The opinion of the court was delivered by: STANLEY S. BROTMAN
On November 4, 1991 defendant Enzo Caterini pled guilty to a one count Superseding Information charging that between May 1990 and August 7, 1990, defendant did knowingly and intentionally conspire with Antonio DeMeo, Chaudry Mohammed Amin, Dante DeGrandis, Deborah Peth, and others, to distribute and possess with intent to distribute more than 100 grams of heroin, contrary to the provisions of Title 21, U.S.C. § 846.
The Pre-Sentence Report attributed Caterini with 1,024.19 grams of heroin giving Caterini an offense level of 32 pursuant to United States Sentencing Guidelines ("Guidelines") §§ 2D1.1(c) & 2D1.4. Caterini's plea agreement contained the stipulation that Caterini had, pursuant to Guidelines § 3C1.1, willfully obstructed justice and impeded the administration of justice in the instant offense by failing to appear before this court and fleeing to Canada prior to trial in violation of the stipulated terms of his pretrial supervision and release.
The plea agreement also contained a stipulation that Caterini has, pursuant to U.S.S.G. § 3E1.1, demonstrated recognition and acceptance of criminal responsibility for the offense charged. Accordingly, the Probation department adjusted the offense level upward by two points for obstruction of justice pursuant to U.S.S.G. § 3C1.1 and downward two points for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Caterini's total offense level was therefore 32. Because Caterini had a criminal history category of I and a total offense level of 32, the Pre-Sentence Report recommended an imprisonment range of 121 to 151 months under the guidelines.
Caterini has objected to the Pre-Sentence Report's recommendation that Caterini be attributed with 1,024.19 grams of heroin, giving defendant a base offense level of 32.
The Government is in accord with the Report's recommendation as to the amount of heroin.
The Government asserts that because Caterini attempted to escape from Fairton Federal Correctional Institute ("Fairton F.C.I."), he should not receive the two-point reduction for acceptance of responsibility that the government had originally stipulated to in the plea agreement. Moreover, the government moves for an upward departure of two points pursuant to Guidelines § 5K2.0 as a result of the alleged attempted escape from Fairton.
Caterini contests that his sentence should be adjusted because of the alleged escape attempt. This court convened a hearing and heard extensive testimony to resolve these issues on June 8, 9, 10 and July 15, 1992. The Government produced witnesses and evidence in support of their position. The defendant put forward no witnesses but cross-examined the Government's witnesses. After considering the evidence presented and the submissions of the parties, the court makes the following findings of fact and conclusions of law.
1. On April 23, 1990, Sgt. David McCummings of the Newark Drug Enforcement Administration Task Force (DEA) acting in an undercover capacity as a potential buyer of heroin, met with defendant Caterini at the Airport Marriott Hotel ("the Marriott").
2. On June 8, 1990, Sgt. McCummings again met Caterini at the Marriott and obtained a sample of heroin from Caterini. The heroin had a net weight of .29 grams and was 67% pure. (Gov't Exh. G 1A).
3. On June 18, 1990, Caterini again met with Sgt. McCummings and purchased one ounce of heroin from Caterini for $ 6,500. The heroin had a net weight of 23.9 grams and was 57% pure. (Gov't Exh. G 2A).
4. On July 9, 1990, Caterini negotiated with Sgt. Dave McCummings over the price of an eighth of a kilogram of heroin. Caterini stated that he could supply a kilogram of heroin but he wanted to do the smaller amount and establish a relationship first. (Gov't Exh. G 103A--Tr. of telephone call by McCummings to Caterini).
5. On July 10, 1990, Sgt. McCummings telephoned Caterini and introduced another agent of the DEA task force acting in undercover capacity, Sgt. Guslavage, as his employer. Caterini told Sgt. Guslavage that he, along with "his people" have the capability of providing one to two kilograms of heroin a week and would produce that amount once a trusting relationship is developed. (Gov't Exh. G 105A, Tr. of telephone call between McCummings, Caterini and Guslavage at 3-4 & 6-11). Caterini said that the price for a kilogram of heroin would be $ 175,000 and that he wanted an additional amount of money, probably $ 5,000, for himself. (Gov't Exh. G 105A at 8).
6. Negotiations for the purchase of the kilogram continued and Caterini met Sgt. Guslavage at the Marriott on or about July 16, 1990, at which time Sgt. Guslavage "flashed" the $ 175,000 to be used to purchase the heroin to Caterini. After seeing the money, Caterini telephoned Dante DeGrandis at Guy's Restaurant in Brooklyn and talked with him in Italian. Sgt. Guslavage then spoke to DeGrandis and negotiated the deal for the kilogram. DeGrandis insisted that the transfer or deal for the kilogram occur in Brooklyn--the undercover agents were to come to DeGrandis' house and they would get half and then if the deal went smoothly they would get the other half; Sgt. Guslavage refused to go to Brooklyn for the kilogram. (Test. of Sgt. Guslavage on June 8, 9, 10 and July 15, 1992; Def.'s Exh. DC-2).
7. On the morning of July 17, 1992, Caterini spoke to Sgt. McCummings and set up a meeting to count the $ 175,000 and discussed a meeting between the agents and DeGrandis. (Gov't Exh. G 109A, Tr. of call between McCummings and Caterini on July 17, 1992).
8. On the afternoon of July 17, 1990, Caterini counted the $ 175,000 at the Marriott. (Gov't Exh. G 110A, Tr. of July 17, 1990 conversation at Marriott at 2-5). Caterini spoke to DeGrandis by telephone and told him that he had counted the money for the kilogram and arrangements were made for Sgt. Guslavage to meet DeGrandis. Negotiations continued about the specifics of the delivery of the kilogram and where the deal was to take place. (Gov't Exh. G 110A at 8-16). The agents asserted that they wanted DeGrandis to come to the Marriott with the heroin so they could examine it. (Gov't Exh. 110A at 9-10).
9. In the conversation of July 17, 1992, Caterini repeatedly assured the undercover agents that he and DeGrandis had the heroin and were capable of producing one to two kilograms of heroin. (Gov't Exh. G 110A at 14, 15 & 16).
10. Caterini, however, refused to have DeGrandis come to the Marriott or to have the deal go forward at the Marriott. (Gov't Exh. G 110A at 8-18). Caterini refused to bring the heroin to the Marriott because of concern about the possibility of being arrested for a large amount of heroin; in negotiating where to complete the deal for the kilogram he said:
What is this? I mean, we gotta be the ones with stuff, don't worry. But the money's fine, but nobody's, we're in a public place. I'm gonna go give me the money. Or you gonna do something, uh, strange. You know, it's not the ah, I'm not pick a; you don't wanna come to the house is fine. . . . But not even a hotel or night club. Or anything that has got rooms connected and this shit. Cause the stuff is the stuff. With the stuff you do time. Money you can get away with it. . . The stuff, I don't give a fuck, is the stuff.
(Gov't Exh. G 110A at 11-12 & 8-15). Later in that same conversation Caterini reiterated his concern of the possibility of being arrested with the kilogram:
It's gonna be here, I told a certain time; near the bridge in New Jersey, you gonna be out. You pick the place, but not here. In this kinda thing; they got the product. They got the one that's going to jail for forty years. Fifty. Or maybe sixty. These days, . . . .
(Gov't Exh. G 110A at 14 & 8-15). As Caterini refused to do the deal at the Marriott or bring the heroin there, Caterini and the agents agreed to find a mutually suitable place for the meeting with DeGrandis in New Jersey. (Gov't Exh. G 110A at 19-23 & 10).
11. Caterini, Dante DeGrandis, Antonio DeMeo and Sgt. Guslavage met on the evening of July 17, 1990 in the parking lot of Pinocchio's restaurant in New Jersey. Caterini, DeGrandis and DeMeo told Sgt. Guslavage that they had the kilogram of heroin but they refused to do the deal in New Jersey. DeGrandis assured Sgt. Guslavage that he would guarantee his safety and that the deal would go forward at his house in Brooklyn as planned. Sgt. Guslavage, however, refused to go to Brooklyn for safety reasons. (Test. of Sgt. Guslavage on June 8, 1992).
12. On July 30, 1990, Caterini told Sgt. Guslavage that he could produce a kilo of heroin and would sell it for the $ 175,000 as originally agreed after they first had done a smaller deal to establish trust. (Gov't Exh. 114A, Tr. of July 30, 1990 at 1-6).
13. On August 3, 1992, Caterini told Sgt. Guslavage that he no longer wanted to be given money on top of the price for the heroin because Anthony DeMeo and he were working together and they were going to supply heroin to Guslavage in the future. (Gov't Exh. G 116A, Tr. of call between Caterini, DeMeo and Guslavage on August 3, 1990 at 1-4; Gov't Exh. G 117A, Tr. of call between Caterini and Guslavage on August 3, 1990 at 1-2) Before Caterini and DeMeo exchanged the kilo, however, they wanted to establish trust with a transfer of "twenty-five" or 2 1/2 ounces of heroin.
(Gov't Exh. G 116A at 5; Gov't Exh. G 117A at 2-4). DeMeo assured Guslavage that "he doesn't like to play games" and the deal will go smoothly from his side. (Gov't Exh. G 116A at 6).
14. On August 6, 1990, Caterini and DeMeo met with Sgt. Guslavage at the Marriott and negotiated the sale of the kilogram of heroin. Following this meeting, Guslavage followed the two to Caterini's apartment to continue negotiations. (Test. of Sgt. Guslavage of June 8, 9, 10 and July 15, 1992).
15. On August 7, 1990, Caterini told Sgt. Guslavage that he could get the heroin and he wanted Sgt. Guslavage to come to New York for the deal; the 2 1/2 ounces would be in Caterini's apartment and the rest nearby his apartment, Sgt. Guslavage would get the heroin in "chunks" so that he would have the kilo in a short period of time (Caterini said that he would likely have the entire kilo by that night) (Gov't Exh. G 122B, Tr. of call between Guslavage and Caterini on August 7, 1992 at 1-4 & 6-7). Sgt. Guslavage refused to come to New York to do the deal. (Gov't Exh. G 122B at 2-4 & 6-8 and Gov't Exh. G 112C at 2). Caterini, however, wanted to do the deal in smaller portions in New York to protect himself. (Gov't Exh. 122B at 3, 7 & 8 ) ("And what if I come with you then, with the thing . . . what's going to happen? Somebody is going to do something to me?").
In another telephone call on the evening of August 7, 1992, Guslavage called to tell Caterini and DeMeo that he would be leaving for Virginia soon and that they could deliver the 2 1/2 ounces to his partner, Sgt. McCummings, at the Marriott. ( Gov't Exh. 123 A at 1-2). DeMeo refused to come to New Jersey. (Gov't Exh. 123 A). Then, later that evening, Caterini called and reluctantly agreed to come to New Jersey with the 2 1/2 ounces. (Gov't Exh. G 124 A).
16. On the evening of August 7, 1990, Caterini and DeMeo met with Sgt. Guslavage and Sgt. McCummings at the Marriott. Caterini and DeMeo informed the undercover agents that the kilogram would be delivered in 2 1/2 ounce portions. Caterini showed the first 2 1/2 ounce installment of heroin to Sgt. Guslavage in the men's room at the Marriott. Caterini and DeMeo were thereafter arrested on the evening of August 7, 1990. The heroin was supplied by Chaudry Mohammed Amin and had a net weight of 67.2 grams and was 36% pure. (See Test. of Sgt. Guslavage of June 9-10, 1992 & Gov't Exh. 3A).
17. Immediately after being arrested, DeMeo agreed to cooperate with the Government and called Chaudry Mohammed Amin on August 7, 1990 to arrange for the delivery of the next one or two installments of heroin. (Gov't Exh. G 125A, G 126A, & G 127A transcripts of telephone conversations between Amin and DeMeo). Amin agreed, in code to provide the next installment and met DeMeo on a street corner in Manhattan. (Gov't Exh. G 125A, G 126A & G 127A).
18. Caterini, DeGrandis, and DeMeo agreed and conspired to sell one kilogram of heroin to the undercover agents. Caterini, DeGrandis and DeMeo had the intent and ability to produce the negotiated kilogram of heroin. The court finds that the amount of heroin to be attributed to Caterini is 1,024.19 grams. This amount includes the .29 gram sample delivered on June 8, 1990, the 23.9 gram sample delivered on June 18, 1990 as well as the negotiated kilogram for a total of 1,024.19 grams.
Flight to Canada and Acceptance of Responsibility