US v. Fuentes

• Decision Date: 31 January 1990
• Docket Number: Crim. No. 89-156(01),89-184(01).
• Citation: 729 F. Supp. 487
• Parties: UNITED STATES of America v. Roberto Esteban FUENTES.
• Court: U.S. District Court — Eastern District of Virginia

729 F. Supp. 487

UNITED STATES of America v. Roberto Esteban FUENTES.

Crim. Nos. 89-156(01), 89-184(01).

United States District Court, E.D. Virginia, Alexandria Division.

December 28, 1989.

As Amended January 31, 1990.

Liam O'Grady, Asst. U.S. Atty., Alexandria, Va., for plaintiff.

Jack S. Rhoades, Cake & Rhoades, P.C., Alexandria, Va., for defendant.

SENTENCING MEMORANDUM

ELLIS, District Judge.

Introduction

Defendant Roberto Esteban Fuentes is before the Court for sentencing following a jury trial on August 24, 1989, resulting in a guilty verdict on 34 counts of a 78-count indictment.¹ Specifically, Fuentes was convicted of Count 1, charging him with conspiracy to possess and distribute in excess of five (5) kilograms of cocaine, in violation of 21 U.S.C. § 846; Count 2, carrying on a Continuing Criminal Enterprise ("CCE"), in violation of 21 U.S.C. § 848; Count 3, of conspiracy to launder money, in violation of 18 U.S.C. § 371; Count 10, distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count 21, of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1); Count 22, of possession with intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1); Count 24 (lesser included offense), of possession of cocaine, in violation of 21 U.S.C. § 844; Counts 28, 31, and 32, of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); and Counts 34 through 55, 77 and 78, of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i).

A trial spanning eight days, including the testimony of more than fifty witnesses and the introduction of dozens of documentary exhibits, left no reasonable doubt that for almost a decade defendant conspired with diverse others to (i) possess and distribute at least fifty kilograms of cocaine; (ii) engage in a CCE; and (iii) launder money derived from illegal drug trafficking. Trial testimony confirmed defendant's role as the leader and organizer of an extensive drug trafficking conspiracy. At least fourteen witnesses² testified they had purchased substantial amounts of cocaine from defendant with the intent to distribute that cocaine in furtherance of the conspiracy. Other testimony at trial clearly established that defendant had stored and distributed large quantities of cocaine and employed others to aid him in this illicit enterprise. The testimony also disclosed that defendant's criminal enterprise generated millions of dollars in profit. The following, more specific examples from the trial record help illustrate the nature and scope of defendant's enterprise.

1. Defendant employed numerous distributors at various times throughout the CCE's existence. Some distributors were employed by him over a long period of time. For example, Miltino Inciarte, a co-defendant, distributed cocaine for defendant for nearly 10 years. Carmen Rosa Mesa, who defendant taught to cut, bag and price cocaine, distributed for defendant from 1985 until 1989. Ray Valdez, also a co-defendant, distributed cocaine for defendant regularly for a year.

2. Other distributors for defendant's enterprise, though employed for shorter periods of time, nonetheless distributed significantly large amounts of cocaine. Sia Pasakhani (Mark Peters) testified that defendant fronted him one-half kilogram of cocaine in June, 1986 and another nine (9) ounces in March, 1987. Defendant also fronted Samad Arshadi substantial amounts of cocaine on four or five occasions. Mark Stamer's cocaine purchases from defendant over a six-month period rapidly increased until he was fronting him four (4) ounce quantities on multiple occasions each week.

3. In addition to distributors, defendant employed individuals to store his cocaine prior to distribution. George Van Wagner, a co-defendant, stored defendant's cocaine at three different locations during the enterprise. At defendant's request, Van Wagner also stored substantial quantities of cocaine for Carlos Acevedo, another of defendant's distributors. From July, 1988 until March, 1989, Carmen Rosa Mesa stored approximately five kilograms of cocaine for defendant.

4. Defendant also employed a battalion of cocaine couriers and enforcers who accompanied him on his deliveries, including Heidi Coleman, Beatriz Perez, Nestor Fernandez, Charles Limber, Carmen Rosa Mesa and co-defendant Ray Valdez.

5. In order to conceal the profits from his extensive cocaine enterprise, defendant employed various people to aid him in laundering his illegal drug profits. Stephen Church, Thomas Church, Dennis Melton, George Van Wagner and Gary Jaffe assisted defendant in devising and implementing elaborate laundering schemes involving, inter alia, the establishment of illusory business ventures, the preparation and filing of false wage and earnings statements, and the investment of drug money in legitimate businesses and real estate.

The precise financial dimensions of defendant's criminal enterprise cannot be determined. It spanned too long a period of time and involved too many people. And, of course, complete financial records are not available. But the record leaves no doubt that defendant derived substantial sums of money from it. The DEA seized in excess of $140,000 in cash from defendant's safety deposit boxes in March, 1989. Also seized were defendant's condominium valued in excess of $80,000, and his expensive late model sports car for which he had paid cash. Beyond this, many witnesses testified that defendant gave large amounts of cash, from $17,000 to $30,000, to others for the purpose of purchasing cocaine. Finally, the cocaine attributable to the enterprise would likely have had a street value in the millions depending on the mode of processing and sale.

Pursuant to 18 U.S.C. § 3553, the Court sets forth the following findings and reasons in connection with the sentence imposed on ROBERTO ESTEBAN FUENTES on December 28, 1989.

A. Uncontested Matters:

With the exception of the contested matters listed below, defendant and the government have no objection to the findings and conclusions of the Presentence Investigation Report ("PSIR"). Accordingly, with the exceptions of the listed contested matters, the Court adopts the PSIR findings and conclusions as its findings and conclusions in this sentencing proceeding.

B. Contested Matters:

The defendant, through counsel, objects to various terms and characterizations used in the PSIR. First, defendant contends that the conspiracy did not involve international travel as stated in paragraph 6 of the PSIR. This point is not material to the Court's sentencing decision. In any event, as the government has no objection and as the evidence on this point is not conclusive, the word "international" is ordered stricken from paragraph 6. Second, defendant objects to the PSIR's use of the phrase "drug hierarchies." This objection is without merit. Testimony at trial plainly established the hierarchical structure of the conspiracy, with defendant at the apex. Third, defendant argues that language in paragraph 9 of the PSIR implies that defendant directed Cabre or Behrens by "sending Cabre or Behrens with money to acquire cocaine in Miami." This objection is also without merit. Convincing evidence adduced at trial plainly demonstrated defendant's general control over the conspiracy's criminal activity, including sending Cabre and others to Miami to acquire cocaine for distribution. Further, defendant objects to PSIR references concerning quantities of cocaine in excess of 50 kilograms. This objection is not material to the Court's sentencing decision as defendant's Guidelines offense level calculation is based on a 50 kilogram amount, regardless of the PSIR's references to quantities in excess of that.

Defendant's final objection, vigorously pressed, is to his conviction for violations of both 21 U.S.C. § 846 (conspiracy to distribute cocaine) and of 21 U.S.C. § 848 (CCE). This double conviction, defendant argues, is barred by the Double Jeopardy Clause and precluded by the fact that the § 846 conspiracy charge is a lesser-included offense of the CCE charge. The Double Jeopardy argument is meritless. Equally meritless is defendant's reliance on the lesser-included offense argument to compel vacation of the conspiracy conviction. But the lesser-included offense argument is effective to preclude the imposition of any double punishment and hence precludes the imposition of any sentence with respect to the conspiracy conviction.³ Each of the arguments is separately considered.

1. Double Jeopardy

The Double Jeopardy Clause prohibits prosecution of a defendant twice "for the same offense." U.S. Const. amend. V.; see also, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The question, then, is whether § 846 conspiracy and § 848 CCE are the "same offense." Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) controls this question; it compels a negative answer. There, the Supreme Court held that the Double Jeopardy Clause did not bar separate prosecutions for CCE and importation of marijuana (21 U.S.C. § 952), a predicate offense of CCE. In reaching this conclusion, Justice Rehnquist wrote:

The CCE offense is not, in any commonsense sic or literal meaning of the term, the "same" offense as one of the predicate offenses. The CCE offense requires the jury to find that the defendant committed a predicate offense, and in addition that the predicate offense was part of a continuing series of predicate offenses undertaken by the defendant in concert with five or more other persons, that the defendant occupied the position of an organizer or manager, and that the defendant obtained substantial income or resources from the continuing series of violations.

Garrett, 471 U.S. at 786, 105 S.Ct. at 2415. Given Garrett, it follows that defendant's conviction for both a CCE and the predicate offense of...