US v. Zapata

Filing 920091216

Opinion

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var WPFootnote1 = 'Of the Ninth Circuit, sitting by designation.\
'

var WPFootnote2 = ' A series of six fifteen-day wiretaps were placed on Zapata\'s\
phone between May 31 and August 27. Wiretaps were placed on\
Saldana\'s phones between July 1 and August 27, and a single wiretap\
was in effect on Samuels\' phone between August 17 and August 27.\
'

var WPFootnote3 = ' For example, in one call, Zapata asked Domínguez: "And for,\
for those hundred (100) pesos, what\'s up? So I can let the guy\
know." Domínguez replied that he didn\'t "have anything right now"\
because he was waiting for "this guy" to call him, and Zapata then\
asked: "What are you going to do, are you going to take it up front\
or what?" According to the PSR, agents believed the "hundred\
pesos" was 100 grams of cocaine. Shankweiler testified that Zapata\
was asking if Domínguez wanted the drugs "up front," meaning that\
he would get the cocaine without paying for it at that time. In\
another call the next day, Domínguez told Zapata that "I have the\
papers now," which the agents understood to mean that he now had\
the money to pay for the drugs. Shankweiler testified that, in his\
experience with "numerous overheard drug conversations, \'papers\' is\
money."\
'

var WPFootnote4 = ' The information stated:\
\
                   On or about July 4, 2005, in the District of\
Massachusetts and elsewhere,\
                                    CESAR ZAPATA\
              defendant herein, did knowingly and intentionally use a\
communication facility, to wit: a cellular telephone\
assigned telephone number [phone], in committing,\
causing and facilitating a drug trafficking offense,\
specifically Conspiracy to Distribute Cocaine in\
violation of Title 21, United States Code, Section 846.\
'

var WPFootnote5 = ' In the first call on July 4, Juan called Zapata and told him\
that his friend, "the one from last night . . . He wants me to see\
him to do the special that there was yesterday? He wants to\
continue with the same special, so I don\'t know what to do." \
Zapata told Juan, "hold on, talk to the man," and he put Saldana on\
the phone. Juan then told Saldana that his friend, "the last one\
I met with last night," called him "to dance at two discotheques so\
that then, you know, now, he got used to yesterday\'s special, so\
. . . I told him I have to ask first." The conversation then\
continued:\
\
              SALDANA: No, tell him no . . . only if he just wants\
half, another half block up front, and that\'s the only\
way, if it is, it is . . . \
              JUAN: Okay. Half a block more up front?\
              SALDANA: If he has given street for it, if he hasn\'t\
given street and he isn\'t, and he doesn\'t go right away,\
uh . . . \
              JUAN: Oh, no, he\'s going right away. He has to give me\
four (4) pesos for last night. . . So, he\'s going to go\
twice.\
              SALDANA: So have him give it to you all together already\
and that\'s finished.\
              JUAN: Alright then. Let me talk to him.\
              SALDANA: Okay\
              JUAN: Okay, okay.\
\
Shankweiler testified that this conversation was a coded request\
for two kilograms of cocaine (two "discotheques") at the same price\
as the day before ("the same special").\
\
Later that day, Juan again called Zapata and said: "Ask this guy if\
you are going to come over tonight, because there are fifty-five\
(55) pesos there." Zapata replied that they were coming the next\
day because "we\'re all drinking." Zapata again put Saldana on the\
phone with Juan, who repeated: "I have the fifty-five (55) pesos\
here for you to pay the rent there." Saldana replied that he would\
"go by there later on."\
\
Zapata spoke with Juan again the next day, July 5, and their\
conversation included the following exchange:\
\
              JUAN: Yeah, well, I\'m just taking it easy here. I have\
the seventy (70) something pesos so that, so that you can\
cover the rent.\
              ZAPATA: Uh-huh.\
              JUAN: Yes, so you can call me, and tell me if you\'re\
going to come over, so that I can get a money order for\
you to pay, because the rent was due on the first.\
              ZAPATA: Uh-huh.\
              JUAN: That way you [plural] can make up the difference\
with that. . . seventy-something pesos that I have there.\
              ZAPATA: Okay, that\'s fine. That\'s fine. We\'ll call you\
soon.\
\
\
'

var WPFootnote6 = ' Under the Sentencing Guidelines, the base offense level for\
an offense under section 843(a) is the offense level for the crime\
that the defendant sought to facilitate. See U.S.S.G. § 2D1.6. \
The offense level for the underlying crime here – a drug conspiracy\
– is tied to the quantity of drugs attributable to the defendant\'s\
conduct. U.S.S.G. § 2D1.1. BOL 12 applies to a cocaine\
trafficking conspiracy when no amount of drugs has been proven. \
U.S.S.G. § 2D1.1(a), (c)(14). \
'

var WPFootnote7 = ' The calculation took into account a reduction in the BOL for\
acceptance of responsibility.\
'

var WPFootnote8 = ' In one exchange, for example, defense counsel focused on\
Shankweiler\'s testimony that the box Zapata took from Saldana\'s\
residence and carried into Juan\'s apartment on July 7 contained\
drugs. The conversations on July 6 that preceded the delivery\
referred to a "radiator," and defense counsel challenged\
Shankweiler\'s belief that such references were code for drugs. \
Counsel sought to show that, given the legitimate car business run\
by Zapata, the references to "radiator" were more logically\
understood to describe a car part.\
'

var WPFootnote9 = ' Shankweiler interpreted specified numbers of pesos to refer\
to different multiples of dollars. For example, he construed "55\
pesos" and "70 pesos" in the July 4 and 5 conversations to mean\
$55,000 and $70,000, but also testified that "4 pesos" meant\
$40,000. The PSR, meanwhile, construed a reference to 100 pesos to\
denote 100 grams of cocaine. \
'

var WPFootnote10 = ' The "third call" to which the court referred was Zapata\'s\
call to Juan on July 4, following the two calls from Juan in which\
he had passed the phone to Saldana. Zapata urged Juan to tell\
Saldana not to "go over there" until the next day "because he\'s\
drinking, you understand. . . . [It]\'s hot, also." Later in the\
call, after asking Juan to "tell him anything, anything at all, so\
that nothing bad happens there," he again explained, "[b]ecause\
it\'s hot, hot, you understand?" \
'

var WPFootnote11 = ' Those factors include, inter alia, the history and\
characteristics of the defendant, the seriousness of the offense,\
the goals of rehabilitation, and the need for deterrence. See 18\
U.S.C. § 3553(a).\
'

var WPFootnote12 = ' Zapata does not view the guideline range produced in this\
way as mandatory or conclusive, but, consistent with the Booker\
line of cases, merely as a starting point for the sentencing\
determination. See United States v. Booker, 543 U.S. 220 (2005). \
The sentencing judge would be obliged to evaluate this "true\
reasonable maximum dictated by the Guidelines" in light of "real\
world sentences that have been meted out for the same crime." He\
asserts that data compiled by the U.S. Sentencing Commission\
concerning sentences under section 843(b) for defendants in similar\
circumstances confirms that his "true statutory maximum was no more\
than twelve months."\
'

var WPFootnote13 = ' Zapata argues that Villarman-Oviedo is inapt precedent\
because a cooperating witness and the defendant in that case\
admitted that code words were used in their drug transactions and\
that Ceballos is distinguishable because the court permitted agent\
testimony on the meaning of ambiguous pronouns rather than on\
unambiguous nouns. Neither distinction undermines the district\
court\'s reliance on Shankweiler\'s expertise in the context of this\
case. As noted, the court was able to evaluate Shankweiler\'s\
conclusions in light of the transcripts and could draw its own\
conclusion about whether – as Shankweiler testified – the coded\
language "sticks out in the context of the call because it doesn\'t\
fit." Moreover, the agents in Ceballos also testified that words\
such as "tickets" and "cars" were code words for narcotics and that\
"one" and "two" referred to certain quantities of methamphetamine, \
see 302 F.3d at 686, and Ceballos is thus not distinguishable as\
defendant suggests.\
'

var WPFootnote14 = ' Section 3553(a) states that "[t]he court shall impose a\
sentence sufficient, but not greater than necessary, to comply with\
the purposes set forth in paragraph (2) of this subsection." \
Paragraph (2) lists the following purposes:\
\
              (A) to reflect the seriousness of the offense, to promote\
respect for the law, and to provide just punishment for\
the offense;\
              (B) to afford adequate deterrence to criminal conduct;\
              (C) to protect the public from further crimes of the\
defendant; and\
              (D) to provide the defendant with needed educational or\
vocational training, medical care, or other correctional\
treatment in the most effective manner[.]\
'

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