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March 27, 1992



The opinion of the court was delivered by: JAMES H. ALESIA

Now before the court is the government's motion to vacate defendant Martin Feliciano's ("Feliciano") plea agreement, pursuant to United States v. Verrusio, 803 F.2d 885 (7th Cir. 1986). On February 3, 1992, the court held an evidentiary hearing at which time the government presented evidence. *fn1" The court now makes the following findings of fact and conclusions of law.


 The court, based upon the credible evidence of record after an evidentiary hearing, makes the following Findings of Fact:

 1. Defendant Feliciano was indicted along with co-defendants Edwin Torres, Ivan Correa, Carlos Diaz (also known as "Tonito") and Jose Ortiz. The defendants were charged with conspiring to possess with intent to deliver, and actual possession with the intent to deliver more than five kilograms of cocaine. The defendants were arrested on January 3, 1991 after undercover agents conducted a undercover "buy" at Correa's apartment on 2543 North Springfield, Chicago, Illinois. (Tr. 7-12, 17) *fn2"

 2. Prior to entering into a plea agreement with the government, Feliciano made several proffer statements to the government detailing his, and his co-defendants', involvement with the criminal conspiracy. These statements were made in two meetings with the government on July 18 and July 25 of 1991. (Tr. 75) The purpose of these proffer meetings was to determine whether the government and Feliciano would pursue a plea agreement. (Tr. 75 -76)

 3. At the July 18 proffer meeting, Feliciano gave the following version of events:

 On January 3, 1991, Feliciano received a "beep" on his personal beeper from co-defendant Correa. (Tr. 75-76) Upon contacting Correa, Correa told Feliciano to come over to Correa's apartment, which Feliciano did. (Tr. 79) Correa's apartment was located at 2543 North Springfield in Chicago. (Tr. 82) Upon meeting with Correa, and at Correa's request, Feliciano drove to an apartment on Harding Street to pick up Correa's drug source "Ronnie" *fn3" and obtain a quantity of cocaine. (Tr. 76) Feliciano returned to Correa's apartment with between five and six kilograms of cocaine, and was met by Correa who brought a portion of the cocaine into his apartment. Also present in Correa's apartment at the time was co-defendants Diaz. Correa and Feliciano disagreed as to how to conduct the drug transaction with the undercover agent, Rafael Tovar ("Tovar"), who was posing as the buyer. (Tr. 77) Eventually, Feliciano left the apartment and requested Tovar and Ortiz to enter the apartment to complete the transaction. (Tr. 77) Feliciano then went to another apartment in the building to visit several of Correa's relatives. (Tr. 77) Later, Correa again "beeped" Feliciano who then returned to Correa's apartment. (Tr. 78) Correa and Feliciano then retrieved the remaining five kilograms of cocaine from Feliciano's car and re-entered Correa's apartment to complete the cocaine transaction with Tovar. (Tr. 78)

 4. At his July 18 proffer meeting, Feliciano stated he was not present in the apartment during the time co- defendants Correa, Diaz and Ortiz and undercover agent Tovar tested a one-kilogram brick of cocaine. (Tr. 78)

 5. Following the July 18 proffer meeting, the government determined that Feliciano's version of events differed from Tovar's version. (Tr. 81) Tovar testified at the hearing that Feliciano was present when Tovar inspected the one-kilogram package of cocaine. (Tr. 13-14) Tovar further stated that Diaz, Correa and Ortiz were also present at that time and that Feliciano had witnessed Diaz and Tovar comment on whether the one-kilogram package might be a fake. (Tr. 14)

 6. A second proffer meeting was held on July 25, 1991. At this proffer meeting, Feliciano's version of events was similar, but not identical, to the version given at the July 18 proffer meeting. Feliciano's version at the second proffer meeting differed in several relevant respects:

a. Feliciano stated that after leaving Correa's apartment to go upstairs to see Correa's relatives, a male adult was present at the upstairs apartment. (Tr. 83)
b. Feliciano stated that contrary to his statement at the July 18, 1991 proffer meeting, when Feliciano arrived at Correa's apartment having already met with "Ronnie", Feliciano, and not Correa, brought the cocaine into Correa's apartment. (Tr. 84, 85)
c. Feliciano stated that he was present when Tovar, Correa, Diaz and Ortiz inspected a one-kilogram package of cocaine. (Tr. 84) Feliciano stated he could not remember what happened to the one-kilogram package of cocaine after Tovar had inspected it. (Tr. 84)

 7. Feliciano and the government entered into a plea agreement on July 31, 1991. In return for Feliciano's guilty plea, the government agreed to recommend to the court a sentence of two-thirds of the guideline range, or 80 months. Plea Agreement P14.

 8. As part of the plea agreement, Feliciano acknowledged the underlying facts of the drug conspiracy. Feliciano also acknowledged:

Correa led Agent Tovar to a bedroom in which a one kilogram package of cocaine was stored. Feliciano and Ortiz were present in or near the bedroom at this time. Co-defendant Carlos Antonio Diaz was present in the bedroom. Agent Tovar, Feliciano, Correa, Diaz and Ortiz then walked into the apartment's kitchen where Tovar inspected the package with a knife supplied by Correa.

 Plea Agreement, at P5(a).

 9. As part of the plea agreement, Feliciano agreed to "fully cooperate with the government in any investigation in which he is called upon to cooperate that is related to or result from the charges in this case." Plea Agreement, at P12. Feliciano also agreed to "provide complete and truthful testimony, if called upon to testify, before any federal grand jury and United States District Court proceeding." Plea Agreement, at P12. Feliciano stated in open court, during his change of plea hearing, that he understood paragraph 12 of the plea agreement and agreed to abide by it. See Government Exhibit 3, Transcript of Proceedings before Judge Alesia on July 31, 1991, at 11.

 10. Feliciano acknowledged in his plea agreement that "compliance with each part of this plea agreement extends throughout and beyond the period of his sentence, and failure to abide by any term of the plea agreement is a violation of the ...

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