United States v. Mosquera-Murillo ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Criminal Action No. 13-cr-134 (BAH)
ALFREDO MOSQUERA-MURILLO, Chief Judge Beryl A. Howell
and
ANTONIO MORENO-MEMBACHE,
Defendants.
MEMORANDUM OPINION
On September 14, 2018, the D.C. Circuit’s mandate issued remanding this case for
resentencing of all three defendants, Alfredo Mosquera-Murillo (“Murillo”), Joaquin Chang-
Rendon (“Rendon”), and Antonio Moreno-Membache (“Membache”), see Mandate, ECF No.
266, upon holding that the defendants’ convictions for violations of the Maritime Drug Law
Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503 and 70506(b), did not bar their eligibility for
safety-valve relief, under 18 U.S.C. § 3553(f), see United States v. Mosquera-Murillo, 902 F.3d
285, 292, 296 (D.C. Cir. 2018).1 The D.C. Circuit vacated the defendants’ sentences and
directed on remand that the Court “consider whether the defendants meet the five remaining
1
When the defendants’ original sentences were imposed, MDLEA offenses were not enumerated as covered
by 18 U.S.C. § 3553(f). See United States v. Mosquera-Murillo, 172 F. Supp. 3d 24, 29 (D.D.C. 2016) (“By its
terms, the safety-valve provision allows for a below-minimum sentence only ‘in the case of an offense under’
certain enumerated federal drug crimes. Based upon the clear text in 18 U.S.C. § 3553(f), these enumerated
statutes—21 U.S.C. §§ 841, 844, 846, 960 and 963—have been interpreted to be an exhaustive list.”). Indeed, prior
to the D.C. Circuit’s holding in this case, the other three circuits to consider the issue had concluded, based on the
statutory text of 18 U.S.C. § 3553(f), that defendants convicted under MDLEA offenses were not eligible for safety-
valve relief. See, e.g., United States v. Anchundia-Espinoza, 897 F.3d 629, 633–34 (5th Cir. 2018), cert. denied, 139
S. Ct. 1291 (mem) (2019); United States v. Pertuz-Pertuz, 679 F.3d 1327, 1328 (11th Cir. 2012) (per curiam);
United States v. Gamboa-Cardenas, 508 F.3d 491, 495–97 (9th Cir. 2007). As amended by the First Step Act of
2018 (“First Step Act”), enacted on December 21, 2018, § 3553(f) now expressly includes MDLEA offenses in the
list of covered offenses. See Pub. L. No. 115-391, § 402(a)(1)(A), 132 Stat. 5194.
1
safety-valve requirements.” Id. at 296.2 The defendants are scheduled to be resentenced on July
18, 2019. Min. Entry (June 6, 2019).
If ineligible for safety-valve relief, each defendant would receive the same sentence
previously imposed: 120 months’ imprisonment, which is the applicable mandatory minimum
sentence that the Court agreed to impose upon acceptance of the defendants’ plea agreements,
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), on each defendant’s guilty plea to
one count of conspiring to distribute, and possess with intent to distribute, at least 5 kilograms of
cocaine and 100 kilograms of marijuana on board a vessel subject to the jurisdiction of the
United States, in violation of the MDLEA, 46 U.S.C. §§ 70503, 70506(b) and 21 U.S.C. §§
960(b)(1)(B), (b)(2)(G). See Plea Agreements ¶¶ 1, 6, ECF Nos. 185, 191. Upon satisfaction of
the five safety-valve requirements, the appropriate sentence to be imposed at or below the
mandatory minimum of 120 months’ incarceration would be based upon consideration of the
factors set out in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3553(f) (“[I]f the court finds at
sentencing, after the Government has been afforded the opportunity to make a recommendation,”
that the defendant meets the safety-valve requirements, then “the court shall impose a sentence
pursuant to [the] guidelines . . . without regard to any statutory minimum sentence.”). The
safety-valve thus “permit[s] a narrow class of defendants, those who are the least culpable
2
The safety valve requirements are: (1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer,
leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not
engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not
later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information
to provide or that the Government is already aware of the information shall not preclude a determination by the court
that the defendant has complied with this requirement. 18 U.S.C. § 3553(f) (2018); U.S.S.G. § 5C1.2(a). The First
Step Act amended the safety-valve requirement concerning criminal history points, see Pub. L. No. 115-391, §
402(a)(1)(B), 132 Stat. 5194, but this amendment only applies to convictions entered on or after December 21, 2018,
and, in any event, has no effect on the defendants’ eligibility for safety-valve relief.
2
participants in [the] offense[], to receive strictly regulated reductions in prison sentences for
mitigating factors currently recognized under the federal sentencing guidelines.” H.R. REP. NO.
103-460 (1994).
The parties vigorously dispute the requisite scope of information Murillo and Membache
would have to provide to satisfy the fifth requirement for safety valve eligibility, see Jt. Status
Rept., dated Mar. 1, 2019 (“Mar. 2019 JSR”) at 3–5, ECF No. 273, but resolution of that dispute
would be unnecessary if these defendants also fail to satisfy other eligibility requirements.
Consequently, an evidentiary hearing was held on June 12 and 13, 2019 to determine whether
Murillo or Membache were ineligible for safety-valve relief due to their failure to satisfy other
requirements, namely: because they were “organizer[s], leader[s], manager[s], or supervisor[s] of
others in the offense,” 18 U.S.C. § 3553(f)(4), or because Membache “possess[ed] a firearm or
other dangerous weapon . . . in connection with the offense,” id. § 3553(f)(2). The evidence
presented at that hearing, together with the record in this case, including supplemental
memoranda filed after the hearing, demonstrates that neither Murillo nor Membache is eligible
for safety-valve relief for the reasons outlined below.3
3
Resolution of this issue has been delayed due to supplemental briefing on Membache’s behalf that was
filed over two weeks after the court-ordered deadline. The government was ordered to file, by June 14, 2019, a
comprehensive review of the foundation for the identification of the speakers in the transcripts it introduced at the
evidentiary hearing, with any response from Membache (the only defendant who expressed interest in responding),
due by June 18, 2019. See Min. Entry (June 13, 2019). Murillo submitted a timely post-hearing response to the
government’s review on June 16, 2019. Murillo Response to Gov’t’s Review (“Murillo Resp.”), ECF No. 292.
Membache sought and received, nunc pro tunc, an extension to file a response on June 21, 2019, but failed to file by
this date. See Min. Order (June 19, 2019). Without seeking a further extension, Membache waited until July 1,
2019 to file his response to the government’s review. See Membache Resp. to Gov’t’s Review, ECF No. 295
(sealed). Then, on July 2, 2019, Membache filed a 20-page Post-Hearing Memorandum recapitulating his objections
to the evidence presented at the hearing. See Membache Post-H’rg Memo, ECF No. 296 (sealed). Notwithstanding
the flagrant disregard of the Court’s deadlines, Membache’s filings have been considered.
3
I. BACKGROUND
The indictment in this case was filed on May 9, 2013 and originally charged five
defendants with conspiring, in violation of the MDLEA, to distribute, and possess with intent to
distribute, at least 5 kilograms of cocaine and 100 kilograms of marijuana on board a vessel
subject to the jurisdiction of the United States. See Indictment at 1–2, ECF No. 1. While
Colombia denied the United States’ extradition request for two of the defendants, William
Obando-Gonzalez (“Obando”) and Carlos Ivan Ortega-Tello (“Tello”), see Gov’t’s Mot. to
Dismiss Indictment at 2, ECF No. 26; Order Granting Motion to Dismiss Indictment, ECF No.
28, the three remaining defendants were extradited and entered guilty pleas, on January 20, 2016,
reserving their right to contest on appeal their eligibility for relief from the statutory mandatory
minimum under the safety-valve provision, 18 U.S.C. § 3553(f). See Plea Agreements ¶¶ 6, 14.
As noted, the D.C. Circuit concluded that MDLEA convictions did not preclude eligibility for
safety-valve relief. Mosquera-Murillo, 902 F.3d at 292, 296.
On remand, the parties raised a myriad of issues regarding the quantity of drugs at issue,
the applicability of various specific offense characteristics for bribery of a law enforcement
officer and involvement of a minor in the charged conspiracy, under U.S.S.G. §§ 2D1.1(b)(1),
(11), (15)(B), the scope of relevant conduct pertinent to resentencing, Murillo and Membache’s
roles in the offense, and the extent to which the plea agreement terms barred the government
from making a recommendation as to any of these issues. See generally Jt. Status Rept., dated
Nov. 19, 2018 (“2018 JSR”), ECF No. 271. A number of these issues had either been resolved
or were extraneous to the single issue required by the mandate to be resolved at resentencing,
prompting the Court to issue a Memorandum and Order “[t]o re-focus the parties” on the “single
issue” to be addressed on remand: “whether any defendant meets the five safety-valve
4
requirements, listed in 18 U.S.C. § 3553(f) and incorporated verbatim into the U.S. Sentencing
Guidelines, U.S.S.G. § 5C1.2(a),” and “the only means by which any defendant may obtain a
different sentence than that already imposed.” Mem. & Order, dated Nov. 30, 2018, at 2–3, ECF
No. 272.
The parties initially focused on resolving whether any defendant met the fifth
requirement for safety-valve relief by “truthfully provid[ing] to the Government all information
and evidence the defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan,” 18 U.S.C. § 3553(f)(5); see also U.S.S.G. §
5C1.2(a)(5) (incorporating statutory safety-valve requirements, as they existed prior to the First
Step Act, verbatim into the U.S. Sentencing Guidelines Manual), and the defendants sought
clarification regarding the requisite scope of any proffer, Mar. 2019 JSR at 3–5. Irrespective of
the truthfulness or completeness of any proffer, however, the government contended that Murillo
and Membache were ineligible for safety-valve relief because they failed to satisfy other safety-
valve requirements. 2018 JSR at 2, 6; Mar. 2019 JSR at 6; Rough Transcript of Hearing (Mar. 8,
2019) (“Mar. 8 H’rg Tr. (Rough)”) at 18:10–23:3.4 Specifically, the government contended that
these two defendants played a managerial or supervisory role with respect to the charged
conspiracy involving the interdicted vessel, the Mistby, see 18 U.S.C. § 3553(f)(4); U.S.S.G.
§ 5C1.2(a)(4), and that Membache possessed a dangerous weapon in connection with this
charged conspiracy, see 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2). The parties were
therefore directed to prepare for an evidentiary hearing solely focused on those two eligibility
requirements under § 3553(f)(2) and (4), deferring further argument on the requisite scope of any
proffer. Mar. 8 H’rg Tr. (Rough) at 18:10–23:3; id. at 24:12–25 (Court directing the parties “to
4
All citations to hearing transcripts cite to a rough draft of the transcript unless a final transcript is available.
Discrepancies in page numbers between the rough and any final transcript may exist.
5
focus on expeditiously and efficiently resolving this case, beginning with the single issue in front
of me: are these defendants safety valve eligible? And if the government has evidence that
meets its burden by a preponderance of the evidence that they were managers or supervisors in
the Mistby operation . . . they are just not eligible”); id. at 39:17–25 (Membache’s counsel
agreeing that it makes sense to hold a limited evidentiary hearing on these two requirements); id.
at 40:10–20 (Murillo’s counsel indicating he “absolutely understand[s]” why the Court wants to
hold an evidentiary hearing as to the two requirements and indicating that he “think[s] it’s a good
idea”).5
To further focus the parties on the issues at stake in any resentencing, they were directed
to submit a Joint Status Report providing “for each defendant, the parties’ calculations of the
applicable advisory Guidelines range, assuming the defendant is deemed eligible for safety-valve
relief and is sentenced based on the 220 kilograms of cocaine and 235 kilograms of marijuana
recovered from the Mistby . . . with no other special offense characteristics.” Min. Order (Mar.
8, 2019). The government estimated that the applicable advisory Guidelines range for each
defendant would be 121 to 151 months’ imprisonment, slightly above the 120-month-sentence
imposed under their plea agreements. See May 2019 JSR at 3. While Murillo accepted the
government’s calculation as accurate based on the Court’s prior rulings as to the effect of the
5
The third defendant, Rendon, for whom only the proffer requirement for safety-valve relief is at issue, has
provided to the government only written proffers, which the government has concluded fail to truthfully provide all
information and evidence Rendon has, as necessary to meet the fifth safety-valve requirement. See Jt. Status Rept.,
dated May 2, 2019 (“May 2019 JSR”) at 6–7, ECF No. 275 (Rendon has “provided information in written form”
and, in response to the government’s “offer[] to transfer [him] to the Washington, D.C. area for an in-person
proffer,” “chose to continue to proceed by letter due to difficulties associated with seeking a prisoner transfer while
awaiting medical treatment by the Bureau of Prisons”); Jt. Status Rept., dated May 28, 2019, ECF No. 277
(government noting that it continues to believe that Rendon does not meet the fifth requirement). As directed,
Rendon notified the Court that he contests his eligibility for safety-valve relief, see Rendon Status Rpt., dated July 8,
2019, ECF No. 302, and included a summary of information he has proffered, see Mot. to Seal., Ex. A (“Rendon
Proffer”), ECF Nos. 303-1, 306 (sealed). An evidentiary hearing, as requested by Rendon, is scheduled for July 16,
2019. See Min. Order (June 6, 2019); Notice of H’rg (July 8, 2019).
6
plea agreement, see id. at 1 n.1, Rendon argued that he would be eligible for a mitigating role
downward adjustment, putting him in an advisory Guidelines range of 57 to 71 months’
imprisonment, id. at 3–4, and Membache argued, in direct contravention of prior rulings as to the
effect of his plea agreement, that he should not be held responsible for all of the drugs on the
Mistby and that he should receive a mitigating role downward adjustment, which would result in
an advisory Guidelines range of 41 to 51 months’ imprisonment, id. at 4–6.
At the outset, the D.C. Circuit has observed that “the safety valve’s basic purpose [is to]
spare certain minor participants in drug trafficking enterprises from mandatory minimum
sentences when imposition of the mandatory sentences would be disproportionate to the
defendants’ culpability.” In re Sealed Case (Sentencing Guidelines’ “Safety Valve”), 105 F.3d
1460, 1462–63 (D.C. Cir. 1997) (emphasis added). Notwithstanding the disparate guideline
ranges urged by the parties, in assessing “the defendants’ culpability,” the entire record in this
case relating to the defendants’ offenses and relevant conduct is considered, starting with their
admission to being “a member of a drug trafficking organization (‘DTO’) between January 2012
and [] February 2013, which manufactured, stored, and transported large quantities of cocaine
and marijuana in Colombia that would be later illegally imported into Panama. . . . through the
use of ‘go-fast’ boats launched from the coast of Colombia,” and the defendants’ further
concession that “[t]he Government can prove beyond a reasonable doubt that: … United States
law enforcement personnel . . . recovered [from the interdicted Mistby] over 220 kilograms of
cocaine and 235 kilograms of marijuana that had been jettisoned into the water.” Murillo Jt.
Statement of Facts (“Murillo SOF”) ¶¶ 1, 4, ECF No. 186; Membache Jt. Statement of Stipulated
Facts (“Membache SOF”) ¶¶ 1, 3, ECF No. 192; see 46 U.S.C. §§ 70503, 70506. The record
also includes the statements of five cooperating defendants that both Murillo and Membache
7
have a long-running history in drug-trafficking—a history that is not reflected in any defendant’s
criminal history score or in the quantity of narcotics attributable to each defendant as a result of
the Mistby interdiction. See Gov’t’s Mot. in Limine to Introduce Other Crimes Evidence At Trial
at 4–11, ECF No. 71 (summarizing evidence of Murillo’s involvement in shipments on go-fast
vessels, interdicted on February 3, 2012 and March 16, 2012, with 451 kilograms and 790
kilograms of cocaine, respectively, and in June 2008 with approximately 5000 kilograms of
cocaine, being transported from Colombia to Panama; and of Membache’s involvement in three
separate shipments of cocaine in 2011, including a go-fast vessel interdicted on November 22,
2011, containing 115 kilograms of cocaine, for which shipment Membache transported the
cocaine from Buenaventura to Choco, ordered that it be hidden overnight, and organized the
launch of the vessel); see also United States v. Mosquera-Murillo, 153 F. Supp. 3d 130, 175–84
(D.D.C. 2015) (concluding the government’s “evidence of certain other crimes allegedly
committed by the defendants in connection with [nine] other narcotics shipments prior to and
after the interdiction of the Mistby” is admissible because it is “probative of [the defendants’]
specific pattern of partnering with each other and a common group of co-conspirators to engage
in conduct on virtually a monthly basis that was substantially similar to the [Mistby conspiracy]”
and it “demonstrate[s] how the defendants began working together and with their . . . co-
conspirators as narcotics traffickers, as well as their intent, knowledge, preparation, and plan”
(internal quotation marks omitted)). Based on this entire record, the Court is hard-pressed to find
that a sentence of 10 years’ imprisonment would be “disproportionate to” either Murillo or
Membache’s culpability.
At the evidentiary hearing held on June 12 and 13, 2019, the government presented
testimony from Naval Criminal Investigative Service (“NCIS”) Special Agent John Souchet,
8
who was the lead agent in the investigation of Rendon and also assisted in the investigations into
Murillo and Membache. See Transcript of Evidentiary Hearing (June 12, 2019) (“June 12 H’rg
Tr.”) at 27:8–30:10, ECF No. 304; Gov’t’s Outline of Evidence (“Gov’t’s Outline”) at 4–5, ECF
No. 284. Souchet is a native Spanish speaker who was stationed in Colombia from 2008 to 2011
while investigating drug-trafficking organizations there. See June 12 H’rg Tr. at 28:9–29:7. In
preparation for the evidentiary hearing, Souchet reviewed written reports of law enforcement
interviews with five cooperating defendants, three of whom were crewmembers arrested on the
Mistby when that vessel was interdicted in 2012. See id. at 30:14–31:24, 50:14–51:19, 54:4–
56:24, 105:10–106:13.6 He also listened to audio recordings of phone calls intercepted by the
Colombian National Police (“CNP”) that the government introduced at the hearing, and reviewed
the transcripts of those recordings See Transcript of Evidentiary Hearing (Morning of June 13,
2019) (“June 13 AM H’rg Tr.”) at 7:25–12:14, 14:5–19:15, 21:8–28:12, 37:4–42:22, ECF No.
305.7
6
These law enforcement interview reports were produced to the defendants as part of discovery. See June
12 H’rg Tr. at 53:23–54:1. Despite relying heavily on these reports, no party sought to admit the reports as part of
the record at the hearing and thus only cherry-picked portions of the reports are available to the Court. See
Membache Post-H’rg Memo at 2–18.
7
The final transcript for the June 13, 2019 evidentiary hearing is available for the morning session only;
citations for the afternoon session are to the rough transcript. Murillo and Membache objected to the admission of
Gov’t’s Ex. 15, consisting of a disc of ten phone calls intercepted during the course of the CNP wiretap investigation
and the corresponding transcriptions of those calls, Gov’t’s Exs. 5–14, on grounds that the government had failed to
provide sufficient foundation to support the CNP’s attribution of the identities of the speakers reflected on the
transcripts. See June 12 H’rg Tr. at 116:10–129:15. These government exhibits, and additional exhibits presented
on June 13, 2019 (Gov’t’s Exs. 16–22) were conditionally admitted after Souchet testified that he could attest to the
accuracy of the attribution of the speakers on the transcripts based on his review of the audio recordings, CNP
surveillance reports, and the defendants’ admissions, in the Statement of Facts supporting their pleas, that an
intercepted phone call from June 19, 2012 captured Murillo and Membache discussing the seizure of the Mistby.
See June 13 AM H’rg Tr. at 8:4–12:14, 14:5–19:15, 21:8–28:12, 37:4–42:22 (referring to Murillo SOF ¶ 5,
Membache SOF ¶ 4, Gov’t’s Ex. 21 (the recording of the June 19, 2012 phone call), and Gov’t’s Ex. 22 (the CNP
transcript of this phone call)); see also id. at 30:13–38:20 (limited voir dire by Murillo’s counsel of Souchet
regarding how Souchet could confirm the accuracy of the CNP’s voice attributions). Supplemental filings by the
government, including Souchet’s sworn declaration detailing the CNP’s authorization to intercept telephone
numbers associated with Murillo and Membache, the steps the CNP took to conduct surveillance of Murillo,
Membache, Obando, Tello, and Rendon to identify the speakers of intercepted phone calls, and Souchet’s own
review of the recorded phone calls and surveillance reports, bolsters the accuracy of the CNP’s voice attributions
reflected in the transcripts. See Souchet Decl., Ex. A, Gov’t’s Comprehensive Review of the Foundation for
9
The three defendants arrested on the Mistby, Luis Eduardo Paredes (“Paredes”), Ivan
Campaz-Riascos (“Campaz”), and Andres Moreno-Membache (“Andres”), were each
interviewed multiple times under cooperation agreements with the government. See June 12
H’rg Tr. at 50:14–51:18, 54:17–20. A brief summary of each cooperating defendant’s statements
to law enforcement follows.
Paredes, the captain of the Mistby, told law enforcement that Murillo was responsible for
providing coordinates to allow the crew to travel safely and instructing them whether to launch
the Mistby, and that he played a similar role with respect to other vessels. See id. at 57:10–15,
61:16–62:6. Paredes indicated that he knew about Membache’s involvement with drug-
trafficking prior to the Mistby launch, that he viewed Membache as having more authority in the
DTO than his brother Andres, who was a crewmember on the Mistby, because of Membache’s
greater experience, and that Membache oversaw the transportation and storage of the cocaine
that would be placed in the Mistby and gave advice and instructions as to whether it was safe to
launch the Mistby and where to conceal it on shore. See id. at 58:21–61:15, 62:7–63:17. Paredes
Identification of Speakers in Gov’t’s Exs. 5–14 (“Souchet Decl.”) ¶¶ 7–14 & n.3, ECF No. 290-1 (Souchet
explaining that listening to Gov’t’s Ex. 21, the June 19, 2012 recording of Murillo and Membache discussing the
Mistby seizure, allowed him to distinguish between Murillo and Membache’s voices and to confirm that CNP’s
attributions were accurate as to each of the government’s exhibits); id. ¶ 15 (explaining how Souchet confirmed that
the attributions of Andres Moreno-Membache, a crewmember of the Mistby, were accurate). Membache objects to
Souchet’s procedure for confirming the voice attributions as unduly suggestive and inadequate, as Souchet “had no
prior familiarity with the speakers’ voices” and listened to phone calls with “transcripts in front of him that
identified the alleged speakers,” Membache Resp. to Gov’t’s Review at 3–4, and alleges that Souchet’s description
of the CNP’s work to bolster its identification of the speakers lacked sufficient detail, id. at 4–5. The Court
disagrees. Souchet is an experienced law enforcement agent and native Spanish speaker, who gained familiarity
with the two defendants’ voices based on their admitted intercepted call, which Souchet used to identify their same
voices on other intercepted calls, combined with CNP’s surveillance reports and photographs identifying
cooperating defendants and Mistby co-conspirators intercepted on extensive wiretaps over a period of approximately
three years, see Gov’t’s Outline at 3 (referring to length of investigation); Souchet Decl. ¶¶ 1–15, provide ample
foundation for the speaker attributions on the intercepted calls and transcripts in Gov’t’s Exs. 4–22. Accordingly,
the defense objection to the admission of these exhibits for consideration in resolving the defendants’ eligibility for
safety-valve relief is denied.
10
also stated that he had once seen Membache with a dark 9mm pistol at a planning meeting prior
to the launch of the Mistby. Id. at 64:25–65:23.
Campaz, a crewmember of the Mistby, corroborated Paredes’s statements regarding
Membache. He told law enforcement that Membache had more authority in the DTO and that he
had seen Membache give orders to the Mistby crew, including an order not to depart and to
remove drugs from the Mistby and store them in the jungle, and he had seen what he believed to
be a concealed pistol tucked into Membache’s waistband at the launch site of the Mistby. Id. at
67:25–71:15; Rough Transcript of Evidentiary Hearing (Afternoon of June 13, 2019) (“June 13
PM H’rg Tr. (Rough)”) at 200:14–202:21.
Andres’s initial statements to law enforcement after his arrest were that that he and
Membache both supervised their younger brothers in transporting cocaine through Colombia for
export on go-fast vessels. See June 12 H’rg Tr. at 71:16–72:18. He subsequently retracted these
statements, id. at 73:16–78:2, and indicated that Membache played no role in the Mistby
conspiracy—an assertion belied by Membache’s own allocution in this case. See Rough
Transcript of Plea Colloquy (Jan. 20, 2016) (“Plea Colloquy Tr. (Rough)” at 32–35 (Membache
explaining that “before [the Mistby] launched my brother asked me if I could [get] some [sailing
or launching] papers that were going to come and if I could take them to him” and admitting that
he knew “that the Mistby was going to be used to transport cocaine and marijuana,” leading the
Court to conclude “there is a sufficient factual basis for [Membache’s] plea since he agreed that
he accepted paper to help facilitate licensing in connection with the Mistby [and at] the same
time . . . he knew [the Mistby] was going to be used to transport cocaine and marijuana on board
the high seas”); see also Membache SOF ¶ 2 (agreeing that the government can prove beyond a
reasonable doubt that Membache “assisted in moving [narcotics] from Buenaventura to Choco,
11
and once the cocaine and marijuana arrived in Choco, [he] assisted in hiding the drugs. When
the go fast boat was ready to transport the cocaine and marijuana, he assisted in loading the drugs
onto the go fast boat and otherwise ensured the boat’s successful launch.”). Further
contradicting Andres’s retraction, the government introduced several intercepted phone calls in
which Andres and Membache discuss the arrest of their two younger brothers, with Membache
expressing the view that one of the brothers should take the blame so that the other brother can
be released. See Gov’t’s Exs. 5–7. Collectively, the phone calls between Andres and Membache
corroborate other cooperating defendants’ statements that Membache was aware of and played a
role in supervising his brothers’ drug-trafficking activities.
Intercepted phone calls between Andres and other members of the conspiracy also shed
light on Murillo’s role. In one phone call, Andres tells Obando, the leader of the conspiracy, that
he is waiting on Murillo to launch the Mistby. See Gov’t’s Ex. 12. Additional phone calls record
Andres and Murillo, and then Murillo and Membache, discussing a plan for Murillo to sell some
of his marijuana to be ultimately transported on the Mistby. See Gov’t’s Exs. 8–10.
That Murillo and Membache played these roles with respect to the Mistby is further
corroborated by their similar roles in other illegal narcotics shipments, as indicated by interviews
with two cooperating defendants arrested in connection with the interdiction of go-fast boats
other than the Mistby. One of those defendants, Hector Pozmino-Jezken (“Pozmino”), a
crewmember of an unnamed go-fast vessel interdicted prior to the Mistby, told law enforcement
in post-arrest interviews that he had observed Murillo, at a planning meeting prior to the launch
of the vessel, plotting locations of naval patrols using nautical charts and a Global Positioning
System (“GPS”) he brought to the meeting, and using that information to create a safe route for
the vessel. See June 12 H’rg Tr. at 80:22–89:2. As for Membache, Pozmino, who had known
12
Membache for three years prior to Pozmino’s arrest, corroborated the Mistby co-conspirators’
statements that Membache oversaw his younger brothers in transporting cocaine through
Colombia and also supervised a second crew responsible for specific shipments of cocaine. See
id. at 99:5–104:11.
The last and fifth cooperating defendant, Jimy Gonzalez-Membache (“Gonzalez”), who
was a crewmember on a go-fast vessel interdicted prior to the Mistby, corroborated the other
cooperating defendants’ accounts that Murillo plotted out routes for vessels to follow using
nautical charts and provided information to the crews in real time and that Membache hired,
paid, and oversaw two crews, one dedicated to transporting and storing cocaine within Colombia,
and one responsible for shipping the cocaine. See id. at 107:11–115:25.
II. DISCUSSION
The defendants have failed to rebut or materially undermine the evidence presented by
the government establishing, by a preponderance of the evidence, that Murillo and Membache
are disqualified for safety-valve relief.8 Murillo is ineligible for safety-valve relief because he
8
Courts have generally placed the burden on the defendant to establish eligibility for safety-valve relief. See
United States v. Rodriguez, 676 F.3d 183, 191 (D.C. Cir. 2012) (citing United States v. Mathis, 216 F.3d 18, 29
(D.C. Cir. 2000)); United States v. Aidoo, 670 F.3d 600, 605–06 (4th Cir. 2012) (collecting cases); accord United
States v. White, 1 F.3d 13, 18 (D.C. Cir. 1993) (“The defendant properly bears the burden of proof under those
sections of the Guidelines that define mitigating factors.” (internal quotation marks and citation omitted)). At the
same time, the Court is cognizant that this burden allocation has arisen in evaluating whether a defendant made a
truthful and complete proffer. See, e.g., Rodriguez, 676 F.3d at 190–91; Aidoo, 670 F.3d at 605; United States v.
Sanchez, 475 F.3d 978, 980 (8th Cir. 2007); United States v. Marquez, 280 F.3d 19, 23 (1st Cir. 2002); Mathis, 216
F.3d at 29; United States v. Stephenson, 452 F.3d 1173, 1179 (10th Cir. 2006); United States v. Gambino, 106 F.3d
1105, 1110 (2d Cir. 1997); United States v. Flanagan, 80 F.3d 143, 146 (5th Cir. 1996); United States v. Ramirez,
94 F.3d 1095, 1100–02 (7th Cir. 1996) (“It is easy to understand why virtually all of the case law focuses on the fifth
criterion, the only one which is not as clearly definable by objective data or by reference to other sections of the
guideline.”); United States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996); United States v. Adu, 82 F.3d 119, 123 (6th
Cir. 1996). By contrast, the government typically bears the burden at sentencing to establish, by a preponderance of
the evidence, the defendant’s aggravated role or possession of a weapon in connection with the charged offense,
which are the two safety-valve requirements at issue here. See United States v. Bapack, 129 F.3d 1320, 1324 (D.C.
Cir. 1997). The parties glide past the apparent conflicting burdens without discussion. See June 13 PM H’rg Tr.
(Rough) at 221:11–222:22 (government counsel responding to the Court’s question as to who has the burden of
proof by stating, “I’m not aware of the case law on that point, Your Honor, and I’m not aware of it in D.C. I
couldn’t say one way or [the] other.”). The Court concludes that the government has the burden of showing, by a
preponderance of the evidence, a defendant’s ineligibility for safety-valve relief due to supervisory role or weapon
13
had a supervisory role in the offense, and Membache is ineligible for safety-valve relief because
he had a supervisory role in, and possessed a firearm in connection with, the offense. The
offense, in this context, includes both the specific offense of conviction and “all relevant
conduct.” See U.S.S.G. § 5C1.2 app n.3 (“Offense,” as described in subsection (a)(2)–(4),
“mean[s] the offense of conviction and all relevant conduct.”).9 Contrary to the defendants’
challenges to the government’s evidence, for reasons discussed below, this evidence was
sufficiently reliable and persuasive to conclude that the defendants are ineligible for safety-valve
relief.
A. Murillo and Membache had Supervisory Roles in the Offense
Both the statutory and Guidelines safety-valve provisions disqualify a defendant for
relief when the defendant was either “an organizer, leader, manager, or supervisor of others in
the offense, as determined under the sentencing guidelines” or was “engaged in a continuing
criminal enterprise, as defined in [21 U.S.C. § 848].” 18 U.S.C. § 3553(f)(4); U.S.S.G. §
5C1.2(a)(4). The disqualifying role of “‘[o]rganizer, leader, manager, or supervisor of others in
the offense, as determined under the sentencing guidelines,’. . . means a defendant who receives
an adjustment for an aggravating role under § 3B1.1 (Aggravating Role).” U.S.S.G. § 5C1.2
possession and the defendant may sustain his burden of persuasion to show eligibility for safety-valve relief by
refuting that evidence or showing that the government’s evidence is incomplete, inaccurate or otherwise unreliable.
Accord United States v. Archer, 671 F.3d 149, 173 (2d Cir. 2011) (concluding that where one party must “prove a
negative,” the opposing party “assume[s] a burden of production of evidence that presents at least a triable issue as
to the fact at issue,” at which point the party responsible for proving the negative assumes the burden of persuasion);
see also United States v. Valdovinos-Soloache, 309 F.3d 91, 94 (2d Cir. 2002) (per curiam) (“Generally, the
government bears the burden of proving facts relevant to sentencing. . . . [h]owever, the party seeking to benefit
from a particular fact or facts often bears the burden of persuading the court.”).
9
Murillo filed a motion in limine, which Membache joined, seeking to preclude the government from
presenting “relevant conduct” evidence at the hearing. See Def.’s Mot. in Limine, ECF No. 276 (Murillo’s motion);
Def.’s Reply to Gov’t’s Opp’n to Mot. in Limine at 1 n.1, ECF No. 280 (Membache’s motion to join); Rough
Transcript of Hearing (June 6, 2019) (“June 6 H’rg Tr. (Rough)”) at 3:8–20 (Court granting Membache’s motion to
join). The defendants’ motion in limine was denied for reasons explained orally at the evidentiary hearing in light of
the text of the Guidelines, which explicitly define “offense” to include “relevant conduct,” as well as governing case
law on the scope of relevant conduct, and the ample time provided to the defendants to prepare for the evidentiary
hearing. June 12 H’rg Tr. at 12:10–26:19; Min. Entry (June 12, 2019).
14
app. n.5. If the government demonstrates that the defendants were organizers, leaders,
managers, or supervisors of any other person in connection with the offense, the defendants
cannot meet the first prong of U.S.S.G. § 5C1.2(a)(4), and consideration of the second prong,
concerning a continuing criminal enterprise, is unnecessary. Id. § 5C1.2 app. n.6 (confirming
that “[a]s a practical matter, it should not be necessary to apply this prong of subsection (a)(4),”
referring to the § 848 continuing criminal enterprise prong).
The government focused its evidence on proving that the defendants were “managers or
supervisors,” rather than “organizers or leaders.” In distinguishing a leadership and
organizational role from one of mere management or supervision, the following factors, listed in
U.S.S.G. § 3B1.1 app. n.4, are relevant: (1) the exercise of decision making authority; (2) the
nature of participation in the commission of the offense; (3) the recruitment of accomplices; (4)
the claimed right to a larger share of the fruits of the crime; (5) the degree of participation in
planning or organizing the offense; (6) the nature and scope of the illegal activity; and (7) the
degree of control and authority exercised over others. See United States v. Olejiya, 754 F.3d
986, 990 (D.C. Cir. 2014) (quoting U.S.S.G. § 3B1.1 app. n.4). No single factor is dispositive.
Id. An enhancement under U.S.S.G. § 3B1.1 requires only some “proof that [the defendant] was
hierarchically superior to [his] co-conspirators.” United States v. Quigley, 373 F.3d 133, 140
(D.C. Cir. 2004).
As the D.C. Circuit explained in Quigley, “the concept of ‘control’ or ‘authority,’
implicit in the notion of ‘management’ or ‘supervision’ . . . connote[s] some sort of hierarchical
relationship,” id., and U.S.S.G. § 3B1.1(b), concerning managers and supervisors, “sweep[s] in
lower level managerial and supervisory conduct,” id. at 139, whereas U.S.S.G. § 3B1.1(a)
“encompass[es] higher level managerial and supervisory conduct,” id. More than one person
15
may qualify as a leader or organizer of a criminal association or conspiracy. U.S.S.G. § 3B1.1,
app. n.4. Therefore, both Murillo and Membache may be deemed managers or supervisors in
the same offense. Moreover, even if the defendants were supervised by others, they may still
qualify as managers or supervisors by exerting sufficient control over another participant in the
conspiracy. See United States v. Vega, 826 F.3d 514, 538–39 (D.C. Cir. 2016) (per curiam). A
“participant,” in turn, is someone who is criminally responsible for the commission of the
offense, even if they were never charged with or convicted of the offense. Id.; U.S.S.G. § 3B1.1
app. n.1.
The government established by a preponderance of the evidence that Murillo and
Membache both had supervisory roles in the charged offense. Souchet summarized the
evidence concerning the Mistby conspiracy and the defendants’ roles and actions in connection
with that conspiracy based on his experience in the investigation and his review of post-arrest
interviews of five cooperating defendants, see June 12 H’rg Tr. at 27:7–33:9, 35:16–38:4,
39:17–54:20, 56:3–58:11, three of whom were co-conspirator crewmembers on the Mistby, see
id. at 50:2–51:19. The details of these interviews were corroborated, in material respects, by
phone calls intercepted by the CNP, see id. at 52:16–53:22, 116:1–117:2, which provided
surveillance reports about the identities of persons intercepted, id. at 119:9–121:22, 124:24–
127:20; Souchet Decl. ¶¶ 7–15 & n.3; supra n.7 (reviewing the government’s foundation for the
speaker attributions on the intercepted calls and transcripts).
Souchet explained that the conspiracy was led by Obando and Tello, June 12 H’rg Tr. at
47:20–48:10; June 13 PM H’rg Tr. (Rough) at 139:1–9, who relied on Murillo to serve as a mid-
level manager and to give instructions to lower-level members of the DTO, particularly with
regard to the timing of launches and the routes the go-fast vessels should take to avoid detection
16
by law enforcement, and relied on Membache to serve as the “logistics manager” and to
supervise others, including his younger brothers, in moving and storing cocaine inside Colombia
and in loading that cocaine onto go-fast vessels for shipment. See June 12 H’rg Tr. at 36:17–
39:15, 48:18–49:12 (Souchet’s summary, based on his review of the investigation, of Murillo’s
role); id. at 32:12–33:9, 35:16–36:14, 48:21–49:5 (Souchet’s summary, based on his review of
the investigation, of Membache’s role). The information underlying Murillo’s role in
supervising others on the timing and routes of vessels carrying illegal narcotics and Membache’s
role in supervising others on the movement, storage, and loading of cocaine is reviewed below.
1. Murillo’s Supervisory Role
Turning first to Murillo, three witnesses, an intercepted phone call, and Murillo’s own
admissions in connection with his plea corroborate that, with respect to the Mistby and other
schemes to transport narcotics via go-fast vessels, Murillo obtained information from Rendon
regarding the locations of law enforcement patrols, used the coordinates from Rendon to plot
safe routes on nautical maps and program GPS coordinates for the go-fast vessels, and directed
go-fast crews to follow those specific routes. See id. at 36:17–37:19, 48:12–49:12. With respect
to the Mistby, Paredes, the captain of the Mistby, id. at 57:10–15, told law enforcement in post-
arrest interviews that Murillo was responsible for providing coordinates to allow the Mistby
crew to travel safely, instructed the crew whether to launch the Mistby based on Rendon’s
information, and played a similar role with respect to other shipments of illegal narcotics on-
board vessels. See id. at 60:19–62:6.
This information is further corroborated by the Statement of Facts incorporated into
Murillo’s signed plea agreement, in which the defendant admits that he obtained coordinates of
law enforcement patrols, placed those coordinates in a nautical chart, and used that information
to direct go-fast vessels. Id. at 38:8–39:14; Murillo SOF ¶ 2 (“The Defendant was responsible
17
for learning of military and law enforcement maritime activity along the Pacific Coast of
Colombia. The Defendant used this information to determine the maritime routes that the
DTO’s go-fast boats would use in transporting drugs on the high seas in order to avoid detection
and potential seizure, which included mapping (plotting) the maritime routes and drawing the
location of law enforcement’s maritime assets.”). In an intercepted phone call, Andres, a
crewmember of the Mistby, tells Obando that he (Andres) is waiting for Murillo to give the
order to launch the Mistby, confirming Murillo’s role. See June 13 AM H’rg Tr. at 63:15–64:13
(Souchet discussing Gov’t’s Ex. 12, transcript of a June 18, 2012 intercepted conversation
between Obando and Andres).
That Murillo played this role with respect to the Mistby is bolstered by his role in other
shipments. For example, Pozmino, a crewmember of an unnamed go-fast vessel interdicted in
March 2012, before the interdiction of the Mistby, told law enforcement, over the course of six
interviews spanning from March 29, 2012 through February 3, 2015, that he had observed
Murillo, at a planning meeting prior to the launch the March 2012 interdicted vessel, plotting
locations of naval patrols using nautical charts and a GPS he brought to the meeting and using
that information to create a route for safe passage of the vessel, and that Murillo communicated
directly with the “dispatcher”—the person who gave the orders to depart—and gave real-time
coordinates for the route. See June 12 H’rg Tr. at 80:23–89:2. On this March 2012 shipment,
Pozmino stated that when the crew saw a law enforcement aircraft, they called Murillo to
confirm the route and turned back. Id. at 87:19–88:25. Murillo then ordered them to go out
again, and provided a new route. Id.
Likewise, Gonzalez, a cousin of defendant Membache and a crewmember of another go-
fast vessel, La Kokira, which was interdicted in February 2012, also before the interdiction of
18
the Mistby, stated, in post-arrest interviews between 2012 and 2015 (one of which Souchet
attended), that he had observed Murillo, at a planning meeting prior to the launch, plotting out a
safe route for passage using nautical charts, and providing the coordinates for the February 2012
shipment. Id. at 107:11–114:8. When the crew of La Kokira saw a law enforcement patrol, they
called Murillo to get a new route, because, according to Souchet’s review of law enforcement
interviews, a go-fast crew does not have authority to alter a route once the route has been set.
Id. at 112:19–113:13.
In addition to the evidence that Murillo served as the “navigator” of the Mistby and other
vessels carrying illegal narcotics shipments, statements by two witnesses and four intercepted
phone calls corroborate that Murillo had an ownership interest in marijuana transported on the
Mistby. Paredes told law enforcement that he had attended “several planning meetings” related
to the Mistby’s launch and “heard [Murillo’s interest in the marijuana] discussed with
Obando[].” Id. at 58:13–20. Andres, in a September 5, 2012 interview, told law enforcement
that Murillo owned the marijuana on the Mistby, which was placed there to take the place of
cocaine that had been seized by law enforcement prior to the Mistby’s launch. Id. at 72:23–
73:14; see also Membache Post-H’rg Memo at 3 (summarizing a law enforcement interview in
which Andres told Tello that Murillo had marijuana to send on the Mistby).
Intercepted phone calls corroborate these witnesses’ statements regarding Murillo’s
ownership of the marijuana on-board the Mistby. Two phone calls capture Andres offering to
connect Murillo with a buyer for the marijuana, and another conversation from that same day
records Murillo and Membache discussing this potential sale. See June 13 AM H’rg Tr. at
57:13–59:21 (referring to Gov’t’s Exs. 8 and 9, both May 4, 2012 calls between Murillo and
Andres discussing the sale of 620 units of “cilantro,” which Souchet testified was code for
19
marijuana); id. at 59:22–61:20 (referring to Gov’t’s Ex. 10, a May 4, 2012 phone call between
Murillo and Membache concerning the sale of 620 units, which, Souchet testified, matched the
620 units of “cilantro” in Murillo’s prior conversations with Andres). In a subsequent
intercepted phone call, Murillo explains to Tello that the Mistby shipment must be successful
because of Murillo’s ownership interest in some of the narcotics on board. See id. at 61:21–
63:14 (Souchet testifying that in Gov’t’s Ex. 11, a May 18, 2012 conversation between Tello
and Murillo, Murillo indicates that he told “him,” a person Souchet believes to be Rendon, “we
need to come to an agreement, because I also had something there. That [Rendon] knows if I’m
successful . . .”, which conversation Souchet interprets to indicate that Murillo needed the go-
fast launch to be successful because he owned some of the merchandise on-board). Although
the government never established that this ownership interest translated to a greater right to the
share of any proceeds from the Mistby shipment, Murillo’s conversations regarding Mistby
cargo with Andres and Tello, both of whom all parties agree held leadership roles in the
conspiracy, see Membache Post-H’rg Memo at 2, support Souchet’s description of Murillo as a
middle-manager with responsibility in coordinating aspects of the Mistby launch.
In response to this evidence, Murillo argues that: (1) his role in providing coordinates to
the crew of the Mistby was limited to passing on to others information he learned from Rendon,
and is more akin to the role of a meteorologist who plots weather patterns to help a rocket
launch successfully rather than evidence that he played a supervisory role, June 13 AM H’rg Tr.
at 124:16–138:16; June 13 PM H’rg Tr. (Rough) at 211:24–216:25; (2) the crew of the Mistby
did not view Murillo as their boss, and Paredes felt that he could disregard Murillo’s
recommendation to launch since Obando and Tello were the leaders, June 13 AM H’rg Tr. at
138:20–139:22; June 13 PM H’rg Tr. (Rough) at 215:7–216:10; (3) Pozmino only described
20
Murillo’s role in the March 2012 shipment after a series of interviews in which he named the
dispatcher, not Murillo, as the person who gave orders, June 13 AM H’rg Tr. at 119:10–129:25;
(4) whether Murillo owned or would receive any profit from the marijuana aboard the Mistby is
doubtful, in light of Andres’s statement, during an interview on August 31, 2012, that Tello and
Obando would receive “half the profits that [Murillo] was going to earn” from the marijuana on
the Mistby, id. at 107:22–109:22, and Paredes’s statement, during an interview on September 6,
2012, that Tello purchased all of the marijuana prior to the launch of the Mistby, id. at 109:23–
111:1; and (5) even if Murillo maintained any investment interest in the marijuana, the
government failed to show how his ownership of marijuana gave him more control over the
participants in the conspiracy, id. at 111:2–113:7; June 13 PM H’rg Tr. (Rough) at 212:11–
213:2. None of these arguments rebuts or undermines the government’s ample proof that
Murillo had a supervisory role.
For example, Murillo posits that, as a legal matter, a “navigator” of a ship does not serve
as a manager or supervisor, and the label “captain” is the key to the supervisory role adjustment
in other cases. See Murillo Resp. at 1–2; June 13 PM H’rg Tr. (Rough) at 214:7–216:25. The
government argues to the contrary, pointing out that “courts in the Eleventh Circuit regularly
apply role enhancements to captains or navigators when appropriate.” Gov’t’s Comprehensive
Review of the Foundation for Identification of Speakers in Gov’t’s Exs. 5–14 at 3, ECF No. 290
(citing United States v. Acuna-Acosta, 334 F. App’x 197, 198 (11th Cir. 2009) (per curiam)
(unpublished); United States v. Ramirez, 426 F.3d 1344, 1355–56 (11th Cir. 2005) (per curiam);
United States v. Rendon, 354 F.3d 1320, 1331–33 (11th Cir. 2003); Garcia-Estupinan v. United
States, No. 8:02-cr-435-T-24EAJ, 2008 WL 1995070, at *4–5 (M.D. Fla. May 7, 2008)). Both
the D.C. Circuit and Eleventh Circuit have cautioned that conclusory labels are no substitute for
21
an analysis of the degree of control a defendant had over other participants. See, e.g., United
States v. Graham, 162 F.3d 1180, 1183 (D.C. Cir. 1998) (“[C]onclusory labels are inadequate
when assessing culpability under § 3B1.1.”); United States v. Guerrero, 114 F.3d 332, 345–46
(11th Cir. 1997) (drawing a distinction between the label “pilot” and factors that actually
“address the defendant’s authority over other individuals involved in a criminal venture”).
Although not binding, Eleventh Circuit precedent offers persuasive authority that
Murillo’s actions as a “navigator,” who used special skills to direct other participants in order to
help the overall organization succeed, would merit an aggravating role enhancement, even if
Murillo did not control other aspects of the conspiracy or have an ownership interest in the
contraband. See, e.g., United States v. Maciel-Macedo, 485 F. App’x 382, 383–84 (11th Cir.
2012) (per curiam) (unpublished) (affirming supervisory role adjustment for defendant who
“was given the authority to determine what vehicles and what routes would be taken to ensure
the safe delivery of the drugs” and noting that “a defendant’s subordinate role does not absolve
him of his supervisory role when he coordinates and manages the delivery and transportation of
drugs” (emphasis added) (citing United States v. Jones, 933 F.2d 1541, 1546–47 (11th Cir.
1991)); Ramirez, 426 F.3d at 1355–56 (11th Cir. 2005) (captain who knew the destination of a
boat but did not choose this destination, and who was following instructions of other co-
conspirators, was eligible for a role enhancement because he “was in charge of his four
codefendants on the go-fast boat” and “alerted his codefendants to the presence [of] the Coast
Guard”); Jones, 933 F.2d at 1547 (upholding role enhancement for defendant who “had the
responsibility of ensuring that the contemplated smuggling venture would succeed” and “made
unilateral decisions regarding landing and loading locations and the timing of such trips”).
22
The D.C. Circuit has similarly observed that a defendant who “actually assigned [co-
conspirators] where to go” is a factor that supports an aggravated role adjustment. Vega, 826
F.3d at 539 (internal quotation marks and citation omitted); see also United States v. Khan, No.
16-cr-96 (RBW), 2017 WL 3917002, at *6–7 (D.D.C. Sept. 5, 2017) (defendant who, among
other activities, “coordinated . . . travel arrangements,” for unauthorized aliens who “were
directed to call the defendant if any problems arose during the journey” was deemed to
“exercise[] sufficient control” for a role enhancement). Rather than being “simply a barnacle
clinging to the outer hull of middle management,” Graham, 162 F.3d at 1184, the evidence
against Murillo demonstrates that he “provided guidance to senior managers or subordinates,
issued . . . orders on behalf of the conspiracy, or otherwise held himself out as a link in the chain
of command,” id. Indeed, the D.C. Circuit has affirmed a managerial or supervisory role
enhancement for a defendant who, like Murillo, participated in the planning of a drug-trafficking
transaction, supervised numerous aspects of the illegal enterprise, and recruited or monitored
participants. See United States v. Borda, 848 F.3d 1044, 1071 (D.C. Cir. 2017).
Murillo’s other arguments do nothing to negate the conclusion that Murillo’s role in
plotting safe routes and directing crew members to follow those routes gave him control over
participants and thus a supervisory or managerial role in the conspiracy. This control renders
immaterial whether Murillo’s one-time ownership of marijuana gave him any additional degree
of control over the participants. Moreover, even if Paredes and Pozmino viewed Obando, Tello,
and Andres as additional or primary supervisors, as long as the government has established that
Murillo had control over at least one participant, this suffices to establish Murillo’s supervisory
role. See Vega, 826 F.3d at 538–39.
23
Accordingly, the government established by a preponderance of the evidence that
Murillo had a supervisory role in the charged offense by managing or supervising at least one
“participant” who was criminally responsible for an offense. See id. Murillo engaged in the
planning of the Mistby launch, exercised decision-making authority for when the Mistby launch
would occur, and communicated directions to the four crewmembers on the Mistby on the
timing of the launch and the routes to take to avoid detection. Statements indicating that Murillo
played this role with respect to other shipments, and that crew members called Murillo for real-
time instructions and followed Murillo’s advice and orders, offer further support for the
conclusion that Murillo issued directions and exercised control over the actions of other co-
conspirators.
2. Membache Had a Supervisory Role in the Offense
As for Membache, Souchet testified that three cooperating defendants, Pozmino,
Gonzalez, and Paredes, described Membache’s supervision of two crews, one responsible for
moving cocaine from Buenaventura, Colombia, to Choco, Colombia, and one responsible for
moving those drugs from storage in Choco to the go-fast vessels for shipment to Panama or
elsewhere in Central America. June 12 H’rg Tr. at 32:12–33:9, 35:16–36:14, 48:12–49:5.
Pozmino, who was a crewmember on an unnamed go-fast vessel interdicted in March 2012,
explained that the first crew Membache oversaw included Membache’s younger brothers,
whereas the second crew consisted of individuals Membache hired for specific shipments. Id. at
99:21–104:11. Pozmino also stated, in a report, dated April 28, 2015, that he had known
Membache for three years prior to Pozmino’s arrest, that he and Membache both participated in
a transfer of 15 kilograms of cocaine from one vessel to another in 2011, and that Membache
was responsible for supervising that transfer and instructing the crew on transferring the
24
contraband between the two vessels. Id. at 92:12–104:11. Gonzalez, who is Membache’s
cousin and was a crewmember of La Kokira, which was interdicted in February 2012, explained,
in the course of post-arrest interviews that took place from 2012 through 2015 (in one of which
interviews Souchet participated), that Membache hired, paid, and oversaw two crews, one
dedicated to transporting cocaine from Buenaventura to Choco, and one responsible for shipping
the cocaine to Panama or elsewhere, and that Membache oversaw the storage of the cocaine
prior to its shipment to Panama. See id. at 108:12–112:4, 114:10–115:25.
Paredes, the captain of the Mistby, told law enforcement that Membache oversaw the
transportation of the cocaine that would be placed on the Mistby, oversaw the storage of that
cocaine within Choco, including by supervising Nestor Murillo-Vanoy (“Vanoy”), who guarded
the cocaine, and gave advice and instructions as to whether it was safe to launch the Mistby and
whether to load or unload narcotics from the vessel. Id. at 58:21–59:5, 60:8–61:15, 62:7–64:24.
These statements are corroborated by Campaz, a Mistby crewmember, who told law
enforcement that he observed Membache give orders to the crew (but not to him specifically)
regarding loading or unloading drugs from the Mistby, and that Membache instructed the Mistby
crew not to depart on an occasion when he became aware of active military patrols along the
planned route. Id. at 68:17–69:15, 71:3–15.10 Campaz further told law enforcement, in an April
10
The government’s questions regarding Membache’s orders to “conceal” the drugs on the Mistby were
egregiously leading to the point of being misleading. Compare June 12 H’rg Tr. at 69:2–7 (government counsel
asking Souchet whether Campaz stated that Membache “gave the instructions regarding where to conceal the
drugs”), with id. at 70:17–71:15 (Souchet, in response to the Court’s questions, clarifying that Campaz “did not get
into detail [as to Membache’s instructions about concealing the drugs]. . . . [Campaz] said in the report that
[Membache] directed [the Mistby crew] to store [the narcotics] aboard the . . . Mistby but never gave specifics as to
how”). Indeed, Membache’s defense attorney introduced a photograph of the Mistby upon its interdiction,
Membache Ex. 1, noting that the Mistby was a fairly small vessel with no covered or roofed area, raising an obvious
question about how much “instruction” would be necessary to “conceal” the cocaine, given the limited area on-
board to store any contraband. See June 13 PM H’rg Tr. (Rough) at 144:7–145:24 (Souchet agreeing with
Membache’s attorney’s statement that “it seems pretty elemental where the drugs would go” as “there aren’t too
many places to hide the drugs on the Mistby”).
25
20, 2016 interview, that Membache gave orders to remove drugs from the Mistby and have them
stored in the jungle. June 13 PM H’rg Tr. (Rough) at 200:14–202:21.
Membache argues that his brother Andres could be considered a manager or supervisor
in the offense, but not him. See id. at 149:11–150:21, 152:5–153:9, 156:4–160:17; see also
Membache Post-H’rg Memo at 2–6, 12–17. According to Souchet, Paredes, who indicated that
he was familiar with Membache’s role in drug trafficking prior to the Mistby, June 12 H’rg Tr.
at 62:7–63:17, viewed Membache’s relationship with Andres as “competitive,” and explained
that Andres would at times overrule Membache’s orders, particularly in situations in which
Andres was on board the go-fast vessel but Membache was not. Id. at 59:6–18. For example,
Souchet indicated that Paredes referred to a disagreement between Andres and Membache as to
whether the Mistby should launch, but Andres eventually came to the same conclusion as
Membache. Id. at 59:20–60:11. Nevertheless, both Paredes and Campaz told law enforcement
that Membache had more authority in the DTO than Andres because Membache had more years
of experience. Id. at 63:13–17 (Paredes); id. at 69:12–15 (Campaz).
Souchet also testified that Andres, on September 5, 2012, told law enforcement that
Membache recruited him into drug trafficking in 2009 and assisted him in supervising their two
younger brothers in transporting cocaine from Buenaventura to Choco. Id. at 71:16–73:14. Yet,
less than two months later, on October 22, 2012, Andres denied that Membache had any role in
the Mistby shipment. Id. at 73:16–74:9, 75:14–78:2.11 For the reasons noted, supra in Part I,
Andres’s recantation is simply not credible in light of Membache’s own admissions and
concessions during his plea. See Membache SOF ¶ 2. In addition, intercepted calls corroborate
11
Souchet surmised that Andres’s retraction may have occurred in response to a phone call Membache made
to Andres after Andres’s arrest, but offered no corroboration to support this speculation. June 12 H’rg Tr. at 78:7–
80:21.
26
the cooperating defendants’ testimony regarding Membache’s control over his two younger
brothers and role in the Mistby launch. Specifically, the government submitted transcripts of
intercepted calls in which Andres and Membache discuss the arrest of their two younger
brothers and Membache indicates to Andres that they should “put the blame on just one of
them,” referring to the brothers, so that one brother can be released. June 13 AM H’rg Tr. at
44:18–55:7; Gov’t’s Exs. 5–7. The government also introduced an intercepted call in which
Andres tells Membache that “Chino,” a nickname for Paredes, indicated “one more day” before
the launch. June 13 AM H’rg Tr. at 55:10–56:20; Gov’t’s Ex. 7.
Notwithstanding this evidence, Membache’s defense attorney contends, inter alia, that:
(1) Paredes was recruited and paid by Obando, had a direct line to him with no need to go
through Membache, “never stated that he had spoken directly to [Membache],” and only
indicated, in the last of his interviews, years after his arrest, that Membache attended any
meetings with respect to the Mistby, June 13 PM H’rg Tr. (Rough) at 140:2–144:6, 155:18–25;
Membache Post-H’rg Memo at 9–16 (arguing that Paredes’s statements regarding Membache
are not credible); (2) Paredes initially said Andres, not Membache, oversaw the transportation of
cocaine within Colombia and its loading onto the Mistby, June 13 H’rg Tr. (Rough) at 149:11–
150:16, and also said that Andres was in charge of the planning meetings, id. at 155:21–157:15;
(3) Campaz originally said that Andres, not Membache, was in charge of making decisions
regarding the Mistby, id. at 158:12–23; (4) neither Paredes nor Campaz had adequate personal
knowledge of Membache’s activities, since both “admitted to participating in multiple boat trips
with various suppliers, with each other, and with other persons, including Andres . . . and other
of the named defendants,” but “none of those earlier drug trafficking activities had been with
[Membache],” Membache Post-H’rg Memo at 10–11 (emphasis omitted); (5) Andres was paid
27
by Obando and Tello, rather than by Membache, June 13 PM H’rg Tr. (Rough) at 145:25–
146:23; Membache Post-H’rg Memo at 3–5; (6) Andres told law enforcement that he had been
recruited and paid by Obando and recommended that Obando hire his two younger brothers,
June 13 PM H’rg Tr. (Rough) at 179:7–24; Membache Post-H’rg Memo at 3–5; (7) no texts
from Obando or Tello to Membache were produced, and there are no intercepted conversations
between Membache and the cocaine suppliers, or between Membache and the other Mistby co-
conspirators who allegedly moved or stored cocaine, even though a text does exist from Tello to
Rendon, June 13 PM H’rg Tr. (Rough) at 147:2–20, and conversations exist between other
Mistby co-conspirators and Andres or Obando, Membache Post-H’rg Memo at 7–8; (8) any
concern Membache felt over his brothers’ arrest could have been brotherly concern and a desire
to find a practical solution, rather than evidence that Membache supervised his brothers’ drug-
trafficking activities, June 13 PM H’rg Tr. (Rough) at 171:16–172:16, 233:21–234:9;
Membache Post-H’rg Memo at 8–9; (9) evidence that Andres and Murillo discussed the
purchase of marijuana for the Mistby, without consulting Membache, suggests that Membache
was “out of the loop” as to that aspect of the launch, June 13 PM H’rg Tr. (Rough) at 177:9–24;
Membache Post-H’rg Memo at 8 (“In every call introduced by the Government, [Membache] is
unaware of what the others are doing, asking what the person means or what he is talking about
and always defers to the judgment of others.”); and (10) Gonzalez told law enforcement that
Membache had “retired” from drug trafficking in 2009, June 13 PM H’rg Tr. (Rough) at
186:13–187:11.
Membache particularly targets the information provided by Paredes, pointing out that it
was not until the fourth interview that Paredes mentioned Membache, not until the seventh and
eighth interviews that Paredes described Membache as having a supervisory role or being
28
present at a planning meeting, and not until his eighth interview that Paredes ever mentioned
seeing Membache with a firearm. Membache Post-H’rg Memo at 12–18.12 Yet Paredes’s
statements, though they may at times focus on different members of the conspiracy, are not in
fact inconsistent as to Membache’s role. Even if Paredes was under the impression that Andres
had more of a supervisory role as to the Mistby than Membache, the information he provided
still demonstrates that Membache also had such a role, and corroborates similar information
from other cooperating defendants.
Despite this vigorous effort to poke holes in the government’s evidence, and irrespective
of whether Andres had more significant authority than Membache regarding the Mistby
shipment—an argument that Membache spends a significant portion of his post-hearing memo
addressing, see Membache Post-H’rg Memo at 3–6, 12–17—these arguments side-step the
consistent information provided by three witnesses that Membache had responsibility for
supervising others in the storage and movement of the cocaine that ultimately was loaded onto
the Mistby. This information about Membache is corroborated by intercepted phone calls
between Andres and Membache discussing drug-trafficking activity that support the
government’s description of Membache’s role in supervising his younger brothers and others in
coordinating the transport and safeguarding of cocaine within Colombia for export on go-fast
vessels. See Borda, 848 F.3d at 1071 (supervisory role is appropriate when evidence indicates
that the defendant supervised numerous aspects of the enterprise and monitored other
12
Membache also alleges that Pozmino indicated someone had “researched” Membache’s name on his
behalf, and that Campaz and Paredes discussed the conspiracy after they were arrested. Membache Post-H’rg
Memo at 11–12. Membache insinuates that these facts suggest a coordinated effort among cooperating defendants
to exaggerate Membache’s role in order to obtain sentencing reductions for themselves. Id. This speculation was
also raised, without elaboration, during the evidentiary hearing. See June 13 PM H’rg Tr. (Rough) at 149:1–10,
166:16–167:1, 190:18–25, 230:6–21, 236:17–24. Such unadorned speculation offers insufficient reason to disregard
cooperating defendant statements that are corroborated by other statements and supported by intercepted phone calls
and other evidence in this case.
29
participants). Thus, even if Membache and his brother Andres shared supervisory
responsibilities, or, indeed, even if Andres supervised Membache, Membache nevertheless
exercised control and direction over other co-conspirators, which is sufficient to establish a
supervisory role for Membache. The additional evidence that Membache presents, post-hearing,
that Andres also had supervisory authority over his brothers, or that other co-conspirators had
greater supervisory roles than Membache, is accordingly of limited usefulness in deflecting the
corroborated evidence that Membache played such a role himself. See, e.g., Membache Post-
H’rg Memo at 12–17 (providing extensive detail on the criminal activities of Paredes and others,
but failing to explain how those activities negate Membache’s).
Also of similarly limited value, now, are Membache’s attempts to relitigate the
government’s decision to indict him in the first place, his vacillations regarding his guilty plea,
and the significance of a letter Murillo filed on July 26, 2016 (six months after the plea) stating
that Membache was not involved in the conspiracy. See Membache Post-H’rg Memo at 6–7
(referring to Ltr. from Murillo, dated July 26, 2016, ECF No. 240 (sealed)). The simple
rejoinder to each of these arguments is Membache’s signed plea agreement, ECF No. 191, his
Joint Statement of Facts incorporated into that plea agreement, ECF No. 192, and the fact that he
has never indicated an intention to withdraw from that plea agreement—with good reason, see
Mem. & Order, dated Nov. 30, 2018, at 5 n.1 (noting that the plea agreement caps each
defendant’s sentence at 120 months, as opposed to what the Probation Office calculated could
be 262 to 327 months’ imprisonment for Membache). Membache’s attempts to shake the
foundation of his plea agreement while simultaneously relying on its shelter from a higher
sentence are a distraction from the issue in focus on remand: whether Membache is eligible for
safety-valve relief for a serious drug offense to which he entered a guilty plea.
30
In accordance with these findings, neither Murillo nor Membache is eligible for safety-
valve relief because both defendants are managers or supervisors in the Mistby offense, as
determined under the U.S. Sentencing Guidelines, and therefore fail to meet the requirements of
18 U.S.C. § 3553(f)(4).
B. Membache Possessed a Firearm in Connection with the Offense
The government also contends that Membache is ineligible for safety-valve relief
because he possessed a firearm in connection with the offense. See Gov’t’s Outline at 4, 7–8.
In light of the conclusion that Membache was a manager or supervisor in the charged offense,
consideration of whether he possessed a dangerous weapon is unnecessary, as he is already
ineligible for safety-valve relief. Nevertheless, in light of the evidence presented, this
requirement will be addressed.
In order to be eligible for safety-valve relief, the Court must find that “the defendant did
not use violence or credible threats of violence or possess a firearm or other dangerous weapon
(or induce another participant to do so) in connection with the offense.” U.S.S.G. § 5C1.2(a)(2).
As noted, “offense,” within the meaning of U.S.S.G. § 5C1.2(a)(2), means the offense of
conviction and all relevant conduct. Id. § 5C1.2 app n.3. The term “defendant,” as used in
U.S.S.G. § 5C1.2(a)(2), “limits the accountability of the defendant to his own conduct and
conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully
caused.” Id. § 5C1.2 app. n.4.
The D.C. Circuit has pointed out that, with regards to weapons possession, “the safety
valve speaks in the active voice, requiring that ‘the defendant’ must do the possessing.” In re
Sealed Case (Sentencing Guidelines’ “Safety Valve”), 105 F.3d at 1463. To be used “in
connection with the offense,” the firearm need only “facilitate, or have the potential of
31
facilitating, the drug trafficking offense.” United States v. Erazo, 628 F.3d 608, 611 (D.C. Cir.
2011) (internal quotation marks omitted) (quoting United States v. DeJesus, 219 F.3d 117, 122
(2d Cir. 2000) (per curiam)). This standard “is satisfied when the government establishes, by a
preponderance of the evidence, that the firearm ‘served some purpose with respect to’ the
offense.” DeJesus, 219 F.3d at 122 (internal quotation marks and citations omitted). In other
words, “the firearm must have some purpose or effect with respect to the drug trafficking crime;
its presence or involvement cannot be the result of accident or coincidence.” Id. (quoting Smith
v. United States, 508 U.S. 223, 238 (1993) (interpreting 18 U.S.C. § 924(c)(1))).
The government has presented reliable evidence that Membache personally possessed a
firearm at a planning meeting related to the launch of the Mistby. Souchet reviewed the
statements of Paredes, the captain of the Mistby, who said that he observed Membache with a
dark 9mm pistol at a planning meeting prior to the launch of the Mistby. June 12 H’rg Tr. at
64:25–65:23. According to Paredes, Membache removed the magazine from the pistol,
examined it, put the magazine back in the pistol, and placed the pistol back in his waistband,
where it was concealed by his shirt. Id.
Although Membache argues that Paredes only mentioned seeing Membache with a
firearm after eight interviews, June 13 PM H’rg Tr. (Rough) at 147:21–148:25, Membache Post-
H’rg Memo at 17–18, the government, through Souchet, offered two additional pieces of
evidence to corroborate Paredes’s account. First, Campaz, a Mistby crewmember, told law
enforcement that he was “streetwise” and saw what he believed to be the “silhouette” of a
concealed pistol tucked into Membache’s waistband at the launch site of the Mistby. June 12
H’rg Tr. at 69:16–70:12; see also June 13 PM H’rg Tr. (Rough) at 161:19–162:18 (Souchet
clarifying that the term “silhouette” was his, and was not used by Campaz in the report); id. at
32
163:3–164:7 (Souchet explaining that Campaz had indicated that Membache was not present the
day the Mistby launched, but “[t]here [are] times when [the] Mistby did not launch and . . . those
drugs are constantly being moved to and from. . . . he saw it at the launch [site] that’s it”); see
also Membache Post-H’rg Memo at 8 (citing evidence that Membache was not at the site the
day the Mistby launched or on a previous day when a launch was attempted). Thus, the
statements of two Mistby crewmembers, Paredes and Campaz, corroborate each other as to
whether Membache ever possessed a firearm in connection with the offense.
Second, Souchet explained that Paredes also discussed a particular small, white gun
Andres owned, and that an intercepted phone call captures Andres discussing this gun with
Vanoy. June 12 H’rg Tr. at 65:25–67:23. The government reasons that because Paredes’s
statement regarding Andres’s firearm can be corroborated by an intercepted phone call, his
statement regarding Membache’s firearm is rendered more credible. Id. (government counsel
arguing that “the fact that Luis Paredes’s statements regarding [Andres’s] ownership of the
pistol are corroborated by the wiretap in this case [] makes it more credible that [Paredes] was
providing honest information regarding the possession of a pistol by [Membache]”); see also
June 13 AM H’rg Tr. at 72:8–73:9 (Souchet discussing Gov’t’s Ex. 14, a transcript of an April
23, 2012 intercepted call in which Andres tells Vanoy where to locate a small, white gun). This
second piece of evidence, standing alone, would be too thin a reed to rest a finding of
Membache’s possession of a different firearm at a different time, but does bolster somewhat the
accuracy of Paredes’s recollections.
Moreover, as already established, Membache had a supervisory role in the Mistby
offense, and played a role in safeguarding cocaine while it was transported throughout Colombia
and loaded onto go-fast vessels for shipment elsewhere. Given this role in guarding the
33
narcotics, his firearm “ha[d] the potential of facilitating[] the drug trafficking offense.” Erazo,
628 F.3d at 611 (“[T]he requisite connection with the underlying offense is established if the
weapon was used or carried in order to protect contraband.” (internal quotation marks and
citation omitted)); see also United States v. Schaper, 903 F.2d 891, 896 (2d Cir. 1990) (holding,
in interpreting U.S.S.G. § 2D1.1(b)(1), that when the defendant stored narcotics in his house and
used the house to arrange narcotics deals, “[t]he presence of a weapon on [the defendant’s]
premises cannot be said to be unrelated to the ongoing narcotics trade”).
Accordingly, Membache is ineligible for safety-valve relief not only because he had a
supervisory role in the offense, but also because he possessed a firearm in connection with the
Mistby conspiracy, and therefore fails to meet the requirement of 18 U.S.C. § 3553(f)(2).
Considering the record presented at the evidentiary hearing, as supplemented by post-
hearing filings, the government has established by a preponderance of the evidence that Murillo
and Membache were both managers or supervisors in the Mistby offense, and that Membache
possessed a firearm in connection with the offense, and therefore neither defendant is eligible
for safety-valve relief.
* * *
In the face of this collective evidence, the defendants’ complaint that the evidence
presented at the hearing was hearsay and unreliable falls short of rebutting the power of the
corroboration of five different witnesses and intercepted phone calls. The law is clear that
findings necessary for guideline determinations may be based on hearsay evidence. See, e.g., 18
U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a court . . . may receive and
consider for the purpose of imposing an appropriate sentence.”); United States v. Leyva, 916
34
F.3d 14, 26 (D.C. Cir. 2019) (“The Sentencing Guidelines . . . expressly permit consideration of
‘reliable hearsay.’” (quoting U.S.S.G. § 6A1.3 cmt.)); United States v. Jones, 744 F.3d 1362,
1368 (D.C. Cir. 2014) (“[R]eliance [on hearsay] poses no legal problem. Clear precedent
permits hearsay to be used in sentencing decisions.” (citing United States v. Bras, 483 F.3d 103,
108 (D.C. Cir. 2007)). Indeed, the D.C. Circuit recently reiterated that “[i]n resolving a factual
dispute related to sentencing, the Guidelines permit a district court to ‘consider relevant
information without regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its probable
accuracy.’” Leyva, 916 F.3d at 24–25 (quoting U.S.S.G. § 6A1.3(a)); see also U.S.S.G. § 6A1.3
cmt. (authorizing reliance on “[o]ut-of-court declarations by an unidentified informant” “where
there is good cause for the non-disclosure of the informant’s identity and there is sufficient
corroboration by other means”).
The defendants further criticize the hearsay evidence as unreliable due to the incentives
for defendants to cooperate with law enforcement and perceived inconsistencies in the
statements of cooperating defendants over the course of their interviews. Yet, as discussed in
detail, supra, sufficient indicia of reliability are present in this case because the statements of the
cooperating defendants corroborate each other as to the material facts at issue: the defendants’
supervisory roles with respect to the Mistby and other illegal narcotics shipments, and
Membache’s possession of a gun. For each eligibility requirement, it is possible to “rely only
upon facts substantiated by more than one cooperator” in determining whether the government
has met its burden. See Leyva, 916 F.3d at 26 (citing Jones, 744 F.3d at 1367). Even where the
cooperating defendants had incentives to curry favor with law enforcement or where their
statements suggest slight inconsistencies over the series of interviews, those facts “do not
35
establish that it was implausible . . . to credit particular aspects of their testimony, especially
where, as here, the cooperators offered mutually corroborative accounts.” Id. (quoting Jones,
744 F.3d at 1367).
Lending more indicia of reliability to the cooperating defendants’ statements is that these
defendants provided information against their own penal interest about matters not implicating
Murillo or Membache. It is a “commonsense notion that reasonable people, even reasonable
people who are not especially honest, tend not to make self-inculpatory statements unless they
believe them to be true.” Williamson v. United States, 512 U.S. 594, 599 (1994) (referring to
FED. R. EVID. 804(b)(3)). “Even the confessions of arrested accomplices may be admissible if
they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.” Id. at
603. Ironically, Membache made this point better than the government did at the hearing. The
government gestured to the cooperating defendants’ acknowledgement of prior criminal activity
as one reason that their statements regarding the Mistby should be deemed credible without
deigning to provide much detail as to that prior activity, only discussing it generally and in
response to direct questions from the Court. See, e.g., June 12 H’rg Tr. at 94:3–23 (Court
explaining “[o]ne way to demonstrate that the hearsay testimony that you are putting in . . . [is]
reliable is if the declarant has made a number of statements against penal interest. . . . You could
leave it to cross-examination[] but the defense counsel may not want to help you out and make
these statements more reliable”). Membache, by contrast, provides significantly more detail
than the government did, noting that “Paredes, a former member of the Colombian military,
admitted that starting in 1995, he has transported tons of cocaine from Colombia to Panama and
elsewhere for various suppliers and delivered to various persons but he had never worked with
[Membache].” Membache Post-H’rg Memo at 10–11 (footnote omitted); see also June 13 PM
36
H’rg (Rough) at 187:15–25. “Though not as extensively[,] Campaz[] also admitted to
participating in several transports of cocaine.” Membache Post-H’rg Memo at 11. Membache
makes this point to argue that “[i]n contrast to the detailed references to prior drug
transportations and to their activities and that of other defendants in the Mistby, [] references to
[Membache] were scant and lacking in detail.” Id.; see also id. at 12–14 (detailing information
Paredes shared about other drug traffickers). Yet, it is hard to see why a co-conspirator’s more
detailed knowledge of his own criminal activity compared to another individual’s negates what
knowledge he does have about that individual. Unwittingly, perhaps, Membache’s
acknowledgement that Paredes and Campaz shared extensive detail about their criminal history
bolsters rather than hurts their credibility. Recognizing, of course, that a custodial statement
that admits guilt and implicates another person may fail to qualify as “against [self] interest,”
Gilmore v. Palestinian Interim Self-Gov’t Auth., 843 F.3d 958, 971 (D.C. Cir. 2016), Paredes’s
and Campaz’s recitation of their own criminal histories only serves to bolster their credibility
and provide further corroboration for the information relating to Membache and Murillo.
III. CONCLUSION
Upon finding, based on evidence presented at the evidentiary hearing on June 12, 2019
and June 13, 2019, and the entire record in this case, that the government has established, by a
preponderance of the evidence, that the defendants Alfredo Mosquera-Murillo and Antonio
Moreno-Membache exercised a supervisory role in the charged conspiracy and that the latter
defendant possessed a weapon in connection with the same conspiracy, the objections raised by
the defendants Alfredo Mosquera-Murillo and Antonio Moreno-Membache to the government’s
evidence are DENIED. Accordingly, the defendants Alfredo Mosquera-Murillo and Antonio
37
Moreno-Membache are not eligible for safety-valve relief under 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2(a).
SO ORDERED.
Date: July 11, 2019
________________________
BERYL A. HOWELL
Chief Judge
38