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Case 1:15-cr-00765-PAC Document 178 Filed 08/25/17 Page 1 of 60

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
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:
UNITED STATES OF AMERICA, :
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- v. - : S2 15 Cr. 765 (PAC)
:
EFRAIN ANTONIO CAMPO FLORES and :
FRANQUI FRANCISCO FLORES DE FREITAS, :
:
Defendants. :
:
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DEFENDANTS JOINT INITIAL SENTENCING SUBMISSION IN OPPOSITION TO


THE GUIDELINES CALCULATIONS IN THE PRESENTENCE REPORTS
Case 1:15-cr-00765-PAC Document 178 Filed 08/25/17 Page 2 of 60

TABLE OF CONTENTS

INTRODUCTION ...................................................................................................................... 1
ARGUMENT .............................................................................................................................. 3
I. The PSRs Overstate the Amount of Alleged Cocaine Involved in the
Charged Conspiracy Pursuant to Section 2D1.1s Quantity Table ......................... 3
II. The PSRs Incorrectly Apply a Two-Level Enhancement Pursuant to
Section 2D1.1(b)(15)(C) ...................................................................................... 6
III. Neither the Evidence nor the Law Justifies the Imposition of a Two-Point
Enhancement for the Use of an Aircraft Other than a Regularly Scheduled
Commercial Air Carrier, Pursuant to U.S.S.G. Section 2D1.1(b)(3)(A) ................ 7
IV. Applying an Obstruction of Justice Enhancement Would Contravene
Established Second Circuit Law ........................................................................... 9
V. The Record Fails to Establish that the Defendants Were Leaders or
Organizers of a Conspiracy of Five or More Participants .................................... 12
a. The Defendants Did Not Demonstrate the Heightened Control of a
Leader, or Sufficient Control Over Others to Apply the Manager
Enhancement .......................................................................................... 13
b. The Evidence Is Insufficient to Support a Finding by a
Preponderance that There Were Five or More Knowing
Participants in the Offense ...................................................................... 18
c. The Conspiracy Was Not Otherwise Extensive, as the Services of
Any Unknowing Participants Were Not Peculiar or Necessary to
the Offense ............................................................................................. 28
VI. There Is No Basis in the Trial Record for the PSRs Inclusion of a
Firearms Enhancement Pursuant to Section 2D1.1(b)(1)..................................... 29
VII. The PSRs Enhancement for Use of Violence in Connection with the
Offense is Based on Mischaracterized and Unsubstantiated Conduct
Completely Unrelated to the Offense of Conviction and Would Constitute
a Miscarriage of Justice ...................................................................................... 31
VIII. An Enhancement for Death in Connection with the Charged Conspiracy
Would Be Wholly Unfounded and Inappropriate ................................................ 36
IX. The PSRs Improperly Rely on Foreign Uncharged Conduct to Support
Sentencing Enhancements .................................................................................. 39
X. Applying a Bribery Enhancement Contravenes the Plain Text of the
Guidelines and the Law ...................................................................................... 41
a. The Guidelines Apply Only to Defendants Bribery or Attempted
Bribery of U.S. Law Enforcement Officials and not Foreign Law
Enforcement Officials............................................................................. 41

i
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b. Even if the Court Assumes that the Enhancement Applies, There Is


Insufficient Evidence to Find by a Preponderance that the
Defendants Themselves Bribed or Attempted to Bribe a Law
Enforcement Official in Connection with the Offense ............................. 42
XI. A Sixteen-level Increase in the Base Offense Level Grossly Overstates the
Seriousness of the Offense of Conviction and the Defendants Culpability ......... 43
XII. The Defendants are Eligible for Safety Valve Relief .......................................... 44
XIII. Appropriate Consideration of the Section 3553(a) Factors Requires the
Imposition of a Sentence Substantially Below the Guidelines Range .................. 48

ii
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TABLE OF AUTHORITIES

Page(s)

Cases

McDonnell v. Am. Leduc Petroleums, Ltd.,


456 F.2d 1170 (2d Cir. 1972)............................................................................................... 19

United States v. Agudelo,


414 F.3d 345 (2d Cir. 2005) ...................................................................................... 9, 10, 11

United States v. Azeem,


946 F.2d 13 (2d Cir. 1991) ............................................................................................ 39, 40

United States v. Barbera,


No. 02 CR. 1268 (RWS), 2004 WL 2403868 (S.D.N.Y. Oct. 27, 2004) ......................... 13, 19

United States v. Bastidas,


658 F. Appx 878 (9th Cir. 2016) ........................................................................................ 48

United States v. Beaulieau,


959 F.2d 375 (2d Cir. 1992) ................................................................................................ 12

United States v. Blount,


291 F.3d 201 (2d Cir. 2002) ................................................................................................ 14

United States v. Brinkworth,


68 F.3d 633 (2d Cir. 1995) .................................................................................................. 19

United States v. Brown,


321 F.3d 347 (2d Cir. 2003) .................................................................................................. 9

United States v. Caballero,


93 F. Supp. 3d 209 (S.D.N.Y. 2015), affd, United States v. Caballero, 672 F.
Appx 72 (2d. Cir. 2016) ............................................................................................... 14, 15

United States v. Cambrelen,


29 F. Supp. 2d 120 (E.D.N.Y. 1998).................................................................................... 51

United States v. Carrozzella,


105 F.3d 796 (2d Cir. 1997), abrogated in part on other grounds, United
States v. Kennedy, 233 F.3d 157 (2d Cir. 2000) ................................................................... 28

United States v. Castillo,


14 F.3d 802 (2d Cir. 1994) .................................................................................................. 14

United States v. Cavera,


550 F.3d 180 (2d Cir. 2008) ................................................................................................ 44
iii
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United States v. Chacko,


169 F.3d 140 (2d Cir. 1999) ................................................................................................ 28

United States v. Chastain,


198 F.3d 1338 (11th Cir. 1999).............................................................................................. 8

United States v. Chunza-Plazas,


45 F.3d 51 (2d Cir. 1995) .............................................................................................. 39, 40

United States v. Cordoba-Murgas,


233 F.3d 704 (2d Cir. 2000) .................................................................................................. 4

United States v. Dunnigan,


507 U.S. 87 (1993) .............................................................................................................. 10

United States v. Fernandez,


636 F. Appx 71 (2d Cir. 2016), cert. denied, 137 S. Ct. 2283 (2017) ............................ 32, 33

United States v. Harris,


578 F. Appx 451 (5th Cir. 2014) .................................................................................. 35, 36

United States v. Hertular,


562 F.3d 433 (2d Cir. 2009) ................................................................................................ 16

United States v. Jasso,


634 F.3d 305 (5th Cir. 2011) ............................................................................................... 47

United States v. Jimenez,


451 F.3d 97 (2d Cir. 2006) .................................................................................................. 45

United States v. Joelson,


7 F.3d 174 (9th Cir. 1993) ..................................................................................................... 8

United States v. Kent,


821 F.3d 362 (2d Cir. 2016) ................................................................................................ 28

United States v. Lanese,


890 F.2d 1284 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990) ......................................... 19

United States v. Lobo,


No. 15 Cr. 174 (LGS), 2017 WL 2838187 (S.D.N.Y. June 30, 2017)............................. 42, 43

United States v. Medrano-Rodriguez,


606 F. Appx 759 (5th Cir. 2015) ........................................................................................ 32

United States v. Nolan,


136 F.3d 265 (2d Cir. 1998) .......................................................................................... 18, 19

iv
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United States v. Ortiz-Rodriguez,


789 F.3d 15 (1st Cir. 2015) .................................................................................................. 32

United States v. Paccione,


202 F.3d 622 (2d Cir. 2000) ................................................................................................ 13

United States v. Panduro,


38 F. Appx 36 (2d Cir. 2002) ....................................................................................... 51, 52

United States v. Patasnik,


89 F.3d 63 (2d Cir. 1996) .................................................................................................... 13

United States v. Pellegrini,


929 F.2d 55 (2d Cir. 1991) .................................................................................................. 29

United States v. Polanco,


37 F. Supp. 2d 262 (S.D.N.Y. 1999) .................................................................................... 12

United States v. Putten,


362 F. Appx 218 (2d Cir. 2010) ................................................................................... 43, 44

United States v. Reyes,


384 F. Appx 37 (2d Cir. 2010) ..................................................................................... 13, 14

United States v. Rivalta,


892 F.2d 223 (2d Cir. 1989) .......................................................................................... 37, 38

United States v. Russell,


No. 3:09-CR-266-CFD, 2011 WL 1885345 (D. Conn. May 18, 2011), affd,
United States v. Russell, 513 F. Appx 67 (2d Cir. 2013) ..................................................... 22

United States v. Santillan,


13 Cr. 138-1 (RWS), 2016 WL 1071106, at *3 (S.D.N.Y. Mar. 18, 2016) .......................... 33

United States v. Skys,


637 F.3d 146 (2d Cir. 2011) .......................................................................................... 45, 46

United States v. Smith,


215 F.3d 237 (2d Cir. 2000) ................................................................................................ 31

United States v. Smythe,


363 F.3d 127 (2d Cir. 2004) ................................................................................................ 29

United States v. Suarez,


No. 11 Cr. 836 (KBF), 2014 WL 1998234 (S.D.N.Y. May 15, 2014), affd,
United States v. Suarez, 615 F. Appx 5 (2d Cir. 2015) ........................................................ 33

v
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United States v. Sykes,


854 F.3d 457 (8th Cir. 2017) ............................................................................................... 36

United States v. Turner,


624 F. Supp. 2d 206 (E.D.N.Y. 2009) .................................................................................. 40

United States v. Walker,


578 F. Appx 812 (11th Cir. 2014) ...................................................................................... 33

United States v. Ware,


577 F.3d 442 (2d Cir. 2009) ................................................................................................ 13

United States v. Yu Ming Chen,


597 F. Appx 650 (2d Cir. 2015) ......................................................................................... 14

Statutes

18 U.S.C. 3553 ................................................................................................ 44, 45, 47, 48, 49

21 U.S.C. 848......................................................................................................................... 46

Fair Sentencing Act, Pub. L. No. 111220 (2010) ......................................................... 32, 41, 42

U.S.S.G. 2D1.1............................................................................................ 4, 5, 7, 8, 29, 32, 41

U.S.S.G. 3B1.1.................................................................................... 12, 13, 14, 16, 28, 45, 46

U.S.S.G. 3C1.1............................................................................................................. 9, 11, 12

U.S.S.G. 5C1.2........................................................................................................... 44, 45, 46

U.S.S.G. 5K2.1 ...................................................................................................................... 37

U.S.S.G. 6A1.3. ....................................................................................................................... 4

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INTRODUCTION

Defendants Efrain Antonio Campo Flores (Campo) and Franqui Francisco Flores de

Freitas (Flores) respectfully submit this Joint Initial Sentencing Submission to challenge

findings made in the Defendants respective Presentence Investigation Reports (Campo PSR and

Flores PSR, collectively, the PSRs). The PSRs contain a lengthy description of the purported

Offense Conduct from the trial. (See Campo PSR 7-117; Flores PSR 7-118). While

presented as the conclusions of the Probation Office, the description of the case and the evidence

from trial is essentially a verbatim reiteration of the Governments post-trial briefing that appears

simply to have been inserted into the PSRs. As such, the Offense Conduct description should

be accorded little weightit certainly does not represent an objective analysis of the trial record

by what should be an independent arm of the Court, namely, the Probation Office.

In that regard, the Offense Conduct section (which is nearly identical for each defendant)

goes well beyond describing the importation conspiracy charged in the Indictment and instead

traffics in unfounded speculation and fabricated allegations of murder, bribery, and other activities

wholly unrelated to the proof adduced at the trial. The fact that the Government is relying so

heavily on these false and irrelevant claims only bolsters the Defendants repeated arguments that

the charged conspiracy is overblown and largely the creation of corrupt informants.

Indeed, the excessive Offense Conduct section, the extraordinary number of punitive

Guidelines enhancements it purports to require (and which the Probation Office mechanically

applied), and the outrageous Guidelines sentencing range it produces are all of a piece with the

Governments pattern of over-reach in this case. Here, the Government orchestrated an elaborate

sting operation, but netted only non-violent participants. No drugs or guns were seized, no acts of

violence were committed in connection with the case, and the Defendants turned out to be

inexperienced amateurs and not major drug traffickers. While the Government touted a major
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international cocaine ring, the proof showed only bungling discussions of a drug plot that could

never actually have been executed. If the trial proved anything, it was that the Governments

informants were much bigger drug dealers than the Defendants were even alleged to be, and that

the informants carried out this drug dealing throughout the investigation and even the trial, even

while lying through their teeth to their DEA handlers who paid them and the prosecutors who

signed them to cooperation agreements.

Rather than accept the reality of the case, the proof, and the Defendants, however, the

Government appears determined to seek the highest possible sentence, as opposed to a reasonable

sentence in the circumstances. But lacking the factual basis of an actual, violent international drug

prosecution, the Government now appears to be trying to dress up its case with irrelevant and

extraneous allegations that have nothing to do with the charged importation conspiracy. By raising

sensationalistic claims about disconnected violence, political corruption, and uncharged foreign

conduct, the Government appears to be painting the Defendants in a false and exaggerated light in

order to justify a lengthy sentence. This is not right; this is not justice. This case turned out to be

a largely failed sting involving, at best, clumsy amateurs, but the Government is trying to turn

the sentencing into a headline-grabbing murder/extortion/bribery/gun trafficking crime spree that

is disconnected from the conspiracy that was the subject of the trial. No reasonable person who

sat through the trial could come away with that impression of the case or the Defendants.

Nevertheless, we are headed toward sentencing with a PSR in which the sentence

inexplicably recommended by the Probation Officelife imprisonment for both Defendantsis

wildly disproportionate to what the proof showed was their actual offense conduct. In a dry sting

case where the Government failed to seize any actual narcotics; where the amount of the alleged

shipment at issue was wholly invented (and inflated) by the Governments informants; where the

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Government has offered no evidence that the Defendants have ever actually distributed a single

gram of narcotics to anyone, anywhere, much less into the United States; and where there is no

evidence that the Defendants possessed weapons or engaged in any acts of violence, much less

murder, in connection with the offense of conviction, a life sentence would be grossly excessive,

unfair, and unjust. Indeed, justice demands that the Defendants be sentenced not for the case the

Government wishes it had, but for the offense the Defendants were actually convicted ofa dry,

non-violent sting concocted by corrupt informants.

Below, the Defendants focus on the Guidelines analysis and findings issued by the

Probation Office (based on the Governments factual allegations) and present their objections to

those findings. As demonstrated below, there are numerous factual disputes relating to the

Guidelines enhancements sought by the Government and found by the Probation Office. And

because the Government has offered insufficient proofor, indeed, no proof at allto support the

enhancements, the Court cannot impose them. At minimum, the Government would have to

present additional competent evidence to establish the enhancements by a preponderance of the

evidence before the Court could impose them. Based on the trial record and the discovery provided

in this case, however, the Government cannot make the requisite showings under that standard.

ARGUMENT

I. The PSRs Overstate the Amount of Alleged Cocaine Involved in the Charged
Conspiracy Pursuant to Section 2D1.1s Quantity Table

The PSRs reiterate the claim made by the Government that the Defendants should be liable

for the distribution of more than 450 kilograms of cocaine for purposes of calculating their

respective offense levels under Section 2D1.1. (Campo PSR 94; Flores PSR 95; Op. & Order,

Mar. 24, 2017, at 1 (Dkt. No. 167) (noting the Government claimed that the conspiracy involved

800 kilograms of cocaine)). That amount of cocaine, unsurprisingly, yields the highest possible

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offense level38under Section 2D1.1s Drug Quantity Table. See U.S.S.G. 2D1.1(c)(1). The

Governments and Probations calculations, however, ignore the clear mandates of the Guidelines

themselves, as well as the fact that the amount is a fiction manufactured by the Governments

corrupt informants that could never actually have been procured. As the Court is well aware, there

was never any delivery of cocaine in this case. At most, the evidence shows the Defendants ability

to procure a single kilogram. The finding in the PSRs that CAMPO and FLORES are accountable

for the conspiracy to import, or manufacture and distribute more than 450 kilograms of cocaine

(Campo PSR 94; Flores PSR 95) is simply wrong.

The law is clear that the Government bears the burden of establishing the amount of

narcotics involved by a preponderance of the evidence. See, e.g., United States v. Cordoba-

Murgas, 233 F.3d 704, 708 (2d Cir. 2000); U.S.S.G. 6A1.3 cmt. (The Commission believes that

use of a preponderance of the evidence standard is appropriate to meet due process requirements

and policy concerns in resolving disputes regarding application of the guidelines to the facts of a

case.). In the Courts Opinion and Order on the Defendants Rule 29 and 33 motions, the Court

held that, [v]iewing the evidence in conjunction, and in the light most favorable to the

government, the Court does not find the evidence introduced at trial so meager that no reasonable

jury could have found Defendants agreed on the essential terms of the conspiracy. (Op. & Order,

Mar. 24, 2017, at 3-4 (Dkt. No. 167)). That ruling, however, did not address what the evidence

shows, by a preponderance, was the agreed upon weight of the cocaine. Rather, it looked at the

charged conduct through the much lower standard (light most favorable to the government)

applicable to such motions. For the reasons set forth in the Defendants Rule 29 and Rule 33

briefing, there was no actual agreement to distribute a large amount of cocaine and the Government

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has not met its initial burden of demonstrating the actual amount of narcotics involved by a

preponderance of the evidence for sentencing purposes.

More importantly, even if the Government made a prima facie showing that the Defendants

verbally reached an agreement to export a multi-kilogram amount of cocaine from Venezuela, both

the Government and Probation ignore the clear dictate of the Guidelines, which provides that:

[i]f, however, the defendant establishes that the defendant did not intend to provide
or purchase, or was not reasonably capable of providing or purchasing, the agreed-
upon quantity of the controlled substance, the court shall exclude from the offense
level determination the amount of controlled substance that the defendant
establishes that the defendant did not intend to provide or purchase or was not
reasonably capable of providing or purchasing.

U.S.S.G. 2D1.1 cmt. app. n. 5. Here, for reasons articulated in the post-trial motions, it is clear

that the Defendants were incapable of providing the amount of cocaine claimed by the Government

and Probation and that they had no intention of ever delivering it.

The Governments own witnesses described the Defendants as novices who were

inexperienced and unsophisticated in the narcotics trade. This assessment was corroborated by the

fact that neither Defendant had any prior criminal history. Similarly, prior to the sting operation

in this case, the DEAs elite international narcotics unit had never heard of the Defendants. Indeed,

the lead DEA investigator in the case testified at trial that he concluded the Defendants were

amateurs. (Tr. 376 (Testimony of Special Agent Gonzalez) (Q. And you very quickly came to

the conclusion that they were amateurs, right? A. Im not sure if I very quickly came to that

conclusion or not. Q. But you came to that conclusion, right? A. Yes.). The Governments

informants, who were long-time major drug dealers, also considered the Defendants to be utter

novices who did not know what they were doing. For example, while discussing the Defendants

among each other, Special Agent Gonzalez and CS-1 referred to the Defendants as idiots. (Id.).

Perhaps the best proof that the Defendants were novices with a total lack of experience was that

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they actually fell for CS-1s proposal that they travel to Haiti to obtain millions of dollars in cash

without having to deliver any drugsa scenario so absurd that no experienced drug dealer would

have believed it and so implausible that Gonzalez and CS-1 had a bet with one another as to

whether they would or not. (Tr. 379, 870-72).

In addition to having a total lack of experience in the narcotics trade, the Defendants

repeatedly demonstrated that they did not have the means to carry out the charged crime. The best

evidence of this, of course, is that the Defendants never showed, much less delivered, a multi-

kilogram load to the informants. Not ten kilograms, not 100 kilograms, not 451 kilograms. In

short, a load of more than 450 kilograms of cocaine is a massive amount of narcotics that only

experienced and sophisticated traffickers could actually obtain. Nothing in the record suggests

that the Defendants were capable of delivering such a huge load to the informants.

In addition, it was the informants who dictated, manipulated, and ultimately set the

amounts of cocaine that the deal was supposed to involve. Those utterly discredited informants

were incentivized to create the illusion of a massive narcotics scheme for their own benefit, and to

maximize leverage over the Defendants to compel their cooperation with the DEA. It was those

incentives that caused the informants to inflate the amount of narcotics involved in the deal to

impossible quantities that bore no relation to the reality of the situation. The informants managed

the contours of the proposal and that alone shows how unrealistic it was. The Defendants plainly

should not be held accountable for the outrageous amount of cocaine asserted by Probation and

the Government.

II. The PSRs Incorrectly Apply a Two-Level Enhancement Pursuant to Section


2D1.1(b)(15)(C)

The PSRs further increase the Defendants offense levels by applying a two-level increase

pursuant to Section 2D1.1(b)(15)(C), which applies when the defendant was directly involved in

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the importation of a controlled substance. (Flores PSR 126; see also Campo PSR 127). Once

again, Probation and the Government pile on an enhancement while ignoring the rules relating to

its application. The commentary to this section clearly states that it applies when the defendant

committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused the

importation of a controlled substance. U.S.S.G. 2D1.1 cmt. app. n. 20(B). In this case there

was never actually any importation of cocaine into the United States. This Guidelines provision,

on its face, does not include a conspiracy to import narcotics where none are actually delivered.

Rather, the text of the commentary includes only actions relating to the actual importation of

narcoticswhich did not occur here. Accordingly, this enhancement should not be applied.1

III. Neither the Evidence nor the Law Justifies the Imposition of a Two-Point
Enhancement for the Use of an Aircraft Other than a Regularly Scheduled
Commercial Air Carrier, Pursuant to U.S.S.G. Section 2D1.1(b)(3)(A)

For at least three reasons, the Court should reject the imposition of the enhancement

proposed at paragraphs 125 and 124 of the Defendants respective PSRs. (Campo PSR 125;

Flores PSR 124). First, as a factual matter, there was no evidence introduced at trial that the

Defendants ever actually imported any narcotics into the United States. Indeed, there was no

evidence that the Defendants ever participated in any planning involving using a private aircraft

to send drugs into the United States. Even the most aggressive interpretation of the Governments

evidence could support only the idea that the defendants conspired to use a private aircraft to send

narcotics into Honduras, while the means by which they would be transported from Honduras into

the United States were never established. This enhancement is therefore inapplicable on its face

based on the insufficient evidence in the record. Moreover, even if there was evidence that the

1
In any event, a necessary condition precedent to the application of this enhancement is that the defendant be found
to have an aggravating role under Section 3B1.1. As set forth below, no such aggravating role should be found in
this case and, therefore, this section would be inapplicable for that reason as well.

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conspiracy had intended to send narcotics through a private aircraft into the United States, this

Section of the Guidelines is inapplicable to a conspiracy that did not result in actual importation.

See United States v. Chastain, 198 F.3d 1338, 1353 (11th Cir. 1999) (In Appellants case, there

was clearly an attempt and a conspiracy, on which the district court relied in applying this

enhancement. However, the plain language of the guideline that uses the past tense, viz used to

import, cannot be ignored. When the language of the guideline is clear, it is not necessary to look

elsewhere for interpretation. Here, the language of the guideline clearly contemplates a completed

event, an actual importation. That did not occur in this case.).

Relatedly, the courts that have considered this issue have made clear that this enhancement

should not apply in a situation like the case at hand, where no part of the supposed conspiracy

involved flying a private aircraft directly into the United States. See United States v. Joelson, 7

F.3d 174, 180 (9th Cir. 1993) (The cocaine was imported from the landing strip in Guatemala to

the United States. Although a private plane flew the cocaine to Guatemala, a commercial Pan Am

air carrier was used to import the cocaine into the United States. See U.S.S.G. 2D1.1(b)(2).

Stretching the definition of used to import to incorporate any use of a private airplane, regardless

of whether it was used during the actual importation of the cocaine, flies in the face of the plain

language of section 2D1.1(b)(2).) (citation omitted). The Joelson courts reading of 2D1.1 is the

only logical interpretation of the Section. It cannot apply under the instant facts.

Finally, the Commentary to Section 2D1.1(b)(3)(A) specifically instructs that [i]f

subsection (b)(3) or (b)(5) applies, do not apply subsection (b)(15)(C). See U.S.S.G. 2D1.1

cmt. app. n.20(B). Here, the PSRs improperly suggest the imposition of an enhancement under

both provisions. (See Campo PSR 125, 127; Flores PSR 124, 126). Thus, even if this

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enhancement were properly included in the Guidelines calculation, the Government cannot press

for the imposition of both this enhancement and the (b)(15)(C) enhancement.

IV. Applying an Obstruction of Justice Enhancement Would Contravene Established


Second Circuit Law

The PSRs apply a two-level enhancement for obstruction of justice under U.S.S.G.

3C1.1. Because the Government has offered no proof of the sort required under Second Circuit

law to support the imposition of this enhancement, it should be denied.

Section 3C1.1 authorizes a two-level upward adjustment [i]f . . . the defendant . . .

attempted to obstruct or impede[] the administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction, and . . . the obstructive conduct

related to . . . the defendant's offense of conviction and any relevant conduct . . . . U.S.S.G.

3C1.1. As the Second Circuit ha[s] repeatedly held[,] . . . an enhancement under 3C1.1 is

appropriate only if the district court makes a finding that the defendant had the specific intent to

obstruct justice, i.e., that the defendant consciously acted with the purpose of obstructing justice.

United States v. Brown, 321 F.3d 347, 351 (2d Cir. 2003) (quoting United States v. Woodard, 239

F.3d 159, 162 (2d Cir. 2001)). Thus, for example, before applying an obstruction enhancement

based on perjury, the sentencing court must find by a preponderance of the evidence that the

defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the intentional (b)

giving of false testimony (c) as to a material matter. United States v. Agudelo, 414 F.3d 345,

349 (2d Cir. 2005) (quoting United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997)). This Court

must make an express finding as to each of these elements by a preponderance of the evidence in

order to apply the enhancementwhich in this case the Court cannot do.

Here, the Government offered no evidence at trial suggesting that the Defendants had a

willful, specific intent to obstruct justice. Instead, the Government evidently takes the view that

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an obstruction enhancement is appropriate simply because this Court declined to credit the

affidavits that the Defendants submitted in connection with their pretrial motions. But that is not

the law. Indeed, the Second Circuit has expressly rejected this proposition: [M]erely because

the court credited the testimony of the law enforcement agents . . . does not necessarily mean [that

the defendant] gave knowingly false testimony in his affidavit. Such a per se rule would

contravene [United States v. Dunnigan, 507 U.S. 87, 94 (1993)] . . . because it would leave no

room for consideration of possible mistake, confusion, or honest belief. Agudelo, 414 F.3d at

349; see also id. at 350 (rejecting the notion that any time a defendant . . . submits an affidavit

that is sufficient to justify a suppression hearing, he would automatically be subject to an

enhancement for obstruction of justice if the suppression motion is denied). Thus, application of

the enhancement on this record would fly squarely in the face of established Second Circuit

precedent.

Dunnigan makes clear that a court cannot impose the obstruction enhancement based on

false testimony that is offered as a result of confusion, mistake or faulty memory, 507 U.S. at 94

(citation omitted), nor in cases where, rather than willfully fabricating the affidavit in order to

obstruct justice, [the defendant] may well have simply misunderstood the agents comments or

misremembered the chronology of the conversation, Agudelo, 414 F.3d at 350. Similarly, in this

case the Government has failed to establish by a preponderance of the evidence that the Defendants

attempted intentionally to mislead the Court, rather than simply misremembered the events.

The affidavits that the Defendants submitted to the Court in connection with their pretrial

motions presented the Defendants recollections of what happened to them at the time of their

arrest and rendition to the United States. The affidavits clearly conveyed that the Defendants were

subjected to a chaotic, disorientating, and frightening experience, as even the agents own

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testimony at the suppression hearing reflected. (Op. & Order, Oct. 12, 2016, at 11 (Dkt. No. 76)

(Mr. Campo Flores cried on several occasions) (citing Tr. 316)). The Defendants did not speak

English and did not hav[e] prior experience with the United States legal system. (Id. at 15).

Given the stressful circumstances of their arrest and their lack of understanding of what was

happening to them, it is not surprising that the Defendants may have remembered the events

differently and with a rather different perspective than did the DEA agents who testified.

The Court, in its pretrial order, declined to credit parts of the Defendants affidavits. But

misremembering or misunderstanding the circumstances surrounding their arrests is not

obstruction of justice. For example, while the Court suggested in its pretrial order that the

Defendants claims that they feared being kidnapped and possibly murdered seem exaggerated,

(Id. at 16 n. 8), that observation is a far cry from finding that the Defendants willfully lied with the

specific intent to obstruct justice. In short, the Government has failed to make a sufficient showing

of intent to support an obstruction of justice enhancement.

Indeed, accepting the Governments request for an obstruction enhancement under these

circumstances would seriously chill the exercise of defendants constitutional rights to bring

pretrial motions. See Agudelo, 414 F.3d at 350 (describing the troubling prospect that future

defendants might either be deterred from pressing arguably meritorious Fourth Amendment claims

or unfairly punished when they do); see also U.S.S.G. 3C1.1 cmt. app. n.2 (This provision is

not intended to punish a defendant for the exercise of a constitutional right.). Applying the

enhancement here would achieve exactly the result that the statute expressly seeks to avoid.

Finally, a finding that the Defendants willfully intended to obstruct justice is also

inappropriate here because the Defendants did not testify at trial or at the pretrial suppression

hearing, giving the Court no opportunity to observe and assess their demeanor or other factors that

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could shed light on their intent. See, e.g., United States v. Polanco, 37 F. Supp. 2d 262, 266

(S.D.N.Y. 1999) (no obstruction enhancement where, inter alia, the defendant did not testify,

[and so] Court did not have the benefit of observing demeanor and responsiveness, factors that

might . . . have been dispositive on the question of willfulness).2 As this Court recognized,

Defendants did not testify at the hearing; they were not subject to cross examination and the Court

was unable to assess their demeanor. (Op. & Order, Oct. 12, 2016, at 16 n. 8 (Dkt. No. 76))

(emphasis added). For all of these reasons, the Section 3C1.1 enhancement should be rejected.

V. The Record Fails to Establish that the Defendants Were Leaders or Organizers of a
Conspiracy of Five or More Participants

The evidence adduced at trial and otherwise in the case was insufficient to establish that a

four-level increase for role in the offense pursuant to U.S.S.G. 3B1.1(a) should apply. Section

3B1.1(a) authorizes a four-level upward adjustment [i]f the defendant was 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 qualify for an adjustment under 3B1.1(a), a defendant must have been the

organizer [or] leader[] . . . of one or more other participants. U.S.S.G. 3B1.1 cmt. app. n.2.

Whether a defendant is considered a leader depends upon the degree of discretion

exercised by him, the nature and degree of his participation in planning or organizing the offense,

and the degree of control and authority exercised over the other members of the conspiracy.

United States v. Beaulieau, 959 F.2d 375, 379-80 (2d Cir. 1992) (citation omitted). The Second

Circuit has stressed the importance of making individualized findings of fact to support an increase

in the base offense level for a defendants role in the offense, and it is well-established that one

conspirators leadership role is not dispositive on the question of whether another was also a

2
Indeed, the Government suggested in its post-hearing brief that this Court not give any evidentiary weight to the
Defendants statements in their affidavits because they did not take the stand to testify. (Govt Oppn, Sept. 26,
2016, at 3 (Dkt. No. 65).

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leader. United States v. Reyes, 384 F. Appx 37, 42 (2d Cir. 2010) (quoting United States v.

Duncan, 42 F.3d 97, 106 n.6 (2d Cir. 1994)) (citation omitted).

A participant is a person who is criminally responsible for the commission of the

offense, but need not have been convicted. U.S.S.G. 3B1.1 cmt. app. n.1. A person is not

deemed a participant, however, if there is no indication in the record that they would be criminally

liable. United States v. Ware, 577 F.3d 442, 453 (2d Cir. 2009). Most critically for purposes of

the analysis in this case, [i]n assessing whether a criminal activity involved five or more

participants, only knowing participants are included. United States v. Paccione, 202 F.3d 622,

624 (2d Cir. 2000) (emphasis added); cf. United States v. Barbera, No. 02 CR. 1268 (RWS), 2004

WL 2403868, at *8 (S.D.N.Y. Oct. 27, 2004) (declining to impose enhancement where it is not

clear that all three had the specific knowledge required to qualify them as participants).

Thus, a court must make two specific factual findings before it can properly enhance a

defendants offense level under 3B1.1(a): (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. Patasnik, 89 F.3d 63, 68 (2d Cir. 1996) (citation omitted). Here, the

Government has failed to carry its burden with regard to either of these two requirements.

a. The Defendants Did Not Demonstrate the Heightened Control of a Leader, or


Sufficient Control Over Others to Apply the Manager Enhancement

The Government failed to present sufficient proof at trial for this Court to find by a

preponderance of the evidence that the Defendants acted in a leadership, supervisory, or

managerial capacity. The Guidelines outline seven factors that courts should consider in

determining whether a defendant acted in a leadership versus a managerial role: [T]he exercise

of decision making authority, the nature of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree

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of participation in planning or organizing the offense, the nature and scope of the illegal activity,

and the degree of control and authority exercised over others. U.S.S.G. 3B1.1 cmt. app. n.4;

see also United States v. Caballero, 93 F. Supp. 3d 209, 213 (S.D.N.Y. 2015) (The Second Circuit

has relied on the factors set forth in the Comment when distinguishing whether a defendant acted

in a leadership role versus a managerial role.) (citations omitted), affd, United States v.

Caballero, 672 F. Appx 72 (2d. Cir. 2016).

The Second Circuit has applied a leadership or managerial enhancement where defendants

play a significant role in essentially every aspect of the conspiracy, especially activities related to

the supply and transport of drugs. See, e.g., United States v. Yu Ming Chen, 597 F. Appx 650,

65152 (2d Cir. 2015) (summary order) (affirming leadership enhancement where defendant asked

co-conspirator to sell ketamine in the United States, actually shipped drugs to the United States,

and paid co-conspirator money after the drugs reached the United States); Reyes, 384 F. Appx at

42 (affirming leadership enhancement because defendant supplied seized cocaine, negotiated

purchase price of cocaine, and arranged for transportation of cocaine); United States v. Blount, 291

F.3d 201, 217 (2d Cir. 2002) (affirming manager enhancement for defendant who distributed

bundles of cocaine packages to street sellers and collected sales proceeds); United States v.

Castillo, 14 F.3d 802, 807 (2d Cir. 1994) (affirming defendants role as organizer where defendant

weighed and packaged cocaine sold to officer and possessed a portion of funds officer used to

purchase cocaine). But the Defendants have been unable to find cases in which courts in the

Second Circuit have applied the leader or manager role enhancement in factual circumstances

remotely similar to those present in this casean unconsummated dry conspiracy in which the

defendants were so inexperienced that they had to rely on the Governments informants for

guidance on the details of the deal.

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In order to apply the leadership enhancement, as opposed to the three-level manager or

supervisor enhancement, the court must find that the Defendants exercised the heightened control

associated with an enhancement as leader or organizer. See Caballero, 93 F. Supp. 3d at 219. If

(i) close supervision of any co-conspirator depends upon the instruction of others, (ii) co-

conspirators have their own long history of dealing narcotics at the time [the defendants recruit

them], (iii) the defendants use only limited measures to enforce parameters as to payment and

collection for sales and take no direct action to coerce collection, then any authority exercised

does not reflect the level of control consistent with a leader or organizer. See id. (citing United

States v. Batista, 684 F.3d 333, 34546 (2d Cir. 2012); United States v. Gaskin, 364 F.3d 438, 467

(2d Cir. 2004); United States v. Farah, 991 F.2d 1065, 1066 (2d Cir. 1993)). This is true even if

defendants exercise a managerial role through coordination of drug couriers, supervision of

customer payments and sales, retention of a substantially larger share of the proceeds, or wiring of

payments. See Caballero, 93 F. Supp. 3d at 214-18.

Here, the evidence reflects that the Defendants participation in the conspiracy did not even

rise to the level of a manager or supervisor, much less that of a leader, as the Defendants did not

coordinate any drug couriers, supervise any payments or sales, recruit any knowing participants,

retain any share of non-existent proceeds, or take any direct action to enforce any sort of payment.

Indeed, for example, Special Agent Gonzalez testified he was not aware of any weapons or drugs

that were found at the time of the Defendants arrest. See Tr. 403 (Q: The BLTS officers looked

at the plane? A: Yes, sir. Q: And they found no drugs, right? A: Not that Im aware of, no.

Q: They found no weapons, right? A: Not that Im aware of. Q: Well, you would be aware of it

if they had found anything, right? A: I assume they would have told me.).

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Most importantly, as the Governments proof made clear, the Defendants relied entirely on

cooperator Carlos Amilcar Leva Cabrera, also known as el Sentado, and confidential informants

CS-1 and CS-2 for recruiting accomplices, understanding the nature and scope of the illegal

activity, and controlling others, thus precluding a finding by a preponderance that either Defendant

acted in a leadership or managerial role. While [t]he fact that other persons may play still larger

roles in the criminal activity does not preclude a defendant from qualifying for a 3B1.1 (b)

enhancement, defendants must deal directly with suppliers, possess otherwise unavailable

information about U.S. agents, threaten the lives of federal law enforcement officers, or engage in

similar activities for the leadership enhancement to apply. See United States v. Hertular, 562 F.3d

433, 449 (2d Cir. 2009) (citation omitted).

There is no evidence that the Defendants in this case engaged in any such activities that are

typical of a leader of a narcotics conspiracy. Instead, the record is replete with evidence that the

Defendants relied entirely on Government agents and the agents recruits. (See, e.g., Tr. 299

(Special Agent Gonzalez) (Q: Well, there was a communication on October 23, wasnt there,

where you said to Jose Senior, a/k/a CS-1, he told Sentado they dont have airplanes, right? . . . .

A: I believe on October 23 that was the case.); Tr. 404 (Special Agent Gonzalez) (Q: Well, they

came to pick up the money, right? A: Yes. Q: And you arrested them at that time, right? A: Yes,

Sir. Q: And you didnt wait for them to deliver the drugs, right? A: No, sir.); Tr. 860 (CS-1)

(Q: Did you also understand that the original plan was that Sentado would locate the drug supplier

for the defendants? A: Yes, sir.); Tr. 866 (CS-1) (Q: Okay. And you had to explain about the

costs to them, right? A: Sentado had already explained that point to them. He, he, Mr. Campo,

told me.); Tr. 869 (CS-1) (Q: Right; you made them go to Haiti because you told them they were

going to receive millions of dollars if they went to Haiti, right? A: Thats what they wanted.);

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Tr. 1032 (Carlos Gonzalez) (Q: Focusing on 2014 and 2015. Who were some of the drug

traffickers that you were working with at the Roatan Airport? A: Mr. Marcos Merren was there.

He was an associate of Mr. Sentados. And with Roberto Soto.); Tr. 1047 (Carlos Gonzalez) (Q:

What did Soto tell you in early November 2015? A: He called me to tell me that Mr. Sentado

wanted to meet with us again regarding the drug shipment.); Tr. 1058 (Carlos Gonzalez) (Q:

What did you understand Soto to mean when he said that? A: That the money issue was not

relevant that day at the meeting because we would handle that with Mr. Sentado.); Tr. 1071

(Carlos Gonzalez) (Q: And what did Soto say to you at that point? A: Just that he was waiting

for Mr. Sentado to let him know when the drug shipment was going to take place. Q: Did the drug

shipment take place? A: No, sir.); GX 300-T at 2 (CS-1: Well look. Ill. Talk. To. Sentado

and. Work that. Out); GX 302-T at 5-6 (Campo: Damn no, I didnt understand that part.

Because centado also told me to let him know a day in advance. Should I notify you or him? CS-

1: Ok. Dont worry. Let me explain this. In a different. Way. Campo: And perfect I will notify

him at least two days in advance.); GX 302-T at 8 (CS-1: And. Tell your. Guy that whatever

he needs. To. Ask. Sentado. Immediately. Anything. No need for. My authorization. Tell him.

He already. Has it. Sir.). These exchanges are wholly inconsistent with a finding that the

Defendants were leaders, managers, or supervisors of the conspiracy.

Even the PSRs reflect that Mr. Campo and Mr. Flores failed to exercise any leadership

authority over any other knowing participants, and instead show that el Sentado and the informants

were the sole leaders and managers of the entire operation, including the negotiation of the price

of the drugs, the timing of payment, and the recruitment of others:

Campo PSR 46; Flores PSR 46 (Sentado told CAMPO that he would pay
between $12,000 and $12,200 per kilogram of cocaine in Honduras, but would
charge a flat rate of $900,000 for the landing and unloading, which would have
been higher [i]f we were going to Europe as opposed to the United States. Sentado

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told CAMPO and FLORES that they would be paid via Mexico three days after
the shipment of cocaine was sent.) (emphasis added).
Campo PSR 70; Flores PSR 70 (CS-1 wrote to CAMPO that he was waiting
for Sentado to set up the next meeting and now planned to provide $11 million up
front rather than $5 million.) (emphasis added).
Campo PSR 73; Flores PSR 73 (CAMPO subsequently asked CS-1 about the
price of cocaine in Honduras with respect to the 800 kilograms of cocaine that he
planned to send in early November 2015.) (emphasis added).
Campo PSR 80; Flores PSR 80 (Consistent with CAMPOs communications
with CS-1, FLORES indicated that he and CAMPO[] were prepared to proceed
with the first shipment on Friday the thirteenth of November. Soto and CS-3
responded, however, that the shipment needed to arrive in Honduras on Sunday,
November 15, 2015.) (emphasis added).

Thus, as both the PSRs and the trial record make clear, the Defendants were inexperienced

neophytes to the drug business who looked to el Sentado and the informants to guide them through

each stage of the conspiracy, precluding a finding that they were leaders, managers, or supervisors.

b. The Evidence Is Insufficient to Support a Finding by a Preponderance that


There Were Five or More Knowing Participants in the Offense

Separately, the Government has failed to show there were five or more knowing

participants to the offense. That is, the Government has failed to present evidence sufficient to

prove by a preponderance that any alleged co-conspirator had the requisite specific knowledge to

qualify as a knowing participant in the charged conspiracy, either to import narcotics into the

United States or to distribute narcotics with knowledge that they would end up in the United States.

Instead, the PSRas did the Government at trialoffers only speculation: lists of names of

individuals with whom the Defendants spoke, without any actual evidence that those individuals

were aware of, much less agreed to, any plan to import drugs into the United States. Indeed, the

only participants in these events that the evidence proved possessed such knowledge were the

Governments cooperating witness and informants.

A criminally responsible participant must have knowledge of, and participate in, the

criminal activity. See, e.g., United States v. Nolan, 136 F.3d 265, 273 (2d Cir. 1998) (identifying

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co-defendant as a knowing participant); United States v. Brinkworth, 68 F.3d 633, 641 (2d Cir.

1995) (affirming leadership enhancement in falsification of tax returns case based on finding that

defendants accountant was criminally responsible given accountants specific knowledge of

income not reported on tax returns); United States v. Lanese, 890 F.2d 1284, 129394 (2d Cir.

1989) (remanding to district court to determine number of participants, reasoning, evidence

clearly shows that at least five persons were involved in the illegal gambling operations. The

government presented no evidence, however, showing that the bookmakers participated in, or had

knowledge of, the use of extortionate means to collect illegal gambling debts, the crime charged.),

cert. denied, 495 U.S. 947 (1990).

A knowing participant must be aware of a concerted plan to engage in a conspiracy, and

must plan to effect or further those ends; acts taken in good faith do not constitute knowing

participation. See McDonnell v. Am. Leduc Petroleums, Ltd., 456 F.2d 1170, 1185 (2d Cir. 1972).

The trial record must make clear that a participant has specific knowledge of the conspiracy in

order for him to qualify as a knowing participant. See Barbera, 2004 WL 2403868, at *8. In the

absence of a finding of specific knowledge, any alleged participant is just an uninformed,

unwitting participant on the outskirts of a criminal conspiracy. See Brinkworth, 68 F.3d at 642.

Unknowing participants are those who facilitate a . . . defendant's criminal activities but are not

knowingly participating in the scheme. Barbera, 2004 WL 2403868, at *7 (citation omitted).

The PSRs fail to identify all of the alleged knowing participants, stating simply that, The

charged conspiracy involved a core group of additional co-conspiratorsincluding a man referred

to at various times as Pepero, Ppr, and Pepe (Pepe), a Honduran co-defendant named

Roberto de Jesus Soto Garcia (Soto), another Honduran co-defendant named Carlos Gonzalez

and the defendants body guards and security teamwith others joining the agreement as the

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defendants progressed with their efforts to capitalize on their political power in Venezuela . . . .

(See Flores PSR 10; Campo PSR 10). The PSRs fail to specify who the others joining the

agreement were, making it impossible to determine whether any such others were knowing

participants. The discussion below focuses on the most important individuals named in the PSRs.

Pepero

As the Defendants argued in their Joint Reply in Support of their Rule 29(c) Motion for

Judgment of Acquittal and Rule 33 Motion for a New Trial, [t]here was absolutely no evidence

introduced at trial . . . supporting the idea that Pepero was a member of the charged conspiracy.

(Defs. Joint Reply, Mar. 6, 2017, at 2 (Dkt. No. 166). Pepero did not participate in any of the

recorded meetings with informants, nor did he make any statement to law enforcement officers.

Trial testimony and Floress post-arrest statement indicate that Pepero introduced Flores and

Campo to Gocho, but nothing indicates that Pepero was even aware ofmuch less a knowing

participant inthe charged conspiracy to import narcotics into the United States. (See Tr. 162

(Special Agent Gonzalez) (A: Mr. Flores stated that he had talked to Pepero about this potential

deal that he had in mind and Pepero then introduced him to El Gocho); Tr. 463 (Special Agent

Gonzalez) (A: . . . Who introduced to Gocho? Pepero introduced, said they had this deal in mind

and he said Gocho could help. They met at Thai restaurant in Tolon. Pepero in Caracas.)).

Nor do the text messages admitted into evidence prove that Pepero was a knowing

participant. None of the text messages with Pepero show that he had knowledge of any conspiracy

to import cocaine into the United States or distribute cocaine knowing it would end up in the United

States. In fact, aside from a mention of a ticket in Miami, there were no references to the United

States at all in the text messages with Pepero that the Government highlighted during trial. (See,

e.g., GX 405-T (no reference to the United States); GX 408-T at 14 (Pepe: yes we will do that

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when I am over there. When I get to miami I will change the ticket.); GX 508-T (a photo); GX

510-T at 12, 15 (no reference to the United States in screenshot of communication with Pepero);

GX 515-T (no reference to the United States)).

Accordingly, Pepero cannot qualify as a knowing participant in the charged conspiracy.

Gocho

There is likewise insufficient evidence to find that Gocho was a knowing participant in the

charged crime. The record reflects that Gocho never participated in any recorded meetings or

actually engaged in any discussions with the Defendants about supplying drugs in connection with

the transaction at issue. Nor is there any evidence that Gocho was ever informed of any plan to

import cocaine into the United States, or distribute cocaine with knowledge that it would be

imported into the United States. (See Tr. 162 (Special Agent Gonzalez) (A: Mr. Flores stated that

he had talked to Pepero about this potential deal that he had in mind and Pepero then introduced

him to El Gocho); Tr. 463 (Special Agent Gonzalez) (A: . . . Who introduced to Gocho? Pepero

introduced, said they had this deal in mind and he said Gocho could help. They met at Thai

restaurant in Tolon. Pepero in Caracas.). While these snippets demonstrate that Gocho was in

contact with the Defendants and others about some deal, they are woefully short of supporting a

finding by a preponderance of the evidence that Gocho knew that any such deal was a plan to

import drugs into the United States.

The Court therefore cannot find that Gocho was a knowing participant in this conspiracy.

Security Team

The PSRs fail to properly to identify the security team members who allegedly were

knowing participants in the charged conspiracy. Indeed, beyond Jesfran Josnel Moreno Sojo, a/k/a

Tortuga, the best that the Probation Office (and the Government) could do was to list the names

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or nicknames felix, semilla, and neike as the alleged security team members who they

claim were knowing participants in the offense. (Flores PSR 47; Campo PSR 47). This is a

clear indication of the weakness of the Governments evidence that these individuals were in fact

conspirators. Here, as elsewhere, the Government relies on speculation and unwarranted

inferences to cobble together its allegations.

In order for a participant to qualify as a knowing participant in an offense, there must be

sufficient evidence in the trial record to establish that the participant had knowledge of the purpose

of a task. See United States v. Russell, No. 3:09-CR-266-CFD, 2011 WL 1885345, at *2 (D. Conn.

May 18, 2011) (participant testified defendant asked her for a ride to New York City to purchase

drugs), affd, United States v. Russell, 513 F. Appx 67 (2d Cir. 2013) (summary order) (affirming

application of leadership enhancement).

In this case, there was insufficient evidence to prove that any security guard was a knowing

participant in the conspiracy. There simply is no proofno recording, document, or other

evidencethat Tortuga, felix, semilla, or neike, attended any meetings or participated in

any conversations with knowledge of the conspiracy. That much was clear just from the testimony

of Special Agent Gonzalez that the DEA fully expected that the defendants, being who they were,

were going to have a security contingent, which at any given time would have been easily able to

stop our sources, search them, identify just strictly as a matter of protecting the two defendants

because of who they were. (Tr. at 184 (emphasis added)). That is the extent of what the

Government could prove with respect to the security team: if the Defendants had bodyguards

present at or nearby any meetings, it was strictly for the purpose of protecting the Defendantsit

offered no evidence of any knowing participation on the bodyguards part.

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That Flores told Agent Gonzalez that his bodyguards knew of the shipment does not alter

this conclusion. Knowledge that a shipment will occur of course does not necessarily include

knowledge of the shipments destination. (See Tr. 163-64 (A: I asked him who else knew about

the shipment and he stated that his bodyguards knew and that they were going to help him load the

cocaine onto the plane. Q: Did Flores provide an estimate of the number of bodyguards during the

interview? A: I believe he said six.)). The Agents recounting of Floress statement that there

were six bodyguards who knew of a shipment is insufficient to support a finding by a

preponderance that these six bodyguards knew of a shipment of cocaine into the United States.

Despite the hundreds of text messages produced in discovery, the Government failed to point to

any message demonstrating any bodyguards knowledge of the destination of any drugs. (See,

e.g., GX 503-T at 2 (Campo: I am going to check with felix and tortuga and one of the guards.

Campo: Send me tortugas full name. Campo: Im going to include semilla in the security

logistics. Campo: And I also want neike. Campo: But Im going to check with them.)).

This does not prove that any members of the security team were knowing participants in

the charged crime.

Marco Tulio Uzcategui Contreras

The Government failed to offer sufficient evidence that Marco Tulio Uzcategui Contreras

(Uzcategui Contreras) was a knowing participant. The PSRs merely refer to Uzcategui

Contrerass role as a pilot who flew to Honduras without the proper permit. (See Flores PSR 76;

Campo PSR 76). But this plainly does not constitute sufficient evidence that he knew that the

conspiracy at issue included shipping drugs into the United States, and that he offered his services

in connection with that conspiracy. Uzcategui Contreras cannot be deemed a knowing participant.

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Gilson Barroeta Flores

There is likewise insufficient evidence to support a finding that Gilson Barroeta Flores

(Barroeta Flores) was a knowing participant in the conspiracy. As discussed below, no firearms

were involved in the charged conspiracy in this case. The Defendants themselves certainly did not

possess or use firearms in connection with the importation conspiracy and no firearms were present

at any of the recorded and videotaped meetings. Moreover, the informants did not testify about

the use or even existence of any guns. Nonetheless, the Government contends that because

Barroeta Flores communicated with Campo about weapons in the summer of 2015, Barroeta Flores

was a knowing participant in the charged conspiracy. Yet the Governments own exhibits provide

not a shred of evidence linking Barroeta Floress communications about weapons to the

importation plot. In fact, the exhibits at best show two friends admiring and sometimes joking

about guns in chats that mainly occurred outside of the timeframe of the conspiracy. (See GX 407-

T at 3 (May 2015) (Campo: Get me one. Mini uzi. Gilson: Hahhha. I can get it here.); GX 407-

T at 5 (July 2015) (Campo: I have arrived. Call me now. With silencer? So beautiful all of them

buddy. I was up in el avila bro and there was no signal. Mini uzi. Its a beauty right? Gilson:

Yess); GX 407-T at 14 (August 2015) (Campo: Dude youre such chicken shit. It is for here

Venezuela)). Nothing in the Governments proof establishes whether these guns were even real,

or how they were used, or even how they were intended to be usedwhich is not surprising, since

these communications do not at all relate to the charges in the Indictment.

Further, the evidence of discussions between Barroeta Flores and the Defendants on or

about October 1, 2015, related to the Defendants travel to Honduras, is likewise insufficient to

prove that Barroeta Flores was a knowing participant in the conspiracy. These communications

show that Barroeta Floress knowledge was limitedhe was not aware of the purpose of the

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planned travel to Honduras, and most significantly, he was not aware of any conspiracy to import

cocaine into the United States. (See GX 407-T at 1921). Here, as in many other examples

throughout the PSRs and the Governments proof at trial, the Court should follow the plain text of

the communications and not rely on speculation as to their alleged context given that there is no

witness or other corroborating evidence that can speak to Barroeta Floress knowledge. The plain

text of the messages makes clear that Barroeta Flores was not a knowing participant.

Carlos Gonzalez

As for Carlos Gonzalez (Gonzalez), the Government failed to offer sufficient evidence

that he was a member of the charged conspiracyas opposed to some different conspiracy.

Gonzalez testified that he did not know or meet with the Defendants. (See Tr. 1078 (Q: I

dont think you were asked this, but you have never met Mr. Campo Flores or Mr. Flores de Freitas

in your entire life, have you? A: No, I dont know them, sir. Q: You have never seen them before,

right? A: No. Q: You have never exchanged a text message with them, right? A: No, sir. Q: You

have never spoken to them on the phone, right? A: No, sir.)).

Most importantly however, Gonzalezs testimony reflects that his communications were

limited to a separate agreementnot the charged conspiracythat Gonzalez entered into with

Government agent Sentado, Roberto de Jesus Soto Garcia, three Mexican nationals, and a

Honduran police officer that also involved Venezuelan nationals. (See Tr. 1042-43 (Q: I would

like to direct your attention to October of 2015. Were you working on a cocaine shipment at that

time? A: Thats right, sir. . . . Q: Who participated in the meeting at Sentados house? A: Mr.

Sentado was there. There were three Mexicans, Soto, myself, and a police officer from

Honduras.)). Gonzalez testified that none of the October 2015 meeting participants said anything

about the people in Venezuela who would send a plane. (See Tr. 1044).

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Gonzalezs testimony that the October 2015 meeting included discussions that an airplane

would be dispatched from the presidential hangar (Tr. 1045), is insufficient to connect him to

the charged conspiracy. Any number of persons with access to the presidential hangar could have

been the persons allegedly referred to during the October meeting, especially considering

Gonzalezs September 2015 drug transaction with other Venezuelanstwo months before the

November 5, 2015 meeting in Honduras that neither Defendant attended. (See, e.g., 3513-023 at

9 ([Carlos Gonzalez] stated in September 2015, he ([Carlos Gonzalez]), URQUIA, and

RAMOS-Velasquez were involved in another drug venture involving an aircraft landing at the

RTB airport. [Carlos Gonzalez] stated this aircraft arrived from Venezuela and had a flight plan

stating its final destination was the Dominican Republic.) (emphasis added); Tr. 1087 (Q: My

question is does that refresh your recollection that you told the DEA about a drug deal that occurred

in September of 2015. A: Okay. So, this was discussed in 2015 but it didnt happen in September

of 2015.); see also Tr. 1088-89 (Q: . . . Does it refresh your recollection, sir, that you told the

DEA that an aircraft arrived from Venezuela . . . . The question is, does that refresh your

recollection? A: Yes, I do remember about the conversations that we held that night but we were

talking about different transactions.) (emphasis added)). The record also reflects Gonzalez failed

to mention the presidential hangar language during his first and second meetings with the DEA,

and that Soto Garcia never mentioned the Defendants to Gonzalez, although Gonzalez and Soto

Garcia had done drug deals together in the past. (See Tr. 1081, 1085, 1117; 3513-02; 3513-03).

In short, there is insufficient proof that Gonzalez was a knowing participant in the charged

conspiracy.

3
This cites to material the Government produced to Defendants pursuant to 18 U.S.C. 3500.

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Roberto de Jesus Soto Garcia

There is also insufficient evidence to demonstrate Soto Garcias knowledge that the

shipment at issue was destined for the United States. While the record reflects that Soto Garcia

attended the November 6, 2015, meeting in Honduras with the Defendants, the meeting did not

include any express references to the United States. (See GX 22025-T (no reference to United

States)). Thus, the recorded meeting provides no basis from which one could even infer that Soto

Garcia was a knowing participant in the conspiracy at that time.

Cesar Orlando Daza Cardona

The evidence is likewise insufficient to establish by a preponderance that Cesar Orlando

Daza Cardona (Daza Cardona) knew that the conspiracy at issue involved a shipment of drugs

into the United States. While the record reflects that certain communications referenced Daza

Cardona, they do not include any express references to the United States. In addition, the

Governments proof showed that Daza Cardona worked directly for el Sentado and acted at his

direction throughout the conspiracy. See GX 409-T at 3 (Campo: El negrito is telling me that

your dad [el Sentado] leaves at 1 this makes things a little more complicated for me. Negrito:

why? Campo: Give us at least 1 more hour because I should be arriving at 11 Venezuela time ask

him [el Sentado] to please give us at least one more hour to have time to relax and sit down to talk

about everything so we may be clear on everything.); GX 409-T at 5 (Campo: Well thats all

goodnight brother we will talk tomorrow person to person I will keep you updated about what is

happening. Big hug give confirmation of all this to your father partner [el Sentado]. Negrito: yes

partner I already reconfirmed everything to him); Tr. 172 (Special Agent Gonzalez) (Q: You

mentioned some of the physical challenges that Sentado faced. Did he have people helping him

or assisting him with those challenges? A: Yes, sir. Due to the fact that he was confined to a

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wheelchair he always had assistance and bodyguards that were with him 24/7 showing him around,

taking him to places, helping him bathe, you name it.). Accordingly, to the extent that el Sentado

informed Daza Cardona of the details of the conspiracy for purposes of enabling el Sentado to

ensnare and entrap the Defendants in the sting operation, Daza Cardona should be deemed the

equivalent of a Government agent and not a knowing participant in the conspiracy.

c. The Conspiracy Was Not Otherwise Extensive, as the Services of Any


Unknowing Participants Were Not Peculiar or Necessary to the Offense

In addition, the Government failed to offer sufficient evidence that the conspiracy was

otherwise extensive. In assessing whether an organization is otherwise extensive, all persons

involved during the course of the entire offense are to be considered. U.S.S.G. 3B1.1 cmt. app.

n.3. This includes the unknowing services of many outsiders. Id. In determining the number

of participants, a district court considers: (1) the number of knowing participants in the criminal

activity; (2) the number of unknowing participants whose activities were organized or led by the

defendant with specific criminal intent; and (3) the extent to which the services of the unknowing

participants were peculiar and necessary to the criminal scheme. United States v. Kent, 821 F.3d

362, 369 (2d Cir. 2016) (citation omitted). The scheme must be the functional equivalent of one

involving five or more knowing participants. Id. (emphasis omitted) (citation and quotation

marks omitted). Lawful services that are not peculiarly tailored and necessary to a particular

crime but are fungible with others generally available to the public are not the functional equivalent

of knowing participation. United States v. Carrozzella, 105 F.3d 796, 804 (2d Cir. 1997),

abrogated in part on other grounds, United States v. Kennedy, 233 F.3d 157, 160-61 (2d Cir.

2000). As the Second Circuit has described, the parameters of what is otherwise extensive,

unfortunately do not lend themselves to rigid definition and otherwise extensive

determinations are not easy. United States v. Chacko, 169 F.3d 140, 151 (2d Cir. 1999).

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The charged conspiracy involved fewer than five knowing participants and did not involve

the services of any unknowing participants that were peculiar and necessary to the conspiracy

given that: (i) the Defendants did not organize or lead the services of any unknowing participants

with specific criminal intent; and (ii) no drugs were ultimately loaded, shipped, imported, or

recovered anywhere (See Tr. 403), indicating that no one ever performed such peculiar and

necessary services. The only unknowing participants that the Defendants arguably organized or

led were their bodyguards, and the bodyguards services, if any, served a minimal role with respect

to the charged offenseprotection of the Defendantsand not a peculiar and necessary role to

the importation or distribution of cocaine into the United States.

In summary, the Government has failed to establish the elements of a leader or organizer

enhancement and there should be no increase in offense level under U.S.S.G. 3B1.1(a).

VI. There Is No Basis in the Trial Record for the PSRs Inclusion of a Firearms
Enhancement Pursuant to Section 2D1.1(b)(1)

The PSRs also allot a two-level increase to the Defendants offense levels based on the

enhancement set forth in 2D1.1(b)(1), which applies [i]f a dangerous weapon (including a

firearm) was possessed[.] U.S.S.G. 2D1.1(b)(1). The commentary to that provision notes that

[t]he enhancement should be applied if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense. U.S.S.G. 2D1.1 cmt. app. n.11(A). The

applicable case law further makes clear that the enhancement applies only when the firearm is

possessed in connection with the charged conduct. For example, the enhancement was found to

have been appropriately applied where firearms were traded for narcotics, United States v. Smythe,

363 F.3d 127, 129 (2d Cir. 2004), or where a gun was present in the same location where the

narcotics were stored, United States v. Pellegrini, 929 F.2d 55, 56 (2d Cir. 1991). Presumably

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because there is no basis for it in the trial record, the PSRs offer no express justification for the

enhancement in this case. It should not be applied.

To start, the Government introduced no evidence whatever that the Defendants possessed

firearms in connection with the charged importation offense. No witness testified that the

Defendants possessed a weapon in any of the meetings in Venezuela, Honduras, or Haiti that were

recorded by the informants. For example, there was no trial testimony that any firearm was present

at the lone meeting where narcotics were allegedly present (the October 27, 2015 meeting in

Caracas). The PSRs certainly make no reference to a firearm at that meeting (see Flores PSR

6667; Campo PSR 66-67), or at any of the other meetings leading up to the Defendants arrest

in Haiti on November 10, 2015. Therefore, the October 27 meeting, which is the most analogous

to the situation in Pellegrini where there was a gun stored in the stash house, plainly does not

support a 2D1.1(b)(1) enhancement. Nor does anything from the other meetings justify the

enhancementthe Defendants simply did not possess firearms. Indeed, other than Sentados

armed bodyguards, there is not a single firearm mentioned in connection with the trial testimony

relating to the charged importation conspiracy.

The PSRs appear to justify the inclusion of the enhancement based simply on photographs

of purported firearms that were found in the Defendants phones and were admitted at trial. The

only reference to any firearms at all in the PSRs is the claim that an uncharged individual sought

to assist CAMPO and FLORES in obtaining weapons during the summer of 2015. (Flores PSR

41; Campo PSR 41). As set forth above, there was no testimony that any of those photographed

guns were present at the relevant meetings. It is therefore impossible to see how the Government

can meet its burden to show that the purported firearms depicted in those pictures were possessed

in connection with the importation conspiracy. In other contexts, the Government offered differing

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justifications for the admission of the photographs at issue. It argued first that the photographs of

firearms showed trust among the co-conspirators. In the alternative, the Government argued that

the effort to obtain weapons from the United States is probative of Campos belief that he could

easily transport contraband over the Venezuelan border because of his political access and

connections. (Govt 404(b) Br. at 12, 16). Even crediting these theorieswhich the Court should

notneither suffices to meet the requirements of Section 2D1.1(b)(1).

It is also worth noting that even if there were some evidence of the presence of a firearm

at the scene, the enhancement will apply unless the defendant demonstrates that it is clearly

improbable that the weapon was connected with the drug offense. United States v. Smith, 215

F.3d 237, 241 (2d Cir. 2000) (citations omitted). The PSRs are again unclear as to the basis of the

enhancement, but there are some references to the Defendants bodyguards. (See Campo PSR

10; Flores PSR 10). In this case, the Defendants, by virtue of their familial relations, required

security precautions, including the use of bodyguards, especially in the dangerous environment of

Caracas. To the extent that the Government is contending that the fact that the Defendants had

security details justifies the firearm enhancement, that should be rejected as clearly not connected

to the charged drug offense. The enhancement should not be applied to either Defendant.

VII. The PSRs Enhancement for Use of Violence in Connection with the Offense is
Based on Mischaracterized and Unsubstantiated Conduct Completely Unrelated to
the Offense of Conviction and Would Constitute a Miscarriage of Justice

The PSRs impose a two-level increase in the Defendants offense level for their alleged

use of violence, threat to use violence, or direction of the use of violence. (Campo PSR 124;

Flores PSR 123). This enhancement is wholly unwarranted and utterly without any basis in the

record. The Government has offered no evidence whateverand certainly insufficient evidence

to prove by a preponderancethat the Defendants used, threatened, or directed violence in any

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way in connection with this case. The Court should therefore reject this proposed enhancement as

a gross over-reach.

U.S.S.G. 2D1.1 provides that a defendants offense level is increased by two levels if he

used violence, made a credible threat to use violence, or directed the use of violence. U.S.S.G.

2D1.1(b)(2). This enhancement applies when violence or credible threats of violence are used

in furtherance of a narcotics conspiracy, United States v. Fernandez, 636 F. Appx 71, 74 (2d

Cir. 2016), (emphasis added) (citation omitted), cert. denied, 137 S. Ct. 2283 (2017), that is, when

violence or the threat of violence takes place in connection with the specific offense of conviction.

See also United States v. Ortiz-Rodriguez, 789 F.3d 15, 17 n. 1 (1st Cir. 2015) (rejecting violence

enhancement in plea agreement because [t]here is no evidence that the defendant used violence

in the commission of the offense); United States v. Medrano-Rodriguez, 606 F. Appx 759, 762

(5th Cir. 2015) ([T]he history of 2D1.1(b)(2) and the commentary to the Guidelines amendment

limit the violence enhancement to defendants who used or threatened violence during a drug

trafficking offense[.]). Id. at 761 (finding Section 2D1.1(b)(2) was established by Congress to

provide an additional penalty increase of at least 2 offense levels if the defendant used violence,

made a credible threat to use violence, or directed the use of violence during a drug trafficking

offense) (citing Fair Sentencing Act of 2010, Pub. L. No. 111220, 5, 124 Stat. 2372 (2010))

(emphasis added), cert. denied, 136 S. Ct. 188 (2015).4

The enhancement is most often applied in cases where there is evidence, typically in the

form of witness testimony, that the defendants engaged in acts of violence in defense of, or to

further, their drug trafficking enterprise. See, e.g., Fernandez, 636 F. Appx at 74 (affirming

4
Moreover, the fact that the violence provision relates specifically to the characteristics of the offense in question is
readily apparent from the fact that this enhancement is a Specific Offense Characteristic[]i.e., a characteristic of
the specific offense in question.

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violence enhancement based on witness testimony that defendant threatened superintendent after

he notified police of drug activity); United States v. Walker, 578 F. Appx 812, 820 (11th Cir.

2014) (holding evidence sufficient to support violence enhancement where testimony

demonstrated that defendant threatened to kill at least one co-conspirator and her daughter for

conduct related to the conspiracy, and that he also punched her in the neck for other offense-related

conduct. He also threatened to hurt another coconspirator if she failed to properly dispose of

evidence of his manufacturing activities); United States v. Santillan, 13 Cr. 138-1 (RWS), 2016

WL 1071106, at *3 (S.D.N.Y. Mar. 18, 2016) (applying violence enhancement because defendant

used violence or made a credible threat to use violence as part of an attempted kidnapping related

to the drug conspiracy); United States v. Suarez, No. 11 Cr. 836 (KBF), 2014 WL 1998234, at *3

(S.D.N.Y. May 15, 2014), affd, United States v. Suarez, 615 F. Appx 5 (2d Cir. 2015) (applying

enhancement where witness testimony permitted finding by a preponderance that defendant caused

members of the conspiracy to murder two men).

Nothing remotely similar was even allegedmuch less provento have happened here.

In this case, there was simply no evidence that either defendant ever used violence, threatened

violence, or directed the use of violence in connection with or in furtherance of the charged

offense. The record contains no evidence of any threats against potential witnesses to the drug

activity, no evidence of threats or violence to intimidate or enforce discipline among conspirators,

and no evidence of acts of violence committed against rival narcotics traffickers or others to further

the purposes of the drug organization. And, as noted above, the record shows that the Defendants

did not possess any weapons during their meetings with the informants or at the time of their arrest.

(See Tr. 601-762, 854-985, 1010).

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The two factual bases for the enhancement presented in the PSRs are likewise inapposite

and insufficientconsisting of: (i) the Defendants purported participation in a violent debt-

collection plot with drug traffickers; and (ii) Campos purported suggestion that he would kidnap

and ask CS-1 to murder anyone who interfered with a cocaine shipment. (Flores PSR 9, 58 n.

7, p. 34; Campo PSR 9, 58 n. 7, p. 33). The first purported basis, discussed in more detail in

Section VIII below, is uncharged foreign conduct completely unrelated to the offense of conviction

that cannot be used to support the application of this enhancement. Contrary to the PSRs claim,

the Government has not even attempted to show a connection between the debt-collection plot and

the offense here. The record contains no evidence linking Javierthe only participant in the

alleged debt-collection plot who was involved in violent conductwith drugs, much less with the

charged drug conspiracy. (Flores PSR 21-22; Campo PSR 21-22; see also chat-7.txt; chat-

8.txt; chat-10.txt)5. Further, the debt-collection activities are not even temporally related to the

drug conspiracy, as they occurred three months prior to its inception, even under the Governments

own revised timeline of the case in its Superseding Indictment. (Campo PSR PSR 2, 1923;

Flores PSR 2, 1923; see also discussion, infra, Section VIII).

The second purported basis for the enhancement rests on a bald mis-interpretation of, and

gross over-reaction to, isolated comments by Campo to CS-1 during a recorded meeting on

October 26, 2015, that cannot possibly furnish proof sufficient to establish the enhancement by a

preponderance. In the course of a rambling discussion ostensibly about a drug shipment, Campo

described what he would do if there were a problem with the shipment. The broken, choppy

transcript that follows makes it impossible to understand what the two men are sayingoften over

one anotherwith any degree of clarity, and certainly not with the clarity necessary to find a

5
The chats referenced are chats the Government produced in discovery.

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sentencing enhancement under the Guidelines. In this context, Campo saidin what is evidently

the crux of the purported enhancementthat he would tell the guy: Come over here with me,

youre leaving with me on the plane. . . . Get on the plane, man, were leaving together.

(GX 207-T at 20-21). But the random, limited nature of the conversation, the fact that CS-1

laughed in the middle of Campos statement, the general ambiguity of the narrative, and the fact

that Campo concluded it by saying, From here to there, fuck, an UFO came and abducted that

man (GX 207-T at 21), strongly indicate that Campos statement was simply made in jestas

clownish puffery to try to ingratiate himself with CS-1. Certainly, CS-1 appears to have taken the

statement that way. In any event, Campos statement cannot possibly have formed a credible

threat of violence against any particular person, much less CS-1, especially given CS-1s

admission at trial that he believed the Defendants to be amateurs who lacked knowledge. (Tr.

376, 864). It is difficult to fathom, therefore, how the Probation Office distilled this limited,

muddled statement into the crystal clear conclusion that On October 26, 2015, Campo suggested

that he would kidnap, and ask CS-1 to murder, anyone who interfered with the dispatch of a

cocaine shipment. (Flores PSR 58 n.7, p. 34; Campo PSR 58 n. 7, p. 33). Such a conclusion

is a gross distortion and exaggeration of the actual conversation, and presents far too flimsy and

speculative a basis upon which to enhance the Defendants sentences for alleged violence.

United States v. Harris, 578 F. Appx 451, 453 (5th Cir. 2014), is instructive as to the

circumstances in which courts have found a credible threat of violence. In Harris, the defendants

engaged in a conspiracy involving extensive discussion, planning, and partial carrying out of [a]

plan in a vehicle loaded with guns and ammunition . . . . Id. The Harris defendants developed

a specific plan to rob a stash house, i.e., to rush in with guns drawn, take control of the room, and

make the guards lay down on the floor and, once the guards were subdued, they would just go

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and do them. Id. at 452-53. These facts, the Fifth Circuit concluded, were sufficient to conclude

that the charged conspiracy involved a credible threat of violence. Id.6 The facts here could

hardly be more different. Campo and Flores have no history of crime or use of violence, and the

record contains no credible evidence indicating that they planned to use weapons or any other form

of violence in connection with the offense of conviction.

In these circumstances, a violence enhancement would be entirely inappropriate. The

purported Section 2D1.1(b)(2) enhancement is based on nothing more than mischaracterized

snippets of conversation and uncharged conduct (the alleged debt-collection plot) so removed from

the offense of conviction that the Government did not even attempt to introduce it at trial. In all

events, the evidence adduced by the Government on this point is woefully short of proof sufficient

to establish the enhancement even by a preponderance. Accordingly, the Court should decline to

apply this groundless enhancement.

VIII. An Enhancement for Death in Connection with the Charged Conspiracy Would Be
Wholly Unfounded and Inappropriate

For similar reasons, a departure under U.S.S.G. 5K2.1 based on death (Flores PSR

19-23, 177, p. 34; Campo PSR 19-23, 180, p. 34) is utterly inappropriate in this case. The Court

cannot accede to the drastic, draconian imposition of an upward departure for the Defendants

alleged involvement in a death for several reasons.

6
See also United States v. Sykes, 854 F.3d 457, 460-61 (8th Cir. 2017), in which the Eighth Circuit concluded that
the imposition of a credible threat of violence enhancement was appropriate where the record indicated that:
[Defendant] said he was going to find and shoot an individual who allegedly
stole cocaine base from one of [his] customers. When [defendant] made this
threat . . . [defendant] had a .45 caliber pistol with a black handle and gray slide,
and an unnamed passenger in [defendants] vehicle had an all-chrome .380
caliber pistol. Second, . . . a [cooperating source] reported that [defendant]
threatened the [confidential source] with a firearm. The CS said he met with
[defendant] at a barbershop and, there, [defendant] accused the CS of stealing
cocaine base and cash. . . . [defendant] told the CS he had some hours to
return the items before [the defendant] began killing the CSs family members
and that [defendant] then lifted up the front of his shirt, revealing a black pistol.
Id.

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First and foremost, the evidence purportedly forming the basis for the departure is

woefully insufficientconsisting simply of (evidently) publicly available photographs of two

unidentified, mutilated human bodies that the Defendants texted to one another, along with sparse

and cryptic commentary about the photographs. (Flores PSR 19-22; Campo PSR 19-22).

The mere presence of these photographs and texts on the Defendants phones cannot credibly

support the argument that the Defendants engaged in murder and dismembermentmuch less that

they did so in connection with efforts to collect a debt or as part of the same course of conduct

as the offense of convictionand it is alarming that the Probation Office and the Government

evidently think that it can. See United States v. Rivalta, 892 F.2d 223, 232 (2d Cir. 1989) ([I]n

the absence of an explicit finding that the [defendant] intended or knowingly risked [a victims]

death, any upward departure under 5K2.1 would be inappropriate.); see also id. (holding that

5K2.1 would not apply even where the evidence establishes that a defendant was an

accessor[y] after the facta far greater showing than can be made herebecause it applies only

where a defendant is a cause[] of the death). In fact, there was no evidence whatever at trial to

support a finding that the Defendants were personally involved in any way in the deaths of the

people in the photographs.

Nor was there evidence that the Defendants participated in any other death. The

Government offered no proof, and the Court made no finding, of a causal connection or a nexus

between any death and conduct by either Defendant. In contrast to Rivalta, where the court refused

to uphold an upward departure even after the trial court found that the defendants conduct was

intertwined with the death at issue, there was no such finding here. Id. In any event, even if the

Court had found a nexus between the Defendants acts and a victims death, or that they were

intertwined, a departure still would not be warranted. Id. The Second Circuit has explained that

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a trial court must make an explicit finding that, in the words of 5K2.1, . . . death resulted from

[the defendants] criminal activity. Id. No such finding was, or could be, made here.

The claim that the Defendants were involved in a violent debt-collection plot resulting in

death is based on an implausible combination of cherry-picked text messages and photographs

taken out of context to fit what is evidently the Governments proffered theory. (See Flores PSR

19-23; Campo PSR 19-23). But, upon close examination, these texts and photos do not come

close to credibly establishing that the Defendants were involved in any death. At most, they show

that the Defendants were aware that certain killings had occurred in Venezuelawell-known as a

violent and dangerous place. For example, in a June 21, 2015 WhatsApp exchange, Flores

explained that theyas in, other partieshad killed someone because they suspected that the

victim had told on them. (Flores PSR 20; Campo PSR 20). Nothing in these messages,

however, remotely establishes that Flores or Campo were themselves involved in the killing, rather

than merely discussing something they learned about from others. To reiterate, the mere fact that

the Defendants exchanged photos of dismembered body parts does not prove otherwise. With

respect to the Blackberry Messenger chat on June 30, 2015, the communication reveals only that

there was a discussion about a potential meeting. (Flores PSR 23; Campo PSR 23). In no way

do the PSRs articulate how or why conversations about meeting in person, the whereabouts of

Flores, or convenient times to meet establish that the Defendants participated in a violent debt-

collection plot. (See chat-8.txt). Inferring participation in such a plot simply from conversations

about an in-person meeting is sheer speculation.

The paucity of any relevant findings in the trial record speaks volumes. No mention was

made during the trial of any alleged violent debt-collection plot. No evidence was introduced,

nor was any testimony elicited, involving any such plot. While the Probation Office raised these

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allegations in the PSRs, because the Court never previously addressed nor even acknowledged the

existence of such a plot, there is even less reason here than in Rivalta for the Court to conclude

that an upward departure is warranted. The PSRs allegations fall short of the explicit trial court

finding that Rivalta held was necessary. Accordingly, the Court should reject the PSRs wholly

unwarranted and extreme suggestion for an upward departure pursuant to U.S.S.G. 5K2.1.

In addition, as discussed further below, the Second Circuit has held that uncharged alleged

foreign crimes that are not crimes against the United States may not form the basis of an upward

departure in circumstances such as these. United States v. Chunza-Plazas, 45 F.3d 51, 57 (2d Cir.

1995); see infra Section IX. Because this alleged debt-collection plot was uncharged and allegedly

took place in Venezuela, the Court should not rely on it to impose an upward departure.

IX. The PSRs Improperly Rely on Foreign Uncharged Conduct to Support Sentencing
Enhancements

As indicated above, the PSRs invite the Court to rely on uncharged alleged foreign criminal

conductnamely, the purported violent debt-collection plotto support both discrete

sentencing enhancements and an upward departure. In addition to the other reasons previously

articulated for rejecting these enhancements and departures, the Court should likewise decline

them as an improper invitation to use uncharged foreign crimes.

The Second Circuit has long recognized the advantages of simplicity gained by not

including uncharged foreign crimes in the base offense level. In United States v. Azeem, 946 F.2d

13 (2d Cir. 1991), the court reasoned as follows:

The fact that section 4A1.2(h) of the Guidelines allows upward


departures only for foreign sentences, as opposed to uncharged
crimes or arrests, apparently reflects some of these concerns.
Without a clear mandate from Congress, we decline to create the
complexities that the inclusion of foreign crimes in the base offense
level calculation would generate.

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Id. at 17-18 (internal citation omitted). Consequently, under Azeem foreign conduct may not be

considered in calculating a defendants guideline range unless such conduct (a) is part of the same

scheme or course of conduct as the count or counts of conviction under 1B1.3(a)(2), and (b)

constitutes a crime against the United States. United States v. Turner, 624 F. Supp. 2d 206, 220

(E.D.N.Y. 2009) (emphasis added). The Government surely cannot make that showing here, as

there is no way that the alleged violent debt-collection plot could constitute a crime against the

United States See generally id. at 220-21 (rejecting the prosecutions argument that all aspects

of [the defendants] scheme . . . are inextricably intertwined to the extent that both the foreign

and domestic conduct must be considered together in determining [the defendants] guideline

range.). Merely claiming that the supposed debt-collection plot was related to the charged offense

is insufficient to establish such a connection by a preponderance of the evidence.

This approach was reaffirmed in Chunza-Plazas, in which the Second Circuit held that the

sentencing court erred by departing upward based on the defendant's alleged prior acts of

homicide, terrorism, and drug trafficking in Colombia. 45 F.3d at 56. The court concluded that

the alleged illegal activities in Colombia were not crimes against the United States, and therefore

should not be included in the guideline calculation. Id. at 57. In sum, ChunzaPlazas, like

Azeem, instructs that foreign conduct not constituting crimes against the United States should not

be considered for purposes of calculating the guideline range for the counts of conviction. Turner,

624 F. Supp. 2d at 218. Here, the Government does not arguenor could itthat the wholly

foreign alleged conduct described in the PSRs as the violent debt-collection plot constitutes a

crime against the United States. Accordingly, the PSRs recommendation for such enhancements

and departures should be denied.

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X. Applying a Bribery Enhancement Contravenes the Plain Text of the Guidelines and
the Law

Because there is no evidence in the record that the Defendants bribed or attempted to bribe

a U.S. law enforcement officer to facilitate the commission of the offense (Flores PSR 125;

Campo PSR 126), U.S.S.G. 2D1.1(b)(11) cannot apply. The text of the Guideline makes clear

that the bribery enhancement applies only [i]f the defendant bribed, or attempted to bribe, a law

enforcement officer to facilitate the commission of the offense, and the legislative history of the

Guideline makes clear that it applies only to U.S. law enforcement officers. U.S.S.G.

2D1.1(b)(11) (emphasis added). There is absolutely no evidence that either Defendant bribed or

attempted to bribe a U.S. law enforcement officer, as they had no contact with any of the U.S. law

enforcement officers until the time of their arrest in Haiti. Even if the Court determined that the

bribery enhancement applies to foreign law enforcement officers, there likewise is no credible

evidence that the Defendants bribed or attempted to bribe a foreign law enforcement officer.

a. The Guidelines Apply Only to Defendants Bribery or Attempted Bribery of


U.S. Law Enforcement Officials and not Foreign Law Enforcement Officials

The enhancement under U.S.S.G. 2D1.1(b)(11) applies only if there is bribery or

attempted bribery of a U.S. Federal, State, or local law enforcement official in connection with a

drug trafficking offense. The U.S. Sentencing Commission amended the Sentencing Guidelines

in 2011 to add bribery or attempted bribery as a new specific offense characteristic in response to

Section 6(1) of the Fair Sentencing Act of 2010. Section 6(1) of the Fair Sentencing Act directed

the U.S. Sentencing Commission to review and amend the Federal sentencing guidelines to ensure

an additional increase of at least 2 offense levels if(1) the defendant bribed, or attempted to

bribe, a Federal, State, or local law enforcement official in connection with a drug trafficking

offense. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010).

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The plain text of the Fair Sentencing Act makes clear that the enhancement applies only to

those defendants who bribe or attempt to bribe U.S. law enforcement officials, as there is no

mention of foreign law enforcement officials in the Act. Foreign law enforcement officials cannot

be read into the text of either the statute or the Guidelines, especially when Congress was clear

that its purpose in enacting the Fair Sentencing Act was to restore fairness to Federal cocaine

sentencing. Id. Moreover, in enacting the law, Congress expressly cited to the U.S. Sentencing

Commissions authority pursuant to Section 994 of Title 28 of the U.S. Code to enact sentencing

guidelines. The Court of course cannot read language into the statute or the Guideline that neither

Congress nor the U.S. Sentencing Commission included.

The PSRs rely solely on the Governments speculationwithout citation to any document,

recording, testimony, or other evidencein finding that the defendants attempted to bribe law

enforcement officials in connection with their efforts to secure safe passage of at least one cocaine

load by bribing Honduran law enforcement personnel and others involved in providing security at

Juan Manuel Glvez International Airport in Roatn, Honduras. Specifically, the defendants

agreed to pay $900,000 to Sentado on the understanding that some of those funds would be used

by Soto and Gonzalez to bribe airport personnel (including police). (See Flores PSR at 34; Campo

PSR at 33). Because the PSRs fail even to allege that the Defendants bribed or attempted to bribe

a U.S. law enforcement official in connection with the offense, this enhancement cannot apply.

b. Even if the Court Assumes that the Enhancement Applies, There Is


Insufficient Evidence to Find by a Preponderance that the Defendants
Themselves Bribed or Attempted to Bribe a Law Enforcement Official in
Connection with the Offense

In order for the enhancement to apply, the Government must prove, by a preponderance of

the evidence, that the Defendants bribed or attempted to bribe a law enforcement officer. See

United States v. Lobo, No. 15 Cr. 174 (LGS), 2017 WL 2838187, at *5 (S.D.N.Y. June 30, 2017).

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While the Second Circuit has not yet expressly ruled on whether the bribery enhancement applies

to foreign law enforcement officers, see id. at *4, if this Court assumes that a bribery enhancement

may be applied to foreign law enforcement officers, the Government must present sufficient

evidence that the foreign law enforcement officer was actually a law enforcement officer at the

pertinent time. See id. at *5. The Government must cite to legal authority, or other source, that

addresses [the law enforcement officers] responsibilities as conferred by Honduran law. Id.

Here, the PSRs fail to make a finding that the Defendants or their co-conspirators actually

bribed or attempted to bribe even a foreign law enforcement official. Rather, as indicated above,

the PSRs rely solely on the Governments speculation that defendants agreed to pay $900,000 to

Sentado on the understanding that some of those funds would be used by Soto and Gonzalez to

bribe airport personnel (including police). In making this finding, the PSRs fail to cite to any

evidence whatever and fail to identify, among other things, the alleged foreign law enforcement

officer that would receive the payment, the payment amount, or any other proof that such a

payment was ever actually made or even attempted to be made. (See Flores PSR at 34; Campo

PSR at 23). Accordingly, there is unquestionably insufficient evidence to apply this enhancement.

XI. A Sixteen-level Increase in the Base Offense Level Grossly Overstates the
Seriousness of the Offense of Conviction and the Defendants Culpability

The Commentary to the Guidelines Sentencing Table notes that it is only in the rare case

that the application of the guidelines will result in a total offense level of more than 43. See

U.S.S.G. ch. 5, pt A, cmt. app. n.2. Here, there were no identifiable victims and no narcotics were

recovered. The case emanated entirely from a sting operation. Life sentences in narcotics cases

have been appropriately imposed in cases where, for example, a defendant was convicted of

committing murder in furtherance of a vast, actual narcotics distribution operation. See, e.g.,

United States v. Putten, 362 F. Appx 218, 219 (2d Cir. 2010) (affirming conviction of defendant

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convicted of murder while engaged in a major narcotics conspiracy). The notion of a life

sentence for a defendant whose entire prosecution stems from a sting operation involving no

violence is without precedent. That fact speaks to the extent to which the Guidelines calculations

here are grossly out of step with the reality of the offense. Indeed, the Second Circuit has

emphasized that it do[es] not presume that a Guidelines-range sentence is reasonable. See

United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (citation omitted). Here, the Court

should reject the notion that a total offense level that yields a Guidelines range of life imprisonment

might be appropriate for defendants with no prior criminal history, whose participation in the

offense at issue came about only as a result of a complex sting orchestrated by corrupt informants.

XII. The Defendants are Eligible for Safety Valve Relief

Pursuant to 18 U.S.C. 3553 and the Guidelines, the Court is instructed to impose a

sentence without regard to any statutory minimum if the defendant meets the following criteria:

(1) the defendant does not have more than 1 criminal history point,
as determined under the sentencing guidelines before application of
subsection (b) of 4A1.3 (Departures Based on Inadequacy of
Criminal History Category);
(2) the defendant did not use violence or credible threats of violence
or possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any
person;
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. 848; and
(5) not later than the time of the sentencing hearing, the defendant
has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or
plan, but the fact that the defendant has no relevant or useful other
information to provide or that the Government is already aware of
the information shall not preclude a determination by the court that
the defendant has complied with this requirement.

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U.S.S.G. 5C1.2(a); see also 18 U.S.C. 3553(f). While the burden is on the Defendants to

demonstrate their eligibility for safety valve relief, it is a mere preponderance burden. See United

States v. Jimenez, 451 F.3d 97, 102 (2d Cir. 2006). Here, the actual evidence on each of the five

relevant criteria weighs heavily in favor of finding the Defendants eligible for the safety valve.

First, there is no dispute that the Defendants meet the first criteriathey have no criminal

history. (Campo PSR 137 (The total criminal history score is zero.); Flores PSR 138 (same)).

Neither defendant has either juvenile or adult criminal convictions in either the United States or

their country of origin.

Second, as discussed above, the evidence demonstrates that neither defendant use[d]

violence or credible threats of violence or possess[ed] a firearm or other dangerous weapon (or

induce[d] another participant to do so) in connection with the offense. U.S.S.G. 5C1.2(a)(2)

(emphasis added). Nowhere in the PSRs or trial evidence is there any indication that the

defendants themselves possessed any weapons in furtherance of the offense. Nor is there any

indication that the defendants induce[d] another participant to do so. Id. (emphasis added). Nor

is there any evidence that the defendants used violence or credible threats of violence or induced

another participant to do so. Here, as elsewhere in this matter, the Guidelines definition of

participant is relevant. Third parties are not participants merely because they were physically

present or engaged in activity designed to aid the offense. See U.S.S.G. 3B1.1 cmt. app. n.1 (A

participant is a person who is criminally responsible for the commission of the offense, but need

not have been convicted. A person who is not criminally responsible for the commission of the

offense (e.g., an undercover law enforcement officer) is not a participant.). Thus, in order to

constitute a participant under the Guidelines, the individual in question must be said to have had

the requisite mindset to be guilty of the offense. See United States v. Skys, 637 F.3d 146, 156-58

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(2d Cir. 2011) (reversing sentence where district court improperly imposed enhancement on the

basis of involvement of others without requisite finding that they were actually participants, i.e. in

possession of a mens rea sufficient to make them guilty of the offense). In this case, there is no

indication that any participants in the conspiracy possessed weapons or engaged in violence. The

stray references in the Government-supplied offense conduct section of the PSR about text

messages referencing violence committed by others, for unknown reasons, are insufficient to

negate the Defendants safety valve eligibility.

Third, there is no dispute that the offense did not result in death or serious bodily injury

to any person. U.S.S.G. 5C1.2(a)(3). The charged conspiracy, which originated from a sting

operation, did not result in any completed cocaine importation, much less any death or serious

bodily injury to any person. There is no evidence in the PSRs or evidentiary record to the contrary.

Fourth, for reasons already articulated, the available evidence weighs against any finding

that either Defendant was an organizer, leader, manager, or supervisor of others in the offense, as

determined under the sentencing guidelines.7 U.S.S.G. 5C1.2(a)(4). As described above,

Application Note 2 to U.S.S.G. 3B1.1 provides that a defendant must have been the organizer,

leader, manager, or supervisor of one or more other participants in order for an adjustment to

apply. U.S.S.G. 3B1.1 cmt. app. n.2. Thus, for the purposes of the safety valve, it is not enough

that the Defendants body guards were supposedly going to assist in loading the shipment of

cocaine that was never even procured. The Defendants were not in charge of any individuals who

are criminally responsible for the offense in questionconspiring to import cocaine into the

United States. This criterion is therefore satisfied.

7
There is no allegation that the defendants were ever engaged in a continuing criminal enterprise, as defined in
21 U.S.C. 848.

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Finally, the Defendants have already truthfully provided to the Government all

information and evidence the defendant[s] ha[ve] concerning the offense or offenses that were part

of the same course of conduct or of a common scheme or plan. The offense and the common

scheme or plan at issue in this case are relatively narrow, given that the entirety of the charged

offense originates from a sting operation. Here, the Government conceded at trial that the

Defendants confessions were complete and credible. (See, e.g., Tr. 1295-97 (describing fulsome

confessions of both Defendants to their participation in the offense and their descriptions of their

would-be suppliers and partners); Tr. 1444 (if you credit the confessionsand you shouldI

agree with Mr. Jackson that your deliberations should be brief.) (emphasis added). Indeed,

particularly given the limited nature of the sting transaction proposed by the informants, there was

no other information about the supposed conspiracy that the Defendants could have been expected

to provide. All of the connections in Honduras, the individuals who supposedly were going to

actually import the cocaine into the United States, were supplied by the informants. As the

Government conceded in summations, the Defendants provided fulsome confessions at the time

of their arrests that revealed all of the information they possessed about the offense. The fifth

safety valve factor requires no more.

In many other cases, the Government has relied on credited post-arrest confessions to

establish safety-valve eligibility. See, e.g., United States v. Jasso, 634 F.3d 305, 307 n. 1 (5th Cir.

2011) (At sentencing, the Government conceded that Jasso met the other requirements for a safety

valve reduction, including the cooperation described in 18 U.S.C. 3553(f)(5), indicating that the

Government was ready to just say we recommend a safety valve as far as the interview [phase] ...

We would have had no need to interview Mr. Jasso. We were just going to [use] his prior

confession ... to recommend the safety valve.). Moreover, courts have observed that it is error

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to fail to consider a credited post-arrest statement in determining a defendants eligibility for safety

valve relief. See, e.g., United States v. Bastidas, 658 F. Appx 878, 880 (9th Cir. 2016) (vacating

sentence where the district court failed to determine whether Bastidass post-arrest statement

qualified her for the safety valve and improperly disregarded the post-arrest statement because

the defendant later recanted the statement at trial).

The Bastidas decision also made clear that it is error to consider a defendants denial of

guilt, as manifested by the decision to go to trial, as a reason to deny consideration of a post-arrest

statement to satisfy the fifth safety valve factor. See id. (To the extent the district court considered

Bastidass denial of guilty knowledge at trial as a reason to find her ineligible for the safety valve,

the court erred as a matter of law. . . . We therefore vacate Bastidass sentence and remand for the

district court to redetermine Bastidass eligibility for the safety valve, taking into account her post-

arrest statement and giving no weight to whether she recanted that statement at trial.).

In sum, the information in the PSRs and the other information in the record indicate that

the Defendants have satisfied their burden of demonstrating by a preponderance of the evidence

that they are eligible for safety valve relief.

XIII. Appropriate Consideration of the Section 3553(a) Factors Requires the Imposition
of a Sentence Substantially Below the Guidelines Range

Title 18 requires a sentencing court to impose a sentence sufficient, but not greater than

necessary, to comply with the purposes of the statute, as defined in seven factors. 18 U.S.C.

3553(a). This is a case where careful consideration of these factors is particularly critical. The

Defendants intend to separately elaborate on the individualized reasons that the Section 3553(a)

factors warrant substantially below-guidelines range sentences for each Defendant after the Court

has had an opportunity to address the factual issues presented herein. Several of the factors,

however, jointly apply to both Defendants and warrant particular emphasis here.

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Of paramount importance is the factor embodied in Section 3553(a)(6)the need to avoid

unwarranted sentence disparities among defendants with similar records who have been found

guilty of similar conduct. 18 U.S.C. 3553(a)(6). The fact is that any sentence even approaching

the Guidelines range found and recommended by the Probation Office here would be

inconsistent with this factor. This is so because judges in the post-Booker era have repeatedly

sentenced defendants with no criminal record to terms of imprisonment far beneath the guidelines

range where the range has approached life. Indeed, Judges in this District and elsewhere have

repeatedly imposed sentences well beneath the Guidelines range even for defendants convicted of

crimes far more problematic than the offense conduct in this case.8

For example, in United States v. Georgescu, the defendant was convicted by a jury of two

crimes that are unquestionably more serious than the crime at issue in this caseone count of

conspiracy to kill officers and employees of the United States, and one count of conspiracy to

provide material support or resources to a foreign terrorist organization, namely, the FARC. (See

Sentencing Transcript of Massimo Flaviu Virgil Georgescu, No. 14 Cr. 799 (RA) (S.D.N.Y. Dec.

2, 2016), at 2 (Georgescu Tr.), attached as Exhibit A). In Georgescu, as a result of his conviction

after a sting operation where he orchestrated the sale of weaponry to terrorists, the defendant faced

an offense level of 43 and a Guidelines range of life imprisonment, even after the court departed

downward from the Criminal History Category of VI to Criminal History Category I. (Georgescu

Tr. 10, 12-13). In that case, the court also found that the defendant had engaged in obstruction of

justice during his trial, by perjuring himself and encouraging other witnesses to perjure themselves.

(Id. at 6-7, 13, 16-17). Among other factors, the court took into account that the defendant became

involved in the offense as a result of a sting operation initiated by DEA confidential informants.

8
In imposing these sentences, courts have repeatedly taken into account the complications in sentencing presented
by elaborate sting operations and questionable activity on the part of confidential informants.

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(Id. at 28-29). Accordingly, taking all these factors into consideration, the court ultimately

imposed a sentence of 120 months imprisonment. (Id. at 31).

In United States v. Toure, the defendant was charged after a DEA sting operation involving

the trafficking of narcotics on behalf of supposed members of terrorist organizations. (See

Sentencing Transcript of Harouna Toure, No. 09 Cr. 1244 (BSJ) (S.D.N.Y. Nov. 15, 2012) (Toure

Tr.), attached as Exhibit B). The defendant ultimately pled guilty to a single count of providing

material support to a terrorist organization through the transportation of narcotics, which carried a

statutory maximum sentence of 15 years imprisonment. (Toure Tr. 6, 23). Thus again, the

defendant in Toure engaged in a more serious crime than the crime at issue here. The Guidelines,

however, put the defendant at Criminal History Category VI and offense level 35, yielding a

Sentencing Table range of 292-365 months imprisonment. (Id. at 22-23). In identifying the

factors on which the court relied in reaching its sentence, the court identified as the very first factor

that [o]bviously, again, this was a government sting operation; there was no actual involvement

by the defendant or the undercoversobviously, the sourcesin the activities of either al-Qaeda

or the FARC. (Id. at 46). Taking this and other factors into account, the court imposed a sentence

of 63 months imprisonment. (Id. at 51).

Moreover, the nature and circumstances of the offense and the history and characteristics

of the Defendants militate in favor of a sentence far beneath the Guidelines range. At bottom, this

case came out of a sting operation where the Defendants were incapable of producing the extensive

amounts of cocaine that normally accompany such an investigation. They were convicted almost

exclusively based on conversation. The quantities that drive the Guidelines range are artificial

creations of the informants. Indeed, while the Government has larded the record with nefarious

interpretations of text messages, they have produced no real evidence that the Defendants were

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involved in serious drug trafficking prior to the events of this case, or that the Defendants engaged

in any prior conspiracy to traffic cocaine to the United States.

Even before Booker, many judges warned of the grave dangers presented at sentencing by

situations where the Guidelines are largely driven by decisions of informants and government

actors. See, e.g., United States v. Cambrelen, 29 F. Supp. 2d 120, 125 (E.D.N.Y. 1998) (Since

the shift to a sentencing scheme that strictly ties sentencing to the quantities of drugs involved,

many courts and commentators have expressed concern over the large discretion that law

enforcement officials have in setting the amount of drugs involved in a case) (citations omitted).

In Cambrelen, Judge Nickerson granted a downward departure, analogizing the informant-driven

armed robbery sting in that case to reverse sting drug cases where informants lower the price of

available drugs to a point that defies market reality, thereby distorting culpability:

In the usual reverse sting case, an informant artificially enhances the number of kilos in
the transaction by setting a price substantially below market price to induce the defendants
to buy more kilos than his available resources would have allowed him. That is exactly
comparable to what the informant did here. His proposal was in effect to furnish to
defendants on consignment whatever cocaine was in the warehousehe claimed 80
kilosin exchange for payment of one-quarter of the amount thereafter obtained on the
sale of the cocaine. The price to the defendants for their share was low indeed, far below
the market rate. The informant thus tried to ratchet up the number of years of incarceration
the defendants would face.

Id. at 12526. The court instructed that [t]he influence that confidential informants have in setting

the drug quantity is especially troubling since those people are often in the process of negotiating

down their own drug sentences or charges with prosecutors, and have enormous incentive to inflate

the drug quantities involved in the cases they help prosecute . . . . Reverse sting cases thus require

the most careful scrutiny and a probing examination by the district court. Id. (citation omitted);

see also United States v. Panduro, 38 F. Appx 36, 37-38 (2d Cir. 2002) (rejecting Governments

appeal of district courts decision to lower offense level in reverse sting case). In Panduro, the

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Second Circuit expressly approved of the district courts reasoning, writing: [i]n its opinion, the

district court held that the deal offered to Panduro did not represent reality in the marketplace

because even though wholesalers extend credit to their buyers, the extension of 50 percent credit

in these circumstances was unreasonable and below market because (1) the parties had no pre-

existing business relationship; (2) the wholesaler had no understanding of the buyers drug

distribution network; and (3) the changing cast of characters [among the buyers] would have made

any real world wholesaler wary. Id. (citing to Panduro district court opinion).

The analysis of those cases applies here, but to a much greater degree for two reasons.

First, those cases predate Booker. Second, the improper influence of the informants on the

Guidelines in this case likely exceeded any previous federal prosecution. The informants in this

case promised to provide extraordinary funding out of step with reality as defined by the

Governments own expert, assistance with every aspect of transportation, and logistical assistance.

No aspect of the investigation demonstrated that the Defendants ever possessed or were capable

of possessing the quantities of drugs that are driving the Guidelines here. And of course, the

informants who led this investigation were perhaps the most corrupt group of informants to ever

sully a DEA investigation and prosecution in the Southern District of New York. That is to say

that the nature and circumstances of the offense demand the imposition of a sentence far below the

Guidelines range. Justice and fairness demand a sentence far below the Guidelines range. So too,

reality and decency demand a sentence far below the Guidelines range. The Defendants in this

case are not similarly situated to any defendants who have appropriately received a sentence of

life imprisonment, or anything approaching such a sentence. The Court should impose a sentence

far beneath the Guidelines range.

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Dated: August 25, 2017


New York, New York
Respectfully Submitted,

/s/ Randall W. Jackson


______________________________
Randall W. Jackson
John T. Zach
BOIES, SCHILLER & FLEXNER LLP
575 Lexington Avenue
New York, New York 10022
Telephone: (212) 4462300
Facsimile: (212) 4462350

Attorneys for Defendant Efrain Antonio


Campo Flores

/s/ David M. Rody


______________________________
David M. Rody
Michael D. Mann
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 8395300
Facsimile: (212) 8395599

Attorneys for Defendant Franqui Francisco


Flores de Freitas

53