U.S. v. Durman

• Decision Date: 08 September 1994
• Docket Number: 92-2708,92-3846 and 92-3847,92-3442,92-3437,Nos. 92-2535,s. 92-2535
• Citation: 30 F.3d 803
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard Anthony DURMAN, David Buffington, Cathy A. Moline, Charles Bradford Moline, Ramon F. Castellanos, and Juan A. Castellanos, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 803

30 F.3d 803

UNITED STATES of America, Plaintiff-Appellee, v. Bernard Anthony DURMAN, David Buffington, Cathy A. Moline, Charles Bradford Moline, Ramon F. Castellanos, and Juan A. Castellanos, Defendants-Appellants.

Nos. 92-2535, 92-2708, 92-3437, 92-3442, 92-3846 and 92-3847.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 1994.

Decided July 13, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 22, 1994.

Order Denying Rehearing and Suggestion for Rehearing En Banc Sept. 8, 1994.

Barry R. Elden, Asst. U.S. Atty., Joshua Vincent (argued), Crim. Receiving, Appellate Div., Joseph D. Heyd, Office of the U.S. Atty., Chicago, IL, for U.S.

Robert E. Canfield (argued), Rockford, IL, for Bernard A. Durman.

Daniel J. Cain, David A. Caulk (argued), Sreenan & Cain, Rockford, IL, for David Buffington.

Joseph F. Marconi, Rockford, IL, for Cathy A. Moline.

David R. Castegnaro, Rockford, IL, for Charles B. Moline.

Steven J. Plotkin, Chicago, IL, for Ramon Castellanos.

Donita Farr, New York City, for Juan Castellanos.

Before EASTERBROOK and RIPPLE, Circuit Judges, and DILLIN, District Judge. ^*

DILLIN, District Judge.

Appellants are six of twenty-seven defendants named in a thirty-count indictment. Count 1 charged all defendants with participating in a conspiracy to acquire, transport, store, possess and distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846, and 18 U.S.C. Sec. 2 (The "Mauerman conspiracy.") The additional counts charged various of the defendants with individual acts arising out of the conspiracy. Twenty-one of the defendants entered pleas of guilty. Appellant Bernard Anthony Durman ("Durman") entered a conditional plea of guilty to Count 1 subject to his right to appeal the Court's denial of his motion to suppress. Appellant David Buffington ("Buffington") likewise entered a plea of guilty to Count 1, as well as to Count 30. He and Durman both allege errors in sentencing.

Appellants Cathy A. Moline and Charles Bradford Moline ("the Molines") were convicted of Count 1 on trial by jury, and appellants Ramon F. Castellanos ("Ramon") and Juan A. Castellanos ("Juan") were likewise convicted of Count 1 in a separate jury trial. Each of said appellants alleges various trial and pretrial errors, and Ramon and Juan also allege sentencing errors.

I. Appeal of Durham

A. Motion to Suppress

Beginning in October, 1989, Durman participated in the storage, repackaging, and distribution functions of the Mauerman organization. He received numerous kilograms of cocaine, stored them at his home in Rockford, and later "cut" or diluted the cocaine and repackaged it in ounce quantities for street sale. Altogether he handled approximately 25 kilograms of cocaine, and was paid about $15,000 in cash. Following his arrest, he signed a confession and consented to a search of his home, during which cocaine was recovered.

However, following his indictment, Durman filed a motion to suppress the statements he made at the time of his arrest, claiming that he requested an attorney yet his interrogation continued, and that he was subjected to coercive interrogation techniques. A hearing was held at which Durman testified, as did two F.B.I. agents and a Rockford police officer. The law enforcement officers contradicted Durman's charges. Judge Stanley J. Roszkowski, the judge originally assigned to this case, held that the evidence established that Durman waived his rights and made his statement without any "undue duress or strain," and that the statements of the officers were credible. On appeal, Durman invites this Court to reverse the district court's assessment of the evidence.

This Court recently has commented that when reviewing the denial of a suppression motion, we will disturb a district court's factual findings only if the appellant establishes clear error. United States v. Montgomery, 14 F.3d 1189 (7th Cir.1994). Where the district court's decision rests upon an assessment of conflicting witness testimony, this Court "must defer to the credibility assessments of the district judge who viewed the witnesses and heard the testimony." Id. at 1194. See, also, United States v. Rodgers, 755 F.2d 533 (7th Cir.), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985). That is the case here, and we find no error in the court's ruling.

B. Alleged Errors in Sentencing

Durman raises three challenges to his sentence, none of which have merit.

First, the appellant moved to "compel the government" to request a downward departure from the applicable statutory minimum sentence under 18 U.S.C. Sec. 3553(e) and Sec. 5K1.1 of the United States Sentencing Guidelines ("the Guidelines"). Durman claimed he deserved such a motion because of "promises" by government agents and because he believed he did cooperate and provide substantial assistance to the government. Section 3553(e) vests the government with the sole discretion to make a motion for downward departure, and without a government motion the court cannot depart below a statutory minimum sentence. United States v. Egan, 966 F.2d 328, 331-32 (7th Cir.1992); United States v. Spears, 965 F.2d 262, 280-81 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992). Further, Durman did not allege or offer evidence to prove that the government harbored an unconstitutional motive in choosing not to make a departure motion. See Egan, 966 F.2d at 331-32 (under Wade v. United States, --- U.S. ----, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), defendant must make a "substantial threshold showing" of unconstitutional government motive). In light of these facts, the denial of Durman's request was proper.

Second, Durman objected to the presentence report's conclusion that he did not merit a 2-level "minor role" reduction under Guideline Sec. 3B1.2(b). Determining whether a defendant merits a reduction under Sec. 3B1.2 relies heavily on the facts; thus, this Court affirms the district court's decision on that issue absent clear error. United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir.1993); United States v. Pitz, 2 F.2d 723, 732 (7th Cir.1993). After taking evidence and argument concerning Durman's role, the district court concluded that Durman was not a "minor participant" in the charged conspiracy. He had the responsibility to store, cut, and repackage 25 kilograms of cocaine, up to 25% of that sold by the conspirators. Rather than showing he was "substantially less culpable" than the other participants, the evidence established that Durman was a trusted and loyal member of the conspiracy. Thus, the court properly denied the reduction. Cf. Pitz, 2 F.3d at 733.

Third, prior to sentencing Durman moved the court to invoke 28 U.S.C. Sec. 2901 et seq., which affords district courts the "sole discretion" to hold criminal charges in abeyance for certain "eligible individuals" who are addicted to narcotic drugs and are likely to be rehabilitated through treatment. This statute provides that the court can commit civilly such individuals to the Surgeon General for treatment. 28 U.S.C. Sec. 2902. The district court denied the defendant's request, finding that he was not an "eligible individual" because he had been charged with conspiring to possess with intent to distribute and to distribute cocaine. See 28 U.S.C. Sec. 2901(g)(2): "eligible individual" does not include anyone "charged with unlawfully importing, selling, or conspiring to import or sell, a narcotic drug." The court determined that "distribute" and "sell" are functional equivalents for these purposes. We agree.

Further, the statute itself provides that a district court's civil commitment determination is not reviewable on appeal. 28 U.S.C. Sec. 2906. Durman's challenge must be denied on that basis in any event.

II. Appeal of Buffington

According to his plea agreement, Buffington began storing and distributing cocaine for the Mauerman narcotics organization in the summer of 1990. From then until his arrest on December 13, 1990, he received and stored multiple kilograms of cocaine both at his home and auto repair shop. He also cut and repackaged the substance and sold it to his customers, including the Molines. After his arrest he agreed to cooperate with the government, but welshed on his agreement.

Like Durman, Buffington filed a motion to suppress evidence as to the circumstances surrounding his arrest, consent to search, etc., all of which was contradicted by the arresting officers. Judge Roszkowski denied the motion, specifically finding that Buffington's testimony was not credible.

At sentencing, Judge Reinhard reviewed the transcripts from the suppression hearing with Buffington's agreement. He also, in effect, held a second hearing in that Buffington and the officers all testified as to the questioned events. Once again the court held Buffington's testimony to be incredible, and increased Buffington's offense level by two levels for willfully obstructing justice by lying under oath at the suppression hearing, pursuant to Guideline Sec. 3C1.1. The district court's finding that Buffington committed perjury, and therefore merited the increase, will not be reversed absent clear error. United States v. Hamm, 13 F.3d 1126 (7th Cir.1994). The court satisfied the requirements of United States v. Dunnigan, --- U.S. ----, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), finding that appellant gave false testimony with the willful intent to do so, and there was no clear error in these findings given the overwhelming weight of the testimony.

III. Appeal of the Molines

The Molines joined the conspiracy in the summer of 1989 and continued as members until their arrest in March 1991, following the return of the indictment. They made a great many purchases of Mauerman cocaine during this period of time through various intermediaries and then resold it. Eventually, they dealt directly with Edward Mauerman. In addition to receiving cocaine from him, acquired by Mauerman...