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April 27, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


The three defendants in this case pled guilty to charges including conspiracy to import cocaine into the United States, 21 U.S.C. § 963, and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Because the conspiracy involved in excess of 150 kilograms of cocaine, a fact not disputed by the defendants, the U.S. Sentencing Guidelines ("U.S.S.G." or "Guidelines") prescribe a base offense level of 38 for each defendant.*fn1 U.S.S.G. § 2D1.1(c)(1). Indeed, it is undisputed that the defendants were arrested in Belize in possession of some 1500 kilograms of cocaine destined for the U.S. market. The parties agreed, however, to leave several other issues relevant to sentencing for resolution after an evidentiary hearing, see United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979); United States v. Fatico, 579 F.2d 707 (2d Cir. 1978), which the Court held on March 3 and 4, 2004. This opinion sets forth the factual findings and legal conclusions required to arrive at appropriate sentences for each defendant.


  I. Jorge Torres-Teyer

  A. Role in the Offense

  The Government argues that Torres-Teyer should receive a four-level "aggravating role" adjustment because he acted as an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). To impose this adjustment, the Court must find "(i) that the defendant was `an organizer or leader,' and (ii) that the criminal activity either `involved five or more participants' or `was otherwise extensive.'" United States v. Zagari, 111 F.3d 307, 330 (2d Cir. 1997) (internal quotation marks omitted). The evidence overwhelmingly, by far more than a preponderance, justifies these findings.

  First, while the Government need not establish that Torres-Teyer managed five or more participants (evidence of "otherwise extensive" criminal activity also suffices), United States v. Zichettello, 208 F.3d 72, 107 (2d Cir. 2000), it cannot be disputed that the criminal activity here involved more than five people. Counting only those directly supervised by Torres-Teyer, the participants included Liston McCord, codefendants Carrasco. and Aguirre, the crew of Mexican laborers or seamen who worked with McCord to transfer cocaine from large to small boats (e.g., Michael, Chilango, Alfredo, Gordo) (Tr. 111, 122-23, 126, 133), the sea captains who responded to Torres-Teyer's orders, and assorted pistoleros and laborers. (Id. 166-67.)

  Second, Torres-Teyer unquestionably acted as an organizer and leader of the conspiracy. The evidence seized from his apartment in Belize, where authorities found the 1500 kilograms of cocaine, included a black folder containing copies of facsimile communications giving directives to boat captains and others regarding the transport of cocaine from Colombia to Mexico. by sea. That Torres-Teyer wrote these facsimile communications is clear: Belizean authorities found them in his apartment; according to Liston McCord, a cooperating witness whom the Court finds highly credible,*fn2 the handwriting matches that of Torres-Teyer (Tr. 163, 169); and they were signed by "Oso," which in Spanish means "bear," a nickname for Torres-Teyer. (Id. 123-24.) The content of the communications also confirms that he wrote them. In one, the author advises coconspirators that he has assumed the new identity "Jorge Carlos Moreno" and obtained a death certificate for "Jorge Torres-T." (GX 71.) In another, he instructs members of the conspiracy how to find the apartment complex where he then lived and to ask for Carlos Moreno, his assumed identity in Belize. (GX 81.) Jorge Carlos Moreno is also the name that Torres-Teyer gave to the Belizean police who stopped him for driving in the wrong direction on a one-way street, the incident that led to the discovery of the 1500 kilograms of cocaine and the apprehension of codefendants Carrasco. and Aguirre. (Torres-Teyer PSR ¶ 12.) The inference is inescapable that Torres-Teyer authored numerous directives to a large number of conspirators.

  Moreover, McCord testified that Torres-Teyer recruited him and gave him orders about the transportation of more than a dozen cocaine shipments, generally in amounts of at least 1500 kilograms. (Tr. 93-98, 125-26.) The totality of McCord's testimony made absolutely clear that Torres-Teyer organized and planned these shipments, and the seized records not only corroborate that testimony — they independently establish that he played exactly this leadership role.

  At a minimum, the evidence therefore establishes that Torres-Teyer was a manager or supervisor of the narcotics organization in which he participated. See United States v. Payne, 63 F.3d 1200, 1212 (2d Cir. 1995) ("A defendant acts as a manager or supervisor of a criminal enterprise involving at least five participants if he exercises some degree of control over others involved in the commission of the offense or plays a significant role in the decision to recruit or to supervise lower-level participants.") (internal citations, brackets and quotation marks omitted). Distinguishing a "manager or supervisor," U.S.S.G. § 3B1.1(b), from an "organizer or leader," id. § 3B1.1 (a), may well be more of an art than a science. Concededly, Torres-Teyer was not the leader of the entire narcotics trafficking conspiracy. The evidence shows that he reported to Alcides Ramon Magana and Albion Quintero Meraz, persons whom Special Agent Matthew John O'Brien of the Drug Enforcement Administration ("DEA") described as "heads of the organization" (Tr. 70), and superiors at times sent others to check up on Torres-Teyer. (Id. 176-77.) But for Torres-Teyer to qualify as an organizer or leader, it is not necessary that he have been at the pinnacle of authority within the hierarchy of the narcotics trafficking organization, or that he have masterminded the entire conspiracy. See United States v. DeRiggi, 72 F.3d 7, 8 (2d Cir. 1995); United States v. Garcia, 936 F.2d 648, 656 (2d Cir. 1991); see also U.S.S.G. § 3B1.1, Application Note 4; United States v. Beaulieau, 959 F.2d 375, 379-80 (2d Cir. 1992) (canvassing factors to be considered in determining whether defendant qualifies as an "organizer or leader"). Torres-Teyer quite literally organized the Belizean trans-shipment operation, which itself qualifies as a highly complex criminal activity and a major part of the overall importation scheme. He did not act as a mere manager or supervisor, but as a high-level operative who recruited, supervised, and directed dozens of individuals and organized their activity. (G. Br. 15-19.) See United States v. Si Lu Tian, 339 F.3d 143, 156-58 (2d Cir. 2003). Moreover, some of those whom Torres-Teyer supervised, such as McCord and the sea captains, themselves played significant roles in the conspiracy and enjoyed supervisory authority over other coconspirators. Torres-Teyer's level of responsibility, and the number of people he organized and directed, dwarfs that of others who have received a four-level enhancement for being an organizer or leader. See, e.g., United States v. Napoli, 179 F.3d 1, 14 (2d Cir 1999); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 183 (2d Cir. 1990).

  Accordingly, the Court finds an "aggravating role" enhancement for being an "organizer or leader" warranted. This adjustment brings Torres-Teyer's offense level to 42. B. Use of Airplane

  The Government's letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991), contemplated, and the Probation Department recommended, a two-level enhancement for use of an aircraft in connection with narcotics trafficking. (Torres-Teyer PSR ¶¶ 7(c), 41.) U.S.S.G. § 2D1.1(b)(2)(A). But the Government introduced no evidence at the hearing regarding use of an airplane, and in its post-hearing submission, did not argue that an enhancement for such use should be applied. On one occasion, Torres-Teyer and McCord apparently arranged for the use of an airstrip for a projected transfer of drugs by air, after the failure of a trans-shipment by boat due to a hurricane. (Tr. 184-86; GX 69.) But no evidence suggests that this plot succeeded. Indeed, it seems that this shipment is the one that Belizean authorities eventually seized, resulting in the defendants' arrest. Accordingly, this enhancement will not be applied.

  C. Acceptance of Responsibility and Obstruction of Justice

  Torres-Teyer pled guilty to the entire indictment. He acknowledged his guilt for both the conspiracy to import and distribute cocaine and the use of firearms in furtherance of that scheme. He is therefore presumptively entitled to a downward adjustment for acceptance of responsibility. U.S.S.G. § 3E1.1(a). Furthermore, as to Torres-Teyer, unlike his codefendants, the Government does not dispute that he timely notified it of his intention to plead guilty, sparing both the Court and the Government the time and resources necessary to prepare for trial. Accordingly, if he qualifies for acceptance of responsibility, he would receive another one-level reduction pursuant to U.S.S.G. § 3E1.1(b).

  The Government contends and the PSR recommends, however, that credit for acceptance of responsibility should be denied and, instead, a two-level enhancement for obstruction of justice imposed. See U.S.S.G. § 3C1.1. The Government cites several alleged plots by Torres-Teyer to intimidate witnesses, escape from custody, and proffer false cooperation in an effort to obtain a reduction of his sentence. (G. Br. 16.) Only one of these alleged plots was adequately proved.

  The PSR's recommendation relies on a purported effort by Torres-Teyer to bribe Belizean officials to refuse to extradite him to the United States. (Torres-Teyer PSR ¶ 35, 46.) McCord's testimony, as well as documentary evidence introduced by the Government, amply established the general nature of this alleged scheme. (Tr. 194-97; GX 251-62.) According to the plan, Carrasco. and Aguirre would accept full responsibility for the cocaine seized in Torres-Teyer's apartment in exchange for $100,000, as well as a car and a house, for each of them, while Torres-Teyer, McCord, and Torres-Teyer's girlfriend would be exonerated in exchange for the payment of a $250,000 bribe to the chief magistrate in charge of the case.

  No evidence, however, establishes that the magistrate, the Honorable Herbert Lord, in fact received such a bribe or even agreed to the scheme; indeed, Torres-Teyer provided an affidavit from Magistrate Lord in which Lord states that "[a]t no time while the case was before me in Magistrate's Court did anyone offer a bribe for me to release any of the . . . defendants on bail or to dismiss any of the charges against [them]." (Lord Aff. ¶ 5.) Moreover, the witness Errol Gentle, a Belizean prison official, testified to Magistrate Lord's good reputation. (Tr. 315-16.) Finally, McCord had no first-hand knowledge that any bribe had been paid, nor could he have.

  At the same time, notes written by Torres-Teyer during his imprisonment with McCord in Belize strongly corroborate McCord's account of an attempt to arrange such a bribe. These notes establish, through Torres-Teyer's own words, that he intended to bribe Carrasco. and Aguirre to provide false testimony (GX 253-55) and "to pay off the judge," and that he had arranged to make available the money to bribe them. (GX 255.) The Court therefore finds that Torres-Teyer willfully attempted to obstruct justice during the course of his prosecution for this offense.

  This conduct, however, raises an issue of law regarding § 3C1.1's application. While the PSR characterizes Torres-Teyer's bribery attempt as an effort to avoid extradition to the United States, the evidence suggests that the plot actually aimed to secure an acquittal on the charges brought against him in Belize. The § 3C1.1 enhancement applies to obstructive conduct "related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense." Because the conduct for which Belize initiated Torres-Teyer's prosecution constitutes a part of his offense of conviction in the United States, or at the very least "a closely related offense," the enhancement would appear literally to apply. But the question remains whether the bribery plot aimed to obstruct justice in the United States, and if it did not, whether § 3C1.1 applies where a defendant attempts to obstruct a foreign prosecution for an offense that is relevant conduct or an offense closely related to the offense of conviction in the United States.

  No evidence suggests that Torres-Teyer's bribery scheme aimed to avoid extradition. To the contrary, affirmative evidence indicates that Torres thought that the United States either could not or would not secure his extradition in any event. (GX 260.) As a matter of law, however, the Court sees no basis to distinguish between attempts to obstruct Belizean and United States justice in connection with this prosecution, at least on the facts of this case.

  First, although no evidence suggests that Torres-Teyer's plot aimed specifically to avoid extradition to the United States, Torres-Teyer unquestionably remained concerned that he would be held accountable by the United States for his crimes. Government Exhibit 260 establishes that although Torres-Teyer did not expect to be extradited, he nevertheless recognized the dangers posed by the DEA and the possibility of prosecution in the United States for importing cocaine into this country. Moreover, it is clear that Torres-Teyer's and McCord's release from the Belize prison would have obstructed the investigation of Torres-Teyer by United States authorities and, indeed, this prosecution. Perhaps in some circumstances, in some countries, efforts to take advantage of an already corrupt system of justice might not qualify for the § 3C1.1 enhancement. But on the facts of this case, where the investigation and prosecution in Belize, on the one hand, and Torres-Teyer's investigation by the DEA and other United States authorities, on the other, were closely intertwined, Torres-Teyer's effort to frustrate the Belizean prosecution would reasonably be expected to have an effect on the prosecution here.*fn3 Accordingly, the enhancement for obstruction will be applied.

  The Government argues, as the PSR recommends, that application of the § 3C1.1 enhancement automatically negates Torres-Teyer's entitlement to credit for acceptance of responsibility. (G. Br. 34; Torres-Teyer PSR ¶ 46.) Both the Government and the PSR cite Application Note 4 to U.S.S.G. § 3E1.1, which states that "[c]onduct resulting in an enhancement under § 3C1.1 . . . ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply." See, e.g., United States v. Restrepo, 936 F.2d 661, 669 (2d Cir. 1991) (affirming sentencing court's application of both § 3C1.1 and § 3E1.1).

  The Second Circuit has not yet articulated a standard or set of guidelines to determine whether a case qualifies as "extraordinary" within the meaning of Application Note 4. Two views predominate in other circuits. See United States v. Salazar-Samaniega, 361 F.3d 1271, 1279-80 (10th Cir. 2004) (canvassing each). In United States v. Hopper, 27 F.3d 378 (9th Cir. 1994), the Ninth Circuit held that
the relevant inquiry for determining if a case is an extraordinary case within the meaning of Application Note 4 is whether the defendant's obstructive conduct is not inconsistent with the defendant's acceptance of responsibility. Cases in which obstruction is not inconsistent with an acceptance of responsibility arise when a defendant, although initially attempting to conceal the crime, eventually accepts responsibility for the crime and abandons all attempts to obstruct justice.
Id. at 383 (emphasis in original); accord, United States v. Gregory, 315 F.3d 637, 640 (6th Cir. 2003); but see United States v. Buckley, 192 F.3d 708, 711 (7th Cir. 1999) (rejecting Hopper in part because "[t]he fact that a defendant having done everything he could to obstruct justice runs out of tricks, throws in the towel, and pleads guilty does not make him a prime candidate for rehabilitation").

  By contrast, in United States v. Honken, 184 F.3d 961 (8th Cir. 1999), the Eighth Circuit opined that sentencing courts should consider

the totality of the circumstances, including the nature of the [defendant]'s obstructive conduct and the degree of [defendant]'s acceptance of responsibility. Among other things, the district court should . . . consider[] whether, for example, the obstruction of justice was an isolated incident early in the investigation or an on-going effort to obstruct the prosecution. It should . . . consider whether [defendant] voluntarily terminated his obstructive conduct, or whether the conduct was stopped involuntarily by law ...

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