U.S. v. Putra

Decision Date05 March 1996
Docket NumberNo. 94-10040,94-10040
Citation78 F.3d 1386
Parties96 Cal. Daily Op. Serv. 1477, 96 Daily Journal D.A.R. 2489 UNITED STATES of America, Plaintiff-Appellee, v. Cheryl PUTRA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Richard T. Pafundi, Honolulu, Hawaii, for defendant-appellant.

Pat Merkamp Stemler, United States Department of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Harold M. Fong, Chief District Judge, Presiding.

Before WALLACE, Chief Judge, HUG, and FARRIS, Circuit Judges.

HUG, Circuit Judge:

Cheryl Ann Putra was convicted of one count of aiding and abetting in the possession of one ounce of cocaine with intent to distribute. She appealed both her conviction and her sentence. In an unpublished memorandum disposition, we affirmed her conviction along with the convictions of her codefendants. United States v. Putra, No. 94-10040, 1996 WL 95243 (filed March 5, 1996). This opinion concerns her appeal of her sentence. Putra contends that the district court improperly considered as "relevant conduct" the cocaine involved in a separate count of which the jury acquitted her. We have jurisdiction under 28 U.S.C. § 1291, and we remand for resentencing.

I.

Count 18 of Putra's indictment charged her with aiding and abetting in the possession with intent to distribute one ounce of cocaine on May 8, 1992. Count 19 charged her with aiding and abetting possession with intent to distribute five ounces of cocaine on May 9, 1992. In addition, she was charged in Count 2 with conspiring knowingly and intentionally to distribute a quantity of cocaine in excess of 500 grams. Following trial, the jury returned a guilty verdict on Count 18, but it acquitted her on Count 19 and Count 2. However, at sentencing, the district court determined that the preponderance of the evidence showed that Putra was involved in both of the charged aiding and abetting transactions. The court aggregated the amount of cocaine involved in Counts 18 and 19 to determine her offense level, despite the jury acquittal on Count 19. Without the added cocaine from Count 19, Putra's guideline range would have been 15-21 months; with the added cocaine included, her range was 27-33 months. The court sentenced her to 27 months.

II.

The issue on appeal is whether a judge can sentence a defendant for a crime of which the jury found her not guilty. We review a district court's interpretation of the Sentencing Guidelines de novo. United States v. Buenrostro-Torres, 24 F.3d 1173 1174 (9th Cir.1994). We conclude that the court erred by failing to apply our prior decision in United States v. Brady, 928 F.2d 844 (9th Cir.1991).

The court instructed the jury generally on aiding and abetting that:

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through direction of another person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.

So, if another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts or conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.

Notice, however, that before any defendant may be held criminally responsible for the acts of others, it is necessary that the accused deliberately associate himself in some manner with the crime and participate in it with the intent to bring about the crime.

Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.

In other words, you may not find a defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

The court went on to instruct the jury on the individual offenses. Regarding the counts against Putra, the instructions read in part: "The defendants are charged in Counts ... 18 [and] 19 ... with possession with intent to distribute cocaine." The court then set forth the elements of possession.

he jury acquitted Putra of aiding and abetting in the possession with intent to distribute the five ounces of cocaine involved in Count 19. By acquitting her of this charge, the jury necessarily found that she was not involved in the possession of that cocaine. Putra challenges the court's inclusion of the additional cocaine as improper under the Sentencing Guidelines as interpreted by our decision in Brady.

United States Sentencing Guideline ("U.S.S.G.") § 1B1.3(a)(2) provides that the defendant's base offense level shall be determined, with respect to offenses of a character for which U.S.S.G. § 3D1.2(d) would require grouping, on the basis of all acts and omissions described in subdivision (1)(A) and (1)(B) that were part of the same course of conduct or common scheme or plan as the offense of conviction. Subdivision (1)(A) includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant." U.S.S.G. § 1B1.3(a)(1)(A). Application note 3 further states that under subsection (a)(2), the proper course is to include the total quantity of narcotics involved regardless of the fact that the defendant has not been convicted of the multiple counts. As an example, the application note provides that where a defendant is engaged in multiple drug sales, as part of the same course of conduct or common scheme or plan, then the total quantity of drugs involved is to be used to determine the offense level, even if the defendant is convicted of a single count charging only one of the sales. U.S.S.G. § 1B1.3, comment. (n. 3).

Although U.S.S.G. § 1B1.3, as interpreted by application note 3, indicates it is proper to include the total quantity of drugs involved in the same course of conduct scheme or plan even if the defendant is convicted of only one count, it does not deal with the situation where the defendant was charged with the other count involved and is acquitted. We considered this situation in an analogous context in United States v. Brady, 928 F.2d 844 (9th Cir.1991). In Brady, the jury acquitted the defendant of first degree murder and assault with intent to commit murder, but it convicted him of the lesser included offense of voluntary manslaughter. At sentencing, the court reconsidered the defendant's "state of mind" and departed upward on that basis and on the degree of planning and preparation involved in the offense. Id. at 850. We reversed, concluding that the Guidelines do not allow "a court to reconsider facts during sentencing that have been rejected by a jury's not guilty verdict." Id. at 851. "Otherwise, any time a judge disagreed with the jury's verdict, the judge could 'reconsider' critical elements of the offense to avoid the restrictions of the Guidelines and push the sentence to the maximum--in effect punishing the defendant for an offense for which he or she had been acquitted." Id. at 851-52.

Likewise, this case presents a situation where allowing an increase in Putra's sentence would be effectively punishing her for an offense for which she has been acquitted. The jury's finding that Putra did not aid or abet in the possession of the five ounces of cocaine on May 9, 1992, is an explicit rejection of her involvement in that transaction. The sentencing court cannot, after the jury's determination on those facts, consider the facts again and conclude that Putra was indeed involved. Although the standard of proof differs for an acquittal and for sentencing, we have specifically rejected this argument as justification for considering facts underlying the jury's acquittal. In Brady, we held that a district court may not rely upon facts that have been rejected by a jury's not guilty verdict. Id. at 851 & n. 12. In this case, the district court's sentence can only be reached if the district court is allowed to disregard the jury verdict on Count 19 and substitute its own factual finding. This is clearly forbidden under Brady.

We note, however, that Brady is a judicial limitation on the facts the district court may consider at sentencing, beyond any limitation imposed by the Guidelines. Thus, our application of Brady to the circumstances of this case is very narrow. We acknowledge that Brady is itself limited by United States v. Vgeri, 51 F.3d 876 (9th Cir.1995), and United States v. Diaz-Rosas, 13 F.3d 1305 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1848, 128 L.Ed.2d 473 (1994), cases in which the defendants were convicted of the conspiracy count, but acquitted of certain possession counts. Under such circumstances, the district court may hold a defendant accountable for drugs possessed or distributed by co-conspirators, so long as it was in furtherance to jointly undertaken criminal activity and reasonably foreseeable to the defendant. See U.S.S.G. § 1B1.3, comment. (n. 2). However, these cases are not applicable to the facts at hand because Putra was acquitted of the conspiracy charge and of any activity related to the cocaine involved in Count 19. In such a situation, the district court should not consider the narcotics in possession of her codefendants when setting Putra's sentence.

The Government contends...

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