Filed: Apr. 08, 1999
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED - U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 97-5509 04/08/99 THOMAS K. KAHN - CLERK D. C. Docket No. 96-6011-Cr-NCR UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSEPH CATALDO, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Florida - (April 8, 1999) Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge. EDMONDSON, Circuit Judge: Defen
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED - U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 97-5509 04/08/99 THOMAS K. KAHN - CLERK D. C. Docket No. 96-6011-Cr-NCR UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSEPH CATALDO, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Florida - (April 8, 1999) Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge. EDMONDSON, Circuit Judge: Defend..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 97-5509 04/08/99
THOMAS K. KAHN
-------------------------------------------- CLERK
D. C. Docket No. 96-6011-Cr-NCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH CATALDO,
Defendant-Appellant.
----------------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
----------------------------------------------------------------
(April 8, 1999)
Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
Defendant appeals his convictions and sentences for
conspiracy to import cocaine and possession with intent to
distribute cocaine. We affirm defendant’s convictions.
Because the Government did not present sufficient evidence to
support an obstruction-of-justice enhancement, we vacate the
sentences imposed by the district court and remand for
resentencing.
Background
In June 1994, confidential informant Mario Adamo1
contacted defendant Joseph Cataldo and asked Cataldo if he
knew of potential buyers or sellers of cocaine. Adamo told
Cataldo that he would pay Cataldo a one- or two-thousand-
1
Adamo was a convicted narcotics trafficker cooperating
with the DEA. Adamo had known defendant Joseph Cataldo
for years before the events at issue in this case occurred.
2
dollar commission for each kilogram of cocaine that Adamo
bought or sold. Cataldo later introduced Adamo to Bill Ceccoli
and George French for the purpose of arranging possible
cocaine transactions. Cataldo told Adamo that Ceccoli and
French had connections in Belize that would be useful for
obtaining cocaine.
In July and August, Adamo and Ceccoli discussed the
possibility of importing hundred-kilogram quantities of cocaine
into Florida. Cataldo told Ceccoli that, in the meantime, Adamo
was interested in selling a smaller amount of cocaine. Adamo
and Ceccoli later agreed to a small-scale transaction. That
transaction took place in August 1994, when Ceccoli paid an
undercover agent, posing as a seller, $30,000 for two kilograms
of cocaine. After Ceccoli left with the cocaine, he was stopped
by law enforcement agents monitoring the transaction. The
agents confiscated the cocaine without Ceccoli’s knowledge but
did not arrest Ceccoli. Ceccoli believed the cocaine had been
3
stolen; he then contacted Cataldo, who told Ceccoli that
Cataldo would speak to Adamo about the situation.
In August and September of 1994, Adamo, Ceccoli,
French, and an undercover agent discussed the importation of
between 100 and 600 kilograms of cocaine from Belize.
Cataldo was present for some of the discussions; and, at one
point, he was told by Ceccoli that he could receive an additional
commission from Ceccoli for the transactions. The plan
ultimately failed because French and Ceccoli were unable to
locate a source of cocaine at the terms and quantities they
required.
In June 1995, French asked Cataldo to put him in touch
with Adamo again because French wanted to buy a kilogram of
cocaine. Cataldo arranged for French to meet with Adamo at
the hotel where Cataldo was staying. The transaction took
place; and afterwards, law enforcement agents again seized
the cocaine. French contacted Cataldo and told him that the
4
cocaine had been taken. Cataldo agreed to attempt to recover
the cocaine or the money. Cataldo thereafter spoke several
times with Adamo and made threats against Adamo, whom he
believed had set up French and also Ceccoli.
In January 1996, Cataldo was charged by superseding
indictment with, among other crimes, conspiracy to import
cocaine in violation of 21 U.S.C. §§ 952(a) & 963 (Count I),2
and possession with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count IV). Cataldo
pleaded not guilty. He was convicted on Counts I and IV.
At sentencing, Cataldo sought a mitigating-role reduction
in his base-offense level. The district court found that Cataldo’s
role in the offense did not entitle him to a reduction. The court
2
The indictment charged that “Joseph Cataldo, George
French, and James R. Boleman knowingly and intentionally
combined, conspired, confederated and agreed with each
other and with persons known and unknown to the Grand Jury
to possess with intent to distribute and to distribute . . .
cocaine . . . .”
5
also found, over Cataldo’s timely objection, that Cataldo had
failed to report his full arrest record to the probation officer, who
had prepared Cataldo’s Presentence Investigation Report
(“PSI”), thereby warranting an obstruction-of-justice
enhancement. The court sentenced Cataldo within the
applicable Guidelines range to concurrent terms of 108 months’
incarceration on Counts I and IV.
Discussion
On appeal, Cataldo challenges both his convictions and
his sentences. Only the sentencing arguments warrant
discussion.
I.
6
Cataldo contends that the district court erred in refusing his
request for a reduction of his offense level based on his minimal
or minor role in the offense. Section 3B1.2 of the Sentencing
Guidelines, “Mitigating Role,” designates a range of downward
adjustments for a defendant whose role in committing the offense
makes him “substantially less culpable than the average
participant.” U.S.S.G. § 3B1.2, background (1998) (emphasis
added). The Guidelines state that a defendant’s offense level
may be decreased by four levels if he was a “minimal participant”3
in the criminal activity, reduced by two levels if he was a “minor
participant”4 in the criminal activity, and reduced by three levels if
his role fell somewhere in between. U.S.S.G. § 3B1.2.
A minimal-role reduction is intended to be used infrequently,
3
U.S.S.G. § 3B1.2, comment. (n.2), “to cover defendants who
are plainly among the least culpable of those involved in the
conduct of a group,” U.S.S.G. § 3B1.2, comment. (n.1).
“[A] minor participant means any participant who is less
4
culpable than most other participants, but whose role could not
be described as minimal.” U.S.S.G. § 3B1.2, comment. (n.3).
7
At sentencing, the Government characterized Cataldo as a
drug broker (bringing buyers and sellers together) and argued that
Cataldo should receive a two-level aggravating-role enhancement
pursuant to section 3B1.1(c). Cataldo argued that he was entitled
to a mitigating-role reduction. The court determined that neither
an enhancement nor a reduction was warranted, explaining:
On his role in the offense it strikes me that he was
more than a mere broker. But the Government has
testified that his role was that of a broker.
And a broker is -- in drug deals there is always a
danger of over generalization. But they almost never
have an aggravating role of being an organizer, leader,
supervisor or manager.
But they also never have a[] minor role or a
minimal role.
They are a classic example of somebody who
deserves whatever the standard level is in the sense
that they don’t get any increase in levels and they don’t
get any decrease in levels.
I see nothing in the circumstances of this case to
depart either upward or downward in the determination
of the levels.
On appeal, Cataldo contends that the district court erred by
applying a per se rule excluding brokers from being eligible for a
8
mitigating-role adjustment.5 Cataldo also argues that, given the
facts of this case, he is entitled to a reduction based on both his
lack of knowledge of the scope of the conspiracy and on his role
in relation to his coconspirators.
The defendant bears the burden of proving by a
preponderance of the evidence that he is entitled to a mitigating-
role reduction. United States v. Gates, 967 F.2d 497, 501 (11th
Cir. 1992). We review the district court’s determination of a
defendant’s role in the offense for clear error. United States v.
Garrison,
133 F.3d 831, 843 (11th Cir. 1998).
Cataldo is correct that application of section 3B1.2 requires
an inquiry into the specific facts of the case. See U.S.S.G. §
3B1.2, background (stating that section 3B1.2 determination is
To the district court, Cataldo objected to the denial of a
5
downward adjustment but did not specifically object on the
ground of a per se rule having been applied. The
Government has not argued that Cataldo has given up the
point. So, for the sake of discussion, we have assumed he
has preserved the point.
9
“heavily dependent upon the facts of the particular case”); see
also United States v. Veloza, 83 F.3d 380, 382 (11th Cir. 1996)
(“[T]ransporting illegal drugs, in and of itself, cannot, as a matter
of law, preclude a defendant from receiving a downward
adjustment based on his role in the offense.”). The Guidelines
also contemplate some comparison of a defendant’s conduct to
that of his coconspirators. See U.S.S.G. § 3B1.2, comment. (nn.1
& 3) (defining “minor” and “minimal” roles in terms of defendant’s
conduct relative to that of his coconspirators). But, contrary to
Cataldo’s argument, the district court judge in this case -- who had
presided over the trial and listened to all the evidence -- did not
fail to make the necessary inquiry.
The sentencing court did not construe the Guidelines to
exclude categorically drug brokers from a minor or minimal role
reduction. Instead, the court articulated a kind of rough guide,
which he then applied to the particular facts of Cataldo’s case.
The court expressly noted the “danger of over generalization” --
10
implying that he knew to stop and was stopping short of doing that
-- in stating his general view of a drug broker’s role. In context,
we do not read the judge’s remarks as allowing for no
exceptions.6 And the court ultimately made a decision based on
“the circumstances of this case,” rejecting both Cataldo’s
application for a reduction and the Government’s application for
an increase. We do not understand the record to show that the
6
We cannot accept that a district judge’s extemporaneous
spoken words of explanation are to be read by appellate
judges as if we were reading a statute. The Supreme Court
has said that we are not to read even the Supreme Court’s
formal, written opinions that way. See St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 515 (1993) (“[W]e think it generally
undesirable, where holdings of the Court are not at issue, to
dissect the sentences of the United States Reports as though
they were the United States Code.”). We look at context and
at the judge’s acts. And we do not assume that the district
judges do not know the law: their ambiguous oral statements,
if possible, are interpreted to be consistent with (and not
inconsistent with) the law. The last principle applies with
particular force when the district judge never had presented to
him an objection aimed specially at his choice of words: the
kind of objection that would have allowed him the chance to
clarify his statements.
11
sentencing court, in fact, did apply a hard-edged, per se rule in
this case.
We have looked at the facts of this case. The district court
did not commit clear error in refusing Cataldo a reduction.
Multiple contacts existed between Cataldo and the other
participants in the enterprise about the various cocaine
transactions. Cataldo, introducing the coconspirators to one
another, had a connection to both the source and destination of
the drugs. The Government also presented evidence that
Cataldo was involved, to some degree, in the large-scale
importation scheme. See United States v. Asseff, 917 F.2d 502,
507 (11th Cir. 1990) (“It is evident that defendants-appellants’
conduct does not warrant a downward adjustment in sentencing
because of their apparent knowledge of their criminal activity and
the great amount of cocaine involved.”). And he had some
knowledge of other proposed and actual drug deals among the
coconspirators. Cf. U.S.S.G. § 3B1.2, comment. (n.1). (“[L]ack of
12
knowledge or understanding of the scope and structure of the
enterprise and of the activities of others is indicative of a role as
minimal participant.”) Cataldo also maintained a financial interest
in the transactions.
That Cataldo was less culpable than some of his
coconspirators is not plain. But, even if we accept Cataldo’s
assertion that he had some lesser role than his coconspirators,7
that fact alone does not necessarily warrant a role reduction in
this case. See United States v. Zaccardi, 924 F.2d 201, 203 (11th
Cir. 1991) (“Although the PSI indicated that appellant was one of
the ‘least culpable’ defendants, the district court was not obliged
on that basis to determine that appellant was a ‘minor’ participant
. . . . It is entirely possible for conspiracies to exist in which there
are no minor participants[.]”). Sufficient evidence supports the
Adamo testified at trial that Cataldo’s role was limited to
7
making introductions.
13
court’s determination that Cataldo was not entitled to a mitigating-
role adjustment. The court, therefore, did not commit clear error.
II.
Cataldo contends that the district court erred in increasing his
offense level two increments for obstruction of justice. The
probation officer preparing Cataldo’s PSI recommended the
enhancement because he believed Cataldo had failed to
acknowledge a 1983 “arrest” in Massachusetts for assault and
battery with a dangerous weapon when asked about his arrest
history. Cataldo admits that the did not mention this offense. He
argues, however, that he made no false statement, because he
was not arrested on the 1983 charge.8
8
Cataldo similarly objected to the probation officer’s reliance
for the obstruction-of-justice enhancement on four Florida
convictions for writing worthless checks. The probation officer
did note that the cases were handled administratively (that is,
without an arrest); and the court did not rely on them in
14
Section 3C1.1 of the Guidelines states “If . . . the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense .
. . increase the offense level by 2 levels.” “[P]roviding materially
false information to a probation officer in respect to a presentence
. . . investigation” is a kind of conduct to which the enhancement
applies. U.S.S.G. § 3C1.1, comment. (n.4(h)).
The Government has the burden of proving the applicability
of a guideline section which would enhance a defendant’s offense
level. United States v. Shriver, 967 F.2d 572, 575 (11th Cir. 1992).
And “[w]hen a defendant challenges one of the factual bases of
his sentence . . . the Government has the burden of establishing
the disputed fact by a preponderance of the evidence.” United
States v. Lawrence,
47 F.3d 1559, 1566 (11th Cir. 1995). This
burden must be satisfied with “reliable and specific evidence.”
Id.
applying the enhancement.
15
Cataldo contends that the Government failed to meet its burden
at sentencing because it did not prove that he was arrested on the
1983 charge.9
The PSI states that no court documentation or circumstances
about the arrest were available on the 1983 offense and that the
probation officer was attempting to retrieve documentation from
archives. In the Addendum to the PSI, the probation officer
further wrote “[t]he court records as to the defendant’s 1983
arrest[] in Massachussetts [sic] reflect an arraignment date but not
an arrest date.”
9
Contrary to the Government’s contention, Cataldo did not
waive this argument. Some confusion arose during the
discussion of the obstruction-of-justice enhancement. But, our
review of the record reveals that all parties understood that
Cataldo contested the existence of an arrest for the 1983
Massachusetts assault and battery offense, as well as for
seven other Massachusetts offenses and the four Florida
worthless check charges discovered by the probation officer.
See United States v. Hoffer, 129 F.3d 1196, 1202-03 (11th Cir.
1997) ( “To preserve an issue for appeal, an objection must be
sufficiently detailed to allow the trial court an opportunity to
correct any arguable errors before an appeal is taken.”)
16
At the sentencing hearing, the Government sought to prove
the arrest by presenting a computer printout from the
Massachusetts courts reflecting, at best, an arraignment date, a
conviction and probation for the 1983 charge.10 The court
overruled Cataldo’s objection to the enhancement, reasoning “[i]t
strikes me that there is enough in the printout that warrants . . . a
conclusion [that Cataldo was not truthful] . . . . When you get
probation, you have been arrested. Especially when you get
10
The printout is not in the record. But, we can review this
issue based on the representations made in the briefs and on
the district court’s statements in open court. See United
States v. Gutierrez, 931 F.2d 1482, 1491 (11th Cir. 1991). The
district court commented on the printout’s contents this way:
My probation officer was showing me a printout
[from] the courts in Massachusetts in connection with
this assault and battery with a dangerous weapon.
And the second count is a probation violation
although it says, the printout says, arraignment on the
same date for these offense[s], one from Salem and
one from Peabody [Massachusetts.]
And it doesn’t contain a whole lot more
information on that except it shows an award of
probation.
17
probation for assault and battery with a dangerous weapon.” The
court also stated, “I don’t know how you could ever get probation
in a court without having been arrested.”
Although the court’s inference may be reasonable, courts
“must not speculate concerning the existence of a fact which
would permit a more severe sentence under the guidelines.”
United States v. Wilson, 993 F.2d 214, 218 (11th Cir. 1993). On
the record before us, too much speculation was required. The
printout does not itself suffice as “reliable and specific” proof that
Cataldo was arrested on the 1983 charge, in the face of Cataldo’s
assertion that the charge involved a notice to appear.11 The
printout is inconclusive on whether Cataldo was arrested. On
appeal, the Government does not contend that the printout is
11
Cataldo’s claim is plausible: Massachusetts law, at least
at the present time, indicates a preference for summonses
over arrest warrants. See Mass. Gen. Laws Ch. 276, § 24
(1998) (“Upon a complaint or indictment for any offense, a
summons shall issue instead of a warrant, unless, in the
judgment of the court or justice, there is reason to believe that
the defendant will not appear upon summons.”).
18
direct evidence of an arrest or that it contains information about
an arrest which would disprove Cataldo’s assertion that the 1983
charge was handled by a notice to appear. The Government
never obtained Massachusetts court documents verifying
Cataldo’s alleged arrest or presented evidence showing that it
was more likely than not that the charges against Cataldo
involved an arrest. See United States v. Bernardine, 73 F.3d
1078, 1082 (11th Cir. 1996) (vacating sentence and noting
absence of evidence in record to clarify ambiguous statement
relied upon by Government in seeking enhancement to
defendant’s sentence).
We therefore conclude that the Government failed to
establish that it was more likely than not that Cataldo was
arrested for the 1983 charge.12 That fact is an essential predicate
Our opinion bears only on the obstruction-of-justice
12
enhancement. On appeal, Cataldo does not challenge the
assessment of one criminal-history point for the 1983 offense;
therefore, we do not address that issue.
19
to the application of the enhancement. Without it, the court had
no basis on which to conclude that Cataldo gave inaccurate
information, that is, that he obstructed justice.13
In the light of Cataldo’s objection and the absence of “reliable
and specific” evidence to the contrary, the court erred in applying
the enhancement. Accordingly, we must vacate the sentences
and remand for resentencing.
13
The basis of the enhancement appears to be the 1983
charge and that is the focus of the parties’ arguments on
appeal. But, Cataldo was also convicted in 1963 for assault
and battery on a police officer in Massachusetts, as well as
six other offenses in Massachusetts. Cataldo objected to all
these charges too, asserting that the Government had not
proven he was arrested. The district court did mention the
1963 charge in ruling on the obstruction-of-justice
enhancement. No computer printout evidences the 1963
charge, but the PSI indicates that Cataldo received three
months’ probation on that charge. The court, drawing the
same inference he did for the 1983 offense, concluded that
Cataldo had been arrested. To the extent that the court
alternatively or additionally relied on the 1963 charge or the
other Massachusetts charges, that act was in error for
reasons discussed above about the 1983 charge: the
Government failed to prove that Cataldo had been arrested.
20
For these reasons, we AFFIRM Cataldo's convictions, but we
VACATE his sentences and REMAND for resentencing.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.
21
