MEMORANDUM OPINION AND ORDER
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.
Plea Agreement at 2.
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.
II. The Fatico Hearing
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.
III. Disputed Issues
A. Base Offense Level1
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.
2. Applicable Law
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 dealt in cocaine, had her own cocaine source and sold cocaine to Cruz and customers that Cruz brought her.
Specifically, as to conduct prior to the charged conspiracy, Cruz credibly testified that he met Marquez in or about September 1989 and that she was his first heroin customer. Transcript of Fatico hearing ("Tr.") at 11-14. At their first meeting, Cruz delivered a one gram sample of heroin to Marquez in exchange for $ 100. Tr. at 13-14. The next day, Marquez called Cruz requesting that he get her 28 grams of heroin. Tr. at 14. The two met at a restaurant at Academy and Broadway where Cruz gave her the 28 grams in exchange for approximately $ 5800. Tr. at 15.
Cruz went on to testify that about five or six days later, Marquez called him again and told him that "she wanted to go to 125th." Cruz credibly explained that Marquez was referring to 125 grams of heroin. Tr. at 16. Cruz obtained the 125 grams of heroin and gave them to Marquez at her apartment on 81st Street and Amsterdam Avenue. Marquez gave Cruz $ 26,000 in return. Tr. at 17-18.
Cruz also credibly testified that in September or October of 1989, he brought Marquez and a friend of hers a heroin sample in exchange for $ 100. Tr. at 21. Subsequent to that delivery, Marquez called Cruz and told him she needed 250 grams. Tr. at 22. Cruz got the 250 grams from his source and gave it to Marquez at her apartment. Tr. at 22-23. About one and one half hours later, Flora and her friend brought Cruz $ 352,000 for the heroin. Tr. at 24.
With respect to his overall relationship with Marquez, Cruz testified that he continued to sell heroin to Marques until February of 1991. During that time, Cruz would see Marquez "once, twice, three times a week . . . ." Tr. at 25-26. When asked what kind of weight of heroin he sold to Marquez during this time, Cruz responded "14, 7, 3, 28, 125 [grams], whatever she asked me for." Tr. at 26. Either Cruz or one of his workers would deliver these packages of heroin to Marquez at her apartment. Tr. at 26.
Aside from heroin, Cruz also credibly testified that in the early days of their relationship, Marquez sold him three kilograms of cocaine for $ 19,000 each. Specifically, Cruz testified that about two weeks after he met Marquez, he asked her to get him two kilograms of cocaine. Tr. at 18. Marquez got the cocaine and sold it to Cruz for $ 19,000 a kilogram. Tr. at 18. Shortly thereafter, Marquez gave Cruz another kilogram to sell in exchange for $ 19,000. Tr. at 19. Subsequent to these transactions, Cruz took a friend who wanted to buy cocaine to meet Marquez. Tr. at 19. The two went to Marquez's apartment, where Cruz introduced his friend to Marquez and told her that they had $ 70,000 for ten kilograms of cocaine. Tr. at 20. Marquez, however, was only able to provide them with 6 kilograms of cocaine. Tr. at 21.
In addition to Cruz's testimony, the Government relied upon wiretapped conversations to prove that Marquez's drug dealing properly resulted in a 32 Base Offense Level. These conversations took place from August 1990 to February 1991, during the time of the charged conspiracy, and were primarily between Cruz and Marquez, and Marquez and Cruz's workers. As credibly explained and interpreted by Cruz, see Tr. at 38-77, the wiretapped conversations indicate that Marquez was fully involved in the drug trade, and that she had full knowledge of the drug activity going on.
Specifically, the tapes and transcripts established the following: (1) using a variety of code words, such as "photo," "rolls," "decks of cards," "women," "pearl," "fabric," "car," "kids," Marquez asked Cruz on numerous occasions to bring samples of heroin to her apartment so that she could give them to her customers, see Government Exhibits 001, 002, 005, 007, 009, 010, 020, 025, 029, 034, 052, 054 (transcripts of wiretapped conversations); (2) using the same code words, Marquez frequently discussed (a) heroin to be provided by Cruz; (b) heroin already provided by Cruz; and (c) the quality of such heroin, see Government Exhibits 003, 004, 007, 009, 010, 016, 017, 019, 021, 022, 024, 025, 029, 030, 032, 033, 034, 035, 036, 037, 043, 044, 045, 046, 047, 051, 052, 054, 055; (3) Marquez often discussed specific amounts of heroin that she received from Cruz and was to sell to her own customers, see Government Exhibits 007 (4 grams), 021 (125 grams), 024 (125 grams), 035 (10 grams), 037 (14 grams), 043 (14 and 28 grams), 055 (3 1/2 grams); see also Tr. at 183 (Marquez testimony); (4) Marquez often spoke with and about the workers in Cruz's heroin organization, see Government Exhibits 001, 007, 008, 013, 015, 020, 024, 036, 046, 047, 048; (5) Marquez discussed money owed to her as a result of her heroin dealing, see Government Exhibits 029, 037; (6) on more than one occasion, Marques warned Cruz and his workers of the dangers of the drug trade and told them that they were being followed after they dropped heroin off at her apartment, see Government Exhibits 012, 013, 014, 048, 049, 050; (7) Marquez was also involved with dealing cocaine; there was discussion between Marquez and Cruz about (a) samples of cocaine (referred to as "champagne"); (b) cocaine that Cruz had obtained; (c) the cost of cocaine; and (d) a kilogram of cocaine that Marquez sold to someone other than Cruz, see Government Exhibits 022, 031, 042.
Based on the foregoing, as well as the stipulation entered into between the parties that establishes that $ 69,000 was recovered from Marquez's apartment, the Court finds that Marquez was deeply involved in both heroin and cocaine dealing. Further she was fully aware of the amount of drugs being dealt and the scope of the larger conspiracy. As to the specific amounts involved, the Court finds that Marquez distributed or conspired to distribute a total of 629.50 grams of heroin (405 during the time period prior to the charged conspiracy and 224.50 during the period of time covered by the charged conspiracy) and a total of 10 kilograms of cocaine (9 kilograms during the time prior to the charged conspiracy and 1 kilogram during the time of the charged conspiracy).
With regard to the actual computation, the cocaine is converted into heroin for purposes of establishing a single offense level. The heroin equivalent of 10 kilograms of cocaine is 2000 grams. See Presentence Report at P 137. 2000 grams of heroin, added to 629.50 grams of heroin yields a total of 2629.50 grams of heroin. As a Base Offense Level of 32 encompasses at least one kilogram of heroin, but less than three kilograms of heroin, see Guidelines § 2D1.1(c) (Drug Quantity Table), the total amount falls well within a Base Offense Level of 32. However, because the Plea Agreement specifically anticipated distribution of no more than 500 grams of heroin and 8 kilograms of cocaine, the Court finds, for sentencing purposes, that Marquez distributed 500 grams of heroin and 8 kilograms of cocaine, resulting in a 32 base offense level.
B. Role in the Offense
1. Probation's Determination
In the initial Presentence Report, there were no adjustments made for Marquez's role in the offense. See Presentence Report at P 139. After receiving Marquez's objections to that determination, the Probation Department explained the rationale for its position. According to the Probation Department,
The defendant was not simply a customer of Francisco Cruz, one of the "links" in [a complex] chain. Wiretapped telephone conversations show that from about August 1990 to about February 1991, the defendant negotiated with Cruz for heroin, arranged for delivery of numerous samples of heroin, discussed completed deals, and complained about the quality of some of Cruz's deliveries. The defendant regularly purchased amounts of heroin from Cruz for resale to her own customers. In addition, the telephone calls also show the defendant and Cruz conducting cocaine transactions, as well as heroin transactions. This conduct is hardly indicative of minor or minimal participation. . . . Even when taken solely in the context of her involvement with Cruz, the defendant's conduct does not warrant a downward departure.