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January 9, 2002


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 as pitchers.

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 Government

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 session, however, 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 Office.

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's Motion

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