U.S. v. Shepherd

• Decision Date: 04 March 1997
• Docket Number: 94-3143 and 94-3144,94-3126,Nos. 94-3120,s. 94-3120
• Citation: 322 U.S. App DC 160,102 F.3d 558
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Sharon M. SHEPHERD, a/k/a Sharon S. Ortega, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 558

102 F.3d 558

322 U.S.App.D.C. 160

UNITED STATES of America, Appellee/Cross-Appellant, v. Sharon M. SHEPHERD, a/k/a Sharon S. Ortega, Appellant/Cross-Appellee.

Nos. 94-3120, 94-3126, 94-3143 and 94-3144.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 15, 1996.

Decided Dec. 6, 1996.

As Amended Jan. 31 and March 4, 1997.

Rehearings Denied in No. 94-3143 March 4, 1997.

Appeals from the United States District Court for the District of Columbia (No. 94cr00010-01)(No. 94cr00010-02).

A.J. Kramer, Federal Public Defender, Washington, DC, argued the cause and filed the briefs for appellant/cross-appellee Sharon M. Shepherd.

Barbara R. Miller, appointed by the court, Washington, DC, argued the cause and filed the briefs for appellant/cross-appellee Marvin Binion.

Vicki S. Marani, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for appellee/cross-appellant. Eric H. Holder, Jr., U.S. Attorney, Julie J. Shemitz, and Kathleen A. Felton, Attorneys, U.S. Department of Justice, Washington, DC, were on the briefs.

Before: WILLIAMS, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In these consolidated appeals, appellants Sharon Shepherd ¹ and Marvin Binion challenge their convictions by a jury of conspiracy to distribute and possess with intent to distribute fifty or more grams of crack cocaine and 500 or more grams of powder cocaine, and distribution of 500 or more grams of powder cocaine. Shepherd also challenges her convictions for distributing fifty or more grams of crack cocaine and for using or carrying a firearm during and in relation to a drug trafficking crime. Because we conclude that Shepherd was entitled to enter a plea to the indictment, we remand her case to allow her to so plead; hence, we do not reach her other contentions. Binion's contentions regarding the denial of a continuance to obtain new counsel, the denial of lesser included offense and venue instructions, and the sufficiency of the evidence of conspiracy, are meritless. In a cross-appeal, the government challenges appellants' sentences, citing United States v. Walls, 70 F.3d 1323 (D.C.Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1445, 134 L.Ed.2d 565 (1996), for the proposition that a government agent's insistence on purchasing crack cocaine rather than powder cocaine is insufficient to establish "sentencing entrapment." In light of Walls, we remand both cases for resentencing.

I.

The evidence at trial showed that on three occasions in the fall of 1993 Sharon Shepherd sold crack cocaine and powder cocaine to Mark Ross, a Special Agent of the Drug Enforcement Administration ("DEA") posing as a crack cocaine dealer. The first sale occurred on September 30, after a confidential informant arranged for Ross to purchase four ounces of crack cocaine from Shepherd. That day, Ross drove to an office building at 7835 Eastern Avenue, N.W., and met Shepherd, who was waiting outside. Shepherd told Ross that the crack cocaine had not yet arrived but that he should put the money for the drugs in her handbag. When Shepherd opened her handbag, Ross saw a 9 mm handgun without a magazine or clip in it. Shepherd explained that she needed the gun because, as a woman, she had to protect herself and was "afraid she might get ripped off or something." Ross refused to "front" the money, wanting first to see what he was buying. Shepherd then went into 7835 Eastern Avenue and entered a door marked "People's Tax Service," a tax preparation service owned by Marvin Binion. While Shepherd was inside, Binion also went into the building. Shepherd shortly returned with powder cocaine and told Ross that it had not yet been "cooked" into crack cocaine. Ross stated that he wanted to buy crack cocaine, and Shepherd promised to cook the powder in her apartment in Southwest Washington, D.C. At that time, Shepherd told Ross that Binion was the source of her drug supply. Later that day, when the crack cocaine was ready, Shepherd paged Ross from Binion's office. Ross returned to Eastern Avenue and purchased approximately 100 grams of crack cocaine from Shepherd.

The second sale took place on November 18, 1993. When Ross returned to 7835 Eastern Avenue, Shepherd told him that the drugs had not yet arrived and went into the building. While Shepherd was inside, Ross saw Binion go in and out of the building. Shepherd returned to Ross, showed him some powder, and then went back into the building. Emerging a few minutes later, Shepherd told Ross that it would take a little while to cook the cocaine because the microwave oven in Binion's office was in use. Later that day, Ross purchased four ounces of crack cocaine from Shepherd.

The third sale, on December 8, 1993, involved a kilogram of powder cocaine. Shepherd had explained to Ross that her supplier did not want to deliver the drugs as crack cocaine, but had promised to do the cooking herself. On December 8, Ross drove back to Eastern Avenue with the drug money. Shepherd went inside the Eastern Avenue building, and upon returning, told Ross that half the kilogram was gone, but he could buy the remainder. Before Ross could buy the drugs, however, Shepherd reported that the remaining half kilogram was gone but that someone would bring another kilogram shortly. Ross left, and within a few minutes, returned upon learning from Shepherd that a new kilogram had arrived. After Shepherd and Binion got into Ross' car, Binion handed a bag to Shepherd, who pulled out another brown bag containing approximately 990 grams of powder cocaine. Shepherd gave the bag to Ross, and after looking inside, Ross got out of the car, ostensibly to get drug money from the car trunk. Ross signaled nearby agents, who arrested Shepherd and Binion.

The agents recovered from Binion's office a microwave oven, two razor blades and baking soda near the microwave--objects associated with the conversion of powder cocaine into crack cocaine--and a balance beam scale on which there was a plastic bag containing mannitol, a substance used to add bulk to similar powder-like substances. They also found about two grams of powder cocaine in a briefcase belonging to Binion. At Shepherd's apartment, agents found the gun that Ross had seen in Shepherd's handbag on September 30 and a digital scale with white powder on it.

Shepherd and Binion were indicted for conspiracy to distribute, and to possess with intent to distribute, fifty or more grams of crack cocaine and 500 or more grams of powder cocaine; ² distribution of fifty or more grams of crack cocaine on September 30 and November 18, 1993; ³ and distribution of 500 or more grams of powder cocaine on December 8, 1993. A third defendant, Gabriel Zapata, was also indicted for the conspiracy and distribution of 500 or more grams of cocaine charges. In addition, Shepherd was indicted for using and carrying a firearm on September 30, 1993, during and in relation to a drug trafficking crime. ⁴

A jury found Shepherd guilty on all counts, and Binion guilty of conspiracy and distribution of 500 or more grams of powder cocaine on December 8, 1993; the jury acquitted Binion of the drug sales on September 30 and November 18, 1993. The jury found Zapata not guilty. The district court sentenced Shepherd to concurrent terms of 60 months' imprisonment for the distribution and conspiracy convictions, and a consecutive term of 60 months for the firearms conviction; the court sentenced Binion to concurrent terms of 63 months' imprisonment for the distribution and conspiracy convictions.

II.

Shepherd contends that the district court abused its discretion in rejecting her request to plead guilty to the indictment. Under a plea agreement with the government, Shepherd would have testified about her codefendants' involvement in the charged offenses, and the government would have recommended to the departure committee of the United States Attorney's Office that it file a motion requesting downward departures from the Sentencing Guidelines and the mandatory minimum sentences. ⁵ Any prejudice to her codefendants that might have resulted from her mid-trial plea, she maintains, should have been addressed by cautionary instructions, not by a summary rejection of her plea.

At the end of the first day of trial, while Agent Ross, the government's first witness, was testifying on direct examination, Shepherd's counsel advised the district court that Shepherd had reached an agreement with the government to plead guilty to the indictment and to testify for the government against her codefendants. Acknowledging that a mid-trial plea was unusual, counsel explained that Shepherd had agreed to plead several months earlier, but, intimidated by her codefendants, had changed her mind several times. Counsel stated that Shepherd had decided that afternoon to cooperate with the government, and with the court's approval, would be debriefed by the government that evening and change her plea the following morning. In return, the government would recommend that the departure committee seek a sentencing departure below both the Sentencing Guidelines provision, see U.S.S.G. § 5K1.1, ⁶ and the mandatory minimum sentence, see 18 U.S.C. § 3553(e). ⁷ The district court rejected the plea request. Our review is for abuse of discretion. See United States v. Maddox, 48 F.3d 555, 556 (D.C.Cir.1995); United States v. Washington, 969 F.2d 1073, 1077 (D.C.Cir.1992), cert. denied, 507 U.S. 922, 113 S.Ct. 1287, 122 L.Ed.2d 679 (1993).

It has long been recognized that " 'plea bargaining[ ]' is an essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); see also Maddox, 48 F.3d at 558. Not only does "[i]t lead[ ] to prompt and largely final disposition of most criminal cases," Santobello, 404 U.S. at 261, 92 S.Ct. at 498 (citingBrady v. United States, 397 U.S. 742, 751-52, 90...