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November 22, 1996


The opinion of the court was delivered by: LECHNER

LECHNER, District Judge

 An eighty-four count indictment (the "Indictment") was filed on 29 December 1992 against Salvatore Juliano, Sr. ("Salvatore Juliano"), Anthony Juliano ("Anthony Juliano") (collectively the "Defendants") and seven others.

 The Indictment charged the Defendants with violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c) and (d), extortion, 18 U.S.C. § 1951, money laundering, 18 U.S.C. § 1956(a)(1)(A)(I), (a)(1)(B)(I) and (a)(1)(B)(ii), monetary transactions involving criminally derived property, 18 U.S.C. § 1957, corruption, 18 U.S.C. § 666(a)(1)(B), (a)(2), and embezzlement, 18 U.S.C. § 666(a)(1)(A).

 On 14 September 1993, the Defendants entered into plea agreements with the Government by which they agreed to plead guilty to count one of the Indictment which charged them with "conspiracy to conduct and participate in the conduct of the affairs of an enterprise, namely the Newark Division of Sanitation, through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d)" ("Section 1962(d)"). See Plea Agreement of Salvatore Juliano and Plea Agreement of Anthony Juliano (collectively the "Plea Agreements").

 The Defendants are subject to a maximum prison sentence of twenty years for their violations of Section 1962(d). See 18 U.S.C. § 1963(a). The Defendants' presentence investigation reports set forth the sentencing ranges, under the United States Sentencing Guidelines (the "Guidelines"), as follows: Salvatore Juliano: "based on a total offense level of 27 and a criminal history category of I, the guideline range for imprisonment is 70 to 87 months," Presentence Investigation Report for Salvatore Juliano, P 131; Anthony Juliano: "Based on a total offense level of 18 and a criminal history category of I, the guideline range for imprisonment is 27-33 months," Presentence Investigation Report for Anthony Juliano, P 110.

 A joint motion was filed by the Defendants to compel specific performance of the Plea Agreements and order the Government to file a downward departure motion pursuant to 18 U.S.C. § 3553(e) ("Section 3553(e)") *fn1" and U.S.S.G. § 5K1.1 ("Section 5K1.1") (the "Motion to Compel"). *fn2" For the reasons set forth below, the Motion to Compel is denied.


 The facts underlying the numerous charges filed against the Defendants were set forth at length in an unpublished letter-opinion which addressed various pre-trial motions. The facts relevant to the instant opinion are set forth below.

 A. The Plea Agreements

 As indicated, on 14 September 1993 the Defendants entered into the Plea Agreements. Aside from the defendant named, the Plea Agreements are identical. The Plea Agreements provide that if the Defendants entered guilty pleas, agreed to cooperate with the Government in the investigation and prosecution of Federal criminal offenses, pursuant to the terms of the Plea Agreements, and are sentenced on count one, "then, at the time of sentencing the United States Attorney for the District of New Jersey will dismiss the remaining Counts of the Indictment ...." Plea Agreements at 1. The Plea Agreements additionally provide that if the Defendants

fully [comply] with the terms of [these] agreement[s], and prior to [their] sentencing provide substantial assistance in the investigation and prosecution of one or more persons who have committed a federal offense, the United States will: (1) move the sentencing court, pursuant to Section 5K1.1 of the Sentencing Guidelines, to depart from the otherwise applicable guideline range; or (2) in the event that the sentencing court declines to depart from the applicable guideline range, recommend that the sentencing court impose the minimum sentence required under the applicable guideline range. However, the decision to make the motion for a downward departure under Sentencing Guideline 5K1.1 is in the sole discretion of the United States.

 Plea Agreements at 4 (emphasis added).

 The Plea Agreements, moreover, specifically provide that:

With respect to evaluating the significance of any cooperation for purposes of meeting the requirements for credit under the "substantial assistance" provision of the Guidelines, The (sic) Government is obliged to inform the sentencing court in a full and fair manner of the relative importance or insignificance of the information provided. The information that will be provided will depend upon a number of factors including the importance of any case developed and the degree to which [the Defendants'] information contributed to such case development. [The Defendants] should understand that not infrequently information provided by a cooperating individual turns out to be merely cumulative, and therefore of little relative significance. While the person who provided the information may have made every effort to be completely cooperative, that fact does not make the information any more valuable. The Government is obliged to provide the Sentencing Court with an accurate assessment of value, as well as an assessment of the defendant's cooperativeness.

 Plea Agreements at 4 (emphasis added).

 After executing the Plea Agreements, the Defendants attempted to cooperate with the Government. See Sentencing Memorandum at 10. The Government does not allege the Defendants breached the terms of the Plea Agreements. Id. The Government, however, has determined the Defendants have not provided substantial assistance; accordingly, the Government has decided not to file a motion for downward departure.

 B. The Plea Hearing

 On 20 September 1993, a plea hearing (the "Plea Hearing") was held during which the Defendants pleaded guilty to count one of the Indictment. *fn3" During the Plea Hearing, the Government characterized the Plea Agreements as "cooperating plea agreements." Plea Tr. at 4. The Government stated the Defendants had "indicated their willingness to assist the Government in continuing prosecutions and should that result in substantial assistance, ... [the Government would] propose a motion pursuant to [Rule 5K1.1] to reflect that cooperation." Id. (emphasis added).

 The Defendants indicated they understood and agreed with the terms and conditions of the Plea Agreements. Plea Tr. at 7-9. The Defendants testified their attorneys had explained their rights and that the Plea Agreements "fairly and accurately" stated their agreements with the Government. Id. at 8-9. The Defendants further testified they had not been promised a "light sentence" or "any particular sentence" for their decisions to plead guilty. Id. at 10.

 The consequences of the decision to plead guilty were explained to the Defendants. Plea Tr. at 14-16. The Defendants were cautioned that if their pleas were accepted, "a violation of count one of the indictment carries a statutory maximum penalty of 20 years imprisonment and/or a fine of up to $ 250,000." Id. at 14. The Defendants were also informed if they were sentenced to prison they would "be required to serve a term of supervised release of between three and five years" and that violation of the terms or conditions of supervised release could result in "up to an additional three years" imprisonment. Id. at 15.

 The Defendants testified they were "satisfied with the services" of their attorneys and the decisions to plead guilty to count one of the indictment were their own. Plea Tr. at 17. The Defendants, moreover, testified they understood the Plea Agreements would be binding even if they received sentences that were "more severe" than expected. Id. at 19.

 The Defendants testified they had read the Indictment, had discussed count one "in detail" with their attorneys and understood all the allegations contained in count one. Id. at 31. In addition to giving an adequate factual basis for their pleas, the Defendants confessed they "knowingly, willfully and intentionally committed the conduct set forth in count one of the indictment." Id. at 31-32.

 The Government requested an "open date" for the sentencing the Defendants. Plea Tr. at 36. The reason for setting an "open date" was to provide the Defendants with the "opportunity to cooperate" with the Government. Id. at 36. The Defendants indicated they had discussed the Government's request with their attorneys and had no objection to setting a sentencing date at a later point. Id. at 37.

 C. The First Salvatore Juliano Sentencing Hearing4

 In response, the Government informed the court no arrests, indictments or prosecutions had resulted from Salvatore Juliano's assistance. First Sentencing Tr., S. Juliano at 8-9. The Government, moreover, stated the decision not to file a Section 5K1.1 motion had not been made in "bad faith and there were no misrepresentations made to counsel." Id. at 7. It was observed that "merely because [a defendant] wanted to cooperate or merely because [a defendant] spoke with the Government, that does not equate to substantial cooperation." Id. at 9. It was further observed that based upon the circumstances of Salvatore Juliano's assistance, as then represented by the Government at the First Sentencing Hearing, a downward departure was not warranted. Id. at 10.

 Counsel agreed more than mere cooperation was required before a defendant would be entitled to a 5K1.1 motion, but argued the court should consider the "quality and quantity of the cooperation, whether it results in substantial assistance to the Government." First Sentencing Tr., S. Juliano at 17 (emphasis added). This position was accepted and counsel was advised this was "something [he would] have to pursue" and was asked to "make ... a proffer." Id. at 18-19. Counsel responded by requesting leave to file the instant motion. Id. at 19. Counsel indicated the motion would include an affidavit from Salvatore Juliano ...

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