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UNITED STATES v. RIVERA

July 7, 1977.

UNITED STATES of America
v.
Roberto RIVERA, Defendant.



The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, District Judge.

Introduction

 We are called to account by defendant who charges that he has been shortchanged by virtue of our refusal to reduce the sentence we heretofore imposed. His efforts, he claims, included "cooperation" with the Government. We have retraced the steps taken in his case. These revelations relate to a particular case, but it must be remembered that they are generic in character.

 Defendant has moved to reduce sentence pursuant to Rule 35, Federal Rules Criminal Procedure. So numerous and frequent has this type of motion become that more than a perfunctory disposition seems requisite. For the reasons which appear below, this motion is denied in its entirety.

 Rivera was indicted, along with 18 other defendants, on July 10, 1975 for conspiracy to violate the Federal Narcotics Laws and a substantive violation thereof. On September 25, 1975 (during the first week of trial), he pled guilty to count one, the conspiracy charge. *fn1" At that time, and on defendant's motion with the Government's consent, we ordered dismissed count 12, the substantive charge.

 On January 21, 1976, we sentenced defendant to 15 years, plus six (6) years special parole, which sentence was to run consecutively with a sentence of 15 years imposed by Judge Cannella on October 4, 1974 for a separate violation of the Federal Narcotics Laws.

 Defendant moved to reduce his sentence on May 21, 1976; shortly thereafter he began "cooperating" with the offices of the United States Attorneys for the Southern and Eastern Districts of New York. Accordingly, defense counsel requested the Court to defer consideration of defendant's application until the federal prosecutors had an opportunity to assess his cooperation and report to the Court. It is now before us with counsel urging us to place a high value on his client's disclosures, the true extent of which we evaluate later herein.

 On November 26, 1976, the Government requested us by letter to delay decision on the instant motion inasmuch as an identical motion respecting the previous sentence (hereinabove mentioned) was pending before Judge Cannella. We now learn that Judge Cannella denied defendant's Rule 35 motion noting, "This defendant's record speaks for itself: he has had numerous brushes with the law and when he appeared for sentence before this Court, he had already been sentenced to a term of five years' imprisonment for dealing in cocaine." [USA v. Roberto Rivera, 74 Cr. 472, memorandum and order dated November 8, 1976, p. 2.]

 Although Rivera pled guilty to the conspiracy count only, we must look elsewhere to determine the nature of the character of the individual with whom we deal; this search includes the substantive offense, its scope and the seriousness of defendant's involvement in the plot and its aftermath. From our study of vital information made available to us from authoritative sources, we are reasonably certain that Rivera was a customer of the core group of distributors, and that he in turn had his own distribution organization. Rivera quite clearly was no street junkie, rather a distributor of considerable magnitude. On the merits, we are compelled to apply to this defendant our remarks on December 3, 1975 when we imposed sentence on his co-conspirators:

 We have presided over trials involving the sale of substantial quantities of narcotics. Never, however, on a scale as extraordinary as this with its enormous quantities of heroin bought and sold on an almost daily basis. The activities of this group emphasize the overlords and regimental tiers of operation, all governed by tight maneuvers and bold enough to successfully avoid governmental detection of which they were constantly apprehensive and aware. Nor have the important operational details of their cruel enterprise come to light even at this late date.

 Let's face it.So inhuman, ruthless and cold blooded was their approach to the execution of their nefarious schemes that we sat aghast at the unfolding of the enormity of their horrifying indifference to life's values.

 The holocaust of misery, the dreadful terminus of life for legions following the vast narcotic operations revealed herein too horrifying even to contemplate. [USA v. Magnano et al, sentencing minutes at p. 52]

 Criminal profile

 "Pretty much all law," wrote Justice Oliver Wendell Holmes, "consists in forbidding men to do some things they want to do." Crime is many-faceted and follows the form of the community. It is as normal and as abnormal as disease. But the public attitude and understanding of crime is about at the state that medicine was at the beginning of the 19th century. People still deny it in themselves, turn away from anyone accused or even suspected, are wilfully ignorant of its varieties or treatments, and prefer to believe it does not exist. And yet many daily toy with it in thought and operate along its border.

 Crime is beginning to be understood as an aspect of man's mental-emotional-moral nature. This nature, assailed by many forces both within and without his bodily frame, is susceptible to many infections. Some are capable of destroying their victim, and more important still, of infecting others.

 Every crime represents a point of fracture between the personality of the delinquent and the social equilibrium which he had created to meet his needs. Arrest demonstrates that the situation had become unsatisfactory, even intolerable, to society, or to the delinquent, or both. What has cracked up is the criminal's organization of social forces that provided what he wanted, at a price he was willing to pay. He now serves notice on us that payment of the "price" we exacted - the one we imposed vis-a-vis our sentence - is harsh and unbear-able and that he has been unjustly denied a "credit" he insists he earned by sacrificial "cooperation" with the authorities.

 A criminal court takes on the situation of a shattered career at a point where the wrong-doer has been forced to examine himself in the light of how his recipe for meeting life has succeeded. His predicament, brought on by arrest and subsequent court proceedings, produced severe shock. For one thing, he thrashes about with the nagging compulsion that his life solution has failed and he must inevitably repudiate it. At the point of its breaking down, he clings tenaciously to the notion that he cannot wholly renounce the way he has so lovingly built up; he resists facing the fact that it has failed. In all likelihood, the picture he had created of family as selfish and self-centered, his friends as sycophants and dead beats, and of ...


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