U.S. v. Purchess
| Decision Date | 28 February 1997 |
| Docket Number | No. 96-2033,96-2033 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ashavan PURCHESS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Larry Wszalek, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
Alan G. Habermehl, Thomas, Kelly, Habermehl & Wood, Madison, WI, for Defendant-Appellant.
Before WOOD, Jr., KANNE and ROVNER, Circuit Judges.
Ashavan Purchess pleaded guilty to a charge of conspiracy to import cocaine and marijuana. He appeals from the sentence imposed under the Sentencing Guidelines because the district court declined to award him a reduction for acceptance of responsibility and departed upward to account for conduct which resulted in death.
Purchess was charged with a conspiracy to import cocaine and marijuana in violation of 21 U.S.C. §§ 952(a)(1) and 846. Purchess and several associates arranged a series of trips to Jamaica, where Purchess owned a home. The participants in the conspiracy stayed at Purchess' home while in Jamaica, purchased cocaine and sometimes hashish and marijuana, and then transported the drugs back to the United States, usually by swallowing plastic pellets filled with the drugs. At times, Purchess went to Jamaica with his cohorts, and other times he monitored events from the United States. For most of the trips, Purchess arranged for his brothers in Jamaica to supply the drugs and pack them into pellet form. When events went as planned, the conspirators would discharge the pellets upon arrival in the United States and then either sell the drugs themselves or turn them over to Purchess. Purchess was charged with making or arranging four such trips over a period of approximately one year.
On the first trip, Purchess traveled to Jamaica and arranged with a drug supplier identified only as "Ray" to smuggle hashish and marijuana into the United States. Several participants in the scheme attempted to bring more than a hundred pounds of marijuana and about two pounds of hashish into Miami in duffel bags. All were arrested at the airport. Another courier, who had swallowed about three quarters of a pound of hashish in pellet form, returned separately and gave two ounces of the hashish to Purchess.
On the second trip, two couriers ingested about four ounces of hashish and an equal amount of cocaine in pellet form. The couriers were arrested shortly after their arrival at O'Hare Airport in Chicago for disorderly conduct. They spent the night in jail, where they passed most of the cocaine and hashish, flushing it down the toilet. What remained after they were released was given to Purchess.
On the third trip, three couriers ingested a few ounces of cocaine and about 400 grams of hashish, again in pellet form. They carried the drugs back to Madison, Wisconsin, Purchess' home base in the United States, and gave Purchess about half the haul. On the fourth trip, four couriers swallowed more than 400 grams of cocaine and more than 200 grams of hashish, again in pellet form. This time, two of the couriers were detained at the airport and the drugs they ingested were seized. The other two couriers were questioned and released, and again, Purchess received a portion of the drugs they were carrying.
During a fifth trip (hereafter "Trip Five"), which the government agreed was not part of the conspiracy with which Purchess was charged, Purchess participated in a drug buying trip to Jamaica with Kristopher Zurheide, Phillip Roh and others. Roh had participated in the third trip, but Zurheide had not previously been part of the drug import group. As with prior trips, the participants stayed at Purchess' home in Jamaica. Once in Jamaica, Zurheide gave Purchess approximately $3000. Although there is some dispute over why Zurheide gave this money to Purchess, everyone agrees that the money was used to buy cocaine for Zurheide from Purchess' brothers. Zurheide swallowed seventy-seven pellets of cocaine and two of marijuana for transport back to the United States, intending to sell the drugs for his own profit on arrival. But events did not go as planned. During the flight back to the United States, Zurheide became ill, and the plane was rerouted from Tampa to Miami so that Zurheide could receive emergency medical attention. Apparently, one or more of the pellets had opened in Zurheide's body, causing symptoms of a drug overdose. Zurheide denied to paramedics that he had ingested drugs and refused to allow himself Purchess pleaded guilty without a plea agreement. At his plea hearing, he admitted all of the conduct charged in the indictment for the offense of conviction, including each of the government's allegations (with one minor exception) relating to the first four trips described above. As for the minor exception, he denied through his attorney, in response to a question from the court, that he sent a $197 money order to Jamaica as part of the conspiracy, instead attributing this action to a co-conspirator. The court then raised the issue of Trip Five on the record at the plea hearing, noting that the parties agreed to defer until sentencing the determination of Purchess' role in Trip Five. Under the advice of his attorney, Purchess remained silent at both the plea hearing and the sentencing hearing as to the conduct involved in Trip Five, which resulted in the death of Zurheide. 1
to be x-rayed. He was taken to a hospital where he eventually admitted swallowing seventy-seven pellets of cocaine, but continued to refuse medical treatment. Less than two hours after Zurheide arrived at the hospital, he died. An autopsy confirmed that the cause of Zurheide's death was "body packer syndrome." A deadly amount of cocaine had leaked from the pellets
A probation officer prepared a Presentence Investigation Report (the "PSR") which deemed as relevant conduct not only the first four trips, but Trip Five as well. In his objections to the PSR, Purchess' attorney disputed some facts relating to Trip Five. He also objected to treating Trip Five as "relevant" conduct. He argued that Zurheide was the leader of a separate conspiracy, which involved Zurheide purchasing drugs for himself to resell in the United States. In conjunction with this spin on events, he stated that Purchess denied that he was paid for drugs obtained by Zurheide in Jamaica. Instead, he claimed Purchess merely held the $3000 for Zurheide because Zurheide feared being robbed of the large amounts of cash he was carrying. Purchess admitted that this money ultimately went to his brother to pay for drugs obtained by Zurheide but denied that he personally profited in any way from this transaction. The attorney also conveyed that Purchess denied any involvement with Roh during Trip Five. He argued that, unlike the first four trips where Roh and other couriers transported drugs to the United States for Purchess, Roh was not transporting drugs for Purchess during Trip Five. Rather, he was buying and transporting them for himself. Thus, he argued, Trip Five was not relevant conduct because it did not bear the necessary relation to the offense of conviction to allow it to be treated as the same course of conduct. No affidavit or evidence of any kind was tendered in support of this objection.
At the sentencing hearing, Purchess' attorney continued his theme that Trip Five was not relevant conduct. The government agreed that Purchess was entitled to a reduction for acceptance of responsibility because he timely admitted all the conduct charged and "consistently refused or declined to comment" on the relevant conduct. The Assistant United States Attorney stated to the court, "I believe that any challenges that he may have raised aren't factual in nature but simply challenge the legal conclusions based on the facts but pretty much agreed upon facts in this case." Transcript of Sentencing before the Honorable John C. Shabaz, April 12, 1996 (hereafter "Transcript of Sentencing"), at 15-16. The district court disagreed, finding instead that Trip Five constituted relevant conduct and that Purchess had falsely denied or frivolously contested that conduct through his attorney's challenges to the PSR. In particular, the court found the claim that Purchess was not paid for the drugs bought by Zurheide to be "frivolity at best." Id. at 31. The court found that, Id. The court also noted that although In assessing whether to grant a reduction for acceptance of responsibility, the court noted that although Purchess himself had remained silent on relevant conduct, his attorney's challenges on his behalf were factual challenges rather than strictly legal argument, and these challenges were frivolous contests to relevant conduct. The court expressed frustration over cases like the instant one, where the defendant remained silent and the lawyer made frivolous arguments. The court refused to characterize these challenges as "lawyer talk," stating that the time had come for this Court to decide whether the attorney's challenges can be attributed to the defendant for the purposes of assessing acceptance of responsibility. The court also considered that when given the opportunity to speak on his own behalf, Purchess mumbled the two word apology, "I'm sorry." The court denied the reduction for acceptance of responsibility, finding that Purchess had denied relevant conduct, showed no remorse and was simply trying to get a lower sentence without actually accepting responsibility for his actions.
Purchess denied any involvement with Roh on Trip Five, "[h]is fingerprints are all over the place. He arranged this trip just as he arranged the other four knowing full well of Roh's ability to import drugs back to the United States for the purposes of sale." Id. at 31-32. Because Trip Five
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