U.S. v. Papajohn, 82-1654

• Citation: 701 F.2d 760
• Decision Date: 11 March 1983
• Docket Number: No. 82-1654,82-1654
• Parties: UNITED STATES of America, Appellee, v. John M. PAPAJOHN, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 760

701 F.2d 760

UNITED STATES of America, Appellee, v. John M. PAPAJOHN, Jr., Appellant.

No. 82-1654.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 9, 1982.

Decided March 11, 1983.

Gerald B. Lefcourt, P.C., New York City, for appellant; Joshua L. Dratel and Erica Horwitz, New York City, of counsel.

Robert L. Teig, Asst. U.S. Atty., N.D. Iowa, Cedar Rapids, Iowa, for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

John M. Papajohn, Jr. appeals the order of the district court ¹ denying without a hearing his motion for modification of sentence, filed pursuant to Federal Rule of Criminal Procedure 35. We affirm.

On February 6, 1980 appellant was indicted on charges of possession with intent to distribute cocaine and conspiracy to distribute and to possess with intent to distribute cocaine. The indictment named seven conspirators, including appellant. A superseding indictment filed on May 22, 1980 added a coconspirator. A final superseding indictment filed on June 25, 1980 named two additional participants in the cocaine distribution scheme. Counts 1 and 2 of the June 25 indictment alleged respectively that appellant possessed with intent to distribute one-half pound of cocaine in November, 1978 and August, 1979. Count 3 repeated the conspiracy charges contained in the original indictment.

Although an arrest warrant was issued one day after the initial indictment was filed appellant remained at large until August 19, 1981, when he was arrested in Florida.

As part of a plea bargain, appellant pleaded guilty to Count 3 of the June 25 indictment. ² Before sentencing appellant the district court ordered the preparation of a presentence report. The report contained the prosecution's version of the drug trafficking activity, which placed appellant at the hub of the conspiracy, and the defense's version of events, which stated that appellant was merely a courier who brought cocaine from the Florida source to the principal member of the conspiracy in Iowa and returned to Florida with the proceeds of cocaine sales to pay the source. ³ The presentence report also noted,

Investigative agents have advised that Papajohn was aware ... that he was wanted by authorities from the time of the arrest of [one of his coconspirators] on January 24, 1980. Further, [defense counsel for another coconspirator arrested on the same date] stated he was contacted by Papajohn following the[se] arrest[s] .... At that time, he instructed Papajohn that there was a warrant for his arrest and told him that he should turn himself in.

The Drug Enforcement Administration also advised that a reliable informant stated that for the past year, the defendant has continued to traffic in multi-pound quantities of cocaine between New York and Florida, utilizing couriers. At the time of the defendant's arrest on August 19, 1981, at Pompano Beach, Florida, he was using the alias Evan Steen and advised officers that his drivers license, bearing that name, was in the glove compartment of his automobile. It was subsequently verified that the car he was driving, a 1978 Mercury Marquis, had been purchased by the defendant for $3,900.00 in cash. ⁴ The defendant utilized a different alias, Chris Wolfe, to purchase the vehicle. Found in the trunk of the car at the time of the defendant's arrest was a scale, and 1/2 pound of cocaine.

Appellant's statements refuting the quoted portions of the presentence report were also contained therein. He indicated that one of his coconspirators called to inform him of the arrests, but denied being advised by defense counsel for another participant in the conspiracy that a warrant for his arrest had been issued. Appellant asserted that following the arrest of his coconspirators he returned to New York, where he lived openly with his parents. In addition, he stated,

[H]e later did utilize false identification and admitted that at the time of his arrest, had over $1,000.00 in cash on his person and cocaine in the trunk of the vehicle he was using. However, he contended that the vehicle was not his car. He further stated that he had ceased trafficking in drugs for one year following the arrest of his codefendants but then more recently had resumed his activities.

Although appellant did not personally read the presentence report before or during the sentencing hearing, his attorney reviewed a copy of it. At the hearing, appellant again maintained that he was not the central figure in the conspiracy, but was only a courier who brought cocaine from Florida to the principal conspirator in Iowa and money from Iowa to Florida. This point was the only one raised by appellant during the sentencing proceeding. ⁵ The district court subsequently sentenced appellant to a ten year term of imprisonment and fined him $10,000.00.

After appellant was sentenced he filed the Rule 35 motion, denial of which he now appeals. In the motion he alleged that he was sentenced based on material errors in the presentence report. Specifically, he challenged the government's assertions in the report that he was the central figure in the conspiracy, trafficked in large amounts of cocaine during the year after his indictment, and was a fugitive. The motion was accompanied by the affidavit of one of his coconspirators who had cooperated with the government. The affidavit asserted that appellant was merely a courier. In denying the motion the district court stated,

[The] alleged errors are clearly without merit. The pre-sentence report presented both the prosecution's and the defendant's versions of Papajohn's involvement in the conspiracy. Both the pre-sentence report and the defendant's own testimony at the sentencing proceeding informed the court of defendant's position that he was merely a middleman, and not a primary member of the conspiracy. Defendant's assertion that he was not a fugitive is also without merit. The original indictment was filed on February 6, 1980. A warrant for defendant's arrest was issued on February 7, 1980. Defendant avers in his currently pending motion that he remained in his parents' New York residence subsequent to the issuance of the warrant. However, he was arrested in Florida, while using an assumed name, on August 19, 1981. Finally, despite defendant's assertion that he was involved in no subsequent drug transactions, a scale and one-half pound of cocaine were found in the trunk of his car at the time of his arrest.

United States v. Papajohn, No. CR 80-1, slip op. at 2 (N.D.Iowa May 19, 1982) (order).

On appeal, Papajohn asserts that the trial court's reliance on the allegedly erroneous information contained in the presentence report in passing sentence and its refusal to hold a hearing to determine the validity of the report's unsupported hearsay allegations constituted an abuse of discretion and deprived him of due process. We reject this contention.

A trial court has wide discretion in making a sentencing determination. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Orner v. United States, 578 F.2d 1276, 1278 (8th Cir.1978). The sentencing judge "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. at 446, 92 S.Ct. at 591; Orner v. United States, 578 F.2d at 1278; 18 U.S.C. Sec. 3577 (1976); see Fed.R.Crim.P. 32(c)(2). Information that may properly be considered includes, inter alia, criminal activity for which the defendant has not been prosecuted and...