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UNITED STATES v. SANCHEZ

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


March 13, 1996

UNITED STATES OF AMERICA
v.
PEDRO SANCHEZ and MARIO CHALARCA, Defendants.

The opinion of the court was delivered by: SCHEINDLIN

AMENDED OPINION

 Shira A. Scheindlin, U.S.D.J.

 After months of urging that U.S.S.G. § 1B1.3(a) (1) (B) is the proper section to be applied in evaluating the relevant conduct of defendant Mario Chalarca for sentencing purposes, *fn1" the Government now argues, upon a motion to reconsider this Court's Opinion of February 29, 1996 ("Opinion" or "February 29 Opinion"), that the proper section is U.S.S.G. § 1B1.3(a) (1) (A). Based on this new argument, and on a firm disagreement with the Court's findings with respect to § 1B1.3(a) (1) (B), should it apply, the Government seeks reconsideration of the Court's February 29 Opinion. Because the issues raised are important to the Government, the Defendant and the Court, reconsideration is warranted.

 The necessary factual background is fully set forth in the Court's February 29 Opinion. Familiarity with that Opinion is assumed. Chalarca was to be sentenced on March 4, following the release of the Opinion. At the sentence, the Government urged the Court to reconsider. The Court permitted the Government to submit a Memorandum of Law in support of its request for reconsideration. The Government filed a thirty-one page memorandum on March 6, 1996. Defendant responded on March 12, 1996. No additional hearing is required.

 I. Relevant Conduct

 U.S.S.G. § 1B1.3(a) defines relevant conduct. Under this section, a defendant's offense conduct "shall be determined" on the basis of

 

(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

 

(B) in the case of a jointly undertaken criminal activity . . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,

 

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

 The question now confronting the Court is whether to apply § (a) (1) (A) or § (a) (1) (B) in determining the proper offense conduct for defendant Chalarca.

 In my earlier Opinion, I applied § (a) (1) (B), in large part because the Government urged me to do so. In applying this Section, I found that defendant Chalarca had proved by a preponderance of the evidence that he did not know nor could he reasonably have foreseen the quantity of drugs involved in the conspiracy. Despite the fact that no party argued the applicability of § (a) (1) (A), I also addressed this Section in a lengthy footnote, holding that it should not be applied in determining Chalarca's relevant conduct. The earlier Opinion was drafted without the benefit of the Government's briefing of the issue.

 The Government now cites United States v. Cardenas, 917 F.2d 683 (2d Cir. 1990), a case it deems to be controlling on the question to be decided. The Government also relies on a number of recent cases outside this Circuit that have squarely addressed this issue. See United States v. McCullah, No. 93-7118, 1996 U.S. App. LEXIS 1524, 1996 WL 44147 (10th Cir. 1996); United States v. Lockhart, 37 F.3d 1451 (10th Cir. 1994); United States v. Corral-Ibarra, 25 F.3d 430 (7th Cir. 1994). *fn2" However, the Government is unable to cite any case in this Circuit which has explicitly addressed the question now before this Court.

 A. Second Circuit Case Law

 Cardenas certainly does not decide the question posed. In Cardenas, defendant pled guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Defendant, however, contested the quantity of drugs for which he should be sentenced. Relying on Application Note 1 to § 2D1.4, Defendant argued that he should not be responsible for the full quantity of drugs which was the object of the conspiracy. On appeal, the court held that this section dealt only with criminal liability, not sentencing accountability. However, without ever addressing the relevant conduct definitions contained in either §§ 1B1.3(a) (1) (A) or 1B1.3(a) (1) (B), the court held that

 

it is not required to find that appellant had knowledge of the exact quantity of narcotics involved in the conspiracy so long as--in considering defendant's role in the narcotics part of the charged conspiracy --the district court determines that it is convinced by a preponderance of the evidence that defendant knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy.

 Cardenas, 917 F.2d at 687 (emphasis added). The court went on to note that the Government had met "its burden of showing the defendant knew that this conspiracy involved 60 kilograms or could have reasonably foreseen such amount." Id. Thus, despite the fact that defendant was an active participant in the transaction, and was sentenced, in the court's words, "upon his own conduct, not upon the conduct of others, " the court nonetheless applied a foreseeability analysis. Id. at 686 (emphasis in original). The Cardenas holding has been repeatedly followed in this Circuit, which requires a court to consider the entire quantity of narcotics in the charged conspiracy and to make a finding by a preponderance of the evidence that defendant knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy. See, e.g., United States v. Hendrickson, 26 F.3d 321, 334 (2d Cir. 1994); United States v. Lanni, 970 F.2d 1092, 1093 (2d Cir. 1992); United States v. Negron, 967 F.2d 68, 72 (2d Cir. 1992). Courts in this Circuit also require a defendant to demonstrate by a preponderance of the evidence that he is not responsible for the entire quantity of drugs involved in the conspiracy. Finally, in United States v. Martinez, 987 F.2d 920 (2d Cir. 1993), the Court of Appeals held that the "reasonable foreseeability standard of the Guidelines must be applied in determining the applicability of the mandatory minimum sentences under 21 U.S.C. § 841(b).

 B. Case Law from Other Circuits

 Other Circuits have, however, addressed the question now before the Court. There is no doubt that in the Seventh, Tenth and Eleventh Circuits, the courts have rejected a foreseeability analysis when a defendant is sentenced for his own acts--i.e. acts committed by him. United States v. Corral-Ibarra, 25 F.3d 430 (7th Cir. 1994), is perhaps the most instructive. In that case, defendant Herrera was involved in a conspiracy to purchase 50 kilograms of cocaine. In considering whether to apply § (a) (1) (A) or § (a) (1) (B), the court concluded that § (a) (1) (A) was appropriate because of the acts committed by Herrera. In analyzing the illustrations contained in the Application Note to § 1B1.3(a) (1), the court found that the critical distinction was between direct and remote involvement in the illegal activity, and that only the latter will trigger a reasonable foreseeability analysis. *fn3" The court found that Herrera boarded a houseboat to test a "sample" of the cocaine and then verified its adequacy over the telephone to a co-conspirator. Thus, Herrera played a "direct, personal role in furtherance of the attempt to obtain and distribute a large quantity of cocaine." Corral-Ibarra, 25 F.3d at 438. Nonetheless, the court was somewhat troubled by the resulting sentence, given that Herrera had no criminal history and that his co-conspirators deliberately kept him in the dark about the amount of cocaine involved in the deal. The court noted that "the severity of the resulting sentence . . . gives us pause in the circumstances of this case." Id.

 United States v. Pessefall, 27 F.3d 511 (11th Cir. 1994), cert. denied, 115 S. Ct. 1154 (1995), is similar. There, the defendants appealing their sentences had pled guilty to personally carrying numerous duffel bags of cocaine in unloading a ship-factually indistinguishable from "Defendant A" in Illustration (a) to Application Note 1 of § 1B1.3(a) (1). Based on their personal participation, the court held each was responsible for the entire quantity of drugs (both real and fake) that were off-loaded. See also United States v. McCullah, No. 93-7118, 1996 U.S. App. LEXIS 1524, 1996 WL 44147 (10th Cir. 1996) (defendant personally participated in kidnapping and murder for the purpose of recovering a quantity of drugs).

 In United States v. Lockhart, 37 F.3d 1451 (10th Cir. 1994), the Tenth Circuit decided a case somewhat similar to the one before this Court. There, a defendant pled guilty to conspiracy to possess with intent to distribute cocaine. At sentence, defendant argued that he should not be held accountable for the quantity of drugs which was the object of the conspiracy, namely 1.5 kilograms, since he could not reasonably foresee this quantity. Lockhart was the driver of a car which was first observed cruising in the vicinity of the Kansas City bus station. This observation was made by Kansas City police, who had a tip that a female bus passenger arriving from Los Angeles was transporting cocaine. This same car then met the bus passenger (who was carrying a duffel bag of cocaine) in Lawrence, Kansas. There, Givens, who was riding in the car driven by Lockhart, met the female and was given the bag of cocaine. Givens and Lockhart were then arrested in possession of the bag. Lockhart, 37 F.3d at 1452-53.

 The court began its analysis of § 1B1.3 by reviewing Application Note 2, which states that "[with] respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved . . . ." The same Note goes on to state that

 

the requirement of reasonable foreseeability applies only in respect to the conduct (i.e. acts and omissions) of others . . . . It does not apply to conduct that the defendant personally undertakes, aids, abets, counsels, commands, induces, procures, or willfully causes; such conduct is addressed under subsection (a) (1) (A).

 After quoting this Note, the court concluded that

 

the quantity of drugs attributed to defendant arose from conduct in which he personally participated . . . . Defendant knew that the purpose of the trip was to obtain cocaine. He therefore aided, abetted, and willfully caused the transaction. Under these circumstances, the quantity of drugs attributed to the defendant need not be foreseeable.

 Lockhart, 37 F.3d at 1454 (emphasis added). *fn4"

 C. Second Circuit Approach to Sentencing for Conspiracy to Possess and/or Distribute Narcotics

 This Court declines to follow the case law cited outside this Circuit for two reasons. First, each of these cases is factually distinguishable. Second, and perhaps more importantly, the Second Circuit has thus far taken a different approach to sentencing for an offense of conspiring to possess and/or distribute narcotics. This Circuit has consistently held that the Government must prove by a preponderance of the evidence that the defendant "knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy." Cardenas, 917 F.2d at 687.

 It is easy to see that in each of the cases described in some detail above, the defendant personally engaged in conduct amounting to a substantive offense either by committing the substantive offense (whether or not it was charged) or by aiding and abetting the substantive offense. In Corral-Ibarra, the defendant personally tasted the narcotics (the contraband), and confirmed the adequacy to his co-conspirator; in Pessefall, the defendant personally off-loaded cocaine from a boat; in McCullah, the defendant personally kidnapped and murdered a victim in order to recover drugs; and in Lockhart, the defendant aided and abetted his co-defendant's possession of cocaine. As discussed in the February 29 Opinion and again below, this is not true of Defendant Chalarca.

 As noted above, the Second Circuit has consistently held that in sentencing a defendant in a conspiracy charge, the Court must determine that the defendant knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy. In Cardenas, for example, the Court reviewed the sentence of a defendant who pled guilty to conspiring to possess and distribute narcotics. There, the DEA intercepted a shipment of 60 kilograms of cocaine being sent from Panama to New York, and thereafter monitored over a wiretapped telephone the conversations and actions of certain co-conspirators. In New York, co-conspirator Cardenas, in recorded conversations, indicated that he was responsible for paying a courier fee and taking delivery of a vehicle containing the drugs. Cardenas then went to the hotel to meet with the courier and give him some of the money. In discussing the trial court's sentencing analysis, the Court of Appeals held that "the district court properly concluded that the government had met its burden of showing the defendant knew that this conspiracy involved 60 kilograms or could have reasonably foreseen such amount . . . ." Cardenas, 917 F.2d at 687. See also United States v. Pico, 2 F.3d 472, 475 (2d Cir. 1993) (defendant pled guilty to conspiracy to import cocaine; defendant personally carried duffel bag containing cocaine from ship to shore; "Pico should have reasonably known by virtue of his payment of $ 30,000 that he was facilitating the importation of a large quantity of drugs.").

 In sum, the proper test to be applied by the District Courts in this Circuit is whether defendant knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy. Given this conclusion, it is still my view that § 1B1.3(a) (1) (A) does not apply to this case. *fn5" Here, Chalarca committed no acts (other than the act of conspiracy) for which he could be sentenced. *fn6" In addition, as discussed in the February 29 Opinion, it is my conclusion that he could not aid and abet the commission of the crime of conspiracy. Thus, in the context of a pure conspiracy (that is, a case in which there is no proof that a defendant has committed any substantive crime), the proper test is found in § 1B1.3(a) (1) (B), which specifically covers jointly undertaken criminal activity.

 A final reason for applying this test is that it is required by the time honored concept of fundamental fairness. It is all the more important to strive for fairness in quantity-based sentencing, which may not be the most reliable method for determining criminal accountability. *fn7" If the court looks to the standard set forth in § 1B1.3(a) (1) (A), the question that still must be answered is whether defendant "knew" of the quantity of narcotics by reason of his own conduct. In a typical case, the answer would be that he did, in that he personally performed an act which incontrovertibly demonstrates knowledge of quantity (e.g. conducting telephone discussions of quantity or price, or carrying contraband). If, on the other hand, the court looks to § 1B1.3(a) (1) (B), then it may determine whether the defendant to be sentenced could "reasonably [foresee] acts and omissions of others in furtherance of the jointly undertaken criminal activity . . . ." Where, as here, a defendant committed no substantive offense but only the inchoate crime of conspiracy, it seems appropriate to make such a determination.

 II. Knowledge or Foreseeability

 The Government seeks reconsideration of the Court's finding that under § 1B1.3(a) (1) (B) defendant carried his burden of proving that he could not foresee the amount of narcotics whose purchase was the goal of the conspiracy. I will therefore next address, again, the question of whether Chalarca "knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy." Cardenas, 917 F.2d at 687.

 A. Jury Verdicts Do Not Bind Sentencing Courts with Respect to Drug Quantity

 In United States v. Campuzano, 905 F.2d 677 (2d Cir.), cert. denied, 498 U.S. 947, 112 L. Ed. 2d 326, 111 S. Ct. 363 (1990), the court held that the particular quantity of narcotics is not an element of the offense. "Determining drug quantity is a task for the sentencing court . . . ." United States v. Shonubi, 998 F.2d 84, 89 (2d Cir. 1993) (citing United States v. Olvera, 954 F.2d 788, 791 (2d Cir.), cert. denied, 505 U.S. 1211, 120 L. Ed. 2d 885, 112 S. Ct. 3011 (1992)). Moreover, "in performing that task [the court] is not bound by jury findings or evidence presented at trial, but may consider any reliable proof." Shonubi, 998 F.2d at 89 (citing United States v. Madkour, 930 F.2d 234, 237 (2d Cir.), cert. denied, 502 U.S. 911, 116 L. Ed. 2d 251, 112 S. Ct. 308 (1991)). Indeed, the Second Circuit has held that a district court's stated "view that the court was bound by the jury's finding as to quantity was erroneous." United States v. Jacobo, 934 F.2d 411, 416 (2d Cir. 1991). In Jacobo, the court further held that "there is no reason in principle that, as to a matter that is not within the exclusive province of the jury, the sentencing court may not make findings that differ from those made by the jury." 934 F.2d at 417. The court went on to discuss the question of drawing inferences.

 

The court could also logically make findings that are more favorable to the defendant. Questions of inference and credibility are within the province of the finder of fact. As to any sentencing matter on which the court must make its own findings, the court is entitled to draw the inferences it believes appropriate and to make its own assessments as to the weight of the evidence and the credibility of the witnesses. Its inferences and evaluations may differ from those of the jury.

 Id.

 B. Government's Argument Regarding Extent to Which Jury Verdict Against Chalarca Binds this Sentencing Court

 The Government argues that the jury's verdict binds this Court to a finding that Chalarca could reasonably foresee that his co-conspirator intended to purchase 12 kilograms of cocaine; or, in the alternative, that he surely could foresee that his co-conspirator intended to purchase whatever amount of cocaine could be purchased by the $ 70,000 that was in the bag found in Chalarca's car. Specifically, the Government argues that the jury's guilty verdict necessarily means that (a) Chalarca was present on the day of the "buy" pursuant to an agreement with Sanchez to accomplish an object of the conspiracy; (b) that Chalarca's transfer of the bag containing money in the Jeep was an act in furtherance of the conspiracy; and (c) that Chalarca knew that the $ 70,000 in the bag was to be used to purchase narcotics. See Memorandum of Law in Support of Motion for Reconsideration ("Gov't Mem.") at 20. I agree that the jury necessarily made the first two findings but disagree that it was necessary for the jury to make the third finding.

 C. Court's Opinion Regarding Extent to Which Jury Verdict Against Chalarca Binds this Sentencing Court

 The jury must have found that Chalarca agreed with Sanchez to assist him in purchasing a quantity of narcotics. They could have reached this conclusion by crediting the taped co-conspirator statements offered by the Government, in which Sanchez states that "his cousin," described as Chalarca, would be present to pick up the drugs. Combining this evidence with Chalarca's presence at the scene of the attempted "buy," the jury could have concluded that Chalarca knowingly and willfully agreed to assist Sanchez in purchasing drugs. *fn8" There is no reason, however, that the jury must have found that Chalarca knew what quantity (or indeed what drug) Sanchez intended to purchase.

 Without question, in order to adhere to the Court's charge, the jury must have found more than "mere presence." The jury must have found that Chalarca entered into an agreement with Sanchez to achieve the goal of the conspiracy, namely to purchase a distributable amount of narcotics. However, to conclude (as I do) that Chalarca was unaware of Sanchez' conversations with the CI (all of which took place outside his presence) and that Chalarca was unaware of the amount of money in the car does no violence to the jury's verdict. The Government contends that it is the Court's view of the evidence that after the money was shown to the CI, "Chalarca sat wordlessly in the jeep until Sanchez and the CI left the car. Then, after Sanchez and the CI had walked away, Chalarca merely stepped out of the jeep and stood on the street. He was then arrested after brief flight." Gov't Mem at 18. The Government goes on to argue that the foregoing conduct alone would not have supported a finding by the jury that Chalarca knowingly and willfully agreed with Sanchez to distribute and possess with intent to distribute drugs. However, the Government is simply setting up a straw man, only to knock him down. *fn9" While the Government correctly summarizes the Court's view of the above-described evidence, this is not the only evidence in the case. As noted earlier, the jury may have based its determination (that Chalarca knowingly and willfully agreed with Sanchez to possess narcotics with intent to distribute) on Sanchez' taped statements in conjunction with Chalarca's appearance at the scene of the "buy." Obviously, if the Court did not believe that the jury could have reached this conclusion, it would have granted defendant's motion for a judgment of acquittal.

 The Government doth protest too much. The fact is, the case it presented against Chalarca was paper thin. *fn10" As recounted in the February 29 Opinion, there is no evidence that Chalarca participated in any negotiations, met with any seller, saw or handled any drugs, or indeed engaged in any conspiratorial conversations with Sanchez. In fact, Chalarca's co-conspirator has stated for over a year, at great risk to his own sentencing prospects, that Chalarca knew nothing about the deal. Chalarca has no prior criminal record, has held a low-level job as a hospital custodian for eight years, is married and the father of three children, and has no unexplained wealth. There is simply no proof which this Court can credit that would permit the Government to sustain its burden of proving by a preponderance of the evidence that Chalarca "knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy."

 III. Role in the Offense

 At the last page of its brief, the Government argues that "by 'taking into account the defendant's role in determining his offense level', the Court's opinion is in error." Gov't Mem. at 31 (quoting February 29 Opinion at 12). If this is error, it was introduced by the Court of Appeals six years ago.

 

It [the court] is not required to find that appellant had knowledge of the exact quantity of narcotics involved in the conspiracy so long as--in considering defendant's role in the narcotics part of the charged conspiracy --the district court determines that it is convinced by a preponderance of the evidence that defendant knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy.

 Cardenas, 917 F.2d at 687 (emphasis added). Furthermore, the Guidelines themselves require some consideration of defendant's role. As the Government has noted, § 1B1.3(a) (1) (the relevant conduct section) distinguishes between those occasions when a defendant commits a crime or aids and abets a crime and those occasions when others with whom defendant is engaged in "jointly undertaken conduct" commit a crime. To that extent, the Guidelines themselves tolerate some reference to the role in the offense in determining relevant conduct. This was what I intended in discussing role in the offense. I simply meant that given Chalarca's very limited role in this offense, the Government had failed to establish by a preponderance of the evidence that he "knew or could reasonably have foreseen the quantity of drugs involved in the conspiracy."

 IV. Conclusion

 I have considered all of the arguments raised by the Government in its Motion for Reconsideration. However, upon reconsideration, I reach the same conclusion that I did on February 29, 1996. For the reasons set forth in that Opinion and herein, I find that there is no quantity of drugs of which defendant Chalarca knew or could reasonably have foreseen. However, because I am bound by the jury's verdict that he conspired to possess and distribute cocaine, I find that the appropriate offense level is 12, pursuant to U.S.S.G. § 2D1.1(14), representing the least amount of cocaine that appears on the Drug Quantity Table. Sentencing is scheduled for March 18 at 4:30.

 Shira A. Scheindlin

 U.S.D.J.

 Dated: New York, New York

 March 13, 1996


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