U.S. v. Blount

• Citation: 940 F.Supp. 720
• Decision Date: 08 January 1996
• Docket Number: Criminal No. 95-00073-04.,Criminal No. 95-00073-03.
• Parties: UNITED STATES of America v. Daniel Pernell BLOUNT and Joseph Torok.
• Court: U.S. District Court — Eastern District of Pennsylvania

940 F.Supp. 720

UNITED STATES of America v. Daniel Pernell BLOUNT and Joseph Torok.

Criminal No. 95-00073-03.

Criminal No. 95-00073-04.

United States District Court, E.D. Pennsylvania.

January 8, 1996.

COPYRIGHT MATERIAL OMITTED

Barbara H. Miller, Asst. U.S. Atty., Philadelphia, PA, for the Government.

Richard L. Caplan, Paoli, PA, for defendant Blount and Michael E. Moyer, Allentown, PA, for defendant Torok.

MEMORANDUM AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

The present memorandum addresses issues arising during sentencing of Corrections Officers Torok and Blount for their role in a large conspiracy headed by inmate Charles Pernell Riddick to bring in and distribute drugs inside the former and new facilities of Lehigh County Prison, Allentown, Pennsylvania. A total of eight persons were charged in the overall conspiracy.¹ Of primary concern throughout several hearings has been the drug quantities attributable to Defendants Officer Torok and Officer Blount. We have also addressed drug distribution activity in proximity to a school; possible downward adjustment for acceptance of responsibility; enhancement for obstruction of justice; average drug quantity brought into the prison per day by the conspiracy; and Defendants' time involved in the conspiracy.

We received guilty pleas from Officers Joseph Torok and Daniel Blount on May 8, 1995, immediately before their jury trial was scheduled to begin.² Some seven months after his plea of guilty, Officer Blount sought to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 32(e). We also address our denial of his motion in detail below.

The jury trial of Charles Pernell Riddick Sr. et al occurred before us from May 16 1995 to May 24, 1995. With the exception of the acquittal of one peripheral defendant, all defendants who went to trial were found guilty of conspiring to bring drugs into Lehigh County Prison. The government relied upon the testimony of several witnesses and a number of wiretaps. The remaining defendants in the conspiracy all entered pleas of guilty prior to trial.

At a sentencing hearing on August 23, 1995 we heard testimony and argument regarding the proximity of the drug transactions to school property. We ruled that the distribution of drugs did take place within 1000 feet of a school as noted in the presentence report. Additionally Defendants Officer Torok and Officer Blount at that time conceded their abuse of a position of trust and the two point enhancement it entails. The government wished to rely upon the extensive trial testimony to establish the quantities of drugs which were attributable to each defendant. At the request of the defense, we granted a continuance to allow the defense to review the trial testimony and cross-examine the trial witnesses at a later sentencing hearing.

At a further sentencing hearing on November 30, 1995 we heard testimony to determine the quantity of drugs that the defendants were involved with during the conspiracy. We reaffirmed our prior ruling relating to distribution within 1000 feet of a school and ruled that the defendant should receive a two level increase and no downward adjustment for acceptance of responsibility. We further found that Defendant Officer Torok had perjured himself at an earlier suppression hearing and found him subject to a two-level enhancement for obstruction of justice. We directed that the Probation Office prepare a memorandum to supplement the presentence report with regard to the issues of the quantity of drugs attributable to each defendant. We set a final sentencing hearing for January 3, 1996. However, this hearing had to be continued because of Defendant Officer Blount's pro se motion to withdraw his guilty plea.

II. FINDINGS AND DISCUSSION RE SENTENCING

A. 1000 Feet from School.

Defendants are charged with a violation of 21 U.S.C. § 860, distribution of drugs near a school. Specifically, the statute prohibits "distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising [a school, playground, etc.]." The relevant distance is between the actual point of possession and the school property line, not the shortest distance between the two relevant property lines. See U.S. v. Haynes, 881 F.2d 586, 591 (8th Cir.1989), cert. denied, 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d 206 (1992). The distance is measured "as the crow flies" and not as a pedestrian would walk. U.S. v. Johnson, 46 F.3d 1166, 1169 (D.C.Cir.1995). See also U.S. v. Clavis, 956 F.2d 1079, 1088 (11th Cir.1992), cert. denied, 504 U.S. 990, 112 S.Ct. 2979, 119 L.Ed.2d 597 (1992) and 507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993) ("[T]he statutory distance must be measured by a straight line method rather than a pedestrian travel route"); U.S. v. Watson, 887 F.2d 980, 980-81 (9th Cir.1989) (adopting a method other than "as the crow flies" would create uncertainty in the statute, generate needless debate, and thwart statute's purpose of creating "a readily ascertainable zone of protection."); U.S. v. Ofarril, 779 F.2d 791, 792 (2d Cir.1985) (per curiam), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986) (measuring distance by pedestrian route rather than by straight line would be "a tortuous reading [that] would violate the plain meaning of the statute."); U.S. v. Robles, 814 F.Supp. 1249, 1251 (E.D.Pa.), aff'd 8 F.3d 813 and 8 F.3d 814 (1993); and U.S. v. Rodriguez, 961 F.2d 1089, 1095 (3d Cir.1992) ("schoolyard statute applies to a defendant who possesses drugs within 1000 feet of a school with the intent to distribute those drugs at any location") (emphasis added).

At the sentencing hearing on August 23, 1995, we heard testimony that Pod 2C of the new Lehigh County Prison is located within 1000 feet of the Allentown Central Catholic High School parking lot, a lot that was used for school activities. We also heard testimony that the entire old jail facility³ was within 1000 feet of a building used by Lehigh County Community College, a school of higher education. The government also pointed out that distribution activity relating to placing drugs into Officer Blount and Officer Torok's vehicles occurred in the home of Ms. Theresa Cordero, at 408 Chestnut Street, Allentown, Pennsylvania. At the August 23 hearing it was shown that 408 Chestnut Street is within 1000 feet of the Allentown Central Catholic High School building itself. In light of this testimony, we concluded that Officer Blount and Officer Torok were both subject to the two point enhancement for violating 21 U.S.C. § 860. We found little merit in Defendants' argument that because it was not proven that any class or other school activity was actually held on the specific portion of the school's parking lot that falls within the 1000 foot line, Defendants should therefore not be found in violation of the statute. The aim of the statute is to create an absolute zone of safety where drug activity should never occur. It would be inappropriate for us to amend or second guess the statute's plain language which clearly mandates the two-point enhancement.

B. Acceptance of Responsibility.

With respect to Officer Torok, the Government sought a two-point enhancement for obstruction of justice and asserted that Defendant does not warrant a reduction for acceptance of responsibility. On November 30, 1995, we adopted paragraph 66 of the Presentence Investigation recounting Officer Torok's statements at his suppression hearing on pretrial motions of May 4, 1995. Specifically, we determined that those statements — made under oath and alleging that the arresting case agents directed Officer Torok what to say at the time of his arrest — amounted to perjury. We found that a two-level enhancement for obstruction of justice was therefore warranted.

With respect to acceptance of responsibility, we considered, among other things, a letter dated July 27, 1995, submitted through defense counsel, of Officer Torok's version of his offense. In that letter, Officer Torok claimed: not to have known the contents of the package Mr. Krause asked him to bring into the prison; not to have been willing to bring alcohol into the jail (although later succumbing due to threats to damage his vehicle); and to have felt intimidated by Pernell Riddick Sr. into bringing a package into the jail. Officer Torok summarily denied his involvement "in the whole conspiracy of bringing drugs into the prison." On November 30, 1995, we adopted the testimony of Douglas Krause and Theresa Cordero detailing Officer Torok's extensive involvement in smuggling drugs into the prison. We explicitly found further that Officer Torok had not truthfully provided to the Government all information necessary to limit applicability of a statutory minimum pursuant to U.S.S.G. § 5C1.2, assuming it became relevant. We now fully adopt paragraphs 67-73 from the Probation Office's Presentence Report which clearly show Officer Torok's version of the offense he committed is not comparable to the involvement outlined by Theresa Cordero and Douglas Krause. Paragraph numbers 72 and 73 state in their entirety:

Section 3E1.1(a) of the Guidelines allows for a two-point reduction in the offense level if the defendant clearly accepts personal responsibility for his offense. Section 3E1.1(b) states, "If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant assisted in the investigation or prosecution of his own misconduct by taking one or more of the following steps: (1) timely providing information to the government concerning his own involvement in the offense: or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the Court to allocate its...