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July 2, 1996

RAY A. PROCTOR, Defendant.

The opinion of the court was delivered by: HOGAN


 On November 3, 1994, defendant was charged in a superseding indictment with conspiracy to distribute and possession with intent to distribute over fifty grams or more of cocaine base, over five hundred grams or more of cocaine and over one hundred grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. In November 1994, the defendant and the government entered into negotiations regarding a possible plea agreement and discussions regarding any information the defendant might be able to provide regarding drug trafficking and acts of violence. Eventually the defendant agreed to provide information regarding drugs, murders, and shootings, but made clear that he would not provide information regarding friends from his Park Morton neighborhood. With this understanding, on or about December 8, 1994, the defendant entered into a plea agreement with the government.

 Naturally, analysis of whether the terms of the plea agreement have been met begins with a review of that agreement's terms. First, the agreement specifies that the defendant agrees to cooperate in whatever form the United States Attorney's Office deems appropriate. Agreement at P 3(a). The "whatever form" paragraph is subsequently defined to include answering questions, giving sworn written statements, giving testimony, and participating in covert law enforcement activities. Moreover, the agreement makes clear in P 3(c) that the defendant shall testily fully and truthfully before any grand jury in the District of Columbia and elsewhere and at all trials of cases or other court proceedings and elsewhere at which his testimony may be deemed relevant by the government. Thus, the plea agreement expressly required that the defendant be prepared to testify in open court. The government concedes that the defendant expressed concern at the time of the agreement about testifying, and hoped that testimony would not be required. However, the government maintains that at no time in negotiations with the defendant did any representative of the government tell the defendant he would not be required to testify. And in fact, the agreement as signed expressly requires the defendant to do just that.

 In return, the government made several commitments. In addition to dismissing several counts from the defendant's indictment, the prosecutor promised that in return for the defendant's "specific performance of all his obligations under the agreement," it would inform the Departure Guideline Committee of the United States Attorney's Office of the nature and extent of the defendant's cooperation. Moreover, the agreement provided that if the Departure Committee, after an evaluation of the defendant's cooperation, determined that the defendant had provided substantial assistance, then the prosecutor would file a substantial departure motion pursuant to § 3553(e), and 5K1.1. Most importantly for the Court's purposes, the agreement stated that:

your client understands that the determination of whether he has provided substantial assistance is within the sole discretion of the United States Attorney for the District of Columbia and is not reviewable by the Court. Nor shall the failure of the United States Attorney's Office for the District of Columbia to file a substantial assistance departure motion be grounds for your client to move to withdraw his plea of guilty in this case.

 Agreement at P 9(d).

 On December 12, 1994, the defendant appeared in court so that his plea could be accepted. The Court, pursuant to Rule 11 of the Federal Rules of Criminal Procedure engaged the defendant in a thorough discussion of the terms of his plea. At no time did the defendant express concern over the terms contained therein, including either the requirement that he testify or that the government retained "sole discretion" to determine whether he had provided substantial assistance. The Court subsequently accepted the defendant's plea.

 Following the plea, the defendant began having regular meetings with the government. These meetings generally included the defendant, defense counsel, the AUSA, and FBI Agent David Larson. Initially, the discussions appear to have focused on drug trafficking. The defendant admitted receiving drugs from one individual whom the FBI had already taped discussing the subject with the defendant. The defendant also identified a New York supplier; however, that individual had already died. Eventually the subject of the meetings turned to the defendant's knowledge regarding several homicides. These meetings were also attended by a Metropolitan Police Department homicide detective. According to the government, these meetings abruptly ended when the government determined that the defendant was not being wholly honest or forthcoming about his knowledge of the murders.

 Sometime during this period, two individuals -- Dexter Blackstock and Terry Barker -- were arrested and charged with a narcotics conspiracy in the Eastern District of Virginia. The government maintains that they had information that these two individuals had long supplied the defendant with drugs, the defendant knew both individuals, and that he had drug dealings with both. The government asked the defendant to testily before the grand jury regarding the two individuals. Not only did the defendant refuse, but he denied having any information regarding them.

 Soon after, counsel for the defendant contacted the government to express defendant's concern about his continued cooperation. Defendant's counsel allegedly represented that the defendant believed that the FBI had leaked information concerning the defendant's attempts to cooperate. Defendant's counsel subsequently contacted the AUSA and informed him that the defendant was willing to cooperate but would not testify, and inquired if under such circumstances it was still possible to get a 5K1.1 departure for substantial assistance. The AUSA told the defendant he believed that it was possible, but stated that he would need to confirm this with the Departure Committee of the U.S. Attorney's Office. After speaking with a representative of the Departure Committee, the AUSA informed the defendant that he could still theoretically qualify for a 5K1.1 letter without testifying as long as the information provided significant assistance to the government.

 Subsequently, the defendant agreed to provide information regarding several homicides of which he was aware. However, none of the information the defendant eventually provided constituted information the government did not already possess. The AUSA informed the defendant through his counsel that the information had been of little use. At this stage, the defendant raised anew ...

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