The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
The government has moved that, at sentence, Defendant Raymond Dacosta be found to be "a manager or supervisor" of a conspiracy that "involved five or more participants or was otherwise extensive," U.S.S.G. § 3B1.1(b), and therefore be denied the benefit of the so-called "safety valve provision" (the "Broderick provision") of 18 U.S.C. § 3553(f).*fn1
On August 27, 2009, the Court held a Fatico hearing on the issue. Post-trial briefs were to be submitted by September 25, 2009, but defense counsel's brief was delayed because of illness.
As indicated in the pre-sentence report and established by the testimony of Troy Ingram at the Fatico hearing, five people have pled guilty as a part of the Bronx conspiracy of which the Defendant was a participant: the Defendant; Valerie Harris, his wife, who kept the financial records of his receipts; Troy Ingram; Takile Ingram; and Omar McLean. At the Fatico hearing, Ingram also identified as participants a supplier of the Defendant, a person named "Jesus," a person named "Pecker," and a California supplier.
The Defendant's written plea agreement, signed by him, acknowledged that he conspired to distribute more than four hundred kilograms of marijuana. Plea Agreement (Dec. 11, 2008). During his plea allocution on December 12, 2008, he admitted that the conspiracy distributed or intended to distribute "[a]bout a thousand pounds, a little more." Transcript of the Dec. 11, 2008 Hearing ("Dec. 11 Tr.") at 24.
The witness Troy Ingram testified that he and his brother Takile Ingram and his cousin Omar McLean were supplied with marijuana by the Defendant, that the Defendant's wife Valerie kept the Defendant's books and marijuana receipts, and that the Defendant received marijuana directly from "Jesus" and "Pecker" (the Defendant's brother-in-law), and a source in California. Transcript of the Aug. 27, 2009 Hearing ("Aug. 27 Tr.") at 12-13, 16, 46, 51, 55-56.
Furthermore, Troy Ingram's testimony made clear that he was supervised by the Defendant, whom he called "Indian." See United States v. Zicchetello, 208 F.3d 72, 107 (2d Cir. 2000) ("Contrary to [defendants'] contentions, they are subject to the [supervisory role] enhancement even if they each managed only one other participant, not five."). The Defendant kept a stash of marijuana at Troy Ingram's apartment and instructed him when to deliver it to customers or let customers pick it up. Aug. 27 Tr. at 15, 24, 33, 57. Troy Ingram could not sell it without first calling the Defendant to get instructions. Id. at 33. Nor could Troy Ingram buy from or contact the Defendant's suppliers. Id. at 12-13, 56. Troy Ingram testified that he also helped the Defendant weigh and package the marijuana. Id. at 14. Troy Ingram also testified that he rode with the Defendant when the Defendant was picking up marijuana from his suppliers and when he made deliveries to his customers. Id. at 15.
By the foregoing proof, the government has shown by more than a preponderance of the evidence that the Defendant was a manager or a supervisor in a conspiracy involving five or more participants and is not eligible for the so-called "safety valve" relief. U.S.S.G. § 3B1.1(b); 18 U.S.C. § 3553(f)(4).*fn2