United States v. Roman

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

8-15-1997

United States v. Roman

Precedential or Non-Precedential:

Docket 96-1962

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iled August 15, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96-1962 and 96-1963

UNITED STATES OF AMERICA

v.

SAMUEL ROMAN, a.k.a. SAMUEL MERCADO

SAMUEL ROMAN,

Appellant

UNITED STATES OF AMERICA

v.

OSCAR ROMAN, a.k.a. OSCAR MERCADO,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 95-cr-00335-1)

(D.C. Crim. No. 95-cr-00335-2)

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 27, 1997

Before: GREENBERG and MCKEE, Circuit Judges,

GREENAWAY,* District Judge.

(Filed August 15, 1997)

_________________________________________________________________

* The Honorable Joseph A. Greenaway, Jr., United States District Judge

for the District of New Jersey, sitting by designation.

Rocco C. Cipparone, Jr., Esq.

203-205 Black Horse Pike

Haddon Heights, NJ 08035

Attorney for Appellant

Oscar Roman

Jeffrey M. Lindy, Esq.

1760 Market St.

Suite 600

Philadelphia, PA 19103

Attorney for Appellant

Samuel Roman

Michael R. Stiles, Esq.

United States Attorney

Walter S. Batty, Jr., Esq.

Assistant United States Attorney

Chief of Appeals

Kristin R. Hayes, Esq.

Assistant United States Attorney

615 Chestnut St.

Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

In this consolidated appeal, we are asked to review the

sentences of Samuel Roman, who pled guilty to possession

with intent to distribute cocaine base and aiding and

abetting, and Oscar Roman, who pled guilty to possession

with intent to distribute and distribution of cocaine base as

well as carrying a firearm in connection with a drug-

trafficking crime. The district court sentenced both Samuel

and Oscar Roman to 188 months of imprisonment for the

drug related offenses and imposed a consecutive sentence

of five years on Oscar Roman for the firearm offense. Both

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defendants contend that the district court erred by

imposing enhancements for "crack cocaine" and concluding

that the government had not breached their plea

agreements by refusing to file a downward departure

motion. Samuel Roman raises the additional argument that

the district court erred by refusing his request for funds to

retain a psychologist to testify on his behalf at sentencing.

For the reasons that follow, we will affirm.

I.

These prosecutions are based on three separate

incidents. On September 2, 1994, during surveillance of the

4400 block of North 4th Street, Philadelphia police officers

observed Bobby Rodriguez and an unknown purchaser

engage in a drug transaction with Samuel Roman. After the

purchaser paid Rodriguez for the drugs, he handed the

money to Roman. The police stopped Rodriguez and Roman

and seized fifty vials of crack cocaine from Rodriguez and

$494 in cash from Roman.

On November 7, 1994, Philadelphia police officers, again

surveilling the 4400 block of North 4th Street, saw William

Serrano engage in a drug sale. An undercover officer then

approached and purchased two vials of crack from Serrano.

Serrano then handed the money to Oscar Roman, who was

seated in a nearby car. Backup officers arrested Serrano

and Roman. They seized eleven vials of crack from Serrano

and a loaded weapon and $259 in cash from Roman. A

subsequent search of the car disclosed additional "bundles"

containing numerous vials of crack cocaine.

On November 22, 1994, police officers were once again

surveilling the same block of North 4th Street when they

saw Samuel Roman hand a brown paper bag to Oscar

Roman and another individual. Oscar Roman and the other

individual then hid the paper bag in a vacant lot. Samuel

collected money from the two and left. Police apprehended

Samuel in a car shortly thereafter. They found $1,494 on

his person and a bundle of suspected crack cocaine in the

car. The officers searched the vacant lot and found the

brown paper bag that Oscar and the other individual had

hidden. It contained fourteen bundles of crack, and three

more bundles were found nearby.

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Samuel and Oscar Roman both were charged with

possession with intent to distribute crack cocaine (21

U.S.C. § 841 (a)(1)), and Oscar Roman was also charged

with distribution of crack cocaine (21 U.S.C. § 841(a)(1))

and carrying a firearm in connection with a drug-trafficking

crime (18 U.S.C. § 924(c)). Defendants were initially named

in an indictment that specifically charged them with

offenses involving "crack cocaine." However, the government

obtained a superseding indictment that identified the

controlled substance at issue as "cocaine base."

Both defendants pled guilty to all of the offenses in the

superseding indictment pursuant to standard written plea

agreements. In those agreements, each defendant agreed

"to provide truthful, complete, and accurate information,"

"to provide all information concerning his knowledge of, and

participation in, the distribution of cocaine base and any

other crimes about which he has knowledge," and not to

"protect any person or entity through false information or

omission." App. at 19a-20a, 26a-27a. During the change-of-

plea hearings that followed their initial plea of not guilty,

the government clarified their obligations under the plea

agreements by acknowledging that defendants could

provide historical information only, and did not have to

"engage in affirmative investigative techniques." App. at

59a.

A sentencing hearing was held on October 16, 1996. Both

defendants argued that the government had the burden of

proving that the controlled substance involved in this case

was crack cocaine. To meet its burden, the government only

presented the testimony of Officer Wilbert Kane, the officer

assigned to the case. Kane had twelve years of experience

in investigations and prosecutions of persons charged with

crack cocaine distribution and had trained state and

federal narcotics officers. Over defense objections, Kane

testified that the substance seized from defendants was

crack cocaine. His conclusion was based solely upon the

way the substance was packaged. Kane conceded that the

substance seized from the defendants did not contain

sodium bicarbonate, a residue common in crack cocaine.

However, he explained that the head of the police

laboratory had told him that the absence of sodium

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bicarbonate did not mean the substance was not crack

because, if the "cook" was good, sodium bicarbonate would

not be found in the finished crack. App. at 74a.

Kane testified that he had seen crack cocaine cooked and

that he had seen the substance that was seized from the

defendants. For some reason, he was not asked to compare

that crack's appearance with the substance seized from the

defendants. He did, however, testify that the drugs taken

from the defendants was in vials with color caps which is

how crack cocaine is typically packaged for sale in

Philadelphia. He testified that "powder cocaine," in contrast,

is usually packaged in ziplock bags. App. at 75a. Based

solely upon the packaging, Kane concluded that the

substance seized from the defendants was crack. The court

accepted that conclusion and sentenced the defendants

accordingly over defense objections.

Defendants also objected to the government's decision

not to file a downward departure motion. They argued that

this decision breached their plea agreements and that

government investigators were angry because they were

only able to provide "historical" information. The defendants

maintained that they only had historical information and

that their agreements did not require them to provide more.

The government, however, argued that it was the Romans

who breached the agreement by not providing complete

information. In support of its argument, the government

again presented the testimony of Officer Kane who testified

that "the accumulation of intelligence that [the Romans]

would have gathered while in the business far exceeded

what they were willing to tell us in the proffer." App. at 83a.

Kane conceded, however, that the information the Romans

had provided was accurate. The district court concluded

that the government had not breached the plea agreements.

Samuel Roman was sentenced at the bottom of the

applicable guidelines range to 188 months imprisonment.

Oscar Roman was also sentenced to 188 months on the

narcotics offenses as well as to a consecutive sentence of 60

months stemming from his 924(c) conviction. These appeals

followed.

This Court has jurisdiction to review final sentences

pursuant to 18 U.S.C. § 3742(a).

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Discussion

II.

Defendants contend that the district court erred in

finding that the controlled substance involved in their case

was crack cocaine and sentencing them pursuant to the

guideline enhancement for that drug.1 The district court's

determination that the substance seized from defendants

was crack cocaine is a finding of fact that we review for

clear error. See United States v. Johnson, 12 F.3d 760, 765

(8th Cir. 1993). "Factual findings are clearly erroneous if

the findings are unsupported by substantial evidence, lack

adequate evidentiary support in the record, are against the

clear weight of the evidence or where the district court has

misapprehended the weight of the evidence." Davin v.

United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir.

1995)(internal quotations omitted). However, "[t]his court

has plenary review of issues of law raised by the district

court's application of the Sentencing Guidelines." United

States v. James, 78 F.3d 851, 855 (3d Cir.), cert. denied,

117 S. Ct. 128 (1996).

In support of their argument, defendants cite our recent

decision in United States v. James. There, the defendant

was charged with distribution and possession of a

"substance containing a detectable amount of cocaine

base." Id. (emphasis added). He plead guilty to that charge

and stipulated for sentencing purposes that "the relevant

quantity of cocaine base is 57.4 grams." Id. at 856

(emphasis added). At his plea colloquy the court asked

"Now Mr. James, did you, as charged in Count One of the

indictment . . . knowingly, intentionally and unlawfully

distribute in excess of five grams of a mixture and

substance containing a detectable amount of cocaine base?"

Id. (emphasis added). James answered this question

_________________________________________________________________

1. Note D of section 2D1.1 of the Sentencing Guidelines defines "cocaine

base" as "crack." " `Crack' is the street name for a form of cocaine base,

usually prepared by processing cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G.

§ 2D1.1 n.D.

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affirmatively. However, during the plea colloquy, the

government made several casual references to "crack":

The parties agree that the relevant quantity of cocaine

base . . . is 57.4 grams. That's the total net weight of

the crack cocaine that was purchased . . . .

. . . .

Mr. James exchanged a plastic baggy that contained

some suspected crack cocaine. . . . I believe the net

weight was 22.0 grams of cocaine base or crack

cocaine.

Id. (emphasis added). Although we recognized that

"admissions to the court by a defendant during a guilty

plea colloquy can be relied upon by the court at the

sentencing stage," we concluded that these casual

references, without more, did not "amount[ ] to a knowing

and voluntary admission that the cocaine base constituted

crack." Id. The government had the burden of showing by

a "preponderance of the evidence that the substance in

question was actually crack." Id. Because we concluded

that the government had not met that burden, we vacated

James's sentence under the crack cocaine enhancement

and remanded for resentencing.

Here, we conclude that the government did meet its

burden but just barely. The government's only evidence was

the testimony of Officer Kane. Kane is assigned to the task

force of the Philadelphia Drug Enforcement Administration

and admits that he is not a chemist. See app. at 77a. The

district court, nevertheless, permitted him to state his

opinion about the identity of the controlled substance

involved in this case based upon his years of experience as

a police officer. "Courts imposing sentence are free to

consider a wide range of relevant material." United States v.

Deaner, 1 F.3d 192, 198 (3d Cir. 1993)(internal quotations

omitted). Moreover, Rule 704 of the Federal Rules of

Evidence "provides that opinion testimony is not

objectionable because it embraces an ultimate issue to be

decided." United States v. Theodoropoulos, 866 F.2d 587,

591 (3d Cir. 1989)(internal quotations omitted). Thus, it

was not improper for the district court to rely upon Kane's

testimony at sentencing.

7

The substance seized from defendants did not contain

sodium bicarbonate - a common residue in crack cocaine.

See app. at 73a. However, Kane explained that the presence

of that ingredient is not crucial "[I]t depends on the cooker

and how precise he is in his measurements as to whether

there would be sodium bicarbonate left behind after the

crack cocaine cooking process is over." App. at 74a.2

However, no evidence was presented about the expertise of

the person who "cooked" the drugs seized from defendants.3

Kane stressed that the substance seized from defendants

was packaged in "clear plastic vials with color caps" which

is how crack is commonly packaged on the streets of

Philadelphia. App. at 75a. He, therefore, concluded that

this substance was in fact "crack cocaine," see app. at 77a,

and the strength of that conclusion was tested by cross

examination.

Although the identity of the substance defendants

possessed need only be established by a preponderance of

the evidence, "the preponderance standard is not toothless.

It is the district court's duty to ensure that the Government

carries this burden by presenting reliable and specific

evidence." United States v. Lawrence, 47 F.3d 1559, 1566

(11th Cir. 1995). Officer Kane has over twelve years of

experience on the DEA task force, and, in that time, he has

participated in over 1000 cases involving crack cocaine.

Kane has also attended training sessions on cocaine

conducted by the Philadelphia police chemical lab, and

himself instructs other narcotics officers about identifying

crack and prosecuting such cases. See app. at 74a-75a.

Given Kane's experience and expertise, we conclude that

the record adequately supports the district court's finding

that the controlled substance here was crack cocaine.4

_________________________________________________________________

2. See United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir. 1989)(hearsay

admissible at sentencing hearing).

3. It is certainly understandable that the government would not know

who manufactured a given seizure of drugs, and we do not fault the

government for not presenting that evidence. We mention the absence of

such testimony because it reduces (but does not negate) the probative

value of Kane's explanation for the absence of sodium bicarbonate.

4. We take this opportunity to express our concern over the manner in

which the government chose to establish that the substance involved in

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III.

Defendants next contend that the district court erred in

concluding that the government had not breached their

plea agreements. "Whether the government's conduct

violated the terms of the plea agreement is a question of

law" to which this Court gives plenary review. United States

v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994)(internal

quotations omitted); see also United States v. Hernandez,

17 F.3d 78, 80-81 (5th Cir. 1994). As the parties alleging

the breach, defendants "bear[ ] the burden of proving the

underlying facts establishing a breach by a preponderance

of the evidence." Wilder, 15 F.3d at 1295 (internal

quotations omitted). "In determining whether the terms of

the plea agreement have been violated, the court must

_________________________________________________________________

this case was crack. We have previously emphasized the importance of

correctly determining that a substance is crack because of the 100:1

sentencing ratio for cocaine base, as compared to cocaine, under the

Sentencing Guidelines. See James, 78 F.3d at 855. Indeed, the wisdom

and fairness of that ratio, and the social consequences of it, have been

discussed and debated in forums so vast and varied that they need not

be referenced here. The wisdom of the policy is not for us to determine.

However, we would hope that the government would take steps to

provide a quality of proof that is consistent with the seriousness of the

consequences of that distinction.

We have recently stated that an indictment need not identify the

controlled substance at issue as the identity is a factor for sentencing,

and not an element of the offense. See United States v. Lewis, 113 F.3d

487, 490 (3d Cir. 1997). However, where a written plea agreement is

entered questions of notice and proof at sentencing could be greatly

minimized by simply including language in the plea agreement by which

a defendant acknowledges the identity of the drugs involved. Similarly,

problems of proof could be eliminated by a specific inquiry of the

defendant during the Rule 11 colloquy as opposed to only casual

references to "crack" or "cocaine base."

Given our limited standard of review here, we cannot say that the

government's evidence was insufficient to carry its burden. As we noted

above, the government did meet its burden and that ends our inquiry on

that issue. Nevertheless, in view of our recent holding in James, we hope

the proof presented in this case on the crucial issue of whether the

substance was crack cocaine does not reflect a lack of appreciation for

the seriousness of that determination or the consequences that flow from

it.

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determine whether the government's conduct is consistent

with the parties' reasonable understanding of the

agreement." Id. (internal quotations omitted).

In Hernandez, the defendant pled guilty pursuant to a

written agreement in which the government agreed to

"recommend [that Hernandez receive] credit for acceptance

of responsibility and a sentence at the low end of the

guideline range." Id. at 80. The agreement was amended in

court by the Assistant U.S. attorney who stated on the

record "that if Mr. Hernandez should provide substantial

assistance to the Government, either I guess through

truthful information and testimony if necessary, that the

Government may make a motion for downward departure at

sentencing." Id. Following his guilty plea, Hernandez

provided two types of assistance. "First, he gave the

government a hand-drawn map that ostensibly showed

where a stash of cocaine could be found." Id. "Second,

Hernandez provided the government with information

(which the government insists was `stale') concerning drug

dealing and illegally possessed guns in the Corpus Christi

area." Id. The government argued that the assistance was

not substantial and refused to move for a downward

departure at Hernandez's sentencing. He then appealed his

sentence on grounds that the government had breached the

plea agreement. "Considering the type of information that

the government should have expected from a defendant like

Hernandez, who had been incarcerated for over six months,

[the court of appeals] f[ou]nd it difficult to conceive of what

more Hernandez could have provided that would be

substantial . . . ." Id. at 82. It therefore vacated his

sentence and remanded to the district court for a

determination of what the parties intended as "substantial

assistance."

Here, the government concedes that the defendants did

provide truthful and accurate information, but insists that

the information was not "complete" as required under the

plea agreements. Officer Kane testified that "[he] believe[d]

it was truthful, the information they gave us, although I did

not believe it was full or complete." App. at 82a. "Because

both of the defendants had been involved in the drug

business, specifically crack cocaine for numerous years.

10

. . . the accumulation of intelligence that they would have

gathered while in the business far exceeded what they were

willing to tell us in the proffer." App. at 83a. Kane's

suspicions are supported by the defendants' conduct

during the "debriefing" sessions. Defendants demanded that

they be interviewed together, and, during the interview,

"one brother or the other would begin talking about

something and the other brother would tell him, no, . . .

we're not going to tell them about that. Often times they

would laugh at each other." App. at 83a. From this

testimony, the district court properly could conclude that

the each defendant failed to provide "all information

concerning his knowledge of, and participation in the

distribution of cocaine base and other crimes about which

he has knowledge" as was required by the agreement. App.

at 19a, 26a-27a.

We also agree with the district court that the

government's in-court clarification of the terms of the plea

agreements did not in any way alter defendants' obligation

to provide complete information. In open court, the

Assistant U.S. Attorney acknowledged that "it's the

Government's expectation after the proffer that Mr. Roman,

if the information he is able to provide proves truthful and

accurate, that he would receive a downward departure

motion and it would not be a barrier to receiving such a

motion, simply that he could not engage in affirmative

investigative techniques but that he solely may be able to

provide historical information to the Government." App. at

58a-59a. Defendants argue that, if they provided truthful,

accurate, but incomplete historical information, the

government was still obligated to move for a downward

departure. See Appellant Br. at 16. (Appellant Oscar

Roman)("There is no ambiguity in that language . . . Oscar

Roman would receive a downward departure motion if the

information he provided met two criteria -- truthfulness

and accuracy . . . ."). We disagree. Instead, we believe that

the district court correctly interpreted this statement to

mean that "the fact that [the information defendants

provided] was simply historical would not, in and of itself,

prevent it from qualifying as substantial assistance." App.

at 143a. Therefore, we find no error in the district court's

11

determination that the government did not breach the plea

agreement by refusing to file a downward departure motion.

IV.

Samuel Roman alleges error in the district court's denial

of his request for CJA funds to retain a psychiatrist. In

appropriate cases a court can order that such funds be

provided to assist an indigent defendant in preparing for

sentencing.

Counsel for a person who is financially unable to

obtain investigative, expert, or other services necessary

for adequate representation may request them in an ex

parte application. Upon finding, after appropriate

inquiry in an ex parte proceeding, that the services are

necessary and that the person is financially unable to

obtain them, the court . . . shall authorize counsel to

obtain the services.

18 U.S.C. § 3006A(e)(1). However, a court should first

"satisfy itself that a defendant may have a plausible

defense." United States v. Alden, 767 F.2d 314, 318 (7th

Cir. 1984)(emphasis added). "The decision to grant or deny

a motion under section 3006A(e) is one committed to the

discretion of the district court, and a district court's

decision will be disturbed on appeal only if it constitutes an

abuse of discretion." Id. at 319.

Samuel Roman wanted a psychiatrist "to testify at

sentencing in support of his motion for a downward

departure . . . based on mental and emotional conditions

and diminished capacity." Appellant Br. at 12 (Appellant

Samuel Roman). His mental and emotional condition, he

claimed, was "due to, (a) the murder of his father, (b) the

fact that from the age of five years old, he grew up without

a father, and (c) his extensive abuse of drugs and alcohol."

Appellant Br. at 15 (Appellant Samuel Roman).

Under the Guidelines, those factors do not warrant a

downward departure. Section 5H1.4 of the Guidelines

states that "[d]rug or alcohol dependence or abuse is not a

reason for imposing a sentence below the guidelines."

U.S.S.G. § 5H1.4 (emphasis added). Section 5H1.12 states

12

that "[l]ack of guidance as a youth and similar

circumstances indicating a disadvantaged upbringing are not

relevant grounds for imposing a sentence outside the

applicable guideline range." U.S.S.G. § 5H1.12 (emphasis

added). Taken together, these sections demonstrate that the

facts of his case did not warrant a downward departure.

Accordingly, the district court did not abuse its discretion

by denying Samuel Roman funds to retain a psychiatrist to

testify in support of that departure.

He also claims that this denial "deprived him of his rights

under the Due Process and Equal Protection clauses of the

United States Constitution." Appellant Br. at 12 (Appellant

Samuel Roman). For this proposition, he cites Ake v.

Oklahoma, 470 U.S. 68 (1985). In Ake, the Supreme Court

held that, when a capital defendant demonstrates that his

mental condition is a significant factor at his sentencing

phase, he is "entitled to the assistance of a psychiatrist . . .

and [ ] the denial of that assistance deprive[s] him of due

process." Id. at 87. The Court recognized, however, that "[a]

defendant's mental condition is not necessarily at issue in

every criminal proceeding . . . and it is unlikely that

psychiatric assistance . . . would be of probable value in

cases where it is not." Id. at 82. "The variable on which [a

court] must focus is, therefore, the probable value the

assistance of a psychiatrist will have . . . and the risk

attendant on its absence." Id. at 84. Since the psychiatric

testimony that Samuel Roman wanted to present would

have been irrelevant, the court did deprive him of due

process in refusing to authorize funds for a psychiatrist.

V.

For the reasons set forth above, we will affirm defendants'

judgments of sentence entered on October 16, 1996.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

13