Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 1 of 9

1 Judge Pechman
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UNITED STATES DISTRICT COURT
10 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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UNITED STATES OF AMERICA, )
12 ) NO. CR10-124MJP
Plaintiff, )
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v. ) GOVERNMENT’S SENTENCING
14 ) MEMORANDUM
CHRISTOPHER ANDREW NEARY, )
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Defendant. )
16 ____________________________________)
17 The United States of America, by Jenny Durkan, United States Attorney for the Western
18 District of Washington, Lisca Borichewski, Assistant United States Attorney, files this Sentencing
19 Memorandum.
20 I. Factual Background
21 The government has no objections or corrections to the summary of offense conduct in the
22 Presentence Report of the United States Probation Office.
23 A. Offense Conduct Summary
24 On April 26, 2010, at approximately 11:00 a.m., federal agents began investigating snowshoe
25 tracks in the Canyon Creek area of Mt. Baker and the Snoqualmie National Forest. The snowshoe
26 tracks crossed the international border between the United States and Canada. This is a remote area
27 known to be used by smugglers transporting contraband between the United States and Canada. See
28 Exhibit #1.

Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 1 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 2 of 9

1 At approximately 2:00 p.m., agents found defendant CHRISTOPHER NEARY and co-
2 defendant DARYL FONTANA hiding in the woods, each equipped with a set of snowshoes. Both
3 NEARY and FONTANA told agents that they were hiking in Canada, got lost, and unintentionally
4 entered United States. While talking with NEARY and FONTANA, a silver Infiniti sports-utility
5 vehicle, driven by co-defendant Carl THIESSEN, arrived at the remote location. Agents contacted
6 THIESSEN, and asked about his purpose for being in the area. THIESSEN told agents that he was a
7 writer, and he was looking for a secluded place to write.
8 Agents searched THIESSEN’s vehicle and found a deposit slip reflecting THIESSEN
9 deposited $1000 (itemized as ten $100 bills), earlier that day at Bank of America, located in the
10 United States. Agents also found an envelope addressed to “Julie Bevacqua” containing $947 in
11 Canadian currency. Another envelope addressed to “Grandma” contained $4000 in United States
12 currency. Agents also located a card-key for a hotel room at the Best Western Hotel in Bellingham,
13 Washington.
14 Agents observed that the rear seats of the sports-utility vehicle were folded down to create a
15 large cargo area. Agents also found several bags of food in the vehicle. Agents suspected that there
16 may be more individuals hiding in the woods, and radioed for additional personnel equipped with
17 snowshoes, and a helicopter to assist in the search.
18 While searching the woods, agents responded to the sounds of breaking branches and found
19 co-defendant Sinisa GAVRIC hiding in the brush. GAVRIC said that he lost his friend in the woods,
20 and he denied knowing the three other individuals that were detained.
21 Agents in the helicopter acted as spotters, and directed agents on the ground to the location of
22 snowshoe tracks. Agents followed the tracks, and searched the surrounding area. Approximately 20
23 feet down the side of a steep embankment, hidden beneath a veil of tree branches, agents recovered a
24 backpack containing heat-sealed packages of marijuana and a set of snowshoes. After further
25 searching, agents recovered a second hidden backpack containing heat-sealed packages of marijuana,
26 with another set of snowshoes attached to the backpack. Agents continued to search the area, and
27 recovered two additional hidden backpacks containing heat-sealed packages of marijuana. Two of
28 the backpacks recovered had machetes attached to them. Agents searched the area for over two

Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 2 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 3 of 9

1 hours, and recovered a total of four backpacks containing 111 heat-sealed plastic bags, which held
2 49.28 kilograms of marijuana (approximately 30 pounds of marijuana and packaging material per
3 backpack). See Exhibit #2.
4 Having recovered a total of four backpacks, and four sets of snowshoes, but having detained
5 only three suspects in the woods (FONTANA, NEARY and GAVRIC), agents suspected another
6 individual may still be at large. Based on the card-key found in THIESSEN’s vehicle, agents
7 responded to the Best Western hotel in Bellingham, Washington.
8 At the Best Western, agents contacted hotel staff and learned that THIESSEN rented two hotel
9 rooms. The vehicles listed on the registration for these rooms included the silver Infinity driven by
10 THIESSEN, and a Toyota Four-Runner. Agents found the Toyota parked outside the hotel, and set
11 up surveillance.
12 Agents observed a male wearing hiking boots and waterproof pants, later identified as
13 RICHARD BAFARO, approach the Toyota and look into the windows. BAFARO then walked into
14 the hotel. Agents called the front desk, and hotel staff reported that BAFARO was making numerous
15 telephone calls from his room. BAFARO then left the hotel, and walked toward the Bellis Fair Mall.
16 BAFARO returned a short while later, and knocked on the door to the other hotel room rented by
17 THIESSEN. Agents contacted BAFARO, detained him, and searched the Toyota Four-Runner.
18 Inside the Toyota, agents recovered several maps of the Mt. Baker area. Agents also
19 recovered a receipt dated April 25, 2010 (the day before the arrests), from the Mountain Equipment
20 Co-Op in Vancouver, Canada. The receipt showed a purchase of two camping lights, four “durable
21 stuff sacks,” and two accessory straps for a total of $310.24.
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23 B. Statements of Defendants
24 1. Richard Bafaro
25 Agents advised BAFARO of his Miranda rights, and BAFARO agreed to waive his rights and
26 answer questions. BAFARO told agents that he was only a “monkey,” and was transporting
27 marijuana to work off a debt for another load of marijuana that he previously lost during transport, as
28 a result of a snowstorm. BAFARO said his friend Jason Metcalf helped him search for this missing

Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 3 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 4 of 9

1 load, when Jason fell and injured himself. ICE agents were aware that approximately one month
2 earlier, on February 18, 2010, RCMP deployed a rescue helicopter that airlifted Metcalf out of the
3 Canadian wilderness, after he fell and suffered a broken leg. At the time Metcalf was rescued, he had
4 already spent several days in the woods, was experiencing kidney failure, and almost died.
5 Information recovered from Metcalf’s telephone revealed that while he was stranded, he called Julie
6 Bevacqua. BAFARO admitted that Julie Bevacqua was his girlfriend. BAFARO further admitted
7 that he owned a snowmobile that he used to look for this missing load of marijuana. BAFARO said
8 that he purchased this load of marijuana from Canadian brokers for $2,600 per pound, and he
9 anticipated selling the marijuana to a dispensary in California for $3,300 per pound.
10 BAFARO said that he heard of individuals using snowmobiles to smuggle cocaine
11 northbound into Canada. Based on evidence developed during the investigation, agents were aware
12 that BAFARO rented a storage unit, and asked BAFARO where his storage unit was located.
13 BAFARO said his storage unit was on “Bakerview [road].”
14 Agents contacted several storage companies along Bakerview Valley Road in Bellingham,
15 Washington. Agents learned that BAFARO rented storage unit #E516 at Bakerview Self Storage.
16 BAFARO’s rental contract for the storage unit allowed BAFARO and THIESSEN access to the
17 storage unit, and each individual had their own access code to enter the facility. Self Storage records
18 revealed that BAFARO’s access code entered or exited the storage facility 28 times between February
19 23, 2010 and March 14, 2010. Self Storage records also revealed that THIESSEN’s access code
20 entered or exited the storage facility 8 times between March 15, 2010 and March 26, 2010.
21 Agents searched BAFARO’s storage unit and seized a snowmobile, and numerous empty
22 plastic bags. Agents conducted ion scans of several objects in the storage unit. See Exhibit #3. A
23 nylon bag recovered produced a positive reading for cocaine, a bowl and scale produced a positive
24 reading for marijuana, and the storage unit walls produced a positive reading for methamphetamine.
25 BAFARO said that he was only assisting in transporting the current load of marijuana, and
26 that his job to was assemble his team for smuggling the load from Canada into the United States.
27 BAFARO said that he was to be paid $300 per pound to transport the current load of marijuana, and
28 he therefore expected to make $7,500 for smuggling 25 pounds of marijuana. BAFARO said that all

Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 4 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 5 of 9

1 of the smugglers carrying marijuana were to be paid $300 per pound of marijuana that they carried,
2 and then they would all chip-in to pay THIESSEN.
3 BAFARO said that he threw away his hiking clothes in a dumpster at Bellis Fair Mall. Agents
4 responded to the mall, searched through dumpters, and found the missing hiking gear.
5 Agents obtained BAFARO’s purchase records from REI, a company that sells outdoor
6 equipment, which has a store located in Bellingham, Washington. The records revealed BAFARO
7 made numerous purchases including: December 18, 2009 - $325.50; February 14, 2010 - $2140.20;
8 March 13, 2010 - $264.37; April 14, 2010 - $426.10. All of these purchases were made at the
9 Bellingham store, except for the last purchase which was made at the Seattle store.
10 2. Carl Thiessen
11 After his arrest, agents advised THIESSEN of his Miranda warnings, and THIESSEN waived
12 his rights and agreed to answer questions. THIESSEN said that earlier in the day, he picked up four
13 individuals in Canada, and drove them into the United States at the Peach Arch port of entry.
14 THIESSEN said that after dropping them off, he drove directly to Bank of America and deposited
15 $1,000. THIESSEN said that he then went to Hertz and rented another vehicle, the silver Infinity.
16 THIESSEN said he preferred to drive, and just pick-up and drop-off. Agents asked THIESSEN how
17 many times he had picked up Rick (BAFARO). THIESSEN said he had done so on two prior
18 occasions, and that BAFARO usually crossed with the hikers. THIESSEN said that he is usually paid
19 between $2,000 and $5,000 in United States currency.
20 Agents obtained THIESSEN’s purchase records from REI. The records revealed that
21 THIESSEN made several purchases including: February 25, 2010 - $276.68 (Bellingham); March 5,
22 2010 - $1035.31(San Diego); March 7, 2010 - $630.51 (Bellingham).
23 3. Christopher Neary
24 After his arrest, agents advised NEARY of his Miranda warnings, and NEARY waived his
25 rights and agreed to answer questions. NEARY said that “a friend of a friend” first approached him a
26 year ago to backpack marijuana into the United States, and this was the first time he participated in
27 such a venture. NEARY said he was picked up at his apartment in Vancouver, British Columbia.
28 NEARY said one of the hikers in the vehicle knew the route, and they were all dropped off near a

Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 5 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 6 of 9

1 naval base. NEARY said the group was guided by “Rich” (BAFARO).
2 4. Sinisa Gavric
3 After his arrest, agents advised GAVRIC of his Miranda warnings, and GAVRIC waived his
4 rights and agreed to answer questions. GAVRIC initially said he was hiking alone, and took a taxi by
5 himself to an area near Chilliwack, British Columbia at approximately 4:00 a.m. to start his hike.
6 GAVRIC said he was hiking to relieve stress, and he anticipated calling a taxi when he was done to
7 return home. After confronting GAVRIC with the implausibility of his story, GAVRIC then admitted
8 that he was participating in smuggling marijuana. GAVRIC said he was picked up, and then was
9 dropped off in the Chiliwack area with NEARY, FONTANA and BAFARO and the duffel bags of
10 marijuana. GAVRIC said that each hiker was to be paid between $8,000 and $10,000 for transporting
11 the marijuana, and that he would be paid by “Rich” (BAFARO).
12 5. Daryl Fontana
13 After his arrest, agents advised FONTANA of his Miranda warnings, and FONTANA
14 requested an attorney. Approximately two hours later, FONTANA initiated contact with agents and
15 said he changed his mind, and that he now wanted to make a statement. FONTANA said he was
16 recruited by Rick (BAFARO) approximately one week earlier to transport marijuana into the United
17 States for $10,000. FONTANA said that BAFARO organized the trip and purchased the equipment.
18 II. Sentencing Guidelines Calculations
19 On June 17, 2010, defendant FONTANA entered a guilty plea to Count 1 of the indictment
20 charging conspiracy to distribute marijuana in violation of 21 U.S.C. § 841(b)(1)(D). The
21 government agrees with the sentencing guideline calculations of the United States Probation Office
22 which include a total base offense level of 13, a criminal history category I, and a standard range
23 sentence of 12 to 18 months. The total base offense level as computed by the Probation Office
24 includes defendant FONTANA receiving a two-level downward adjustment for being a minor
25 participant in the offense conduct (U.S.S.G. § 3B1.2(b)); a two-level downward adjustment for
26 GAVRIC providing a truthful safety-valve proffer (U.S.S.G. § 2D1.1(c)(10); and a three-level
27 downward adjustment for acceptance of responsibility (U.S.S.G. § 3E1.1).
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Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 6 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 7 of 9

1 III. Recommendation
2 In addition to the advisory Guidelines range, the factors to be considered before imposing
3 sentence include:
4 the nature and circumstances of the offense and the history and characteristics of the
defendant; the need for the sentence imposed . . . to reflect the seriousness of the
5 offense, to promote respect for the law, . . . to provide just punishment for the offense,
to deter, to protect the public, and to provide rehabilitation; the kinds of sentences
6 available; the need to avoid sentencing disparities; and the need to provide victims
with restitution.
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United States v. Zavala, 443 F.3d 1165, 1186, citing 18 U.S.C. 3553(a)(1), (2), (3), (6), (7)
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(quotations omitted).
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10 Defendant NEARY, a resident of Canada, participated in a eight hour journey, to hike across
11 the international boundary between the United States and Canada, and distribute of marijuana in the
12 Western District of Washington. The hikers were equipped with machetes, ostensibly to assist in
13 hacking through the foliage, but which could have also been used as weapons against any individuals
14 attempting to steal their load, or against agents attempting to detain them. The terrain that
15 FONTANA and his coconspirators crossed is mountainous and extremely difficult to patrol. As the
16 investigation progressed, approximately 30 federal agents from Immigration and Customs
17 Enforcement, and Customs and Border Protection responded to the Snoqualimie forest, the Best
18 Western hotel and the Self-Storage facility assist in locating the suspects and recovering evidence.
19 Agents in the mountains required the assistance of a helicopter, and searched for over four hours to
20 recover the four backpacks containing over 100 pounds of marijuana, and the evidence from the
21 storage unit.
22 The extensive time and effort that the defendant was willing to undertake in traveling to this
23 District reflects the substantial financial benefits derived by individuals trafficking in marijuana. The
24 shipment of marijuana involved in this single transaction had a conservative value of over $300,000
25 (108 pounds x $2800/pound). Each defendant that participated in hiking the marijuana from Canada
26 into the United States believed they were going to earn approximately $10,000 for their efforts. To
27 deter future criminal conduct, and dispel the myth that the financial gains of drug trafficking are
28 worth the cost, the government submits that a sentence within the applicable standard range is both

Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 7 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 8 of 9

1 reasonable and appropriate. The government requests that this Court impose a sentence of 12 months
2 and 1 day (the low end of the applicable range), 3 years of supervised release, and a $100 special
3 assessment.
4 As part of the terms of the plea agreement, and conditioned upon this Court imposing a
5 sentence within or below the standard range that is determined by this Court at the time of sentencing,
6 the defendant has waived his right to appeal the sentence.
7 DATED this 20th day of September, 2010.
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9 Respectfully submitted,
10 JENNY A. DURKAN
United States Attorney
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12 s/ Lisca Borichewski
LISCA BORICHEWSKI
13 Assistant United States Attorney
14 United States Attorney's Office
700 Stewart Street, Suite 5220
15 Seattle, WA 98101-1271
(206) 553-2266, Fax: (206) 553-4440
16 E-mail: lisca.borichewski@usdoj.gov
Washington State Bar No. 24300
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Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 8 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970
 Case 2:10-cr-00124-MJP Document 107 Filed 09/20/10 Page 9 of 9

1 CERTIFICATE OF SERVICE
2
3 I hereby certify that on September 20, 2010 I electronically filed the foregoing with the
4 Clerk of the Court using the CM/ECF system which will send notification of such filing to the
5 attorney(s) of record for the defendant(s).
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7 s/Karen Wolgamuth
KAREN WOLGAMUTH
8 Paralegal
United States Attorney’s Office
9 700 Stewart Street, Suite 5220
Seattle, Washington 98101-1271
10 Phone: (206) 553-5050
FAX: (206) 553-4440
11 E-mail: karen.wolgamuth@usdoj.gov
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Government’s Sentencing Memorandum UNITED STATES ATTORNEY

United States v. Neary, CR10-124MJP - 9 700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
(206) 553-7970