813 F.Supp. 1423 (W.D.Mo. 1993), 92-00023-01-CR-W-6, United States v. Balano

Docket Nº:92-00023-01-CR-W-6.
Citation:813 F.Supp. 1423
Party Name:UNITED STATES of America, Plaintiff, v. Joseph P. BALANO, Defendant.
Case Date:February 19, 1993
Court:United States District Courts, 8th Circuit, Western District of Missouri
 
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Page 1423

813 F.Supp. 1423 (W.D.Mo. 1993)

UNITED STATES of America, Plaintiff,

v.

Joseph P. BALANO, Defendant.

No. 92-00023-01-CR-W-6.

United States District Court, W.D. Missouri, Western Division.

Feb. 19, 1993

Supplemental Opinion Feb. 23, 1993.

Charles E. Ambrose, Asst. U.S. Atty., Kansas City, MO, for plaintiff.

John R. Cullom, Cullom & Warhurst, Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

SACHS, Senior District Judge.

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,

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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.

I.

The related conduct issue is a matter of applied common sense, governed in this circuit by the approach in United...

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