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UNITED STATES v. FITERMAN

June 26, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
REVA FITERMAN, Defendant


Suzanne B. Colon, United States District Judge.


The opinion of the court was delivered by: CONLON

SUZANNE B. CONLON, UNITED STATES DISTRICT JUDGE.

 Defendant Reva Fiterman pleaded guilty to a two-count information charging her with conspiracy to distribute marijuana under 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to distribute an unspecified quantity of marijuana under 21 U.S.C § 841(a)(1). These offenses were committed after November 1, 1987. It is undisputed that Fiterman's sentence is governed by the Sentencing Reform Act of 1984 and the sentencing guidelines promulgated under that legislation.

 Prior to the initial sentencing hearing, Fiterman moved for departure below the applicable guideline range to a probationary sentence on several theories. At the first hearing, the government orally moved for a downward departure based on Fiterman's cooperation. The court then requested that the government file an appropriate motion and submit supporting information, in camera if necessary, so that the requisite evaluation of Fiterman's assistance to authorities could be made under § 5K1.1 of the guidelines. Instead, the government's departure request was made by letter to the court; no information concerning Fiterman's offense behavior and cooperation was submitted, other than the government's two-page version of the offense previously incorporated in the presentence investigation report.

 Due to this lack of information, the court requested that the probation officer obtain copies of the Drug Enforcement Administration (DEA) case report and the affidavit supporting a search warrant executed on Fiterman's home. These materials are part of the record and have been considered by the court after Fiterman had an opportunity to object to their accuracy and offer any explanations.

 Following three sentencing hearings, the court concludes that a departure below the applicable sentencing guideline range is not warranted.

 THE DEFENDANT'S BACKGROUND

 Fiterman is 56 and has no prior criminal history. She has three adult children: a 33 year old son who lives with her; a 27 year old disabled son who is a student at Southern Illinois University in Carbondale, pursuing a business and finance degree; and a 25 year old married daughter who is a homemaker and does not reside with Fiterman.

 Fiterman's 27 year old son suffered a closed brain injury in a motorcycle accident approximately eight years ago. Fiterman cared for him through his convalescence and rehabilitation. He addressed the court at the initial sentencing hearing. At the present time, he suffers from a speech impairment and communicates by use of an alphabet board. He walked without assistance in the courtroom. According to the presentence report, he is able to write and has resumed his college studies away from home where he is not under his mother's daily care.

 Fiterman attended college for two years. She has been married four times. She assisted in the management of her last husband's multimillion dollar scrap metal business in the early 1970's. She has not been employed for the past ten years, but has been a fund-raiser for the disabled for eight years. She claims to be destitute.

 The drug activities that are the subject of this prosecution center on a 17-room home in Forest Park, Illinois, where Fiterman has lived for 27 years. Her property includes a 6,800 square foot house, a heated swimming pool, a cabana, a clubhouse, and an attached three-car garage.

 THE DEFENDANT'S OFFENSE BEHAVIOR

 In late 1985, Fiterman agreed to store large shipments of marijuana smuggled from Mexico in her home. She now claims she made this arrangement with a man named Enrique Diosdada, who once worked for Fiterman caring for her disabled son. Fiterman gave Diosdada a key to her home and an electric door opener for the attached garage. In 1986, Fiterman warehoused four or five marijuana shipments in the garage area. She admits she was paid approximately $ 5,000 in cash on each occasion. Diosdada temporarily stopped storing marijuana at Fiterman's home in late 1986, when he accused one of her sons of stealing from a load. In 1987, she admits she warehoused two more shipments.

 According to the affidavit supporting the search warrant executed on her home, Fiterman told a DEA informant that after marijuana loads *fn1" were delivered, ". . . various individuals would come to her house to pick up quantities." Ehrsam Affidavit at para. 3. In early November 1987, the same informant brought Fiterman into the DEA office in Hammond, Indiana. She expressed an interest in becoming a paid informant. Fiterman told law enforcement officers she could introduce an undercover agent to someone who could supply large amounts of cocaine. Id. at P 4. *fn2" When Fiterman was told the amount of money DEA was able to pay her as an informant, Fiterman "... stated that this compensation was inadequate and she declined to provide further information to DEA." Id.

 Only a few weeks later, the informant reported to police that Fiterman told him she expected a large shipment of marijuana. After the informant saw and smelled the marijuana in her home, *fn3" DEA executed a search warrant. When DEA agents presented the search warrant to Fiterman, she denied there were any drugs in her home. Nevertheless, the agents found 604 pounds (net) of marijuana in 15 steamer trunks and seven large garbage bags in her master bedroom walk-in closet. A triple beam scale was found with the marijuana. Fiterman's purse, also found in the master bedroom, contained $ 1,150 in cash.

 After the search was completed, Fiterman stated that she was not yet ready to tell DEA agents the name of the broker. She gave them some hints: an area resident within her telephone calling area who helped her financially for several years and who brokers bulk marijuana for "several upper class business persons." DEA December 3, 1987 report at para. 6. She agreed to meet DEA agents the following day to give a complete statement about the marijuana organization and her involvement. The next day, however, she refused to cooperate and claimed she was in fear for her own safety and that of her family.

 Not until almost one year later did Fiterman give the government any further information. By that time she faced indictment and the government had filed for civil forfeiture of her home based on its use to facilitate distribution of drugs. 21 U.S.C § 881(a)(7). She then named Diosdada, a Vic Resa and his cousins as the persons responsible for the marijuana shipments distributed from her home. In the six months since she provided this information, DEA has been unable to locate Diosdada or any other coconspirator.

 According to the government's brief submission to the probation officer, Fiterman's cooperation consists solely of furnishing the foregoing information, and agreeing to plead guilty, forfeit her house and testify for the government at any trial of her conconspirators.

 THE CHARGE BARGAIN

 Although not disclosed in the written plea agreement filed at arraignment, it appears from the record that a form of charge bargaining occurred in this case. The amounts of marijuana warehoused in Fiterman's home in four to six shipments during the two-year conspiracy period are not set forth in the conspiracy count, nor is the 604 pounds seized from Fiterman's home on November 30, 1987 disclosed in the possession count. Under federal drug laws and the sentencing guidelines, drug quantity constitutes a critical factor that dramatically affects a sentence. Upon inquiry by the court at arraignment, the Assistant United States Attorney acknowledged that the amount of marijuana seized was omitted from the information "as a matter of prosecutorial discretion" to avoid a mandatory minimum five-year sentence on the ...


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