Full opinion text
MEMORANDUM AND ORDER WOLF, District Judge. I. PROCEDURAL HISTORY AND SUMMARY As described in detail in this court’s decision concerning Raymond J. Patriarca’s initial sentencing, the defendant has pled guilty to conspiring to violate, and violating, the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1962(c) and (d), and to several violations of the statute prohibiting interstate travel in aid of racketeering, 18 U.S.C. § 1952 (the “Travel Act”), which were also alleged to be RICO predicates. See United States v. Patriarca, 807 F.Supp. 165 (D.Mass.1992); rev’d sub nom, United States v. Carrozza, 4 F.3d 70 (1993) (hereinafter cited as “Patriarca 4 F.3d at -”), cert. denied, — U.S. -, 114 S.Ct. 1644, 128 L.Ed.2d 365 (1994). This court originally sentenced Patriarca to serve 97 months in prison. Patriarca, 807 F.Supp. at 209. In calculating the United States Sentencing Guidelines (the “Guidelines”) for the defendant’s RICO violation, the court held that his Base Offense Level should be computed on the basis of the underlying racketeering activities with which he was charged in the indictment and any relevant conduct relating to those charged predicate acts. Id. at 168, 188, 193. The court found that none of the seven crimes the government argued constituted relevant conduct met this standard. Id. at 168, 193. Thus, with an enhancement for Patriarca’s role as the Boss of the Patriarca Family of La Cosa Nostra (“LCN”), defendant’s Total Offense Level was 26, his Criminal History Category was I, and the Guidelines required a prison sentence of 63 to 78 months in the absence of a departure. Id. at 168. With regard to the departure issues, the court found that the government had not proved by a preponderance of the evidence its contentions that Patriarca: knew about or authorized the killings of James Limoli and Ted Berns; conspired with, aided or abetted, or profited from the narcotics activities of his co-defendant Robert Carrozza; authorized an attempt to murder his co-defendant Vincent Ferrara; or participated in the harboring of LCN fugitive Alphonse Pérsico. Id. at 203-09. The court did, however, find that the government had adequately established for departure purposes one matter that the parties had not discussed at the numerous sentencing hearings — Patriarca’s alleged involvement in the drug activities of Salvatore Michael Caruana and the related claim that the defendant illegally assisted Caruana when he became a fugitive from federal drug charges. Id. at 205-06. Recognizing that the Caruana matter had received only cursory attention from the parties, and thus might have been misunderstood, the court stated that if, on appeal, Patriarca’s relationship with Caruana was held to be potential relevant conduct, with the possibility of dramatically increasing the defendant’s Base Offense Level, the court would consider further on remand whether to permit him to focus on and dispute the court’s analysis of the Caima-na matter. Id. at 205, n. 3. The government and the defendant each appealed. Although they were germane to the issue of departure, independent of the question of relevant conduct, the government did not challenge this court’s factual findings. See Patriarca, 4 F.3d at 73 (“The government acknowledges that Patriarca had direct personal involvement only in the Caruana drug trafficking and the harboring of Carua-na as a fugitive.”). The Court of Appeals for the First Circuit found, however, that the government was correct in its contention that this court “erred when it limited relevant conduct to conduct in furtherance of the RICO predicate acts charged against Patriarca.” Id. at 74. Rather, the Court of Appeals held that: the term “underlying racketeering activity” in § 2E1.1(a)(2) means simply any act, whether or not charged against the defendant personally, that qualifies as a RICO predicate act under 18 U.S.C. § 1961(1) and is otherwise relevant conduct under § 1B1.3. Id., at 77 (citation omitted). As the Court of Appeals recognized, pursuant to § 1B1.3 a defendant is responsible for “acts of coconspirators [which] were in furtherance of the jointly undertaken activity and were reasonably foreseeable to the defendant.” Id. at 83. It held that: “The seven acts proffered as relevant conduct must be reexamined in light of this standard.” Id. Among other things, Patriarca challenged on appeal this court’s finding concerning his association with Caruana and decision to depart upward based on them. Id. at 83. The Court of Appeals, however, did not decide these challenges. Id. Rather, it stated that: “Because on remand the court will decide if the Caruana conspiracy is relevant conduct for RICO sentencing purposes, its utilization as a basis for upward departure need not be considered here and is vacated.” Id. The defendant asked the Supreme Court to hear this case before it was remanded for resentencing. His petition for certiorari was denied. Patriarca, — U.S. at -, 114 S.Ct. 1644 (1994). Upon remand the government and the defendant agreed that three of the seven crimes originally alleged to be relevant conduct — the alleged harboring of Caruana and Pérsico as fugitives and the alleged authorization of an attempt to murder Vincent Fer-rara — were not RICO predicate offenses under 18 U.S.C. § 1961(d) and, therefore, could not, under the First Circuit’s ruling, constitute relevant conduct. See Patriarca, 4 F.3d at 76-7. Accordingly, the parties and the court prepared for hearings to address the four remaining matters alleged to be relevant conduct: the Limoli and Berns murders, Robert Carrozza’s drug dealing, and Patriar-ca’s relationship to Caruana’s marijuana trafficking and attempt to extort Frank Lepere and Kevin Dailey. As the hearings were about to begin, the government obtained the cooperation of Antonio Cueinotta, who was understood to be a member of the Patriarca Family and the defendant’s driver from 1982 to 1988. For the reasons described in detail in a December 7, 1994 Memorandum and Order, the court decided that Cueinotta would be permitted to offer evidence on issues expressly included in the remand, but that the court would not reopen and relitigate facts it previously found which were not challenged by the government on appeal or allow the government to seek to prove at the resentencing any additional alleged instances of relevant conduct. See also United States v. Bell, 988 F.2d 247 (1st Cir.1993); United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.) cert. denied 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991); United States v. Wogan, 972 F.2d 337 (1st Cir.1992) (unpublished disposition, 1992 WL 197368). Patriarca subsequently moved to withdraw his plea of guilty. The court has the discretion to permit a plea to be withdrawn for “any fair and just reason.” Fed.R.Crim.P. 32(e). The defendant, in essence, asserted that the government had misled him by not putting him on notice prior to his plea that it would assert that uncharged murders and other matters which could dramatically affect the Guideline range for his sentence constitute relevant conduct. He relied, in part, on the observation by the Court of Appeals for the First Circuit that “sandbagging is never to be condoned.” United States v. Brewster, 1 F.3d 51, 54 (1st Cir.1993). The government opposed this motion. The defendant subsequently filed a motion to bar further sentencing proceedings on Double Jeopardy grounds. The government also opposed this motion. Rather than address the pending motions immediately, the court asked the Probation Department to prepare an addendum to the Presentence Report to address the four remaining alleged instances of relevant conduct. The parties were given an opportunity to object to the Probation Department’s findings and analysis. This is the standard procedure followed in virtually every case on sentencing and in many cases which are remanded for resentencing. The Probation Department prepared an Addendum. The Probation Department proposed certain findings concerning relevant conduct and related issues which, if adopted by the court, would result in a Guideline range of 121 to 151 months imprisonment. See Addendum to Presentence Report of 1992, Revised Mar. 30,1995. The government objects to many of the findings of the Probation Department. The government asserts that the defendant’s Total Offense Level is 43. Consequently, the government contends that the court has.no discretion and must impose the maximum possible sentence for the offenses to which the defendant has pled guilty, consecutive sentences totalling 65 years, because under the Guidelines Level 43 requires a sentence of life in prison. The defendant also objects to the Probation Department’s analysis and calculations. The defendant asserts that his Total Offense Level is, at most, 26 and his Criminal History Category is I. If this were true, the Guideline range for his incarceration would be 63 to 78 months. The defendant has now served about 68 months. He requests that, in any event, he be given no more than the 97 month sentence he previously received. In June 1995, the court denied the motion to dismiss based on double jeopardy grounds. See June 16,1995 Transcript. The defendant decided not to appeal that decision prior to his resentencing. The court was then informed that the defendant would not seek a ruling on his motion to withdraw his plea prior to his resen-tencing. He has not, however, withdrawn the motion. Accordingly, the court again scheduled hearings relating to Patriarca’s sentencing. The government represented that it would rely on the information contained in its proffers and submissions since September 1994, and did not seek to present the testimony of any witnesses. See June 9, 1995 letter from Assistant U.S. Attorney Jeffrey Auerhahn; Sept. 14, 1995 Transcript. The defendant also stated that he believed that the sentencing hearing could be conducted without testimony, but reserved the right to request it if the credibility of Cucinotta or other witnesses was deemed by the court to be critical to the determination of a fact which was dispositive of a question of relevant conduct. See June 9, 1995 letter from Martin Weinberg, Esq.; Sept. 14, 1995 Transcript. Patriarca also maintained his position that he would, among other things, be entitled to an opportunity to confront the witnesses against him if the court determined that certain events constituted relevant conduct and dramatically increased the Guideline range for his sentence. Id. The court agreed to conduct the sentencing hearing on the basis of the parties’ submissions, reserving the right to have one or more witnesses called if the court deemed it necessary to resolve an issue of credibility concerning a material fact. Sentencing hearings were- held on September 22 and 27, 1995. Upon careful consideration of the voluminous evidence, the numerous memoranda, and the comprehensive arguments of counsel, the court finds, for the reasons described in detail in this Memorandum, that the government has proven by a preponderance of the evidence that two crimes constitute relevant conduct of Patriarca. These are: (1) the attempted extortion of Lepere and Dailey by Caruana in 1981, for which no adjustment for the defendant’s role in the offense is appropriate (see § IV); and (2) William Grasso’s crime, in 1986, of being an accessory after the fact to Caruana’s murder of Berns, for which Patriarca is entitled to a four level reduction for his status as a “minimal” participant (see § VIÍ). The government has not proven that any other crime constitutes relevant conduct. In reaching these conclusions, as instructed by the Court of Appeals for the First Circuit, Patriarca, 4 F.3d at 76, this court has decided the scope of the joint criminal activity explicitly or implicitly agreed to by Patriarca jointly with others and whether certain criminal conduct was a reasonably foreseeable consequence of such activity. See § III, infra. With regard to these issues, the evidence demonstrates that during the period of the events alleged to be relevant conduct, from 1979 to 1986, direct drug dealing by members of the Patriarca Family was neither within the scope of the criminal activity that was explicitly or implicitly agreed to by Patriarca jointly with others, nor was it a reasonably foreseeable consequence of such criminal activity. Rather, such criminal conduct then violated the rules and prior practices of the Patriarca Family, and a reasonable person in Patriarca’s position would not, at the relevant times, have been able to know in advance with a fair degree of certainty that members were, among other things, engaged in the possession of cocaine with intent to distribute it. As also described in Section III, murder was a crime within the scope of defendant’s joint agreement to undertake criminal activity. During the pertinent period, however, the rules of the Patriarca Family required that the Boss personally approve any murder proposed to be committed by a member. The defendant succeeded his father as Boss in 1984. At all times germane to the relevant conduct analysis, it was reasonable for Patriarca to believe that the rule regarding murder was being followed. As described in Section IV, the government has not proved that Patriarca is responsible for the smuggling or distribution of marijuana by Caruana between 1979 and 1983. The electronic surveillance evidence which the court considered and misinterpreted at the original sentencing relates to Ca-ruana’s unsuccessful attempt to extort $1,000,000 from Lepere and Dailey. Carua-na initiated the attempted extortion independently, without consulting Patriarca. Lepere and Dailey refused to pay Caruana and, at some point, threatened to blow-up Caruana’s ■home and family. They also claimed to be protected by the Winter Hill Gang, which was associated with Gennaro Angiulo, the head of the Boston faction of the Patriarca Family. As a result, Caruana, who had a relationship primarily with the then ailing Raymond L.S. Patriarca, enlisted the defendant’s assistance. Patriarca, among other things, participated in a meeting to promote the attempted extortion and to try to assure Caruana’s safety. Although it has not been proven that Caruana or Patriarca obtained any money, this effort constituted a completed attempt to extort, which is a violation of 18 U.S.C. § 1956, and therefore, is not subject to a reduction in Offense Level under § 2X1.1. Neither an upward nor a downward adjustment for Patriarca’s role in this offense is warranted. As discussed in Section V, the government has not proven that Carrozza’s possession of cocaine with intent to distribute it was within the scope of the criminal activity Patriarca agreed tó undertake jointly or was a reasonably foreseeable consequence of such activity. As described in Section VI, Limoli’s murder in 1985 does not constitute relevant conduct. Limoli’s murder was ordered by Fer-rara because Limoli stole cocaine belonging to Antonio “Spueky” Spagnolo, another member of the Patriarca Family. Patriarca did not know of, or agree to, Spagnolo’s violation of the Family’s rule against members dealing drugs. Accordingly, Spagnolo’s drug activity was outside the scope of the joint criminal activity Patriarca agreed to undertake. In addition, as in 1992, the court again is persuaded that Patriarca was not asked to authorize the Limoli murder and did not know about it. See Patriarca, 807 F.Supp. at 204. Thus, the killing of Limoli also violated the Patriarca Family rule prohibiting members from committing murder without the authorization of the Boss. The evidence indicates that in 1985, this violation was unprecedented. Therefore, in view of all of the relevant circumstances, it has not been shown that a reasonable person, knowing what Patriarca knew at the time, would have foreseen the murder of Limoli with a fair degree of certainty. In these circumstances, the Limoli murder is not relevant conduct because, while it involved members of the Patriarca Family, it was not a crime committed in furtherance of joint criminal activity the defendant agreed to undertake and was not a reasonably foreseeable consequence of such activity. As discussed in Section VII, the court finds that in 1986, Caruana was a fugitive from the marijuana charges pending against him in Boston. He was being harbored in Connecticut by the Patriarca Family. Grasso was the Family’s link to Caruana. On or about August 28, 1986, Caruana kidnapped and murdered Berns in a jealous rage generated by his belief that Berns was having an affair with Caruana’s wife. The court once again finds that Patriarca did not authorize or know about Caruana’s plan to murder Berns. See Patriarca, 807 F.Supp. at 206-7. That crime was not committed in furtherance of Patriarca’s agreement to commit crimes jointly with Caruana. Nor was it a reasonably foreseeable consequence of any criminal activity within the scope of Patriar-ca’s agreement with Caruana. On August 31, 1986, Caruana told Grasso for the first time of Berns’ murder and asked Grasso for assistance in burying the body. It is not proven that Grasso consulted Patriarca. Rather, acting on his own, Grasso arranged for Berns’ burial on September 7, 1986. Accordingly, Grasso was an accessory after the fact to Berns’ murder. In committing this crime, Grasso was acting in furtherance of criminal activity he and Patriarca had jointly agreed to undertake — the harboring of Caruana as a fugitive. Although Patriarca did not know about or authorize Grasso’s involvement in the burial of Berns, such assistance would have been foreseeable to a reasonable person in Patriarca’s position. Thus, Patriarca is responsible at sentencing as an accessory after the fact. He is entitled, however, to a four level reduction in his Offense Level because of his “minimal” role. As discussed in Section VIII, neither an upward nor a downward departure is justified in this case. For the reasons described in Section IX, the defendant’s Total Offense Level is 30 and his Criminal History Category is I. The Guideline Range for his imprisonment is, therefore, 97 to 121 months. A final sentencing hearing will be held at 10:00 a.m. on December 26, 1995. The parties will be provided an opportunity to address where, within the Guideline range, sentence should be imposed. The defendant will be afforded an opportunity to speak. The defendant will then be sentenced. II. THE APPLICABLE STANDARDS A. The Elements of Relevant Conduct Prior to addressing the discrete issues presented on remand, it is important to recognize the relevant questions and the standards by which they must be decided. In its current form, § lB1.3(a)(l)(B) provides, in part, that relevant conduct includes “all reasonably foreseeable acts and omissions of others in furtherance of the [defendant’s] jointly undertaken criminal activity, that occurred during the course of the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense ...” (1994). In remanding this matter for resentencing with regard to relevant conduct, the Court of Appeals for the First Circuit has stated that: On remand here ... the district court must determine (1) the scope of the joint criminal activity explicitly or implicitly agreed to by Patriarca jointly with others; (2) whether the criminal acts proffered as relevant conduct were in furtherance of this jointly undertaken criminal activity; and (3) whether the proffered acts were reasonably foreseeable in connection with that criminal activity. These determinations will fix the relevant conduct under § 1B1.3 for purposes of calculating the offense level under § 2E1.1. Such determinations are, of course, all inherently fact-bound. Patriarca, 4 F.3d at 76. Although the Court of Appeals for the First Circuit has not expressly decided this issue, see United, States v. Bianco, 922 F.2d 910, 913, n. 2 (1st Cir.1991), its formulation of the relevant questions in this case indicates that a defendant’s liability for sentencing purposes is the same as his liability for a substantive offense committed by a coconspirator under the principles described by the Supreme Court in Pinkerton v. United States, 328 U.S. 640, 646-48, 66 S.Ct. 1180, 1184-85, 90 L.Ed. 1489 (1946). See United States v. Lanni, 970 F.2d 1092, 1093, 1095 (2d Cir.1992); United States v. Tisdale, 952 F.2d 934, 938 (6th Cir.1992); United States v. Martinez, 987 F.2d 920, 925-26 (2d Cir.1993); United States v. Perrone, 936 F.2d 1403, 1416 (2d Cir.), clarified on other grounds, 949 F.2d 36 (2d Cir.1991); United States v. Martinez, 924 F.2d 209, 210, n. 1. (11th Cir.1991); United States v. Garcia, 909 F.2d 1346, 1350, n. 1 (9th Cir.1990); see also United States v. O’Campo, 973 F.2d 1015, 1024, n. 7 (1st Cir.1992) (“The use of ‘reasonable foreseeability’ language in the Application Note ... is an apparent allusion to Pinkerton ”); United States v. Garcia, 954 F.2d 12, 15 (1st Cir.1992) (citing Pinkerton, in support of the proposition that: “In the context of a conspiracy, the proper inquiry in determining whether_additional acts should be included as relevant conduct is whether those acts were reasonably foreseeable by the defendant and committed in furtherance of the conspiracy.”). In Pinkerton, the Supreme Court held that “the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses.” 328 U.S. at 643, 66 S.Ct. at 1182. The Court then went on to describe the circumstances in which a coeon-spirator could be held hable for the commission of a substantive offense in which he did not personally participate. It held that a defendant would be liable for such a substantive offense if it was committed by a cocon-spirator, in furtherance of the conspiracy, and was either within the scope of the unlawful project, or was part of the ramifications which could be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. Id. at 647-48, 66 S.Ct. at 1184-85. The operation of Pinkerton standards in the determination of relevant conduct means that “‘the scope of [relevant] conduct for which a defendant can be held accountable under the sentencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy ...’” Lanni, 970 F.2d at 1093 (quoting Perrone, 936 F.2d at 1416). This is true because “[t]he broader aspect of conspiracy law, permitting conviction of a defendant who knew some but not all the aims of the conspiracy applies only to conviction for the conspiracy offense itself, and not to vicarious liability for substantive offenses committed by a co-conspirator.” Lanni, 970 F.2d at 1095 (Newman, J., concurring) (citations omitted). Consistent with this distinction between a defendant’s liability for conspiracy and for a substantive offense, the Guidelines Manual has been clarified to explain explicitly that “the scope of the criminal activity jointly undertaken by the defendant (the ‘jointly undertaken criminal activity’) is not necessar- • ily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant.” § 1B1.3, Application Note 2. Rather, relevant conduct is defined as the conduct of others that was “both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant ...” Id. (emphasis added). As the Guidelines state, “the court must first determine the scope of the criminal activity [Patriarca] agreed to jointly undertake.” Id. In this ease, the Court of Appeals for the First Circuit has explained this requirement, stating, “[s]o as to keep the criminal responsibility within bounds, § 1B1.3 requires sentencing courts to ascertain on an individual basis the scope of the criminal activity that the particular defendant agreed jointly to undertake.” Patriarca, 4 F.3d at 76 (emphasis added). Thus, the court must first determine “the scope of the criminal activity ... [Patriarca] agreed to jointly undertake (i.e. the scope of the specific conduct and objectives embraced by the defendant’s agreement).” Id. (emphasis added); see also United States v. LaCroix, 28 F.3d at 227; United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995). In doing so, the “court may consider any ‘explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.’” Patriarca, 4 F.3d at 76 (quoting § 1B1.3, Application Note 2). In view of the criminal nature of a RICO conspiracy, circumstantial evidence may be very important. However, it should be recognized that “a defendant’s knowledge of another participant’s criminal act is not enough to hold the defendant responsible for those acts.” Studley, 47 F.3d at 575; see also United States v. Evbuomwan, 992 F.2d 70, 74 (5th Cir.1993) (“mere knowledge that criminal activity is taking place is not enough”). “[A] relevant factor in determining whether activity is jointly undertaken is whether the participants pool their profits and resources, or whether they work independently.” Studley, 47 F.3d at 575. The known past criminal conduct of an on-going conspiracy is also relevant to determining the scope of the future activity of the conspiracy the defendant has agreed to join. O’Campo, 973 F.2d at 1024-25 and n. 9. The government in this case contends that the criminal activity jointly undertaken by the defendant includes all of the crimes committed by members, and associates, of the Patriarca Family. This argument is rooted, in part, in the statements by the Court of Appeals for the First Circuit that: (1) “relevant conduct in a RICO case includes all conduct reasonably foreseeable to the particular defendant in furtherance of the RICO enterprise to which he belongs;” and (2) “Here, the RICO enterprise — the Patriarca Family — was a ‘jointly undertaken criminal activity.’ Thus, Patriarca is potentially liable for the foreseeable criminal acts of others in furtherance of that enterprise even though he did not personally participate in them.” Patriarca, 4 F.3d at 74-75 (emphasis added). However, read in the context of the rest of the opinion — including the specific, repeated direction that on remand this court first determine the scope of the criminal activity Patriarca agreed to jointly undertake — it is evident that these statements do not represent a decision by the Court of Appeals for the First Circuit concerning the scope of the joint criminal activity to which Patriarca agreed. Indeed, if the Court of Appeals had decided that the scope of the criminal activity to which Patriarca and others jointly agreed included all foreseeable criminal acts committed by members and associates of.the Patr-iarca Family on its behalf, it would not have said that Patriarca was only “potentially” liable for them. Nor is Patriarca’s title as “Boss” of the Family for part of the period pertinent to his sentencing dispositive of this issue. It is the “scope of [the] participant’s agreement— rather than his place in the hierarchy” that is crucial for sentencing purposes. United States v. Lilly, 13 F.3d 15, 18 (1st Cir.1994). Accordingly, the court must first apply the foregoing principles to determine whether each alleged act of relevant conduct was within the scope of the defendant’s jointly undertaken criminal activity. The second question that the court must address is “whether the criminal acts proffered as relevant conduct were in furtherance of [Patriarca’s] jointly undertaken criminal activity.” Patriarca, 4 F.3d at 76. The meaning and import of the “in furtherance” requirement is not perfectly clear. See Paul J. Hofer, “Implications of the Relevant Conduct Study for the Revised Guidelines,” 4 Fed.Sent.R. 334, 335 (1992) (discussing confusion of the terms “furtherance” and “scope”). The Courts of Appeals for the Second and Fifth Circuits have issued decisions suggesting that for an act to be in furtherance of the jointly undertaken criminal activity, the act must be within the scope of the joint criminal activity to which the defendant agreed. See Studley, 47 F.3d at 574 (“It is now plain from [the 1992 Amendment to Application Note 2] that in order to hold a defendant accountable for the acts of others, a district court must make two findings: 1) that the acts were within the scope of the defendant’s agreement and 2) that they were foreseeable to the defendant.”); Evbuomwan, 992 F.2d at 74 (“To hold a defendant accountable for the crime of a third person, the government must establish that the defendant agreed to jointly undertake criminal activities with the third person, and that the particular crime was within the scope of that agreement.”). The defendant, in essence, asserts that this interpretation is correct. The Court of Appeals for the First Circuit has stated that it rejects the view that to be relevant conduct “the accomplice’s act would have to be ‘in furtherance of activity within the scope of agreement.’ ” LaCroix, 28 F.3d at 227, n. 5. The First Circuit, however, adds that “application note 2, read as a whole, appears to use ‘in furtherance’ and “within the scope’ interchangeably — a practice consistent with earlier usage in both the commentary and the case law.” Id. This court agrees with the government that this footnote is “obscure.” See Sept. 22,1995 Tr. at 34. However, the court believes that this footnote refers to the concept described in the 1992 amendment to Application Note 2 that: [T]he criminal activity that the defendant agreed to jointly undertake, and the reasonably foreseeable conduct of others in furtherance of that criminal activity, are not necessarily identical. For example, two defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense). This principle is consistent with the reasoning of the Court of Appeals for the First Circuit that members of a conspiracy to possess a large amount of marijuana may properly be held hable, under § 2Dl.l(b)(l), for the possession of a firearm by a coconspirator, although they did not know of the firearm or agree to its being carried to the site of the sale. Bianco, 922 F.2d at 912-14. In Bianco, the Court of Appeals observed that firearms are common tools of the drug trade and the district court was not clearly erroneous in inferring, on the record before it, that when drugs were to be exchanged for a large amount of cash a coconspirator’s possession of a firearm was foreseeable to the defendants. Id. at 912. The Court of Appeals also emphasized, however, that when provided evidence placing the issue in dispute, a sentencing judge must consider more than just the nature of the offense and decide whether the government has proven “reasonable foreseeability.” Id. at 912-13. Many other Circuits have employed the same reasoning as Bianco in drug eases in which a defendant did not know of his coconspirator’s possession of a firearm. See, e.g., United States v. Nichols, 979 F.2d 402, 412-13 (6th Cir.1993); United States v. Soto, 959 F.2d 1181, 1186-87 (2d Cir.1992); United States v. McFarlane, 933 F.2d 898, 899 (10th Cir.1991); United States v. Barragan, 915 F.2d 1174, 1177-79 (8th Cir.1990). In view of the foregoing, the court understands that Patriarca is responsible at sentencing for the reasonably foreseeable crimes committed by his coconspirators for the purpose of promoting the success of criminal activity within the scope of his agreement with them. This does not, however, mean that he is punishable for every crime his coconspirators committed. For example, a crime may have been committed for the benefit of the coconspirator alone or on behalf of another conspiracy, rather than in furtherance of the conspiracy of which Patriarca was a part. See, e.g., Pinkerton, 328 U.S. at 647, 66 S.Ct. at 1184 (defendant would not be guilty of the substantive offense if “the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy”); United States v. Banks, 10 F.3d 1044, 1058 (4th Cir.1993) (although defendant reasonably could have foreseen distribution of the total amount of heroin attributed to the conspiracy, only the amount “with which he directly dealt could be found to have been distributed in furtherance of the specific, more limited activity he jointly undertook with others”); United States v. Collado, 975 F.2d 985, 991-95 (3rd Cir.1992). Moreover, a crime considered by the perpetrator to have been committed in his capacity as a member of the Patriarca Family might be beyond the scope of the criminal activity to which Patriarca agreed and not a reasonably foreseeable consequence of it. In the foregoing instances, Patriarca would not be subject to being sentenced based on the other person’s criminal conduct. To determine whether acts which were in furtherance of jointly undertaken criminal activity constitute relevant conduct, the court must decide if they “likely would have been foreseeable by a reasonable person in defendant’s shoes at the time of his ... agreement.” LaCroix, 28 F.3d at 227. This is an objective test. “‘[A] reasonably foreseeable act’ [is] an act that a reasonable person who knew everything that the defendant knew at the time would have been able to know in- advance with a fair degree of probability.” Id. at 229 (emphasis added). Foreseeability is measured from the time of the defendant’s original agreement or, if proven, at the time he signals his agreement to expand the scope of his jointly undertaken criminal activity. Id: at 228. “[F]oreseeability may be established by ... a -defendant’s knowledge of the nature and extent of a conspiracy in which he is involved.” Id. at 229. Once again, however, it is important for the purposes of this case to recognize that foreseeability is a forward-looking concept. It is not appropriate to rely upon what the defendant learned about his eoconspirators’ activities only after the events alleged to be relevant conduct. Rather, the issue is whether, based on what he knew before the events, the defendant should have foreseen them with a “fair degree of certainty.” Id. B. The Burden of Proof The burden of proving the essential elements of each alleged instance of relevant conduct is on the government. United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir.1990). As explained below, for the purposes of this sentencing, the court has assumed, without finding, that relevant conduct need only be proven by a preponderance of the evidence. This is the standard which typically applies to determining sentencing factors, including relevant conduct. Patriarca, 4 F.3d at 80; United States v. MenaRobles, 4 F.3d 1026, 1035 (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1550, 128 L.Ed.2d 199 (1994). Patriarca, however, contends that where, as here, alleged relevant conduct has the potential to raise the sentence required by the Guidelines from less than seven years to 65 years, Due Process requires a higher standard of proof and additional procedural safeguards as well. Indeed, the defendant contends that since he faces the apparently unprecedented prospect of being sentenced to what is, in effect, life in prison for murders for which he has neither been charged nor convicted, Due Process requires that he be provided a trial by a jury, which should receive only information admissible under the Federal Rules of Evidence, and which should be required to decide whether he has been proven guilty beyond a reasonable doubt. Several Courts of Appeals have recognized, without deciding, that Due Process may require at least proof by clear and convincing evidence where, as here, alleged relevant conduct has the potential to increase dramatically the defendant’s sentence. See United States v. Restrepo, 946 F.2d 654, 661 (9th Cir.1991) (Tang, J. concurring) (“the severity of penal consequences associated with a sentencing factor may in some cases tip the balance toward requiring heightened procedural protections in determining the applicability of that factor”); United States v. Townley, 929 F.2d 365, 369 (8th Cir.1991) (a clear and convincing standard might apply where alleged relevant conduct would result in an “18-level increase in [the] base offense level and a seven-fold increase in the permissible sentencing range”); United States v. Washington, 11 F.3d 1510, 1516 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1404, 128 L.Ed.2d 76 (1994) (“We recognize the strong arguments that relevant conduct causing a dramatic increase in sentence ought to be subject to a higher standard of proof.”). In making these observations, the various Courts of Appeals have relied on the reasoning of United States v. Kikumura, 918 F.2d 1084, 1101 (3rd Cir.1990). In Kikumura, the maximum of the Guideline range for the offense of conviction was less than three years, but the sentencing judge departed to impose a sentence of 30 years. In these circumstances, Judge Edward Becker, then the Chair of the Judicial Conference Criminal Law Committee, held that Due Process required that the facts relied upon to enhance the sentence be proved by clear and convincing evidence. Id. at 1102. The instant case presents a comparable example of a sentencing hearing that arguably functions as a “ ‘tail which wags the dog of the substantive offense’” and thus requires more than the usual standards and procedures to afford the defendant Due Process. Kikumura, 918 F.2d at 1103, (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 2417-18, 91 L.Ed.2d 67 (1986)). Here, the defendant pled guilty to RICO charges based on several Travel Act violations, with a maximum Guideline range of 78 months, and was not put on notice before he pled of the matters, including two murders, now purported to be relevant conduct, which if proven could require his incarceration for 65 years. It is, however, not necessary or appropriate for this court to decide now whether Due Process in this case requires proof by more than a preponderance of the evidence because the government has, with two exceptions, failed to satisfy even that lower standard. See Townley, 929 F.2d at 370. The two instances of relevant conduct which have been proven do not enhance the defendant’s sentence sufficiently to alter .the usual requirements of Due Process. See Restrepo, 946 F.2d at 662 (Tang, J., concurring). Accordingly, defendant’s claim that he will have been deprived of Due Process if given a dramatically increased sentence based on relevant conduct proven pursuant to the usual standards and procedures is, once again, left •open. See Patriarca, 807 F.Supp. at 196; Patriarca, 4 F.3d at 82. While the court is employing the lower, preponderance of the evidence standard, it should be recognized that this “standard is a meaningful one that requires the judge to be convinced ‘by a preponderance of the evidence that the fact in question exists.’ ” Restrepo, 946 F.2d at 661 (quoting United States v. Streeter, 907 F.2d 781, 792 (8th Cir.1990)). This test “is not without rigor.” United States v. Wise, 976 F.2d 393, 402 (8th Cir.1992). As this court instructs civil juries: To “establish by a preponderance of the evidence” means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence, as, when considered and compared with that opposed to it, has more convincing force, and produces the belief that what is sought to be proved is more likely true than not true.... The burden of proof has not been carried if, after considering all of the evidence, it is necessary to speculate, guess, or imagine that one or more of the necessary facts is true. Thus, it is axiomatic that “it is a ‘misinterpretation [of the preponderance test] that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.’ ” Restrepo, 946 F.2d at 661 (quoting In re Winship, 397 U.S. 368, 367-68, 90 S.Ct. 1068, 1074-75, 25 L.Ed.2d 368 (1970)). Moreover, to be properly considered at all, “[i]nformation used as a basis for sentencing under the Guidelines must have ‘sufficient indicia of reliability to support its probable accuracy.’ ” United States v. Miele, 989 F.2d 659, 663 (3rd Cir.1993) (quoting U.S.S.G. § 6A1.3(a)). This court has broad discretion to determine what information is, or is not, sufficiently dependable to be used in imposing sentence. United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.1992). With regard to the four instances of alleged relevant conduct now at issue, the court has considered all of the evidence on which the government represented it wished to rely. The court has also considered most of the evidence submitted by the defendant. In retrospect, it appears that some of the government’s evidence may lack sufficient indi-cia of reliability to have been properly considered at all. Nevertheless, the government has failed to prove by a preponderance of the evidence two of the four instances of alleged relevant conduct. III. THE SCOPE OF THE JOINT CRIMINAL ACTIVITY TO WHICH PATR-IARCA AGREED As stated earlier, in deciding whether any of the events at issue constitute relevant conduct with regard to Patriarca, the court must first determine the scope of the joint criminal activity explicitly or implicitly agreed to by him with others. Patriarca, 4 F.3d at 76. The events that the government contends are relevant conduct begin with Caruana’s marijuana trafficking in 1979 and end with the killing of Berns in 1986. Thus, it is the scope of Patriarca’s conspiratorial agreement in this period which is germane. LaCroix, 28 F.3d at 228. With regard to the scope of the joint criminal activity to which the defendant agreed, the court finds as follows. At some point prior to 1979, the defendant became a member of the New England Family of the LCN named for his formidable father, Raymond L.S. Patriarca. The court infers that as his father’s son and sometime messenger, the defendant knew well the scope and nature of the RICO enterprise that the Patriarca Family constituted during his father’s tenure as Boss in the period from 1979 to 1984. This knowledge is material, circumstantial evidence of the scope of the joint criminal activity to which the defendant agreed. O’Campo, 973 F.2d at 1024-25 and n. 9. Until about the time of Raymond L.S. Patriarea’s death in July 1984, the Patriarca Family operated in very much the manner described in the 1992 testimony of Philip Leonetti, the former Underboss of the Philadelphia Family of the LCN, and Special Agent James Maher of the Federal Bureau of Investigation, who based his expert testimony largely on a review of electronic surveillance conducted during the period in which the defendant’s father was the Boss. See Patriarca, 807 F.Supp. at 208. As Leonetti explained, in the pertinent period an LCN “Commission,” based in New York, promulgated rules which LCN Families in the United States were expected to follow. LCN Families were supposed to operate in a hierarchical manner. Members were expected to “put on record” and get permission for all of their crimes, including, but not limited to, murder. The criminal business of the Patriarca Family primarily involved illegal gambling, extortion, and engaging in extortionate credit transactions, commonly known as “loansharking.” Murder was also a form of criminal activity engaged in by the Patriarca Family, and other LCN organizations, both before and after the defendant became a member. Indeed, RICO was enacted, in part, to address LCN conspiracies to murder. See United States v. Angiulo, 897 F.2d 1169, 1179-80 (1st Cir.1990); Patriarca, 807 F.Supp. at 198. The government has not proven that the defendant ever personally participated in a murder, either before or after becoming a member of the LCN. Leonetti and Maher testified, however, that typically members would have to participate in a murder to be eligible for induction into the LCN. See May 18, 1992 Leonetti Tr. at 37; May 20, 1992 Maher Tr. at 6. The evidence demonstrates that, during the pertinent period, members of the Patriar-ca Family pledged to kill on its behalf if authorized to do so by the Boss. For example, the government represents that Cueinot-ta would testify that “if he were asked to kill, he would have to kill.” Government’s Outline of Antonino Cucinotta’s Anticipated Testimony (“Cucinotta Proffer”) at 2 (Sept. 15, 1995). Special Agent Maher opined that an individual in the process of becoming a made member of the LCN is required to promise to kill on behalf of the Mafia if directed to do so by somebody with authority in that organization. May 20, 1992 Maher Tr. at 18. Consistent with this, Carmen Tortora and Richard Floramo each were asked at the electronically surveilled Mafia induction ceremony on October 29, 1989, if they would kill someone close to them if directed to do so. See Oct. 29, 1989 Tr. (Y-4/Q5 and Y-5/Q6). The court infers that the defendant took a similar oath, or at least knew of this requirement for Mafia membership in the period 1979 to 1986. The rules promulgated by the LCN Commission required that the Boss personally approve any proposed murder. See May 18, 1992 Leonetti Tr. at 22-25. According to the rules, the Boss could not delegate the duty to approve a murder unless he was in jail. Id. at 23. Leonetti knew of no situation in which a Boss delegated authority to approve a murder when he was not incapacitated or incarcerated. Id. at 25. According to Leonetti, the penalty for a member of the LCN who killed without the Boss’s permission could be death. Id. at 70. As the government contends, Raymond L.S. Patriarca never delegated the authority to commit a murder to anyone else. More specifically, as the government has stated, although Gennaro Angiulo was given substantial authority for certain matters in Boston: “Evidence from the 1981 surveillances establishes that this delegation did not include ... the power to authorize murder. Instructions or permission to kill came from the Boss.” Sept. 19, 1994, Government’s Factual Submission Concerning the Scope of the Joint Criminal Activity Agreed to By Defendant Raymond Patriarca and the Foreseeability of Certain Acts” (“Government’s Factual Submission”) at 29. In addition, there is no evidence, let alone proof, that during Raymond L.S. Patriarea’s tenure as Boss any murder was committed on behalf of the Patriarca Family without his permission. To the contrary, Special Agent Maher testified that the transcripts of electronic surveillance he reviewed indicated that in 1983 the authorization of Raymond L.S. Patriarca was sought and received for Joseph Lamattina, who is also known as Joe Black, to commit a murder. See May 20, 1992 Maher Tr. at 87-88. Raymond L.S. Patriarca died in July 1984. The defendant succeeded him as the Boss of the Patriarca Family. His selection resulted from nepotism rather than merit. See Patriarca, 807 F.Supp. at 171. As the court has described previously, in contrast to his father, the defendant was an ambivalent and weak Boss. Id. at 203; United States v. Patriarca, 776 F.Supp. 593, 601 (D.Mass.1991). Indeed, he was not a full-time Boss. Rather, he spent some of his time managing the Kendall Construction Company and personally participating in developing property in Lincoln, Rhode Island. Patriarca, 776 F.Supp. at 600. Nevertheless, the defendant never delegated to anyone else the power to approve murders on behalf of the Family. For example, as the government has stated, in 1989: “Patriarca delegated authority to [Joseph] Russo with the same restrictions that his father had delegated authority to Gennaro Angiulo ... this delegation of authority did not include ... the power to authorize murder.” Government’s Factual Submission at 29. Nor did the defendant implicitly agree to permit murder on behalf of the Patriarca Family to be committed without his approval. There is no proof of an unauthorized murder relating to the Patriarca Family prior to the killing of Limoli in 1985. Thus, it cannot be said that Patriarca, as Boss, was wilfully blind to such conduct and, therefore, should be found to have tacitly agreed to a departure from the rule regarding murder which had been followed in practice during his father’s tenure as Boss. See, e.g., United States v. Brandon, 17 F.3d 409, 451-52 and n. 72 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 80 and 115 S.Ct. 81, 130 L.Ed.2d 34 (1994) (in order to prove knowledge based on alleged “willful blindness,” it must be shown that the defendant was aware of a high probability of the fact in question and deliberately avoided learning the fact; mere negligence is not enough). With regard to the issue of whether drug dealing by its members of the Patriarca Family was criminal activity within the scope of the defendant’s joint agreement with them, this court found in 1992 that the defendant, while Boss, had a policy which implemented the LCN rule prohibiting drug dealing by its members. Patriarca, 807 F.Supp. at 183-84, 204. The court also found that the defendant did not know that Carrozza intended to use money extorted from Frank Mantia to purchase drugs. Id. at 182. In addition, the court concluded that Carrozza’s planned drug transaction was not within the scope of Patriarca’s Travel Act conspiracy with Carrozza, and was not a reasonably foreseeable consequence of it. Id. at 182-83. On appeal, the government challenged this court’s interpretation of the Guidelines. As indicated earlier, although the factual findings this court made at the initial sentencing concerning drugs were germane to departure issues, as well as to the question of relevant conduct, the government did not challenge those findings on appeal. See, e.g., Patriar-ca, 4 F.3d at 73. Nevertheless, pursuant to the decision reflected in the December 7,1994 Memorandum and Order, the court has received additional evidence from Cucinotta, and other sources, concerning the matters alleged to be relevant conduct at the original sentencing. Based on all of the evidence concerning whether drug dealing by members of the Family was within the scope of the joint criminal activity agreed to by Patriarca, the court now finds again that it was not. More specifically, at all times relevant to this sentencing, the LCN Commission had a rule prohibiting LCN Families and members from being involved with drugs. May 18, 1992 Leonetti Tr. at 26-27. Some Families took this rule very seriously. In 1985, members of the Gambino Family who dealt drugs risked death if the Boss found out. May 19, 1992 Leonetti Tr. at 7; Patriarca, 807 F.Supp. at 183. Although there is some countervailing evidence, the record also clearly establishes that when Raymond L.S. Patriarca was Boss, members of the Family were prohibited from directly dealing drugs and this rule continued during the defendant’s tenure. Thus, the defendant did not explicitly agree to engage jointly with other members of the Patriarca Family in crimes involving the possession of controlled substances by those members with intent to distribute them. Such crimes were not within the scope of the defendant’s explicit conspiratorial agreement. As set forth below, the defendant also did not tacitly enter into any agreement to jointly undertake such crimes. The evidence which establishes this limitation on the scope of the defendant’s conspiratorial agreement includes the following. The government agrees that there was a rule which ' prohibited members of the Patriarca Family from getting directly involved in drug deals or personally dealing drugs. See Government’s Factual Submission at 41, n. 64; Sept. 30, 1994 Government’s Response to Defendant’s Memorandum Concerning Relevant Conduct at 13. Special Agent Joseph Hannigan of the Federal Bureau of Investigation testified before this court in another ease involving members of the Patriarca Family that he was advised that the Boss had stated that members were not to traffic in narcotics. United States v. DiGiacomo, (Cr. No. 90-10065-WF), June 25,1990 Hannigan Tr. at 79. Similarly, Special Agent Maher testified in this case that in his opinion members of the Patriarca Family were prohibited from involvement in narcotics trafficking, but that it was permissible for associates of those members to do so and members could profit from their associates’ drug activities. See May 20,1992 Maher Tr. at 99. The government represents that Cucinotta would testify that “[t]he rule in the Family was that members were not supposed to deal drugs.” Cucinotta Proffer at 3. Thomas Hillary, an associate of the Patriarca Family who at one time lived in Raymond L.S. Patriarea’s home, testified to the grand jury that there was at all relevant times a rule prohibiting members from being involved in drugs. See Defendant’s Second Supplemental Exhibit List, Ex. 11(A) (Hillary Tr. at 65-66). Moreover, disputing Maher’s opinion regarding whether associates were permitted to traffic in narcotics, Hillary testified that he could not be directly involved with drugs, nor could anyone under him. Id. Hillary understood that members of the Patriarca Family would be killed if caught violating this rule. . Id. Similarly, John Demarco has stated that Carrozza told him that Carrozza was not allowed to be directly involved with drug dealing. May 1992 Affidavit of John Demarco at ¶ 8. Indeed, at the October 29, 1989 electronically surveilled induction ceremony, Patriarca and Russo told new members that drug dealing was not permitted. See Oct. 29,1989 Tr. (Y-5/Q-6) at 32. • The court’s conclusion that members of the Patriarca Family were prohibited from personally participating in drug crimes, including possessing drugs with intent to distribute or conspiring to do so, is not altered by any of the countervailing evidence. The court recognizes that in an electronically surveilled conversation Angiulo, while describing the activities of the Patriarca Family, stated: “We sell marijuana.” Apr. 27, 1981 Tr. (658(ii)) at 5. Angiulo, however, did not ascribe this activity to members of the Family, as opposed to associates. Moreover, in another electronically surveilled conversation Angiulo said: ‘We don’t say guys are with us that are dealing in junk.” Mar. 10, 1981 Tr. (304(i)) at 2. Furthermore, Angiulo did not in any intercepted conversation say or suggest that members of the Patriarca Family trafficked in cocaine, which is the controlled substance involved in the Carrozza and Li-moli matters alleged to be relevant conduct. The government represents that Cucinotta would testify that a number of members were involved with making money from drug dealers and at least one abused drugs. Cuci-notta Proffer at 3. If true, Cucinotta’s claim that members profited from activities of drug dealers is consistent with loansharking and extortion — two of the crimes customarily committed by members of the Patriarca Family. The Cucinotta Proffer does not include a claim that any member of the Patriarca Family was personally involved in drug distribution, except for Caruana, who he says was inducted in approximately 1981. As described infra, the court finds that Cuci-notta is incorrect at least regarding when Caruana was made a member of the Patriar-ca Family, and may be unreliable on the question of whether Caruana was ever inducted at all. Thus, the evidence persuades the court that during the period relevant to this sentencing the Patriarca Family had a rule prohibiting members from possessing controlled substances with intent to distribute them, or conspiring to do so. This rule was interpreted by some members to permit them to profit from the distribution of controlled substances by others, by lending money to drug traffickers at usurious rates as part of their loansharking activities, or by extorting money for protection from drug dealers, as they had long extracted “rent” from bookmakers. Patriarca, however, did not explicitly agree with members of the Family to engage jointly in the possession of controlled substances, particularly cocaine, with intent to distribute. Nor did he tacitly agree to do so. More specifically, in retrospect it is now evident that in 1985 Carrozza was violating the Patriarca Family rule regarding drugs. See Patriarca, 807 F.Supp. at 182-84. As discussed infra, it is also clear that in 1985, Spagnolo was engaging in prohibited conduct and that his possession of cocaine with intent to distribute it led to the killing of Limoli. Id. at 204. The defendant, however, did not know about, or tacitly agree to, the crimes concerning cocaine committed by Carrozza, Spagnolo, or others. Beginning in about 1988, when Angiulo was arrested, the operation of the Patriarca Family was disrupted. Id. at 203; Patriar-ca, 776 F.Supp. at 601-02. Hillary testified that with regard to drugs, some members “snuck around” and violated the prohibition on drug dealing. See Defendant’s Second Supplemental Exhibit List, Ex. 11(A) (Hillary Tr. at 65). Some members of the Boston faction of the Family, including Ferrara, Car-rozza, Spagnolo and Dennis Lepore, successfully sought to keep many of their activities secret from the defendant. This is exemplified by the 1987 extortion of $250,000 from his father’s friends, the bookmakers Sagan-sky and Weinstein. See Patriarch, 807 F.Supp. at 173, 200. Carrozza and Spagnolo, among others, also concealed their drug dealing from the defendant. They did. not share their often meager drug profits with Patriar-ca, either directly or indirectly. See Patriar-ca, 807 F.Supp. at 173, 200. Indeed, it is represented that Cucinotta, who was the defendant’s driver from about 1982 to 1988, knows of no payments made by anyone in Boston to Patriarca. See Defendant’s Second Supplemental Exhibit List, Ex. IV(A) (June 30, 1995 letter from Assistant U.S. Attorney Jeffrey Auerhahn). When he succeeded his father as Boss in 1984, the defendant evidently complacently assumed that the past would be prologue and that the Family would continue to follow the rule regarding drugs, among others. It now appears that with the leadership in Boston in disarray, some members violated this rule. The defendant did not, however, know about these violations or recklessly disregard them. See Brandon, 17 F.3d at 451-52 and n. 72. Therefore, he did not knowingly acquiesce in them, or otherwise tacitly agree to expand the scope of the criminal activity he agreed to undertake jointly to include the possession by members of the Family of cocaine or marijuana with intent to distribute, or comparable drug crimes. IV. CARUANA’S MARIJUANA SMUGGLING AND EXTORTION At the initial sentencing, this court found that Patriarca was involved in some drug crimes committed by Caruana between 1981 and 1983, and departed upward on the basis of them. Patriarca, 807 F.Supp. at 170, 205. This decision rested almost exclusively on the court’s acceptance of the government’s essentially undisputed interpretation of the electronic surveillance of Angiulo’s headquarters at 98 Prince Street. Id. at 205-06. As indicated earlier, the issue of Patriarea’s involvement with Caruana, and the related evidence had not been addressed by the parties or the cour