found in supermarkets -- 4.2%. USDA Rep. at 4. Thus, because proof at trial established that $ 11,700,000 went through Caba's account, the approximate loss to the Government based on the 4.2% figure is $ 491,400.
(3) The sentencing Calculation under Guideline § 2F1.1
With this background, the court concludes that Caba should be sentenced under § 2F1.1 which provides a base offense level of 6 and an additional 9 levels for a loss greater than $ 350,000. In addition, the total offense level increases by 2 because Caba engaged in more than minimal planning -- he ran this "business" for two and one-half years.
The Government attempts to enhance the sentence claiming that Caba had an aggravating role in the offense, arguing that Joselin Mejia, Cruz Tavarez, Caba's store employees, Maritza Caba, and the owner of Bushwick Beer all acted under Caba. Section 3B1.1(a) of the Sentencing Guidelines states: "If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels." Similarly, § 3B1.1(b) provides: "If the defendant was a manager or supervisor . . . and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels." The commentary notes that a leadership role is distinguished from mere management or supervision based on the decision making authority of the defendant; the nature of participation in the commission of the offense; the recruitment of accomplices; the degree of control exercised over others, among other things.
In the court's view, Caba was neither a leader nor an organizer. He did not require others to work for him; the decisions he made in the scheme did not affect the others' actions except for the employees of his grocery; and, it seems that almost all of the others -- the truck drivers, in particular -- involved in the scheme would have found a different discounter to redeem their improperly acquired food stamps. Mejia, because of financial problems, would gladly have contracted out the use of his authorized food stamp bank account without Caba's intervention. It does not appear that Caba exercised any compelling force or discretion over any of the major players involved. As Caba himself maintains, he certainly had no supervisory role over the truck drivers or wholesalers.
In addition, although the Government argues that Caba was managing his store employees who aided him in his criminal activity, the fact is that they played a minor role in the totality of the scheme. Their duties, insofar as they assisted Caba, were ones that Caba could have easily accomplished without them. For the similar reason, this court does not think it appropriate to consider him a manager either. Moreover, the two point enhancement for engaging in more than minimal planning, which he has already received, is in the court's view more reflective of how his activities should be viewed. The court, therefore, sees no reason to apply § 3B1.1.
The Government has also requested an upward adjustment for obstruction of justice which the court believes is not warranted. The Government maintains that at trial Caba testified that he did not know his actions were illegal when conducting the financial transactions and since the jury found him guilty, Caba had to have the requisite knowledge of illegality. Even if true, this does not constitute obstruction of justice within the meaning of U.S.S.G. § 3C1.1. In fact, the Second Circuit has held that "Section 3C1.1 contains a clear mens rea requirement that limits its scope to those who 'willfully' obstruct or attempt to obstruct the administration of justice . . . We are convinced that the word 'willfully,' as used in section 3C1.1, requires that the defendant consciously act with the purpose of obstructing justice." United States v. Stroud, 893 F.2d 504 (2d Cir. 1990). Similarly, the commentary to this section of the Sentencing Guidelines provides: "This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt . . . is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant." U.S.S.G. § 3C1.1 Application Note 1; see also United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989). Thus, in viewing the testimony in the light most favorable to Caba, the court notes that the thrust of his testimony was that he was not seeking to conceal his activities and that he did not intend to facilitate a fraud on or cause a loss to the Government. Although, in the court's view, Caba was deliberately closing his eyes to what might be occurring, still it is not inconceivable that he viewed his activities as violating some technical regulations of the Government without intending or causing any real loss to the Government. Accordingly, the mens rea requirement of this guideline has not been conclusively established here so as to compel a finding of obstruction under the guideline.
At the same time, the court rejects Caba's contention that because he did not believe he had done any harm by his activities that there should be a downward adjustment for acceptance of responsibility. Hrg. Tr., dated 11/16/95, at 45. Merely testifying in one's own interest and filing personal and business tax returns does not lead to such a downward adjustment. The court believes that Caba was well aware that he was violating USDA's rules and, whatever flaws these rules might have, they are meant, however ineptly, to prevent diversion of Government funds from the program's intended purposes. While Caba may have viewed himself as providing a necessary discounting service, he also knew that he was not authorized to proceed in his operations, as he did, and, by doing so, he was facilitating the diversion of government funds even if that was not his intent. His persistent refusal to acknowledge this makes any downward adjustment for acceptance of responsibility inappropriate.
Lastly, although Caba requests a downward departure for extraordinary family circumstances, the court does not find anything in Caba's circumstances that sets him apart from other defendants who have been their family's sole bread winner or whose children will have difficulty in dealing with their father's incarceration to merit a downward departure.
In light of the above, the proper sentencing level for Caba would be 17, 6 as the base offense for unlawful acquisition of food stamps, plus 9 for the amount of loss of over $ 350,000, plus 2 as the offense involved more than minimal planning.
However, because the evidence is compelling that Caba was also engaging in tax evasion, the court will downwardly depart only to level 19.
Because the court finds that Caba's activities are not within the heartland of the money laundering guideline, § 2S1.1, it will apply, via a downward departure, U.S.S.G. § 2F1.1, the food stamp guideline. The difficulty, however, that the courts have found in using the food stamp guideline is in calculating the loss, which only can be the amount of food stamps that had been traded for cash or exchanged for illegitimate purchases, and not the amount the defendant received for discounting prior to redeeming them. By employing the report issued by the Department of Agriculture on this question and giving Caba the greatest benefit of the doubt, this court can fairly calculate the loss to be approximately $ 490,000. Accordingly, for the reasons explained, the court finds the appropriate sentencing level to be 19, with a range of 30 to 37 months.
Dated: Brooklyn, New York
January 11, 1996
David G. Trager
United States District Judge