U.S. v. Paulino
| Decision Date | 27 July 1993 |
| Docket Number | 92-1583,No. 92-1583,Nos. 92-1748,92-1587 and 92-1622,92-1580,No. 92-1587,No. 92-1748,No. 92-1580,92-1576,No. 92-1622,No. 92-1576,92-1748,92-1587,92-1622,s. 92-1748 |
| Citation | 996 F.2d 1541 |
| Parties | UNITED STATES of America v. Ramon Enrique PAULINO, a/k/a "Rafael", a/k/a Ramon Suarez, a/k/a "Ramon E. Gomez", a/k/a "Chino", a/k/a "Chukin", Ramon Enrique Paulino, Appellant inUNITED STATES of America v. Luis PAULINO, Appellant inUNITED STATES of America v. Eduardo Burgos LOPEZ, a/k/a "Louie", a/k/a "Gigio Paulino", Eduardo Burgos Lopez, Appellant inUNITED STATES of America v. Luis Hugo GARCIA a/k/a "Cujo", Luis Hugo Garcia, Appellant inUNITED STATES of America v. Jose Joaquin RODRIGUEZ, a/k/a Jose Joaquin, Luis Joaquin, Louie, Geovanni, Jose Joaquin Rodriguez, Appellant inUNITED STATES of America v. Danilo Jacinto LEONARDO, a/k/a "Freddie Leon", Freddie Leon, Appellant in |
| Court | U.S. Court of Appeals — Third Circuit |
Mark C. Levy (argued), Saul, Ewing, Remick & Saul, Philadelphia, PA, for appellant in No. 92-1748.
Jack L. Gruenstein, Philadelphia, PA, for appellant in No. 92-1576.
Louis J. Ruch, Ruch & Gontram, Philadelphia, PA, for appellant in No. 92-1580.
Jules Epstein (argued), Kairys, Rudovsky, Kalman & Epstein, Philadelphia, PA, for appellant in No. 92-1583.
William T. Cannon, Philadelphia, PA, for appellant in No. 92-1587.
Diane V. Elliott (argued), Easton, PA, for appellant in No. 92-1622.
Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, John C. Dodds (argued), Michael M. Baylson, Office of U.S. Atty., Philadelphia, PA, for appellee.
Before: MANSMANN, SCIRICA and FEINBERG, * Circuit Judges.
Before us are the appeals from criminal judgments entered against several participants in a drug conspiracy which operated out of the Saloon Bar in Reading, Pennsylvania. Although the defendants have raised multiple individual grounds for appeal, 1 we address only the issue common to the convicted co-conspirators 2 concerning the district court's calculation of the quantity of drugs attributed to the conspiracy.
The arrest of the defendants did not yield a substantial seizure of cocaine or records evidencing the amount of cocaine flowing through the conspiracy. Although the indictment charged the distribution of over five kilograms of cocaine, the quantity specifically proven at trial was the much smaller amount of 389.2 grams. Thus, for purposes of sentencing, the district court was required to approximate, from trial evidence regarding the level of cocaine activity at the Saloon and corroborating testimony from federal agents at the sentencing hearing, an amount of cocaine which would accurately reflect the extent of the illegal enterprise of the co-conspirators.
Because the district court's evidentiary basis for its drug quantity determination met the minimum standard of reliability required at sentencing, and because its findings, based upon the evidence as testified to at trial and sentencing were not clearly erroneous, we will affirm the judgments of the district court.
The evidence at trial, viewed favorably to the government, showed that cocaine activity began in approximately April of 1988 when Luis Garcia, a/k/a "Cujo," with the help of Luis Paulino and others, established the Saloon Bar as a distribution point for cocaine. Although Garcia was providing the financial backing for the opening of the bar, his interest in the real estate transaction was disguised by naming his mother as the lessor of the property.
In February 1988, George Manning was hired to help with renovations at the Saloon. Shortly thereafter, Manning was approached by Red Nuss, who offered Manning the opportunity to run the bar as Manning's own in exchange for having the liquor license put in Manning's name. Manning agreed.
Shortly after the signing of the lease, the sale of cocaine began from a room on the second floor of the Saloon. Concerned that he might be implicated in these activities, Manning met with Nuss, Garcia and Luis Paulino and threatened to pull out of the deal. Garcia and Paulino assured Manning that the drug sales were temporary and that the cocaine operation would soon be moved elsewhere. Contrary to these assurances, after Manning officially opened the bar, the drug sales upstairs increased.
Access to the upstairs area was restricted. To assure security, a steel door, steel-reinforced wall and an intercom system were installed. The room above the Saloon was manned by sellers working in shifts from mid-morning usually until midnight. The organization communicated through codes sent by way of telephone, pagers or beepers--common tools of the drug trade. Ordinarily, when a customer ordered cocaine from the room above the Saloon, a phone call was made and a "runner" would bring the drug.
Manning became a witness for the prosecution and testified at trial that the drug operation was characterized by a high level of activity and quality goods. He personally bought cocaine upstairs approximately 50 times from at least five or six different people. The purchases took place at various times of the day and night.
In addition to the numerous buys of Manning, another government witness, Gary Nesbitt, a/k/a "Jamaica," testified that he bought cocaine upstairs at the Saloon as often as twice a day, four times a week from 1988 until the Saloon closed in late 1990.
A number of law enforcement agents participated in an undercover operation at the Saloon. Detective Anthony Kerr, a Berks County Detective, frequented the Saloon posing as a narcotics buyer. At trial, Detective Kerr testified that on one occasion when he bought cocaine at the Saloon, he waited upstairs for his delivery with at least 12 or 13 other customers. Appellant Ramon Paulino, one of Garcia's "workers," apologized to Kerr for the delay, explaining that "they were really busy today."
Regarding the profits garnered from the drug trade at the Saloon, the evidence indicated that they were substantial. In March of 1990, one of Garcia's "workers," Jose Luis Novoa, complained to Luis Matos, 3 a narcotics crony of Garcia, that although he made $12,000 for Garcia in one night, he had to wait one week for his $500 fee.
There was evidence that Garcia laundered drug profits through attorney Robert Van Hoove, a former District Attorney of Berks County. Van Hoove took over the legal operations of the Saloon when its former counsel and Van Hoove's law partner, Paul Schlippert, was imprisoned on a drug charge. Van Hoove's secretary, Carol Young, testified that on one occasion she saw piles of cash stacked on a table when Garcia and Van Hoove met privately. When she walked in unexpectedly, Garcia and Van Hoove pushed the money off the table into a duffle bag. Young later saw Garcia carry the duffle bag out empty.
In December 1990, 19 defendants were charged, in a 23-count indictment, with conspiracy to distribute over five kilograms of cocaine, various counts of distributing cocaine, and aiding and abetting in violation of 21 U.S.C. §§ 846 and 841(a)(1) and 18 U.S.C. § 2. In January of 1991 the grand jury returned a superseding indictment adding another defendant.
On motion of the government, the district court dismissed the indictment as to one of the 20 defendants. Another defendant pled guilty before trial and three of the defendants were fugitives at the time of trial.
On the eve of trial, defendant Luis Paulino was severed from the remaining 15 defendants because his trial counsel became unavailable. Fourteen of the remaining defendants were tried during June and July of 1991. Paulino was tried alone in November of 1991.
Seven of the initial 14 defendants were convicted at the conclusion of the first trial and Paulino was convicted after his separate trial. Of the appellants here, all but Danilo Jacinto Leonardo, a/k/a "Freddie Leon," were convicted of conspiracy to distribute cocaine. Leon was convicted of one count of distributing cocaine. In addition to the conspiracy, defendants Lopez and Rodriguez were also convicted of the substantive crime of distributing cocaine.
As previously mentioned, the investigation that resulted in the indictment did not lead to significant seizures of cocaine and no fiscal records of the alleged conspiracy were recovered. Accordingly, the trial court was required to estimate the amount of drugs sold and/or intended to be sold by the conspirators in order to properly fix the sentencing range under the Sentencing Guidelines. Examining the trial record and relying upon certain corroborative testimony from the sentencing hearing, the district court calculated that the amount of cocaine sold during the conspiracy fell within a range of 127 to 147 kilograms. This amount provided the base level for the offense. The district court then made certain adjustments based upon the individual participation of each defendant and sentenced each accordingly. This appeal followed.
We have jurisdiction to review the judgments in these criminal cases under 28 U.S.C. § 1291. Review of the appellants' sentences is also granted by 18 U.S.C. § 3742.
As identified at the outset, the paramount issue confronting the parties at sentencing was the quantity of drugs distributed by the conspiracy. Concerning facts relevant to sentencing, the government bears the burden of proof by a preponderance of the evidence. United States v. McDowell, 888 F.2d 285, 290 (3d Cir.1989). 4 We review the district court's findings of fact concerning the drug quantity to determine whether they are clearly erroneous. United States v. Miele, 989 F.2d 659, 663 (3d Cir.1993).
In imposing a sentence under the Sentencing Guidelines in a narcotics case, the district court relies chiefly upon the quantity of drugs involved in the offense. U.S.S.G. §§ 1B1.3(a)(2); 3D1.2(d). The relevant amount of drugs establishes the base offense level, ...
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