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U.S. v. MURGAS

May 26, 2004.

UNITED STATES OF AMERICA
v.
LUIS A. MURGAS, a/k/a Big Louie, a/k/a/ Barosa; LUIS E. CORDOBA-MURGAS, a/k/a/ Negro, a/k/a Carlos; LUIS ANTONIO TODD-MURGAS, a/k/a Little Louie; CESAR A. TODD-MURGAS, a/k/a Tony, a/k/a Pepita; RAUL ANTONIO CORDOBA-MURGAS, a/k/a Strawberry; RUBEN A. TODD-MURGAS; VINCENTE ROGERS, a/k/a Santos; GILBERTO ARCE, a/k/a Luigi Santiago; JAYSON JONES; DENNIS J. CALANDRA, JR.; TIFFANY GAUDINOT; TRICIA IRVING, Defendants



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").

  BACKGROUND

  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.

  DISCUSSION

 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

 III. Sentences

  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 ...


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