U.S. v. Andruska

• Decision Date: 18 May 1992
• Docket Number: No. 91-2748,91-2748
• Citation: 964 F.2d 640
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ella M. ANDRUSKA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 640

964 F.2d 640

UNITED STATES of America, Plaintiff-Appellant, v. Ella M. ANDRUSKA, Defendant-Appellee.

No. 91-2748.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 11, 1991.

Decided May 18, 1992.

Frederick J. Hess, U.S. Atty., Ralph M. Friederich, Robert T. Coleman, and Kit R. Morrissey (argued), Asst. U.S. Attys., Office of the U.S. Atty., Crim. Div., Fairview Heights, Ill., for plaintiff-appellant.

James Hackett (argued), Edwardsville, Ill., for defendant-appellee.

Before FLAUM and RIPPLE, Circuit Judges, and WILL, Senior District Judge. ^*

FLAUM, Circuit Judge.

A jury found Ella Andruska guilty of concealing fugitive Thomas Taylor from arrest in violation of 18 U.S.C. § 1071. At sentencing, the district court called her behavior "aberrant" and departed downward from the Sentencing Guidelines' applicable sentencing range. The government appeals that departure, contending the court failed to provide the required notice of its intent to depart and its grounds for doing so, and that the finding of aberrant behavior is unsupported by the record. We vacate the sentence and remand for resentencing.

I.

About a year after landing a sales job at a local car dealership, Ella Andruska took up with Thomas Taylor, separated from her husband, and moved into her own apartment. At the time, Taylor was the leader of the Wind Tramps Motorcycle Club--an organization whose activities apparently included cocaine trafficking. Drug transactions took place both at club headquarters and at Taylor's home, located next door. Andruska, a regular visitor of both locations, was aware of the group's enterprises, and bought and used cocaine supplied by club members.

The government, too, knew of the Wind Tramps' illicit endeavors, and on April 19, 1990, law enforcement officials raided the clubhouse and arrested several members on federal warrants for cocaine trafficking and related charges. Authorities were unable to locate Taylor, however, and initiated a search. Andruska was with Taylor at a tavern when news of the raid and the arrests--along with a picture of Taylor--appeared on the television set. She also heard word of the arrests and the search for Taylor in a telephone conversation that evening.

Over the next few months, Andruska maintained contact with several club members (who had been arrested and released on bond or held pending trial) regarding Taylor's whereabouts and well-being. She drove him to Florida sometime between May 27 and June 1--later claiming that, although she knew he "had a lot of problems" and was "in trouble," she thought he was in trouble for marijuana. According to Andruska, the trip was unplanned, and Taylor contributed less than $300 for expenses while she provided the transportation and charged to her credit card the rooms, fuel, and clothing.

After receiving information that Taylor might be with Andruska, state and federal agents in July 1990 began a surveillance of her apartment. Taylor spent the night there on July 16, at which time, according to Andruska, she encouraged him to get some legal advice. The following night at about 10:00 p.m., agents observed Andruska's red 1987 Camaro, bearing "Ella 87" Illinois license plates, leaving the apartment complex's parking lot. After identifying Andruska and Taylor as the driver and passenger, the agents radioed for the assistance of state troopers in marked squad cars.

A uniformed trooper stopped Andruska's car on westbound Interstate 270 shortly thereafter, and ordered Andruska and Taylor to place their hands on the inside roof of the car. Andruska complied; Taylor did not. Taylor then appeared to say something to Andruska--in response to which she dropped her hands, sped away from the scene, and drove a short distance before losing control of the car and coming to a halt. Although Andruska remained in the car, Taylor fled on foot. Agents took Andruska into custody and combed the area for Taylor. Upon questioning, she denied that her passenger was Taylor or that he was armed, and asserted instead that she carried a passenger named "Billy." When apprehended later that night, Taylor was armed with a loaded 9 millimeter semiautomatic pistol.

After Taylor's apprehension, authorities took Andruska to police headquarters where she was advised of her rights and agreed to give a statement. She admitted in the signed statement that Taylor was her passenger and that she knew he was wanted by the police. She further stated that Taylor had spent the previous evening at her apartment, and that she was taking him to St. Louis for drinks when they were stopped by the trooper. Andruska stated that she had used the name "Billy" when asked who her passenger was because that was the name Taylor was using at the time.

The government filed a criminal complaint against Andruska the following day. After her arraignment, she was released on an unsecured $5,000 bond with the condition that she avoid all contact with the Wind Tramps, and specifically with Taylor. The grand jury returned a one-count indictment against her on August 22. Later, after learning that Andruska had regularly visited Taylor at the county jail--gaining access by calling herself "Ella Crocket" (her maiden name)--the government filed a motion to revoke her release order, which the district court granted. A grand jury returned a superseding indictment in February 1991, and, following a four-day trial in April 1991, a jury found Andruska guilty of concealing a person from arrest in violation of 18 U.S.C. § 1071.

At sentencing, Andruska testified that she had been unaware of Taylor's illegal activities and fugitive status. She maintained her innocence throughout the sentencing hearing, and further stated that every witness in the trial against her had lied. Regarding the events leading up to Taylor's capture, Andruska stated that he had stayed with her July 16 and 17, that they had discussed his "situation," and that she had told him to "get a good lawyer" and "get himself straightened out." Sentencing Tr. at 44. She said she sped away from the scene and lied about Taylor's identity because she was afraid for his life, and that her written statement "did not come out like I put it." Id. at 48. As to her visits with Taylor in violation of the terms of her release on bond, Andruska claimed she "didn't know by going to see Tommie that I would go to jail." Id. at 25.

The district court found Andruska's testimony not credible. It also rejected her objection to the portion of the presentencing report finding that she was not entitled to a two-level adjustment for acceptance of responsibility, ruling there had "been no demonstration of acceptance of responsibility for her criminal conduct." Id. at 67. The report assigned Andruska a criminal history category of I which, combined with an offense level of 30, resulted in an applicable sentencing range under the Guidelines of 97-121 months. The court accepted this calculation, and, after recognizing that 18 U.S.C. § 1071 provides a maximum sentence of 60 months, found 60 months the appropriate sentence pursuant to § 5G1.1 of the Guidelines. However, determining that Andruska's behavior was "aberrant," the court, sua sponte, then proceeded to depart downward to an offense level 22, with a Guidelines range of 41-51 months, and sentenced Andruska to a 42-month term of imprisonment.

II.

Our first task is to determine whether the district court gave the government sufficient notice of its intent to depart downward from the appropriate Guidelines range on a ground not raised by either of the parties. Burns v. United States, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), held that a district court must give the defendant "reasonable notice" before it can depart upward on a ground not identified either in the presentence report or in a prehearing submission by the government. Id. 111 S.Ct. at 2187. That notice "must specifically identify the ground on which the district court is contemplating an upward departure." Id. At issue here is the converse proposition: whether the district court must give notice to the government before it can depart downward on a ground not raised by either party.

The petitioner in Burns had entered into a plea agreement with the government, which stated the parties' expectation that Burns would be sentenced within the Guidelines range corresponding to an offense level of 19 and a criminal history category of I. Id. at 2184. The probation officer confirmed this expectation in Burns' presentence report, and found the applicable sentencing range to be 30-37 months. The report concluded: "There are no factors that would warrant departure from the guideline sentence." Id. Although neither the government nor Burns had filed any objections to the presentence report, at the conclusion of the sentencing hearing the district court announced that it was departing upward from the Guidelines sentencing range (for reasons not relevant here) and sentenced Burns to 60 months' imprisonment.

Burns claimed Fed.R.Crim.P. 32 required the district court to give advance notice of its intent to depart sua sponte from the Guidelines; the Government claimed it did not. Rule 32 provides, among other things, that at the sentencing hearing the district court "shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer's determination and on other matters relating to the appropriate sentence." Fed.R.Crim.P. 32(a)(1). The Supreme Court agreed with Burns. Of particular relevance, the Court framed the issue not only as whether a defendant is entitled to notice, but also, in dicta, as whether the government should be so apprised:

It is equally appropriate to frame the issue as whether the parties are entitled to notice before the district court departs upward or downward from the Guidelines range. Under Rule 32, it is clear that the defendant and the Government enjoy...