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U.S. v. RUIZ

November 27, 2002

UNITED STATES OF AMERICA
V.
CARLOS HUMBERTO RUIZ, DEFENDANT.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge.

SENTENCING OPINION

Ruiz disputes this calculation, arguing that he should be credited with a four-level downward adjustment as a minimal participant in the offense, or, failing that, a two-level adjustment as a minor participant, pursuant to U.S.S.G. § 3B1.2. A recent guideline amendment, however, dramatically increases the consequences of the reduction in the circumstances of this case. Under the newly-added U.S.S.G. § 2D1.1 (a)(3), the offense level for a defendant who receives any mitigating role adjustment is capped at 30. See United States Sentencing Guidelines, Supplement to Appendix C, Amendment 640 (effective November 1, 2002) ("Amendment 640"). Moreover, this reduction refers to the base offense level; after determining this level, the reduction for mitigating role is then applied, further reducing the total offense level to 28 in the case of a minor participant. U.S.S.G. § 3B1.2, Application Note 6. For a first offender like Ruiz, this calculation results in a sentencing range of 78-97 months. Thus, assuming there are no grounds for upward or downward departure from the recommended sentencing range (and neither party has suggested that any exists), if Ruiz qualifies for the minor participant adjustment, the longest sentence he can receive is about eight years, while if that adjustment is inapplicable, the shortest sentence allowable is just under twenty years. Because the effect of the adjustment is so dramatic under the circumstances of this case, it seems advisable to set forth the basis of the Court's conclusions, for the benefit of the parties and of the Court of Appeals, should the sentence be appealed.

FINDINGS OF FACT

The case was tried before this Court and a jury, and neither party has asked for a hearing to present additional evidence. Accordingly, the Court has a full picture of the evidence available concerning the nature of the conspiracy and Ruiz's role in it. Even so, as is not unusual given the furtive nature of such illegal enterprises, details of the conspiracy's extent and of Ruiz's true level of involvement are shadowy, and the available evidence is limited by the degree to which law enforcement officers have been able to penetrate the criminal group. Since, as will be seen, Ruiz appeared for the first time at the very end of a lengthy undercover operation, much about his role remains obscure.

The evidence at trial showed that the joint efforts of Dutch, German and American law enforcement agencies succeeded in uncovering an organization, composed primarily of Colombian nationals, that manufactured the drug ecstasy in the Netherlands (the principal source country for this drug) and exported it to the United States. Beginning in the spring of 2001, a skillful German undercover officer convinced the key conspirators in the Netherlands, Jose Valderama Ruiz (no relation to the defendant) and Beatriz Henao, that he could securely transport huge quantities of pills from Europe to the United States. He persuaded the conspirators to entrust him with large amounts of illegal drugs without his paying for them, and even to pay him for the privilege of handing their illegal products over to the authorities.

The conspirators decided to try an initial test run of 47,000 pills before making the major shipment that led to the arrest of Ruiz. From the criminals' perspective, the test went off almost without a hitch: The pills were delivered undetected (so far as they knew) to their courier in New York. Through a ruse that will not be described here, the investigators, by making it appear that the drugs were discovered inadvertently after the delivery had been successfully made, were able to arrest the courier and seize the drugs without bringing the undercover officer under suspicion. Writing that seizure off to bad luck and the incompetence of their New York courier, the leaders of the enterprise decided to go ahead with a larger shipment.

The undercover was provided with 301,000 pills in Germany to be transported to the United States, and instructed to contact a representative of the conspiracy in New York, who would arrange for the pills to be delivered to a Florida-based organization for distribution. On September 29, 2001, upon his arrival in New York, the undercover officer contacted the mobile telephone number he had been given, and spoke to an individual who arranged a meeting in Manhattan on October 1. That individual, who was known to the undercover as "Lelo," turned out to be a man Ruiz (who does not speak English) had recruited in New York to serve as his translator, in place of the person originally assigned to play this role. Prosecutors ultimately decided not to charge the translator with any crime.

The movements of the players can be tracked with considerable certainty from this point on. The undercover team (the German officer and a DEA agent who accompanied him to meetings posing as a Russian organized crime figure) recorded their calls to "Lelo" and their meetings with Ruiz, while the Dutch authorities, through court-authorized wiretaps on the phones of the leaders of the conspiracy in Europe, monitored Ruiz's calls to the Netherlands for instructions.

On October 1, the agents met with Ruiz and his translator. Peculiarly, given that the huge number of pills weighed over 150 pounds packed in four large duffel bags, Ruiz arrived without a car, and asked to borrow the agents' vehicle to transport the drugs to their next destination. The agents initially resisted lending their car to Ruiz, and asked for payment of the $140,000 allegedly due for transporting the pills. Ruiz balked, claiming that he had no money, knew of no payment due, and would have to check with his superiors to find out what was going on. When the agents, after some negotiations, agreed to deliver the drugs and lend the car without getting paid, Ruiz became suspicious of this apparently un-drug-dealer-like generosity, ended the meeting, and proposed meeting the next day to take delivery and exchange any money at the same time. The agents advised Ruiz to call Henao in the Netherlands for instructions about whether and how to take delivery of the drugs and pay the undercover for his services.

There is little reliable evidence of Ruiz's activities before this transaction. During his meetings with the agents, Ruiz disclosed that he had been recruited for this mission about six weeks earlier in Colombia by a man named "Mike" who was his connection to Valderama Ruiz. Grand jury testimony confirms that government agents had no information linking Ruiz to the other conspirators before this time. Other references in the various taped conversations show that Ruiz was aware of the people in Florida who the undercover had been told were to distribute the drugs, and that he was in frequent contact with Henao. Documentary evidence indicates that Ruiz traveled from Colombia to New York via Ecuador and Florida. Ruiz's statements and documents in his possession indicate that Ruiz was sent only small sums of money to support himself in New York; moreover, he told the Probation Department that he worked as a building cleaner near the World Trade Center site for $8.25 per hour while waiting for the undercover to arrive in New York with the drugs.*fn2

DISCUSSION

Ruiz argues that he should be credited with a minor or minimal role in the offense. In support of this claim, he contends that he joined the conspiracy relatively late, that he was involved in the receipt of only this one shipment of drugs, that his role with respect to the shipment was only to accept delivery and almost immediately pass the drugs on to the true consignees for further distribution, that he had no access to significant sums of money, that he acted in a subordinate role and could not make decisions without approval from his bosses, and that, as suggested by various pieces of evidence (such as his failure to arrange adequate transportation for the quantity of drugs involved), he had only a vague idea of the size of the shipment and was not even told how much he would be paid for his services. He stresses that as compared with the other members of the conspiracy referred to in the indictment and during the trial, he was clearly the least culpable (with the exception of the hapless recipient of the first shipment and the translator "Lelo," who was considered unworthy of prosecution at all). The government, in contrast, points out that Ruiz appears to have been on friendly terms with Henao, who it regards as the head of the organization, that the undercover was told that the recipient of this shipment (in contrast to his predecessor) would be someone experienced in the drug trade, and that Ruiz exercised independent judgment in refusing to take delivery on October 1 due to his suspicions of the agents. The government also emphasizes that Ruiz was entrusted with tasks critical to the success of a scheme to import illegal drugs worth ...


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