U.S. v. Candito, 295
| Citation | 892 F.2d 182 |
| Decision Date | 14 December 1989 |
| Docket Number | D,No. 295,295 |
| Parties | UNITED STATES of America, Appellee, v. Joseph CANDITO, Appellant. ocket 89-1230. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Joseph B. Burns, Hartford, Conn. (Austin J. McGuigan, Hoberman & Pollack, P.C., of counsel), for appellant.
Denis M. King, Asst. U.S. Atty. (Stanley A. Twardy, Jr., U.S. Atty. D. Conn., of counsel), for appellee.
Before OAKES, Chief Judge, KEARSE and ALTIMARI, Circuit Judges.
Joseph Candito was convicted by a jury in the United States District Court for the District of Connecticut on January 26, 1989, for conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846 (1982), and for possession with intent to distribute and distribution of cocaine within one thousand feet of a public elementary school, 21 U.S.C. §§ 841(a)(1), 845a(a) (1982 & Supp. V 1987), and 18 U.S.C. § 2 (1982). He was sentenced by Judge Warren W. Eginton to 168 months imprisonment pursuant to the Sentencing Guidelines. See generally United States Sentencing Commission, Guidelines Manual (Oct. 1987) (hereinafter "Guideline" or "Guidelines").
Candito raises two claims on appeal. First, he challenges the district court's calculation of the Guideline range applicable to his conduct. In brief, the district court found that Candito was involved in a cocaine distribution conspiracy during a period in which the conspiracy made or attempted to make four separate cocaine sales, with those transactions either known to Candito or reasonably foreseeable from the conspiracy. The district court thus calculated the Guideline range for Candito's sentence based upon the amounts of cocaine involved in those four transactions. Candito contends that the district court should have taken account of only one of the transactions in sentencing him. Second, Candito argues that the district court violated the Due Process Clause by making its findings regarding Candito's involvement in the conspiracy during the four separate transactions by the preponderance of the evidence standard instead of the beyond reasonable doubt standard.
We affirm.
The charges against Candito stemmed from what the Government alleged was a cocaine distribution conspiracy stretching from October 1987 until September 1988 and involving five players: Candito, Richard Terico, Theodore Farfaglia, John DeFelice, and Thomas Pierro.
The first event in this conspiracy transpired on October 2, 1987, when two undercover agents, Officer William Chase of the Connecticut Statewide Narcotics Task Force and Special Agent Grayling Williams of the Drug Enforcement Administration, arranged to purchase 125 grams of cocaine from Terico. That evening, Farfaglia delivered 113.88 grams to the agents, instead of the 125 grams upon which the agents and Terico had agreed earlier that day.
Several months later, on December 16, 1987, Officer Chase and Special Agent Williams met with Terico, DeFelice, and Candito at the Howard Johnson's Motor Lodge in Stamford, Connecticut. DeFelice told the agents that the October 2, 1987, transaction was not the first instance in which Farfaglia had skimmed cocaine. Consequently, DeFelice stated, Farfaglia no longer would be working for Terico, and, instead, DeFelice and Candito would take his place. The discussion that ensued at the Howard Johnson's indicated that Candito was well aware of Farfaglia's prior dealings and his propensity to short-change customers.
DeFelice also indicated that he and Candito had been involved in similar narcotics dealings in cooperation with Terico. He assured Williams, He then added, "[Terico] should have introduced us before...."
While at the Howard Johnson's on December 16, 1987, the agents arranged to buy 125 grams of cocaine from DeFelice. On December 22, 1987, Officer Chase, Special Agent Williams, DeFelice, and Candito met at the Nineteenth Hole Restaurant in Stamford, Connecticut, to consummate the transaction. Pursuant to DeFelice's suggestion, the four completed the deal in a parking lot across the street from the restaurant. The parking lot was within one thousand feet of the Westover Elementary School.
The next month, on January 20, 1988, the agents met with Candito and DeFelice at the Nineteenth Hole Restaurant in Stamford. At this time, DeFelice told the agents that he and Candito desired both to make amends for Farfaglia's failure to deliver the full amount of agreed-upon cocaine during the October 2, 1987, transaction and to forge a more comfortable future relationship with them:
On March 25, 1988, the agents met Candito and DeFelice at a party in Darien, Connecticut. At the party, Candito furnished the agents a beeper number at which the agents could reach either him or DeFelice.
Several months later, on July 14, 1988, Officer Chase and Special Agent Williams purchased 154.2 grams of cocaine at a rest area on Interstate Route 95 in Darien. In delivering the cocaine, DeFelice was accompanied by the final defendant, Pierro, but not by Candito. Special Agent Williams inquired as to Candito's role in the distribution scheme. DeFelice stated that Candito continued to be involved in the distribution ring:
The final transaction occurred during early September 1988. On September 1, 1988, Special Agent Williams negotiated by telephone with DeFelice for a purchase of three kilograms of cocaine. Candito apparently was present with DeFelice at the time. On one occasion, DeFelice could be heard commenting to Candito that Special Agent Williams had been unable to make contact through a phone number provided by DeFelice. Additionally, when discussing with Special Agent Williams the timing of the proposed sale, DeFelice was talking at the same time with Candito regarding their plans to travel to Florida on an upcoming weekend.
On the morning of September 7, 1988, DeFelice and Special Agent Williams arranged to meet at a McDonald's restaurant on Interstate Route 95 in Darien a little after noon that same day. DeFelice said that he could deliver one kilogram in the afternoon and the other two kilograms later that evening. DeFelice told Special Agent Williams that he would be accompanied by Candito at the afternoon purchase. Candito did not appear that afternoon, and DeFelice complained, After DeFelice turned over the kilogram, he was arrested.
Candito was arrested the same day. At the time of his arrest, he was carrying $2,720 in cash, slips of paper bearing various beeper numbers (including that of Special Agent Williams), the business card of a representative of a paging service, the business card of a person who had rented an apartment to DeFelice, and a slip of paper apparently listing amounts owed by particular persons to DeFelice and Candito.
The district court calculated Candito's Guideline sentence as follows: It categorized Candito's offense under Guideline § 2D1.1(a)(3), which covers narcotics trafficking. Pursuant to § 2D1.1(a)(3), it then calculated the quantity of narcotics involved in Candito's conduct. The district court concluded that Candito both belonged to the conspiracy between October 2, 1987, and September 7, 1988, and could be held responsible for the four transactions occurring during that time. The October 2, 1987, transaction amounted to 113.88 grams. Although the December 22, 1987, transaction involved 124 grams, this amount was doubled to 248 grams pursuant to Guideline § 2D1.3(a)(2)(B) (Supp. Jan. 15, 1988), because the transaction occurred within one thousand feet of a schoolyard. 1 The July 14, 1988, transaction Next, under Guideline § 4A1.1 the district court calculated Candito's criminal history, which amounted to 31 criminal history points. Under Guideline Ch. 5, Part A, Candito's 31 criminal history points placed him into criminal history...
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