347 F.3d 441 (2nd Cir. 2003), 02-1344, U.S. v. Cotto

Docket Nº:02-1344
Citation:347 F.3d 441
Party Name:U.S. v. Cotto
Case Date:October 23, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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347 F.3d 441 (2nd Cir. 2003)

UNITED STATES of America, Appellant,


Carmen COTTO, a/k/a "CC," Defendant-Appellee,

Frank Estrada, a/k/a "Terminator," a/k/a "Big Dog," a/k/a "Frankie Estrada," a/k/a "Mustard"; Edward Estrada, a/k/a "French Fry," a/k/a "Fry"; Isaias Soler, a/k/a "Eso"; Nelson Carrasquillo; William Rodriguez, a/k/a "Billy Rodriguez," a/k/a "William Gomez," a/k/a "Billy Gomez," a/k/a "Billy the Kid"; Felix Dejesus, a/k/a "Dino"; Charles Dejesus, a/k/a "Chino"; Edward Lawhorn, a/k/a "Fat Boy"; Yamarr Shipman, a/k/a "Country," a/k/a "Mar"; Michael Hilliard, a/k/a "Mizzy"; Pablito Cotto; Rosario Cotto, a/k/a "Sato"; Benito Rosario; Ricardo Rosario, a/k/a "Q"; Jermaine Jenkins, a/k/a "Fats"; Makene Jacobs, a/k/a "Madee"; Joseph Butler, a/k/a "Pee Wee"; Viviana Jimenez; Kelvin Vereen, a/k/a "Nino"; Felipe Santana, a/k/a "Omar Soto"; Tamarius Maner, a/k/a "Trigger"; Gloria Vargas; Hector Cruz, a/k/a "Casper"; Hector Gonzalez, a/k/a "June Bug"; Enrique Martinez, a/k/a "Ricky Zapata," Defendants.

No. 02-1344.

United States Court of Appeals, Second Circuit

October 23, 2003.

Argued: Aug. 7, 2003.

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[Copyrighted Material Omitted]

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James I. Glasser, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney for the District of Connecticut, Jeffrey A. Meyer, Assistant United States Attorney, on the brief), New Haven, CT, for appellant.

Jeremy N. Weingast, Hartford, CT, for defendant-appellee.

Before: JACOBS and SOTOMAYOR, Circuit Judges. [*]

SOTOMAYOR, Circuit Judge.

The United States of America appeals from the judgment of the District Court for the District of Connecticut (Stefan R. Underhill, Judge) entered May 3, 2002, sentencing defendant-appellee Carmen Cotto to twenty-four months' imprisonment upon a guilty plea to one count of conspiracy to engage in witness tampering/obstruction of justice in violation of 18 U.S.C. §§ 371 and 1512(b)(3). The district court granted a downward departure from the statutory maximum of sixty months' imprisonment pursuant to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 5K2.12. 1 Section 5K2.12 permits a downward departure from the applicable Guidelines range "[i]f the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense." U.S.S.G. § 5K2.12. The district court found that Cotto conspired with codefendant Isaias Soler to obstruct justice because she feared for her safety if she refused. The court also found that Cotto's fear was based not on any specific threat made bye Soler, but rather on her knowledge of him as "someone who is frequently engaged in criminal activity and who has murdered someone in [her] presence." We hold that a generalized fear based solely on the defendant's knowledge of a third party's criminal history is insufficient to constitute serious coercion or duress under § 5K2.12. We therefore vacate the judgment of the district court and remand for resentencing.


On January 3, 2002, Carmen Cotto pleaded guilty to one count of conspiracy to engage in witness tampering/obstruction of justice in violation of 18 U.S.C.§§ 371 and 1512(b)(3). The charging indictment detailed a larger criminal enterprise involving twenty-one other defendants, accusing them of multiple narcotics conspiracies, murder in furtherance of a racketeering enterprise, assault, firearms crimes, and bank fraud. For her part, Cotto admitted to attempting, along with her friend and codefendant Isaias Soler, to conceal Soler's role in the murder of Raphael Garcia, another friend, by persuading Amelia Perreira to identify her boyfriend, David Perez, as Garcia's murderer.

On the night of August 22, 1998, Cotto was socializing at a Bridgeport, Connecticut nightclub with Garcia and two other women. In the early morning hours of August 23, the four of them left the nightclub in a car leased to Cotto. Another car, parked so as to block the street, forced Cotto's car to a halt. According to Cotto, Garcia began yelling for the women to run from the car while he reached for a gun. The women ran from the vehicle while Soler, later identified as the driver of the

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blocking car, fired several shots at Garcia, killing him.

Upon arriving at the scene, the police questioned Cotto and the other two women, all of whom denied knowing the identity of the shooter (although Cotto later admitted that she knew Soler was the shooter at the time of the shooting). The police also searched Cotto's vehicle for evidence, finding two plastic bags of marijuana and a loaded Raven .25 caliber pistol with an altered serial number, concealed in a green make-up case placed in the center console. Cotto admitted that the make-up case was hers. 2

Thereafter, codefendants Soler and Frank Estrada agreed to frame someone for the murder of Garcia. On September 17, 1998, Cotto joined this conspiracy. According to Cotto, Amelia Perreira asked Cotto to set up a meeting with Soler to obtain bail money for Perez, who had been arrested that day on drug-related charges. Cotto brought Perreira to meet Soler and, together with Soler, attempted to persuade Perreira to assist the conspirators in disseminating the story that Perez had killed Garcia.

Cotto pleaded guilty to one count of conspiracy to obstruct justice, and the district court sentenced her on April 29, 2002. 3 The district court found that Cotto's applicable Guidelines range was 87 to 108 months, but her term of imprisonment was limited to the statutory maximum of sixty months. See 18 U.S.C. § 371; U.S.S.G. § 5G1.1(a). The only contested issue at sentencing was Cotto's...

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