United States v. Laliberte

25 F.3d 10, 1994 U.S. App. LEXIS 12479, 1994 WL 202707
Court of Appeals for the First Circuit·Decided May 31, 1994·No. 93-1786·Published·Cited by 13 cases

Opinion

LEVIN H. CAMPBELL, Senior Circuit Judge.

On February 18, 1992, Carl Laliberte was charged in a five-count indictment with conspiring with seven others to possess in excess of five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 (1988) (Count One), possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) (1988) and 18 U.S.C. § 2 (1988) (Counts Two through Four), and using real property to commit violations of 21 U.S.C. §§ 841(a)(1), 846 (1988) so that the property was subject to forfeiture pursuant to 21 U.S.C. § 853 (1988) (Count Five). On April 27, 1992, Laliberte pleaded guilty to Counts One and Five pursuant to an Agreement To Plead Guilty And Cooperate (the “Cooperation Agreement”) entered into with the United States Attorney for the District of Maine (the “Government”) pursuant to Fed. R.Crim.P. 11. On October 6,1992, Laliberte, prior to sentencing, filed a motion to withdraw his guilty plea. The United States District Court for the District of Maine, on May 21, 1993, entered a memorandum of decision and order denying Laliberte’s motion. Laliberte appeals from this decision. We affirm.

I.

The April 27, 1992, Cooperation Agreement between Laliberte and the Government, in addition to requiring Laliberte to plead guilty to Counts One and Five, provided, inter alia, that Laliberte would

meet with attorneys and agents of the Government, as needed, to tell fully, honestly, truthfully and completely all that the defendant kn[ew] or ha[d] heard about violations of federal and state laws, including but not limited to the defendant’s involvement and the involvement of others in violations of law.... The defendant agree[d] to provide the Government or aid the Government in acquiring all documents, photographs, bills, records, receipts and all like materials to which the defendant ha[d] access, which w[ould] corroborate this information. Defendant further agreefd] to testify fully, honestly, truthfully and completely at any and all grand juries, trials or other official proceedings in which his testimony [was] requested.

Laliberte also consented to “assist the United States in effecting the forfeiture or other transfer of any property ... subject to forfeiture to the United States under any law of ■the United States.” In exchange for Lali-berte’s compliance with its terms and conditions, the Cooperation Agreement stated that the Government (1) “may petition the Court for the imposition of any lawful sentence,” see Fed.R.Crim.P. 11(e)(1)(B), and (2) “will move to dismiss Counts Two, Three and Four of the indictment after sentence is imposed,” 1 see Fed.R.Crim.P. 11(e)(1)(A). The Cooperation Agreement left to the sole judgment of the United States Attorney for the District of Maine whether Laliberte had complied with its terms and conditions — although the Government promised that, at Laliberte’s *12 request, it would “make known the cooperation provided by defendant to any individual or entity to whom defendant wishe[d] such information disseminated.” A decision that Laliberte had not cooperated was to have “a material and articulable basis.” Finally, the Cooperation Agreement expressly stated that “[n]othing in this agreement shall be interpreted to require the United States to move the Court pursuant to United States Sentencing Commission Sentencing Guideline Section 5K1.1 for a downward departure.”

Laliberte maintains, and the record tends to confirm, that after the execution of the Cooperation Agreement he assisted the Bureau of Intergovernmental Drug Enforcement (the “BIDE”) and the Drug Enforcement Agency (the “DEA”) on at least one occasion. His cooperation was in regard to the controlled purchase of six pounds of marijuana — a transaction that led to the arrest, on May 4,1992, of an individual named Hank Dresser — the seizure of fifteen pounds of marijuana, and the criminal forfeiture of a residence.

Laliberte’s collaboration was, however, short-lived. On May 5, 1992, James Hollywood, United States Pretrial/Probation Officer, complained to the district court by memorandum that his office had not been told that Laliberte was assisting government agents. Hollywood asserted that it was improper for Laliberte to cooperate without the permission of the court and others, including the probation officer. In response, the district court issued an order on May 6, 1992, directing the cessation of Laliberte’s active law enforcement cooperation. 2

About three months later, on August 10, 1992, the Government filed a motion requesting the district court to permit Laliberte to resume his active cooperation with law enforcement agencies. This motion was allowed on August 15,1992. On September 30, 1992, however, it appears that the district court vacated its August 15, 1992, order, and reinstated its May 6, 1992, order which had proscribed Laliberte’s active cooperation.

Nearly a week later, on October 6, 1992, Laliberte moved to withdraw his guilty plea pursuant to Fed.R.Crim.P. 32(d). 3 The motion asserted, inter alia, that, following the district court’s May 6, 1992, order, Lali-berte’s counsel had asked the Government on May 8, June 17, and June 25 to take whatever action was necessary to have that order lifted. Laliberte’s motion further maintained that the Government had “refused to take any action to have the order lifted, and [had] informed defense counsel of its position that the [district court] lack[ed] the authority to interfere with the active cooperation of a defendant with government agents, and that it would not seek the [district court’s] permission to allow such active cooperation because to do so would acknowledge that authority.” In light of the Government’s alleged “failure to provide the information requested by the Probation Officer to consider consenting to the defendant’s cooperation, and its failure to seek the approval of the [district court] to allow such cooperation,” the withdrawal motion argued that Laliberte had been denied “the opportunity to earn the filing of a motion for downward departure which the Government had promised him.” In this same vein, the final paragraph of the motion concluded:

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United States v. Laliberte, 25 F.3d 10, 1994 U.S. App. LEXIS 12479, 1994 WL 202707 (1st Cir. 1994).

25 F.3d 10 (United States v. Laliberte) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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