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January 21, 2004.


The opinion of the court was delivered by: PETER LEISURE, District Judge Page 2


Defendants Claudio Parra and Jorge Ortega are charged with conspiracy to distribute or possess with intent to distribute cocaine and with distribution and possession with intent to distribute cocaine. The trial in this matter will begin on January 26, 2004. The government now moves in limine for a ruling that it may introduce statements made by defendant Parra at any of three proffer sessions to impeach Parra or to rebut arguments made on Parra's behalf that contradict Parra's proffer statements. Parra opposes the government's motion on the grounds that he did not knowingly and voluntarily waive certain rights under the Proffer Agreement, and that some or all of the Proffer Agreement violates principles of contract law or constitutional law. The Court has reviewed the thorough briefs of the parties, conducted a hearing, and heard oral argument on the motion. For the reasons set forth below, the government's motion is granted.


 I. Factual History

  Parra was arrested on October 17, 2001, and thereafter detained. In an order dated November 6, 2001, Magistrate Judge Ronald Ellis granted Parra release on bail. The agreed bail package conditioned Parra's release upon his posting $15,000 in cash to secure a $250,000 bail bond. Parra posted $15,000 on February 8, 2002, and was released from custody on February 13, 2002. On January 15, 2004, the Court granted the government's application to remand Parra, without bail, following a detention hearing.

  Twice before his release on bail and once after, Parra and his attorney at the time, Raymond Colon, Esq., met with attorneys for the United States in proffer sessions. At the outset of each of these proffer sessions, prosecutors presented Parra with a Proffer Agreement. The Page 3 Proffer Agreement is a form that the government describes as the "standard proffer agreement used by this Office."*fn1 United States' December 10, 2003, Letter Memorandum, at 2 ("Gov't Brief). The Proffer Agreement reads, in relevant part:*fn2

  [T]he following understandings exist:
(1) THIS IS NOT A COOPERATION AGREEMENT. The Client has agreed to provide the Government with information, and to respond to questions, so that the Government may evaluate Client's information and responses in making prosecutive decisions. . . .
(2) In any prosecution brought against Client by this Office, except as provided below 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 Client at the meeting, except in a prosecution for false statements, obstruction of justice or perjury with respect to any acts committed or statements made during or after the meeting or testimony given after the meeting.
(3) Notwithstanding item (2) above: . . . (b) in any prosecution brought against Client, the Government may use statements made by Client at the meeting . . . for the purpose of cross-examination should Client testify; and (c) the Government may also use statements made by Client (including arguments made or issues raised sua sponte by the District Court)*fn3 at any stage of the criminal prosecution (including bail, all phases of trial, and sentencing) in any prosecution brought against Client.
. . .
  (9) Client and Attorney acknowledge that they have fully discussed and understand every paragraph and clause in this Agreement and the consequences thereof. Page 4

 Parra and Mr. Colon signed the Proffer Agreement at the initial session, and initialed the same Agreement at the two subsequent proffer sessions. At the second of the proffer sessions, on January 10, 2002, Parra apparently made several incriminating statements.

  Parra claims, among other things, that he did not enter into the Proffer Agreement knowingly and voluntarily. In support of this claim, Parra submits a declaration, in which he asserts that "[the proffer] was never read to me privately with my attorney and it was not explained in any detail by my attorney or the government either before or during the meetings." Declaration of Claudio Parra, ¶ 5 ("Parra Decl."), attached to Defendant Parra's Opposition Letter Brief as Ex. A ("Defendant's Opposition"). Parra continues, "I understood from hearing the document that statements could be used in cross examination if I took the stand at trial or if the government was prosecuting me for perjury. I did not understand the other legal terms of the document. I did not understand that by signing this document my lawyer would be limited in what could be presented at trial. I did not understand that I was giving up trial rights by signing the document." Parra Decl., ¶ 7. Parra declares that the incriminating statements he made during the January 10, 2002, proffer session were not truthful, and that he made those statements because he "wanted the government to let [him] out of jail and felt that [he] had no other choice." Parra Decl., ¶ 10.

  Responding to Parra's declaration, the government submits a copy of the bail disposition sheet signed by Magistrate Judge Ellis, declarations from Jason M. Weinstein, Esq., the Assistant United States Attorney present at the proffer sessions, and Karen Smith-Moore, a Detective with the New York City Police Department assigned to the Joint Organized Crime Task Force of the Federal Bureau of Investigation ("FBI"), who was present at the October 25, 2001, proffer session, and the testimony of Mr. Colon, taken at a hearing before this Court on January 15, Page 5 2004. Mr. Colon testified that once the government presented Parra with the Proffer Agreement at the first proffer session, he and Parra reviewed the document together without anyone else in the room. Mr. Colon testified that he speaks Spanish fluently, and that Parra speaks Spanish but very little English. Mr. Colon translated the Proffer Agreement verbatim to Parra, and paused to explain critical portions of the Proffer Agreement, in particular paragraphs 3(b) and 3(c), which Mr. Colon described as "onerous." Mr. Colon testified that he used examples to clarify the "onerous" sections of the Agreement, such as that the government can use Parra's statements to rebut arguments Mr. Colon would make at summation. Mr. Colon explained that the government normally could not use proffer statements at trial, but that the Agreement altered this condition. Mr. Colon testified that he was familiar with these provisions, including the language in paragraphs 3(b) and (c) which he "does not favor," from his experience as a criminal defense attorney working in the Southern and Eastern Districts> of New York. Parra did not ask questions about the provisions of the Agreement, but asked about the conditions of his bail. Mr. Colon testified that he did not link in any way the proffer session with the status of Parra's release on bail.

  After Mr. Colon had explained the terms of the Proffer Agreement, Mr. Weinstein then returned to the room. Mr. Weinstein, through an interpreter,*fn4 also explained the terms of the Proffer Agreement to Parra. Parra and Mr. Colon then signed the Proffer Agreement. At the two subsequent proffer sessions, Mr. Colon reviewed some of the provisions again with Parra, Page 6 concentrating again on the "onerous" language of paragraph 3. At these sessions, Parra and Mr. Colon initialed the same Agreement.

  In addition to the statements of Mr. Colon and Mr. Weinstein, the government draws the Court's attention to the bail disposition sheet signed by Magistrate Judge Ellis, dated November 6, 2001. Because Parra already had been granted bail, the government contends that Parra's declaration that he made statements at the January 10, 2002, proffer session only to get out of jail should be met with skepticism. Parra although jailed, needed only to post $15,000 to gain release, the government emphasizes.

 II. The Government's Motion In Limine

  The government now moves in limine for a ruling essentially enforcing the Proffer Agreement. The parties submitted their letter briefs to the Court by December 30, 2003, and the Court scheduled oral argument and a hearing for January 15, 2004. After the parties submitted their papers, and two days before oral argument, the Second Circuit issued its decision in United States v. Velez, No. 02-1766, 2004 WL 51261 (2d Cir. Jan. ...

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