U.S. v. Murgas
| Decision Date | 15 December 1998 |
| Docket Number | No. 95-CR-384.,95-CR-384. |
| Citation | 31 F.Supp.2d 245 |
| Parties | UNITED STATES of America v. Luis A. MURGAS, a/k/a Big Louie, a/k/a/ Barosa; Luis E. Cordoba-Murgas, a/k/a/ Negro, a/k/a Carlos; Luis Antonio Todd-Murgas, a/k/a Little Louie; Cesar A. Todd-Murgas, a/k/a Tony, a/k/a Pepita; Raul Antonio Cordoba-Murgas, a/k/a Strawberry; Ruben A. Todd-Murgas; Vincente Rogers, a/k/a Santos; Gilberto Arce, a/k/a Luigi Santiago; Jayson Jones; Dennis J. Calandra, Jr.; Tiffany Gaudinot; Tricia Irving, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Thomas J. Maroney, Syracuse, New York, for the Northern Dist. N.Y. (Grant Jaquith, Assistant U.S. Attorney, of counsel), for U.S.
Calvin J. Domenico, Jr., Rome, New York, for defendant Luis E. Cordoba-Murgas.
William M. Borrill, Whitesboro, New York, for defendant Luis Antonio Todd-Murgas.
Robert G. Wells, Syracuse, New York, for defendant Raul Antonio Cordoba-Murgas.
Defendants Raul Antonio Cordoba-Murgas ("Raul Cordoba"), Luis E. Cordoba-Murgas ("Luis Cordoba") and Luis Todd-Murgas ("Luis Todd") have motions before this court opposing the government from seeking an upward departure in their sentencings.1 The government, which opposes defendants' motions, seeks a sentencing enhancement for defendants based upon their alleged involvement in a double homicide. The government contends that on January 12, 1995, Luis Cordoba directed Raul Cordoba and Luis Todd to collect a drug debt from Jason Jacobs and that in the course of these drug collection efforts, Raul Cordoba shot and killed Jacobs and his girlfriend, Kelly Coss. Defendants never have been charged with the double murder, but the government asserts their base offense levels should be enhanced as a result of their alleged responsibility.
The court reserved upon defendants' motions following oral argument and, in the interim, held a sentencing hearing at which the government and defendants' introduced evidence regarding the government's sentencing request. The court now examines the merits of the parties' arguments.
From 1991 until their arrest in March 1996, defendants represented the inner circle of a drug enterprise to distribute large quantities of powder and crack cocaine in Rome, New York, and the surrounding Oneida County area. See generally United States v Murgas, 177 F.R.D. 97, 102 (N.D.N.Y.1998) (). This drug enterprise was not a small-level operation: it regularly distributed large quantities of cocaine, sometimes by kilograms.
In the latter days of the drug enterprise, Luis Cordoba became its leader, taking over for his jailed uncle, Luis A. Murgas. Under Luis Cordoba's leadership, the enterprise paid defendant Jayson Jones, who it had recruited at the age of fourteen, to transport cocaine from New York City to Rome, New York. Occasionally, Luis Cordoba and Raul Cordoba traveled with Jones to New York City to acquire the cocaine. After obtaining the cocaine in New York City, Jones would return to Oneida County, either by bus or train, where he also stored cocaine for the enterprise. When a distributor in the enterprise needed cocaine for a transaction, he obtained it from Jones.
As the enterprise's drug activity increased, so did surveillance by the government. On several occasions, court-authorized wiretaps were placed on the telephones of numerous conspirators, including Luis Cordoba's. As a result, the government intercepted sundry conversations, many of which detailed illicit transactions involving both regular customers and undercover agents. Based upon a surfeit of evidence, on March 8, 1996, the government executed search warrants at the residences of several conspirators and arrested the defendants.2
On March 21, 1996, a Grand Jury charged defendants in an eight-count second superseding indictment. Before trial, Luis Cordoba and Luis Todd pled guilty to the second count of the indictment, which charged them and eleven others with engaging in a conspiracy with the intent to distribute and distribution of powder and crack cocaine in violation of 21 U.S.C. § 846. Luis Cordoba also pled guilty to the charge of "knowingly and intentionally possess[ing] with the intent to distribute and distribut[ing] cocaine" in violation of 21 U.S.C. § 841(a)(1). By jury verdict entered on June 26, 1997, Raul Cordoba was convicted of participating in the drug conspiracy charged in the second count.
Through their drug enterprise, defendants were responsible for trafficking between fifteen and fifty kilograms of cocaine. Under the United States Sentencing Guidelines, their base offense level for this conduct is thirty-four. See U.S.S.G. § 2D1.1(c). Pursuant to U.S.S.G. § 2D1.2(a)(2), Luis Cordoba's base offense level is enhanced one level to thirty-five because his offense involved a minor. His base offense level is enhanced four more levels to thirty-nine because he was an organizer or leader of criminal activity that involved five or more participants. See U.S.S.G. § 3B1.1(a). Absent any other adjustments, including the enhancements the government seeks, the Guidelines manual recommends as follows: (1) Raul Cordoba, with a criminal history category of one and a base offense level of thrity-four, faces 151 to 188 months imprisonment; (2) Luis Todd, with a criminal history category of three and a base offense level of thirty-four, faces 188 to 235 months imprisonment; and (3) Luis Cordoba, with a criminal history category of one and a base offense level of thirty-nine, faces 262 to 327 months imprisonment.
Notwithstanding defendants' prospects for lengthy incarceration, the government charges that Raul Cordoba's base offense level should be forty-three, pursuant to United States Sentencing Guidelines §§ 2D1.1(d)(1) and 2A1.1.3 Section 2D1.1(d)(1) provides:
[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder).
The base offense level of forty-three under § 2A1.1 represents life imprisonment for a defendant.
As to Luis Cordoba and Luis Todd, the government asserts their base offense level should be determined pursuant to U.S.S.G. § 5K2.1,4 which states that "[i]f death resulted, the court may increase the sentence above the authorized guideline range." Should the court grant the government's request, these defendants almost certainly would face life imprisonment given their respective base offense levels and criminal history categories.
Defendants oppose any upward departures at their sentencing, arguing these enhancements: (1) are being applied selectively to only three of several co-defendants; (2) violate the Eighth Amendment, which prohibits cruel and unusual punishment; (3) violate the Constitution through introduction of otherwise inadmissible hearsay evidence and the denial of the right to confrontation of witnesses; (4) violate their constitutional rights to indictment, trial by jury, and all other constitutional rights afforded to individuals charged with crimes; and finally, (5) violate the Constitution through fundamental unfairness and substantive and procedural due process. Alternatively, should these arguments fail, defendants request the court to establish at least a "clear and convincing" standard as the burden of proof the government must sustain. The government counters that substantial precedent proves its enhancement requests are constitutional and argues that it need only demonstrate defendants' involvement in the murders by a "preponderance of the evidence" standard. The court addresses these arguments seriatim.
Defendants arguing that an upward departure operates selectively to sentence them to harsher penalties while other co-defendants convicted of the same drug offenses at trial are not subjected to the same enhancements. They do not submit authority directly supporting their contention, but instead refer the court to "selective prosecution" cases, which they argue must apply by analogy.
In the context of these cases, it is well-settled that the government retains "broad discretion" as to whom to prosecute and, as such, mere selectivity in prosecution creates no constitutional problem. See, e.g., Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). Though prosecutorial discretion is broad, selection may not be based deliberately on an unjustifiable standard, such as race, religion, or other arbitrary classification. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). If defendants instant argument is to succeed, they must prove that the government's choice to seek an upward departure against them: (1) had a discriminatory effect; and (2) was motivated by a discriminatory purpose. See Wayte, 470 U.S. at 608, 105 S.Ct. at 1531.
Defendants' "selective sentencing" argument need not detain the court for long. As noted above, defendants' argument relates to the issue of selective sentencing, not selective prosecution. Notwithstanding the inapposite case law, defendants fail to show that the government's decision to move for an upward departure at sentencing was motivated by a discriminatory purpose. In fact, during oral argument, defendants conceded there is neither direct nor circumstantial evidence that the government is motivated by discrimination. Indeed, the government alleges that Raul Cordoba, Luis Cordoba and Luis Todd are subject to the sentence enhancements because they — and not other defendants in this matter — were involved in the murders of Jason Jacobs and Kelly Coss. Absent a showing that the government has discriminated in selecting these defendants for...
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