United States V Cordoba-Hincapie

825 F.Supp. 485 (E.D. New York, 1993)

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Nature of the Case

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Facts

Maria Theresa Cordoba-Hincapie (D) is 38 years old and a Colombian citizen. She arrived at Kennedy Airport on a flight from Colombia. During the United States Customs inspection that followed her arrival, an x-ray examination revealed balloons in her digestive tract. The balloons contained 772.8 grams of heroin. D was born in Columbia and raised there, with her seven siblings. Her mother washed clothes to support the family. D never married and now has three daughters, ranging in age from nine to eighteen. The children's father has not been in contact with the family since 1990. They have no means to support themselves. D has had five years of education. D found occasional work in Colombia as a seamstress and at other menial tasks. She came to the United States in hopes of obtaining an operation to cure the loss of hearing in an ear. She planned to use the proceeds of her crime to pay for the operation and to support her family upon her return to Colombia. The government does not contest her account. D was charged with knowingly and intentionally importing heroin into the United States in violation of 21 U.S.C.§§ 952(a) and 960(b)(1)(A). This requires a sentence of at least ten years of imprisonment for importation of in excess of one kilogram of heroin. D pled guilty, pursuant to an agreement with the government that is now common in this district, to the lesser penalty provision of § 960(b)(2)(A) which carries a minimum sentence of five years imprisonment for 100 grams or more of heroin. That agreement provided that, should the laboratory report reveal the net weight of the heroin to be less than one kilogram, the indictment and plea would be amended at the government's request to charge a violation of § 960(b)(3), which carries no mandatory minimum term of incarceration. The drugs did turn out to weigh less than a kilogram, and thus no statutory minimum applied to her sentence. By allowing a plea predicated on less than 100 grams of heroin, D was able to avoid the harsh required minimum sentences of our drug laws. A Fatico hearing was held, and D stated, that she was told by the person for whom she acted as courier that the opaque balloons he provided contained cocaine. She testified that she believed him, made no further inquiry, swallowed the balloons and departed from Colombia thinking that she was carrying cocaine. D swore that she was not aware of heroin smuggling from Colombia, had not previously imported drugs and did not know other smugglers. Her testimony was credible. Based upon her education, her experience, the facts surrounding her involvement in this crime, the physical resemblance between cocaine and heroin and the long predominance of cocaine in Colombia, the court finds beyond a reasonable doubt that she believed she was importing cocaine.

Libardo Buelvas-Castro's (D1) is almost exactly the same. In both cases, the trial court found that beyond a reasonable doubt both Ds believed they were importing cocaine.