Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

U.S. v. PANDURO

May 31, 2001

UNITED STATES OF AMERICA
V.
MARIO PANDURO, DEFENDANT.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:

  OPINION

Defendant Mario Panduro has moved for downward departures based on extraordinary family circumstances and Application Note 15 to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1. In addition, Panduro has argued for a minor role adjustment pursuant to U.S.S.G. § 3B1.2(b). Lastly, Panduro has objected to the Government's determination of drug quantity. Because there were disputed issues of fact, a Fatico hearing was held where tape recordings of a number of conversations between Panduro and others were received in evidence. Both parties submitted post-hearing memoranda. I have also reviewed the presentence report ("PSR").

Based on this record, I conclude that the base offense level is 34 because defendant's co-conspirators only agreed to buy 35 kilograms of cocaine, rather than the 70 kilograms suggested in the PSR and urged by the Government. Furthermore, defendant is entitled to a three-level downward departure based on Application Note 15 and the overly generous credit terms extended by the law enforcement officials involved in this reverse sting operation. Finally, defendant is not entitled to a minor role adjustment or a downward departure based on extraordinary family circumstances. These issues will be discussed in turn.

I. BACKGROUND

A. The Transaction

On January 5, 2000, Carlos had a telephone conversation with Panduro. See id. During this conversation, Carlos and Panduro discussed price and quantity. See Defendant's Exhibit A, Jan. 5, 2000 Tab ("1/5/00 Tr.") at 3-4. When Carlos asked "how much quantity are you looking for?," Panduro replied "I'd say 40 exactly. And we can even buy the 60 from you, brother." Id. at 3. Carlos then informed Panduro that the price for 40 kilograms was different than the price for 70 kilograms.*fn1 See id. Carlos proposed a price of $16,000 per kilogram which Panduro accepted. See id. at 6. Toward the end of the conversation, Carlos asked Panduro whether they were talking about 70 kilograms to which Panduro responded "Well, alright, so . . . I'm gonna call. Let me call you back. Okay?" Id. at 8.

On January 11, 2000, Panduro and Ezequiel Inoa flew to Seattle to discuss the details of the proposed transaction with Carlos. See 4/6/01 Tr. at 20. At that meeting, Panduro and Inoa expressed their interest in purchasing 70 kilograms. For example, during the early part of the meeting, Carlos asked, "We're talking about 16,000 . . . per kilo. Yes. If you buy 70 kilos," to which Panduro responded, "For 70, exactly." Defendant's Exhibit A, January 11, 2000 Tab ("1/11/00 Tr.") at 22. Later on, Carlos asked, "So then you guys want the 70 for sure?" Id. at 29. Panduro responded "The whole thing." Id. Panduro and Carlos calculated the total purchase price to be $1,120,000, half of which the agent proposed be paid on delivery while the other half would be paid at an unspecified later time. See id. at 30. Panduro and Inoa wanted the entire purchase to be on credit, but when Carlos would not agree they returned to New York. In this regard, Panduro offered the following credible testimony: "We didn't agree to anything because we wanted to get credit and there was none, so we came back.". 4/12/01 Tr. at 20.

Negotiations almost broke down after that as Panduro attempted to convince Carlos to do the deal without Panduro and Reynaldo flying to Seattle to serve as human collateral. See 4/6/01 Tr. at 29, 32 (Testimony of Agent Fonseca). In response, Carlos suggested that they do a straight cash deal for 19 kilograms. See id. ("let's just do 19 kilograms and we'll finish, and we won't have to do anything else"); see also Defendant's Exhibit A, Jan. 31, 2000 Tab ("1/31/00 Tr.") at 5. A short time later, Panduro called Carlos back and indicated that he would be traveling to Seattle the following day with Alberto Bare, whom Panduro described as an associate of Reynaldo's. See 4/6/01 Tr. at 30. Apparently, the parties decided to go ahead with the 35 kilogram transaction. Panduro and Bare were arrested on February 3, 2000 after an undercover agent in New York was shown the $300,000 down payment for the 35 kilograms.

B. Panduro's Family Circumstances

Panduro has a 12 year old daughter, Talia, living in Peru who suffers from microencephalitis (a small head). See 4/12/01 Tr. at 4. Panduro's sister, Araly Panduro, testified that the child doesn't walk, see or speak. See 4/6/01 Tr. at 52. She also needs to be fed and changed. See id. While Panduro hasn't seen his daughter since 1995, he has spoken to her on the telephone. See 4/12/01 Tr. at 5-6. While Talia only babbles on 6 the phone, she gets excited when her father calls. See id.

Panduro emigrated from Peru in 1995, leaving his daughter to be taken care of by his sister and parents. See id. at 5. While employed in the United States, Panduro sent between $250 and $300 a week to his family in Peru. See id. at 7. These payments helped cover Talia's monthly medical treatment and expensive medicines. See id. at 5. After Panduro was let go from his job in November of 1999, his family was forced to live off of their savings. See id. at 8. Since then, Araly has come to the United States for work, leaving Talia to be cared for by Panduro's mother and a young female assistant. See 4/6/01 Tr. at 53. Araly sends money to her family in Peru whenever she can. See id. at 54.

II. DISCUSSION

A. Drug Quantity

The Government contends that the record clearly establishes that Panuduro and his co-conspirators agreed to purchase 70 kilograms of cocaine from Agent Fonseca and that this amount should set Panduro's base offense level. Panduro argues that the agreed-upon quantity was 35 kilograms and that the Government failed to carry its burden of establishing any amount greater than 35 kilograms.

In a reverse sting, the defendant agrees to buy a certain amount of drugs for a certain prearranged price, usually from an undercover agent or confidential informant. See United States v. Gomez, 103 F.3d 249, 252 n. 1 (2d Cir. 1997). Because the Government unilaterally sets the quantity and price for the most part, there is a significant risk that the Government will inflate the agreed upon quantity in order to obtain harsher sentences for those arrested. See United States v. Lora, 129 F. Supp.2d 77, 80 (D.Mass. 2001) ("In a sentencing regime that largely equates culpability with the amount of drugs attributable to the defendant, the potential for abuse by law enforcement agents is substantial."). See also United States v. Cambrelen, 29 F. Supp.2d 120, 125 (E.D.N.Y. 1998) ("Since the shift to a sentencing scheme that strictly ties sentencing to the quantities of drugs involved, many courts and commentators have expressed concern over the large discretion that law enforcement officials have in setting the amount of drugs `involved' in a case."), aff'd, No. 98-1724L, 2001 WL 219285 (2d Cir. Mar. 6, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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