by proof beyond a reasonable doubt. Second, judges in the district courts in the Second Circuit have had extensive experience with the nuances of the drug trade. They would probably apply a working assumption that the amount actually possessed was what the defendant intended or knew was possessed. Effectively, and in practice, at a Fatico hearing it will be the defendant's responsibility to come forward with credible evidence on the point before the trial judge, hardened by knowledge of people and drugs, will be persuaded that intent or knowledge is different from the physical reality.
3. Manipulation of Amount by Government
Finally, while not critical to the instant case, we find somewhat disquieting the DEA's effective control of the sentence because it can determine the amount of heroin turned over to defendant by a confidential informant. Here it was 1.013 kilograms leading, in the government's view, to a minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(A)(i). Had the amount arranged to be carried by the informant been .999 kilograms the sentence would have been a minimum of five years. 21 U.S.C. § 841(b)(1)(B)(i). Had it been .099 kilograms there would be no minimum term. And, had the amount been 3.013 kilograms the Guidelines would have led in the instant case to a range of between five years, ten months and seven years, three months. Guidelines § 2D1.1(c)(5).
The purity can also be manipulated so that a few grams of heroin in three kilograms of quinine, a common cutting agent, might lead to a huge term. See Chapman v. United States, 114 L. Ed. 2d 524, 111 S. Ct. 1919, 1922 (1991) (weight of LSD includes weight of carrier medium); Guidelines § 2D1.1 n.* ("Unless otherwise specified, the weight of a controlled substance set forth in the [quantity] table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance."). Given this degree of quantity and quality control and the general shift of power from court to prosecutors under guidelines and minimum sentencing, there would be too many dangers of abuse were mens rea eliminated from sentencing considerations.
It should also be noted that a large percentage of the prosecutions in this court involve undercover sales or purchases (referred to with mordant humor as "reverse buys") of narcotics by government agents. In these cases the government largely controls the scope of the deal. By taking advantage of puffery it can inflate a dealer in grams into one in multiple kilos, thus enormously increasing potential prison time. Such factors need not be ignored by a judge in sentencing.
III. APPLICATION OF LAW TO FACT
Defendant did not know that the attache case contained over a kilogram of heroin. Based upon her credible testimony concerning her past experience with her boyfriend's drug operations, she could not have foreseen that the transaction would involve such a large amount.
For purposes of punishment, a statutory distinction properly is drawn between those who are involved in routine "mule" and "swallower" cases involving less than 500 grams and those who import over a kilogram. To maintain the significance of this distinction, the sentencing court must not make the error of imputing large quantities to a defendant on the unrebuttable assumption that because that defendant had been involved with drug transactions in the past the defendant should have foreseen that future transactions might involve larger amounts.
A reasonable person in the position of this defendant, with the knowledge and experience she had as an obedient underling in her boyfriend's operation, would not necessarily have foreseen that the individual at the airport would be carrying over a kilogram of heroin. She had observed a prior transaction involving in the neighborhood of 400 grams and she testified that she believed the amount involved was to be 400 grams. She was entirely credible and candid in her testimony on this and other matters at the Fatico hearing. The court fully credits her testimony. It finds that she believed that she was to assist in smuggling only 400 grams.
Under the proper approach to foreseeability, defendant is not liable for the full amount of the drugs she assisted in importing. Assuming she intended only to possess 400 grams of heroin, the Guidelines offense level would be 28, instead of the 32 applicable for at least one kilogram. Compare Guidelines § 2D1.1(c)(8) with § 2D1.1.(c)(6). The offense level must be reduced by four since defendant was a minimal participant acting under the domination of her boyfriend. Guidelines § 3B1.2(a); see also United States v. Gaviria, 804 F. Supp. 476 (E.D.N.Y. 1992) (subservience may provide basis for downward departure). She must also be given a three-point reduction for full acceptance of responsibility and timely providing information concerning her own involvement. Guidelines § 3E1.1(b). This reduces the Guidelines sentence range to 37 to 46 months. The court would, absent the statutory minimum, have imposed a 37-month sentence in view of defendant's responsible care for her children and good work habits.
With respect to defendant's contention about her cooperation letter, the testimony at the Fatico hearing established, by a preponderance of the evidence, that the government did not withhold the letter in bad faith. Given defendant's repeated failure to produce transactions when promised and the government's subsequent discovery that she had departed from the jurisdiction in violation of her cooperation agreement and had concealed and retained substantial cash, the government had a reasonable basis for refusing to recommend a downward departure.
Pursuant to 21 U.S.C. § 841(b)(1)(B)(i), defendant is sentenced to sixty months in prison to be followed by five years supervised release and a $ 50 assessment. She is fined $ 50,000, the total amount of her cash bail. The government has taken steps to obtain forfeiture of her house, her remaining cash and her car. She probably will lose custody of her children. See United States v. Pokuaa, 782 F. Supp. 747, 748 (E.D.N.Y. 1992) (separation from child for two years likely to result in permanent loss of custody under New York law). The punishment seems sufficient to satisfy even the most punitive. Denying defendant the protection of the fundamental mens rea requirement in order to add another five years of prison is unwarranted and unnecessary.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
January 14, 1993
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