U.S. v. Mitchell

• Decision Date: 09 September 1997
• Docket Number: No. 96-1605,96-1605
• Citation: 122 F.3d 185
• Parties: UNITED STATES of America v. Amanda MITCHELL, aka Amanda Foster, Amanda Mitchell, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 185

122 F.3d 185

UNITED STATES of America v. Amanda MITCHELL, aka Amanda Foster Amanda Mitchell, Appellant.

No. 96-1605.

United States Court of Appeals Third Circuit.

Argued July 17, 1997.

Decided Sept. 9, 1997.

Steven A. Morley (Argued), Philadelphia, PA, for Appellant.

Barbara L. Miller (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: SLOVITER, Chief Judge, ROTH and MICHEL, ^* Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

This appeal by Amanda Mitchell, who pled guilty to engaging in a conspiracy to distribute cocaine, raises an issue of first impression for this court, namely, whether a criminal defendant who pleads guilty to distributing cocaine but reserves the right to contest the amount of cocaine for which she should be held responsible has a Fifth Amendment right not to testify during sentencing.

I.

Mitchell and twenty-two other defendants were indicted for their roles in a cocaine conspiracy conducted between 1989 and March 1994, in Allentown, Pennsylvania. According to the indictment, defendant Harry Riddick led the conspiracy, purchasing large quantities of cocaine from various suppliers and selling the cocaine on a daily basis through couriers and street sellers to whom he provided cars and pagers for this purpose. Phill's Bar and Grill was the headquarters for the distribution ring.

Mitchell was charged in Count 1 with conspiring to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846 and in Counts 11, 21 and 28 for distribution of cocaine within 1,000 feet of a school or playground on three specific occasions in violation of 21 U.S.C. § 860(a). Under 21 U.S.C. § 841, the mandatory minimum sentence for a defendant convicted of distributing at least five kilograms but less than fifteen kilograms of cocaine is ten years imprisonment. The Sentencing Guidelines may then be used to increase the sentence above the statutory minimum as high as life imprisonment if it is determined that defendant sold a greater quantity of drugs or had a greater role in the conspiracy. In this case, Mitchell's mandatory minimum sentence fell within her Guidelines range, which was 97 to 121 months imprisonment.

On October 16, 1995, Mitchell entered an open plea of guilty, i.e., her plea was not premised on a plea agreement, to all four counts but reserved the right to contest the quantity of cocaine which she distributed. During the plea colloquy the district judge sought to ensure that Mitchell understood her rights. The judge began by stating that Mitchell had been charged with distributing more than five kilograms of cocaine, but after Mitchell's attorney reminded the judge that she did not accede to the amount of drugs at issue, the judge agreed that the quantity would be determined at sentencing.

The district judge then told Mitchell of the possible range of punishment she was exposing herself to by pleading guilty. The judge noted that "the range of punishment here is very complex because we don't know how much cocaine the Government's going to be able to show you were involved in," app. at 1305, and then deferred to the Assistant United States Attorney for her explanation of the possible punishment. The government lawyer stated:

Ms. Miller [AUSA]: On Count 2, Miss Mitchell faces a mandatory minimum of ten years up to a maximum of life imprisonment, a maximum fine of $4 million, a mandatory minimum of five years up to a lifetime supervised release, and a $50 special assessment.

On each of Counts 11, 21 and 28, Miss Mitchell faces a mandatory minimum of one year imprisonment up to a maximum of 40 years imprisonment, a maximum fine of $2 million, a mandatory minimum of six years supervised release up to lifetime supervised release, and a $50 special assessment.

On all counts, Miss Mitchell would face a total of a mandatory minimum of ten years up to a maximum of lifetime imprisonment, a $10 million fine, a mandatory minimum of six years up to lifetime supervised release, and a $200 special assessment. That would be on all counts.

The Court: Okay. Now, the penalties you just set forth, Ms. Miller, assume there's a five-kilogram involvement?

Ms. Miller: That's correct, sir.

The Court: So those are the penalties if the Government can prove that you [Mitchell] were involved in five kilograms of cocaine distribution. Your lawyer says you're not, is that right?

Mr. Morley [Mitchell's Attorney]: That's correct, sir.

The Court: So if you're not, then the penalties would be less.

App. at 1306-07.

Before accepting her plea, the district court stated that: "I find that there is a factual basis for the plea. I find that you understand your pretrial rights, your trial rights. I find that you understand as well as it can be understood the range of punishment to which you're exposing yourself including imprisonment." App. at 1322. The court also explained that Mitchell would be waiving her rights by pleading guilty, including specifically her Fifth Amendment right not to testify. App. at 1314. Mitchell then pled guilty.

Thereafter, in January 1996, the case against nine of Mitchell's co-defendants went to trial. Much of the trial testimony focused on Riddick's management of the cocaine operation. However, several of Mitchell's co-defendants who had pled guilty and agreed to cooperate with the government testified that Mitchell was one of Riddick's regular sellers. Shannon Riley testified that she often saw Mitchell at Phill's Bar going into the bathrooms in order to sell cocaine.

Paul Belfield testified that he regularly sold cocaine for Riddick and that during 1991 and 1992 Mitchell delivered the cocaine to him. When asked how he would get in touch with Mitchell, Belfield stated that "I would beep Harry Riddick, then Amanda [Mitchell] would come by and deliver me the cocaine." App. at 830. He testified that Mitchell used pagers and two-way radios that Riddick had given her for use in her cocaine deliveries.

Richard Thompson's testimony went directly to the issue of the quantity of cocaine involved. He testified that he worked two to three times per week selling at least two ounces of cocaine each day, that in April 1992, Riddick asked him to take Mitchell around and introduce her to Thompson's customers, and that she received a one and a half ounce bag of cocaine to sell two to three times per week. He stated that he saw Mitchell selling cocaine at this rate through December 1993. It is primarily Thompson's testimony that Mitchell seeks to undermine on appeal.

Mitchell's sentencing hearing took place on July 2, 1996. During the hearing Paul Belfield and Shannon Riley adopted their trial testimony and were cross-examined by Mitchell's counsel. The government also called Richard Thompson who adopted his trial testimony but also answered additional questions posed by the government about the specific amounts of cocaine that Mitchell had sold. Thompson testified that between April 1992 and August 1992 Mitchell worked two to three times a week selling one and a half to two ounces of cocaine each day, that between August 1992 and December 1993 she worked three to five times a week, and that from January 1994 through March 1994 Mitchell was in charge of distribution. On cross-examination, Mitchell's attorney elicited Thompson's concession that he did not see Mitchell consistently throughout this period.

The testimony of another trial witness, Alvitta Mack, was also adopted by both parties during the sentencing hearing. Mack had made a series of drug buys under the supervision of the DEA, and tape recorded some of the conversations. On several occasions Mack ordered a half ounce of cocaine from Riddick who sent his couriers, including Mitchell, to deliver the cocaine to Mack's house and collect the money. Mack testified as to three sales, consisting of a total of two ounces of cocaine. Mitchell argued that these three documented sales were the only reliable testimony as to the quantity for which she should be held responsible. However, Mitchell provided no evidence and did not testify to rebut the government's evidence about drug quantity.

At the close of testimony at the sentencing hearing, the district judge stated that he believed Mitchell no longer retained a right not to testify because she had pled guilty to the underlying offense and thereby waived her Fifth Amendment privilege. He explained that he also found credible the testimony that she was a courier during the period of time in question and that, even at the very least, her sales of two ounces two days a week for a year and a half put her over the five kilogram level. Thus, she was subject to the statutory minimum penalty of ten years.

The Court then entered into the following dialogue with the attorneys:

Mr. Morley: And as far as her obligation to testify after she pleads guilty, I think that--I think she retains her Fifth Amendment privilege through sentencing. But--

The Court: Well, if I'm wrong--and let the record--you may want to take that up because I believe that under--once she pleads guilty, it's my understanding--or am I wrong in that, Attorney Miller?

Ms. Miller: I'm sorry, sir?

The Court: I believe that once a criminal defendant in a felony charge pleads guilty, then that defendant does not--no longer has a Fifth Amendment right to remain silent.

Ms. Miller: Yes, sir, with--with respect to the--

The Court: It's the sort of things we mention--we say that you're giving up your--

Mr. Morley: Right.

The Court:--right to be silent....

* * * * * *

And let's get that tested. I think that if I--I think that in--in rejecting your argument that I should reject the Belfield/Riley/Thompson testimony, one of the things that I am basing on that is her not testifying to the contrary. So there you have it. If I'm wrong, surely we'll have her resentenced.

App. at 1290-91.

Later the district judge told Mitchell that:

I held it against you that you didn't...