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UNITED STATES v. CLAIBORNE

October 19, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIO CLAIBORNE, also known as Chuck, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before the court is the government's motion to vacate the plea agreement it entered into with defendant Mario Claiborne. For the reasons set forth below, we grant the government's motion.

 I. Background

 Mario Claiborne was arrested on June 14, 1991, and subsequently charged in the thirty-seven count, superseding indictment with violations of 21 U.S.C. §§ 841(a), 843(b), 846, 848, and 18 U.S.C. § 1956(a)(1)(B)(i). Prior to trial, Claiborne entered into a plea agreement with the government, in which he agreed to plead guilty to Counts I (conspiring to possess with the intent to distribute narcotic drugs and to use and cause others to use telephones in committing drug trafficking offenses), XXXIII (conducting a financial transaction affecting interstate commerce, while using and concealing narcotics proceeds) and XXXIV (same) of the superseding indictment in return for a sentence of twenty-two years imprisonment on Count I and no consecutive sentences of incarceration imposed as to Counts XXXIII and XXXIV. Additionally, Claiborne agreed that he would

 cooperate fully with the government in any investigation in which he is called upon to cooperate that is related to or results from the charges in this case. Defendant agrees to provide complete and truthful information to government investigators, including truthful testimony, if called upon to testify, before any federal grand jury and United States District Court proceeding.

 After making an independent determination that there was a factual basis for the plea, that the conduct admitted to by Claiborne constituted the offenses charged in the superseding indictment, and that Claiborne understood both the nature of the charges and the consequences of his plea, this court accepted Claiborne's guilty plea on October 1, 1991.

 Claiborne began to fulfill his obligations under the plea agreement on September 19, 1991, giving the following statement under oath to a grand jury of the United States:

 I am Mario Claiborne, and I am the individual named in indictment 91 CR 463. I am also called Chuck. The following statement is a brief summary of events since about the summer of 1986 to about June 14, 1991. It is not intended to be complete and is not complete as to who was involved, the quantities of narcotics involved, or the nature of the people's involvement during those years. Where possible, I have given complete names as well as nicknames. However, I do not know or recall some people's complete names at this time. I may recall complete names if I am allowed to review reports or memoranda, if any exist, that record the names. I have not reviewed any reports or memoranda before today. I have listened to a few of the tape-recorded conversations from the wire tap of the three phones at my two houses for the purpose of identifying voices.

 Since in or about the summer of 1986 until June 14, 1991, I engaged in a continuing criminal enterprise by committing a series of felony violations, specifically I ran a narcotics trafficking business. I was assisted in that business by at least five other people, including Patrick Greer, Eula Scott, also called Boo, Donna Hurns, Christopher Epison, Carlos Curry, also called Lil' Chuck, Don Smith, Tyrone Helse, Larry Martin, Harold Williams and Leland Leghette, and I acted as an organizer, supervisor or manager of those people. These people did not necessarily all work for me at the same time or all the time since 1986. For example, since 1986 there were times when Scott had nothing to do with my business. Since 1986 and up to and including June 14, 1991, I have not had a legitimate source of income. I have obtained substantial income and resources from my drug trafficking business.

 I operated a narcotics distribution business in Chicago, Illinois and Gary, Indiana. In my narcotics business, the people and their positions within the business changed over time. Sometimes, people played several roles at the same time, such as working for me and selling me cocaine or heroin. For the most part, I purchased, packaged and distributed cocaine in my business but from time to time I would purchase heroin and deliver some of that heroin to others, including Patrick Greer. I obtained cocaine at various times from many different sources, including Johnnie Fort, Eduardo Castille and Tyrone Helse, and I obtained heroin from many sources, including Eric Myers and Tyrone Helse.

 Workers, including Scott, Hurns, Curry and Helse would accept delivery from sources and present the payment for the narcotics when I was not present. After purchasing narcotics from those sources, I and workers cut and packaged the narcotics into various-sized packages, the cocaine packages ranging in weight from quarter ounce to kilogram, and the heroin packages ranging in weight from grams to ounces. Scott and Hurns would hold money and sometimes narcotics for me at my direction.

 Workers and some of the wholesale customers would then divide the cocaine into smaller-weight packages, which were then distributed to street dealers who were located for the most part in the 44th and Greenwood area. Since about 1987, the street dealers "cooked" almost all of the cocaine into cocaine base or "crack." The street dealers then sold the packets and turned the money in to the person from whom they had taken the packets. Workers, including Curry, Smith, Helse, Harold Williams, Martin, Epison, David Williams, Leghette and Coleman, brought the money from the narcotics sale back to me.

 We referred to cocaine as "work," "package," "thing," "racing gas," "gallons," "pistons," "speakers," "woofers," "girl," "blow," "one half or quarter mile," and "cake."

 We referred to heroin as "piece/slice of cake," "brown sugar," "boy," "chocolate chip cookies," "vanilla wafers, "Bobby," "Bobby Brown," and "brown."

 During the five years that I distributed drugs, I and the people who worked for me or purchased from me used telephones and pagers a great deal in conducting our drug business.

 Since 1986, but at different times, Patrick Greer, Larry Martin and Tyrone Helse have worked closely with me and knew about my entire operation. Greer, Martin and Helse were more trusted and had more responsibilities than people like Curry and Smith. Martin was my partner for awhile. Martin and Helse now distribute narcotics on their own, but still buy cocaine from me occasionally. Greer also has his own cocaine operation in the Gary, Indiana area. Martin always cooked the cocaine into crack. Two of Martin's workers were Stanley and Alphonso Wright. Those two worked for Martin and me when Martin was my partner.

 During the course of the conspiracy, no less than 15 kilograms of cocaine base were distributed by me or the people working for me.

 Between August and October 1989, I bought the house at 14817 Grant Street, Dolton, Illinois with illegal drug proceeds. Helse asked his brother-in-law, William Richardson, to buy the house for me. Richardson used my money, but he put the house in his name so that it could not be traced to me. I gave Helse and Richardson at least $ 80,000 to buy the house in Dolton, Illinois. I lived at 14817 Grant Street, Dolton, Illinois with Eula Scott.

 I also lived at 3509 Fountainbleu in Hazel Crest, Illinois with Donna Hurns. In or about July 1990, I gave Hurns at least $ 30,000 of money I had made in my drug trafficking business. Hurns then arranged with her mother, Lore Goodrich, to act as the purchaser of the house and to put her name on all the papers, including the title to the property and the mortgage note so that my name and Hurns' name would not appear as the owners of record. Hurns and Goodrich both knew that the money for the house came from selling narcotics.

 From on or about September 25, 1990 until June 14, 1991, I gave Hurns money from my drug trafficking business to make the mortgage payments on 3509 Fountainbleu, Hazel Crest.

 On April 14, 1992, Judge Lozano allowed the government to conduct outside the presence of the jury a voir dire examination of Claiborne respecting the alleged threats. After obtaining a grant of immunity, Claiborne testified that he received six threats regarding his cooperation at trial. First, Claiborne claimed that, on the day he was arrested, a DEA agent told him that he would "never see the street again." Id. at 342, line 6. Second, Claiborne maintained that an agent told co-defendant Carlos Curry that if Claiborne did not cooperate with the government, Claiborne's mother would be arrested. Id. at 343, lines 18-19. Third, Claiborne stated that Assistant United States Attorney Coughlin promised that he "would get life plus ten" for failing to abide by the plea agreement. Id. at 350, lines 5-6. The fourth purported threat came from the El Rukns, warning Claiborne not to testify at the trial. Id. at 350, lines 18-19. These alleged threats came both before and after Claiborne's plea on October 1, 1991. Id. at 350-56. Claiborne further claimed that IRS Agent Kevin Moss told Claiborne that the government was going to arrest or indict his mother. Id. at 375, lines 6-15. Finally, Claiborne testified that a government witness, Larry Martin, informed Claiborne that another government witness, David Williams, declared that Claiborne "better testify in this case so it wouldn't mess up [Davis Williams'] deal he got with the government." Id. at 357, lines 21-22. Additionally, during the voir dire examination, Claiborne testified that his statement before the grand jury was false, and was given only as a result of threats by the government. Id. at 372-73, 381-83.

 Following the voir dire examination, Claiborne was recalled as a hostile witness and examined by the government in the presence of the jury. When questioned about the plea agreement he entered into with the government, Claiborne admitted signing the document, but maintained that he had never reviewed its content with his attorney. Id. at 538, lines 7-15. When presented with the document, Claiborne claimed that he did not recognize it and denied ever seeing it. Id. at 532-37. Claiborne then repeated his testimony concerning the alleged threats and the falsity of his statement before the grand jury. Id. at 568-72. Claiborne concluded his testimony on direct examination by repeatedly responding to each question posed that he did not remember. Id. at 716-809, 859-923. After cross-examination by two co-defendants, Claiborne refused to answer any further questions. Id. at 1007-08. Having completely disregarded the court's orders to answer, Claiborne was held in contempt. Judge Lozano denied defendants' motion for a mistrial and struck Claiborne's testimony in its entirety, instructing the jury to disregard, and draw no inferences from, his statements. Id. at 1222-23.

 II. Discussion

 There is no question that the vast majority of Claiborne's statements at trial are contradictory of his testimony before the grand jury. Indeed, Claiborne does not, and cannot, dispute that he testified under oath untruthfully at one or both of these proceedings. Claiborne's Answer to the Government's Motion to Revoke Plea Agreement at 2 ("The transcript is replete with statements by the defendant which not only can be interpreted as contradictory of earlier assertions to this court and to the Grand Jury but are contradictory of statements made on the same day or the day before in front of Judge Lozano."). Instead, Claiborne raises the following arguments in opposition to the government's motion: (1) that he was not competent to testify at trial and, as such, may testimony given at trial cannot serve as the basis for a violation of the plea agreement; (2) that his prior counsel rendered ineffective assistance of counsel; (3) that the contradictory statements and his refusal to cooperate are explained by alleged threats made to him; and (4) that despite the contradictions, his testimony at trial constituted substantial compliance with his obligations under the plea agreement as defendants were in fact convicted. Finding that ...


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