U.S. v. Fernandez-Vidana
| Decision Date | 21 September 1988 |
| Docket Number | FERNANDEZ-VIDAN,No. 87-3027,D,87-3027 |
| Citation | 857 F.2d 673 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Augustinoefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Sady, Office of Federal Public Defender, Portland, Or., for defendant-appellant.
Frank Noonan, Office of the U.S. Atty., Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before WALLACE and REINHARDT, Circuit Judges, and HARDY, District Judge. *
Defendant Augustino Fernandez-Vidana pleaded guilty to one of two counts charging him with distribution of cocaine. He objected to a statement in the presentence report that he had participated in the distribution charged in the other count of the indictment. He appeals the district court's finding that he had participated in that distribution. We affirm.
The two-count indictment charged Vidana and his co-defendant, Jesus Ceja-Ochoa, with distributing cocaine on or about September 23 (the transaction actually occurred on September 22) and on September 27, 1986.
Vidana pleaded guilty to the September 27 distribution. However, he objected to a statement in the presentence report that he also participated in the September 22 distribution. A hearing was held pursuant to United States v. Petitto, 767 F.2d 607 (9th Cir.1985). James Robert Miller, a police officer, testified as follows: On September 21 an informant reported that he had talked to Ochoa on September 18 about Ochoa's selling some cocaine to him and that they were to meet on September 22 to consummate the transaction. At that time the officer was not aware that Vidana was involved. On September 22 the informant reported that he had gone to Ochoa's apartment, that Vidana was also there, and that "they" had agreed to sell him a sample of cocaine. Vidana wanted to take the informant directly to the source of supply, but Ochoa did not want to do so. "They" then told the informant to go to a nearby parking lot and wait for them. After the informant left the apartment, surveillance officers observed Vidana and Ochoa leave Ochoa's apartment and go to another apartment at 4789 Mall Court, which both men entered and left. The two men then went to the parking lot where the informant was awaiting them. Both men got out of their vehicle, but Vidana went to a store while Ochoa went to the informant's car to deliver the cocaine. When Ochoa and Vidana drove away from the parking lot, police officers followed them back to the apartment at 4789 Mall Court. 1 On September 27, the informant reported that he and Vidana had driven to Mall Court, that Vidana went to a house at the end of the street, that he returned to show the informant a sample of cocaine, and that he told the informant that he wanted to sell a quarter of a pound of cocaine for $5,400. Officer Miller later gave the informant $5,400, and police officers followed the informant and Vidana to the Mall Court area where the informant gave Vidana the money. Vidana then went to 4789 Mall Court and a few minutes later returned and delivered a quarter pound of cocaine to the informant.
Vidana testified at the hearing and denied all involvement in the September 22 transaction. He stated that he was simply riding along with Ochoa and that he did not know that drug dealings were taking place. However, he admitted his participation in the September 27 transaction as well as another (uncharged) transaction on October 3.
The district judge found "that the Government's version of the events of the sale on September 22 is more probably accurate than that described by the defendant." Thereafter, in an order dated March 19, 1987, the judge stated that he found "by a preponderance of the evidence that the defendant actively participated in the September 22, 1986, sale."
Vidana argues that (1) that the trial judge relied on testimony by Officer Miller that was materially false, (2) acceptance of unreliable, uncorroborated hearsay violated due process and was an abuse of discretion, and (3) the use of a preponderance of the evidence standard in the sentencing hearing violated due process and was an abuse of discretion.
Vidana contends that in finding that he had participated in the September 22 transaction, the district judge relied on materially false testimony--that Officer Miller's testimony at the sentencing hearing of what he had been told by his informant was not what the informant had testified at Ochoa's trial. The informant had testified as follows: On September 18 and 22 he discussed purchasing cocaine with Ochoa at Ochoa's apartment. Vidana was present on both occasions but did not say anything to him. Later on September 22 he was at a parking lot with Ochoa and Vidana, and Ochoa delivered cocaine to him. He did not mention that Vidana was not present at the time of the delivery.
The only inconsistencies between Officer Miller's testimony and the informant's are minor: Officer Miller testified the informant told him that "they" had agreed to sell a sample of cocaine and "they" had told the informant to wait for them at a parking lot, while the informant testified that the conversations were only between him and Ochoa. The officer's testimony that Vidana wanted to take the informant directly to the source of supply is not inconsistent with the informant's testimony. The informant testified that he and Vidana said nothing to each other, but he did not testify that Vidana said nothing to Ochoa.
Federal law is clear that a judge may consider hearsay information in sentencing a defendant. See United States v. Wondrack, 578 F.2d 808, 809 (9th Cir.1978); Gregg v. United States, 394 U.S. 489, 492, 89 S.Ct. 1134, 1136, 22 L.Ed.2d 442 (1969). The primary purpose of the sentencing report is to assist the judge in determining the appropriate sentence. The courts have determined that meaningful assistance requires that sentencing reports contain background and character information much more extensive than is normally heard during trial or during the taking of a plea. Wondrack, 578 F.2d at 809. The same policy applies to information brought out in sentencing hearings.
Only when the hearsay is so inadequately supported that...
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