United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. KOELTL, DISTRICT JUDGE
defendant, Ferney Dario Ramirez, seeks an order requiring the
Government to move for a reduction of his sentence pursuant
to Federal Rule of Criminal Procedure 35. The defendant
claims that he provided substantial assistance to the
Government and that the Government wrongfully withheld the
Rule 35 motion. The Government opposes the defendant's
application, arguing that it did not make any promise to
provide a Rule 35 motion and further did not withhold a Rule
35 motion based on any impermissible basis.
following facts are drawn from the defendant's brief and
affidavit in support of his request for a Rule 35 motion as
well as from prior decisions of this Court.
6, 2004, the defendant pleaded guilty pursuant to a plea
agreement to one count of conspiracy to distribute cocaine in
violation of 21 U.S.C. §§ 812, 841(a)(1),
841(b)(1)(A), and 846. Ramirez v. United States, No.
09-cv-4397 (JGK), 2011 WL 1795145, at *1 (S.D.N.Y. May 6,
2011). On February 3, 2005, the defendant, with the aid of
new counsel, submitted a letter requesting to withdraw his
plea. Id. at *2. The Court granted the
defendant's request to withdraw his plea and held a
Fatico hearing to resolve factual disputes relating
to the defendant's sentence. Id. at *3-4. After
the Fatico hearing, the Court sentenced the
defendant principally to 210 months' imprisonment
followed by five years' supervised release. Id.
at *5. The defendant is currently serving his sentence at the
D. Ray James Correctional Facility in Folkston, Georgia.
Ramirez Aff. at 1. He has a projected release date of January
15, 2019. Def.'s Mot. Compel 2.
pending before the Court is a motion by the defendant to
compel the Government to provide him with a Rule 35 motion to
reduce his sentence. The defendant argues that he has
provided substantial assistance to the Government. In his
affidavit in support of the motion, he swears that he has
been "willing to cooperate with the U.S.
Government" since his arrest. Ramirez Aff. ¶ 1.
Specifically, the defendant notes that he has provided
assistance regarding two different criminal matters on at
least three separate occasions.
in 2008, the defendant was debriefed by Marisol Gonzalez, an
FBI Special Agent from Tampa, Florida, and another FBI agent
regarding Rigoberto Castro and Rigo Jalapatas. Ramirez Aff.
¶ 3. The defendant swears that he answered all the FBI
agents' questions "to their satisfaction, " and
that, at the conclusion of the meeting, the agents
"promised" him a Rule 35 motion. Ramirez Aff.
¶ 3. A year later, in 2009, the defendant swears that he
was again debriefed by Gonzalez and another FBI agent about
Rigoberto Castro and Castro's wife, Esperanza. Ramirez
Aff. ¶ 4. The defendant states that he was never
provided with a Rule 35 motion as a result of these
debriefings. Ramirez Aff. ¶ 5. Instead, when the
defendant's attorney, Nelson Alfaro, inquired with
Gonzalez regarding the status of the defendant's Rule 35
motion, Gonzalez told him that "another agency" had
arrested Castro. Ramirez Aff. ¶ 5.
in June 2010, the defendant swears that he was debriefed by
Alan Bode, an Assistant United States Attorney
("AUSA") for the Eastern District of New York
("EDNY"), regarding the case against Carlos Arturo
Patino Restrepo, also known as Patemuro. Ramirez Aff. ¶
8. The defendant was transferred to the EDNY for this
meeting, which lasted approximately three hours. Ramirez Aff.
¶ 8. The defendant claims that he was "held in
Brooklyn for over [seven] months in the event Mr. Patino
proceeded to trial, " and that he was put on the witness
list for the trial but that he never received a Rule 35
motion recognizing his assistance. Def.'s Mot. Compel 2.
defendant also swears that, sometime in 2008 or 2009, his
attorney contacted an AUSA in Miami, Florida, and offered
testimony for the trial of Hernan Prada Cortes. Ramirez Aff.
¶ 6. The defendant does not argue that anything came
from this offer or that he actually provided any assistance
to the Government with respect to the Cortes trial. Ramirez
Aff. ¶ 6. He also states that, in this same time period,
Adam Fels, an AUSA in Miami, contacted his attorney "to
find out if [the defendant] was willing to cooperate and
testify against Mauricia Henao Toro at sentencing."
Ramirez Aff. ¶ 7. The defendant swears that such
cooperation was "rejected by AUSA Goldberg" from
the Southern District of New York ("SDNY"). Ramirez
Aff. ¶ 7.
defendant argues that he is entitled to a Rule 35 motion
based on his substantial cooperation as outlined above. He
claims that he had an oral cooperation agreement that was not
fulfilled by the Government. The defendant also states that
he was denied the Rule 35 motion for impermissible reasons.
Government, of course, may not 'ignore or renege on
contractual commitments to defendants.'" United
States v. Reyes, No. 98-1691, 1999 WL 972673, at *1 (2d
Cir. Sept. 22, 1999) (summary order). However, in this case,
the defendant's allegations that there was a cooperation
agreement are not credible, and there is no basis to find
that such an agreement existed.
defendant's claim that he had an agreement with AUSA Bode
is not supported by Bode, nor by the defendant's own
attorney, Alfaro. Bode swears that he did not promise the
defendant to make a motion for reduction of sentence under
Rule 35 and that it is generally not his practice to make
such promises but instead to advise the defendant that any
motion must be made by the AUSA in the district in which the
defendant was convicted - in this case, the SDNY. Bode Decl.
¶ 4. Bode further swears that his evaluation of the
information the defendant provided to him regarding Patemuro
was "limited in its utility and relevance, " and
that, consequently, the defendant was never included in the
Giglio disclosure of possible witnesses for
Patemuro's trial, nor did the ...