U.S. v. Rogers, 88-2926

• Decision Date: 26 March 1990
• Docket Number: No. 88-2926,88-2926
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald ROGERS a/k/a New York, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 917

899 F.2d 917

UNITED STATES of America, Plaintiff-Appellee, v. Donald ROGERS a/k/a New York, Defendant-Appellant.

No. 88-2926.

United States Court of Appeals, Tenth Circuit.

March 26, 1990.

D. Blair Watson, Asst. U.S. Atty. (Robert E. Mydans, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Joseph L. Wells, Oklahoma City, Okl., for defendant-appellant.

Before SEYMOUR and ANDERSON, Circuit Judges, and KANE, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Appellant, Donald Rogers, was found guilty by a jury and convicted of one count each of engaging in racketeering activities and conspiracy to participate in such activities in violation of 18 U.S.C. Secs. 1961, 1962(c) and (d), possession of heroin with intent to distribute, conspiracy to possess heroin with intent to distribute, and interstate travel to facilitate the conspiracy in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 846, 18 U.S.C. Sec. 1952(a)(3), and 18 U.S.C. Sec. 2. The district court determined the sentencing guideline ¹ range for the most serious offenses to be 151 to 188 months, and sentenced Rogers to concurrent prison terms of 156 months for four of the counts and a concurrent term of 60 months on the remaining count, followed by five years' supervised release.

On appeal, Rogers contends that his Fifth Amendment privilege against self-incrimination was violated when he was not given a Miranda ² warning at the beginning of or during his presentence interview by a probation officer following trial. He also contends that his right to a speedy trial was violated, and that the district court abused its discretion when it denied Rogers' motion for severance. We affirm.

I. ADMISSIONS DURING PRESENTENCE INTERVIEW

Following Rogers' trial, the court ordered the U.S. Probation Office to prepare a presentence report, and briefly discussed that process in advance with Rogers' counsel, in Rogers' presence, after the jury was discharged. See R.Vol. XV at 1078. U.S. Probation Officer Derald T. Riggs prepared the report, and interviewed Rogers as a routine part of the process. During the interview Rogers admitted to trafficking in twenty-four ounces of heroin within the charged enterprise, rather than the five ounces specified in the indictment against him. R.Vol. XVI at 2, 10-12, 17; R.Supp.Vol. II, Tab 520, Count 27. There is a dispute as to what quantity was proved at trial. According to Rogers, the only reason he admitted to the twenty-four ounces was his belief that the admission was required as part of his acceptance of responsibility in order to obtain the two-point reduction in his base offense level allowed by the U.S.S.G. Sec. 3E1.1. ³

In his initial draft of the presentence report, Riggs attributed to Rogers the entire thirty kilograms of heroin possessed and distributed by the drug ring as a whole, and calculated a base offense level based on that amount. When Rogers' counsel objected, see R.Vol. XVI at 2-4, Riggs revised the report and calculated the base offense level using the twenty-four ounces to which Rogers had admitted. ⁴ The quantity was multiplied by seven to reflect the number of times it could be "cut" for street distribution. ⁵ The probation officer's use of the twenty-four ounces to which Rogers admitted in his interview, instead of the five ounces mentioned at one part of the indictment potentially increased Rogers' sentence by four years, even after the two-point downward adjustment in the offense level which Rogers was allowed for accepting responsibility. ⁶ The district court accepted the classifications recommended in the presentence report and imposed them for sentencing purposes.

Rogers now contends that his Fifth Amendment privilege against self-incrimination was violated in this process, in two ways: first, by a perceived requirement under Sec. 3E1.1 that he further incriminate himself, or be "punished" by not receiving the two-point reduction, and second, by the probation officer's failure to give him a Miranda warning regarding the consequences of any admissions. He states:

"For the sake of receiving a reduction of two levels, the Appellant incriminated himself from a base level of 24 to a base level of 32. Thus Appellant unwittingly placed himself in a 'damned-if-you-do and damned-if-you-don't' position. It is this dilemma which Appellant contends has violated his Fifth Amendment privilege against self-incrimination.

....

... Where the probation office extracts incriminating information without warning the defendant of the consequences, the confession should not be considered voluntary. The information obtained should not be used to enhance the defendant's sentence as was done here. Appellant would submit that in the coercive setting of a probation department interview, a defendant is entitled to Miranda warnings and the presence of counsel." ⁷

Principal Brief of Defendant/Appellant at 8, 11-12.

Rogers' argument faces two hurdles at the outset. First, in the proceedings below Rogers did not specifically object on constitutional grounds to the use of his admissions, although he complained about unfairness. R.Vol. XVI, pp. 10-12. Thus, our review is limited to plain error, or the exercise of supervisory power. See Newman v. United States, 817 F.2d 635, 637 n. 3 (10th Cir.1987); United States v. Cheama, 783 F.2d 165, 168 (10th Cir.1986).

Second, it is highly disputed whether Rogers admitted anything in his presentence interview which had not already been proved at trial. The district court specifically found, at the time of sentencing, that "the trial testimony would have permitted commencing with a base offense level of 34; and if Mr. Rogers was candid and open and helpful after trial, in my opinion he would not have elevated himself from some lesser level to that. So I certainly agree, in this case I don't believe that there's been any adverse effect by virtue of the candor which resulted in deduction of two offense levels based upon acceptance of responsibility." R.Vol. XVI at 17. The district court's fact findings to the evidence must be accepted on appeal unless they are clearly erroneous. 18 U.S.C. Sec. 3742(d).

However, in its brief on appeal, the government has not identified the evidence at trial which established that Rogers trafficked in twenty-four ounces of heroin, and our review of the record has failed to identify any direct evidence to that effect. There is, of course, substantial evidence with respect to the existence of a conspiracy, a large drug organization, and very substantial amounts of heroin in which the organization trafficked. But, at another point in the sentencing hearing the district court expressly rejected the government's argument that Rogers should be held accountable for amounts of heroin distributed by the conspiracy as a whole, stating:

"Now, there is, of course, a basis for your presentation to the Court, Mr. Wintory, but it's largely a circumstantial basis. We know that Lisa was active, we know that she accompanied her husband, we know the relationship to Mrs. Robinson, but we really don't know precisely what was said among them or what Mr. Rogers observed, and so forth, and it just rests too much on inference for me to be willing to elevate the base offense level in a way that would have such consequences in the case so I'm just going to approach that conservatively."

R.Vol. XVI at 8. Thus, although the evidence at trial can be construed to support the district court's finding, as an alternative ground for our affirmance of the sentence imposed by the district court we elect to address the merits of Rogers' constitutional argument.

Certain facts form an important backdrop for our analysis. The record affirmatively shows that Rogers volunteered the information about trafficking in twenty-four ounces of heroin. R.Vol. XVI at 2, 10-12, 17. There is no contention in this case of overreaching by the probation officer. Rogers does not argue that the probation officer attempted to extract a confession of other criminal activity, or coerced, cajoled, or prodded Rogers, or otherwise impaired or fettered the exercise of Rogers' Fifth Amendment right to silence. Indeed, Officer Riggs' decision to revise his original draft by reducing the quantity of heroin to the amount admitted by Rogers suggests both an absence of purpose to find ways to increase Rogers' punishment and a lack of interrogation along those lines. At most, Rogers' contention is that he had a subjective belief that the availability of a two-point downward adjustment in his offense level for acceptance of responsibility compelled him to admit to additional criminal activity.

Rogers' counsel was not present at the presentence interview, but was not excluded. That is, he apparently could have been present if he had wished. There is no allegation that Rogers' counsel did not know that Rogers would be interviewed, and we must assume that the interview was expected, and its purpose, including the nature and structure of the report being compiled, was known. See R.Vol. XV at 1078. Rogers' counsel displayed a good working knowledge of the entire process at the sentencing hearing, see R.Vol. XVI at 2-17, as well as prior thereto, in the presentation of his objections to the draft presentence report.

The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. "A defendant does not lose this protection by reason of his conviction of a crime," Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409 (1984), and "the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure it invites." In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967); see United States v. Jones, 640 F.2d 284, 287 (10th Cir.1981). Thus, the Supreme...