CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
I.Parties and Amici:
A.Names of Parties Below and on Appeal
This appeal arises from a criminal trial in which four
defendants were convicted of distributing various amounts of
cocaine base. The appellant, Stephen Anthony xxxxxxx, was one of
the defendants in the trial below. The other defendants below were
Eric xxxxxxx, Rodney xxxxxxx, and Edward xxxxxxx. Their appeals
to this court, numbers 94-3030, 94-3031 and 94-3032, respectively,
were consolidated with this case for appeal. There are no amici.
II.Rulings Under Review:
This is an appeal from the judgment of the district court
(The Honorable Royce C. Lamberth), dated February 25, 1994,
adjudging appellant guilty of three counts of unlawfully
distributing cocaine base. In this appeal, the appellant
challenges the sufficiency of the evidence to support the jury's
verdict. In addition, appellant seeks review of his sentence,
consisting of a term of imprisonment of 188 months, followed by a
term of supervised release of 4 years, and a special assessment of
$150.00.
III.Related Cases:
The appeals of codefendants Eric xxxxxxx, Rodney xxxxxxx,
and Edward xxxxxxx are pending before this court and have been
consolidated with this appeal.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
CASES
STATUTES AND GUIDELINES
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 94-3029
UNITED STATES OF AMERICA,
Plaintiff-Appellee;
v.
STEPHEN ANTHONY xxxxxxx
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF OF APPELLANT
ISSUES PRESENTED
I.Whether the evidence was sufficient to support the
convictions on Counts Ten, Twelve and Seventeen of the indictment,
which charged Mr. xxxxxxx with the unlawful distribution of cocaine
base.
II.Whether the trial court erred in imposing sentence by (1)
attributing to Mr. xxxxxxx the total amount of drugs charged in the
indictment; (2) enhancing his sentence for being an organizer or
leader of the criminal activity; and (3) refusing to permit Mr.
xxxxxxx a two level reduction of his offense level because of
acceptance of responsibility.
STATUTES AND REGULATIONS
Pertinent statutes and Sentencing Guidelines are set forth in
the addendum to this brief.
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 over
this direct appeal of a final judgment in a criminal case. The
district court had jurisdiction over the case pursuant to 18 U.S.C.
§ 3231.
STATEMENT OF THE CASE
Appellant, Stephen Anthony xxxxxxx, was indicted on October 13,
1992, in a twenty-three count indictment. (App. 028-038)
Charged
along with Mr. xxxxxxx were Eric xxxxxxx, Rodney xxxxxxx, and Edward
xxxxxxx. Mr. xxxxxxx was charged in eight of the twenty-three
counts in the indictment. In Count One, Mr. xxxxxxx was charged
with conspiracy to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. § 846. Counts Ten, Twelve and Seventeen
charged Mr. xxxxxxx with unlawful distribution of 5 or more grams of
cocaine based in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(iii). In addition, each of Counts Ten, Twelve and
Seventeen also charged Mr. xxxxxxx with aiding and abetting, in
violation of 18 U.S.C. § 2. Counts Fourteen and Twenty charged Mr.
xxxxxxx with unlawful use of a communication facility, in violation
of 21 U.S.C. § 853. In Count Sixteen, Mr. xxxxxxx was charged with
attempted distribution of cocaine Base, in violation
of 21 U.S.C. § 846. Finally, Count Twenty-three sought the
forfeiture of $4,700.00 pursuant to 21 U.S.C. § 853.
Trial commenced before the district court and a jury on
November 29, 1993. The government presented evidence that in
January of 1992 the Narcotic Unit of the Metropolitan Police
Department began an investigation concerning the sale of drugs in
the 200 block of Upshur Street, N.W., Washington, DC. (12/2/93 Tr.
196-197) The principal evidence concerning the above mentioned
investigation was provided by Detective Mark Christopher Stone of
the Metropolitan Police Department. (12/2/93 Tr. 195-351; 12/3/93/
Tr. 359-488; 12/6/93 Tr. 493-665) In support of Detective Stone's
testimony, the government presented videotape and audio-tape
evidence. In addition, there was testimony from other law
enforcement officers and civilian witnesses. (12/7/93 Tr. 680-867;
12/8/93 Tr. 877-964)
Detective Stone testified that from January to June of 1992 he
operated in an undercover capacity in the area of the 200 block of
Upshur Street, N.W., Washington, DC. (12/2/93 Tr. 196-197) During
that time, he purchased various amounts of crack cocaine from
several individuals. Included among the numerous persons from whom
Detective Stone purchased drugs were Stephen xxxxxxx, Eric xxxxxxx,
Rodney xxxxxxx and Edward xxxxxxx.
As to Stephen xxxxxxx, the government presented evidence that
on February 28, 1992, Eric xxxxxxx sold Detective Stone
approximately 8 grams of crack cocaine for one thousand dollars.
(12/2/93 Tr. 273-304) That on March 7, 1992, Rodney xxxxxxx sold
Detective Stone approximately 18 grams of cocaine base for one
thousand dollars. (12/2/93 Tr. 313-351) And that on April 1,
1992, Eric xxxxxxx sold Detective Stone approximately 6 grams of
cocaine base for five hundred dollars. (12/3/93 Tr. 392-445)
Although Mr. xxxxxxx was not directly involved in the above
mentioned transactions, the government asserted through its
evidence that Mr. xxxxxxx was the supplier of the drugs. The
evidence introduced by the government to support its case against
Mr. xxxxxxx included pager numbers and records, sightings of Mr.
xxxxxxx in the area of the transactions, and recorded conversations
of xxxxxxx and others.
At the conclusion of the government's case, the defense rested
without presenting any evidence. On December 14, 1994, the jury
returned its verdict finding Mr. xxxxxxx guilty of Counts Ten,
Twelve, and Seventeen charging him with distribution of 5 or more
grams of cocaine base and aiding and abetting. (App. 022; 12/14/93
Tr. 1191-1199) The jury was unable to reach an unanimous verdict
on Counts One and Fourteen charging Mr. xxxxxxx with conspiracy and
unlawful use of a communication facility, respectively. Those
counts were subsequently dismissed. (App. 022; 12/14/93 Tr. 1191-1199) On Count Twenty, the second unlawful use of a communication
facility charge against Mr. xxxxxxx, he was acquitted. (App. 022;
12/14/93 Tr. 1191-1199) Count Sixteen, charging Mr. xxxxxxx and Mr.
xxxxxxx with attempted distribution of cocaine base, was dismissed
at the conclusion of the government's case upon the district
court's granting of the defendants' motion for judgement of
acquittal. (App. 021; 12/8/93 Tr. 999) On February 24, 1994, the
district court sentenced Mr. xxxxxxx to a term of imprisonment of
188 months on each of Counts Ten, Twelve, and Seventeen, to run
concurrently. Upon his release from prison, Mr. xxxxxxx has to
serve a term of supervised release of 4 years and a special
assessment of $150.00. (App. 039-042; 2/24/94 Tr. 65-66)
Thereafter, on March 4, 1994, a timely notice of appeal was filed
on behalf of Mr. xxxxxxx. (App. 043) Mr. xxxxxxx is incarcerated
pending this appeal.
SUMMARY OF ARGUMENT
Stephen xxxxxxx contends that the evidence was insufficient to
sustain his convictions for distributing cocaine base and aiding
and abetting. Each of the drug transactions for which Mr. xxxxxxx
was convicted, February 28, 1994, March 7, 1992, and April 1, 1992,
were conducted by someone other than Mr. xxxxxxx. There was no
evidence that Mr. xxxxxxx supplied the drugs which were sold to the
undercover officer. Further, there was not any evidence that Mr.
xxxxxxx received any of the payment for the drugs. Thus, the
evidence failed to establish beyond a reasonable doubt that Mr.
xxxxxxx either distributed cocaine base or aided and abetted in the
distribution of cocaine base.
In addition, Mr. xxxxxxx asserts that his base offense level
under the Sentencing Guidelines should have been based solely upon
the amount of drugs that pertained to the transactions for which he
was convicted. The evidence did not support the district court's
finding that all of the drug transactions alleged in the indictment
were jointly undertaken and reasonably foreseeable by Mr. xxxxxxx.
Thus, Mr. xxxxxxx' sentence should be vacated and the case remanded
to the trial court for a resentencing based upon the amounts of
drugs for which Mr. xxxxxxx was convicted.
Further, Mr. xxxxxxx submits that his offense level should not
have been increased by two points, under U.S.S.G. § 3B1.1(c), for
being a manager or organizer. The evidence did not establish that
Mr. xxxxxxx gave orders, set the price of drugs, arranged the
details of drug transactions or exercised control in any way over
the other defendants in the case. Thus, the district court clearly
erred in ruling that Mr. xxxxxxx was a manager or organizer and this
case must be remanded for resentencing.
Finally, Mr. xxxxxxx contends that he is entitled to a two
point reduction of his offense level, under U.S.S.G. § 3E1.1,
because he accepted responsibility for the conduct pertaining to
his counts of conviction. Thus, because the district court clearly
erred in finding that Mr. xxxxxxx was not entitled to the
aforementioned two level reduction where he had not accepted
responsibility for all of his conduct, the sentence must be vacated
and this case remanded for resentencing.
ARGUMENT
I.THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION
A.Standard of Review
As has been stated many times, "[t]he standard for overturning
a guilty verdict on the grounds of insufficiency of evidence is ...
a demanding one." United States v. Monroe, 990 F.2d 1370, 1373
(D.C. Cir. 1993) (quoting United States v. Lam Kwong-Wah, 924 F.2d
298, 302 (D.C. Cir. 1991)). The reviewing court must determine
"whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A defendant challenging a conviction because of insufficient
evidence faces a burdensome task. However, it is not a hopeless
one. The reviewing court's examination is not "entirely
toothless," and its duty is not discharged by the mere "rote
incantation of [the principles governing a review of sufficiency of
evidence] followed by summary affirmance. [It] must ensure that
the evidence adduced at trial is sufficient to support a verdict as
a matter of law. A jury is entitled to draw a vast range of
reasonable inferences from evidence, but may not base a verdict on
mere speculation." United States v. Teffera, 985 F.2d 1082, 1085
(D.C. Cir. 1993) (quoting United States v. Long, 905 F.2d 1572,
1576 (D.C. Cir.), cert. denied, 498 U.S. 948 (1990)).
B.The Evidence Was Insufficient To Prove Beyond A Reasonable Doubt That Stephen xxxxxxx Unlawfully
Distributed Or Aided And Abetted In The Distribution
Of Cocaine Base
In the present case, Stephen xxxxxxx was convicted of
three counts of unlawfully distributing in excess of 5 grams of
crack cocaine. The drug transactions for which he was convicted
occurred on February 28, March 7, and April 1 of 1992. A review of
the evidence of the aforementioned transactions, even when
considered in a light which is most favorable to the government,
fails to establish beyond a reasonable doubt that Stephen xxxxxxx
was a participant in those drug deals.
As to Count Ten, the evidence established that on February 28,
1992, Detective Stone went to the 200 block of Upshur Street, N.W.,
Washington, DC, to purchase one ounce of crack cocaine from Eric
xxxxxxx. (12/2/93 Tr. 273-274) That this meeting with xxxxxxx was
arrange on a prior occasion. That after a long period of time,
Eric xxxxxxx sold Detective Stone approximately 8 grams of crack
cocaine for one thousand dollars. (12/2/93 Tr. 273-300) That on
February 28, 1992, Detective Stone did not have any contact with
Mr. xxxxxxx. On that date, Detective Stone did not see, talk to,
receive anything from or give anything to Mr. xxxxxxx. (12/6/93 Tr.
535-536, 547-548) Finally, that on February 28, 1992, Detective
Stone did not see Mr. xxxxxxx give anything to or receive anything
from Eric xxxxxxx. (12/6/93 Tr. 54, 580-581)
Next, with regard to Count Twelve, the evidence established
that on March 7, 1992, Detective Stone met with Rodney xxxxxxx in
the area of Rock Creek Church Road and Webster Street, N.W.,
Washington, DC. (12/2/93 Tr. 311-313) This meeting with xxxxxxx
was arranged on March 6, 1992. (12/2/93 Tr. 311-313) That
Detective Stone was to purchase an ounce of crack cocaine from Mr.
xxxxxxx for $1000.00. That during the March 7, 1992, Mr. xxxxxxx
met Detective Stone in his car and had an extended conversation
with him. (12/2/93 Tr. 322-340) Subsequently, Mr. xxxxxxx arrived
and entered Detective Stone's car. (12/2/93 Tr. 341) After a short
conversation, Mr. xxxxxxx left. (12/2/93 Tr. 341-345) After Mr.
xxxxxxx left, Rodney xxxxxxx remained with Detective Stone for
another short period of time. Then xxxxxxx walked around the
corner and returned with approximately 17.97 grams of cocaine base.
(12/2/93 Tr. 345-346) He sold drugs to Detective Stone for
$1000.00. (12/2/93 Tr. 345-346) Again, there was no evidence that
Mr. xxxxxxx supplied the drugs which xxxxxxx sold to Detective
Stone.
Finally, as to Count Seventeen, the April 1, 1992,
transaction, the evidence established that Detective Stone was once
again in the area of the 200 block of Upshur Street to meet with
Eric xxxxxxx. (12/3/93 Tr. 392) On this occasion, Detective Stone
was to meet xxxxxxx to purchase one ounce of crack cocaine.
(12/3/93 Tr. 392) After waiting for a long period of time, talking
to xxxxxxx and other individuals in the area (12/3/93 Tr. 392-439),
Detective Stone purchased approximately seven grams of cocaine base
from Eric xxxxxxx for $500.00. (12/3/93 Tr. 439-440) xxxxxxx
retrieved these drugs from behind a house in the 600 block of
Upshur Street. (12/3/92 Tr. 439-440) On April 1, 1992, Detective
Stone did not have any contact with Mr. xxxxxxx. On that date,
Detective Stone did not see, talk to, or receive anything from or
give anything to Mr. xxxxxxx. (12/6/93 Tr. 583-585) Finally, on
that date, Detective Stone did not see Mr. xxxxxxx give anything to
or receive anything from Eric xxxxxxx. (12/6/93 Tr. 583-585) Thus,
the evidence does not establish that Mr. xxxxxxx directly
participated in any of the drug transactions, supplied any of the
drugs, received any of the payments, or directed anyone to so act
in his behalf.
The appellant recognizes that circumstantial evidence is as
legally sufficient as direct evidence. However, while
circumstantial evidence may sustain a conviction, the inferences
adduced must construct "a logical and convincing connection between
the facts established and the conclusion inferred." United States
v. McNeill, 887 F.2d 448, 450 (3rd Cir. 1989).
In this case, the circumstantial evidence cannot support a
guilty verdict beyond a reasonable doubt. The proximity of Mr.
xxxxxxx' residence, 204 Varum Street, N.W., Washington, DC, to the
area of the transactions; the use of Mr. xxxxxxx' pager number by
some of the participants in the transactions; the mere presence of
Mr. xxxxxxx in the area during the time period of the some of the
transactions; the vague statements of the participants to the
undercover concerning their drug source; and even Mr. xxxxxxx' own
uncorroborated statements are insufficient circumstantial evidence
to support a conclusion beyond a reasonable doubt that he was
involved in the drug transactions of which he was convicted. Thus,
to infer that Stephen xxxxxxx participated in the drug transactions
contained in Counts Ten, Twelve, and Seventeen would amount to mere
speculation and cannot support a guilty verdict.
Finally, the evidence failed to establish beyond a reasonable
doubt that Stephen xxxxxxx aided and abetted the distribution of
drugs. The offense of aiding and abetting is defined in 18 U.S.C.
§ 2(a) which provides that a person who "aids, abets, counsels,
commands, induces, or procures" the commission of a crime is
punishable as a principal. The essential elements necessary to
sustain a conviction for aiding and abetting are: "(1) the specific
intent to facilitate the commission of a crime by another; (2)
guilty knowledge on the part of the accused; (3) that an offense
was being committed by someone; and (4) that the accused assisted
or participated in the commission of the offense." United States
v. Poston, 902 F.2d 90 (D.C. Cir. 1990) (quoting United States v.
Raper, 676 F.2d 841, 849 (D.C. Cir. 1982)). In the present case,
there is no evidence that Mr. xxxxxxx instructed or urged xxxxxxx or
xxxxxxx to initiate their deals with the undercover officer.
Further, there was not any evidence that Mr. xxxxxxx was aware of
any of the activity which occurred between xxxxxxx or xxxxxxx and
the undercover officer when he was not present. Thus, as there is
no evidence that Mr. xxxxxxx supplied the drugs sold by xxxxxxx and
xxxxxxx, or even that he had knowledge of their activity, it was
not proven beyond a reasonable doubt that Mr. xxxxxxx intentionally,
assisted xxxxxxx and xxxxxxx with their drug dealing.
II.THE TRIAL COURT ERRED IN ATTRIBUTING TO MR. xxxxxxx FOR SENTENCING PURPOSES THE TOTAL QUANTITY OF DRUGS CONTAINED
IN THE INDICTMENT AS RELEVANT CONDUCT AND IN INCREASING HIS
BASE OFFENSE LEVEL UNDER U.S.S.G. § 3B1.1(c) FOR BEING A
MANAGER OR ORGANIZER AND IN DENYING HIM A REDUCTION OF HIS
OFFENSE LEVEL PURSUANT TO U.S.S.G. § 3E1.1 FOR ACCEPTANCE
OF RESPONSIBILITY.
In the present case, Stephen xxxxxxx, Eric xxxxxxx, Rodney
xxxxxxx, and Edward xxxxxxx were convicted of several counts of
unlawful distribution of cocaine base. Although, they originally
had been charged with conspiracy to distribute cocaine base, the
jury was unable to reach an unanimous verdict on that count and it
was subsequently dismissed. (App. 022; 12/14/93 Tr. 1191-1199) Mr.
xxxxxxx was convicted for three separate transactions, Counts Ten,
Twelve, and Seventeen. The total amount of cocaine base involved
in Mr. xxxxxxx' counts of conviction was 30.96 grams. (App. 151)
Mr. xxxxxxx was convicted of six additional drug distributions in
addition to the two counts in which he was charged with Mr. xxxxxxx.
Rodney xxxxxxx was convicted of two additional transactions along
with the one count in which he was charged with Mr. xxxxxxx.
Edward xxxxxxx was convicted of five separate, independent drug
transactions. (App. 022) The total amount of cocaine base
resulting from all of the above mentioned transactions was 51.17
grams. (PSI at 10)
On February 24, 1994, the district court concluded that the
trial evidence had established proof of the conspiracy, at least by
a preponderance of the evidence (App. 146), and determined that the
entire 51.17 grams was attributable to each of the defendants for
Sentencing Guideline purposes. (App. 177) In Mr. xxxxxxx' case the
district court also increased his offense level by two points for
being a manager and organizer under U.S.S.G § 3B1.1(c). Further,
the sentencing court refused to reduce Mr. xxxxxxx' offense level by
two points, pursuant to U.S.S.G. § 3E1.1, for accepting
responsibility. (App. 182-186, 196-197) Finding that Mr. xxxxxxx'
total offense level was 34, the district court sentenced him to
imprisonment for a term of 188 months. (App. 039-042, 204-205)
In the present case, Mr. xxxxxxx's case should be remanded for
resentencing because the evidence did not support the conclusion
that the individual, independent, drug dealings of the other
defendants were jointly undertaken and reasonably foreseeable by
him. Further, the evidence did not support the determination that
Mr. xxxxxxx was a manager or organizer of the other defendants.
Finally, under the circumstances of this case, Mr. xxxxxxx should
have been granted the two point reduction for acceptance of
responsibility.
A. Standard of Review
The district court's determination of the drug quantity for
purposes of relevant conduct is a factual conclusion that is
reviewed for clear error. United States v. DePriest, 6 F.3d 1201
(7th Cir. 1993). Similarly, the district court's finding that the
defendant was a manager or organizer is also reviewed for clear
error. United States v. Paz, 927 F.2d 176, 180 (4th Cir. 1991);
United States v. Jewel, 947 F.2d 224 (7th Cir. 1991) Finally, the
district court's decision as to acceptance of responsibility is
also reviewed under the clearly erroneous standard. United States
v. Taylor, 937 F.2d 676 (D.C. Cir. 1991).
B.Mr. xxxxxxx Should Not Be Responsible For The Individual
Transactions Of The Other Defendants.
In the present case, the district court in imposing sentence
accepted "the sentencing guidelines as prepared by the probation
officer." (App. 196) Mr. xxxxxxx' Presentence Investigation Report
concluded that the total quantity of drugs purchased by the
undercover officer from all of the defendants, 51.17 grams, was
attributable to each defendant because the evidence indicated that
they acted in concert and/or knew of each other's activities such
that their criminal activity was jointly undertaken and reasonably
foreseeable. (PSI at 9)
Under U.S.S.G. § 1B1.3 the base offense level for "jointly
undertaken criminal activity" is based upon all of the reasonably
foreseeable acts of others committed in furtherance of the jointly
undertaken criminal activity. Application Note 1 of U.S.S.G. §
1B1.3 defines "jointly undertaken criminal activity" as a "criminal
plan, scheme, endeavor, or enterprise undertaken by the defendant
in concert with others." Application Note 1 further explains that
a defendant is only accountable for the conduct of others where it
was "in furtherance of the jointly undertaken criminal activity"
and it was "reasonably foreseeable in connection with the criminal
activity."
In this case, the evidence did not establish that the various
drug sellers in the "open air drug market" (12/6/93 Tr. 571) of the
200 block Upshur Street, N.W., were involved in a endeavor with
each other to sell drugs. To the contrary, the evidence
established that even the defendants in this case were acting
independently of each other to advance their sales. Even the
undercover officer attempted to keep his individual plans and deals
with xxxxxxx, xxxxxxx and xxxxxxx separate from each other. He was
constantly reminding each of them not to inform the other of his
independent transactions with them. Further, as to Mr. xxxxxxx, at
best, the evidence merely established that he had a relationship
with Mr. xxxxxxx and a separate relationship with Mr. xxxxxxx.
Therefore, the evidence did not establish, even by a preponderance,
that Mr. xxxxxxx was jointly involved with xxxxxxx, xxxxxxx and
xxxxxxx.
Further, the evidence in this case did not support a finding
that the individual, independent sells of drugs by the other
defendants was reasonably foreseeable by Mr. xxxxxxx. In this case,
the evidence completely failed to establish that xxxxxxx was the
supplier of the drugs for each of the other defendant's
transactions with the undercover officer. The evidence showed that
each of the other defendants had connections to other places, such
as 229 Upshur Street, and other drivers of expensive cars prior to
some of their transactions with the undercover officer. None of
the aforementioned contacts had any connection to Mr. xxxxxxx. This
is especially so in light of both xxxxxxx's and xxxxxxx' post-arrest statements. xxxxxxx told the police that the area of
Upshur Street was just independent dealers. (App. 151) After his
arrest, Mr. xxxxxxx told the officers that he had obtained the
drugs which he delivered to the undercover officer on April 4, 1992
(Count Nineteen) from an individual named Bryant. (App. 152) Thus,
the evidence clearly did not establish that all of the activity of
the defendants was jointly undertaken and that the other
defendants' individual transactions were reasonably foreseeable to
Mr. xxxxxxx. Finally, this court has held that in determining
offense levels under U.S.S.G. § 1B1.3 the district court must make
specific findings as to what conduct was reasonably foreseeable to
the defendant. United States v. Lam Kwong-Wah, 966 F.2d 682, 688
(D.C. Cir.), cert. denied, 113 S.Ct. 287 (1992); United States v.
Perkins, 963 F.2d 1523, 1528 (D.C. Cir. 1992). In the present
case, the court merely accepted the conclusions of the presentence
writer. Therefore, Mr. xxxxxxx' case should be remanded for
resentencing.
C.Mr. xxxxxxx Does Qualify As A Manager Or Organizer
In this case, the district court accepted the presentence
investigator's conclusion that Mr. xxxxxxx, as "the supplier of the
cocaine base," was a leader or organizer of the criminal activity.
(PSI at 9, 10) U.S.S.G. § 3B1.1(c) provides for a two point
increase where "the defendant was an organizer, leader, manager, or
supervisor in any criminal activity. . ."
In Mr. xxxxxxx' case, the above mentioned enhancement was
imposed because he was the supplier of the drugs. However, there
was no evidence that he directed the activities of the other
participants, set the prices for the drugs, negotiated or arranged
the time and location of the transactions, that he received a
larger share of he profits, or that he exercised any control over
the other defendants. Thus, none of the factors enumerated in
Application Note 4 of U.S.S.G. § 3B1.1 are present in this case.
In United States v. Veilleux, 949 F.2d 522 (1st Cir. 1991),
the court indicated that in order for the enhancement of § 3B1.1(c)
to apply, the sentencing court "must make a factual finding that
there were at least two participants," and that "the evidence must
show `[t]hat the defendant exercised control over, or was otherwise
responsible for organizing the activities of, at least one other
individual in committing the crime.'" Id. at 524 (quoting United
States v. Akitoye, 923 F.2d 221 (1st.Cir. 1991)). In Veilleux, the
court affirmed the enhancement where the evidence indicated, among
other things, that the defendant assumed his father's drug
operation, took over the accounts receivable, issued orders
concerning all of the deals, set the prices, collected the debts,
and was described as the leader by the witnesses. Unlike Veilleux,
the evidence here did not establish that Mr. xxxxxxx exercised any
of those roles, thus, the district court's ruling that he was a
manager or organizer was clearly erroneous.
D.Mr. xxxxxxx Was Entitled To A Reduction Of His
Offense Level For Acceptance of Responsibility
Following his conviction on Counts Ten, Twelve and Seventeen,
Mr. xxxxxxx met with the presentence investigator and admitted his
involvement in his counts of conviction. However, at his
sentencing the district court denied Mr. xxxxxxx' request for a two
level reduction of his offense level, pursuant to U.S.S.G § 3E1.1,
for acceptance of responsibility. (App. 184-196)
U.S.S.G. § 3E1.1 provides for a two level reduction of the
offense level for acceptance of responsibility. Application Note
1(a) of § 3E1.1 provides that the defendant only has to admit
responsibility for the offenses of conviction.
Mr. xxxxxxx' PSI indicates that he was not entitled to the
acceptance of responsibility reduction because he went to trial and
only admitted the conduct of which he was convicted. (PSI at 10)
However, as was argued by all counsel at the sentencing hearing,
the defendants were forced to trial by the government's refusal to
allow them to plead guilty to their individual counts and not the
conspiracy. It was the defendants' position, as indicated by some
of their post-arrest statements and the evidence at trial, that
they were not jointly involved in a conspiracy. Thus, defendants
could not agree to the requirement that they plead guilty to the
conspiracy. Therefore, because he accepted responsibility for his
counts of conviction, Mr. xxxxxxx was entitled to the two point
reduction under § 3E1.1.
CONCLUSION
For the foregoing reasons, Mr. xxxxxxx conviction should be
reversed. Failing that, Mr. xxxxxxx' sentence should be vacated and
his case remanded for resentencing.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
W. GREGORY SPENCER
Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF LENGTH
I hereby certify that the foregoing brief for appellant,
Stephen xxxxxxx, does not exceed the number of words permitted Rule
28(d) of the General Rules of this Court.
W. GREGORY SPENCER
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of November, 1994, two
copies of the foregoing Brief of the Appellant and one copy of the
accompanying Appendix was served by personal delivery, upon the
Office of the United States Attorney, Appellate Division, 555
Fourth Street, N.W., Washington, DC 20001. Also, one copy of the
foregoing Brief of the Appellant and one copy of the accompanying
Appendix was served by first class mail, postage prepaid, upon Jane
Norman, Esquire, 601 Pennsylvania Avenue, Suite 900, Washington,
DC, 20004; Elaine Mittleman, Esquire, 2040 Arch Drive, Falls
Church, VA, 22043; and, Henry Schoenfeld, Esquire, 601 Indiana
Avenue, N.W., Suite 512, Washington, DC 20004.
W. GREGORY SPENCER
Assistant Federal Public Defender