936 F.2d 23 (1st Cir. 1991), 90-1920, United States v. Marino

Docket Nº:90-1920, 90-1953.
Citation:936 F.2d 23
Party Name:UNITED STATES of America, Appellee, v. Nicholas R. MARINO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Peter R. CHABOT, Defendant, Appellant.
Case Date:June 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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936 F.2d 23 (1st Cir. 1991)

UNITED STATES of America, Appellee,

v.

Nicholas R. MARINO, Defendant, Appellant.

UNITED STATES of America, Appellee,

v.

Peter R. CHABOT, Defendant, Appellant.

Nos. 90-1920, 90-1953.

United States Court of Appeals, First Circuit

June 18, 1991

Heard April 1, 1991.

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Samuel A. Olevson, Providence, R.I., for defendant, appellant Nicholas R. Marino.

Jane Climenko Gottschalk, Cambridge, Mass., for defendant, appellant Peter R. Chabot.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and James H. Leavey, Asst. U.S. Atty., were on brief, Providence, R.I., for the U.S.

Before CAMPBELL, SELYA and CYR, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

After a "reverse sting" operation in Rhode Island in December 1989, Nicholas R. Marino and Peter Chabot were indicted for drug trafficking offenses. In Count I, Marino, Chabot, and two codefendants not involved in this appeal (David Zielinski and David Esten), were charged with conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. Sec. 846. In Count II, Chabot was charged (along with Zielinski and Esten), with attempt to possess with intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. Sec. 841. In Count III, Marino alone was charged with attempt to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. Sec. 841.

Chabot pleaded guilty to Counts I and II and his pleas were accepted. Prior to sentencing, however, Chabot moved to withdraw his guilty pleas. Marino pleaded guilty to Count III of the indictment, which had been amended to delete all references to the quantity of marijuana involved. 1 In return for Marino's plea, the government agreed to dismiss Count I of the indictment against him at the time of sentencing.

A presentence evidentiary hearing was held on July 13, 1990, regarding both Chabot's motion to withdraw his plea and the quantity of marijuana Marino had sought to purchase. After this hearing, the district court denied Chabot's motion to withdraw his plea. The court also found, for purposes of sentencing, that Marino had attempted to procure more than 100 kilograms of marijuana.

At sentencing, Chabot's base offense level was calculated to be 34. The district court granted Chabot a two-level downward adjustment for acceptance of responsibility, but readjusted upward two levels, finding that Chabot had obstructed justice at the July 13 hearing by falsely denying involvement in the conspiracy. Chabot was sentenced to 165 months imprisonment.

Marino's base offense level was calculated to be 26. The court added a two-level upward adjustment for obstruction of justice, finding that Marino had prevaricated at the presentence evidentiary hearing and

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in the statement of acceptance of responsibility when he said that he had only sought to purchase one pound of marijuana. The court refused to allow a two-level downward adjustment for acceptance of responsibility. It also denied Marino's request for a downward departure based on his military record in Vietnam. Marino was sentenced to 82 months imprisonment.

On appeal, Chabot contends that the district court erred in, (1) denying his motion to withdraw his guilty plea, in which he contended that the government's conduct in the "sting" operation was so outrageous as to deny him due process of law; and (2) increasing Chabot's offense level for obstruction of justice. Marino argues on appeal that the district court erred in, (1) determining that he attempted to possess more than one pound of marijuana; (2) adjusting his offense level upward for obstruction of justice; (3) refusing to grant a downward adjustment for acceptance of responsibility; (4) refusing to grant a downward departure on account of Marino's military record.

We affirm the convictions and the sentences of both Chabot and Marino.

Background

The drug trafficking scheme at issue was rooted in a Polk County, Florida Sheriff's Department undercover investigation entitled "Operation Corinthian." At the July 13, 1990 evidentiary hearing, Ennis Hornsby, Polk County, Florida Deputy Sheriff, testified extensively. Also testifying were Chabot, Marino, and their codefendant, David Zielinski.

Hornsby explained that the Polk County sheriffs imported 5,900 pounds of Colombian marijuana and acted as a storage and transportation facility for certain Colombians. The Colombians, having arranged the purchase and negotiated a price, would send their customers to the undercover sheriffs to exchange the money for the marijuana. On November 16, 1989, the sheriffs delivered 18 bales (1,000-1,100 pounds) of marijuana to Chabot and another individual, and received payment of $84,990 for the storage and transportation of the marijuana.

To avoid compromising the undercover operation, the Florida authorities did not arrest Chabot and his accomplice immediately after they left the warehouse with the marijuana. Instead, the authorities waited until the buyers drove off in Chabot's truck, and then staged an intentional collision with the truck. This enabled officers investigating the accident to "discover" the marijuana, and arrest and charge Chabot and his accomplice, without leading the latter to suspect that their prior purchase of the drug was from undercover agents. Barry Walton, according to Sheriff Hornsby an undercover "associate" (presumably an informant) with the Polk County Sheriff's Department, posted bail for Chabot. Chabot then recontacted the undercover sheriffs to arrange a subsequent purchase of 4,000 pounds of marijuana for delivery in Rhode Island. Sheriff Hornsby testified that Chabot left a 1966 Corvette as collateral for this, second, marijuana deal.

Hornsby testified that the Polk County Sheriff's Department then contacted the Drug Enforcement Administration (DEA) in Providence, Rhode Island, and that arrangements were made to fly the 4,000 pounds of marijuana from Florida to Rhode Island. Hornsby and another sheriff ("Captain Cross," referred to under cover as "Sam"), now working with the DEA, met to consummate the transaction on December 18 and 19, 1989, with Chabot, codefendant David Zielinski, and, briefly, Marino, at a Howard Johnson's motel in Warwick, Rhode Island. These meetings were videotaped.

At the taped first December 18 meeting, Chabot told Hornsby (referred to under cover as "J.W."), that he had $78,000 in his friend's truck, and needed 50 pounds of marijuana to show his customers, and would then do two deals of 500 pounds and two deals of 1,000 pounds. 2 He said he

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would pay $70,000 but needed $5,000 for his lawyer in Florida, and $3,000 to "maneuver." Chabot also stated: "Nick Marino's buying, Whitey Boger's buying, and I'm taking care of the rest." Hornsby arranged that Chabot would show the marijuana to his customers at the Howard Johnson's room.

At the taped second December 18 meeting, Chabot brought Zielinski, who inspected the marijuana. Zielinski said he had $80,000 sitting in his van, and said: "I have one guy that will take 500, it's only down the road, 20 minutes, 15 minutes, that's a 500, if he likes it, but I have to show him something." 3 Zielinski said he would call his friend to inspect a bale of the marijuana at the Howard Johnson's. In the third December 18 meeting shortly thereafter, Zielinski was followed into the room by Marino. On the videotape of this third meeting, Marino picked up the bale of marijuana and went out of sight of the camera. At the July 13 hearing, Hornsby testified:

[Marino] walked over to the bed, picked [the bale] up, there was not enough light there so he moved it over to the table where there was a lamp, and after he got over he opened it up, looked inside and said, the only thing he said while he was in the room was "Good" and out the door he went.

Zielinski also testified at the July 13 hearing that Marino said in the room, "I like the way it's packaged."

In the third meeting the following day, December 19, Zielinski brought $70,000 cash to the motel room in which the undercover agents and Chabot were present. The $70,000 was to be a security deposit for ten bales, or approximately 500 pounds, of marijuana. At this time, Chabot, Zielinski, and their driver, David Esten, were arrested. Marino was later arrested at his home.

I.

Chabot contends that the district court should have permitted him to withdraw his guilty plea. Fed.R.Crim.P. 32(d) provides that the court may permit the withdrawal of a plea prior to sentencing "upon a showing by the defendant of any fair and just reason." We will set aside the district court's findings as to whether or not a sufficient showing was made only where the "defendant unequivocally shows an abuse of discretion." United States v. Ramos, 810 F.2d 308, 311 (1st Cir.1987); see also United States v. Allard, 926 F.2d 1237, 1243-44 (1st Cir.1991). We find no abuse of discretion here.

Chabot urges that he should have been allowed to withdraw his guilty plea as the...

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