The opinion of the court was delivered by: JAMES H. ALESIA
Before the court is the government's Motion to Revoke Plea Agreement of defendant Leonard Patrick ("defendant" or "Patrick"). Defendant was originally charged with racketeering and conspiracy in a six-count indictment in this case. He agreed to cooperate with the government and to plead guilty to a two-count superseding information, however, and the government agreed to dismiss the six-count indictment against him at the time of sentencing ("the plea agreement"). Between April and August 1992, defendant provided substantial assistance and information to the government. On August 6, 1992, defendant pleaded guilty to the two-count information. On September 16, 17, 18, 21 and 22, 1992, defendant testified before this court in United States v. Alex, No. 91 CR 727 ("the Alex case"). On March 10, 1993, this court sentenced Patrick to six years in prison pursuant to the plea agreement and, pursuant to the government's motion, dismissed the indictment against him.
On February 17, 1993, Patrick testified for the government in United States v. Carlisi, No. 93-0026-E (S.D. Cal. 1993) (Enright, J.) ("the Carlisi case"). According to the government, defendant testified falsely in the Carlisi case in violation of the plea agreement. Paragraph 12 of the plea agreement states:
Defendant agrees he will fully cooperate with the government in any investigation in which he is called upon to cooperate. Defendant agrees to provide complete and truthful testimony, if called upon to testify, before any federal grand jury and United States District Court proceeding. Defendant acknowledges that in the event he provides false information to the United States or testifies falsely in any proceeding, this plea agreement is null and void and the government is free to prosecute him for any of the matters charged in the superseding indictment.
The government argues that Patrick breached this part of the plea agreement by testifying falsely in the Carlisi case. The government, therefore, moves for an order revoking defendant's plea agreement and vacating the judgment and commitment order and reinstating the indictment against him.
"A plea agreement is a contract . . . with special due process concerns for fairness . . .". United States v. Ataya, 864 F.2d 1324, 1329 (7th Cir. 1988). In determining whether to revoke a plea agreement, the "court must examine whether there has been a 'substantial breach' of the plea agreement . . . 'in light of the parties' reasonable expectations' upon entering the agreement." Ataya, 864 F.2d at 1330. In this case, the defendant concedes that he lied while testifying in the Carlisi case. See Defendant's Response to the Government's Motion, at p. 2 ("There is no question that Mr. Patrick made false and inconsistent statements in the San Diego trial, whether or not those statements were 'material' is extremely questionable"). Furthermore, the defendant does not dispute any of the inconsistencies in his testimony asserted by the government. Therefore, the only question this court must decide is whether the breach is a material one.
To do so, we will examine the false testimony given in the Carlisi case.
According to the government, and conceded by Patrick, Patrick made the following inconsistent statements while testifying in the Carlisi case. First, regarding the murder of Herman Gleck,
(a) In the Carlisi case, Patrick falsely testified with respect to the killing of Herman Gleck that Gleck had pulled a pistol on him (SD Tr. 29)
, that Gleck had a gun (SD Tr. 44), and that Gleck "went for his pocket anyhow. That's why he got shot." (SD Tr. 45).
(b) Patrick discussed the murder of Herman Gleck with representatives of the government on a number of occasions during 1992, including on April 9, 1992. Patrick never told the FBI or the prosecutors that Gleck had a gun, reached for his pocket or pulled a gun prior to Patrick shooting him. Instead, Patrick informed the FBI that a few days after an altercation between Gleck and himself, Patrick got a gun, observed Gleck wailing in front of a synagogue, approached Gleck and shot him. In addition, Patrick testified in the Alex case that: 'We had an argument and he hit me and I went down and I killed him a week later . . . I shot him in the head.' (Chi. Tr. 9/16/92 at 8). Patrick also testified that Gleck 'didn't have a gun with him.' (Chi. Tr. 9/17/92 at 43-44).
Regarding the murder of Harry Krotish,
(a) In the Carlisi case, Patrick falsely testified with respect to the killing of Harry Krotish that Krotish "went for a pistol" and Patrick shot him (SD Tr. 31), and that Krotish 'pulled a pistol on me in the car and I shot him.' (SD Tr. 32).
(b) Patrick discussed the murder of Harry Krotish with representatives of the government on a number of occasions during 1992, including on June 23, 1992. Patrick never told the FBI or prosecutors that Krotish went for a pistol or pulled a pistol on him. Patrick told the FBI that he and his partner, Davey Yaras, were angry with Krotish and decided that they had to kill him in order to maintain control of their gambling operations. Patrick said that he and Yaras picked up Krotish in a car, they drove toward the south side, and Patrick shot Krotish in the stomach twice and then in the head. In addition, Patrick testified in the Alex case, and nothing in that testimony suggested that Krotish tried to pull a weapon. Patrick testified as follows:
Q: Tell us how that murder took place.
A: No place. I just shot him that is all.
(Chi. Tr. 9/17/92 at 57). Patrick also ...