US v. Lawson, Cause No. SCr. 90-29.
| Decision Date | 29 October 1990 |
| Docket Number | Cause No. SCr. 90-29. |
| Citation | 751 F. Supp. 1350 |
| Parties | UNITED STATES of America v. Harold LAWSON. |
| Court | U.S. District Court — Northern District of Indiana |
William T. Grimmer, Asst. U.S. Atty., South Bend, Ind., for plaintiff.
Paul J. Newman, South Bend, Ind., for defendant.
FINDINGS ON DISPUTED FACTS PERTINENT TO SENTENCING
During trial, Harold Lawson tendered a guilty plea to a charge of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. § 846, in exchange for dismissal of nine substantive counts. The plea was tendered as part of a plea agreement with certain provisions pertinent to sentencing; those provisions are discussed below. The United States Sentencing Guidelines ("U.S. S.G.") govern the case. Argument was held on the parties' objections to the presentence report on October 25, 1990, and the court took the objections under advisement, with sentencing deferred to November 5, 1990.
Harold Lawson organized this conspiracy, which included his brother David, Brian Thompson, Kerry Goodpastor, and at least one source for the marijuana. Mr. Lawson would arrange to obtain marijuana in southern Texas and Brian Thompson would drive the marijuana to northern Indiana for delivery to David Lawson. The charged conspiracy existed from mid-January, 1990 to the end of March, when Thompson got caught in Texas and agreed to cooperate. During the life of this conspiracy, Thompson transported about 202 pounds of marijuana from Texas to Indiana. The base offense level for a conspiracy that involved a quantity of 202 pounds (or 91.63 kilograms) of marijuana is 24. U.S.S.G. § 2D1.1(c)(10); see United States v. Adonis, 891 F.2d 300, 302 (D.C. Cir.1989) ().
U.S.S.G. § 1B1.3(a)(2) provides that in determining the offense level for quantity-based offenses such as this, the court must consider "relevant conduct", or all acts that were part of the same course of conduct or common scheme or plan as the offense of conviction. See United States v. Lued- deke, 908 F.2d 230 (7th Cir.1990). Several other episodes constitute potential "relevant conduct" for purposes of determining Mr. Lawson's offense level.
In February, 1989, David Lawson and Kerry Goodpastor were stopped in Mississippi while delivering 200 pounds of marijuana from Texas to Florida for Harold Lawson; although this conduct occurred about a year before the charged conspiracy, the marijuana came from the same source as did the marijuana involved in the charged conspiracy. The government argues for inclusion of this incident in determining the offense level, and Mr. Lawson has raised no objection. The court concludes that this incident, involving the transportation of the same substance, from the same state, through the same conspirators as in the charged conspiracy, is part of the same course of conduct as the charged conspiracy, and so properly is considered in determining the offense level. See United States v. Woolford, 896 F.2d 99, 103-104 (5th Cir.1990); United States v. Sleet, 893 F.2d 947, 949 (8th Cir.1990).
This additional 200 pounds, or 90.72 kilograms of marijuana, produces an aggregate amount of 182.35 kilograms of marijuana, placing Mr. Lawson, for the moment, at offense level 26. U.S.S.G. § 2D1.1(c)(9).
On February 8, 1988, agents searched Brian Thompson's residence and garage. They found 163 pounds of marijuana in the residence, and another 513 pounds in David Lawson's van in the garage. In this case, the government originally argued, and the probation officer agreed without objection by Mr. Lawson, that the quantity found in the residence constitutes "relevant conduct" by Mr. Lawson. At the sentencing hearing, however, the government abandoned its position in light of its argument with respect to the marijuana found in the van. This 163 pounds, or 73.94 kilograms of marijuana would not affect the offense level.1
The government and defense each contend that the 513 pounds found in David Lawson's van in Thompson's garage cannot be considered as relevant conduct. The probation officer disagreed. Depending on whether the marijuana in the Thompson residence were included, consideration of the additional 513 pounds would produce an aggregate quantity of either 415.05 or 342.11 kilograms of marijuana, in either event elevating Mr. Lawson from offense level 26 to level 28. U.S.S.G. § 2D1.1(c)(8) (400-700 kg).
At the sentencing hearing, the government raised two bases for disregarding the marijuana found in the residence. First, in Thompson's case, the court suppressed the evidence of the search; the court found that Thompson's ex-wife, on whose purported consent the search was based, could not consent to the search of Thompson's home and garage. The record at that suppression hearing (to which Mr. Lawson was not a party) indicated that no other person had access to the home or garage.
In the plea agreement, Mr. Lawson and the government agreed that the marijuana found in the garage could not be considered as relevant conduct. That agreement does not bind the court, United States v. Forbes, 888 F.2d 752 (11th Cir. 1989); U.S.S.G. § 6B1.4(d) (Policy Statement), which must make its own determination. U.S.S.G. § 1B1.3(a)(2) is mandatory and not permissive; if the conduct falls within the guideline's definition, the court must consider it in determining the guideline range.
In Thompson's case, the court suppressed the evidence because the search of Thompson's residence and garage violated Thompson's rights under the Fourth Amendment. The theory by which the search of Thompson's residence and garage, and David Lawson's van, might be said to have violated Harold Lawson's Fourth Amendment rights is not evident from the presentence report or the transcript of Thompson's suppression hearing. See, e.g., California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Carter, 854 F.2d 1102, 1105 (8th Cir.1988); United States v. Kinsey, 843 F.2d 383, 390 (9th Cir), cert. denied 488 U.S. 836, 109 S.Ct. 99, 102 L.Ed.2d 75 (1988); United States v. Hawkins, 788 F.2d 200, 203 (4th Cir.), cert. denied 479 U.S. 850, 107 S.Ct. 176, 93 L.Ed.2d 112 (1986). Just as "the Fourth Amendment protects people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the Fourth Amendment protects people, not pot. That the marijuana was suppressed in the prosecution of one who had a reasonable expectation of privacy in the places searched has no effect on its consideration in determining the offense level of one who had no such reasonable expectation. In David Lawson's related case, the court declined to include the marijuana from the van in determining the offense level, in part because the record indicated that David Lawson had at least a colorable claim of standing to challenge the search. The same cannot be said of Harold Lawson on the basis of the evidence of record.
At the sentencing hearing in this case, however, the government indicated that were a hearing held on the issue in 1990, Thompson would indicate that Mr. Lawson had a key to the padlock on the garage and directed that it be boarded up. Wary of Thompson's inconsistent tales, counsel for government informed the court that he did not believe he could disprove Harold Lawson's standing to challenge the search of the garage.
More fundamentally, counsel for the government informed the court that he could not connect Mr. Lawson to the marijuana by a preponderance of the evidence. Relevant conduct, of course, must be proved by a preponderance of the evidence. United States v. White, 888 F.2d 490, 499 (7th Cir.1989). The government's attorney informed the court that while Thompson would testify that Mr. Lawson once requested a bale of marijuana from the house, that testimony cannot be corroborated. In light of Thompson's credibility problems, even given the lack of basis by which to distinguish the marijuana in the residence from the marijuana in the garage, counsel for the government informed the court, "I can't tie, by a preponderance of the evidence, Harold Lawson to that 513 pounds." It appears from the argument made on objections to the presentence report that while Thompson's testimony would have been an important portion of the government's proof of its case in chief at trial, the government chooses to rely upon Thompson's testimony only to the extent it is corroborated by other evidence. The government's written pretrial proffer made in support of admissibility of coconspirators' statements corroborates this view.
While the government's counsel never expressly said so, and could hardly be expected to so say in light of the possibility of withdrawal of the guilty plea, see United States v. Salva, 902 F.2d 483, 488 (7th Cir.1990), it appears that the government believes that the court would not accept Thompson's veracity except to the extent his testimony is corroborated. The guidelines do not address such a prosecutorial evaluation of credibility. The Commentary to U.S.S.G. § 6B1.4 states that "the parties should fully disclose the actual facts and then explain to the court the reasons why the disposition of the case should differ from that which such facts ordinarily would require under the guidelines", but do not tell us whether a witness's credibility is a "fact".
Prosecutors are expected to make judgments concerning credibility of witnesses and what can be proven. See, e.g., United States Department of Justice March 13, 1989 Plea Policy for Federal Prosecutors ("The basic policy is that charges are not to be bargained away or dropped, unless the prosecutor has a good faith doubt as to the government's ability readily to prove a charge for legal or evidentiary reasons."). At...
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