US v. Balano, 92-00023-01-CR-W-6.
| Decision Date | 23 February 1993 |
| Docket Number | No. 92-00023-01-CR-W-6.,92-00023-01-CR-W-6. |
| Citation | 813 F. Supp. 1423 |
| Parties | UNITED STATES of America, Plaintiff, v. Joseph P. BALANO, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Charles E. Ambrose, Asst. U.S. Atty., Kansas City, MO, for plaintiff.
John R. Cullom, Cullom & Warhurst, Kansas City, MO, for defendant.
This opinion deals with certain novel and important legal issues that are dispositive of the major points that must be resolved at sentencing on February 22, 1993. Other issues will be orally ruled. Unrelated matters were dealt with in a published pretrial ruling. United States v. Balano, 788 F.Supp. 1076 (W.D.Mo.1992).
Defendant has been acquitted of a drug conspiracy charge, involving events in January and February 1991. He has been convicted of a comparatively small cocaine sale in a "sting" operation, after the key distributor was caught and became a cooperating witness for the Government. Instead of being an alleged subsidiary distributor for the witness in a proposed five kilogram transaction (where one kilogram was actually acquired) and a subsequent ten to twelve kilogram transaction, planned but aborted insofar as defendant is concerned, he simply stands convicted of selling the witness, Elfarra, one ounce of cocaine on December 12, 1991, some ten months later.
Believing that defendant won his conspiracy acquittal by perjury, and that its trial proof relating to defendant was weakened by an overconfident presentation and a desire not to overtry a strong case, the Government seeks to recoup its trial failure by sentencing hearing proof that will satisfy the court, by a preponderance of the evidence, that defendant was in fact a conspirator, and should be punished for the conspiracy by using a "related conduct" theory. The Probation Office accepts the Government's approach, and concludes that defendant is to be sentenced under a Guideline range of 188 to 235 months, as contrasted with its view that a range of 10-16 months is applicable if the one ounce sale stands alone.
Having heard and received proof in a hearing that went into a second day, I accept the Government's factual premises. I believe, by a preponderance of evidence (and also by clear and convincing evidence) that defendant Balano was a coconspirator with his cohorts, Henry, Nigro and others. I believe Balano perjured himself, and that the additional material presented to me might well have convinced a jury to convict him on the conspiracy charge. But defendant's counsel makes a persuasive Double Jeopardy argument or, if sentencing is not treated as a criminal proceeding subject to Double Jeopardy analysis, a watered-down version available under the rubric of Due Process. Defendant also argues convincingly that the alleged conspiracy events were not "relevant conduct," under the Sentencing Guidelines. If there had been a conspiracy conviction, it is argued that it would have gone to Criminal History calculations but that the drug amounts involved should not be added to the fatal ounce transferred to Elfarra in December 1991. After some study I agree with defendant's legal arguments.
The related conduct issue is a matter of applied common sense, governed in this circuit by the approach in United States v. Montoya, 952 F.2d 226 (8th Cir. 1991), and United States v. Lawrence, 915 F.2d 402 (8th Cir.1990). In Montoya, Judge Loken wrote that it was error to treat a marijuana incident in Florida as relevant conduct, chargeable at sentencing to a defendant in an Omaha cocaine conspiracy three months earlier. As stated in Montoya, the Relevant Conduct provision in the Guidelines (Sec. 1B1.3(a)(2)) turns on undefined concepts; that is, whether the other acts were part of "the same course of conduct or common scheme or plan" as the offense of conviction.
Lawrence says we must look for a "continuous pattern of drug activity," similar in nature and having some temporal proximity. 915 F.2d at 407. In that case, a marijuana conviction was enough to trigger sentencing for cocaine sales within the same period of several months and involving at least one common customer.
In the present case, the product is the same and the personnel are the same. However, the conspiracy charge involved a multi-kilo plan for acquisition from Elfarra, whereas the conviction was for a dramatically smaller sale to Elfarra, after a ten month break, in which Balano was "cut out" of the cocaine conspiracy distribution activity. The comparatively small sale to Elfarra was not a natural or normal development, evidencing a pattern of conduct, but was a planned "sting operation" designed to show defendant's proclivity to being a drug dealer. Although the question may be close, I find the situation analogous to Montoya, and as in Montoya I conclude it would be outside the circle of culpability to hold Balano for amounts contemplated in the earlier conspiracy with Elfarra.1 Compare, United States v. White, 888 F.2d 490, 500 (7th Cir.1989).
On the more legally significant aspect of the case, the Double Jeopardy problem, there is a considerable body of legal doctrine developing against my conclusion, but none directly on point in the Eighth Circuit, and perhaps none where the Government's activity is as plainly and candidly an attempt to win on rematch what it was unable to win in the original trial. If the Government is not openly challenging the Double Jeopardy Clause as commonly understood, it seems to me that it has allowed its sense of injustice to prevail over its duty to accept the lesson and rationale of that Clause, and that the court would be violating Due Process if it were to follow the Government's lead.
I am well aware of the Eighth Circuit ruling that acquittal conduct can be used at sentencing, under the Guidelines and as an evidentiary matter, because the different burdens of proof prevent collateral estoppel. United States v. Dawn, 897 F.2d 1444 (8th Cir.1990). While that case did not deal with Double Jeopardy or Due Process, I am aware that cases elsewhere have rejected such challenges to sentencing proceedings. E.g., United States v. Boney, 977 F.2d 624 (D.C.Cir.1992), and cases cited. As Judge Randolph discusses in his separate opinion in Boney, there is something counter-intuitive in the developing cases. 977 F.2d at 644-7. "Conceptual nicety" seems to be prevailing; perhaps the sense of the existence of the forest is being lost because of the trees.
The Government contends that defendant's argument is precluded by Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). In Dowling the Court held there was no error, or at least no fatal error, where evidence pertaining to a bank robbery charge which resulted in an acquittal was presented in a subsequent bank robbery case. But the trial court had instructed the jury about the acquittal (contrary to the claim here that I should second-guess the jury's verdict) and the evidence admitted was deemed to be consistent with the earlier acquittal. Without such factors, it is not clear that a majority of the Court would have affirmed.
As observed in the dissent of Justice Brennan in Dowling, "the core protection of the Double Jeopardy Clause attaches to an acquittal and prohibits retrial for the `same offense' after an acquittal." 493 U.S. at 355, 110 S.Ct. at 675. Defendant in this case may be forgiven for supposing that the elaborate rehearing of the conspiracy case last week was, in effect, a retrial. The Government apparently contends that the lower burden of proof and the loss of entitlement to jury consideration means that the sentencing hearing...
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U.S. v. Balano
...sentencing, the trial court found that the evidence was clear and convincing that Mr. Balano had participated in the conspiracy charged. 813 F.Supp. 1423. The trial court also held, however, that Mr. Balano's participation in that conspiracy was not relevant conduct that had to be considere......