The opinion of the court was delivered by: SHIRLEY WOHL KRAM
SHIRLEY WOHL KRAM, U.S.D.J.
Following a Fatico hearing held on June 24, 25 and 28, 1993, the Court makes the following findings relevant to the sentencing of the defendant, Flora Marquez: (1) 32 is the appropriate Base Offense Level; (2) Marquez was neither a minor nor minimal participant in the conspiracy, and thus, is not entitled to a downward adjustment in her offense level; (3) Marquez is not entitled to a downward departure, pursuant to § 5K2.13 of the Sentencing Guidelines, on the grounds of diminished capacity; and (4) Marquez is not entitled to a three point reduction for acceptance of responsibility pursuant to § 3E1.1(b) of the Sentencing Guidelines. Based on the foregoing, the Total Offense Level is 30, the Criminal History Category is I, and the applicable guidelines range is 97-121 months.
On May 20, 1993, Marquez plead guilty, pursuant to a Plea Agreement dated May 18, 1992, and signed on May 20, 1992, to Count One of a superseding information ( S7 91 Cr. 451) charging her with conspiracy to distribute and possess with intent to distribute more than one hundred grams of heroin, in violation of 21 U.S.C § 846. According to the Plea Agreement, this charge carries a maximum sentence of forty years imprisonment, a mandatory minimum sentence of five years imprisonment, a maximum fine of $ 2,000,000, a maximum supervised release term of life and a mandatory minimum supervised release term of four years following any term of imprisonment, and a $ 50 special assessment. Plea Agreement at 1.
At the time of the plea, however, it was anticipated that there would be a Fatico hearing prior to sentencing to resolve disputes regarding the amount of narcotics involved in the conspiracy and any "related conduct" by Marquez. Specifically, the Plea Agreement stated that:
Flora Marquez disputes the Government's view of the amount of heroin involved in the charged conspiracy and the Government's view of the defendant's "related conduct." At a Fatico hearing, the Government will seek to prove that Flora Marquez conspired to distribute or possess with intent to distribute not more than 500 grams of heroin [a 32 base offense level], and that Flora Marquez's cocaine dealing with [co-conspirator Francisco Cruz] - which, in the Government's view is related conduct under the Guidelines - did not exceed eight kilograms.
In addition, during her allocution, Marques acknowledged only that (1) she received a sample of heroin from Francisco Cruz ("Cruz"); (2) she took the sample from Cruz because she wanted to help him sell it; (3) she talked with Cruz about the delivery of a sample of heroin to her apartment; (4) the sample of heroin was no good; (5) she threw out the heroin sample; (6) she told Cruz that the police were following one of his employees. See Transcript of Marquez Plea ("Plea Tr.") at 18-20.
Further, it was made clear on the record that both parties agreed that: (1) Marquez would simply plead to being part of the conspiracy; (2) Marquez disputed the government's contention as to the amount of narcotics involved; (3) the amount involved would be resolved at a Fatico hearing; and (4) by operation of law if the Government failed to prove the statutory requirement of a hundred grams or more of heroin at the Fatico hearing, Marques would be subject to a lesser offense which contains no statutory minimum incarceration period. See Plea Tr. at 7-9.
Subsequent to the plea, the Court received numerous submissions from the Government and Marquez in anticipation of the Fatico hearing. From those submissions it became clear that the issues to be resolved at the Fatico hearing were as follows: (1) the appropriate Base Offense Level; (2) Marquez's role in the offense; and (3) whether Marquez had "diminished capacity" at the time of the offense. Although not necessitating a hearing, there was also the issue of whether Marquez was entitled to a three point reduction, pursuant to the amendment: to § 3E1.1(b) of the Sentencing Guidelines, for acceptance of responsibility.
The Fatico hearing was held by the Court on June 24, 25 and 28, 1993. The Government presented one witness in its case in chief, namely, Cruz, a co-conspirator of Marquez. In general, he testified about Marquez's involvement with both heroin and cocaine dealing. He also explained the significance of approximately 55 wiretapped conversations involving himself, Marquez and his "workers." The defense case consisted of the testimony of (1) Marquez, who generally explained her involvement in the conspiracy, as well as her understanding of the wiretapped conversations; and (2) Dr. Richard Goldstein, who testified as to Marquez's mental state at the time of the offense. In rebuttal, the Government called Dr. Robert Berger to testify about his findings regarding Marques's mental state.
In addition, two stipulations were read into the record and admitted in evidence. One pertained to the authenticity and accuracy of the wiretapped conversations and transcripts of the conversations. See Government Exhibit 101. The other pertained to a search of Marques's apartment located at 175 West 81st Street. Specifically, the parties stipulated that during the course of the search, $ 69,000 in United States currency was recovered from the hallway of Marquez's apartment. See Government Exhibit 102.
Finally, the following was admitted in evidence at the hearing: (1) the reports of Dr. Robert Goldstein, Dr. Robert Berger and Dr. Sanford Drob; (2) Tapes of the wiretapped conversation; (3) transcripts of the wiretapped conversations; (4) the $ 69,000 recovered from Marques's apartment; (5) the plastic bags used to hold the money.
Before addressing the specific issues requiring resolution, the Court makes these general findings with respect to the Fatico hearing: (1) Cruz's testimony was highly credible, especially as corroborated by the wiretapped conversations; (2) Cruz's testimony and the wiretapped conversations paint a clear picture of Marquez's extensive involvement in the conspiracy; (3) Marquez's testimony was wholly incredible and inconsistent with the wiretapped conversations; (4) Marquez's assertions that (a) she did not say particular code words on the wiretapped conversations; (b) certain portions of the wiretapped conversations attributed to her in the transcript were not her voice; and (c) certain wiretapped conversations were edited, fixed, or doctored, were incredible.
1. Probation's Determination
The Presentence report recommended a Base offense Level of 32. According to the Probation Department:
Marquez's involvement in this conspiracy dates back to at least early 1990 until her arrest in May 1991. According to individuals involved in narcotics transactions with the defendant, from the period of about March or April 1990, to February 1991, they conspired to distribute more than 700 grams of heroin and approximately 5 to 7 kilograms of cocaine during that time. Marquez's heroin and cocaine dealing is corroborated by extensive evidence contained in the wiretapped phone calls which show her regularly dealing in amounts of heroin ranging from gram size samples to packages of more than 125 grams as well as with kilos of cocaine. For example, on September 5, 1990, Francisco Cruz had a conversation with the defendant in which he states that he has "one that holds two . . . at $ 27,000 pesos." 125 grams of heroin at that time cost approximately $ 27,000. One that holds two refers to the strength of the heroin. Marquez's narcotics activity is further corroborated by surveillance by law enforcement officials who observed Cruz and one of his coworkers at her apartment. Moreover, the seizure of $ 69,440 in small bills stuffed in plastic shopping bags is further corroboration of extensive narcotics dealings. With regard to the actual computation, per the pre-November 1, 1991 guidelines, the cocaine will be converted into heroin for the purpose of establishing a single offense level. If we were to apply the conservative estimate of five kilograms of cocaine, its heroin equivalent is 1000 grams or one kilogram as one gram of cocaine is equivalent to .2 grams of heroin. If the higher quantity of seven kilograms of cocaine is applied, then the heroin equivalent is 1400 grams or 1.4 kilograms. One thousand grams of heroin, coupled with 700 grams, equals 1700 grams of heroin or 1.7 kilograms. Fourteen hundred grams, added to seven hundred grams amounts to twenty one hundred grams or 2.1 kilograms of heroin. Thus, the higher quantity, which does not affect the base offense level, will be considered for according to page 2.43 in the Guidelines (Drug Quantity Table), at least one kilogram of heroin, but less than three kilograms of heroin, establishes a base offense level of thirty two.
Presentence Report at P 137. This offense level is disputed by Marquez.
Sentencing Guideline § 1B1.3(a)(2) provides that in determining the appropriate base offense level for offenses as to which Guidelines § 3D1.2(d) would require grouping - - such as drug offenses - - a court should consider all relevant conduct; that is, a court should consider "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." In addition, in determining the base offense level, a court should consider all "acts and omissions committed, aided, abetted, [or] counseled . . . by the defendant." Guidelines § 1B1.3(a)(1)(A); United States v. Beaulieau, 959 F.2d 375, 379 (2d Cir. 1992). Thus, the base offense level for drug offenses "is to be calculated after taking into account the entire quantity involved in the defendant's demonstrated narcotics activity rather than a smaller amount for which the defendant has been charged and convicted." United States v. Rivera, 971 F.2d at 892 (quoting United States v. Schaper, 903 F.2d 891, 898 (2d Cir. 1990)).
The Courts have repeatedly held that differences in participants, types of narcotics, and time lapses in transactions from the offense of conviction are not determinative of whether conduct is relevant. A court may include in its calculations as relevant conduct "'quantities of narcotics that were neither seized nor charged' in the indictment," United States v. Cousineau, 929 F.2d 64, 67 (2d Cir. 1991) (quoting United States v. Santiago, 906 F.2d 867, 871 (2d Cir. 1990)); acts separated by time, United States v. Cousineau, 929 F.2d at 68 (relevant uncharged conduct predated conduct charged in conspiracy by two years); narcotics transactions in which the defendant's role was different in each transaction and the parties to the transactions were different, United States v. Perdomo, 927 F.2d 111, 114-115 (2d Cir. 1991) (conduct is relevant although defendant is a supplier of a large quantity of cocaine in one transaction and a courier of a smaller quantity in another); United States v. Beaulieau, 959 F.2d at 378-79 (drug sales to different parties); and different types of narcotics, United States v. Burnett, 968 F.2d 278, 280-81 (2d Cir. 1992) (defendant plead guilty to possession with intent to distribute marijuana; sale of four kilograms of cocaine to person other than one from whom he purchased marijuana determined to be relevant conduct); Guidelines § 1B1.3 Commentary (Background) ("quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or common scheme or plan as the count of conviction").
Quantities of unseized narcotics that were part of the "same course of conduct" or "common scheme or plan" as the offense of conviction shall be approximated by the sentencing judge for purposes of offense level calculations. United States v. Schaper, 903 F.2d 891, 898 (2d Cir. 1990); United States v. Colon, 905 F.2d 580, 587 (2d Cir. 1990). In making these estimates, a court may rely on testimony as to conversations between the defendant and one with whom she engaged in narcotics deals. See United States v. Perrone, 936 F.2d 1403, 1419 (2d Cir. 1991); United States v. Vargas, 920 F.2d 167, 169 (2d Cir. 1990) (sole witness at Fatico hearing was cooperating co-defendant; court explicitly credited relevant portions of co-defendant's testimony, and evidence at hearing included transcript of relevant: tape recording and third defendant's trial), cert. denied, 112 S. Ct. 93 (1991); see also United States v. Villarreal, 977 F.2d 1077 (7th Cir. 1992) (in determining drug quantity, court properly relied on accomplice testimony, cash found on defendant, phone records, drug records, and drugs seized), cert. denied, 122 L. Ed. 2d 731, 113 S. Ct. 1350 (1993).
Based on the three day hearing, the Court agrees with the Presentence Report's recommendation of a 32 Base Offense Level. Cruz's testimony, as well as the wiretapped conversations, indicate that Marquez engaged in narcotics dealing with Cruz from the summer or fall of 1989 until February of 1991. They also indicate that Marquez bought heroin from Cruz to sell to her various customers. In addition, Marquez ...