Wednesday, December 11, 2013

Robert Evon Pleads Guilty to Drug Trafficking in NY Federal Court

Robert Evon of Maine used soda vending machines to smuggle cocaine across the country
Now that's a Coke Machine!
Robert Evon, the Portland, Maine man accused in an international cocaine trafficking conspiracy, entered a guilty plea in the Northern District of New York on December 3, 2013. Sentencing was set for April 4, 2014. The plea documents revealed some interesting details about the case. All my coverage of the case is collected here.

Evon is the former owner of Port City Music Hall, a Portland, Maine concert venue. In July of this year, he was indicted by a New York federal grand jury on conspiracy to distribute 5 kg or more of cocaine.  He was arrested in Portland and extradited to Syracuse for further proceedings. Once in New York, Evon was denied bail. The case was then scheduled for a guilty plea on 12/3/13.

For those who care about this kind of thing, the text of the minute entry for the plea hearing is reproduced in full below:
TEXT MINUTE ENTRY for Change of Plea Hearing held on 12/3/13 before Judge Glenn T. Suddaby as to Robert Evon (1): Defendant is advised of his constitutional rights and the consequences of pleading guilty. Defendant is sworn and questioned. Defendant pleads guilty to count 1 of the Indictment and admits to forfeiture of property located at 374 Spring Street, Portland, ME in lieu of money judgment. Government states a factual basis for the plea. Maximum possible penalties are stated for the record. Court accepts plea of guilty to Count 1 of the Indictment. Plea agreement is incorporated into the record. Sentencing is scheduled for 4/4/14 at 10:00 a.m. in Syracuse, New York. Court orders a Presentence Report from Probation. Defendant is remanded to USMS. APP: Geoffrey Brown, AUSA; Kenneth Moynihan, Esq. for Defendant. CRD: L. Welch (Court Reporter: Eileen McDonough) (lmw) (Entered: 12/03/2013)

Evon's Plea Agreement

The plea agreement is 20 pages long and mostly boilerplate. You can read the whole thing here. The best stuff is in paragraph 5 which lays out the factual basis for the plea. Here is an excerpt:
On February 22, 2012, the defendant had Kenneth Irving rent a large box truck, drive to a warehouse in Elizabeth New Jersey and pick up two soda vending machines that the defendant had arranged to have filled in Los Angeles with 78 kg of cocaine. The defendant agreed to pay Irving $5000 for delivering the cocaine from New Jersey to White River Junction Vermont. The defendant previously arranged for the soda machines to be shipped from Los Angeles to New Jersey with a false bill of lading that was provided to the defendant by co-conspirator A. Irving called an individual located in Albany, New York, who, unbeknownst to him, was an undercover DEA agent, to arrange for the further delivery of the narcotics. The defendant rented the storage facility at 220 holiday Dr., White River Junction, Vermont in another person's name for the purpose of storing the vending machines and cocaine. The undercover agent arrived at 220 Holiday Dr. and Irving retrieved six large duffel bags, which had been secreted inside the two soda vending machines, and delivered them to the undercover agent.
Other import details from the plea agreement include:
  • The government will recommend a three level reduction in the offense level for acceptance of responsibility. That means the sentence will be reduced for pleading guilty rather than going to trial.
  • A 10 year mandatory minimum sentence still applies.
  • Evon and his wife agree to forfeit their home on Spring Street in Portland, Maine. The home is valued at about $575,000 yet the government agrees to accept that property in full satisfaction of the the $2.34 million dollar forfeiture claim. You can review that forfeiture agreement here.
  • Evon waives his right to appeal a sentence that does not exceed 120 months.

So What will the Sentence Be?

The guideline sentencing range for this offense with the 3 point acceptance reduction and a criminal history of 1 is 135-168 months. The government usually sets the appeal waiver at a term that is equal to or longer than the sentence they will request, so it's pretty likely then prosecutors will recommend a sentence of 120 months or 10 years. The defense will likely argue that Evon should get an even lower sentence, something below the mandatory minimum. That's only possible if the "safety valve" criteria are met.

Federal Safety Valve Sentencing

U.S. Sentencing Guideline §5C1.2 is often called the "safety valve" and it allows a judge to sentence below the minimum if the court finds:
  1. The defendant does not have more than 1 criminal history point (one misdemeanor with a sentence of less than 60 days in jail), 
  2. The defendant did not use violence or threats of violence or possess a firearm or other dangerous weapon 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 21 U.S.C. § 848; and 
  5. 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.

The defense is free to make this argument and the judge is free to reject it. Evon has a better shot if the government agrees with a below minimum sentence and 18 USC § 3553(f), allows the government to request safety valve treatment. That's probably not going to happen in this case.

The way the government drafted the plea agreement makes it really hard for Evon to satisfy the safety valve factors. It's pretty clear from paragraph 5 that Evon was an organizer who set up the scheme, directing and employing others to accomplish components of the operation. If he had that kind of role, he is not safety valve eligible and without the safety valve, he gonna get at least a decade in prison.

Check out further coverage of the plea from +Scott Dolan at the Portland Press Herald. Unlike me, he managed to publish something last week, right after the hearing.