U.S. v. Teyer

• Decision Date: 29 April 2004
• Docket Number: No. 01 CR 21GEL.,01 CR 21GEL.
• Citation: 322 F.Supp.2d 359
• Parties: UNITED STATES of America, v. Jorge Manuel Torres TEYER, a/k/a "Jorge Carlos Moreno," a/k/a "Oso," Victor Manuel Adan Carrasco, and Oscar Moreno Aguirre, Defendants.
• Court: U.S. District Court — Southern District of New York

322 F.Supp.2d 359

UNITED STATES of America, v. Jorge Manuel Torres TEYER, a/k/a "Jorge Carlos Moreno," a/k/a "Oso," Victor Manuel Adan Carrasco, and Oscar Moreno Aguirre, Defendants.

No. 01 CR 21GEL.

United States District Court, S.D. New York.

April 29, 2004.

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Anirudh Bansal, Richard Sullivan, Assistant United States Attorneys, New York City (David N. Kelly, United States Attorney for the Southern District of New York), for the United States of America.

Paul E. Warburgh, New York City, for Defendant Jorge Manuel Torres Teyer.

George R. Goltzer, New York City, for Defendant Victor Manuel Adan Carrasco.

Winston Lee, New York City, for Defendant Oscar Moreno Aguirre.

SENTENCING OPINION

LYNCH, District Judge.

The three defendants in this case pled guilty to charges including conspiracy to import cocaine into the United States, 21 U.S.C. § 963, and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Because the conspiracy involved in excess of 150 kilograms of cocaine, a fact not disputed by the defendants, the U.S. Sentencing Guidelines ("U.S.S.G." or "Guidelines") prescribe a base offense level of 38 for each defendant.¹ U.S.S.G. § 2D1.1(c)(1). Indeed, it is undisputed that the defendants were arrested in Belize in possession of some 1500 kilograms of cocaine destined for the U.S. market. The parties agreed, however, to leave several other issues relevant to sentencing for resolution after an evidentiary hearing, see United States v. Fatico, 603 F.2d 1053 (2d Cir.1979); United States v. Fatico, 579 F.2d 707 (2d Cir.1978), which the Court held on March 3 and 4, 2004. This opinion sets forth the factual findings and legal conclusions required to arrive at appropriate sentences for each defendant.

DISCUSSION

I. Jorge Torres-Teyer

A. Role in the Offense

The Government argues that Torres-Teyer should receive a four-level "aggravating role" adjustment because he acted as an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). To impose this adjustment, the Court must find "(i) that the defendant was `an organizer or leader,' and (ii) that the criminal activity either `involved five or more participants' or `was otherwise extensive.'" United States v. Zagari, 111 F.3d 307, 330 (2d Cir.1997) (internal quotation marks omitted). The evidence overwhelmingly, by far more than a preponderance, justifies these findings.

First, while the Government need not establish that Torres-Teyer managed five or more participants (evidence of "otherwise extensive" criminal activity also suffices), United States v. Zichettello, 208 F.3d 72, 107 (2d Cir.2000), it cannot be disputed that the criminal activity here involved more than five people. Counting only those directly supervised by Torres-Teyer, the participants included Liston McCord, codefendants Carrasco and Aguirre, the crew of Mexican laborers or seamen who worked with McCord to transfer cocaine from large to small boats (e.g., Michael, Chilango, Alfredo, Gordo) (Tr. 111, 122-23, 126, 133), the sea captains who responded to Torres-Teyer's orders, and assorted pistoleros and laborers. (Id. 166-67.)

Second, Torres-Teyer unquestionably acted as an organizer and leader of the conspiracy. The evidence seized from his apartment in Belize, where authorities found the 1500 kilograms of cocaine, included a black folder containing copies of facsimile communications giving directives to boat captains and others regarding the transport of cocaine from Colombia to Mexico by sea. That Torres-Teyer wrote these facsimile communications is clear: Belizean authorities found them in his apartment; according to Liston McCord, a cooperating witness whom the Court finds highly credible,² the handwriting matches that of Torres-Teyer (Tr. 163, 169); and they were signed by "Oso," which in Spanish means "bear," a nickname for Torres-Teyer. (Id. 123-24.) The content of the communications also confirms that he wrote them. In one, the author advises coconspirators that he has assumed the new identity "Jorge Carlos Moreno" and obtained a death certificate for "Jorge Torres-T." (GX 71.) In another, he instructs members of the conspiracy how to find the apartment complex where he then lived and to ask for Carlos Moreno, his assumed identity in Belize. (GX 81.) Jorge Carlos Moreno is also the name that Torres-Teyer gave to the Belizean police who stopped him for driving in the wrong direction on a one-way street, the incident that led to the discovery of the 1500 kilograms of cocaine and the apprehension of codefendants Carrasco and Aguirre. (Torres-Teyer PSR ¶ 12.) The inference is inescapable that Torres-Teyer authored numerous directives to a large number of conspirators.

Moreover, McCord testified that Torres-Teyer recruited him and gave him orders about the transportation of more than a dozen cocaine shipments, generally in amounts of at least 1500 kilograms. (Tr. 93-98, 125-26.) The totality of McCord's testimony made absolutely clear that Torres-Teyer organized and planned these shipments, and the seized records not only corroborate that testimony — they independently establish that he played exactly this leadership role.

At a minimum, the evidence therefore establishes that Torres-Teyer was a manager or supervisor of the narcotics organization in which he participated. See United States v. Payne, 63 F.3d 1200, 1212 (2d Cir.1995) ("A defendant acts as a manager or supervisor of a criminal enterprise involving at least five participants if he exercises some degree of control over others involved in the commission of the offense or plays a significant role in the decision to recruit or to supervise lower-level participants.") (internal citations, brackets and quotation marks omitted). Distinguishing a "manager or supervisor," U.S.S.G. § 3B1.1(b), from an "organizer or leader," id. § 3B1.1(a), may well be more of an art than a science. Concededly, Torres-Teyer was not the leader of the entire narcotics trafficking conspiracy. The evidence shows that he reported to Alcides Ramon Magana and Albion Quintero Meraz, persons whom Special Agent Matthew John O'Brien of the Drug Enforcement Administration ("DEA") described as "heads of the organization" (Tr. 70), and superiors at times sent others to check up on Torres-Teyer. (Id. 176-77.)

But for Torres-Teyer to qualify as an organizer or leader, it is not necessary that he have been at the pinnacle of authority within the hierarchy of the narcotics trafficking organization, or that he have masterminded the entire conspiracy. See United States v. DeRiggi, 72 F.3d 7, 8 (2d Cir.1995); United States v. Garcia, 936 F.2d 648, 656 (2d Cir.1991); see also U.S.S.G. § 3B1.1, Application Note 4; United States v. Beaulieau, 959 F.2d 375, 379-80 (2d Cir.1992) (canvassing factors to be considered in determining whether defendant qualifies as an "organizer or leader"). Torres-Teyer quite literally organized the Belizean trans-shipment operation, which itself qualifies as a highly complex criminal activity and a major part of the overall importation scheme. He did not act as a mere manager or supervisor, but as a high-level operative who recruited, supervised, and directed dozens of individuals and organized their activity. (G.Br.15-19.) See United States v. Si Lu Tian, 339 F.3d 143, 156-58 (2d Cir.2003). Moreover, some of those whom Torres-Teyer supervised, such as McCord and the sea captains, themselves played significant roles in the conspiracy and enjoyed supervisory authority over other coconspirators. Torres-Teyer's level of responsibility, and the number of people he organized and directed, dwarfs that of others who have received a four-level enhancement for being an organizer or leader. See, e.g., United States v. Napoli, 179 F.3d 1, 14 (2d Cir.1999); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 183 (2d Cir.1990).

Accordingly, the Court finds an "aggravating role" enhancement for being an "organizer or leader" warranted. This adjustment brings Torres-Teyer's offense level to 42.

B. Use of Airplane

The Government's letter pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir.1991), contemplated, and the Probation Department recommended, a two-level enhancement for use of an aircraft in connection with narcotics trafficking. (Torres-Teyer PSR ¶¶ 7(c), 41.) U.S.S.G. § 2D1.1(b)(2)(A). But the Government introduced no evidence at the hearing regarding use of an airplane, and in its post-hearing submission, did not argue that an enhancement for such use should be applied. On one occasion, Torres-Teyer and McCord apparently arranged for the use of an airstrip for a projected transfer of drugs by air, after the failure of a trans-shipment by boat due to a hurricane. (Tr. 184-86; GX 69.) But no evidence suggests that this plot succeeded. Indeed, it seems that this shipment is the one that Belizean authorities eventually seized, resulting in the defendants' arrest. Accordingly, this enhancement will not be applied.

C. Acceptance of Responsibility and Obstruction of Justice

Torres-Teyer pled guilty to the entire indictment. He acknowledged his guilt for both the conspiracy to import and distribute cocaine and the use of firearms in furtherance of that scheme. He is therefore presumptively entitled to a downward adjustment for acceptance of responsibility. U.S.S.G. § 3E1.1(a). Furthermore, as to Torres-Teyer, unlike his codefendants, the Government does not dispute that he timely notified it of his intention to plead guilty, sparing both the Court and the Government the time and resources necessary to prepare for trial. Accordingly, if he qualifies for acceptance of responsibility, he would receive another one-level reduction pursuant to U.S.S.G. § 3E1.1(b).

The Government contends and the PSR recommends, however, that credit for acceptance of responsibility...