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GREGORY NICOLAYSEN State Bar No. 98544 27240 Turnberry Lane, Suite 200 Valencia, CA 91355 Phone: (818) 998-2706 Fax: (818) 998-8427 Cell: (818) 970-7247 Email: [email protected] Counsel For Defendant, Leopoldo Gutierrez UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UNITED STATES OF AMERICA, CR 10 - 136 - GAF Plaintiff, SENTENCING POSITION PAPER FILED BY DEFENDANT LEOPOLDO GUTIERREZ LEOPOLDO GUTIERREZ, Date: December 5, 2011 Defendant Time: 1:30 p.m. Court: The Hon. Gary A. Feess _________________________________) Defendant Leopoldo Gutierrez hereby submits his sentencing position paper, including any objections to the Presentence Report (“PSR”). DATED: November 15, 2011 Respectfully Submitted, By:__________/S/_______________ GREGORY NICOLAYSEN Counsel for Defendant, Leopoldo Gutierrez
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MEMORANDUM OF POINTS AND AUTHORITIES RE: SENTENCING INTRODUCTION Opening Statement Defendant Leopoldo Gutierrez, a 22-year old first - time offender who had just turned 20 years old when he was arrested (and immediately released) in March 2009 in connection with offense conduct to which he pleaded guilty, now comes before the Court for sentencing. Mr. Gutierrez has pleaded guilty straight-up (without a written plea agreement) to Counts 3 and 4 of the Indictment, which both charge violations occurring in March 2009: one pertaining to the online sale of counterfeit Viagra; the other to the sale of ecstasy pills to an undercover agent. The defense appreciates and thanks the Probation Office for recommending a sentence substantially below the advisory guideline range. In this position paper, Mr. Gutierrez respectfully asks the Court to adopt the overall position of the Probation Office in granting a sentence below the guidelines, but to go beyond the PSR by granting a sentence that will allow Mr. Gutierrez to continue both his college education and his current employment. Specifically, Mr. Gutierrez asks the Court to impose a sentence of one day in custody (satisfied by the time period in the U.S. Marshals’ custody on the day of his initial appearance), and the maximum allowable Supervised Release term of three years [PSR at par. 85, page 14], with the following conditions: six months’ residency in a halfway house; twelve months (one year) of home detention with electronic monitoring; 30 hours of community service per year over a three- year period, for a total of 90 hours. This sentencing request amounts to a total of eighteen months (6 + 12) which is
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half of the advisory guideline range of 37 - 46 months. As discussed below, the Probation Office has recommended a sentence of 24 months, which is half of the 46 - 57 month advisory guideline range calculated in the PSR. The 37 - 46 month range reduces the PSR range by two levels to take into account Safety Valve. Thus, the defense is asking the Court to apply the same approach as the Probation Office: take half of the advisory guideline range and impose that as the sentence; but do so using the non-custodial alternatives of home detention and halfway Procedural History Relevant To Sentencing The following section summarizes the procedural history that is relevant to sentencing. On March 26, 2009, ICE agents who had conducted an undercover investigation of Mr. Gutierrez regarding the online sale of counterfeit Viagra executed a search warrant of his vehicle and residence at the time Mr. Gutierrez was scheduled to conduct a pre-arranged, one-time sale of ecstasy pills to the agents pursuant to a sting operation set up by the agents. The agents did not arrest Mr. Gutierrez on this occasion. Instead, the proceeded to enlist the cooperation of Mr. Gutierrez, which he gladly provided. This cooperation arrangement began on the same day – March 26, 2009 – with an in-depth interview of Mr. Gutierrez and proceeded to entail ongoing interviews and pro-active work by Mr. Gutierrez. This cooperation work is discussed in more detail in a subsequent section of this position paper, with numerous citations to attached exhibits. Among the key aspects of Gutierrez’s cooperation was his disclosure of his network arrangement with a Chinese distributor of counterfeit Viagra known to him as “Bob”. As discussed in detail in this memorandum, Gutierrez disclosed in depth to
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the agents the totality of his distribution arrangement with “Bob”; the email address for “Bob”; and Gutierrez maintained ongoing Instant Message communications with “Bob” at the direction of the agents. “Bob” would later be indicted in this district in two separate indictments on the very same day as Gutierrez (February 11, 2010), with docket numbers that were only one digit apart from Gutierrez case: CR 10-135 and CR 10-137. This case against Gutierrez is CR 10-136. None of this would be known to Gutierrez or his counsel until January 2011, as discussed below. In approximately July 2009, Mr. Gutierrez’s current counsel undertook pre- indictment settlement discussions with prior government counsel, AUSA Mark Krause, to resolve this case. Mr. Gutierrez had not been arrested or charged by this point in time; but as noted above, he had been cooperating with the agents. On August 12, 2009, Mr. Gutierrez, together with his current counsel and investigator, conducted a cooperation proffer session at the U.S. Attorney’s Office with AUSA Mark Krause and the agents, for the purpose of exploring a formal cooperation arrangement. The meeting lasted approximately 90 minutes. The agent’s report generated from the meeting is attached hereto as Exhibit 20. Mr. Gutierrez respectfully disagrees with the agent’s characterization and summary of certain statements made by the Mr. Gutierrez during the meeting; however, the essential thrust of the report correctly conveys that Mr. Gutierrez explained in detail his background selling online Viagra, his sources, and his desire to assist the government in identifying and prosecuting those sources. Unbeknownst to Mr. Gutierrez or his counsel, on February 11, 2010, the government filed the present Indictment against Mr. Gutierrez under seal. The case number assigned: CR 10 - 136. [Pacer # 1 - 7]. The single-defendant Indictment against Mr. Gutierrez charges four substantive counts: Counts 1, 2 and 3 charging the sale of counterfeit Viagra, in violation of 18 U.S.C. 2320; and Count 4 charging the sale
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of ecstasy pills on March 26, 2009, in violation of 21 U.S.C. 841(b)(1)(C).1 On February 11, 2010, simultaneous with the filing of the Gutierrez indictment, the government filed two indictments against an individual named Bo Jiang, the true name of Gutierrez’s Viagra supplier whom Gutierrez knew as “Bob.” The filing of these indictments, particularly in conjunction with the filing of the indictment against Gutierrez, confirmed that the agents had been actively investigating “Bob” during the time period in which Gutierrez had been cooperating with the agents in regard to “Bob”, by disclosing full details of the Viagra distribution arrangement between Gutierrez and “Bob”; disclosing the email address used by “Bob”; and conducting online IM communications with “Bob.” The close connection between Gutierrez’s cooperation and the investigation of Bo Jiang, aka “Bob”, is clearly reflected in the docket numbers. As stated in the Introduction to this position paper, Bo Jiang was indicted in cases CR 10-135 and CR 10-137. The Indictment in this case against Gutierrez is CR 10-136. The charges against Bo Jiang involved the same allegations as those against Gutierrez: violations of 18 USC 2320 for the sale of counterfeit Viagra, among other charges. The indictments in both of Bo Jiang’s cases are attached hereto as Exhibits 26 and 27 hereto. Importantly, the Indictment against Bo Jiang in CR 10-135 alleges that Jiang used a specific email address, which was in fact the email address that Gutierrez had disclosed to the agents for “Bob.” Due to the under seal nature of the February 2010 filings, none of the above events were known to Gutierrez or his counsel. In fact, after the cooperation proffer session was conducted in August 2009, and all the way until the first week of January 2011 – a period of almost a year and a half – neither Mr. Gutierrez nor his counsel had any contact with the government on this case. There was no activity on this case at all. There is no mandatory minimum penalty for the sale of ecstasy. Moreover, 21 U.S.C. 841(b)(1)(C) is a subsection of section 841 that does not carry a mandatory minimum.
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Clearly, the government did not regard Gutierrez as a danger to the community or someone who needed to be prosecuted anytime soon. This is an important consideration for mitigation at sentencing. In the first week of January 2011, counsel for Mr. Gutierrez received a call from AUSA Mark Krause informing counsel that an Indictment had been filed and that the government was prepared to coordinate a self-surrender and stipulated bond. On January 11, 2011, Mr. Gutierrez made his initial appearance before the duty magistrate pursuant to the self-surrender arrangement coordinated between his current counsel and the government. Counsel escorted Mr. Gutierrez to Pretrial Services and then to the U.S. Marshals, where he was taken into custody pending the initial appearance before the duty magistrate. The Indictment was unsealed and the parties stipulated to a low bail of $10,000 Appearance Bond signed by Mr. Gutierrez’s father, who was present in court [Pacer #10, 14].2 Mr. Gutierrez was released the same Again, from a sentencing mitigation perspective, the informal manner in which government counsel coordinated a self-surrender and stipulated unsecured bond clearly showed that Gutierrez was not viewed as someone who posed a threat to the community; a risk of re-offending; or needed to be put into custody. On August 25, 2011, Mr. Gutierrez entered guilty pleas to Counts 3 and 4 of the Indictment straight up, without a written plea agreement. Count 3 charges the sale of counterfeit Viagra on March 5, 2009; Count 4 charges the sale of ecstasy on March 26, 2009, in violation of 21 U.S.C. 841(b)(1)(C). Defense counsel recited the factual basis for each count into the record, which was accepted by the government. Sentencing was set for the current date of December 5, 2011. [Pacer #28]. See Exhibit 1 hereto, which is a copy of the Court Bond downloaded from Pacer.
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Brief Summary Of Sentencing Mitigation Factors Based On Procedural History The procedural history summarized above presents key sentencing mitigation facts that weigh strongly in favor of a non-custodial sentence: The agents did not arrest Gutierrez on March 26, 2009 but, instead, immediately recruited him as a cooperator; Gutierrez provided ongoing cooperation for many weeks thereafter, which is discussed in detail later in this memorandum; The government conducted a lengthy cooperation proffer session with Gutierrez and his counsel in August 2009; After the cooperation proffer session, this matter remained dormant for almost a year and a half until Gutierrez’s counsel was contacted to coordinate a self-surrender in January 2011; The government filed an Indictment against Gutierrez under seal in February 2010 and allowed it to remain under seal for an entire year until January 2011, which shows that the government did not feel any urgency to prosecute Gutierrez. At the time the Indictment was filed against Gutierrez in February 2010, companion indictments were filed against “Bob” in cases separated from this case on the docket by single digits, thus showing the close connection between Gutierrez’s cooperation and the investigation against “Bob”; In January 2011, when the government elected to go forward with this prosecution of Gutierrez, government counsel and counsel for Gutierrez worked out an informal self-surrender and unsecured bond signed by Gutierrez’s father. Moreover, Mr. Gutierrez has fully complied with all conditions of bond since his initial appearance and setting of bond on January 11, 2011. [Presentence Report, “PSR”, at par. 6, page 4].
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OBJECTIONS OR CORRECTIONS TO THE PRESENTENCE REPORT Part A of PSR: The Offense No Objection To Guideline Calculation While the PSR summarizes the offense conduct applicable to all three Viagra counts in the Indictment (Counts 1, 2 and 3), whereas Mr. Gutierrez only pleaded to Count 3, there is no objection this factual summary. Mr. Gutierrez takes full responsibility for the fact that had maintained an ongoing business of selling counterfeit Viagra online in years 2008 and 2009, as reflected in Counts 1, 2 and 3 of the Indictment. Thus, Mr. Gutierrez accepts the broader summary of the offense conduct which goes beyond the factual basis that was orally recited into the record at the change of plea hearing as to Count 3. With regard to calculating the offense level for the sale of counterfeit Viagra, Mr. Gutierrez accepts the PSR’s calculation of an Offense Level 9 even though it presupposes certain facts that exceed the factual basis that was orally stated on the record at the change of plea; and there is no foundation of evidence, specifically the usage of the number 256 as the total number of Viagra pills sold, which represents the sum of the pills alleged in Counts 1, 2 and 3 [PSR at par. 21, page 6]; and the usage of the $17 market value per pill which the PSR states is based on a representation made by Pfizer, the manufacturer [PSR at par. 23, page 6. Nonetheless, Mr. Gutierrez waives objections on foundational grounds, and no objection is being made, as Mr. Gutierrez readily accepts his responsibility for his involvement in running an Internet-based business selling counterfeit Viagra. The defense accepts a summary of offense conduct in the PSR that exceeds the factual basis presented at the change of plea. As reflected in the PSR’s recommendation of a below-guidelines sentence, the online Viagra business was the true offense conduct committed by Mr. Gutierrez;
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whereas, the ecstasy sale in March 2009, which sets the benchmark for the advisory guideline range at Level 26, was a one-time event that had no connection to the Viagra business and occurred only because of a sting operation conducted by the agents. Request For Safety Valve Credit Counsel for the government and defense have discussed this matter and have stipulated that Mr. Gutierrez should receive the 2-level reduction for Safety Valve. The defense thanks and appreciates the government’s concurrence on this issue without the need to litigate the matter. The PSR reaches an Adjusted Offense Level 23 (Base 26 - 3 for Acceptance). [PSR at par. 38, at page 7] Accordingly, the Offense Level should be reduced by two levels to Level 21 to take into account the Safety Valve. The parties and PSR concur that Mr. Gutierrez is a Criminal History I. [PSR at par. 43, at page 8] Accordingly, the advisory guideline range is: Level 21 / CH I = 37 - 46 months. Request That Court Adopt The Same Formula As PSR: Grant A Downward Variance That Cuts The Low End Of The Advisory Range In Based on the higher advisory range of 46 - 57 months per Offense Level 23 [PSR at par. 81, at page 12, not taking Safety Valve into account], the Probation Office recommends a substantial downward variance below the advisory range and recommends a sentence of twenty-four (24) months (Recommendation Letter at page 1]. In essence, the Probation Office recommends that the Court cut the low end of the advisory guideline range in half: 24 months is essentially half of the low end of 46
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Mr. Gutierrez respectfully asks the Court to apply the same approach: grant a downward variance that cuts the low end of the 37 - 46 range in half, by imposing a sentence of 18 months that is comprised of non-custodial alternatives: halfway house and home detention. The Probation Office’s Recommended Variance Below The Guidelines Does Not Reflect Gutierrez’s Cooperation It is important to note that the substantial downward variance recommended by the Probation Office is being recommended even without any consideration given to Mr. Gutierrez’s cooperation, as it is the policy of the Probation Office not to factor cooperation into the sentencing analysis contained in a PSR. Despite Mr. Gutierrez’s cooperation with the agents from March 26, 2009 through December 2009, the government has declined to file a 5K1.1 downward departure motion to reduce the advisory guideline range. This is unfortunate and has been the subject of ongoing discussions between counsel for both parties. The defense nonetheless appreciates that the government, in its filing, will be bringing Mr. Gutierrez’s cooperation to the Court’s attention, even without a formal 5K1 motion. His cooperation work is also discussed below. Accordingly, Mr. Gutierrez respectfully asks this Court to factor his cooperation into the section 3553(a) analysis, discussed below, in granting a downward variance that exceeds the variance recommended by the Probation Office, by granting the non- custodial alternatives of halfway house and home detention. Part C of PSR: Offender Characteristics There are no objections to Part C of the PSR, entitled Offender Characteristics, covered in pages 8 - 11. Mr. Gutierrez would add to the Employment section (see pars. 66 - 60, pages 10 -
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11) that he is currently employed by a produce company (Reiter Brothers, Inc. 730 So. A Street, Oxnard, CA 93030), as a fruit picker in the orchards located in Moorpark, working essentially the same labor as a migrant farm worker. He earns $8.00 per hour, working 50 hours per week. Attached hereto as Exhibits 21 - 25 are photos of Mr. Gutierrez working, and the orchards where he works. The photos were taken on November 14, 2011 by counsel’s CJA-appointed investigator, Steven Strong (LAPD retired). It is important to emphasize to this Court that Mr. Gutierrez is a hard-working individual who, in a tough job market for young men who do not have college degrees, is prepared to work the farm fields to earn a living. This is excellent evidence of post- offense rehabilitation. A SENTENCE OF EIGHTEEN (18) MONTHS OF ALTERNATIVES TO CUSTODY (HALFWAY HOUSE, HOME DETENTION-ELECTRONIC MONITORING, AND COMMUNITY SERVICE) IS SUFFICIENT, BUT NOT GREATER THAN NECESSARY, TO COMPLY WITH THE STATUTORY PURPOSES OF SENTENCING UNDER 18 U.S.C. 3553(a) 3553(a)(1): Nature And Circumstances Of The Offense As reflected in the PSR, the advisory guideline range is driven by the offense level for ecstasy (Offense Level 26), which is substantially higher than the offense level for selling counterfeit Viagra (Offense Level 9).3 As such, the advisory guideline range It is important to note that the disparity under the guidelines between the Level 9 for Viagra and Level 26 for ecstasy is so great that no multiple count adjustment is added to the
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over-states the seriousness of the offense because the true offense conduct is the online sale of Viagra (Counts 1 - 3), which Mr. Gutierrez had been engaged in during years 2008 - 2009. The undercover agent had been engaged in an investigation during which he engaged Mr. Gutierrez in online negotiations / transactions of counterfeit Viagra during the period June 2008 up to the date of Gutierrez's detention on March 26, 2009. In contrast, the negotiation to sell ecstasy (Count 4) was a one-time event in March 2009 that resulted from a sting operation set up by the same agent with whom Gutierrez had been dealing on the Viagra sales.4 This one-time even involving ecstasy, which Mr. Gutierrez explained to the agents was provided to him by a relative of his girlfriend (see Exhibit 5 hereto) constitutes aberrant conduct for which Mr. Gutierrez is deeply remorseful, as reflected by his cooperation, discussed below. In this context, this case should be viewed as a prosecution for conducting an online business selling counterfeit Viagra, for which the PSR calculates an Offense Level 9 prior to a reduction for Acceptance [PSR, pars. 22-27, page 6]. If this case had been prosecuted solely as a Viagra case, the Adjusted Offense Level after Acceptance would be 7, placing Gutierrez in Zone A of the guideline table and thus eligible for probation prior to considering 3553(a) factors. The over-representation of the advisory guideline range should also be seen from the perspective that the Level 26 for ecstasy, which drives the guideline analysis, operates as if there are no counts of conviction for Viagra. Thus, what we end up with offense level under Chapter 3 of the guidelines, even though the ecstasy and Viagra counts of conviction do not group under the guidelines. See PSR at par. 34, at page 7. The sale of ecstasy was not actually completed. The agents confronted Mr. Gutierrez in his driveway as he was leaving his residence to meet the agents to conduct the sale. The ecstasy tablets were seized from his vehicle. Accordingly, the conviction on Count 4 is for possession with the intent to distrubute, as no actual distribution occurred.
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here is a situation where the real offense – the online sales of Viagra – are not reflected at all in the guideline analysis; while the aberrant event resulting from a sting operation – the single sale of ecstasy – is treated as the definitive offense for guideline sentencing purposes. Therefore, consistent with the position taken by the Probation Office, a downward variance below the advisory guideline range should be granted. 3553(a)(1): History And Characteristics Of The Defendant Mr. Gutierrez’s Genuine Remorse For His Wrongful Conduct During the presentence interview, Mr. Gutierrez expressed clear remorse for his illegal behavior, which was captured by the Probation Officer in his Recommendation Letter to the Court: "Gutierrez appears absolutely sincere in his understanding of his illegal conduct and his vow to lead a lawful life." [Rec. Letter at page 4 of 5].
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Mr. Gutierrez’s Ongoing Cooperation Immediately Following His Detention On March 26, 2009 March 26, 2009: Gutierrez Begins To Cooperate And Undergoes An Extensive Interview On March 26, 2009, the undercover agent and his team confronted Mr. Gutierrez in his driveway as he was about to leave his residence to meet the agent to make a sale of ecstasy pills. The pills were seized from his vehicle. Mr. Gutierrez was not arrested. Instead, he agreed to cooperate and immediately underwent an interview with the agents which continued into the following day, March 27, 2009. Attached hereto as Exhibit 2 is an investigative report (Bates 000247, 250 - 256) which summarize in great detail the lengthy and extensive interview that the agents conducted with Gutierrez on March 26, 2009. The report expressly states that when the agents confronted Gutierrez on that date, SA DeFreitas advised Gutierrez that he was not under arrest and was free to leave if he chooses. [Exh. 2, Bates 000250]. March 27, 2009: Gutierrez Travels To The Long Beach Office of ICE For Another In-Depth Interview Mr. Gutierrez’s cooperation carried over to the following day, March 27, when he was re-interviewed. Attached hereto as Exhibit 3 hereto (Bates 000257 - 260), an investigative report that states in pertinent part:
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During the search, Gutierrez willingly agreed to be interviewed by agents. At the conclusion of the interview with Gutierrez, agent Jason DeFreitas requested that Guitierrez be re-interviewed the following day, March 26, in which Gutierrez agreed. On or about March 27, 2009, . . . Gutierrez was interviewed by SAs DeFreitas along with Timothy Kirkham at the SAC/LA office located at 5012 W. Ocean Blvd, Long Beach, [Exh 3 at Bate 000258. The report states that the following day is March 26. In fact, it is March 27. The report contains a typo.]. During the two-day, March 26-27 interviews, Gutierrez described in detail his online Viagra business and identified a key supplier from China whom Gutierrez knew as “Bob.” Gutierrez identified “Bob” from a photo of a Chinese individual shown to him by the agents. [Exh 3 at Bate 000259-60]. Gutierrez also identified the individual known to him as “Tommy” who was the source for the single sale of ecstasy to the agents. Exh 3 at Bate 000259-60]. Bob’s email address: a key item of information that Gutierrez provided to the agents pursuant to his cooperation was the email address that Gutierrez used to communicate with “Bob.” That email address was: shiboliangfoods®gmail.com. This email address is set forth in the IM exchanges between Gutierrez and “Bob” that are attached hereto as Exhibits 16 - 19. When it eventually filed an under seal Indictment against “Bob” (true name: Bo Jiang) on February 11, 2010, the very same day that the government filed its under seal indictment against Gutierrez, the government would expressly cite “Bob’s” email address, shiboliangfoods®gmail.com, in the body of the Indictment. (See Exhibit 26 hereto).
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April 4, 2009: Gutierrez Travels Again To The Long Beach Office of ICE And Cooperates In An Undercover Capacity The agents were clearly interested in Mr. Gutierrez’s cooperation. The following week, on April 4, 2009, Gutierrez was interviewed yet again; and once again, as he had done on March 27, Gutierrez traveled to the ICE office in Long Beach. Importantly, the agents were so interested in working with Gutierrez that this time, the agents used him in the pro-active capacity of conducting undercover recorded conversations with targets of their ongoing investigations in the area of counterfeit Viagra and related drugs. Attached hereto as Exhibit 4 is an investigative report (Bates 000261 - 265) that states in pertinent part: On or about April 4, 2009, [ICE agents] Jason DeFreitas and Aaron Lindaman conducted an interview of Gutierrez. The purpose of this interview was to obtain information regarding potential targets and to conduct several recorded phone calls to in furtherance of potentially conducting controlled purchases of suspected counterfeit pharmaceuticals. This interview was conducted at the SAC/LA office located at 5012 W. Ocean Blvd, Long Beach, [Exh 4, Bate 000262]. As detailed in the Exhibit 4 report, while at the ICE office, Gutierrez worked at the direction of, and under the supervision of, the agents as he sent text messages and made monitored recorded phone calls to specific individuals who were in the business of selling counterfeit Viagra. Note that in the report, from pages 000263-265, Gutierrez is referenced by the nomenclature, “CD” [page 000263: “Gutierrez, hereinafter referred to as the CD.”].
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March 27, 2009: Gutierrez Travels To The Long Beach Office of ICE For Another In-Depth Interview The agents’ interest in Gutierrez’s cooperation continued. Attached hereto as Exhibit 5 is an investigative report (Bates 000266 - 268) that summarizes a phone call that Gutierrez initiated to the agents on April 23, 2009, and the follow-up interview conducted the following day – April 24, 2009. On this occasion, Gutierrez reached out to the ICE agent, Jason DeFreitas, to inform him of information he had acquired from his girlfriend, namely that the source of the ecstasy that Gutierrez had negotiated to sell to the agents was a cousin of his girlfriend named “Tommy.” The agents wanted to interview both Gutierrez and his girlfriend. Accommodating the agents’ request, Gutierrez and his girlfriend drove to the ICE office in Long Beach and underwent an in-depth interview regarding “Tommy” so that the agents could initiate an investigation of “Tommy,” which the agents subsequently did. June 12, 2009: Gutierrez Travels To The Long Beach Office of ICE For Another In-Depth Interview Gutierrez continued to demonstrate an ongoing commitment to cooperate with the agents, and they took him up on his offer. Attached hereto as Exhibit 6 is an investigative report (Bates GUG418 - 420) that summarizes a phone call that Gutierrez initiated to the agents on June 11, 2009, and the follow-up interview conducted the following day – June 12, 2009. On this occasion, as he had done on April 23, summarized above in Exhibit 5, Gutierrez initiated a call to the case agent to inform him of key information that Gutierrez had learned through his girlfriend about “Tommy,” the source of the one-time ecstasy sale. The agents were interested in this information and asked Gutierrez to once again travel to the ICE office in Long Beach the following day. Gutierrez again accommodated the agent’s request and went to the ICE office on April 24 for an interview. Exhibit 5 summarizes the interview with Gutierrez regarding information about
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“Tommy” that Gutierrez had obtained in recent days from his girlfriend. The report concludes with this important statement which clearly shows that the agents were very interested in continuing to work with Gutierrez as a cooperator – and particularly, in an undercover capacity: At the conclusion of the interview, agents requested that Gutierrez meet with Nguyen (his girlfriend), wearing an audio recorder, and attempt to illicit incriminating statements from Nguyen in regards to her statements made to “Tommy” disclosing Gutierrez’s arrest and cooperating with law enforcement. [Exh 5 at page GUG420]. Gutierrez agreed to do so, as discussed in Exhibit 7 below. June 23, 2009: Gutierrez Conducts An Undercover Audio Recording Of A Conversation With His Girlfriend At The Request Of The Agents Following up on the June 12 meeting, Gutierrez coordinated with the agents to wear a body wire to record his girlfriend. Attached hereto as Exhibit 7 is an investigative report (Bates GUG421 - 423) that summarizes the undercover meeting conducted on June 23, 2009 wherein Gutierrez met with his girlfriend wearing a body wire at the request of the agents, for the purpose of seeking to elicit incriminating statements from his girlfriend whereby she admitted that she had essentially obstructed justice by forewarning “Tommy” that he might be prosecuted for selling ecstasy due to the fact that Gutierrez had negotiated to sell ecstasy obtained from Tommy to the agents and that Gutierrez was now cooperating.
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June-July 2009: Agents Investigate "Tommy" By Obtaining Cell Phone and DMV Records Attached here to as Exhibit 8 is an investigative report (Bates GUG428 - 430) that summarizes the work done by the agents to request and obtain both cell phone and DMV records for “Tommy.” Clearly, the agents were interested in pursuing “Tommy” as a target for prosecution based on the cooperation provided by Gutierrez. April 2009: Gutierrez Communicates With Specific Targets And Sets Up Dummy Web Sites For The Sale Of Viagra Pursuant To His Ongoing Cooperation The month of April 2009 was a very busy month for Gutierrez as a cooperator for the agents. He made contact with individual targets named “Jeff”, “Bill” and “Johnson”, who were known to Gutierrez as distributors of counterfeit Viagra. Gutierrez made handwritten and typed notes of conversations and meetings with these individuals, which are attached hereto as Exhibits 9, 10 and 11. Additionally, at the direction of the agents, Gutierrez proceeded to set up dummy web sites for the sale of Viagra on Craigs List, the same online listing place where he had previously maintained online Viagra listings for his own business. Examples of these dummy sites are attached here to as Exhibits 12 and 13. The Court is asked to look at the lower right-hand corner of each page to see the date of the online listing (e.g., Exh 12 is 04/26/2009). To avoid having too many exhibits to this position paper, the dummy sites created by Gutierrez for the agents on Craigs List are grouped together as Exhibits 14 and 15 hereto. It cannot be emphasized enough that all of this work was done by Gutierrez at the request of, and at the direction of, the ICE agents, and specifically, ICE agent Jason DeFreitas, who has been the case agent in this prosecution.
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April - December 2009: Gutierrez Conducts Online Instant Message Conversations With Government Target “Bob” Re: Viagra Sales As illustrated herein, the cooperation provided by Gutierrez was wide-ranging. The agents were eager to develop a prosecution against “Bob,” the Chinese individual who had been the source of the counterfeit Viagra for Gutierrez. The agents openly expressed their interest in getting “Bob” to Gutierrez. To assist the agents, Gutierrez maintained his contact with “Bob”, specifically by conducting online conversations known as Instant Messaging (“IM”). Attached hereto as Exhibits 16 - 19 are copies of IM communications that Gutierrez kept in his file and provided to his counsel. Exhibits 16, 17 and 18 are IM communications in April and May 2009, during the same time period in which Gutierrez was traveling on a repeated basis to the ICE office in Long Beach for the interviews discussed above. By July 2009, Gutierrez was represented at the pre-indictment stage by his current counsel. In August 2009, a cooperation meeting was conducted with the government, and the cooperation work with the agents essentially was put on hold pending further directions from the government, which never came. Thus, what we see in Exhibit 19 is a brief IM initiated by Bob, with no response from Gutierrez due to the lack of any guidance from the agents. But Bob was clearly interested in continuing to do business with Gutierrez, and Gutierrez would have gladly continued to cultivate that connection if the agents had provided him with guidance and cooperation-related support.
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August 2009: Gutierrez and His Counsel Conduct A Cooperation Proffer Session With The Government On August 12, 2009, Gutierrez, his current counsel and a defense investigator met at the U.S. Attorney’s Office with AUSA Mark Krause and agents including agent DeFreitas. During the meeting, Gutierrez provided detailed disclosures regarding the contacts that he had already disclosed to the agents and against whom Gutierrez had already provided pro-active cooperation, including “Bob”, “Bill” and “Tommy.” The agent’s report of the meeting, together with the use immunity proffer letter, are attached hereto as Exhibit 20. February 2010: The Government Files Under Seal Indictments Against Gutierrez And “Bob” With Docket Numbers In Consecutive Digits: CR 10-135; CR 10-136; CR The simultaneous filing of under seal indictments on February 11, 2010 against Gutierrez (CR 10-136) and Bo Jiang, aka “Bob” (CR 10-135 and 10-137) – all separated by single digits on the docket – clearly shows the close relationship between the cooperation provided by Gutierrez and the government’s ongoing investigation of “Bob”, the name by which Gutierrez knew him. (See Exhibits 26 and 27 hereto). The PSR expressly acknowledges that the prosecution of Bo Jiang is related to this prosecution of Gutierrez. See PSR at page 2, which states in pertinent part: Related Cases: 10-135: JIANG, Bo - pending BRIDGMON, Abigale - pending GONZALEZ, Francis Ortiz - pending ALEMAN-VALENTIN, Ideliz -pending
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The importance of the information and help provided by Gutierrez in regard to “Bob” is illustrated in part by the fact that Gutierrez gave the agents the email address for “Bob” back in March 2009 and conducted online IM communications with “Bob” (see Exhibits 16 - 19), who used that same email address: [email protected]. The under seal Indictment against Bo Jiang in CR 10-135 expressly states in paragraph 2, on page 1: 2. Defendant JIANG used the email addresses shiboliangfoods®gmail.com and huashunltd®hotmail.com. In refusing to grant Gutierrez a 5K1.1 motion for cooperation, it is possible that if called as a witness at the sentencing hearing, agent DeFreitas may deny that he learned the email address for Bo Jiang from Gutierrez. However, Gutierrez maintains that upon providing this email address to the agent, the reaction from the agent appeared clearly to indicate that the agent did not yet have this information and appreciated receiving it from Gutierrez. By obtaining the email for “Bob”, the agents could track Bob by way of his IP (Internet Protocol) address and place “Bob” under surveillance by intercepting his email transmissions. February 2010: Government’s Filing In CR 10-135 To Keep Indictments As To Bo Jiang Under Seal – One Reason Being To Protect Confidential Informants On February 11, 2010 -- the same day that the under seal indictments were filed against Bo Jiang and Gutierrez – the government filed a Declaration of AUSA Mark Krause in action CR 10-135 (Pacer #14). A copy of the Declaration is attached hereto as Exhibit 28. The purpose of the Declaration is to persuade the District Court to keep the indictments against Bo Jiang under seal. The Declaration states in part in
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paragraph 3 as follows: a. If the indictment remains unsealed, Jiang may be able to obtain a copy of it. If Jiang were to obtain a copy of the indictment, he would learn about the scope of the investigation, may be able to discern the identity of the confidential informants, and likely determine the identity of the undercover agent. This would be problematic for several reasons: i. Should Jiang prematurely determine the identity of the informants, their safety could be placed at risk. [Italics It is a reasonable inference to draw that at the time this Declaration was filed in February 2010, the government was considering Gutierrez as an informant against Bo Jiang, even though Gutierrez had also been indicted. This inference is supported by the fact that the government sat on the Gutierrez indictment for an entire year and did not take any action thereon until January 2011. Thus, the Declaration quoted above appears to support the view that Gutierrez was viewed by the government as a cooperating source against “Bob” (Bo Jiang). January 2011: Government Files Application For Extradition Of Bo Jiang And Cites To Evidence Against Him Based On Informants And Emails – Possible Reference To Cooperation By Gutierrez On January 25, 2011, in the prosecution of “Bob” under CR 10-135, the
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government filed its extradition application (Pacer #19).5 In pertinent part, the extradition application states at par. 16, page 9: 16. The facts of this case will be shown at trial by (1) the testimony of informants and undercover officers; (2) emails, including between Jiang and customers and Jiang and undercover officers. . . [Italics Added] While the government has never conceded this, defense counsel believes that if called as a witness at the sentencing hearing, agent DeFreitas would acknowledge that Gutierrez’s disclosure of the email address for “Bob” assisted the government in being able to intercept email communications by and between “Bob” and his co-schemers, thus providing the government with incriminating evidence against “Bob”, as referenced in the excerpt from the extradition application above. Taken together, the facts summarized above amply demonstrate that Gutierrez has cooperated in a productive and genuine way so as to earn cooperation credit at sentencing. While the U.S. Attorney’s Office has declined to file a 5K1 motion, the defense acknowledges and thanks AUSA Carol Chen for her professionalism in her inclusion of Gutierrez’s cooperation in the government’s sentencing position paper, so that the Court has confirmation directly from government counsel that cooperation was in fact provided. However, the parties are at odds in regard to the nature and extent of the cooperation rendered, and the value of such cooperation for purposes of granting sentencing credit. Due to its length, including numerous exhibits, the extradition application is too large a file size to upload to the CM-ECF system. For this reason, it is not attached hereto as an exhibit.
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Thus, the defense respectfully asks the Court to allow defense counsel to call agent DeFreitas as a witness and further develop the facts pertaining to the subjects discussed in the preceding sections of this memorandum, so that the nature, extent and value of Gutierrez’s cooperation can be fully known to the Court, for the purpose of granting Gutierrez appropriate sentencing credit as a reduction from the advisory guideline range. Post-Offense Rehabilitation: Mr. Gutierrez’s Farm Work Attached hereto as Exhibits 21 - 25 are photos taken by defense counsel’s CJA investigator on November 14, 2011 showing Gutierrez working in the farm fields in Moorpack picking fruits and berries. This type of hard, physical labor represents a huge turnaround in Gutierrez’s life, as he takes full responsibility for his obligation to earn an honest living however he can manage to do so without a college degree in a bad economy, and thus forever put behind him the unfortunate behavior of the past whereby he made money on the Internet selling counterfeit Viagra. These photos provide compelling evidence that Gutierrez poses little, if any, risk of re-offending and in no way whatsoever does he pose a threat to the community. CONCLUSION For the reasons discussed herein, Mr. Gutierrez asks the Court to impose a sentence of one day in custody (satisfied by the time period in the U.S. Marshals’ custody on the day of his initial appearance), and the maximum allowable Supervised Release term of three years [PSR at par. 85, page 14], with the following conditions: six months’ residency in a halfway house; twelve months (one year) of home detention with electronic monitoring;
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30 hours of community service per year over a three- year period of Supervised Release, for a total of 90 hours. The combination of six months in the halfway house and twelve months of home detention totals eighteen months, which is approximately half the low end of the applicable guideline range of 37 - 46 months based on an Offense Level 21 / Criminal History I. This approach of applying one half of the low end of the advisory range comports with the downward variance recommended by the Probation Office, by which Probation applied the higher advisory range of 46 - 57 (not taking into account Safety Valve) and recommends a 24-month sentence, roughly half the low end. The defense asks the Court to apply the same approach, using the Safety Valve-lowered range of 36 - 47 and granting non-custodial alternatives to imprisonment. DATED: November 15, 2011 Respectfully Submitted, By:______________/S/___________ GREGORY NICOLAYSEN Counsel for Defendant, Leopoldo Gutierrez
Generic Drug Prices : A Canada US Comparison Abstract OBJECTIVE. This paper compares the prices of top selling generic drugs in Canada with prices for comparable generic products in the United States. METHODS. We examined the prices of 27 top selling (in 2001) generic prescription medicines in Canada that were marketed in both Canada and the United States. The sample represented approxi
CONFERENCE REPORT Green approaches: a new horizon for future scientists Student voices from the Pan-American Advanced Studies Institute on Green Chemistry Darren Anderson, a Jennifer L. Anthony, b Arani Chanda, c Ginger Denison,* d Melissa Drolet, e Diego Fort, f María Joselevich g and Justin R. Whitfield h aDepartment of Chemistry, University of Toronto,