The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
Defendant was convicted after trial of participation in a narcotics conspiracy and awaits sentencing. Two issues are disputed for sentencing purposes: whether he should receive an upward role adjustment pursuant to USSG § 3B1.1(b) and the weight of marijuana for which he should be held accountable pursuant to USSG §§ 2D1.1 and 1B1.3.
By letter dated April 9, 2003, the government asserts that no hearing is necessary on the role adjustment issue and that the defense should be precluded from calling Clifford Granston at the Fatico hearing that has been scheduled for June 16, 2003. Defendant has not responded to the government's application.
1. USSG § 3B1.1(b) provides for a 3-level upward adjustment "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise excessive." The criminal activity here in question plainly involved five or more participants.*fn1 The only possible factual dispute is as to this defendant's role.
As the government points out, in this Circuit, the 3-level upward adjustment is appropriate if the defendant "played a significant role in the decision to recruit or supervise lower-level participants." United States v. Greenfield, 44 F.3d 1141, 1147 (2d Cir. 1995) (emphasis added); accord, e.g., United States v. Burgos, 324 F.3d 88, 92 (2d Cir. 2003); see also USSG § 3B1.1, App. Note 4 ("recruitment of accomplices"). It argues that Coleman admitted during his direct testimony at trial that he recruited Richard Lucas to drive a load that included more than a ton of marijuana that was seized in California on or about May 19, 2000.
The evidence concerning Lucas' recruitment is somewhat more nuanced than the government suggests. Coleman admitted that he had been involved in driving loads including marijuana to New York for Derrick Irving. There came a point, however, at which Coleman claimed that he was not interested in continuing to do so. (Tr. 777) At about the same time, according to Coleman, Lucas, whom he had known for a long time and felt close to (id. 778, 799-800), approached him and expressed a desire to make more money (id. 777). Coleman then allegedly told him about his own illegal activities, said that he no longer wanted to be involved, and tried to discourage Lucas. (Id. 777-78) Lucas, however, wanted to take over Coleman's role, so Coleman arranged for him to drive the load destined for Irving and told Irving to "[m]ake it worth the driver's while." (Id.)
Against this factual backdrop, the question whether to adjust the offense level upward is a close one. The Court is mindful that management or supervision and, by parity of reasoning, recruitment of even one other participant is sufficient. E.g., United States v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995). But the Second Circuit repeatedly has emphasized that the upward adjustment is warranted where the defendant plays "a significant role in the decision to recruit" one or more other participants. Given Coleman's testimony, upon which the government places its sole reliance, it is hard in fairness to say that there was a decision to recruit Lucas in any sense that the Court regards as consistent with the object of Application Note 4. The point is to identify individuals who exercise a management or supervisory role as distinguished from mere participation in criminal activity. The evidence relied upon by the government shows nothing more than that Coleman, a participant, reached a point at which he no longer wished to drive the shipments. A friend essentially expressed the desire to take over his part of the criminal activity, and Coleman agreed after unsuccessfully trying to discourage the friend. In all the circumstances, the Court is not prepared to characterize that, standing alone, as a management or supervisory role in the conspiracy here at issue.
But the evidence of Carl Coleman's management or supervisory role is not so limited. The testimony of Clifford Granston, which the Court credits, shows that when Granston learned of and became involved in the marijuana hauling activities of the Coleman trucking company, it was Carl Coleman who explained the operation to him, instructed him on where in the trailers to load the drugs, and discussed with him means of circumventing seals placed on trailers by shippers in order to load and unload the illicit cargoes. Moreover, when Granston decided to stop hauling drugs for Derrick Irving, he turned that operation over to Carl Coleman.
Taking all of this evidence together, the Court finds, by a preponderance of the evidence, that Carl Coleman played a managerial or supervisory role in the criminal activity. The government's application for an upward adjustment of 3 levels is granted. There is no need for a Fatico hearing on the issue of role.
2. Clifford Granston was a cooperating witness in both trials of the defendant before the undersigned and in a related trial of the defendant before Judge Hellerstein. Defendant and his counsel had ample opportunity, of which they took extensive advantage — to cross-examine him concerning the marijuana distribution conspiracy in general and defendant's role in particular. In consequence, the government's application to preclude the defense from calling Granston at the Fatico hearing is granted. See United States v. Slevin, 106 F.3d 1086, 1091-92 (2d Cir. 1996) (sentencing court entitled to rely solely on trial record where defense counsel had been permitted to cross-examine the witness fully at trial on the disputed issue).