United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
RYA W. ZOBEL, District Judge.
Defendant Moises Figueroa ("Figueroa") is one of 30 defendants charged variously with drug offenses and related crimes. He was accused only in Count 1, conspiracy to distribute cocaine base, cocaine, oxycodone, and marijuana in violation of 21 U.S.C. § 846, and Count 6, distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On January 20, 2015, he pleaded guilty to Count 1 but only as to cocaine, cocaine base, and marijuana, and to Count 6, which pertains only to cocaine base. Although defendant admitted participation in the conspiracy and distribution, he vigorously contests the government's calculation of the amount of drugs attributable to him. The government asserts that is he responsible for more than 280 grams of cocaine base, which would subject him to a ten-year mandatory minimum sentence. Defendant admits to only 134.2 grams of cocaine base and 998 grams of cocaine powder.
Figueroa waived his right to a jury on the drug quantity determination, see Docket #1550 at 6:13-7:25, and the court held an evidentiary hearing on the issue. Detective Martin O'Malley of the Boston Police Department, who was the co-case agent working on the joint state and federal investigation that led to the indictment, was the only witness at the hearing. The parties were then invited to submit post-hearing memoranda.
I. Legal Standard
In a drug conspiracy case, "the court is required to make an individualized finding as to drug amounts attributable to, or foreseeable by, [each] defendant." United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004). This does not mean, however, that a drug conspiracy defendant may only be sentenced based on drugs that he personally sold. "[E]ach co-conspirator is responsible not only for the drugs he actually handled but also for the full amount of drugs that he could reasonably have anticipated would be within the ambit of the conspiracy." United States v. Gonzalez-Velez, 587 F.3d 494, 502-03 (1st Cir. 2009) (internal quotation marks omitted). "In sentencing a defendant convicted of participation in a poly-drug conspiracy, " like the one here, "care must be taken to ensure that particularized drug-type quantity findings are predicated on reliable information and, where significant uncertainty exists, that those findings err on the side of caution." United States v. Candelaria-Silva, 714 F.3d 651, 657 (1st Cir. 2013) (internal quotation marks omitted).
The parties agree that the government has the burden of proof. Facts affecting sentencing, like drug weight, typically need to be proven by a preponderance of the evidence and may be decided by the court. See, e.g., United States v. Almeida, 748 F.3d 41, 53 (1st Cir. 2014). But, when a fact triggers a mandatory minimum sentence, "the Sixth Amendment requires [it] to be treated as an element of the crime." United States v. Morris, No. 13-1369, 2015 WL 2137656, at *2 (1st Cir. May 7, 2015). The government therefore must prove such facts beyond a reasonable doubt. See United States v. Etienne, 772 F.3d 907, 921 (1st Cir. 2014); see also Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013).
The mandatory minimum sentence of ten years imprisonment is triggered by 280 grams of a mixture containing cocaine base. 21 U.S.C. § 841(b)(1)(A)(iii). I therefore must determine whether the government has proven beyond a reasonable doubt that 280 grams of cocaine base are attributable to Figueroa. If I so find, I must evaluate the evidence of any further drug quantities under the preponderance of the evidence standard.
The government's evidence falls into four categories. First, it offered evidence that Figueroa engaged in four controlled buys of crack cocaine between October 25, 2011, and November 25, 2011. These buys, according to the government, collectively involved 109.4 grams of mixtures containing cocaine base. Second, it offered wiretap evidence of a sale of 500 grams of cocaine powder. In the government's view, Figueroa knew that this cocaine would be used to make cocaine base and should therefore be counted as a sale of 500 grams of cocaine base. And, because that recorded phone call also included discussions of a prior sale of 500 grams of cocaine powder, the government attributes that additional 500 grams as cocaine base to defendant, using similar logic. Third, the government offered evidence of a January 17, 2013 search of Figueroa's residence that turned up 79.6 grams of cocaine base and 498 grams of cocaine powder. Finally, the government offered testimony that a search of Figueroa's mother's home turned up several safe deposit box keys. Two of those keys belonged to boxes at a neighborhood bank which officers found to contain $307, 000. Because Figueroa is an admitted "crack dealer, " the government contends that this money must have been his and come from his sales of cocaine base. Then, based on a conversion using crack's street value, this money should be counted as up to 14, 000 grams of cocaine base.
Defendant accepts responsibility for some of these quantities. He does not contest that the cocaine base involved in controlled buys on November 14, 2011, and November 25, 2011, totaling 54.6 grams, is properly attributable to him. He does, however, dispute the amounts from the remaining two controlled buys. Figueroa similarly accepts responsibility for the 500 grams of cocaine powder sold on September 27, 2012, but he challenges the government's attempt to count the cocaine powder as cocaine base for sentencing purposes and the government's attempt to attribute an earlier sale of 500 grams of cocaine powder to him. And although Figueroa accepts responsibility for both the cocaine powder and cocaine base seized at his home, he disputes that the $307, 000 seized from his mother's safe deposit boxes is his and, even if it is, that it should be converted to some amount of crack cocaine for sentencing purposes.
The issues for the court to decide are therefore (1) are the drug quantities from the remaining two controlled buys attributable to Figueroa; (2) has the government met its burden to convert the 500 grams of cocaine powder sold on September 27, 2012, to cocaine base for sentencing purposes; (3) is the reference to a prior sale of 500 grams of cocaine powder in the September 27, 2012, phone call sufficient to attribute these drugs to Figueroa; and (4) did the $307, 000 seized from the safe deposit box belong to Figueroa and, if so, should it be converted to cocaine base for sentencing purposes? As explained below, I answer only part of the first question in the affirmative.
A. Controlled Buys
1. October 25, 2011
The first controlled buy allegedly involving Figueroa was on October 25, 2011. This buy, like many others in this case, involved a cooperating witness ("CW"). According to Detective O'Malley's testimony, the cooperating witness, equipped with audio and video surveillance equipment, sought to buy an ounce of crack cocaine from co-defendant Hamilton Lopes. Lopes directed the cooperating witness to "the block, " which is 37 Hendry Street. There, on the second floor, the cooperating witness met with co-defendants Victor Scott and John Webbe. They told the cooperating witness that they did not have an ounce of crack, so they called someone else. Detective O'Malley interpreted the recording as identifying the ...