U.S. v. Farah

• Decision Date: 21 April 1993
• Docket Number: 1017,D,Nos. 1016,s. 1016
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. Elias FARAH, Defendant-Appellant-Cross-Appellee. ocket 89-1477, 89-1533.
• Court: U.S. Court of Appeals — Second Circuit

Page 1065

991 F.2d 1065

UNITED STATES of America, Appellee-Cross-Appellant, v. Elias FARAH, Defendant-Appellant-Cross-Appellee.

Nos. 1016, 1017, Docket 89-1477, 89-1533.

United States Court of Appeals, Second Circuit.

Argued March 10, 1993.

Decided April 21, 1993.

Cheryl L. Pollak, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty. E.D.N.Y., Emily Berger, Asst. U.S. Atty., Brooklyn, NY, on the brief), for appellee-cross-appellant.

Philip Katowitz, New York City, for defendant-appellant-cross-appellee.

Before TIMBERS, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Elias Farah appeals from a final judgment entered in the United States District Court for the Eastern District of New York convicting him, following his plea of guilty before Raymond J. Dearie, Judge, on one count of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i) (1988); and one count of structuring monetary transactions, in violation of 31 U.S.C. §§ 5322(b) and 5324(1) (1988). He was sentenced principally to 188 months' imprisonment on the narcotics count and 60 months' imprisonment, to be served concurrently, on the money-laundering count, to be followed by a four-year term of supervised release. On appeal, Farah contends principally that, in calculating his sentence under the applicable federal Sentencing Guidelines ("Guidelines"), the district court erred in increasing his offense level on account of his role in the narcotics offense. On its cross-appeal, the government contends that the district court erred in increasing Farah's offense level on that account by only two steps rather than three. For the reasons below, we agree with the government, and we accordingly vacate the judgment and remand for resentencing.

I. BACKGROUND

The present prosecution charged Farah and others, several of whom also pleaded guilty to various counts and whose appeals have been disposed of separately, with operating a large-scale heroin importation, distribution, and money-laundering organization. The facts presented at the sentencing hearing revealed that from October 1986 to January 1988, the organization had imported between one and three kilograms of heroin into the United States each month. Mary Ann Hanna, Farah's aunt, was the head of the organization's United States operations. The organization used a number of couriers to bring the heroin into the United States.

Farah was Hanna's "right hand man." Described by the district court as "ubiquitous," he performed a variety of functions. Farah was one of those who met foreign couriers at United States airports, received the heroin, and delivered it to the organization's principal customer; he collected payment from the customer; he purchased bank checks in order to launder the cash; he recruited and supervised other workers in the laundering activities. District Court Sentencing Memorandum dated August 17, 1992 ("Sentencing Decision"), at 27. In addition, when Hanna was away, Farah served as the head of the United States operation. Thus, after the sentencing hearing, the district court found that

[t]he credible evidence demonstrated beyond question that the defendant Elias Id. at 26-27. The court therefore found that the evidence presented at the hearing "comfortably support[ed] the finding that Farah was a manager and supervisor." Id. at 27. It also found that "the group Farah supervised certainly included more th[a]n five participants--be they couriers, money launderers or other functionaries." Id. at 28.

                Farah was a manager and supervisor of the organization.   The ubiquitous Farah served as a trusted "right hand man" for Mary Ann Hanna, the admitted head of the conspiracy in the United States.   Unlike any other participant, Farah was entrusted to perform all of the critical assignments--meeting foreign and domestic couriers, transporting the heroin to the Detroit market, meeting with the principal customer, Roy Mercer, collecting proceeds, laundering the cash through the purchase of bank checks, supervising and recruiting other workers in the laundering activities, and most importantly, serving as appointed head of the United States operations during Hanna's extended trip to Lebanon during the spring and summer of 1987.   Stated simply, Farah did everything Hanna did when she left the United States in search of a new heroin source.   During that period, Farah oversaw every phase of the operations from the importation of the drugs to the laundering and transmittal of the proceeds out of the country
                

The Guidelines require that a defendant's offense level be adjusted according to his role in the offense. Aggravating roles require increases as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

Guidelines § 3B.1.1. Thus, the court's findings that Farah was a supervisor of more than five participants placed him within subsection (b) of § 3B1.1, which required a three-step increase.

Nonetheless, the court declined to increase Farah's offense level by more than two steps, stating as follows:

While the evidence adduced at the Fatico hearing comfortably supports the finding that Farah was a manager and supervisor, the application of Guideline 3B1.1 is, in the Court's view, not so obvious. Unquestionably, Guideline 3B1.1(c) requires an upward adjustment of two levels in light of the Court's finding that Farah was a supervisor. Further, an additional level may be required by Guideline 3B1.1(b), because the group Farah supervised certainly included more th[a]n five participants--be they couriers, money launderers or other functionaries, and no one has been heard to argue throughout these proceedings that the criminal activity here was not "otherwise extensive." See Guideline 3B1.1(c).

Despite these findings, the Court concludes that a two-level adjustment is more appropriate. A few references to the corresponding Commentary arguably support this conclusion. At the same time, should a three-level adjustment be required, the Court believes a modest one-level downward departure pursuant to Guideline 5K2.0 would nevertheless be appropriate. Implicit in the graduated adjustments prescribed in Guideline 3B1.1 is the notion that as the size of the organization increases, the role of manager or supervisor necessarily means added responsibility and therefore greater culpability--an equation which ordinarily follows easily in most cases. But not here. As the Commentary to Guideline 3B1.1 observes:

This adjustment is included primarily because of concerns about relative responsibility. However, it is also likely that persons who exercise a supervisory or managerial role in the commission of an offense tend to profit more Id....; see Application Note 3.

                from it and present a greater danger to the public and/or are more likely to recidivate.   The Commission's intent is that this adjustment should increase with both the size of the organization and the degree of the defendant's responsibility
                

As the Court has commented before, Farah's part-time supervisory role does not readily translate into enhanced culpability or responsibility. His management responsibilities were acquired episodically and do not in this Court's view reflect a more significant commitment to the affairs of the organization. His fortuitous position at the reins was triggered more by necessity than by choice or performance and Hanna's selection of her nephew as periodic caretaker of the organization evidences her reliance on him as a trustworthy stand-in, not a permanent delegation of any decision-making authority. Certainly there is no evidence to suggest that Farah would likely profit more than any other participant, and the Court's assessment of Farah as an individual strongly indicates that Farah is less likely to "recidivate" than most of his codefendants. Whether the three-level adjustment is required or not, the Court concludes that the relatively unusual circumstances of this case and, more particularly, Farah's role in it, present a mitigating factor to a degree that not [sic ] adequately considered by the Commission.

Sentencing Decision at 27-30. Accordingly, the court calculated Farah's offense level for the narcotics offense using a two-step increase for his role in the offense.

II. DISCUSSION

Farah has appealed, contending principally that the court should not have increased his offense level at all for his role in the offense. The government has cross-appealed, contending that the court was required to increase the offense level by three steps rather than two and was not authorized to depart downward on the bases articulated. For the reasons below, we find merit in the cross-appeal.

A. Application of § 3B1.1

Farah's contention that the district court erred in increasing his offense level even by as few as two levels for his role in the offense need not detain us long. The sentencing court's findings as to the defendant's role in the offense will be overturned only if they are clearly erroneous. See, e.g., United States v. Rivera, 971 F.2d 876, 893 (2d Cir.1992); United States v. Jacobo, 934 F.2d 411, 418 (2d Cir.1991). In the present case, there was ample evidence to support the district court's finding that Farah was a supervisor or manager of the criminal activity conducted by the organization. Accordingly, the court was required to increase his offense level by at least two steps.

The government's contention that the court could not properly interpret § 3B1.1 as requiring only a...