Rudy Martinez Sentencing Hearing

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The following are excerpts from Rudy’s Sentencing Hearing Transcript.  Page and line numbering in the original have been removed to make it read more naturally.  Of particular interest in this case were a number of comments made by the Federal Judge presiding over Rudy’s trial, Judge Milton Shadur.  Judge Shadur frequently commented on, and criticized, the limits of the Court’s discretion under mandatory sentencing guidelines, stating at one point:

“fairness has departed from the system.  It is no longer the operative standard for federal judges … it is a sort of insult to the process to talk of fairness within the context of standards that to such a great extent do not involve considerations of fairness…There is a lot of unrest on the people who sit in my position about these [sentencing] guidelines … It’s very troublesome for anyone who sits where I do … to have that kind of determination so restricted.  Restricted in a large part in a mistaken way because … in a lot of respects it evidences more trust in prosecutors than in federal judges…”

THE COURT: … Anything that you want to say in mitigation of punishment, anything that you want to say as to why I should impose a lesser sentence rather than a higher one, anything that you think would bear on my decision on sentencing is fair game for today’s proceeding.  As you know with these guidelines, the way they operate, there are they not only narrow the Court’s discretion a great deal, but in some cases they take away discretion entirely. But I have to deal with those as we have them.  And I don’t want anybody to feel inhibited or limited in terms of presentation.

[Rudy’s attorney, Richard Kling,  first argued for a downward departure from the mandatory sentence of life without parole, primarily on the basis of “proportional sentencing with the sentences of co-conspirators Cynthia Pluff and Christopher Evans.]

KLING: Judge, then I am going to request – and that is articulated in writing — what the guideline calculations do, according to my reading of the guideline, the guidelines now require a mandatory natural life sentence … I am going to request a departure, because I think it is an appropriate case to downward depart.  And I’m predicating it not only on factors personal to Mr. Martinez, but on the treatment of Cynthia Pluff and on the treatment of Chris Evans, who were if not as responsible or culpable, certainly as close as you can come to being equally culpable with Rudy Martinez, even on their own testimony.  And I am sure that you remember, and I am sure that your copious notes reflect the extent of involvement of Cynthia Pluff, who apparently was able to negotiate a deal with the United States Attorney, who operates under the same guidelines that you do in Minnesota, for some seven-and-a-half years.  And Chris Evans, who apparently dealt in even greater quantities separately with Mr. Martinez…

Mr. Evans, I think is getting some four-and-a-half years, if I recall correctly the deal that he worked with the United States Attorney in this District. On a theory of proportionality of sentencing, I think that this is an appropriate case to downwardly depart.  If the purpose of the sentencing guidelines is to have uniformity of sentences amongst defendants who commit roughly the same types of behavior, and that’s one of the three articulated purposes of the sentencing guidelines is the uniformity, then to not downwardly depart — I am not suggesting for a movement given the jury’s finding and your ruling on my analysis of the guidelines, I am not suggesting for a moment that you downwardly depart to four-years that Mr. Evans is going to get or the seven years that Cynthia Pluff is going to get.  I am suggesting, however, that when Cynthia Pluff and Chris Evans engaged in the type of behavior that they did, as well as James Pluff to a lesser extent than Cynthia Pluff, but certainly to a larger extent, into a great deal of cocaine, and who worked with the same United States of America sentencing guidelines in Minnesota that are applicable in the State of Illinois, that in order to make Mr. Martinez’ sentence somewhat more uniform, and to exceed to the proportionality requirement of the sentencing guidelines that it is appropriate to depart.

Judge, I know the government will argue, and maybe with some legitimacy, Cindy Pluff and James Pluff cut the deal of a lifetime in Northern Minnesota.  And they may even argue that Chris Evans, who was in the Northern District of Illinois, cut the deal of his lifetime with their office here …

Judge, if ever there were a case which merited the type of departure that the sentencing guidelines talk about, when they talk about uniformity of sentencing and proportionality of sentencing, and circumstances unique to the case as a basis for departure, I think that the case of Rudy Martinez is that type of a case.  His conduct, even accepting your analysis of an excess of 150 kilograms of cocaine, that’s certainly a lot of cocaine, his conduct was not tremendously more significant than the conduct of Cindy Pluff, who walks away with seven years, and Chris Evans who walks away with for (sic) and a half.  And to require that Rudy Martinez serve the rest of his life in the penitentiary without any possibility of parole, where people who were almost equally as culpable are going to be out within a matter of a few years, even at the worst scenario if not sooner, I think flies in the face of the intent of the sentencing guidelines, and would be constitutionally impermissible. So my request would be a downward departure …

“his conduct was not tremendously more significant than the conduct of Cindy Pluff, who walks away with seven years, and Chris Evans who walks away with for (sic) and a half.  And to require that Rudy Martinez serve the rest of his life in the penitentiary without any possibility of parole, where people who were almost equally as culpable are going to be out within a matter of a few years, even at the worst scenario if not sooner, I think flies in the face of the intent of the sentencing guidelines…” – Rudy’s attorney, Richard Kling

I think that Rudy Martinez needs to be given a light at the end of the tunnel.  Otherwise we are not locking him up with any view of rehabilitation or any view of eventually restoring him to society. We are just sayings, “Let’s get rid of him and put: him in a warehouse.”  And I think that this is a young man who merits beater treatment than that.  I have dealt with him over the last year or so.  And you know, I see a side of him that you don’t.  I don’t see him out on the street dealing drugs.  I see him hugging his kids and people that care about him over at the MCC when he has visits.  I see somebody who has caring in his heart, and who is a useful human being.  And if it offends my sense of justice, I think it offends the sense of the guidelines where Cindy Pluff and James Pluff and Chris Evans walk out in a few years to say that Rudy Martinez will never walk out again.  So I would ask you to enter a downward departure, because I think it’s an appropriate case.

[Rudy then made his own plea for leniency, particularly focusing on the CCE conviction, which in light of Cynthia Pluff’s involvement in the enterprise and extremely lenient sentence, Rudy found difficult to even comprehend.]

RUDY MARTINEZ: … the only way that I can even make you consider thinking about a downward departure is me explaining to you my actual position in this CCE… I mean here I am supposed to be responsible for all of these people in Minnesota.  The government has said already that Cindy gave me half of her profits…

We all know Cindy Pluff stated, as well as her family, that once the kilo got to Minnesota they would break it down and sell it in ounces.  I didn’t get any profit from those ounces that were sold up there, or the grams or the quarter grams, half-ounces or what not, I never seen any of those profits. So how is Cindy Pluff my partner in this whole continuing criminal enterprise?  Because I dealt with her?  That I agreed to deal with her? Well, in that case I guess I might as well be responsible for Chris Evans, all the people that he sold to.  That’s what I am trying to say.  How can they hold me responsible .of a continuing criminal enterprise for everybody that worked up in Minnesota?  Cindy stated herself that she sold the drugs her — I didn’t tell her how many …

I didn’t tell her how much to charge.  I didn’t tell her how many kilos to take.  She said she did that all herself.  So why am I being held responsible or accountable for all of the actions that are taken up to Minnesota?  They said here in Chicago — in the indictment here in Chicago — we have Glenna Bolster and Chris Evans.  Well, Glenna Bolster was Cindy’s friend. She didn’t work for me. Leo Villar and Omar Bulnes were from Miami, Florida.  They were the suppliers.  They didn’t work for me.  Chris Evans, I mean it’s no secret.  Yes, I did sell cocaine.  I sold cocaine to Chris Evans.  The only one they are saying that worked for me was Camilo Testa.  He’s the only person that worked for me.  I mean his lawyer stated that when we came up the first time and said that I ordered Camilo Testa to go pick up the van on my orders.  I am not the one with the $130,000 home in Schaumburg or the $52,000 car.  I have been accused of owning a nightclub and that proof hasn’t even — they don’t even have any proof of that.  I don’t have a $60,000 farm in Minnesota.  I didn’t buy my mother a $20,000 pick-up truck.  I didn’t spend $15,000 on a vacation cruise.  They didn’t find sixteen airline tickets to Orlando Florida in my house.  I don’t believe my name was on any of those plane tickets.

Who was making the most money?  It’s obvious that Cindy Pluff was making all of the money.  Was I making any money?  Sure I was making — I was making a share too.  But there is no way that we split the profits.  There is just no way.  And I can’t understand how I can be accountable for all of these people when I didn’t know half of the defendants in the Minnesota indictment.  You know, it boggles the mind.

“And I can’t understand how I can be accountable for all of these people when I didn’t know half of the defendants in the Minnesota indictment.  You know, it boggles the mind.” – Rudy Martinez

Camilo Testa here, is a guy that I have known all my life, and he wouldn’t hurt nobody.  But I guess when you are painting pictures of people as the government does — I mean after all they do have the paint brush — they can paint you any way they want.  And we are not in a position to change that right now, except myself, and I am trying to do that.  Camilo Testa is a — my so-called lieutenant — the guy who did all of the dirty work for me and what not, but there was no dirty work here.  There was no violence in this case.  It’s kind of funny if you think about it … but there is no violence in this case.  None whatsoever…

You have Cindy Pluff, April Tapa, Glenna Bolster, “Buddy” James Pluff.  Why are we sitting here?  Why are we facing all the time that we are facing?  Because we decided not to cooperate with the government?  I mean is that the reason we are facing all of this time?  I mean should I have went back there in July or when I originally went to go cop out to the 20 kilos and signed the proffer should I have said more?  I don’t know.  I don’t know…

All these counts are serious, I know that.  But I want to just touch bases on the CCE Count, your Honor, because that’s the count that bothers me the most…

I don’t know what’s going to happen to me today.  I don’t know how the future looks.  I don’t know where I am going to go.  But wherever it is it has to be a hell of a lot better than where I have been.  I have my two sons out there, Julian and Edwin, they are going to be without a father.  I know what it is not to have a father or any role models or anyone to follow.  I don’t know how their lives are going to turn out.  But I brought them into this world — me and Madeline — I am definitely responsible for them no matter where I go.  And I know she can’t take care of them the way I did. I never wanted my kids to be without anything.  I never wanted them to need anything.  Everything they wanted I always got for them.  They are not going to have those things any more.  They are going to have to adjust to a new life style and that’s my fault.  It’s not Madeline’s fault, no one’s fault but mine…

“I don’t know what’s going to happen to me today.  I don’t know how the future looks.  I don’t know where I am going to go.  But wherever it is it has to be a hell of a lot better than where I have been.” – Rudy Martinez

When am I going to get out?  Twenty, twenty-five, thirty years.  I am not going to get out at all.  I can’t answer that question.  Fifty, sixty year’s old.  I hope and pray to God that my kids are even still around at that time.

What I ask you today, your Honor, is not only to see, as Mr. Kling stated, some kind of light at the end of the tunnel for not only for myself but for Camilo Testa, Jose Paz and Leo Villar, because they all have families too.  None of these guys here, Camilo, Jose and Leo, They ain’t bad guys.  We all know who the bad guy is here.  I mean all the fingers have been pointed towards me.  I would like to take responsibility or accept responsibility for what I have done, but I can’t.  I can’t accept responsibility to the CCE.  I just can’t do that, because I wasn’t in charge of all of these people.  All those people sat up there they know that.  They know it.

Your Honor, again I ask if you could depart from these guidelines, and if not it’s understandable.  And I know if you have to give me mandatory life — I know most likely it’s going to come out of your mouth, and you are going to state that, because your hands are tied and there is nothing you can do about it because of this book, and I know that.  I can’t be upset with you.  I can’t be upset with [prosecutors] Mr. Safer or Ms. Pepper …  I can’t be upset with no one but myself.  You see I didn’t ask these people to bring me here.  I put myself here.  Some people will say right now, “Well, I hate to be in Rudy Martinez’ shoes because he is getting ready to go away for the rest of his life.”

I think about it sometimes, your Honor, and I would hate to be in your shoes, your Honor, because it must be hard for a man to pass judgment on someone, and maybe he does want to give him that time, and maybe he doesn’t.  But I pretty much know it’s out of your hands, and that must be an awful feeling.

Your honor, I am truly sorry for what I have done.  I ask that you again try to find some way to have leniency on my sentence, as well as Camilo and Jose Paz and Leo Villar.  I am truly sorry. I am sorry for the families …

Your Honor, I am tired, I haven’t got that much sleep in the last three days.  I am nervous.  I don’t know what’s going to happen to me.  Once again I am sorry, and I am ready to be sentenced.  That’s all I have to say.

[At the conclusion of Rudy’s testimony, one of the prosecutors argued that a sentence of mandatory life without parole was appropriate]

MR. SAFER: With regard to Mr. Martinez … Initially the proportionality to Cindy Pluff and Chris Evans, one practical question that — addressed to some extent by Mr. Martinez, but to no extent by Mr. Kling, and a problem with a legal proportionality question — is that the defendants with whom Mr. Martinez is being compared were convicted of different crimes than Mr. Mr. Martinez was convicted of the continuing-criminal-enterprise crime, which statutorily for this quantity of drugs requires a sentence of mandatory life, not withstanding the guidelines on the conspiracy count. With regard to the continuing-criminal-enterprise count under Section 842(b)(2)(A), (sic) it says that: “Any person who engages in a continuing criminal enterprise shall be — shall be imprisoned for life, and fined in accordance with Subsection A of this section, if (1) such person is the principal administrator, organizer or leader of the enterprise, or is one of several such principal administrators, organizers or leaders and, (2) (A) the violation referred to in this subsection (d)(l) of this section involves at least 300 times the quantity of the substance described in Subsection 84l(b)(l)(B) of this title.”

Of course that quantity is one-half of a kilogram.  And therefore , 150 kilos — Congress has already passed on that question — justifies – – in fact requires in their mind, and thus in law – – a sentence of life imprisonment.  And that is a problem with this proportionality argument as a threshold matter.

With regard, your Honor, to a larger of a more amorphous fairness question I will not stand before this Court and attempt to justify a sentence of seven-and-a-half years for Cynthia Pluff.  Her culpability in this is – the Court is well aware of her culpability in this conspiracy.  Nonetheless, she did — she was convicted first of the conspiracy count and not of a continuing criminal enterprise count.  Secondly, she did cooperate and provide substantial assistance to the government as that term is used under 5Kl.l.  And that does distinguish her and her sentence from Mr. Martinez.

With regard to Mr. Evans.  Mr. Evans is in an entirely separate situation and an entirely different situation.  First of all, he has not been sentenced.  And the agreement has not yet been finally accepted.  But more importantly his situation was totally different because the provable evidence on Mr. Evans was, from a federal perspective, extremely slight.  It was one-half kilogram of cocaine.  That is what the government could establish Mr. Evans dealt.  That puts him in an entirely different category than somebody who has been indicted by the government, for vast amounts of drug dealing, and then cooperates, and then is entitled to a reduction.

Here we have the situation of a person who comes in and with only — with a five-year exposure — and then under a proffer agreement says — which requires him to be truthful says, “And I dealt hundreds of kilos with other people.”  How is that to be treated? I mean clearly that evidence is inadmissible at Court and he cannot be convicted with that evidence. Just as clearly that conduct cannot be ignored, and so it was not.  It was dealt with.  It was taken into account, but certainly not kilo for kilo as it if were hard evidence that the government could establish at trial.  It was taken into account, and he was given a reduction in his sentence based upon a fair analysis of the quantity of drugs that he dealt. The quantity of drugs that the government could establish at trial, independent of his proffer, and the value of his cooperation.  His cooperation also was quite different from Ms. Pluff’s or anybody else in this case, in that he wore a concealed tape-recorded, which — and not only in this case but in several other cases which always entails a physical danger to the confidential informant.

THE COURT: Well, Mr. Safer, it seems to me we get on an awfully uncharted sea whenever we start to try to make that kind of comparison.  That used to be used to be – a much-more available kind of analysis, a much-more available kind of discussion when it was possible for judges under the older system to engage in what I have always characterized as “lateral justice,” where the range that was available to the sentencing court was from — as the statutes read — from zero to X number of years.  Under those circumstances the Court could take into account factors of that nature.  Now it becomes extraordinarily difficult.  You will notice that the argument that Mr. Kling had made, very eloquently, was that that factor ought to be taken into account in terms of the potential for departure.  You have made the point that departure is really not in it because of the statute, which is the thing that I was going to address later on.

SAFER: And that is why I address it under the rubric of the fairness argument as opposed to a legal question.

THE COURT: Well, for better or worst, fairness has departed from the system.  It is no longer the operative standard for federal judges.  And as a result in a way it is sort of an insult (and I not faulting you for this) — it is a sort of insult to the process to talk of fairness within the context of standards that to such a great extent do not involve considerations of fairness.  That is, if the Court is obligated to apply standards — you know, in the state system there are offenses that carry a specified sentence.  And the court simply — you know, you push the button and that’s what comes out at the other end.  In that kind of regime fairness is not a factor.  It is simply a question of what the legislature has decided.  In this case Congress has made a decision.  And so the idea of asking is it fair in comparative terms or otherwise unless it is possible to characterize the statute as invalid, as unconstitutional, that’s not a that is available to the Court…

“Well, for better or worst, fairness has departed from the system.  It is no longer the operative standard for federal judges.  And as a result in a way it is sort of an insult (and I not faulting you for this) — it is a sort of insult to the process to talk of fairness within the context of standards that to such a great extent do not involve considerations of fairness.” – Judge Milton Shadur

MR. SAFER: And, your Honor, without belaboring that point I will — I would, with the Court’s indulgence, briefly address why this is ‘an appropriate sentence in this case… And Mr. Martinez said that there was no dirty work to be done in this case.  There was no violence.  That Mr. Testa didn’t have to do that.  No dirty work.  No violence, except, your Honor, to the fabric of society.  I don’t have to recount for this Court, and will not, the damage that drugs are doing to the fabric of this society.  To analogize to recent events in our City, if the devastation rocked by cocaine travelled in the subterranean tunnels of our — under our society — the floods would not be confined to the basement, they would reach the roofs.  And this Court and those of your Honor’s brethren are flooded with drug cases.  And so that drug trafficking has almost become common place, and we have become almost immune to the horror of drugs …

“Mr. Martinez said that there was no dirty work to be done in this case.  There was no violence.  That Mr. Testa didn’t have to do that.  No dirty work.  No violence, except, your Honor, to the fabric of society.  I don’t have to recount for this Court, and will not, the damage that drugs are doing to the fabric of this society.” – Prosecuting attorney

He made the conscious calculated choice to make his fortune selling drugs.  He ran the organization, whose business week after week, month after month was to distributed kilos of cocaine.  It was not a short-term decision.  And he had the opportunity to reevaluate that decision everyday of those two-and-a-half years.  But he fell in love with the trappings of his business and continued to run it.  And even in the final days of his operation, your Honor, after he knew that the police were investigating his operation, and he believed that his phone was tapped by the government, Mr. Martinez was undeterred.  If you recall, he was expecting that delivery of 20 kilograms of cocaine, and he would not let the police or anyone else stop him from reaping the profit of those that delivery.  He said in a tape-recorded conversation, “I’ve got to get another place together.  I am not going to stop working because of this stuff.  I’ve got to work, man.”  That type of conscious decision to work in illegal activities made repeatedly, even in the face of police intervention, is what warrants the most severe sentence available.

But the sentence is important for another reason, your Honor.  The decision that Mr. Martinez made when he got into this business, is the decision being made today by young and intelligent and ambitious young men and women.  And Mr. Kling and Mr. Martinez points out Mr. Martinez’ background.  And unfortunately many children today are faced with the same or worst in terms of circumstances.  And Rudy Martinez’ expensive suits and stretch limousines and $10,000 parties, as he bragged about on the tapes, and his ability to get a table at Shaw’s without waiting was there for everyone to see.  And that lifestyle, your Honor, is a siren song to some children and to many people who saw Mr. Martinez as a role model, and who think that drug business, as Mr. Martinez did, is a lot easier than studying hard in school and working with your nose to the grindstone to get out in a “square job,” as Mr. Martinez calls it.

This sentence is the only counterbalance to that siren song.  Perhaps if those same persons who admired Rudy Martinez’ suits and cars and ability to get into fancy restaurants see and understand that the day he was caught by the law was the last day of freedom that he will ever spend, and that is a sad notion.  There is a chance that when they are pondering the same decision that Mr. Martinez had the make, they are going to say “No. The price is too great. The risk is too high.” Maybe they will say, as I wished Mr. Martinez had, because it is undoubtedly true, “My kids need me more than they need the things that drug money can buy.”  And, your Honor, if the message reaches someone from this courtroom then at least something positive will become of this business.

[The court then rendered its verdict, sentencing Rudy to spend the rest of his life in prison, with no possibility of parole.]

THE COURT: Now the remaining thing that’s for me is not that, but the sentencing business.  There is a lot of unrest on the people who sit in my position about these guidelines.  Not long ago I accepted an invitation to speak at the University of Chicago Loop Luncheon, and I chose as my topic  … “Federal Criminal Justice: Guidelines or Straitjacket.”  It’s very troublesome for anyone who sits where I do, and who has continuously, as I think all over us try to do, made the effort to deal with what I mentioned as lateral justice, to have that kind of determination so restricted.  Restricted in a large part in a mistaken way because it sort of reflects — and with no offense intended to the prosecutors here — in a lot of respects it evidences more trust in prosecutors than in federal judges, but that’s a choice that Congress has made, and there is not much we can do about that.

“There is a lot of unrest on the people who sit in my position about these guidelines.  Not long ago I accepted an invitation to speak at the University of Chicago Loop Luncheon, and I chose as my topic  … “Federal Criminal Justice: Guidelines or Straitjacket.”  It’s very troublesome for anyone who sits where I do … to have that kind of determination so restricted.  Restricted in a large part in a mistaken way because … in a lot of respects it evidences more trust in prosecutors than in federal judges, but that’s a choice that Congress has made, and there is not much we can do about that.” – Judge Shadur

And I don’t want to be misunderstood by what I have said here.  You know the sentencing guideline system has narrowed the discretion of the sentencing judge to a great extent.  Sometimes it leaves no discretion except for the possibility that — for example, Mr. Kling identified of departing downwards.  But even that, in the situation such as this, is something that’s not available where Congress had made a choice …

With respect to count 2 [CCE] it’s clear that the court simply does not have discretion.  Mr. Safer is correct that the statute so long as there is more than 150 kilos of cocaine requires a life sentence that’s what Section 848(b)(2)(A) requires — and accordingly that’s the sentence that is imposed with respect to that …

Mr. Martinez, I hope that you do not misunderstand the comment or comments that I made about the nature of the sentencing process as somehow excusing, or as somehow indicating less than a realization of the enormous seriousness of the offenses.  Because there just isn’t any question that someone who made the choices that you did has affected not only the innocent people in your family to whom you referred, but more importantly in the society sense has affected the lives of an enormous number of people, the consumers of the drugs that are involved here.  We are fighting what the administration likes to call a “War on Drugs.”  It’s a war in that sense that I am afraid was lost before it began.  But one reason that it was lost is that because there is such profit in the trade, and because it becomes too easy to make the kind of choice that you made, something that can’t ever be treated as being less than the serious factor we have dealt with.  And I can understand why Congress has made the choices that it has, although in a lot of respects I do not agree with the method that has been chosen…

Childhood and Background

Drug Dealing and Arrest

The Plea Deal

Reflections

Sentencing Hearing