U.S. v. Sasson
| Decision Date | 22 September 1995 |
| Docket Number | No. 94-2158,94-2158 |
| Citation | 62 F.3d 874 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leonard SASSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry Rand Elden, Asst. U.S. Atty., Brian Havey (argued), Office of the U.S. Atty. Crim. Receiving, Appellate Div., Chicago, IL, for U.S.
Carol A. Brook, Paul Flynn (argued), Office of the Federal Defender Program, Chicago, IL, for Leonard Sasson.
Before BAUER, COFFEY, Circuit Judges, and CRABB, Chief District Judge. *
Leonard Sasson was charged with and convicted of one count of conspiracy to possess with the intent to distribute and five counts of distribution of controlled substances, Dilaudid, 1 Ritalin, and Morphine. See 18 U.S.C. Sec. 2; 21 U.S.C. Secs. 841(a)(1) and 846. He was sentenced to 150 months of imprisonment to be followed by ten years of supervised release. On appeal, Sasson argues that the district court improperly limited his cross-examination of a government witness in violation of his Sixth Amendment right to confrontation, and that the evidence was insufficient to support his conviction. Sasson also challenges his sentence, claiming that the district court erred in using the gross weight of the Dilaudid tablets, rather than only the weight of the controlled substance contained in the tablets, in calculating the length of his sentence. See U.S.S.G. Sec. 2D1.1. Additionally, Sasson argues that the district court's imposition of a ten-year supervised release term was unauthorized by the Sentencing Guidelines. See U.S.S.G. Sec. 5D1.2(a). We affirm Sasson's conviction and his prison term, and remand the case to the district court for resentencing only as to the term of supervised release.
On April 28, 1993, several bottles of pharmaceutical drugs, including Dilaudid and Ritalin, were stolen from the Carriage Way Pharmacy in Lake Bluff, Illinois. Upon investigation, it was determined that both Sasson and his co-defendant John Ryan were in the pharmacy on the date and at the approximate time of the theft. While Sasson was in the pharmacy, he asked Evange Bozinis, the owner of the pharmacy, to assist him in selecting mouthwashes, requesting information concerning the alcohol content of various mouthwashes. Because the mouthwashes were located on the bottom shelf of the aisle, Bozinis bent down to read the ingredients for Sasson. During this same time frame, the cashier of the pharmacy observed Sasson's codefendant Ryan browsing in the store. Shortly thereafter, Bozinis discovered that a cardboard box containing controlled substances and stored in a locked cabinet was missing. Bozinis immediately notified the police department, and an officer was dispatched to the scene. Although Bozinis and the officer walked around the pharmacy in an attempt to determine if the box was left someplace in the store, they were unable to locate it at that time. A few days later, Bozinis presented an inventory of the missing narcotics to the Illinois Department of Professional Regulations (IDPR) and the Drug Enforcement Agency (DEA). It was not until three months later that Bozinis discovered the cardboard box on the bottom shelf of an aisle next to the wall in the pharmacy. 2 The box still contained some controlled substances. Among the controlled substances discovered missing from the box were Dilaudid, Ritalin, Tylox, Codeine Phosphate and Codeine Sulfate.
On May 4, 1993, within a week of the reported theft at the Carriage Way Pharmacy, Sasson's co-defendant, Ryan, arranged to sell 100 Ritalin tablets to a state undercover narcotics agent Richard Sandford. Sasson drove Ryan to the meeting place, a restaurant parking lot in Bensenville, Illinois, and parked his white Chevy Impala 3 across the street from the restaurant. Ryan and Agent Sandford conducted the sale in Sandford's car, while Sasson was observed watching the transaction from across the street. During the sale, Ryan told Agent Sandford that he could sell him more Ritalin as well as other pharmaceutical narcotics. Agent Sandford agreed to purchase another 100 tablets of Ritalin the following day.
The parties met the following day at the parking lot of the Holiday Inn in Elmhurst, Illinois. Sasson drove Ryan to the meeting place and waited across the street in a parking lot. During the transaction, which took place in Agent Sandford's car, Ryan asked Sandford whether he was interested in buying some pharmaceutically prepared Dilaudid tablets that were still in the bottles. Sandford agreed to arrange a deal later. Ryan then exited Agent Sandford's vehicle and was observed, by a surveillance agent, walking toward the Impala. While Ryan was approaching the Impala, a police vehicle stopped the Impala. At that point, Ryan quickly turned around and walked the other way. A police officer approached Sasson and another person in the vehicle and inquired why they were there. Sasson responded that they had brought a friend to purchase tires, but it is interesting to note that there are no tire shops in the immediate vicinity. When asked where their friend was, Sasson and his passenger looked ill at ease and acted nervously. They explained that the friend was there somewhere looking for the tire shop. The police officer later observed Sasson pulling away in the Impala and driving to where Ryan was standing, and Ryan quickly entering the vehicle.
On the following day, Ryan and Agent Sandford arranged a deal over the phone for the purchase of Dilaudid tablets previously offered. Ryan informed Agent Sandford of Sasson's encounter with the police the day before, stating that the person he had brought to the transaction was hassled by a police officer. Agent Sandford responded that he had never had a problem with the Holiday Inn parking lot, and accused Ryan of putting him at risk by conspicuously stationing someone across the street. Ryan agreed to continue to use the Holiday Inn parking lot for future drug transactions. Over the next several days, Ryan and Agent Sandford continued to discuss the terms of the Dilaudid deal. Sandford also inquired of Ryan about the price of Morphine. In response, Ryan stated, "our man has still got to check on that."
The third drug transaction took place on May 10. As with the previous transaction, Sasson drove Ryan to the Holiday Inn parking lot and waited nearby while Ryan conducted the sale in Agent Sandford's vehicle. The parties did not speak again until May 27 when Ryan told Agent Sandford over the telephone that his group had some pharmaceutically prepared cocaine and Dilaudid for sale. In response to an inquiry about the price of the pharmaceutical cocaine, Ryan stated that he did not know, and that he needed to "check with [his] guy" but would call Sandford right back. Ryan's telephone records indicate that Ryan placed a call shortly thereafter to the residence of one Nancy McNeil, located at 1822 West Byron, Chicago, Illinois, where Sasson resided at times. Following that call, Ryan telephoned Agent Sandford back and quoted the price for pharmaceutical cocaine as $1,250. When Agent Sandford complained that the price was too high, Ryan explained that his group did not do "stickups," but would steal drugs from pharmacy safes. Despite Ryan's emphasis on the efforts expended by his group in obtaining the drugs, Agent Sandford continued to insist that the price was too high. Ryan then placed another telephone call to the McNeil residence. Ryan later informed Agent Sandford that he had spoken to "our boy again," and that he would lower the price to $800. In the taped conversation, Ryan stated that "I work with these guys, but ... sometimes ... they come with some prices that are ... off the wall." He also informed Agent Sandford that members of his group generally split the profits from the drug sales and that he was trying to sell the drugs that other members had obtained.
On June 3, 1993, Agent Sandford and Ryan again spoke on the phone to arrange for a Dilaudid deal. Agent Sandford agreed to buy two bottles of Dilaudid for $1,600 that afternoon at the Elmhurst Holiday Inn. Sasson again conveyed Ryan to the Holiday Inn parking lot. When Ryan entered Agent Sandford's vehicle, he stated that he would lower the price because he did not have the agreed quantity of Dilaudid. Ryan explained that he was working with three other people who sometimes would sell the drugs without giving him advance notice. Agent Sandford agreed to purchase the available Dilaudid. At the conclusion of the sale, Sandford advised Ryan that he was interested in doing larger deals and meet less frequently. Ryan stated that they currently were out of drugs but that they were going to make a "run" that weekend to "pick up" some Dilaudid and Morphine for Agent Sandford. Sandford asked Ryan whether he had someone that he trusted and took care of business for him when he was not available. Gesturing toward the Impala in which Sasson was observed waiting, Ryan responded that he had a partner, and stated that he would introduce his partner to Agent Sandford at the time of the next sale. After Ryan returned to the Impala, surveillance agents followed the Impala to 1822 West Byron, in Chicago, Illinois, which was the McNeil residence where Sasson sometimes resided.
On June 7, Ryan contacted Agent Sandford to set up a future sale. During the recorded conversation, Ryan agreed to sell various quantities of Dilaudid and Morphine tablets, and the parties agreed to meet the following day in the lobby of the Elmhurst Holiday Inn. After the discussion, Ryan placed another telephone call to the McNeil residence. On the following day, surveillance agents observed Sasson and Ryan walking around the lobby, whispering among themselves and looking out the window in the direction of the parking lot. Upon Agent Sandford's arrival, Ryan walked out of the...
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