Professional Documents
Culture Documents
United States v. Cardelli, 1st Cir. (1995)
United States v. Cardelli, 1st Cir. (1995)
____________________
No. 94-2109
UNITED STATES,
Appellee,
v.
STEPHEN D. CARDELLI,
Defendant, Appellant.
____________________
____________________
Before
____________________
United
States Attorney,
States Attorney,
and
Jonathan R. Chapm
__________________
F. Mark Terison,
________________
Assist
____________________
____________________
Per Curiam.
__________
We affirm.
I.
In
Cardelli
September
with
1992,
two drug
a six-count
offenses
indictment
and four
counts
of
the
indictment.
conspiring to
of
possess with
federal income
Cardelli
entered
of tax-
a plea agreement
These
violation of 21 U.S.C.
charged
respectively
charged him
intent to distribute
six
with
cocaine in
taxes in violation
his guilty
plea on
of 26
U.S.C.
April
7, 1993.
7201.1
His
At
States Sentencing
could
he
Guidelines (Nov.
1993).
While
Cardelli
estimated it to
government
be an amount
then called
below 15
DEA Agent
kilograms.2
John Bryfonski,
The
the case
____________________
1.
the indictment.
Cardelli
with the
2.
The
assigned
Drug Quantity
Table of
the Guidelines,
2D1.1(c),
Consistent with
the
information in
the presentence
June,
1989,
cocaine
Lewiston,
Cardelli
distribution
and
Auburn
and
ring
areas
four others
that operated
of Maine.3
report
participated
in
in
the Portland,
Agent
Bryfonski
provided
and subsequent
in
May,
1988,
the
five
conspirators
Thus, sometime
met
at
Giobbi's
Dan
Hicks estimated
that
Cardelli
supplied him
with
the
conspiracy.
cocaine from
total of
Randy
Hicks,
who
often transported
Portland to Lewiston/Auburn,
he received
estimated that
the
____________________
who supplied
the cocaine to
Cardelli, Dan
obtained cocaine
from Cardelli,
from the
and Christopher
Pizzi, who
obtained cocaine
it to retail
customers in
Dan and Randy Hicks and Christopher Pizzi pled guilty to drug
offenses arising from their conspiracy with Cardelli.
4.
in
Cardelli's
cocaine came
business
office
when
distribution
-3-
himself
had
indicated during
his debriefing
sessions with
presented
no
evidence
testimony.
Defense
opportunity
to
that their
counsel
controvert
agent
stated that
cross-examine
sentences
the
in
the coconspirators,
coconspirators had
return
Bryfonski's
he would
unreliable because
reduced
to
for
He
like an
implying
all
been
implicating
given
Cardelli.5
the
PSR,
the
district
judge
found
that
Cardelli
was
corresponding base
34.6
While
the court
acknowledged
that
agent
Bryfonski's
description
of
the
____________________
5.
been attributed to
Cardelli.
6.
That
was
based
total
of
on
evidence
that
27
kilograms
to
distributed
Christopher
Pizzi
provided an
additional 2000
and
provided
individual
(Phillip
contrary,"[f]acts
ordinarily
purposes."
an
evidence
that
Gullifer).
contained
396.9
in
-4-
also
had
to
presentence
Morillo, 8 F.3d
_______
Cir. 1993).
for
evidence
reliable evidence
United States v.
_____________
Hicks
indicated that
grams
Absent
had
Phillip DiStefano
additional
are considered
Dan
Cardelli
grams to one
Hicks.
Cardelli
another
to
the
report
for sentencing
864, 872 (1st
conconspirators'
drug
quantity estimates
was
hearsay, the
court found that this evidence was reliable because all three
coconspirators had
been
15 kilograms had
Thus, starting
Cardelli's leadership
with a
based on
and deducted 3
total offense
category II,
sentencing
the
level
of 33.
downward departure
accepted the
government's
court sentenced
years
for a
history
government's motion
Cardelli's
Applying criminal
based on
5K1.1) and
sentencing recommendation.
The
and 5
Cardelli to
release
on the
tax evasion
charge.
Cardelli
appeals this
sentence.
II.
Cardelli
maintains
that
the
district
court
made
serious mistake by
quantity finding on
the
____________________
7.
court's finding
triggered
the base
-5-
sold since
offense level
See n. 2, supra.
___
_____
for
hearsay
statements
agent Bryfonski's
descriptions are
of his
coconspirators
testimony.
Cardelli
as
described in
implies that
these
that are all the more unreliable because they were not tested
by cross-examination.
court
committed
evidence without
clear
Cardelli
error
by
crediting
district
this
hearsay
testify in
court.
28 F.3d 1296,
(1994);
(1st Cir.
v. Whiting,
_______
S. Ct. 328
We find
no
error here.
hearsay
can
Connolly,
________
It
be
51
used
F.3d
codefendants'
is well
at
1,
established that,
sentencing."
(1st
drug quantity
United States
______________
Cir.
estimates
"[r]eliable
[r]eliable
1995)(holding
reported in
v.
that
PSR and
estimates
were
Connolly,
________
the
more
than
15
consistency
"generally
consistent").
three coconspirators
kilograms
was
of
sufficient
cocaine
Here,
as
in
consistently attributed
to
Cardelli.
corroboration
that
This
the
court's
conservative finding
for
least
at
15
kilograms.
that Cardelli
But
for
was responsible
his
own
unsworn
-6-
The
district court
contrary
estimate,
Cardelli presented
no evidence to the
was
not required
see
___
Connolly, id.,
________ ___
to credit
contrary.
Cardelli's
particularly
where
he did not
We also do not
acceptance of
Bryfonski
district court's
absent
direct
coconspirators.
Although
these
had
witnesses
defense counsel
testimony
the PSR
knowledge
of
reported by agent
from
clearly
the
Cardelli's
indicated
amounts
involved,
district
court did
examination made
the
not err
record thoroughly
court's
quantity
in denying
at sentencing
and are
hearing).
request for
We
satisfied that
determination
that
is
(holding
cross-
have reviewed
the district
supported
by
8 F.3d at
871.
court is affirmed.
________
-7-
of the
district