Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



February 29, 1996


The opinion of the court was delivered by: SCHEINDLIN


 Shira A. Scheindlin, U.S.D.J.

 Defendant Mario Chalarca ("Chalarca") was convicted after trial of a single count of conspiring to distribute or possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Chalarca pled not guilty prior to trial, and maintained his innocence at trial, testifying in his own defense. He continues to maintain his innocence at the sentencing stage. He has been in custody since his conviction on June 13, 1995.

 A number of issues have been raised relating to his sentencing. Defense counsel has submitted three letter briefs (October 3, November 20 and December 15, 1995); the Government has responded with two letter briefs (October 29 and November 20, 1995). Both the Government and Chalarca have offered evidence, and at the hearing on February 13, 1996, each counsel had the opportunity to argue on his client's behalf. Sentencing has been adjourned to March 4, 1996, pending resolution of the disputes raised. This opinion addresses those disputes.


 This brief factual summary is based on the presentence investigation report prepared by the Probation Department on September 15, 1995 and revised on October 4, 1995. On September 14, 1994, and on several occasions thereafter, an undercover agent ("UC") met with a woman known as Alba Ortiz. Ortiz advised the UC that she was planning to send 212 kilograms of cocaine, packaged in eleven suitcases, from Texas to New York. She further advised him that she would be "paid" 12 kilograms for her efforts. The UC arranged for the cocaine to be seized in Texas. The lab report reveals that the seized cocaine was 90% pure, indicating a very high quality of cocaine. In its place the UC transported the eleven suitcases to New York, now filled with a look-alike, non-controlled substance.

 On September 18, 1994, the undercover met with Ms. Ortiz, who stated that she had found a buyer for the 12 kilograms. She was then arrested, along with others who had arrived with her to meet the van. A diary/telephone directory was seized from her purse, as well as a pager. Several times on September 18 and 19, the pager registered Code "55". On September 20, 1994, a confidential informant ("CI") contacted the user of Code "55" (whose number appeared on the pager) and arranged a meeting. Code "55" turned out to be the defendant Pedro Sanchez. At the meeting, the CI informed Sanchez that he was in charge of "the woman's" merchandise and they discussed the upcoming sale. Sanchez told the CI that he was collecting money for the transaction and that he would let the CI know how much money he had. On September 21, 1994, Sanchez told the CI that he still did not have the money. The CI responded that if he did not have the money soon, the CI would sell the cocaine to someone else. On September 22, 1994, Sanchez indicated that he had raised $ 70,000.

 Sanchez and the CI agreed to meet later that day at a Wendy's parking lot in Queens in order to purchase the drugs. The CI, together with DEA surveillance teams, were the first to arrive at the parking lot. Shortly thereafter, Sanchez and the defendant Chalarca arrived in a Jeep driven by Chalarca. Sanchez left the vehicle to meet with the CI. The two of them then returned to the Jeep in response to the CI's request to see the money. Sanchez, sitting in the front passenger seat, asked Chalarca to hand him a black bag from the back seat. Chalarca handed him the bag, which was then unzipped, revealing what appeared to be $ 70,000 in cash. The CI counted by tens to 70,000. After the CI viewed the money, he gave the arrest signal and both defendants were arrested. All contacts between the CI and Sanchez were tape recorded. These recordings and the accompanying transcripts were a part of both the trial record and the record at this sentencing proceeding.

 Sanchez pled guilty on May 16, 1995. At his plea, Sanchez stated that Chalarca did not know anything about the drug deal and had nothing to do with it. More recently, at his "safety valve" interview and at a sentencing hearing, Sanchez again stated that Chalarca knew nothing about the drug deal and was not involved. *fn1" However, according to the testimony of Agent David McNamara, one of the arresting officers, Sanchez made a post-arrest statement that Chalarca had the contacts to sell the drugs. Sanchez denies making this statement and denies the accuracy of the statement.

 The Government seeks to hold both defendants liable for possession with intent to distribute the entire 12 kilograms of cocaine. If Chalarca is responsible for this amount, then he faces a mandatory minimum sentence of ten years imprisonment as required by 21 U.S.C. § 841(b)(1)(A) [more than 5 kilograms of cocaine]. If he is responsible for whatever amount of cocaine could have been purchased by the $ 70,000 found in the Jeep, then he faces a mandatory minimum sentence of five years imprisonment as required by 21 U.S.C. § 841(b)(1)(B) [more than 500 grams or 1/2 kilogram of cocaine].


 Chalarca has raised several issues relating to sentence. It is well known that sentencing accountability is based on different principles than criminal liability. For sentencing purposes with respect to a conspiracy conviction, "a district court must make a particularized finding as to whether the [alleged quantity] was foreseeable to the defendant." United States v. Studley, 47 F.3d 569, 574-75 (2d Cir. 1995); see also United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) ("we hold that the same 'reasonable foreseeability' standard of the Guidelines must be applied to sentencing for conspiracy under 21 U.S.C. § 846"). A defendant in a conspiracy case may only be sentenced for that quantity of drugs that a court finds by a preponderance of the evidence was reasonably foreseeable by that defendant. When a defendant claims that he is not responsible for the entire amount of narcotics attributable to the conspiracy, he bears the burden of establishing his lack of knowledge and lack of foreseeability. United States v. Hendrickson, 26 F.3d 321, 334 (2d Cir. 1994); United States v. Negron, 967 F.2d 68, 72 (2d Cir. 1992). *fn2" Chalarca contends that the 12 kilograms of cocaine that Sanchez was negotiating to purchase were not foreseeable to him. In fact, Chalarca contends that he could not foresee even the amount of cocaine that $ 70,000 could purchase.

 Chalarca next contends that if the Court finds that he could foresee a specific quantity of cocaine, that amount should be approximately 3.5 kilograms (warranting a five year mandatory sentence) as opposed to 12 kilograms (warranting a ten year mandatory sentence). Chalarca further argues that he should be given a four level reduction, pursuant to U.S.S.G. § 3B1.2(a). Finally, Chalarca seeks a downward departure based on less than minimal participation in the charged conduct, extraordinary family circumstances, and lack of any proprietary interest in the narcotics or money.

 The Government, in turn, seeks a two level increase pursuant to U.S.S.G. § 3C1.1, contending that Chalarca committed perjury in testifying at trial that he had no knowledge of this drug transaction. Application Note 1 to this section states that 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."

 A. Foreseeable Quantity

 The Sentencing Guidelines require that the base offense level shall be determined on the basis of "all acts . . . committed . . . by the defendant" and "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(A) and (B). Chalarca bears the burden of establishing his lack of knowledge and lack of foreseeability with respect to the quantity of drugs.

 A conspiracy, by definition, is not a substantive offense. Nor was any substantive offense charged against Chalarca. In short, no narcotics were bought, no narcotics were sold, and neither Chalarca nor Sanchez possessed any narcotics. Thus, the only offense at issue is conspiracy to possess and distribute cocaine. Thus, as stated by the Government in its letter briefs and at the sentencing hearing, I am concerned only with relevant conduct as defined by § 1B1.3(a)(1)(B). *fn3"

 In an effort to persuade this Court that the quantity of drugs to be purchased by Sanchez was not foreseeable to Chalarca, Chalarca relies principally on his own testimony. He has consistently sworn that Sanchez, his cousin, asked Chalarca to drive him on some errands. Chalarca testified that he often helped his cousin with small chores and errands. In addition, Sanchez swore at his own sentencing hearing that Chalarca did not know anything about the drug deal. Finally, Chalarca points to the absence of any contrary evidence. There are no tape recordings of any conversations between Chalarca and any CI, undercover agent, or for that matter Sanchez. No eyewitness ever saw or spoke with Chalarca until the five minutes prior to the arrest. The evidence at trial and the hearing reveals that Chalarca was not seen or heard until the hour preceding the arrest.

 The following facts gleaned from the Presentence Report provide some corroboration of Chalarca's testimony. Chalarca has been employed full time for the past eight years (ages 19 through 27) as a housekeeper at Howmedica (a medical center), earning approximately $ 15 per hour. Chalarca has no prior criminal record. The Presentence Report contains no hint of any prior involvement with the illegal drug business, nor has the Government offered any such evidence.

 In response, the Government presented evidence and arguments that it believes demonstrate that Chalarca could have reasonably foreseen that Sanchez intended to purchase 12 kilograms of cocaine. The Government first argues that on several occasions during his taped conversations with the CI, Sanchez told the CI that he would bring his cousin with him when he met the CI to buy the drugs. During one conversation he described his cousin with a description fitting Chalarca. He told the CI that his cousin would go with the CI to an apartment to pick up the drugs. The Government further argues that Chalarca was present with Sanchez on the day of the purchase, thereby corroborating the earlier taped statements. In addition, the Government notes that Chalarca was present when Sanchez showed the money to the CI. The Government also relies on Sanchez' previously described post-arrest statement. Finally, the Government believes that Chalarca has evidenced his guilty knowledge by fleeing at the time of his arrest and by lying during his trial testimony with respect to the time he arrived at Wendy's and the absence of spaces in the Wendy's parking lot.

 On balance, I find that Chalarca has demonstrated by a preponderance of the credible evidence that he had no actual knowledge of the quantity of narcotics involved in this conspiracy and that he could not have reasonably foreseen the quantity involved. *fn4" Assuming, as I must, that Chalarca conspired with his cousin to purchase a quantity of drugs, there is simply no credible evidence that he was aware of or participated in any discussions regarding the amount. There is no evidence that Chalarca discussed the quantity of drugs with Sanchez or the CI. *fn5" In addition, I specifically credit Chalarca's testimony at both the trial and the sentencing hearing that he did not know the terms of the transaction. See generally Trial Tr. at 345, 364-65; Hearing Tr. at 37. There is no evidence that he ever saw any drugs or had anything to do with raising the money to purchase the drugs. While he did see the money minutes before the arrest, this does not mean that he knew what drug or what quantity of drugs the money would be used to purchase. Similarly, fleeing at the time of arrest does not evidence any knowledge of the quantity of drugs to be purchased. Rather, it evidences a perfectly reasonable fear of the consequences based on his realization that what Sanchez was doing "wasn't good" (Trial Tr. at 345) although Chalarca was not sure exactly what it was. *fn4"

 I give no weight to Sanchez' alleged post-arrest statement. Sanchez testified that he was confused and stunned when he spoke to the agents following his arrest. He denies making the statement and states that if he said any such thing it was not true. Under the circumstances, I find Sanchez' testimony credible. He was arrested for the first time and was informed that he was facing a lengthy period of incarceration. He was being questioned in Spanish and English and answered in both languages. It is not at all unlikely that he was confused or that the agents misunderstood what he said. Since that time, however, with potentially devastating consequences to the length of his own sentences he has repeatedly sworn that Chalarca was not involved in the drug deal. These statements have the ring of truth. With so much to be gained by implicating Chalarca, namely a complete escape from a mandatory minimum sentence, Sanchez has no incentive to minimize Chalarca's involvement and every incentive to implicate Chalarca had he truly been involved in the drug deal.

 B. Offense Level

 The next question, then, is how to set the appropriate offense level. Because I conclude that Chalarca had no knowledge of any particular quantity of cocaine and that no particular quantity was foreseeable to him, the appropriate offense level is 12, pursuant to U.S.S.G. § 2D1.1(14). This level represents the least amount of cocaine that appears on the Drug Quantity Table.

 C. Remaining Sentencing Issues

 The defendant has requested that I consider an additional reduction based on defendant's role in the offense, pursuant to § 3B1.2(a). With respect to the concerted activity for which defendant is being sentenced, namely the single purchase contemplated for September 22, 1994, I decline to find that defendant played a mitigating role. I have already taken Defendant's role into account in determining his offense level. Based on Chalarca's lack of knowledge and inability to foresee the purchase of a specific quantity, Chalarca is not being held responsible for assisting Sanchez to purchase $ 70,000 worth of cocaine. Thus, I have already considered his role in the offense.

 The Government has requested that I consider increasing the offense level because of the defendant's alleged perjury. Evaluating his testimony in the light most favorable to the defendant, I do not find that Chalarca willfully obstructed the administration of justice during the prosecution of this action. During Chalarca's testimony he admitted his relationship with his cousin Sanchez and his [Chalarca's] presence during the events of September 22, 1994. The only material allegation he denied was his knowing participation in a conspiracy to possess and distribute narcotics. I cannot say that this testimony was perjurious. I do not consider Chalarca's testimony with respect to the time he arrived at Wendy's or where he parked to be material. Thus, I reject the Government's contention that there should be an upward adjustment of two levels for obstruction of justice.

 Therefore, at the time of sentencing, the applicable Guidelines range will be 10 to 16 months of incarceration. I have considered Chalarca's request for a downward departure based on less than minimal participation in the charged conduct, extraordinary family circumstances, and lack of any proprietary interest in the narcotics or money. However, I am satisfied that the above-stated Guidelines range is appropriate and that under these circumstances, there is no reason for a downward departure.

 Shira A. Scheindlin


 Dated: New York, New York

 February 29, 1996

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.