U.S. v. Fortier, 89-5179ND

• Decision Date: 07 August 1990
• Docket Number: No. 89-5179ND,89-5179ND
• Citation: 911 F.2d 100
• Parties: UNITED STATES of America, Appellee, v. Michael Brian FORTIER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 100

911 F.2d 100

3 Fed.Sent.R. 99

UNITED STATES of America, Appellee, v. Michael Brian FORTIER, Appellant.

No. 89-5179ND.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 17, 1989.

Decided Aug. 7, 1990.

Ralph A. Vinje, Bismarck, N.D., for appellant.

Scott J. Schneider, Fargo, N.D., for appellee.

Before LAY, Chief Judge, ARNOLD, Circuit Judge, and McMILLAN, ^* Senior District Judge.

ARNOLD, Circuit Judge.

Michael Brian Fortier pleaded guilty to one count of possession with intent to distribute 139 grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). Two remaining charges were dismissed. At Fortier's sentencing hearing, the District Court considered an additional amount of cocaine, listed in a count to which Fortier did not plead guilty, to increase his sentence under the Sentencing Guidelines. On appeal, Fortier argues that consideration of the additional amount of cocaine was error, because the District Court had no reliable evidence on which to base its conclusion that the cocaine was his. We agree. The evidence of the additional cocaine, offered by the government and relied upon by the District Court, violated Fortier's right to confront the witnesses against him, embodied in the Confrontation Clause of the Sixth Amendment. Accordingly, we reverse the sentence imposed by the District Court and remand for resentencing.

I.

Acting on a tip from a confidential informant, on December 3, 1987, law enforcement officers stopped Fortier's vehicle in Grand Forks, North Dakota. The officers found approximately five and one-half ounces of cocaine in several zip-lock baggies in Fortier's clothing. Fortier was arrested, but no charges were filed at that time. On April 5, 1988, an informant reported to drug enforcement officials that he had seen Fortier give approximately one pound of cocaine to a third person, a Mr. Bartowski. Bartowski shared the cocaine with the informant, and told the informant that the cocaine belonged to Fortier. The informant then turned over to DEA officials approximately 249 grams of cocaine supposedly belonging to Fortier. Over the next several months, drug enforcement agents unsuccessfully attempted controlled buys of cocaine from Fortier. Finally, on October 26, 1988, Fortier was indicted, chiefly on evidence obtained when he was arrested the previous year.

The first count of the three-count indictment charged Fortier with possession with intent to distribute the 139 grams of cocaine found on his person when his vehicle was stopped in December, 1987. The second count involved the 249 grams of cocaine ¹ obtained from the confidential informant. It alleged that Fortier possessed this cocaine with intent to distribute it sometime between the dates of December 1, 1987, and April 15, 1988. The third count charged Fortier with conspiracy to distribute one pound of cocaine between December 1, 1987, and April 15, 1988. This charge was based on an alleged delivery of the cocaine "through an unindicted co-conspirator to another person for safekeeping" on behalf of Fortier. Pursuant to a negotiated plea bargain, Fortier entered a plea of guilty to the first count. The remaining counts were dismissed on the government's motion, and the government recommended a sentence of incarceration of 27 months, as it had agreed to do.

At the sentencing hearing, at which no witnesses on behalf of the government or the defendant were called, the District Court included the cocaine identified in count two of the indictment in calculating a sentence of 27 months' imprisonment under the Sentencing Guidelines. The Court found, by a preponderance of the evidence, that the government had proved that the additional cocaine belonged to Fortier. It did so, presumably, on the basis of the Presentence Report (prepared by an employee of the United States Probation Office) and representations made by the United States Attorney, the only "evidence" available to the Court.

The Presentence Report contained a factual account of the 388 grams of cocaine identified in counts one and two of the indictment. The Report suggested that the one pound of cocaine charged in count three not be considered, because that amount was not supported by evidence "other than the word of a confidential informant whose testimony the government isn't comfortable with." R. 4. The 249 grams were properly included in the aggregate amount because, according to the Report, this amount was actually turned over to DEA agents by another, presumably more reliable, confidential informant. ² The Report stated that this informant told a DEA special agent that "Mr. Bartowski" told the informant that the cocaine belonged to Fortier. The probation officer also concluded that Fortier was an organizer in the distribution of the cocaine. The evidence given in the Report for this conclusion was a taped conversation between the second informant and the defendant, in which Fortier allegedly claimed ownership of the cocaine given to the informant. A portion of this cocaine ultimately reached the DEA.

Fortier objected to inclusion of the 249 grams of cocaine in calculating his sentence on several grounds, including that the government had offered insufficient and unreliable evidence to prove that the 249 grams of cocaine belonged to him. Fortier's attorney argued at the sentencing hearing that "[t]he only information the Court has before it as to Count II is that an informant told the special agent that he'd been taken to Mr. Fortier's residence by somebody else. That information doesn't indicate whether Mr. Fortier was there or not, [or] whether he had any involvement with the transaction...." At most, Fortier's lawyer pointed out, it means "that the informant said that somebody else said that the cocaine belonged to Mr. Fortier." T. 13-14.

The District Court replied that the probation officer had concluded otherwise--that "there [was] sufficient evidence to support a preponderance finding in a way that there is something like 388 grams the Court should consider." T. 18. The government attorney informed the Court that it possessed the transcript of the conversation referred to in the Report in which Fortier "acknowledged that the cocaine which the confidential informant was holding was his." T. 19. The transcript was not provided to the Court, and neither was the tape recording of the conversation. The Court then ruled that Fortier's ownership of the disputed amount of cocaine had been proved by a preponderance of the evidence, and therefore would be considered in calculating the sentence. Fortier was sentenced to 27 months' imprisonment, six years of supervised release, and a $3,050 fine.

II.

Fortier's most compelling argument on appeal, and the ground on which we reverse his sentence, is that the evidence relied upon by the District Court to include the 249 grams of cocaine in calculating his sentence violated his rights under the Confrontation Clause. In particular, Fortier claims that the District Court erred when it enhanced his sentence based upon multiple hearsay...