Opinion
CASE NO. 01-35-CR-KING
August 1, 2003
Robert Hertzberg, Esq., LAW OFFICES OF ROBERT HERTZBERG, Miami, FL, Amanda Maxwell, Esq., LAW OFFICES OF AMANDA MAXWELL, Coconut Grove, FL, Richard A. Sharpstein, Esq., Jorden Burt LLP, Miami, FL, Benson B. Weintraub, Esq, Benson B. Weinstraub, P.A., Ft. Lauderdale, FL, Jessica Kirby Manzanones, U.S. Probation Officer, Miami, FL, Counsel for Defendant Robert Berzon
ORDER DELINEATING SENTENCING ISSUES, FINDINGS, AND OFFENSE LEVEL COMPUTATION
This case, originally filed January 1, 2001 alleged two counts of conspiracy and possession with intent to distribute approximately 15,428 dosage units of Oxycodone in violation of Title 21 U.S.C. § 841A1; Section 846; and Section 2 of Title 18 against Defendants Robert Berzon, Dennis Delbene and Peter Derubeis, Jr. Forfeiture of assets was also sought for alleged violations of Title 21 U.S.C. § 853 (a)(1) and (2).
OxyContin, is a lab-produced drug containing Oxycodone, and Opium derivative, prescribed for persons suffering from chronic pain and cancer. This is an extremely potent drug that has become popular with drug traffickers and drug addicts because it is pharmaceutical production in labs is "safer" than illegal street drugs. The probation report refers to the drug as the "heroine of the Midwest." PSI, p. 4.
On July 13, 2001, the original indictment was superseded to add as Defendants Norma Berzon, Michael Berzon and Michael Hodges.
Ultimately, all Defendants pled guilty to the conspiracy charge contained in Count I.
The facts of the case as established, during the numerous hearings conducted for the purpose of accepting the respective pleas of guilty by each of the six defendants and the individual sentencing hearings conducted at various times where Co-defendants Dennis Delbene, Peter Derubeis, Jr., Norman Berzon, Michael Berzon and David Hodges, the Defendant operated a large and substantial drug trafficking organization that was obtaining large quantities of OxyContin in Miami, Florida for distribution throughout the Northeast United States.
Normally, sentencing hearings are promptly scheduled within seventy (70) days from the date of entry of plea or conviction by trial. This case however, has required almost two years to bring to conclusion between the entry of the first three pleas on October 19, 2001 and the final sentencing hearing of Defendant Robert Berzon, July 31, 2003. Approximately 25 sentencing hearings have been conducted for each of the six defendants over this extended period of time (between October 19, 2001 and July 31, 2003). Because of the complexity of the sentencing issues presented, the unfortunate and tragic illness and death of the wife of one of the counsel for Defendant Robert Berzon and the conflict in scheduling between the several lawyers, witnesses and the Court's own schedule have caused the sentencing hearing of Robert Berzon to be unusually delayed. Several written orders have been issued by the Court ruling upon various aspects of the objections to the Presentence Investigation Report.
Pleas of guilty were entered, by the respective defendants to Count I on the following dates:
Robert Berzon, Dennis Delbene, Peter Derubeis, Jr. and David Hodges on October 19, 2001.
Norma Berzon pled guilty to Count I on October 30, 2001.
Michael Berzon pled guilty to Count I on May 2, 2002.
The Court, on April 18, 2002 entered its written Order rejecting the plea agreement of Defendant Robert Berzon and scheduled the hearing for April 26, 2002 for the purpose of advising the Defendant personally in open court that the Court had rejected his plea agreement and that the Defendant's plea was set aside. At the April 26, 2002 hearing scheduled to personally advise the Defendant of the rejection of the plea agreement, to permit him to withdraw his plea of guilty and to schedule a trial date, the Defendant stated he did not want to withdraw his plea of guilty but wanted to proceed to sentencing. The Court scheduled a final sentencing hearing for May 10, 2002. A new Presentence Investigation Report was ordered prepared by the Probation Office in light of the rejection of the plea agreement by the Court.
In so doing, the Court did not "modify" the PSR, as the Defendant suggests. Rather, at a hearing on April 26, 2002, this Court simply ordered a new pre-sentence report to be prepared by the probation officer. While the USPO is an independent professional organization, the U.S. Probation Officer works "under the direction" of the District Court. 18 U.S.C. § 3602. Therefore, this Court did not abuse its discretion by directing the probation officer to issue a new pre-sentence report, and Defendant provides no authority suggesting otherwise.
After filing of the May 1, 2002 Presentence Investigation Report, and written objections received from counsel for Defendant Robert Berzon, the Court entered its Order of September 13, 2002 ruling upon a number of the objections, but determining that an evidentiary hearing was required, before findings of fact could be made by the Court upon objections numbered 3-9, 13, and 15. Additionally, the Government objected to the Probation Officer recommending Robert Berzon receive credit for acceptance of responsibility.
These matters, all set by Court Order for evidentiary hearing for October 1, 2002, had to be continued four times because of the tragic illness of counsel's wife (as set forth in this Order) and ultimately was scheduled by the last Order granting continuance, for July 31, 2003.
SPECIFIC ISSUES REMAINING FOR EVIDENTIARY HEARING
1. Defense objections to Probation Officer's recommendation on Robert Berzon's relevant conduct.
2. The extent and role of Robert Berzon in the criminal conspiracy to which he has pled guilty.
3. The defense objection to the Presentence Report stating that "Robert Berzon did not provide any documentation in support of his employment history."
4. The Government's objection to the Probation Officer's recommendation that Robert Berzon receive credit for acceptance of responsibility and a resulting reduction in his guideline computation.
5. The defense motion for downward departure based upon extraordinary medical condition of the Defendant Robert Berzon.
The Defendant Robert Berzon has filed a pleading dated July 28, 2003 entitled "Sentencing Memorandum and Motion for Downward Departure Based Upon Exceptional Physical Impairment." This is but the last, (filed three days before the sentencing hearing) of extremely substantial and detailed objections filed by Robert Berzon during the past 22 months.
THE STIPULATION OF COUNSEL
Counsel for the Government and the Defendant announced, at the commencement of the sentencing hearing, July 31, 2003, that "the parties have reached several factual stipulations relating to the evidence, offense level and role in the offense.They stipulated that, subject to the Court's approval, the Defendant has a base offense level of thirty-six (36), the Court would not increase or decrease Defendant's role in the offense, and he should receive three (3) points off for acceptance of responsibility resulting in a total offense level of thirty-three (33)."
Neither the Court nor the U.S. Probation Officer are bound by sentencing recommendations in the Defendant's plea agreement. See U.S.S.C., Guidelines Manual, § 3E1.1 (Nov. 2001).
The Court was able to approve two of the issues to which the parties had stipulated; namely, (a) that the number of pills of the drug for which Robert Berzon was to be held accountable was 105,000 pills, and (b) that Defendant should be given a three-level reduction for acceptance of responsibility.
The level of responsibility for 105,000 pills was in the range (90,000 — 198,000) of number of pills which the Probation Office of this Court had already found (P.S.R., ¶ 21) as being the applicable range to this computation. Since the stipulation placed a number of pills (105,000) within that range, the Court accepted the stipulation and made it a finding of fact. This has the effect of reducing a total offense level from 38 to 36.
21. Base of Offense Level: The guideline for a 21 U.S.C. § 846 offense is found in § 2D1.1 of the Sentencing Guidelines Manual. According to the Drug Equivalency Table in § 2D1.1, one gram of Oxycodone equates to 500 grams of marijuana. Therefore, the total weight (5.8 kilograms) of the seized OxyContin tablets equates to 2,900 kilograms of marijuana. Additionally, David Hodges reported delivering between approximately 90,000 and 306,000 pills to the Defendant during six months in the year 2000. Taking an average of 198,000 pills (.277 grams per tablet), results in an estimated additional 54,846 grams of OxyContin or 27,423 kilograms of marijuana. The total marijuana equivalent is 30,323 kilograms. Accordingly, the offense involved the equivalent of at least 30,000 kilograms or marijuana. Thus, the base offense level is 38, pursuant to § 2D1.1 (c)(1).
With respect to approving the stipulation by the Government and defense counsel granting Defendant a three-level acceptance of responsibility reduction, the Court was able to accept and approve the stipulation on this point because it had already been recommended by the Probation Officer. The effect of the approval of the second point of the stipulation was to reduce a total offense level from 36 to 33.
The third stipulation between the lawyers pertaining to role in the offense and the four-level enhancement recommended by the Probation Office of this Court could not be, and was not, approved and accepted by the Court.
The objection to the Probation Officer's findings at paragraph 24 of the Presentence Investigation Report that the Defendant was an organizer or leader of an offense involving five or more participants was denied and overruled. The Court specifically finds that the Defendant is clearly an organizer or leader of the Berzon drug organization and that this organization involved six or more participants, resulting in a four-level increase under Section 3B1.1 (a). The net effect of this was to raise the total offense level from 40 to 37.
Factors that the Court considered in deciding whether a defendant qualifies as a leader/organizer include: "the 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 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, Application Note 4. In simple drug conspiracy, a leader and organizer can be someone who supervises a number of people in the performance of their duties in furtherance of the conspiracy. United States v. Mesa, 247 F.3d 1165, 1169 (11th Cir. 2001) (upholding role enhancement under § 3B1.1 (a) where the defendant directed the activities of several people, including three people who stored and delivered cocaine for him, other people who unloaded and prepacked vehicles, and one interpreter who translated during drug transactions). The Mesa court reasoned that the cumulative effect of directing these activities in furtherance of the offense was sufficient for the sentencing court to find that the defendant acted as an organizer/leader for the purposes of U.S.S.G. § 3B1.1 (a).
In the instant case, the Defendant's role was superior to every other member of the conspiracy including Michael Berzon, David Hodges, Norman Berzon, Dennis Delbene, Peter Derubeis, and others. Defendant was subordinate to no one. Defendant supervised all of the people listed above, who picked up Oxycontin pills, stored them, and delivered them to buyers in the Northeastern United States. These workers acted at the direction of the Defendant. Two examples of the Defendant's "exercise of decision making authority" and "degree of control and authority exercised over others" are: 1) the Defendant's orders to Dennis Delbene to allow agents access to the Federal Express box containing more than $50,000 in drug proceeds; and 2) the Defendant's order to Peter Derubeis to get rid of the box containing more than 15,000 OxyContin pills, after the Defendant was alerted to the FBI's seizure of the $50,000 in drug proceeds.
The Defendant also recruited his workers, and kept a larger share of the profits for himself. For example, Defendant paid Delbene only a percentage of the profits made in the sale of the OxyContin pills. Also, each of the two Federal Express packages containing drug proceeds seized by FBI agents were addressed to Robert Berzon, clearly suggesting that the Defendant had control of the drug profits.
Based on the extensive nature of the drug conspiracy, the Defendant's control of drug profits, and his supervisory role over at least five other conspirators, the Defendant's offense level must be enhanced four points under § 3B1.1 (a).
DEFENSE OBJECTION TO INCLUSION OF LACK OF DOCUMENTATION REGARDING EMPLOYMENT
This objection to the phraseology of the probation report wherein it was indicated that Defendant Robert Berzon did not provide any documentation in support of his employment history was withdrawn by defense.
Although it was an accurate statement by the Probation Officer, the Defendant felt that it cast him in "unfair light."
This objection being withdrawn needs no further ruling.
MOTION FOR DOWNWARD DEPARTURE BASED ON MEDICAL CONDITION
Defendant introduced the testimony of a well-qualified specialist in the field of lymphodema, Dr. John M. Macdonald. Dr. Macdonald's testimony, fully set out in the record of this sentencing hearing, taken together with the written submission of counsel for the Defendant in the motion for downward departure establishes, and the Court so finds, that in 1970 the Defendant was involved in an industrial accident while working at his father's oil company. He was severely burned and required extensive hospitalization and treatment for a number of years.
The Defendant has been hospitalized on a number of occasions from 1985 forward for a number of serious ailments resulting from his lymphodema.
Since his incarceration from January 2001 until the present, he has been required to be transported from the Bureau of Prisons to various hospitals and the University of Miami Lymphodema Clinic. With the treatment that he has been receiving from Dr. Macdonald and his clinic, his condition has improved. The doctor testified:
"The major problems exist in a fragile interdependence of medical conditions. The cardiac valve abnormalities increase the opportunity of hear failure. This hear failure results in marked venous hypertension which greatly complicates therapy of the lymphodema. In combination, the chronic wounds, infection and increasing edema are a threat to cardiac function. The Defendant, as a result of the interdependent issues, is at great risk of bacterial endocarditis, which has been nearly fatal in the past."
The doctor testified that the specialized care the Defendant Robert Berzon required had been provided to him while incarcerated in Miami, Florida during the past 19 months. The doctor has researched the problem of how to provide the specialized care the Defendant needs and determined that there are approximately ten cities in the United States of America where the necessary facilities for this type of treatment are available. The clinics and hospitals enumerated by Dr. Macdonald are located in Miami, Cleveland, Chicago, Philadelphia, Kentucky and Houston. There may be others but this was the list that the doctor has developed in his research as being areas where the Defendant could receive this special care. In urging the Court exercises discretion for downward departure, the Defendant relies upon § 5H1.4 of the U.S.S.G. and United States v. Crumbliss, 2003 WL 223457 (4th Cir. 2003), 58 Fed. Appx. 577, United States v. Gigante, 989 F. Supp. 436 (E.D.N.Y. 1998), United States v. Moy, 1995 WL 311441 (N.D. Ill. 1995) and several other case authorities.
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.
The Government's cross examination developed that the Defendant had not shown that he was seriously infirm, or that he had an extraordinary physical impairment that makes it impossible for him to receive adequate treatment in a federal medical facility. The Government points out that although the Defendant has been" . . . incarcerated for more than two years and has never filed a pleading with this Court complaining of any inadequacies in his medical care" or produce any evidence to support his allegation that he will not receive adequate medical care in a federal facility. Citing United States v. Johnson, 71 F.3d 539 (6th Cir. 1995).
Although sympathetic with the Defendant's serious physical condition which may limit his life expectancy to an additional ten or twelve years, the Court must and does conclude that he has not established grounds for downward departure in this case. The motion for downward departure was, at the evidentiary hearing, denied with the Court's reasons articulated into the record in open court.
The Court determined that it would make a recommendation that the Bureau of Prisons be requested to make a survey to determine (a) the specialize care and needs the Defendant will require while incarcerated, and (b) the location of an appropriate and proper facility that is capable and competent to render the specialized care the Defendant will need. The Bureau of Prisons is requested to submit the report of their research (and the Court recommends they consult with Dr. Macdonald and defense counsel in preparing this report) to the United States Probation Office of the Southern District of Florida for evaluation and report and recommendation to the Court.
As stated in the hearing, the Court fully recognizes that the Bureau of Prisons has the discretion to determine where the place of incarceration for all defendants remanded to their custody by United States Courts will be, the Court will nevertheless will make a strong recommendation to the Bureau of Prisons, after studying the report and recommendation compiled by the Bureau of Prisons and the Probation Office of this Court regarding the designation of a facility where the Defendant will serve his sentence.
The Court further recommends to the Bureau of Prisons that the transportation of the Defendant to wherever he is going to be designated as his permanent facility, be accomplished without the necessity of an airplane flight of longer than three hours or physical leg restraints that do not comport with the testimony of Dr. Macdonald.
Dr. Macdonald testified that leg restraints can be utilized provided proper bandaging and care, cleaning and treatment of the Defendant's legs are carefully implemented.
SUMMARY OF RESOLUTION OF SENTENCING ISSUES
All of the issues raised by objection to the Presentence Investigation Report and Defendant's motion for downward departure were resolved in open court with an announcement by the Court of its findings of fact and conclusions of law on July 31, 2003. The Court retained jurisdiction for the purpose of entering this written Order in supplementation of the oral pronouncements the Court made at the conclusion of the hearing. Any appeal from this matter should include the Court's announcements in open court of its reasons for the rulings made therein, as well as this written order.The finding then, is of an offense level 37, criminal history category II, with an imprisonment range of 235 to 240 months (there is a statutory cap of 20 years for this offense), with probation not authorized, supervised release of three years, and up to a million dollar fine.
Following the Court's finding of the applicable guideline range under the Sentencing Guidelines Provisions of the law and, after listening to the Defendant, his counsel and Government counsel regarding the proper sentence to be imposed, the Court sentenced the Defendant to the low end of the guideline range of 235 months imprisonment, three-year supervised release, $150,000 fine and $100 special assessment.
Peter Derubeis was sentenced to 97 months imprisonment, three years supervised release and no fine.
Dennis Delbene was sentenced to 87 months imprisonment, three years supervised release and no fine.
David Hodges was sentenced to 91 months imprisonment, three years supervised release and no fine. Hodges received a five-case substantial assistant reduction of 30 months with the possibility of further reduction pursuant to Rule 35 for his cooperation.
Michael Berzon was sentenced to 108 months imprisonment, three years supervised release. This Defendant was sentenced to a significantly higher amount of drugs (approximately 90,000 pills) than were Derubeis, Delbene, Hodges and Norma Berzon.
Norma Berzon, (the mother of Defendants Michael and Robert Berzon) whose involvement was permitting the drugs to be stored in her home was sentenced on November 14, 2001 to two years non-reporting probation and no fine.
DONE AND ORDERED in chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida, this 1st day of August, 2003. cc: Counsel for Defendant Robert Berzon: