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June 26, 1998


The opinion of the court was delivered by: GLEESON


 JOHN GLEESON, United States District Judge:

 On April 21, 1998, I sentenced the defendant Yuli Mar Gonzalez-Bello to a 63-month term of imprisonment, to be followed by a 4-year term of supervised release. The sentence was the result of a sua sponte departure from the sentencing range prescribed by the United States Sentencing Guidelines.

 I departed because (a) Gonzalez-Bello wanted to cooperate with the government from the outset of the case; (b) the government wanted her cooperation; (c) her defense lawyer, who suffered from a conflict of interest arising out of his receipt of a "benefactor payment," affirmatively obstructed her effort to cooperate; and (d) the attorney's conduct deprived Gonzalez-Bello of the opportunity to cooperate against at least one drug trafficker, and possibly more, and thus to obtain the substantial benefit of a motion pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 5K1.1 and 18 U.S.C. § 3553(e).

 On April 28, 1998, the government moved pursuant to Rule 35(c) of the Federal Rule of Criminal Procedure to correct the sentence on the ground that the departure was the result of "clear error." The timing of the motion required that it be acted upon virtually instantaneously. I denied it that same day in an order stating that this opinion would follow.

 A. Background

 The defendant, who is now 26 years old, is a resident of Caracas, Venezuela. She was raised by her mother and stepfather, who were alcoholics. Her stepfather physically abused her, including one knife-slashing incident that required stitching of three of her fingers. As a ten-year old, she was sexually assaulted twice by her mother's friends, incidents for which she received counseling by a prison psychologist while awaiting sentencing in this case. By age fourteen, she had moved out of her mother's home to live with a boyfriend.

 The defendant had minimal contact with her father during her childhood. However, when he became gravely ill, and no other family member would care for him, he moved in with the defendant in Caracas. She attended high school part-time while caring for him. In 1993, when she was 21, she received the equivalent of a high school diploma, and her father died.

 The defendant went to work as a clerk in two dry cleaning stores in Caracas. She left the second of those jobs to work in a third dry cleaners, the Tamanaco Dry Cleaners, with her new boyfriend (now fiance), Jose Do Vole.

 B. The Arrest of Jose Do Vole and the Other Couriers

 On May 17, 1996, Jose Do Vole was arrested at John F. Kennedy International Airport ("JFK Airport") in possession of 313 grams of heroin, which was sewn into the linings of a suitcase and several sport jackets, including one he was wearing. During a search incident to the arrest, agents discovered a business card for the Tamanaco Dry Cleaners. On the back of the card was a telephone number and the name "Yuli." Yuli is the defendant. At the time of Do Vole's arrest, he was the general manager of the Tamanaco Dry Cleaners, and the defendant was his employee.

 On May 18, 1996, the day after Do Vole's arrest, another courier (the "second courier") was arrested at JFK Airport. Like Do Vole, he had a business card for Tamanaco Dry Cleaners in Caracas, which had Do Vole's name embossed on the front and "Yuli Mar Gonzalez" handwritten on the back, together with the same telephone number that was written on the card seized from Do Vole the day before. He was carrying 1.56 kilograms of heroin concealed in two suitcases and a sport jacket.

 On July 1, 1996, another courier (the "third courier") was arrested at JFK Airport. This courier had 2.57 kilograms (gross weight) of heroin hidden in suitcases and sport jackets, and also had a piece of paper with the defendant's name and the same telephone number written on it. In a post-arrest statement, this courier stated that the defendant had accompanied him on the flight from Venezuela.

 On July 11, 1996, a fourth individual (the "fourth courier") was arrested, this time at Miami International Airport, with 1.81 kilograms (gross weight) of heroin. This courier had a Tamanaco Dry Cleaners business card with the defendant's name and telephone number on the back.

 C. The Arrest of Gonzalez-Bello

 On July 3, 1996, the government sought and obtained an arrest warrant for Gonzalez-Bello. The affidavit submitted in support of the request described the arrests of Do Vole, the second courier and the third courier. It also stated that Do Vole "acknowledged that he works at Tamaco (sic) Dry Cleaners in Caracas, Venezuela." Complaint and Affidavit in Support of Arrest Warrant dated July 3, 1996, at P 1.

 As noted above, the defendant had come to New York on July 1, 1996, to visit Do Vole at the Metropolitan Detention Center in Brooklyn, New York (the "MDC"). During one of the defendant's visits to the jail, a woman who was visiting another inmate invited the defendant to stay at her apartment in Queens, New York. On August 22, 1996, while visiting Do Vole at the MDC, the defendant was arrested on the outstanding warrant.

 In the agents' car after her arrest, Gonzalez-Bello admitted that some of her acquaintances were drug traffickers, that she had a fraudulent passport, that she had accompanied the second courier on July 1, 1996, and that she had gone to the MDC to visit her fiance, Do Vole. After making those statements, she said she wanted to speak to a lawyer, and the interrogation ceased. At her arraignment on August 22, 1996, Scott Auster, Esq., was assigned under the Criminal Justice Act to represent the defendant. A detention hearing was held, and she was ordered detained by the magistrate judge and taken to the MDC. Gonzalez-Bello never saw or spoke to Mr. Auster again.

 D. The Appearance Of Retained Counsel And The Destruction Of Gonzalez-Bello's Opportunity to Cooperate

 The Speedy Trial Act required that any indictment of Gonzalez-Bello be filed on or before September 21, 1990. See 18 U.S.C. § 3161(b). On September 20, 1996, she was brought before Magistrate Judge Robert M. Levy. A new attorney, Eugene Bogan, Esq., appeared for her on that date. Judge Levy entered an Order of Excludable Delay, extending the period within which to indict the defendant to October 19, 1996. The order was entered on consent, and the stated purpose of excluding the time was to allow the parties to "engage in continuing plea negotiations." Order of Excludable Delay dated September 20, 1996.

 Bogan was retained, but he was not retained by Gonzalez-Bello. He showed up one day at the MDC and told her, "I am your attorney, your friend contracted me to represent you." Tr. 11. *fn1" Bogan stated that he had been hired by Edgar Suarez, a Colombian acquaintance of Gonzalez-Bello. Gonzalez-Bello immediately told Bogan she wanted to cooperate with the government. Bogan then told her, falsely, that she would get the same prison term whether she went to trial or cooperated.

 At that early juncture, less than one month after her arrest, Gonzalez-Bello had information about the narcotics trafficking of Gabriel Velasquez. Tr. 15. She also had information about Ingrid Barbosa who, along with her boyfriend, was an active member of the Caracas-based drug distribution ring whose heroin had been seized from Do Vole and the three other couriers. Tr. 18, Presentence Report ("PSR") P 10. Both Gonzalez-Bello and Do Vole were low-level members of this organization. He was a courier. She was solicited by Barbosa to be a courier as well, but declined. PSR P 10. Instead, she introduced four others to Barbosa to act as couriers.

 The government was interested in the information Gonzalez-Bello could provide. Indeed, on the day of her arrest, she was specifically questioned about Gabriel Velasquez. Tr. 20. He was arrested approximately eight months later. Tr. 15, 21. The nature of the government's investigative interest, if any, in Barbosa and her boyfriend is less clear. However, the defendant's presentence report states (presumably based upon the information provided by the second, third and fourth informants, who are described as "cooperating witnesses") that Ingrid Barbosa was in charge of getting the heroin placed in the suitcases and sports jackets and supplying those items (through Gonzalez-Bello) to the couriers. PSR P 7.

 Although Gonzalez-Bello had the desire to cooperate, and information about at least one person the government was investigating, her lawyer obstructed her path. He told her she was "not going to get anywhere" by cooperating, that "the best thing for [her] was to go to trial," and that, no matter what she did, she "was going to be given many years [in prison]." Tr. 15. Bogan eventually did more than simply discourage Gonzalez-Bello from cooperating. In the one proffer session *fn2" she had while he represented her, he gave her advice that essentially destroyed her ability to cooperate. Specifically, he told her that since she would eventually be going to trial, she had to "declare herself not guilty" of trafficking in drugs. Tr. 17-20. Gonzalez-Bello followed that instruction. Not surprisingly, her false denial of her own criminal acts made her an unattractive candidate for cooperation, and no agreement was reached.

 E. Gonzalez-Bello's "Supervisor" Status

 The fact that Gonzalez-Bello introduced four others to Barbosa to act as couriers is extremely significant under the sentencing guidelines. As discussed below, it permitted Gonzalez-Bello to be characterized as a "supervisor," warranting an upward adjustment for an aggravating role in the offense, which produces a much higher guideline range than the one applicable to "mere couriers." In this case, the "supervisor" label was especially misleading. Gonzalez-Bello, an immature and scared young woman, did not have the mettle to join her fiance in the ranks of the couriers. She could only recommend others to take that risk. Moreover, there is no evidence that she was paid by Barbosa for this "recruitment." Rather, she was to be paid by the courier; for example, she received $ 1,000 from one of the couriers, and she promptly used the money to buy an airplane ticket to visit Do Vole in the Brooklyn jail. See PSR P 10. A common sense evaluation of the evidence before me leads to the conclusion Gonzalez-Bello had a lesser role in the offense than the couriers.

 This is further revealed by the defendant's conduct after the arrest of her fiance. Supervisors in drug rings do not usually fly into the United States to spend six weeks paying personal visits to arrested couriers in United States prisons, especially where, as here, those couriers can easily be linked to the supervisor. If they ...

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