U.S. v. Beaulieu

• Decision Date: 10 January 1990
• Docket Number: No. 88-2586,88-2586
• Citation: 893 F.2d 1177
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darrell BEAULIEU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1177

893 F.2d 1177

UNITED STATES of America, Plaintiff-Appellee, v. Darrell BEAULIEU, Defendant-Appellant.

No. 88-2586.

United States Court of Appeals Tenth Circuit.

Jan. 10, 1990.

Robert G. McCampbell, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Rand C. Eddy, Asst. Federal Public Defender (David Booth, Federal Public Defender, on the brief) Oklahoma City, Okl., for defendant-appellant.

Before TACHA and SETH, Circuit Judges, and BROWN ^*, District Judge.

WESLEY E. BROWN, Senior District Judge.

This appeal raises the issue of what information a sentencing judge may consider in making factual determinations under the Federal Sentencing Guidelines.

Appellant Darrell Beaulieu pled guilty in the district court to one count of conspiracy to manufacture amphetamine and one count of attempting to manufacture amphetamine (21 U.S.C. Sec. 846). He was sentenced to a prison term of 98 months.

The district court held an appropriate hearing before imposing sentence upon the defendant. The defendant was given an opportunity to object to the presentence report and to present any relevant information to the court. See Rule 32, Fed.R.Crim.P. One of the issues at the hearing was whether appellant was an "organizer or leader" of a criminal activity under Sec. 3B1.1 of the Guidelines. Section 3B1.1 provides that a defendant's offense level may be increased as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involves five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

At the conclusion of the sentencing hearing, the district court found that appellant was an "organizer or leader" of a criminal activity ¹ and increased appellant's sentence under Sec. 3B1.1(a). In reaching this conclusion, the sentencing judge relied on testimony from the trial of appellant's two brothers, who were involved in the same drug conspiracy as appellant. ² Several witnesses at the brothers' trial gave the details of the drug conspiracy and named appellant as the leader of the operation. Although appellant did not object at the sentencing hearing, he now argues that the sentencing judge committed fundamental error by considering testimony from a separate trial as evidence at appellant's sentencing (citing United States v. Castellanos, 882 F.2d 474 (11th Cir.1989)). ³ Additionally, appellant argues that the information presented to the court does not support a conclusion that appellant was an "organizer or leader" of the criminal activity.

I. Consideration of trial testimony.

Appellant's first argument is that the sentencing judge erred by considering testimony from a separate trial at appellant's sentencing hearing. We find no constitutional, statutory, or procedural rule, however, that would bar the sentencing judge's consideration of relevant and reliable information of the type used in this case. Plainly, the Federal Rules of Evidence do not apply at sentencing. Fed.R.Evid. 1101(d)(3). Moreover, courts have traditionally been allowed to consider all sources of information in formulating an appropriate sentence: "[N]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. Sec. 3661. Prior to the enactment of the Sentencing Guidelines, the circuit courts had uniformly held that reliable hearsay evidence could be considered in the sentencing determination. See e.g., United States v. Shepherd, 739 F.2d 510, 515 (10th Cir.1984) (The sentencing judge may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain.); United States v. York, 830 F.2d 885, 893 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); United States v. Cusenza, 749 F.2d 473, 478 (7th Cir.1984); United States v. Lee, 818 F.2d 1052, 1055 (2nd Cir.1987), cert. denied, 484 U.S. 956, 108 S.Ct. 350, 98 L.Ed.2d 376. We find nothing in the Guidelines to suggest that a different rule now applies. Section 6A1.3 of the Guidelines provides:

(a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.

The Commentary to this section adds:

In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. Sec. 3661. Any information may be considered, so long as it has "sufficient indicia of reliability to support its probable accuracy." United States v. Marshall, 519 F.Supp. 751 (D.C.Wis.1981), aff'd 719 F.2d 887 (7th Cir.1983); United States v. Fatico, 579 F.2d 707 (2nd Cir.1978). Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered "where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means." United States v. Fatico, 579 F.2d at 713. Unreliable allegations shall not be considered. United States v. Weston, 448 F.2d 626 (9th Cir.1971).

It is clear from these passages that the Guidelines were not intended to place new restrictions on the sources of information available to the sentencing judge. United States v. Sciarrino, 884 F.2d 95 (3rd Cir.1989) ("As a matter of due process ... the enactment of the Sentencing Reform Act of 1984 requires no different rules with respect to what evidence may be used in determining a sentence than were already in place.") The Guidelines expressly allow the use of any reliable information. When there is reason to question the reliability of the information made available to the judge, the Guidelines endorse the preexisting practice of allowing the district court to conduct an evidentiary hearing. See Commentary to Sentencing Guideline Sec. 6A1.3 (citing United States v. Fatico, 603 F.2d 1053, 1057 n. 9 (2nd Cir.1979)). In arriving at the appropriate sentence within the Guideline standards, then, the judge may use any reliable source of information--just as he or she could before the adoption of the Guidelines.

Although United States v. Castellanos, 882 F.2d 474 (11th Cir.1989) supports appellant's argument, we do not find that case to be persuasive. In Castellanos, as in the instant case, the judge who sentenced the defendant relied on testimony from the trial of the defendant's co-conspirators. The Castellanos court, without any citation of authority, held that a sentencing judge could not rely on testimony adduced at the trial of another in sentencing the defendant. The court reasoned that such evidence could not be used because the defendant had not had an opportunity to object to it or to cross-examine the witnesses whose testimony was used. ⁴ In our view, this broad holding does not adequately recognize the differences between the guilt phase and the sentencing phase of a criminal proceeding. The Supreme Court has made clear that the constitutional requirements mandated in a criminal trial as to confrontation and cross-examination do not apply at non-capital ⁵ sentencing proceedings. United States v. Sunrhodes, 831 F.2d 1537, 1543 (10th Cir.1987) (citing Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) and Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959)). Cf. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) (When sentencing amounts to an additional criminal conviction, the defendant is entitled to the full procedural protections applicable to a fair trial.) Clearly, a defendant at sentencing does not have an absolute right to confront witnesses whose information is made available to the court. Sunrhodes 831 F.2d at 1543; United States v. Carmona, 873 F.2d 569 (2nd Cir.1989) ("It is not a denial of due process for the trial judge, when determining sentence, to rely on evidence given by witnesses whom the defendant could neither confront nor cross-examine. [citing Williams v. New York, supra.] The fact that some material, upon which the trial judge relied, had its source in a judicial proceeding in which appellant was not a defendant ... does not bar its use."). Additionally, as we have already indicated, nothing in the text of the Sentencing Guidelines requires the exclusion of testimony originating from a separate trial. ⁶ And finally, the Federal Rules of Evidence, which might bar hearsay evidence from the guilt phase of a trial, do not apply at sentencing. Sunrhodes, supra. We believe the better rule, therefore, is that reliable hearsay--including testimony from a separate trial--may be used at sentencing to determine the appropriate punishment. See United States v. Silverman, 889 F.2d 1531 (6th Cir.1989); United States v. Sciarrino, 884 F.2d 95 (3rd Cir.1989). See also United States v. Roberts, 881 F.2d 95, 105 (4th Cir.1989).

Due process requires that a defendant not be sentenced on the basis of "misinformation of a constitutional magnitude." United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972). This right is protected by the requirement that the defendant be given adequate notice of and an opportunity to rebut or explain information that is used against him. As it pertains to hearsay...