The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
MEMORANDUM DECISION AND ORDER
In accordance with the Second Circuit Court of Appeals' decision in
United States v. Cordoba-Murgas, 233 F.3d 704 (2d Cir. 2000),
the court has reopened the sentencing of defendants Raul Antonio
Cordoba-Murgas ("Raul Cordoba"), Luis Antonio Todd-Murgas ("Luis Todd"),
and Luis E. Cordoba-Murgas ("Luis Cordoba").
This matter has been the subject of several written decisions,
familiarity with which is assumed. See United States v.
Cordoba-Murgas, 233 F.3d 704 (2d Cir. 2000); United States v.
Murgas, 31 F. Supp.2d 245 (N.D.N.Y. 1998); United States v.
Murgas, 177 F.R.D. 97 (N.D.N.Y. 1998). As a common point of
reference, the court summarizes the matter as follows. On March 21, 1996,
a grand jury charged defendants with a host of drug offenses in an
eight-count superceding indictment. Prior to trial, Luis Cordoba and Luis
Todd pled guilty to the second count of the indictment, which charged
them with conspiracy to possess with intent to distribute and conspiracy
to distribute powder and crack cocaine in violation of
21 U.S.C. § 846. Luis Cordoba also pled guilty to one charge of knowingly and
intentionally possessing with the intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1). On June 26, 1997, a jury
convicted Raul Cordoba of participating in the drug conspiracy set forth
in count two of the superceding indictment to which Luis Cordoba and Luis
Todd had previously pled guilty.
At defendants' sentencing, the court found that defendants were
responsible for trafficking between fifteen and fifty kilograms of
cocaine. Thus, under the United States Sentencing Guidelines ("Guidelines") § 2D1.1(c), defendants' base offense level was
thirty-four. Because Luis Cordoba's offense involved a minor, pursuant to
U.S.S.G. § 2 D1.2(a)(2), the court enhanced his base offense level to
thirty-five. In addition, because Luis Cordoba was an organizer or leader
of criminal activity that involved five or more participants, pursuant to
U.S.S.G. § 3B1.1(a), the court enhanced his base offense level to
thirty-nine. Thus, the court determined under the Guidelines that: (1)
Raul Cordoba, with a criminal history category of one and a base offense
level of thirty-four faced 151 to 188 months imprisonment; (2) Luis Todd,
with a criminal history category of three and a base offense level of
thirty-four, faced 188 to 235 months imprisonment; and (3) Luis Cordoba,
with a criminal history category of one and a base offense level of
thirty-nine, faced 262 to 327 months imprisonment.
Prior to defendants' sentencing, the Government presented evidence
suggesting that defendants were involved in the murder of Jason Jacobs
and Kelly Coss in Rome, New York, on January 12, 1995. Based upon the
evidence presented, the court found that: (1) Jacobs "was a regular
customer of defendants' drug enterprise," and that it appeared very
likely that he owed defendants drug money on the day he and Coss were
murdered; (2) the defendants advanced inconsistent alibis and could not
account for their whereabouts at the time of the murders; and (3) the
testimony of Peter Russo-that while inmates at the Madison County Jail,
Luis Todd told him (a) that Luis Cordoba had directed Raul Cordoba and
Luis Todd to collect a drug debt, (b) that Raul Cordoba argued with Jason
Jacobs as Luis Todd acted as a lookout and grabbed Coss when she walked
in, and (c) that Raul Cordoba shot and killed both Jacobs and Coss-was
"more likely than not credible." United States v. Murgas,
31 F. Supp.2d at 254-57.
The Government pressed the court to apply upward departures or
adjustments under the Guidelines. See U.S.S.G. § 2D1.1(d)(1) and U.S.S.G.
§ 5K2.1, for Raul Cordoba and Luis Cordoba and Luis Todd,
respectively. The court, however, determined that before the alleged
murders could trigger the requested sentence enhancements, the Government
must prove each defendant's involvement by clear and convincing evidence.
The court found that while the Government catalogued some evidence that
defendants were responsible for the murders of Jacobs and Coss, it
nonetheless failed to meet its burden under the clear and convincing
standard. The court sentenced Raul Cordoba to 151 months' imprisonment to
be followed by supervised release for five years, Luis Todd to 188
months' imprisonment to be followed by supervised release for five years,
and Luis Cordoba to 262 months' imprisonment to be followed by supervised
release for five years.
On appeal, the Court of Appeals for the Second Circuit vacated the
sentences and remanded for re-sentencing holding that the court had
failed to apply the appropriate standard to determine whether the
adjustment specified in U.S.S.G. § 2D1.1(d)(1), for Raul Cordoba, and
the departure specified in § 5K2.1, for Luis Cordoba and Luis Todd,
and in the alternative for Raul Cordoba, were applicable.
On October 20, 2003, the court held a sentencing hearing. See
United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1993)
("When a sentence has been vacated, the defendant is placed in the same
position as if he had never been sentenced."). At the hearing, the
government called two witnesses to testify and moved to admit seven
exhibits into evidence. Defendants objected to one of the exhibits, and
the court received six of the exhibits and reserved decision as to the
lone challenged exhibit.
I. The Applicable Standard and Burden of Proof: Preponderance
of the Evidence As prescribed by the Second Circuit's mandate, at sentencing, the court
is to "apply the preponderance [of the evidence] standard to determine
whether the adjustment specified in U.S.S.G. § 2D1.1(d)(1) (for Raul
Cordoba) and the departure specified in § 5K2.1 (for Luis Cordoba and
Luis Todd, and, in the alternative, for Raul Cordoba) are applicable."
Cordoba-Murgas, 233 F.3d at 710. Therefore, with respect to
Raul Cordoba and the applicability of U.S.S.G. § 2D1.1(d)(1), the
court's task is to determine whether under the preponderance of the
evidence standard "a victim was killed under circumstances that would
constitute murder under 18 U.S.C. § 1111." Id. at 709.
U.S.S.G. § 2D1.1(d)(1) states: "[i]f a victim was killed under
circumstances that would constitute murder under 18 U.S.C. § 1111 had
such killing taken place within the territorial or maritime jurisdiction
of the United States, apply § 2A1.1 (First Degree Murder)."*fn1
Title 18 U.S.C. § 1111 states in pertinent part,
Murder is the unlawful killing of a human being
with malice aforethought. Every murder perpetrated
by poison, lying in wait, or any other kind of
willful, deliberate, malicious, and premeditated
killing; or committed in the perpetration of, or
attempt to perpetrate, any arson, escape, murder,
kidnapping, treason, espionage, sabotage,
aggravated sexual abuse or sexual abuse, child
abuse, burglary, or robbery; or perpetrated as
part of a pattern or practice of assault or
torture against a child or children; or
perpetrated from a premeditated design unlawfully
and maliciously to effect the death of any human
being other than him who is killed, is murder in
the first degree. Any other murder is murder in
the second degree.
With respect to Luis Cordoba and Luis Todd and the applicability of
U.S.S.G. § 5K2.1, the court's task is to determine under the
preponderance of the evidence standard "whether death resulted."*fn2
Cordoba-Murgas, 233 F.3d at 710.
II. Evidence Considered In order to make these determinations, the court has applied the
preponderance of the evidence standard to all of the evidence submitted
in relation to the murders of Jacobs and Coss. The court has reconsidered
its previous evidentiary findings as summarized above and considered the
testimony and sworn statements of the two witnesses, Natalie Todd and
Bernardino Cordero, called by the Government at the most recent
sentencing hearing, as well as the summary of Carlos Galvez-Falconi's
interview conducted by Investigator Lyle Baxter of the Oneida County
Major Crimes Unit and Investigator Robert Masucci of the Rome Police
Department. The defendants objected to the interview summary and asked
the court to reject its admission. Having previously reserved decision as
to defendants' objection, the court now overrules their objection and
admits the interview summary into evidence. Nevertheless, the court finds
that the additional testimony and evidence failed to add any further
credible support to the Government's assertion that defendants were
involved in the murders of Jacobs and Coss.*fn3
As the court previously observed, and with a degree of clairvoyance it
might add, if the standard of proof were beyond a reasonable doubt, there
was "very little" upon which a trial jury could convict "any one of the three [defendants]. . . . If the
standard of proof [were] the much lower standard, that is by a fair
preponderance of the evidence, [defendants] might easily get convicted,
because that means just slightly over fifty percent. . . . [Defendants]
may [at] some time in the future be faced ...