The opinion of the court was delivered by: Sweet, D.J.
The defendant Leonardo Gerinson ("Gerinson") has moved to enforce the specific terms of the Cooperational Plea Agreement of January 13, 2004 (the "Agreement") between Gerinson and the United States Attorney for the Southern District of New York. In the alternative, Gerinson seeks a hearing before the Court to prove that he did not lie in connection with his cooperation agreement.
For the reasons set forth below, the motion is denied.
On October 9, 2003, the United States filed an indictment against Leonardo Gerinson, charging: (1) conspiracy to distribute heroin, cocaine, and cocaine base from at least April 2003 through September 2003; (2) distributing, on or about May 13, 2003, more than 50 grams of cocaine base; and (3) distributing, on or about September 25, 2003, more than 100 grams of heroin.
Following his arrest and indictment, Gerinson and Robert Baum, Esq., his attorney at the time, met with the Government on two occasions in order to offer his cooperation to the Government in the investigation of others. During these proffer sessions, the Government, among other things, asked Gerinson to report any and all criminal conduct in which he had been engaged. In addition to the narcotics-trafficking charged in the indictment, Gerinson admitted to daily marijuana use and reported arrests in April and September 2003 for possession of marijuana. Gerinson specifically denied any other criminal conduct.
Based on the information provided by Gerinson during these proffer sessions, the Government entered into a cooperation/plea agreement with Gerinson on January 13, 2004. Pursuant to this agreement, Gerinson pled guilty to a Superseding Information that added a forfeiture allegation to the three counts of the original indictment. The agreement provided that "if this Office determines that the defendant has provided substantial assistance in an investigation or prosecution, and if he has fully complied with the understandings specified in this Agreement, this Office will file a motion pursuant to Section 5K1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e), requesting the Court to sentence the defendant in light of the factors set forth in Section 5K1.1(a)(1)-(5)." Among the obligations to which Gerinson agreed was to "truthfully and completely disclose all information with respect to the activities of himself and others concerning all matters about which this Office inquires of him."
With respect to the Government's obligation to file a Section 5K1.1 letter, the agreement also specifically provides:
It is understood that, should this Office determine either that the defendant has not provided substantial assistance in an investigation or prosecution, or that the defendant has violated any provision of this Agreement, such a determination will release this Office from any obligation to file a motion pursuant to Section 5K1.1 of the Sentencing Guidelines and 18 U.S.C. § 3553(e), but will not entitle the defendant to withdraw his guilty plea once it has been entered.
Several months following Gerinson's guilty plea, the Government received information from a confidential source that Gerinson had been involved in several robberies, crimes which had never been disclosed to the Government during Gerinson's proffer sessions. Around approximately the same time period, Mr. Baum contacted the Government and advised the Government that Gerinson had additional criminal conduct to disclose.
On or about July 21, 2004, Gerinson met with the Government to discuss the additional disclosures he wished to make. Prior to this meeting he discharged Mr. Baum and hired Alan Seidler, Esq., who was present at the meeting. During this meeting, Gerinson admitted to additional criminal conduct that he had not previously disclosed, including four robberies in 2003.
After the July 21, 2004 proffer session, the Government re-investigated Gerinson's background. Johnny Ozuna ("Ozuna"), who was also cooperating with the Government at that time, confirmed one of the robberies Gerinson disclosed on July 21, 2004. In addition, Ozuna allegedly advised the Government that in 2003, he asked Gerinson to get a gun for him so that he could use it to collect a drug debt. Ozuna allegedly reported that Gerinson was able to get a small, rusted pistol for him.
The Government met with Gerinson two additional times, once on September 29, 2004 and once on March 21, 2005, in order to confront Gerinson about Ozuna's claim that Gerinson provided him with a gun in 2003 and about Gerinson's lack of candor in his earlier proffer sessions. During both sessions, Gerinson denied supplying any gun to Ozuna. According to the Government, Gerinson also failed to provide any explanation for his failure prior to July 21, 2004 to disclose his participation in four robberies.
On August 18, 2005, the Government advised Mr. Seidler that it considered Gerinson in breach of his cooperation agreement and that it would not be seeking a downward departure pursuant to Section 5K1.1 on Gerinson's behalf. The Government advised Mr. Seidler that it considered Gerinson in breach due to his failure to disclose his participation in the robberies and his continued denial ...