U.S. v. Pelaez, 89-2284

• Citation: 930 F.2d 520
• Decision Date: 16 April 1991
• Docket Number: No. 89-2284,89-2284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernardo PELAEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 520

930 F.2d 520

UNITED STATES of America, Plaintiff-Appellee, v. Bernardo PELAEZ, Defendant-Appellant.

No. 89-2284.

United States Court of Appeals, Sixth Circuit.

Argued March 21, 1991.

Decided April 16, 1991.

Jennifer J. Peregord, Stephen J. Markman, U.S. Atty. (argued), Eric M. Straus, Asst. U.S. Atty., U.S. Dept. of Justice, Detroit Strike Force, Detroit, Mich., for plaintiff-appellee.

Richard M. Lustig, Robyn B. Frankel (argued), Lustig & Friedman, Birmingham, Mich., for defendant-appellant.

Before KEITH and MARTIN, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Defendant-appellant, Bernardo Pelaez, appeals his jury conviction and sentence for conspiracy to possess with intent to distribute and distribution of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. For the following reasons, we affirm in part and reverse in part.

I.

On November 4, 1983, defendant was charged in a multi-count indictment, along with twenty-eight others, with conspiracy to possess with intent to distribute and distribution of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On December 8, 1983, defendant was arrested in Florida by DEA agents pursuant to an arrest warrant. Defendant was arraigned on the federal indictment in the Eastern District of Michigan on December 21, 1983. A surety bond in the amount of $200,000, which had previously been provided in a Florida proceeding, was transferred and defendant was released pending trial.

On January 27, 1984, defendant appeared in court with his attorneys for a hearing on several pretrial motions. A trial date of March 6, 1984 was set by the court. Shortly afterwards, defendant fled to Colombia.

The district court granted the government's motion for permission to proceed with the trial in absentia. A jury trial was begun on March 8, 1984, and on April 3, 1984, defendant was found guilty on count one. Defendant's bond was forfeited, and a bench warrant was issued for his arrest on May 18, 1984. Counsel for defendant filed a motion opposing the sentencing of defendant in absentia. The district court granted the motion.

On December 5, 1985, the Assistant U.S. Attorney filed a petition pursuant to a 1981 extradition treaty between the United States and Colombia to hold the defendant for purposes of extradition to the United States. The defendant was held in custody in Colombia for a period of 21 months until the Colombian Supreme Court ruled, in an Order dated July 30, 1987, that because the conspiracy in this matter occurred prior to the 1981 extradition treaty between the parties, the United States could not extradite the defendant from Colombia. Defendant was subsequently released from custody in Colombia in December 1987.

On September 13, 1989, Colombian authorities again arrested defendant in Colombia. On October 15, 1989, defendant was "extradited" to the United States for sentencing in the present case. On November 7, 1989, a sentencing hearing was held before the district court.

At the time of the sentencing hearing, a number of motions were before the court including defendant's motion to be returned to Colombia, alleging an illegal extradition, and a motion for the court to order that defendant be allowed credit for the time he had served while awaiting extradition in Colombia. Defendant's motion to be returned to Colombia was deferred until after sentencing. Defendant's motion for allowance of credit for time served was denied for failure to exhaust administrative remedies.

Upon completion of these matters, the court asked whether either the defendant or his attorney had anything to say about why the sentence of the court should not be imposed. Defendant's counsel responded, requesting that the sentencing hearing be delayed, but this request was denied. At the conclusion of the discussion, the court stated:

The relief that the defendant seeks [return to Colombia] can be done after sentence is imposed and I think more appropriate after I impose the sentence. Therefore, unless there is something more that either counsel cares to address the Court, I--and I think there isn't. Both counsel have addressed the Court as they're entitled to do.

The court proceeded to sentence the defendant to 15 years imprisonment and ordered him to pay a $25,000 committed fine. The court recessed at 10:42 a.m.

At 12:45 p.m. the court reconvened. The court then stated:

Let the record show that I have reconvened the Court to overcome, perhaps, not giving both the defendant and his attorney the opportunity to address the court with respect to the imposition of the sentence and the consequences....

The court subsequently addressed both defense counsel and defendant and specifically asked whether or not the defendant wished to say anything to the court about mitigation of punishment. Lengthy statements were made by both defendant and his counsel. The defendant made statements regarding his personal life and minor role in the conspiracy and he pled for mitigation.

At the close of this proceeding, defense counsel asked that the court modify the sentence previously imposed based on his and his client's statements. The court replied that he could not conscientiously reduce the sentence and then stated "[as] far as reconsidering the sentence, that wasn't the purpose of having you back." On November 11, 1989, the final judgment was issued. Subsequently, on January 18, 1990, the district court denied defendant's motion to be returned to Colombia.

Defendant timely filed this appeal.

II.

This court must first determine whether the district court insufficiently complied with Fed.R.Crim.P. 32(a)(1)(C) by failing to address defendant Pelaez concerning mitigating circumstances prior to the imposition of sentence.

Fed.R.Crim.P. 32(a)(1)(C) mandates that before imposing sentence, the court shall "address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence." This subsection of Rule 32 expressly incorporated the holding in Green v. United States, 365 U.S. 301, 304-05, 81 S.Ct. 653, 655-56, 5 L.Ed.2d 670 (1961), in which the Supreme Court stated that a sentencing court was required to afford the defendant an opportunity to speak personally in his or her own behalf. This circuit has stated in United States v. Thomas, 875 F.2d 559 (6th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 189, 107 L.Ed.2d 144 (1989) that maximum compliance with Green is expected and that it would construe Rule 32 quite literally. "Before the conclusion of the sentencing hearing, the district judge must personally and unambiguously invite the defendant to speak in his own behalf." Id. at 563 (emphasis in original).

In the present case, the district court did address the defendant, stating:

Well, first of all I think I will inquire of the defendant and his attorney if either the defendant or his attorney have anything to say why the sentence of the Court should not be imposed other than what has been already referred to and is--by the Sentencing Memoranda and the two motions filed by the defendant.

However, the district court did not specifically invite the defendant to present any information in mitigation of the sentence. The Court of Appeals for the Fifth Circuit, in United States v. Sparrow, 673 F.2d 862, 864 (5th Cir.1982), disapproved of the omission of this specific language. In the present case, not only was this language omitted, but also at the conclusion of the hearing in which defendant had said nothing, the district court stated, "Therefore, unless there is something more that either counsel cares to address the court, I--and I think there isn't. Both counsel have addressed the court as they're entitled to do." Under these circumstances, we do not think the court sufficiently determined if the defendant wished to make a statement and present any information in mitigation of the sentence. See United States v. Byars, 290 F.2d 515, 517 (6th Cir.) (no inquiry was made directly to defendant whether he wished to make a statement in his own behalf before sentence was imposed), cert. denied, 368 U.S. 905, 82 S.Ct. 185, 7 L.Ed.2d 99 (1961); but see United States v. Franklin, 902 F.2d 501, 507 (7th Cir.) (court is not required to renew its invitation to defendant to make any statement he wanted in mitigation of sentence at end of hearing when neither defendant nor his counsel indicated that defendant wished to speak), cert. denied, --- U.S. ----, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990).

The government argues that any deficiency in the application of Fed.R.Crim.P. 32(a)(1)(C) was cured when the district court reconvened and invited defendant to discuss mitigating circumstances. The court apparently became aware of its prior error, because two hours later it reconvened "to overcome, perhaps, not giving both the defendant and his attorney the opportunity to address the Court with respect to the imposition of the sentence and the consequences." The defendant accepted the invitation of the court and argued that he collected the money for the drugs but never delivered the drugs, that his minor role in the conspiracy was not to bring cocaine into the United States, and that he wanted to return to Colombia to be with his wife and child whom the drug lords had threatened to torture or kill.

Defendant's counsel asked to present witnesses to testify about defendant's minor role in the conspiracy, but the district court properly declined, stating that that would be going beyond the record and was beyond the scope of the hearing. The district court also listened to defense counsel's objections to statements made in the presentence report and agreed to several deletions and changes requested by defendant.

However, when defendant's counsel requested that the court modify the sentence, the following colloquy took place:

THE COURT: Well, I've already imposed the sentence, and the sentence...