U.S. v. Foss, 74-1083

• Decision Date: 31 July 1974
• Docket Number: No. 74-1083,74-1083
• Citation: 501 F.2d 522
• Parties: UNITED STATES of America, Appellee, v. Stewart FOSS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 522

501 F.2d 522

UNITED STATES of America, Appellee, v. Stewart FOSS et al., Defendants-Appellants.

No. 74-1083.

United States Court of Appeals, First Circuit.

Argued May 9, 1974.

Decided July 31, 1974.

Harvey A. Silverglate and Thomas G. Shapiro, Boston, Mass., with whom Silverglate, Shapiro & Gertner, Boston, Mass., was on brief, for appellants.

Lawrence P. Cohen, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

James W. Coveney, Jr. and Stewart Foss pleaded guilty to charges stemming from the illegal distribution of cocaine. 21 U.S.C. 841. They contend on appeal that the district court abused its discretion by sentencing each of them to three years' imprisonment and denying their subsequent motion for reduction of sentence. Their principal complaint is that the court failed to 'individualize' their sentences imposing imprisonment only because of a belife that 'hard narcotics demand hard sentences.'

The offenses arise from a single transaction. Coveney, at the insistence of one Russo, persuaded Foss first to supply a small cocaine sample and then to sell for $1200 26 grams of cocaine to buyers who, unfortunately for appellants, turned out to be undercover agents.

Both Coveney and Foss are high school graduates, without significant criminal records and with good employment histories. They urge that imprisonment is plainly detrimental to their rehabilitation.

Coveney was raised in a stable home. However, he had an unhappy marriage and a divorce, and afterwards did not keep up child support payments. For four years he took part in the drug scene from which, he says, he has since extricated himself. He was snorting cocaine daily at the time of his arrest, and admits that he was selling small quantities to friends to support his habit. He says that for facilitating the instant sale he was to receive only a small amount of cocaine for personal use. Imprisonment interrupts both his steady employment as a model maker and his plans to remarry.

Foss, engaged to Coveney's sister, came from a broken home in which he was under severe stress as described at length in a psychologist's letter. He was addicted to heroin but, according to the psychologist, was 'one of the more lasting cures of heroin addiction I have encountered'. It appears that he was no longer a heroin user at the time of the offense. He reportedly dealt in the cocaine as a favor to Coveney and for a small profit, which he claims was $50. The psychologist wrote that imprisonment would be a 'tragedy' for Foss' heroin cure and would impose a 'disaster' upon his already strained family, consisting of a mother, brother, and twin half brothers.

At the sentencing hearing each appellant and Russo, all then represented by the same attorney, were invited to inspect and offer corrections to their presentence reports. Told by counsel that Russo denied one piece of information in his report, the court ordered it stricken; Coveney and Foss did not object to anything in their reports. The court asked if there were distinctions among the three in degree of culpability. The Assistant United States Attorney said he thought not, except that Russo, although he had 'set the entire thing in motion', had aided in the apprehension of another cocaine seller. Russo's cooperation led the court to sentence him to two years, while sentencing Foss and Coveney each to three (followed by the mandatory three year parole term). ¹ The court then made the following statement which forms the basis of much of the argument on appeal.

'The reason for the sentence of the Court is simply the word cocaine. That is the one-- That is the explanation. Hard narcotics in my opinion demand hard sentences, not because the Court has any fear that you gentlemen will start returning to dealings or facilitating the dealings in narcotics. In this morning's paper, it was reported that in New York City, arrests for narcotic sales have been cut 75 percent since the imposition of the harsh state penalties in New York State by the Administration of the State of New York. That isn't the reason for my sentences. It is just consistent with my view of trafficking in narcotics.

'I am well aware that you three young men were not dealers in the sense of big suppliers. If you were, the sentences would be very, very much more, as your lawyer could advise you. Anyone who facilitates the transactions in the hard narcotics-- and I consider that cocaine is a hard narcotic-- has to be made a lesson of, to cut down on the traffic, to cut down on relatively innocent persons like yourselves, who got caught up in the drug subculture, to the terrible misfortune in your own personal lives, the lives of your families-- I have here a moving letter from the father of one of the defendants, and equally moving letter from the mother of another of the defendants.

'It is just too late. It is not just a question of your welfare as much as it is a question of the welfare of young people in this community who but for jail sentences of this type will be introduced to these narcotics, and in my view it is essential to take harsh steps to endeavor to bring the community out of this scourge.

'I have and must state that I considered the plea of guilty which has been entered here by each of these defendants. I have already stated as much as I will with respect to the distinction between Mr. Russo and the other two defendants.'

About four months after sentencing new counsel for appellants filed Rule 35 motions claiming that the sentences were not individualized because they were unjustified by any need for rehabilitation, supported only by considerations of general deterrence, and based upon the district court's misapprehension of the nature of cocaine. Accompanying the motion were four affidavits from experts in cocaine research stating that cocaine is not a narcotic but a stimulant, that it is nonaddicting, and that it is harmless relative to alcohol, heroin, and amphetamines. In a companion motion appellants asked to examine the presentence reports because such was 'necessary for the prosecution' of the Rule 35 motion.

The district court denied without opinion the motions to examine the presentence reports. It did, however, issue an opinion concerning the Rule 35 motions. No hearings were held. The court stated that 'various points made in the motions and supporting memorandum are substantial and call for comment', but that it continued to believe that cocaine is properly classified by 21 U.S.C. 812 as a Schedule II drug. Two studies were cited as showing that cocaine has 'a high potential for abuse and for severe psychological dependence.'

Stating that, although the 'extent to which so-called general deterrence is a valid consideration in fixing sentences is indeed a difficult question', the court cited Justice Marshall's comment in Powell v. Texas, 392 U.S. 514, 531, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), that the validity of the deterrence justification has not been disproved. The court expressed a belief that 'calculated crimes' were more likely to be deterred than crimes of passion; that those requiring several persons would be deterred ahead of offenses committed by single offenders; and that 'it is still widely assumed that prison sentences have a generally deterrent effect.' (citing Furman v. Georgia, 408 U.S. 238, 307, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)) Finally, the court stated that it had fully considered, and taken into account in the sentence, factors other than general deterrence:

'The court's statement at the time of sentencing did not undertake to state all of the reasons for the sentences imposed but rather the reasons that would enhance the hopefully deterrent effect of the sentences. By our arguably harsh sentences and statements of reasons in narcotics cases we are endeavoring not only to protect the community but also to deter potential narcotics sellers whom we believe will be informed of the type of sentences imposed in these cases, although there may be no mention of particular cases in public media of communication. We believe that this sort of information travels by word of mouth.

'Factors other than general deterrence were, of course, weighed and considered in determining the appropriate sentences. Codefendant Russo was treated differently for reasons that appear in the record. Consideration was given to defendant Foss's heroin habit of approximately two bags per day when he was addicted in 1970 and to the confidential psychological report attached to the presentence report in his case. An example of other factors than general deterrence considered in Coveney's case is his having experimented with drugs other than cocaine and his habit in November 1972 of snorting cocaine at the rate of a gram per day. These and other factors indicated the defendants' need for individual rehabilitation.'

On appeal Foss and Coveney argue first that the district court's sentences were not sufficiently individualized, either as a matter of constitutional or general law, or as required by Congress, which recently removed certain mandatory minimum sentences in narcotics offenses. Second, they argue that the district court improperly denied them a hearing on their claim that it was wrong in its beliefs concerning cocaine. Third, they contend that the procedure followed by the court deprived the defendants of their right of allocution. Finally, they claim that their new attorneys were erroneously denied access to the presentence reports.

I

The rule is of long standing, and was reaffirmed this term, that a court of appeals may not reverse or tamper with a sentence that is within legal limits. Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 . . . (1974). See United States v. Walker, 469 F.2d 1377 (1st Cir. 1972). Appellants recognize...