U.S. v. Berzon

• Decision Date: 09 May 1991
• Docket Number: No. 90-2080,90-2080
• Parties: UNITED STATES of America, Appellee, v. Robert Alan BERZON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

941 F.2d 8

UNITED STATES of America, Appellee, v. Robert Alan BERZON, Defendant, Appellant.

No. 90-2080.

United States Court of Appeals First Circuit.

Heard May 9, 1991.

Decided Aug. 5, 1991.

Jack I. Zalkind, with whom Neil F. Faigel and Ellen Y. Suni were on brief, for appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Nicholas M. Gess, Asst. U.S. Atty., were on brief, for the U.S.

Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

CAMPBELL, Circuit Judge.

Defendant-appellant Robert A. Berzon appeals from his Guidelines sentence of thirty-six months imprisonment for narcotics offenses. Berzon contends that the sentence, and specifically an upward adjustment under U.S.S.G. § 3B1.1(c) ¹ was improperly predicated upon information regarding his role in the offense which was not presented to him or his attorney and which he had no opportunity to rebut. This information consisted of testimony at codefendant Steven Novak's sentencing hearing from the case agent, Drug Enforcement Administration Special Agent Michael A. Cunniff. We agree that a defendant must be provided with a meaningful opportunity to comment on the factual information on which his or her sentence is based. Berzon was not advised that the version of the facts contained in Cunniff's testimony at Novak's sentencing hearing would be considered in connection with his sentence, if in fact it was. If the district court considered this information in sentencing Berzon, Berzon should have been provided with notice and an adequate opportunity to comment on this information. As it is unclear whether the district court took account of the information, we do not disturb Berzon's sentence at this juncture but rather remand to the original sentencing judge with directions that he indicate in the record whether he materially relied on the information in sentencing Berzon. If the judge certifies that he did not, the sentence will stand. If the court indicates that it did rely materially, it should then vacate Berzon's sentence and Berzon should be resentenced by a different district judge.

I. Background

This case arises out of an investigation of a drug ring, managed by Michael Goldin, ² that imported cocaine and marijuana from Colombia into the United States via Florida. In November 1988, a ten thousand pound shipment of marijuana was delivered to the Portland, Maine area with the aid of two confidential informants (CI's). The CI's continued undercover involvement in the venture, periodically reporting information obtained from Goldin to law enforcement officials. In an effort to uncover Goldin's drug-trafficking network, controlled deliveries of marijuana to Goldin's customers were arranged, including a transaction involving Berzon and three codefendants.

The following facts, summarized in Berzon's presentence investigation report (PSI), are undisputed. Goldin made arrangements to negotiate with customers on November 21, 1988, after which the customers would leave the keys to their cars with Goldin. Goldin would then give the keys to two associates who were, in fact, undercover agents (apparently distinct from the two CI's), who would drive the cars to a site where the marijuana would be loaded and return the cars to the Goldin's hotel, and Goldin would then return the keys to the customers. Goldin met with Berzon, and codefendants Novak, Robert Haskins and Kenneth Braun. Goldin gave to the undercover agents keys to a green pickup truck registered to Haskins and a black Cadillac rented by Novak. The agents loaded the green pickup truck with 74 bales (approximately 1850 pounds) and the black Cadillac with 9 bales (approximately 225 pounds) of marijuana. Surveillance agents then observed Haskins get out of a Jeep registered to Braun, get into his loaded green pickup truck and drive off. Haskins was stopped driving southbound on the Maine turnpike and arrested. Somewhat later, the surveillance agents observed Novak get out of Braun's Jeep, enter the rented loaded black Cadillac, and drive away, with Braun and Berzon following in the Jeep. Both vehicles were subsequently stopped and the defendants arrested.

Presentencing Proceedings

Berzon was charged in the first two counts of a five count indictment returned against the four defendants. Count II charged Berzon alone with possession with intent to distribute and aiding and abetting the possession with intent to distribute in excess of 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2. Count I charged all four defendants, including Berzon, with conspiracy to commit the same offenses with which Berzon was charged in Count II, in violation of 21 U.S.C. § 846. The remaining counts charged Berzon's codefendants.

In connection with a pretrial motion to dismiss the indictment on the basis of alleged government misconduct in bringing the marijuana into the United States, the case agent's (Cunniff's), detailed summary investigation report dated January 4, 1989 was provided to the defendants and the court. That report, while not specifically addressing Berzon's role in the offense, included relevant information arguably suggesting Berzon's managerial role. The report stated that on November 21, 1988, Berzon reportedly told Goldin he would not deal with Goldin in the presence of the CI's because Berzon suspected that they were cooperating with the government. Cunniff reported that on November 22 Goldin told the CI's that Berzon had arrived but that Berzon would not be transporting any marijuana himself. Cunniff also reported that later on November 22, Goldin told the CI's that Novak was on his way to Goldin's hotel, that Berzon was eating at a nearby restaurant, that Berzon would not be able to see the CI's, and that he (Goldin), was going to meet Novak and Berzon at the restaurant so that Berzon and Novak could be assured the CI's were uninvolved in the deal. The report also recounted the arrangements for loading the vehicles with marijuana, noting, "GOLDIN told the cooperating individuals that the vehicles belonged to the BERZON group."

Also, a hearing, at which Berzon was represented by counsel, ³ was held on June 21 and 22, 1989, on defendants' motions to suppress evidence, claiming that they were arrested and their vehicles searched in violation of the Fourth Amendment. Cunniff testified, and was cross-examined by counsel representing Berzon, regarding the defendants' activities during the operation. The testimony was not specifically directed to the defendants' roles in the offense, but again testimony arguably suggesting Berzon's leadership role was adduced. Cunniff testified that the CI's mentioned that Novak and Berzon were coming by car and commercial airline to explore the purchase of marijuana. Cunniff recalled that, according to Goldin, it was Berzon that told Goldin to load Novak's rented Cadillac with marijuana. He also indicated that the keys to the pickup truck were given to Goldin by Berzon. In addition, Cunniff indicated that he had no knowledge that codefendant Haskins ever had a conversation with Goldin or the CI's, and indicated no one told him Haskins was coming to Maine to pick up marijuana or that Haskins was in the marijuana business.

Subsequent to these pretrial motions, Berzon pleaded guilty to Counts I and II of the indictment. As a factual basis for the plea, the government stipulated that Goldin "negotiated with Steven Novak and Robert Berzon" for the distribution of $50,000 worth of marijuana at a price of $550 per pound, for a total of approximately 90 pounds of marijuana, notwithstanding evidence that the vehicles were loaded with much more marijuana and that the $50,000 was a down payment for the larger purchase. Codefendants Novak and Haskins also pleaded guilty. Charges against Braun were dismissed. A presentence conference was scheduled for the remaining three defendants on June 4, 1990. However, on May 30, 1990, Berzon filed a motion to continue the presentence conference on the grounds that his attorney was being admitted to the hospital on May 31, 1990 for heart by-pass surgery. The motion was granted and the presentence conference for Berzon was rescheduled for September 11, 1990.

Meanwhile, codefendants' presentence conference was held on June 4, 1990 as scheduled, and their sentencing hearings were held on June 18, 1990, while Berzon's attorney was recovering from surgery. One issue at codefendant Novak's sentencing was whether a two level upward adjustment should be made for Novak's role in the offense as a leader and organizer under U.S.S.G. § 3B1.1(c). The government called on Special Agent Michael A. Cunniff to testify in this regard. Essentially, Cunniff testified that Novak acted as a broker between Goldin and Berzon, and as such should be considered an "organizer" in the offense. In the course of his testimony, Cunniff offered significant information relating to Berzon's role in the offense. Cunniff's testimony--of which Berzon and his attorney claim they were unaware until after Berzon's own sentencing--is at the focus of this dispute on appeal and is considered in greater detail below. The district court found that Novak was not shown to have acted as a leader or organizer of the other defendants' offense conduct, as contemplated under U.S.S.G. § 3B1.1, since it could not find Novak exercised control over the others' conduct.

Berzon's presentence conference was held on September 11, 1990. The PSI, calculated a base offense level of 30 based on the 942 kilograms of marijuana seized at the time of arrest and the application of U.S.S.G. § 2D1.1(a)(3) ⁴ for amounts between 700 and 1,000 kilograms of marijuana. At the conference, consistent with the government stipulation at the time of the plea, counsel for both sides agreed that only 40.9 kilograms (90 pounds) of marijuana was involved, yielding a base offense level...