US v. Richards

• Decision Date: 08 January 1992
• Docket Number: No. SCr. 90-47.,SCr. 90-47.
• Citation: 784 F. Supp. 1373
• Parties: UNITED STATES of America v. Ainsley RICHARDS.
• Court: U.S. District Court — Northern District of Indiana

784 F. Supp. 1373

UNITED STATES of America v. Ainsley RICHARDS.

No. SCr. 90-47.

United States District Court, N.D. Indiana, South Bend Division.

January 8, 1992.

COPYRIGHT MATERIAL OMITTED

William Grimmer, Asst. U.S. Atty., South Bend, Ind., for U.S.

Noah Lipman, New York City, for Ainsley Richards.

FINDINGS AND CONCLUSIONS PERTINENT TO SENTENCING RANGE

MILLER, District Judge.

Ainsley Richards has pleaded guilty to a charge of conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana. 21 U.S.C. § 846. As part of his plea agreement, the government agreed to dismiss one count of operating a continuing criminal enterprise, 21 U.S.C. § 848, ten counts of possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), one count of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), eleven counts of using a telephone to facilitate the distribution of marijuana, 21 U.S.C. § 843(b), and fifteen counts of causing interstate travel in aid of distribution of controlled substances, 18 U.S.C. § 1952(a)(3). The government also agreed to recommend a sentence at the bottom of the sentencing range.

Mr. Richards faces imprisonment for not less than ten years nor more than life imprisonment, 21 U.S.C. § 841(b)(1)(A)(vii), a fine of as much as $4,000,000.00, 21 U.S.C. § 841(b)(1)(A)(vii), at least five years of supervised release, 21 U.S.C. § 841(b)(1)(A)(vii), and a special assessment of $50.00. 18 U.S.C. § 3013.

Because the conspiracy lasted beyond November 1, 1987, the United States Sentencing Guidelines ("U.S.S.G.") promulgated pursuant to the Sentencing Reform Act of 1984 govern this case. United States v. Morrison, 946 F.2d 484, 492 (7th Cir.1991); United States v. Edwards, 945 F.2d 1387, 1390 (7th Cir.1991) (guidelines applied to conspiracy that began in 1986 and continued through December 1988). A presentence report was prepared, and the parties were afforded the opportunity to object to its recommendations. The government accepted the report, but the defense submitted three substantial objections. First, the presentence report recommended a base offense level of 34 in light of the drug quantities involved; Mr. Richards objects to any offense level above 32. Second, the presentence report recommended an enhancement of two levels due to the possession of firearms; Mr. Richards objects to that enhancement. Finally, the presentence report recommended an enhancement of four levels due to Mr. Richards' role in the offense; Mr. Richards objects to that enhancement.

A day-long evidentiary hearing was conducted on December 19, 1991, and the court heard nearly two hours of argument on these issues on January 3, 1992. The court addresses each objection in turn.

I.

A.

This conspiracy involved the harvesting and distribution of a low-grade marijuana known as "ditchweed", which marijuana salesmen use as "filler" for higher grade marijuana. Ditchweed was harvested in Indiana and Nebraska and transported to Florida and New York for further distribution. Mr. Richards was the New York purchaser.

From the early part of 1986 until May 1988, certain members of the Rector family — Ron, Tim, Doug, and Joe — were dealing ditchweed to buyers in Miami and New York City. In 1986, Doug met a broker (Edgardo Velez) who arranged for the ditchweed to be taken to Mr. Richards in the Bronx. The loads initially went through Florida, but then began to go directly to New York from Ron Rector during the summer of 1986. The government's version of the offense in the presentence report describes one such shipment in the fall of 1986, in which 730 pounds of Nebraska ditchweed was transported by U-Haul to Mr. Richards in New York. After a substantial sum of money was seized from a courier in September 1986, Doug Rector decided to deal directly with Mr. Richards rather than go through others. Ron and Doug Rector then used various drivers, including Rex Froedge, to deliver the ditchweed to Mr. Richards.

Events continued on this course until May 1988, when most of the Rectors were indicted in this court and incarcerated. Ron Rector provided Rex Froedge with Mr. Richards' telephone number to allow the business to continue. In August 1988, another Rector (Mike) escaped from an Indiana prison and joined up with Mr. Froedge. The two of them continued to arrange for ditchweed to be picked and taken to Mr. Richards in New York, until Mike Rector was arrested in December, 1988.

B.

These facts, drawn from the presentence report, were not challenged by the government or the defense. Additional facts were presented through the testimony of the case agent, Trifon K. Magrames, who testified to what others reported to him and to the grand jury. Mr. Richards made strong attacks on the credibility of those others; those attacks are noted below.

Mr. Richards directs a Confrontation Clause argument to all of Special Agent Magrames' testimony. Mr. Richards argues that the Confrontation Clause precludes the use of hearsay evidence such as that presented here, a proposition for which he cites United States v. Fortier, 911 F.2d 100, 102-104 (8th Cir.1990), and United States v. Silverman, 945 F.2d 1337, 1343-1346 (6th Cir.1991), reh'g granted and opinion vacated (Dec. 4, 1991). The court disagrees.

The Seventh Circuit has upheld the use of hearsay — evidence derived from persons who did not testify and were not subject to cross-examination — on several occasions. In many cases, evidence adduced at trial both satisfies the Confrontation Clause and provides the district judge with a factual basis sufficient to make the findings required by the Sentencing Guidelines. See, e.g., United States v. Jones, 950 F.2d 1309 (7th Cir.1991). The court must look elsewhere for the factual basis for its findings when, as here, no trial has been conducted. The Seventh Circuit has held that a sentencing court may consider a case agent's testimony as to what co-conspirators related. United States v. Musa, 946 F.2d 1297, 1306 (7th Cir.1991). Indeed, the sentencing court even may consider the case agent's unsworn statements. United States v. Blythe, 944 F.2d 356, 363 (7th Cir.1991).

The Seventh Circuit has not considered the issue anew since the Sentencing Guidelines' adoption and has not specifically addressed whether the advent of the Guidelines has breathed new life into confrontation rights at sentencing. Under the approach presently in use in Seventh Circuit, the Due Process Clause, rather than the Confrontation Clause, governs the factual basis for sentencing determinations. See United States v. Harris, 558 F.2d 366, 373 (7th Cir.1977); accord, United States v. Kikumura, 918 F.2d 1084, 1102-1104 (3rd Cir.1990). This approach, which has been applied in Guidelines cases, United States v. Jewel, 947 F.2d 224, 237 & n. 21 (7th Cir.1991), is sensible; a defendant who pleads guilty waives his confrontation rights, Fed.R.Crim.P. 32(c)(3), but not his right to due process of law. Thus, under the Seventh Circuit's view, "Hearsay is admissible at sentencing so long as it is reliable and defendant has a reasonable opportunity to rebut the contested hearsay testimony." United States v. Rodriguez-Luna, 937 F.2d 1208, 1212 n. 4 (7th Cir. 1991). The court may not rely on unreliable hearsay information, but the prohibition is found in the Due Process Clause, not the absence of confrontation. United States v. Barnes, 907 F.2d 693, 695 (7th Cir.1990). If informants are unidentified, as in Silverman and Fortier, the hearsay evidence may lack sufficiently reliability to satisfy due process requirements. Here, all sources of information were identified.

The court agrees with Mr. Richards that if the Confrontation Clause applies to sentencing proceedings, his confrontation rights were not satisfied at his sentencing hearing. Special Agent Magrames' testimony was drawn from a variety of informants and sources of information. No firmly established hearsay exception supports admission of the information Special Agent Magrames drew from the informants; accordingly, the Confrontation Clause would require that the declarant be shown to be unavailable and that the information be shown to be reliable. Idaho v. Wright, ___ U.S. ___, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). There was no showing that the declarants were unavailable to testify at the sentencing hearing. With minor exceptions noted below, however, the court finds the information sufficiently reliable to support sentencing decisions. The Due Process Clause requires no more.

Much of the information is corroborated by sworn testimony, either given at trial¹ or before a grand jury.² Much of the information is corroborated by independent police records of confederates' arrests reported by informants.³ Other parts of the information are corroborated by hotel records,⁴ telephone records and Western Union records⁵ indicating confederates' presence at locations reported by informants, placement of an order for marijuana, and payment for deliveries.

II.

Mr. Richards has pleaded guilty to a conspiracy to distribute marijuana. U.S.S.G. § 2D1.4(a) provides that the offense level for conspiracy shall be the same as if the conspiracy's object had been completed. Accordingly, the base offense level must be determined by reference to the drug quantity table set forth in U.S.S.G. § 2D1.1(c). In its version of the offense in the presentence report, the government contended that "approximately 8,500 pounds of documented marijuana was shipped from the early part of 1986 until the conclusion of the conspiracy in this case." This equates to 3,855 kilograms of marijuana, which would invoke application of offense level 34. U.S.S.G. § 2D1.1(c)(5) (3,000-10,000 kilograms). In its sentencing memorandum, the government refined its contention to 7,885 pounds, or 3,584 kilograms, which still would invoke level 34.

Mr. Richards concedes participation in a conspiracy involving at least 1,000 kilograms (2,205 pounds) of...