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United States v. Ramirez

United States District Court, S.D. New York

November 8, 2017

UNITED STATES,
v.
FERNEY DARIO RAMIREZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN G. KOELTL, DISTRICT JUDGE

         The 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.

         I.

         The 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.

         On May 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.

         Currently 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.

         First, 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.

         Second, 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.

         The 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.

         The 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.

         II.

         A.

         "The 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.

         The 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 ...


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