U.S. v. Stevens, 330

Citation985 F.2d 1175
Decision Date11 February 1993
Docket NumberNo. 330,D,330
PartiesUNITED STATES of America, Appellee, v. David STEVENS, Defendant-Appellant. ocket 92-1304.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael E. Gertzman, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Andrew C. McCarthy, Asst. U.S. Atty., on the brief), for appellee.

Roger J. Bernstein, New York City, for defendant-appellant.

Before: KEARSE and MINER, Circuit Judges, and POLLAK, District Judge *.

KEARSE, Circuit Judge:

Defendant David Stevens appeals from a final judgment of the United States District Court for the Southern District of New York convicting him, following a jury trial before Kevin Thomas Duffy, Judge, of possessing and conspiring to possess heroin with intent to distribute, in violation of 21 U.S.C. § 841 (1988 & Supp. II 1990) and id. § 846 (1988). Stevens was sentenced principally to 405 months' imprisonment, to be followed by a life term of supervised release, and was fined $2,000,000. On appeal, he contends principally (1) that he was unfairly prejudiced by the government's failure to make pretrial disclosure of certain evidence used to impeach his testimony at trial, (2) that the district court incorrectly instructed the jury concerning his defense of duress, and (3) that the district court erred in its application of the federal Sentencing Guidelines ("Guidelines"). For the reasons below, we affirm the conviction but vacate the sentence and remand for resentencing.

I. BACKGROUND

The present prosecution of Stevens, culminating in his conviction in 1992 on the above narcotics charges, has its roots in his arrest in 1990 on charges of participation in a stolen-car ring (the "Ring"). The evidence at trial in the present case, taken in the light most favorable to the government, revealed the following.

A. The 1990 Arrest and Stevens's Cooperation Agreement

The Ring specialized in stealing luxury cars and selling them after altering their identification numbers and fabricating documentation to match; Stevens was one of the Ring's salesmen. When arrested on federal charges with respect to his participation in that operation, Stevens, who had previously given local police officers information about the Ring after a friend and fellow Ring member was killed, told the arresting officers he wished to cooperate with the Federal Bureau of Investigation ("FBI"). As a result, in December 1990, Stevens entered into a cooperation agreement with the United States Attorney's Office for the Southern District of New York. Pursuant to that agreement, he was allowed to plead guilty in July 1991 to an indictment charging him only with possession of a vehicle with an altered vehicle identification number, and sentencing on that charge was postponed.

In the meantime, Stevens gave the government information about the Ring, allowed the government to record conversations with targets of its investigation, and testified before a Grand Jury against several Ring members, including one Rafael Perez. The recorded conversations included a January 1991 telephone call placed by Stevens to Perez from a public telephone near Yankee Stadium. Partly as a result of Stevens's cooperation, the government obtained indictments in the spring of 1991 against a number of Ring members, including Perez.

B. Perez's Accusations and the October 1991 Heroin Transaction

Perez, after his own arrest, approached the Newark, New Jersey office of the Drug Enforcement Agency ("DEA") and offered to provide that agency with information. His offer was accepted, and Perez subsequently entered into a cooperation agreement. Pursuant to that agreement, Perez told the DEA that Stevens was importing heroin.

Perez introduced undercover DEA agent Gregory Hilton to Stevens in early September 1991 during a recorded telephone conversation. In late September, Stevens, Perez, and Hilton met at a diner in New Jersey. At the meeting, Stevens quoted Hilton heroin prices that varied according to, inter alia, quantity and terms of payment. Hilton told Stevens he would get back to Stevens after Hilton had spoken to On the following day, October 11, Hilton telephoned Stevens to attempt to arrange the sale. During that conversation, Stevens told Hilton, "We'll do it one at a time," meaning that he would sell 100 grams of heroin at a time. Later that afternoon, Hilton telephoned Stevens to make further arrangements. Hilton said he had $90,000; Stevens replied that he had 500 grams. They agreed to meet at a restaurant, and Hilton went there to wait for Stevens. When Stevens did not appear for several hours, Hilton telephoned him to find out where he was. Stevens said he would arrive in about 20 minutes; he also said that, because this was his first sale to Hilton, he would only bring 100 grams of heroin that night. Stevens assured Hilton that if all went well, he would eventually sell Hilton the remaining 400 grams.

                his "investors."   Hilton telephoned Stevens about two weeks later, saying that he wanted to purchase about "a thousand" grams of heroin.   Stevens replied, "We'll give you, like, half and half," which Hilton understood to mean that Stevens would sell him only 500 grams of heroin at a time.   Stevens indicated that the price of 500 grams would be $90,000
                

Stevens arrived at the restaurant about 20 minutes later, apologized for being late, and asked Hilton to step outside. The two crossed the street and headed toward three double-parked vehicles. When they reached the middle one, its driver lowered the rear window and turned on the interior lights. There were approximately five people inside, including one Linda Smith. Stevens told Smith to show Hilton the package. Smith removed from beneath her coat a clear plastic bag containing a white powdery substance; another passenger took the bag, showed it to Hilton, and after the agent acknowledged seeing it, replaced it inside Smith's coat. Stevens and Hilton stepped away and proceeded to negotiate a price of $20,000 for the bag. Hilton said he had to get the money from his car; while walking away, he signaled other agents, who moved in and arrested Stevens and nine others. The bag shown to Hilton was seized and determined to contain 96 grams of heroin. In a later search, the police found a .32 caliber automatic pistol between the front seats of one of the vehicles.

C. The Present Prosecution

Stevens was indicted on one count of possessing heroin with intent to distribute, in violation of 21 U.S.C. § 841, and one count of conspiring to do so, in violation of § 846. Prior to trial, he moved pursuant to Fed.R.Crim.P. 16(a)(1)(A) & (C) for, inter alia, "production of all of [his] statements to government agents," including statements concerning "two rings of individuals involved in car theft and alteration of motor vehicle identification numbers." Stevens argued that such statements were material to his defense, and hence discoverable, because he would be "subject to cross-examination concerning those statements if he elect[ed] to testify" and because "many of the statements concern the informants who have made the present allegations against" him. (Memorandum of Law in Support of Pretrial Motions, Nov. 26, 1991, at 3-4.) The Government opposed Stevens's motion to the extent that it sought statements made by Stevens while he was acting as a government agent during its investigation of the Ring, taking the position that such statements could not be used at trial in connection with its case in chief, and therefore were not subject to disclosure under Rule 16(a)(1)(A). Stevens did not press his motion, advising the court at a hearing that "[t]he issue as to production of Mr. Stevens' statements is largely resolved by agreement with the government."

At trial, Stevens relied principally on a defense of duress, contending that Perez had pressured him into participating in the attempted heroin sale in order to prove that he was not an informant. In his opening statement, Stevens's counsel stated that Stevens had been "set up, coerced, if you will, in a single syllable word, framed, by an armed, violent and dangerous career criminal whom [the prosecutor] did not tell you about. That individual's name is Rafael Perez, commonly known as Ralph Perez." Counsel urged the jury to ask yourselves, was David Stevens framed in this case? Was he set up? Was Ralph Perez the drug dealer that the government didn't bother to go after in this matter? And did he coerce David Stevens into doing the things that the government says happened?

In support of the duress theory, Stevens testified in detail as to his cooperation with the government in the investigation of the Ring. According to Stevens, Perez and other Ring members "all thought [Stevens] was squealing," and Perez twice asked him to participate in heroin transactions because they wanted "reassurance." The first proposed transaction, which Stevens was able to avoid, was said to have been suggested during the government-recorded Yankee Stadium telephone conversation in early 1991, when Perez allegedly attempted to get Stevens to agree "to sell some drugs to [sic ] for him." Stevens testified that Perez did not specifically "say 'drugs' over the phone" but rather used the code word "oranges," a word Stevens had "noticed being used between himself and [another Ring member] in regards to drug transactions." Stevens testified that the second transaction proposed to him by Perez was the aborted October 11, 1991 heroin sale that gave rise to the present prosecution, and that it was Perez who obtained the heroin and gave it to Smith for the sale to Hilton. According to Stevens, on the night the sale was to take place, Perez's source was apparently delayed and Stevens had hoped to stall and to abort the sale. However, Perez was with him at the time of Hilton's last call and accused him of stalling and "trying to blow the deal"; Stevens said Perez told him of shooting...

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