The opinion of the court was delivered by: Denise Cote, United States District Judge:
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.