assistance to prosecutors. Defendants who receive departures based on
such substantial assistance frequently receive reductions in their
sentences significantly below the guidelines range that would otherwise
apply.*fn8 While some reduction is justified by the benefits that such
cooperation yields for society in the discovery and prosecution of other
criminals, and the need to provide a continuing incentive for such
disclosures, the extent of reduction is at least as attributable to what
the decision to cooperate indicates about an individual defendant's
character. The decision to disclose truthfully all that you know about
activity of yourself and others, and to testify if
necessary in open court in a prosecution of your former confederates is a
strong indicator of remorse and reform. At a minimum, a defendant who
makes such a decision has cut her ties with her partners in crime, and
will find it harder to return to crime, at least in their company.
Because the character of the defendant and her potential for
rehabilitation are at the heart of individualized sentencing, see United
States v. Merritt, 988 F.2d 1298, 1307 (2d Cir. 1993), it is important
for the Court to understand these issues as accurately and completely as
At the same time, however, because a defendant waives important rights
when she signs an agreement with the Government, courts must be
Particularly concerned with fairness to the defendant when interpreting
and enforcing such agreements:
Our concern for fairness is rooted in an appreciation
of the fact that, unlike ordinary contracts, plea
agreements call for defendants to waive fundamental
constitutional rights, and in an awareness that the
Government generally drafts the agreement and enjoys
significant advantages in bargaining power.
Altro, 180 F.3d at 375. In this case, however, not only the language, but
the entire structure of the Agreement indicates that there is no
unfairness to Chaparro in allowing use of his statements during proffer
sessions once he has opened the door to their use by his arguments and
evidence. The design of the Agreement provides any defendant who decides
to speak with the Government strong incentives to speak truthfully, and
discourages anyone from speaking at all if she intends to lie or intends
at a later time in the prosecution to advocate a position at odds with
the facts she describes during the proffer session. See United States
v. Perrone, 936 F.2d 1403, 1411-12 (2d Cir.), clarified on reh'g,
949 F.2d 36 (2d Cir. 1991) (approving impeachment of defendant's testimony
at trial through witness's description of the defendant's statements
covered by proffer agreement).
There are significant benefits to both the defendant and the Government
from structuring proffer sessions in this way. Many of these interviews
are undertaken when defendants seek to convince the Government to enter
into a cooperation agreement with them.*fn9
See United States v. Cruz,
156 F.3d 366
, 370 (2d Cir. 1998). If successful in winning a cooperation
agreement, there can be enormous benefits to a defendant.*fn10
cases, in particular, cooperation with the Government can allow
sentencing below a mandatory minimum term of imprisonment that would
In all cases, there can be
departures for defendants who procure 5K1.1 motions from the
Government. Because defendants, their counsel, and the Government all
understand the risk a defendant is taking in submitting to an interview
governed by the Proffer Agreement, the defendant's credibility when
speaking is significantly enhanced. United States v. Krilich,
159 F.3d 1020
, 1025 (7th Cir. 1998). In essence, because of the terms of the
Proffer Agreement, when requesting such interviews a defendant makes a
statement that she is willing to allow the remainder of her prosecution
to be judged against the truth of what she describes in the interview.
While courts must consider general fairness principles in interpreting
and enforcing agreements between defendants and the Government,
with respect to federal prosecutions, the courts'
concerns run even wider than protection of the
defendant's individual constitutional rights §
§ to concerns for the honor of the government,
public confidence in the fair administration of
justice, and the effective administration of
justice in a federal scheme of government.
Ready, 82 F.3d at 558 (citation omitted). Structuring the Agreement to
provide incentives for a defendant to speak during the proffer session
only if she is speaking truthfully furthers the goals articulated in
Ready. As already described, the risks a defendant takes if she lies
during a proffer session enhance her credibility and assist in giving
her access to significant benefits in her prosecution. So long as the
defendant makes the commitment contained in the proffer agreement
knowingly and voluntarily and there is no Government overreaching in
enforcing the agreement, its terms promote a search for the truth. If
the Government enters into a cooperation agreement with a defendant and
acts upon that defendant's information in the prosecution of others, and
only later discovers that the defendant has lied, the system of justice
is injured, the lives of others may be wrongly and seriously impacted,
and in some cases, extensive collateral litigation ensues.*fn12 If a
defendant has spoken truthfully, the Government may be able to make far
better decisions regarding what agreements to reach in the individual
defendant's case, about how to deploy its resources in the prosecution
of others, and in the investigation of crime.
Enforcing proffer agreements will also enhance the integrity of the
judicial truth-seeking function. See Mezzanatto, 513 U.S. at 205. In
fact, the Second Circuit has observed that an agreement that would keep
a sentencing judge
ignorant of pertinent information cannot be
enforceable, because a sentencing court must be
permitted to consider any and all information that
reasonably might bear on the proper sentence for the
particular defendant, given the crime committed.
United States v. Fagge, 101 F.3d 232, 234 .1 (2d Cir. 1996) (citation
omitted). Excluding Chaparro's statements would deprive the Court of
information relevant to the defendant's claim that his assistance to the
DA's Office warrants a downward departure in his sentence. See United
States v. Casamento, 887 F.2d 1141
, 1182 (2d
Cir. 1989) (enforcing
Government's reservation of right to respond at sentence). To prevent
this "perverse result," the waiver provisions in the Agreement Chaparro
signed insure that the Court will "not sentence him in the dark" with
respect to any argument Chaparro chooses to make at sentence. Doe, 1999
WL 243627, at *11. In essence, they insure Chaparro will not "get away
with a lie." Cruz, 156 F.3d at 371.
Relying on United States v. Duffy, 133 F. Supp.2d 213 (E.D.N.Y.
2001), Chaparro argues that the Agreement's waiver must be carefully
circumscribed to avoid infringing his constitutional rights to present a
defense and to the effective assistance of counsel. Duffy held that the
waiver provisions of the proffer agreement it was considering were not
enforceable at trial beyond permitting the Government to impeach the
defendant with statements made during the proffer sessions. Id. at 218.
Other courts have reached different conclusions and have enforced
similar waiver provisions. See. e.g., Krilich, 159 F.3d at 1026; United
States v. Burch, 156 F.3d 1315, 1322 (D.C. Cir. 1998). This is a debate
that Chaparro's motion does not require this Court to resolve. The
extent to which the Government may use a defendant's proffer statements
at trial to rebut arguments and evidence offered on behalf of the
defendant is not presented here.
There remains one possible exception to this ruling. It would not be
appropriate to use the July 18 and October 3 statements by Chaparro if he
withdraws his contentions that he was truthful in everything that he said
to the ADA, including his description of the circumstances that caused
Sean's beating and the retalitory shooting. As it now stands, Chaparro's
submissions argue that Chaparro was truthful when he spoke with the DA's
Office, including in his description of the events that relate to the
murder, and that a departure should be based on an evaluation of, among
other things, the extent of his cooperation with the DA's Office. Any
fair reading of this argument opens the door to Chaparro's statements on
July 18 and October 3. What Chaparro cannot do, even through
implication, is represent that he provided complete and truthful
cooperation to the DA's Office and then deprive the Government of the
ability to contest that representation or the Court of the ability to
evaluate it. If, however, Chaparro makes a more narrow argument, such as
arguing that he accurately described to the DA's Office the events that
he observed on the day of the murder, it would not be appropriate to
allow the Government to reveal the statements Chaparro made on July 18
and October 3 under the protection of the Agreement. As defense counsel
herself observes, "[a] defendant should not be permitted to hide behind
the protection of a proffer agreement to defraud a Court and undermine
the truth-seeking function."
For the reasons stated above, the Government may introduce Chaparro's
statements from the July 18 and October 3 proffer sessions unless
Chaparro narrows his arguments in support of his Section 5K2.0 departure
motion so that these statements are no longer relevant rebuttal.
Chaparro's motion to preclude is denied.