U.S. v. Bradford, 679

• Citation: 645 F.2d 115
• Decision Date: 19 March 1981
• Docket Number: D,No. 679,679
• Parties: UNITED STATES of America, Appellee, v. William S. BRADFORD, Appellant. ocket 80-1380.
• Court: U.S. Court of Appeals — Second Circuit

Page 115

645 F.2d 115

UNITED STATES of America, Appellee, v. William S. BRADFORD, Appellant.

No. 679, Docket 80-1380.

United States Court of Appeals, Second Circuit.

Argued Jan. 13, 1981.

Decided March 19, 1981.

F. Mac Buckley, Hartford, Conn., for appellant.

Holly B. Fitzsimmon, Asst. U. S. Atty., Bridgeport, Conn. (Richard Blumenthal, U. S. Atty., D. Connecticut, Michael Plantamura Before MOORE, MANSFIELD and MULLIGAN, Circuit Judges.

Law Student Intern, Bridgeport, Conn., of counsel), for appellee.

MANSFIELD, Circuit Judge:

This appeal raises the question of the extent to which a sentencing judge may take into consideration the defendant's refusal to cooperate with law enforcement authorities by providing incriminatory information with respect to others. We hold that the sentencing judge properly took into consideration this factor among others.

William S. Bradford appeals from a judgment of the District Court for the District of Connecticut entered on September 11, 1980, by Judge Jose A. Cabranes upon his plea of guilty to three counts of an information charging use of a telephone to facilitate distribution of a controlled substance, 21 U.S.C. § 843(b), and unlawful possession of cocaine, 21 U.S.C. § 844(a). Bradford was sentenced to serve consecutive terms of imprisonment totalling six years and to pay a $30,000 fine. His two co-defendants, Ulysses Jose Orduz and William Edward Moran, Jr., who pleaded guilty to similar informations, received substantially lesser sentences.

The guilty pleas were entered after three days of trial upon indictments charging the three defendants with violations of federal narcotics laws, for which the informations to which they pleaded guilty were substituted. The record reveals that Bradford was arrested when he attempted to sell a pound of cocaine to undercover agents pursuant to negotiations made by the co-defendants, two college students, as the front men. Upon the agents' identifying themselves, Bradford fled the scene, discarding a shoulder bag containing the cocaine, and was apprehended in a nearby field. Prior to imposing sentence Judge Cabranes received a very substantial amount of data bearing on the sentence to be imposed, including a 38-page memorandum from a psychiatrist, numerous letters on Bradford's behalf, and a pre-sentence report from the probation office.

At the sentencing hearing the trial judge noted various factors considered by him as bearing on the sentence to be imposed, including that Bradford, 47 years old, had a "strong motivation for greed," that he had "corrupted" and "victimized" his two younger co-defendants, that he was the source of the cocaine and "the person with the most to gain from the plot," and that he had "refused to assist the Government's efforts to detect and prosecute the perpetrators of such large-scale criminal activity." Judge Cabranes further stated that it was "appropriate ... to take into account this (latter) factor, along with the other relevant considerations" in sentencing Bradford.

In an addendum to the pre-sentence report Bradford had stated with reference to his failure to cooperate that his source was "not a very active dealer," that the source had "been a friend ... and always treated me with respect and honesty," and that Bradford did not want to furnish the supplier's name because "I fear the consequences for other people if I were to do so. I do not want to put my family or myself in danger."

After sentence was imposed, Bradford's counsel stated:

"Lastly, your Honor, with respect to the reasons why Mr. Bradford did not cooperate, I can only stand on the record in his response that he was concerned with the potential harm to people that might come from that. I realize that is a factor the Court can consider, but I think that it should be clear as to what the reason he did not do so was and that was not brought out in our earlier remarks." (Tr. 53).

However, at no time, before or after sentence, did Bradford offer to furnish evidence or details, in camera or otherwise, in support of his statement.

DISCUSSION

Bradford contends that the sentencing judge here erred in taking into consideration his refusal to cooperate, at least after he had stated to the court his reasons for not doing so. Subject to the caveats noted below, we disagree. A defendant's cooperation may, of course, be taken into consideration by a sentencing judge as a mitigating factor tending to evidence his potential for rehabilitation. United States v. Sweig, 454 F.2d 181 (2d Cir. 1972). On the other hand, a sentence may not, because of a defendant's refusal to cooperate, be increased or additional punishment imposed beyond what would otherwise have been meted out. DiGiovanni v. United States, 596 F.2d 74 (2d Cir. 1979).

"Our decisions in United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), and United States v. Vermeulen, 436 F.2d 72 (2d Cir. 1970), cert. denied, 402 U.S. 911, 91 S.Ct. 1390, 28 L.Ed.2d 653 (1971), are not in point. In each of these cases we ruled only that the sentencing judge, in his discretion, may take into account as a mitigating factor the defendant's voluntary cooperation with the authorities. Nowhere have we suggested that the defendant's refusal to cooperate may be considered in increasing the sentence he would otherwise receive. It is one thing to extend leniency to a defendant who is willing to cooperate with the government; it is quite another thing to administer additional punishment to a defendant who by his silence has committed no additional offense." United States v. Ramos, 572 F.2d 360, 363 n.2 (2d Cir. 1978).

Within these limitations, as Judge Moore pointed out in United States v. Barnes, 604 F.2d 121,...