Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona DAVID A. PIMSNER Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 007480 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-04-1088-PHX-JAT Plaintiff, v. Calvin Frank Morris, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SENTENCE BELOW THE STATUTORY MINIMUM, OR IN THE ALTERNATIVE, TO DOWNWARD DEPART FROM THE SENTENCING GUIDELINES

The United States of America, by and through the undersigned Assistant United States

15 Attorney, respectfully requests the Court to deny the defendant's Motion to Sentence Below the 16 Statutory Minimum, or in the Alternative, to Downward Depart from the Sentencing Guidelines. 17 The government asserts that the evidence overwhelmingly supported the jury's unanimous 18 decision that the conspiracy between Jimenez and Morris involved five kilograms or more of 19 cocaine. 20 21 22 23 24 25 26 27 28
I hereby certify that on September 27, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jerry Hernandez, Esq.

Respectfully submitted this 27th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s David A. Pimsner DAVID A. PIMSNER Assistant United States Attorney

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. FACTS 3 Between the months of July and October 2004, Florian Hipolito Jimenez had several 4 telephone conversations with a Drug Enforcement Administration Confidential Source 5 (hereinafter referred to as "CS"). During these recorded conversations, Jimenez advised the CS 6 that he was interested in traveling to Phoenix in order to obtain kilogram quantities of cocaine 7 on a regular basis. Jimenez wanted the CS to introduce him to a cocaine source of supply. 8 During a telephone conversation on August 14, 2004, it became clear that Jimenez was 9 working with a co-conspirator, later identified as Calvin Morris, to purchase the cocaine. On 10 August 14, 2004, Jimenez told the CS that "he (referring to his co-conspirator) told me he 11 wanted to enter into an agreement to start with three (kilograms) per month." (Emphasis added) 12 See Trial Exhibit 53(A); pg. 5. This statement demonstrated that their intent was to complete 13 multiple transactions and not just a single cocaine transaction. 14 On August 21, 2004, Jimenez told the CS that "we're planning four to six (kilograms)." 15 See Trial Exhibit 54(C); pg. 1. Jimenez also stated that "every time we talk the thing looks 16 better." See Trial Exhibit 54(C); pg. 2. These statements evidenced the fact that Jimenez and 17 Morris had obtained additional monies in order to purchase a larger quantity of cocaine. On 18 August 29, 2004, Jimenez confirmed with the CS that the money was ready and that they 19 ". . . want to start now with four or five (kilograms)." (Emphasis added). Jimenez also 20 discussed obtaining larger quantities of cocaine in future transactions. See Trial Exhibit 54(E); 21 pg. 6. It was clear that the object of the conspiracy was to establish a long term relationship 22 with a cocaine source of supply. 23 On September 26, 2004, Jimenez told the CS that he had the money for five (kilograms) 24 but wanted to get six (kilograms). See Trial Exhibit 54(I); pg. 2. This call showed that for the 25 initial transaction they wanted to pay for five kilograms but be provided the sixth kilogram on 26 credit. 27 28

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On October 7, 2004, Jimenez and Morris traveled together to Phoenix. Once in Phoenix,

2 Jimenez met with the CS and confirmed that they had the money for five (kilograms) but wanted 3 six (kilograms). See Trial Exhibit 56; pg. 6. At the undercover meeting later that day, Jimenez 4 also told the agents that they wanted to buy five kilograms of cocaine and receive a sixth 5 kilogram on credit. Jimenez also expressed their desire to establish a long term relationship with 6 regular monthly purchases of even larger multi-kilogram quantities of cocaine in the future. See 7 Trial Exhibit 58; pg. 9. 8 There was other evidence to support Jimenez's and Morris's intent to establish an ongoing

9 long term relationship with a cocaine source of supply in Phoenix. Including evidence of the fact 10 that Morris purchased two can sealers and Jimenez advised the CS that they intended to leave 11 one of the sealers with the CS for future transactions. See Trial Exhibit 56; pg. 19. In addition 12 to the empty cans and lids Morris shipped to himself, along with the can sealer and money they 13 intended to use to purchase cocaine, he ordered an additional 48 unsealed cans and lids to be 14 delivered to Phoenix for use in future cocaine shipments. See Trial Exhibit 24. These facts do 15 not support a claim of sentencing entrapment. 16 17 II. POINTS AND AUTHORITIES Sentencing entrapment occurs when "a defendant, although predisposed to commit a

18 minor or lesser offense, is entrapped into committing a greater offense subject to greater 19 punishment." United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). A defendant bears 20 the burden of proving sentencing entrapment by a preponderance of the evidence. United States 21 v. Parrilla, 114 F.3d 124, 127 (9th Cir. 1997). The district court is obligated to make express 22 factual findings as to wether the defendant met this burden. Id. The court's discretionary refusal 23 to depart downward is not reviewable on appeal. United States v. Morales, 898 F.2d 99, 101 24 (9th Cir. 1990); United States v. Tucker, 133 F.3d 1208, 1214 (9th Cir. 1998). Factual findings 25 in the sentencing phase are reviewed for clear error. United States v. Naranjo, 52 F.3d 245, 248 26 (9th Cir. 1995). 27 28 3

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The defendant requests a reduced sentence on the grounds of sentencing entrapment. The

2 defendant bases this claim on the fact that the agents testified that the going rate for a kilogram 3 of cocaine in Phoenix was $14,000 per kilogram and that the defendants did not have enough 4 money to purchase five kilograms at that rate. The defendant ignores the fact that the agents also 5 testified that the going rate varies based on the quality and quantity of cocaine purchased. 6 Additionally, the defendant relies on the fact that at the end of the undercover meeting with 7 Jimenez (which occurred after Morris was arrested) the agents agreed to sell five kilograms of 8 cocaine to them for $11,500 per kilogram and provide a sixth kilogram on credit. The 9 government asserts that the final price agreed upon is not relevant in determining the object of 10 the defendants' conspiracy. Therefore it is necessary to review the prior evidence to determine 11 how much cocaine Jimenez and Morris intended to obtain as part of their conspiracy. 12 The evidence clearly demonstrates that they wanted to obtain five kilograms with an

13 additional kilogram being provided on credit. The evidence also proves that they intended to 14 establish a long term relationship and obtain multi-kilogram quantities on a monthly basis. 15 Additionally, it was co-conspirator Jimenez who established the quantity of cocaine they wanted 16 to purchase. This quantity was not set by the agents or the CS nor did the agents try to persuade 17 Jimenez to obtain a larger quantity than they intended. Accordingly, there was more than ample 18 evidence for the jury to find that the object of the defendants' conspiracy was to obtain in excess 19 of five kilograms of cocaine. Therefore, the defendant's motion must be denied. 20 // 21 22 23 24 25 26 27 28 4

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III. CONCLUSION Since there is no evidence of sentencing entrapment, the defendant's request for a reduced

3 sentence must fail. Accordingly, the government requests that the defendant's motion be denied. 4 5 6 7 8 9 10 11 12 13 14
Jerry Hernandez, Esq. I hereby certify that on September 27, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Respectfully submitted this 27th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s David A. Pimsner DAVID A. PIMSNER Assistant United States Attorney

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