U.S. v. Ayala, S8 97 CR 786 SAS.
| Decision Date | 26 July 1999 |
| Docket Number | No. S8 97 CR 786 SAS.,S8 97 CR 786 SAS. |
| Citation | 75 F.Supp.2d 126 |
| Parties | UNITED STATES of America, v. Gregory AYALA, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Katherine Baird, Robin Baker, Mary Mulligan, Assistant United States Attorneys, New York City, for U.S.
Marc Fernich, New York City, for Defendant.
After a three-month trial, defendant Gregory Ayala was found guilty of, inter alia, participating in a Racketeer Influenced and Corrupt Organization ("RICO") enterprise known as Power Rules. Seventeen or more defendants were charged with participating in this enterprise. Many of the defendants pled guilty; several entered into cooperation agreements. Ayala, together with six other defendants, were tried in a joint trial. One of the key allegations against the remaining defendants is that they had attempted to kill their co-defendant Gregory Ayala.
During the relevant time period, Ayala was associated with the Avenue St. John Boys, an organization involved in the distribution of heroin and crack cocaine. During 1994-1995, Ayala joined forces with Miguel Guzman, a co-defendant and the leader of Power Rules. That relationship broke down, however, when Ayala began dealing directly with Guzman's heroin supplier, "Viejo." A war ensued between Guzman's Power Rules gang and the Avenue St. John Boys, which continued its drug distribution activities independent of Power Rules. It is undisputed that the Power Rules gang sought to kill Gregory Ayala.
Defendant was convicted at trial of all four counts charged in the indictment. These counts include: (1) participating in a RICO enterprise (Count 1), the substantive RICO count, (2) conspiracy to participate in a racketeering enterprise (Count 2), the RICO conspiracy count, (3) conspiracy to possess with intent to distribute heroin (Count 29); and (4) conspiracy to possess with intent to distribute crack (Count 31). The RICO conspiracy conviction was based on the following predicate racketeering acts which the jury found were proven: (1) conspiracy to distribute heroin and the distribution of heroin (Acts 17A and B) and (2) conspiracy to distribute crack and the distribution of crack (Acts 19A and B).
Pursuant to United States Sentencing Guideline ("U.S.S.G.") § 3D1.2, all counts involving substantially the same harm are grouped together into a single group. The guideline for RICO convictions is found in § 2E1.1. This section provides that the base offense level is the greater of either 19 or that applicable to the underlying racketeering activity. Here, that activity is the heroin and crack distribution, which covers the same conduct as the convictions on the remaining counts. The base offense level for the single group made up of the RICO counts and the narcotics counts is 38 pursuant to § 2D1.1(c)(2), based on the findings set forth below.
Several issues involving the setting of the offense level and departure motions are in dispute. In addition to extensive briefing, a Fatico hearing was held to resolve these issues.
C. Should there be an enhancement for Ayala's role in the offense pursuant to U.S.S.G. § 3B1.1? If so, what should that enhancement be?
D. Should certain conduct, including uncharged acts of assault and attempted murder, be included as relevant conduct pursuant to U.S.S.G. § 1B1.3?
A. Should there be an Upward or Horizontal Departure, pursuant to U.S.S.G. § 4A1.3, because Ayala's Criminal History Category does not adequately reflect the seriousness of his past criminal conduct or the likelihood that he will commit other crimes?
B. Should there be a Downward Departure, pursuant to U.S.S.G. § 5K2.0, for Extraordinary Family Circumstances?
C. Should there be a Downward Departure, pursuant to U.S.S.G. § 5K2.0, for a combination of unique circumstances, including: extraordinary family circumstances, multiple adjustments found by a preponderance of the evidence, the quantity of drugs fails to account for the quantity/time factor, extreme financial pressure and lack of sophistication, Congress' rejection of the Sentencing Commission's recommendation to eliminate or reduce the crack/powder cocaine sentencing disparity, and a straight Guidelines sentence will be disproportionate to that received by similar offenders nationwide?
The base offense level in a drug conviction is set by determining the quantity of drugs in which a defendant trafficked, United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir.1993), or in the case of a conspiracy, the amount in which his codefendants trafficked if that amount was reasonably foreseeable to the defendant. U.S.S.G. § 1B1.3(a)(1)(B). See also United States v. Santiago, 906 F.2d 867, 871-73 (2d Cir.1990). The quantity of drugs is a fact question for the district court, subject to a clearly erroneous standard of review. United States v. Hazut, 140 F.3d 187, 190 (2d Cir.1998). It is the Government's burden to establish the drug quantity by a preponderance of the evidence. See United States v. Moreno, 98 CR 1293, 1999 WL 415174, at *5 (2d Cir. June 22, 1999); United States v. Prince, 110 F.3d 921, 925 (2d Cir.1997). The Guidelines provide that where "there is no drug seizure ... the court shall approximate the quantity of the controlled substance." U.S.S.G. § 2D1.1, Application Note 12. In doing so, the court is permitted to rely on any information it knows about. United States v. Jones, 30 F.3d 276, 286 (2d Cir.1994).
To begin with, the charged heroin conspiracy ran from 1995 through 1996 and the charged crack conspiracy ran from 1986 through 1997. The charged heroin conspiracy states that Miguel Guzman, Ayala, Angel Santiago and Daniel Ortiz, together with other co-conspirators, conspired to distribute a kilogram or more of heroin. The charged crack conspiracy states that Guzman, Rolando Lorenzo, Ayala, Edwin Rivera, Santiago, Samuel James Smith, Pablo Villela, Ortiz, together with other co-conspirators, conspired to distribute more than 50 grams of cocaine base. Thus, with respect to the narcotics counts, the charged conspiracies only include the conduct that Ayala undertook together with the individuals named in the indictment. The evidence at trial and at the Fatico hearing revealed that Ayala only participated in these conspiracies from sometime in 1994 throughout 1995. By January 1996, Ayala was no longer a member of these conspiracies. Any evidence relating to Ayala's drug distribution within this time frame is part of the offense of conviction. Evidence that Ayala was involved in a different and separate conspiracy to distribute drugs can only be considered under a relevant conduct analysis. To hold otherwise would make these counts duplicitous — charging more than one conspiracy in a single conspiracy count. See United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992).
In order to determine whether evidence of Ayala's drug dealing, separate from the offense of conviction, should be considered, the Court is required to undertake a relevant conduct analysis. U.S.S.G. § 1B1.3(a)(1)-(4) sets forth the permissible boundaries of relevant uncharged conduct. Subsection (1) refers to all acts of the defendant and foreseeable acts of co-defendants that occurred "during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." Subsection (2) refers to "all acts that were part of the same course of conduct or common scheme or plan as the offense of conviction." Subsection (3) refers to harm that resulted from the acts and omissions described in the previous two sections and all harm that was the object of such acts and omissions. Finally, subsection (4) refers to any other information specified in the applicable guideline.
The most relevant subsections are (1) and (2). Specifically, § 1B1.3(a)(1)(A) requires that "in the case of a jointly undertaken criminal activity, all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity" shall be considered so long as the activity occurred during the commission of the offense of conviction. Section 1B1.3(a)(2) directs the court to consider all acts of a defendant that were part of the same course of conduct or common scheme or plan as the offense of conviction. Thus, during the offense of conviction, Ayala is responsible not only for his own drug dealing, but also for the reasonably foreseeable conduct of his co-conspirators during that time. In addition, he is responsible for drug dealing before and after the offense of conviction, if it was part of the same course of conduct or of a common scheme or plan as the offense of conviction.
The evidence reveals that Ayala was involved in drug dealing both before and after the offense of conviction. Prior to joining forces with Guzman, he maintained two drug dealing spots, one on Avenue St. John and one at the Hunts Point market. After he ceased doing business with Guzman, he continued selling drugs on Avenue St. John. I conclude that both the pre-offense and post-offense drug dealing are relevant conduct under § 1B1.3(a)(2). During each time period, Ayala distributed heroin and crack. He always operated out of the same location (Avenue St. John) and always used the same employees — Harold and HecTec. He may even have used the same source of the drugs. In addition, I conclude that Ayala is responsible for the total amount of drugs distributed by the Power Rules drug distribution conspiracy throughout 1995. There is no doubt that Ayala...
To continue reading
Request your trial