U.S. v. Silverman

• Decision Date: 22 September 1992
• Docket Number: Nos. 90-3205,90-5733,90-5816 and 91-6506,s. 90-3205
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ira SILVERMAN (90-3205); Morris G. Woodard (90-5816); and Gary Caton (90-5733/91-6506), Defendants-Appellants. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1502

976 F.2d 1502

61 USLW 2191

UNITED STATES of America, Plaintiff-Appellee, v. Ira SILVERMAN (90-3205); Morris G. Woodard (90-5816); and Gary Caton (90-5733/91-6506), Defendants-Appellants.

Nos. 90-3205, 90-5733, 90-5816 and 91-6506.

United States Court of Appeals Sixth Circuit.

Reargued Feb. 12, 1992.

Decided Sept. 22, 1992.

John O. Braud, Asst. U.S. Atty., Columbus, Ohio, Gregory G. Lockhart (briefed), Office of the U.S. Atty., Dayton, Ohio, and Sean Connelly (argued and briefed), U.S. Dept. of Justice, Civ. Div., Kenneth W. Starr (argued), Office of the Sol. Gen., Washington, D.C., for U.S. in No. 90-3205.

David H. Bodiker (argued and briefed), Bodiker & Holland, Columbus, Ohio, for Ira Silverman.

Paul Borman, Fed. Public Defenders Office, Detroit, Mich., Edward Marek, Fed. Public Defender (argued and briefed), Cleveland, Ohio, Leah J. Prewitt, Knoxville, Tenn., Edward C. Duke, Fed. Public Defender, Memphis, Tenn., Henry A. Martin, Fed. Public Defender, Nashville, Tenn., for amicus curiae Federal Public and Community defenders.

Louis DeFalaise, U.S. Atty., John M. Compton, Asst. U.S. Atty., Mark A. Wohlander, Asst. U.S. Atty. (briefed), Lexington, Ky., Sean Connelly, U.S. Dept. of Justice, Civ. Div., Kenneth W. Starr (argued), Office of the Sol. Gen., Washington, D.C., for U.S. in No. 90-5733.

Douglas L. McSwain (argued and briefed), Ogden, Sturgill & Welch, Lexington, Ky., for Gary Caton.

Louis DeFalaise, U.S. Atty., John M. Compton, Asst. U.S. Atty. (briefed), Lexington, Ky., Sean Connelly (argued and briefed), U.S. Dept. of Justice, Civ. Div., Kenneth W. Starr (argued), Office of the Sol. Gen., Washington, D.C., for U.S. in No. 90-5816.

Kevin G. Henry (argued and briefed), Ogden, Sturgill & Welch, Lexington, Ky., for Morris Gordon Woodard.

John M. Compton, Asst. U.S. Atty., Karen K. Caldwell, U.S. Atty., Mark A. Wohlander, Asst. U.S. Atty., Lexington, Ky., Sean Connelly (briefed), U.S. Dept. of Justice, Civ. Div., Washington, D.C., for U.S. in No. 91-6506.

Before MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges; and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

Defendants, Ira Silverman, Gary Caton, and Morris Woodard, have appealed from their guidelines sentences received by reason of guilty pleas to possession with intent to distribute drugs. The Chief Judge directed that their separate appeals be consolidated because he determined that "they involve similar legal questions under the Confrontation Clause." ¹ In each case, the sentencing judge increased the sentence imposed beyond that which reflected the quantity of drugs involved in the particular count or counts to which the defendant had pleaded guilty. The sentence in each case reflected other drug activity of the particular defendant based upon hearsay testimony or evidence, and this activity was found by a preponderance of the evidence by the district court to be "relevant conduct." This relevant conduct determination was the basis for the sentences imposed, which are the subject of these consolidated appeals. Although it is uncertain whether each of the defendants raised the confrontation issue in a timely manner, we discuss the contentions of each defendant separately and the applicable circumstances in his particular case. We AFFIRM each of the sentences.

I. IRA SILVERMAN

The saga of Silverman in the federal courts began in 1988, when he was arrested after attempting to sell cocaine to an informant. The indictment charged him with intent to distribute cocaine and with a separate count of travel in interstate commerce to promote a narcotics business. Under a plea agreement, Silverman pleaded guilty only to the cocaine distribution charge. In an initial appeal, the issues were the constitutionality of the Federal Sentencing Guidelines ("guidelines"), the burden of proof on establishing guideline elements, the district court's consideration of past activities involving drugs--found to be relevant conduct under the guidelines (§ 1B1.3)--Silverman's role in the offense, and whether the government adhered to the plea agreement. We remanded the case (Guy, J., dissenting) to direct the district court to consider the effect of Silverman's plea agreement, specifically asking whether the court accepted the agreement and whether its intent had been carried out in the sentence. United States v. Silverman, 889 F.2d 1531, 1539 (6th Cir.1989). We cited, in connection with the remand, United States v. Smith, 887 F.2d 104 (6th Cir.1989), which held:

In its sentencing determination, the district court should have considered all conduct that was part of the same course of conduct or a common scheme or plan as the offense of conviction-including possession of the drugs charged in Count Two [the dismissed count].

We note that due process requires that some evidentiary basis beyond mere allegation in an indictment be presented to support consideration of such conduct as relevant to sentencing. "[A]s a matter of due process, factual matters may be considered as a basis for sentence only if they have some minimal indicium of reliability beyond mere allegation." United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982); see also Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 426, 3 L.Ed.2d 516 (1959). This due process limit on the evidence a sentencing court may properly consider is recognized in the commentary to § 6A1.3 of the guidelines, which provides:

In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. Any information may be considered, so long as it has "sufficient indicia of reliability to support its probable accuracy." Reliable hearsay evidence maybe considered. Out-of-court declarations by an unidentified informant may be considered "where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means." Unreliable allegations shall not be considered.

Guidelines Manual at 6.2 (1987) (citations omitted; emphasis added).

Therefore, we reverse the district court's sentencing of defendant and remand this case for resentencing with the instruction that all conduct that formed part of defendant's criminal course of conduct, scheme or plan, including possession of the drug quantities charged in the dismissed count,....

Id. at 108-109 (footnote omitted). Smith reversed the district court's failure to consider the defendant's drug activity in the count of the indictment which was dismissed pursuant to a plea agreement.

We also directed that the district court clarify its finding on Silverman's role in the offense, noting that the court had not indicated whether it had found five or more participants as required for a three-point enhancement. Finally, the panel directed the district court to "indicate its reasons for rejecting the motion for withdrawal of the guilty plea." Silverman, 889 F.2d at 1540. There was no reference whatever in our previous opinion to the Confrontation Clause, nor did Silverman make any such direct contention in his brief or at argument.

In the original opinion, we noted Silverman's position as opposing:

consideration by the court of his past history of alleged extensive drug dealing. Defendant sought to limit consideration of evidence only to that "admissible at trial" and that proof on factors relevant to the offense level be required by "clear and convincing evidence." He also sought to limit the sentencing hearing matters to allegations previously set forth in the presentence report (not the supplemental material later presented). He sought a ruling that he could testify in response to any such evidence without waiving his fifth amendment privilege. If the ruling were adverse to defendant's motions in this regard, Silverman sought to withdraw his guilty plea.

The district court did not specifically rule on these matters, but it did consider a later memorandum on past history of relevant conduct, dated August 19, 1988, which related to information concerning (1) investigation of Silverman by other authorities of earlier cocaine distribution, (2) a purported list of drug dealers in Silverman's handwriting obtained in a search of the limousine, (3) Silverman's posting while a college student of a $10,000 cash bond in less than two hours in 1987, and (4) a November, 1987 cocaine transaction "with Silverman underlings [which] involved 93% pure cocaine."

Silverman, 889 F.2d at 1537.

The district court reiterated its findings on Silverman's past relevant drug conduct in the opinion on remand:

This court concluded from the evidence presented at the sentencing hearing and in the presentence investigation report that defendant was a drug dealer of significant proportion, and that his drug distribution activities spanned a period of several months prior to his arrest in February of 1988. These activities included his distribution of the kilogram of cocaine in August of 1987, as well as cocaine distribution activities as early as June of that year which were reported by the government informant. The evidence also indicated that defendant was involved in drug distribution activities at Ohio University in Athens, Ohio during or prior to this period.

Upon further consideration of the sentencing information before the court, this court reaffirms its previous factual determination that the August, 1987 sale of one kilogram of cocaine was a part of the same ongoing course of conduct or common scheme or plan as defendant's drug activities which formed the basis for the February 15, 1988 offense of conviction. Indeed, as this court previously noted, the debt created by the August distribution of cocaine played a role in the events of February 15, 1988.

In addition, the district court concluded after further consideration on remand:

The court concludes that no promises were made to...