Petition for Writ of Certiorari — Hill v. United States

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

$1-180

Supreme Court, U.S.

REILLED

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

DAVID HILL,

PETITIONER

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JEFFERY C. DUFFEY

LAW OFFICE OF

SUSAN G. JAMES AND

JEFFERY C. DUFFEY

ATTORNEY FOR PETITIONER

600 S. MCDONOUGH STREET

MONTGOMERY, AL 36104

205/269-3330

JUL 22 1991

| OFFi6E OF THE CLERE

——

—

_— a

7 ~

‘ i]

a Ms

—

' |

y =

p .

——

QUESTION PRESENTED

WHETHER THE COURT'S APPLICATION OF THE

SENTENCING GUIDELINES IN SENTENCING PETITIONER

WAS CONSTITUTIONALLY SOUND?

(A) WHETHER APPLICATION OF THE SENTENCING

GUIDELINES I8 UNCONSTITUTIONAL AS VIOLATIVE OF

~THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT

BECAUSE THEY REQUIRE THE COURT TO MAKE

FINDINGS OF FACT BASED ON NON-CONSTITUTIONAL

STANDARDS.

(B) WHETHER THE SENTENCING GUIDELINES ARE

UNCONSTITUTIONAL AS VIOLATIVE OF THE EX POST

FACTO CLAUSE WHEN APPLIED TO CONSPIRACIES THAT

BEGAN PRIOR TO THE EFFECTIVE DATE OF THE

SENTENCING GUIDELINES AND ENDED AFTER THE

EFFECTIVE DATE OF THE GUIDELINES.

APPLICATION TO THE CASE OF THIS PETITIONER

WERE INCORRECT.

(1) THE COURT ERRED IN PENALIZING PETITIONER

FOR OBSTRUCTION OF JUSTICE DUE TO HIS

PERSISTENT POST-TRIAL PLEA OF NOT GUILTY.

aC a ok :>

plese ae 7 a = aA a) = ri =

/ 7 aaa 7 Be

in - = Ti ‘

— a a = _ he

7 -_ aw

ae : 7 : a 1m = -

a og! 7

aie - arias ‘ore? a oon

Ce = na ha yy

Tin) he i : : ,

=i peak « —— /

at i :

ae or a an a aan Nin ag

an ees Fe at Fl a) _ :

THE PARTIES

The caption in this case contains the

names of all parties to this Petition. David

Norman was jointly tried with Petitioner but

is not a party to this Petition.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ii

THE PARTIES eG I

TABLE OF CONTENTS AND AUTHORITIES iv

OPINIONS AND ORDERS BELOW 1

JURISDICTION 2

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATUTORY PROVISIONS INVOLVED 4

STATEMENT OF THE CASE 4

STATEMENT OF THE FACTS 6

SUMMARY OF THE ARGUMENT 10

ARGUMENT be 11

WHETHER THE COURT'S APPLICATION OF THE

SENTENCING GUIDELINES IN SENTENCING PETITIONER

WAS CONSTITUTIONALLY SOUND?

(A) WHETHER APPLICATION OF THE SENTENCING

GUIDELINES IS UNCONSTITUTIONAL AS VIOLATIVE OF

THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT

BECAUSE THEY REQUIRE THE COURT TO MAKE

FINDINGS OF FACT BASED ON NON-CONSTITUTIONAL

STANDARDS.

}

(B) WHETHER THE SENTENCING GUIDELINES ARE

UNCONSTITUTIONAL AS VIOLATIVE OF THE EX POST

FACTO CLAUSE WHEN APPLIED TO CONSPIRACIES THAT

BEGAN PRIOR TO THE EFFECTIVE DATE OF THE

SENTENCING GUIDELINES AND ENDED AFTER THE

EFFECTIVE DATE OF THE GUIDELINES.

APPLICATION TO THE CASE OF THIS PETITIONER

WERE INCORRECT.

(1) THE COURT ERRED IN PENALIZING PETITIONER

HILL FOR OBSTRUCTION OF JUSTICE DUE TO HIS

PERSISTENT POST-TRIAL PLEA OF NOT GUILTY.

CONCLUSION 29

APPENDIX 31

A. Judgement and Committment Order 3lfor

Petitioner dated June 6, 1989.

B. United States v. David Hill, Case No. -89-

5952, decided April 23, 1991, a non-published

opinion. 42

Cc. ¥.8.8.6., Section 3¢1i.i 68

D. U.S.S.G., Section 6A1.3(c) 70

E. Indictment

CERTIFICATE OF SERVICE 80

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

Article I, Section 9

United States Constitution 3

Fifth Amendment

United States Constitution =, 26, 2334

STATUTES ;

21 U.S.C. 841(a) (1) : 5

U.S.S.G. Section 3C1.1 passim

U.S.S.G. Section 6A1.3(a) oF

CASES

United States v. Acosta-Cazares,

878 F.2a 945 (6th Cir. 1989) 28

United States v. Akitoye,

923 F.2d (1st Cir. 1991) 29

United States v. Allen,

886 F.2d (8th Cir. 1989) r pl

United States v. Avery,

887 F.2d 1088 (6th Cir. 1989) 28

United States v. Boyd,

885 F.2d 246 (5th Cir. 1989) 22

United States v. Burks,

934 F.2d 148 (8th Cir. 1991) iS

United States V. Carroll,

893 F.2d 1506 (6th Cir. 1990)

Caulder v. Bull,

3 Dall. 386, 1 L.Ed. 648 (1798)

United States v. Ehret,

885 F.2d 441, 444 (8th Cir. 1989),

cert. denied, op ;

110 S.Ct. 879,

107 L.Ed.2d 962 (1990)

United States v. Emanuele,

S88-Cr-652 1989 WL 107234

(CHS) (SDNY Sept. 15, 1989)

United States v. Fazio,

914 F.2d 950, (7th Cir. 1990)

United States v. Fiala,

929 F.2d 285 (7th Cir. 1991)

United States v. Franco-Torres,

869 F.2d 797 (5th Cir. 1989)

United States v. Guerra,

888 F.2d 247, 250-51

(2nd Cir. 1989)

United States v. Harrell,

737° F.2d 971, 981

(11th Cir. 1984)

Lindsay v. Washington,

301 U.S. 397, 81 L.Ed. 1182,

57 S.Ct. 797 (1937)

vil

Miller v. Florida,

482 U.S. 423, 96 L.Ed.2d 351,

107 S.Ct. 2446 (1987) 22

United States v. Miller,

910 F.2d 1321 (6th Cir. 1990) a5, 24, #2

Mistretta v. United States,

109 S.Ct. 647,

102 L.Ed.2d 714 (1989) 13, 123

United States v. McDowell,

888 F.2d 285, 290-91

(3rd Cir. 1989) 14

McMillan v. Pennsylvania,

477 U.S. 29, &.Ce. 2611,

191 L.Ed.2d 67 (1986) 19

United States v. Moscony,

927 F.2d 742 (3rd Cir. 1991),

cert. denied, 111 S.Ct. 2812 22

United States v. Murray,

618 F.2d 892, 895 n.3

(2nd Cir. 1980) 18

Newman v. United States,

817 F.2d 635, 637

(10th Cir. 1987) 18

United States v. Orozco-Prada,

732 F.2d 1076, 1084

(2nd Cir. 1984) 18

United Statse v. Sheffer,

896 F.2d 842 (4th Cir. 1990) 22

viii

United States v. Stassi,

544 F.2d 579, 583-84

(2nd Cir. 1976), cert. denied,

430 U.S. 907, 97% S.Ct. 1176,

51 L.Ed.2d 582 (1977)

United States v. Story,

891 F.2d 988 (2nd Cir. 1989)

United States v. Terzado-Madruga,

897 F.2d 1099 (11th Cir. 1990)

United States v. Tharp,

884 F.2d 1112 (8th Cir. 1989)

United States v. Urrego-Linares,

879 F.2d 1234, 1237-38 (4th Gare,

cert. denied, U.S. ?

110 S.Ct. 346,

107 L.Ed.2d 334 (1989)

United States v. Wilson,

906 F.2d 1350 (9th Cir. 1990)

In Re: Winship,

397 U.S. 358, 364,

90 S.Ct. 1068, 1073,

25 L.Ed.2d 368 (1970)

United States v. Wright,

873 F.2d 437, 441

(lst Cir. 1989)

United States v. Ykema,

887 F.2d 697

(6th Cir. 1989)

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

DAVID HILL,

PETITIONER

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS AND ORDERS BELOW

On June 6, 1989, Petitioner was sentenced

by Judge R. Allan Edgar of the United States

District Court for the Eastern District of

Tennessee, pursuant to the Sentencing Reform

act of 1984 (guideline sentencing) to a term

of 188 months confinement. (APPENDIX A).

The opinion of the United States Court of

Appeals for the Sixth Circuit entered on April

23, 1991, affirming the sentencing order of

the District Court is a non-published opinion.

United States v. David Hill, No. 89-5952 (6th

Cir. 1991). (APPENDIX B).

JURISDICTION

The opinion of the United States Court of

Appeals for the Sixth Circuit was issued on

April 23, 1991, and this Petition is filed

within 90 days of said date. This Court's

jurisdiction is invoked pursuant to 28 U.S.C.

Section 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution:

"No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a grand jury, except

in cases arising in the land or

naval forces or in the militia, when

in actual service in time of war or

public danger; nor shall any person

be subject for the same offense to

be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be ae witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law; nor_ shall

private property be taken for public

use, without just compensation."

Article I, Section 9 of the United States

Constitution provides that:

"The migration or importation

of such persons as any of the states

now existing shall think proper to

admit, shall not be prohibited by

the congress prior to the year one

thousand eight hundred and eight,

but a tax or duty may be imposed on

such importation, not exceeding ten

dollars for each person.

The privilege of the writ of

habeas corpus shall not be

suspended, unless when in cases of

rebellion or invasion of the public

safety may require it.

No bill of attainder or ex post

facto law shall be passed.

No capitation, or other direct,

tax shall be laid, unless’ in

proportion to the census or

enumeration herein before directed

to be taken.

No tax or duty shall be laid on

articles exported from any state.

No preference shall be given by

any regulation of commerce or

revenue to the ports of one state

over those of another: nor shall

vessels bound to, or from, one

state, be obliged to enter, clear,

or pay duties in another.

No money shall be drawn from

the treasury, but in consequence of

appropriations made by law; and a

regular statement and account of the

receipts and expenditures of all

public money shall be published from

time to time.

No title of nobility shall be

granted by the United States; and no

person holding any office of profit

or trust under them, shall, without

the consent of the congress, accept

of any present, emolument, office,

or title, of any kind whatever, from

any king, prince, or foreign state."

STATUTORY PROVISIONS INVOLVED

(1) U.8.8.G., Section 3C1.1, which is

set out in full in Appendix "Cc".

(2) U.8.8.G., Section 6A1.3(a), which is

set out in full in Appendix "D".

STATEMENT OF THE CASE

David Hill was indicted by a federal

grand jury in the Eastern District of

Tennessee on November 9, 1989, which charged

him and others in one count with Participating

in an Unlawful Conspiracy to Distribute and to

Possess with Intent to Distribute

Methamphetamine, a Schedule [II Controlled

Substance, in violation of 21 U.S.C. Section

841(a)(1). (R. 1-1).

A jury returned a verdict of guilty

against Petitioner on April 7, 1989.

At a hearing on Petitioner's motion for

release on bond pending appeal on April 11,

1989, Petitioner testified and maintained his

innocence of the charge for which he was

convicted. (TR. 7-14).

Prior to sentencing, Petitioner objected

to numerous’ portions of the report of

presentence investigation prepared by the

probation officer. (R. 207). At the

sentencing hearing, the Court reduced the base

offense level from 34 to 32 based upon a

recalculation of the quantity of

methamphetamine involved. (TR. 8-34). All

other objections to the report of presentence

investigation were overruled. (TR. 8-34).

Petitioner was sentenced on June 6, 1989,

to 188 months confinement pursuant to the

Sentencing Reform Act of 1984. (TR. 8-40).

Petitioner is presently serving his 188-

month, non-parolable sentence at the United

States Penitentiary in Atlanta, Georgia.

STATEMENT OF THE FACTS

The government's evidence showed the

following:

In January, 1987, Frank Santiago

("Santiago"), an unindicted co-conspirator,

began an association with Mark Ruff ("Ruff"),

an indicted co-conspirator, while they were

both in the United States Army. (TR. 4-6,7).

This association resulted in Santiago buying

large quantities of methamphetamine from Ruff.

This methamphetamine was sold by Santiago to

others.

Santiago left the Army in January, 1987,

and moved with his wife, Greta, to Eastman,

Georgia. (TR. 4-9). He continued purchasing

quantities of methamphetamine and

subsequently, he and his wife moved to Athens,

Georgia. (TR. 4-10). He continued obtaining

methamphetamine from Ruff and selling it.

At the time Santiago moved to Athens, Co-

Defendant David Norman was the proprietor of

Last Chance Cycle, a motorcycle shop. After

moving to Athens, Santiago had a motorcycle

accident and went to Last Chance Cycle for

some repair work. (All of the key witnesses

in the trial were Harley-Davidson motorcycle

enthusiasts and all knew Norman because of his

ownership of the motorcycle shop). Santiago

met Norman there. (TR. 4-12).

According to Santiago, Norman asked him

if he was selling methamphetamine, and

Santiago replied, "Yes." (TR. 4-13,14).

During this period of time, one of Santiago's

buyers was his sister-in-law, Greta. Santiago

knew that Greta was re-selling the

methamphetamine she bought from him to Craig

Van Riper.

Santiago testified that Norman called him

and arranged for him to meet Van Riper. (TR.

4-14). (Santiago's wife, Greta, testified

that it was Van Riper and not Norman who

called her husband to arrange the meeting at

their home [TR. 4-56]). Santiago testified

that it was his “understanding" that the

purpose of this meeting was for Van Riper to

purchase methamphetamine from Santiago (TR. 4-

16), and that this meeting took place in

August, 1987. (TR. 4-70). This resulted in

Van Riper purchasing some eight ounces of

methamphetamine from Santiago. (TR. 4-16).

During the course of their association,

Santiago sold approximately 60 pounds of

methamphetamine to Van Riper. (TR. 4-16).

Van Riper testified that he_= sold

methamphetamine to Petitioner beginning in

February, 1988, and continuing through July,

1988. (TR. 4-85). Van Riper stated that he

first sold Petitioner a gram of

methamphetamine. As time passed, Van Riper

stated that Petitioner purchased increasingly

larger amounts of methamphetamine. By July,

1988, Van Riper stated that Petitioner was

regularly purchasing as much as two pounds a

week at a price of $15,500 per pound. (TR. 4-

88).

On July 23, 1988, Van Riper, his wife

Melanie, Ted Fowler, and Debbie Bennett were

arrested in Pigeon Forge, Tennessee, when Van

Riper sold four ounces of methamphetamine to

Ray Loudermilk (who was cooperating with law

enforcement authorities). (TR. 4-88). Van

Riper testified that he and his wife were

released to the custody of Gordon Cagle, a

bondsman, on July 25, 1988. (TR. 4-90). Van

Riper, his wife, Cagle and Cagle's son met

Petitioner in Dawsonville, Georgia, where

Petitioner gave Van Riper $30,000 in cash to

use for bond for him and the other three

arrested with Van Riper. (TR. 4-92).

SUMMARY OF THE ARGUMENT

Petitioner is requesting that certiorari

be granted in the instant case on the basis

that application of the Sentencing Guidelines

in his case is unconstitutional.

Specifically, Petitioner submits that this

results due to the absence | of a

constitutionally acceptable standard of proof

to be used in determining sentencing factors

under the guidelines and, as such, violates

his Fifth Amendment right to due process.

Also, Petitioner submits that his sentence is

violative of the Ex Post Facto Clause of the

United States Constitution due to the

application of the guidelines in the case of

an offense known as a "straddle crime" (a

crime that begins before the effective date of

the guidelines and ends after the effective

date of the guidelines).

Petitioner also submits that the use of

an obstruction of justice enhancement in the

case of a defendant who maintains his or her

innocence by testifying to same in a

proceeding other than the criminal trial is

also violative of his Fifth Amendment right

against self-incrimination.

ARGUMENT

WHETHER THE COURT'S APPLICATION OF THE

SENTENCING GUIDELINES IN SENTENCING PETITIONER

WAS CONSTITUTIONALLY SOUND?

(A) WHETHER APPLICATION OF THE SENTENCING

GUIDELINES I8 UNCONSTITUTIONAL AS VIOLATIVE OF

THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT

BECAUSE THEY REQUIRE THE COURT TO MAKE

FINDINGS OF FACT BASED ON NON-CONSTITUTIONAL

STANDARDS.

The Sentencing Guidelines have placed a

tremendous burden on both the District Courts

in imposing sentences and the Appellate Courts

that hear the voluminous’) appeals. Both

District Courts and Appellate Courts faced

with the mandates of the guidelines are

expending valuable judicial resources as a

result of guideline sentencing. A significant

amount of the time and resources resulting

from guideline sentencing could be avoided if

this Court would review and put to rest some

of the questions yet unresolved.

Specifically, this Court should grant

certiorari in the instant case because it

poses to the Court a number of pivotal,

frequently litigated, guideline issues that

have far reaching constitutional questions,

impacting on countless courts and criminals.

Granting certiorari in this case would resolve

numerous guideline issues left unresolved in

Mistretta v. United States, 109 S.Ct. 647, 102

L.Ed.2d 714 (1989).

Petitioner challenged the

constitutionality of the Sentencing Guidelines

as applied to his case (R. 54) which was

denied by the Court. (R. 56). The Supreme

Court in Mistretta v. United States, supra,

held the Sentencing Guidelines constitutional

when challenged on the basis of a separation

of powers argument. This holding left open

many other constitutional challenges.

The Sentencing Guidelines, however, do

not establish a standard of proof to ensure

that sentencing information is not materially

false. The Guidelines only require that the

information used for sentencing purposes have

sufficient indicia of reliability to support

its probable accuracy. U.S.S.G. Section

6A1.3(a). The other circuits initially

uniformly held that a preponderance of the

evidence standard of review was sufficient to

ensure compliance with due process. See

United States v. McDowell, 888 F.2d 285, 290-

91 (3rd Cir. 1989); United States v. Guerra,

888 F.2d 247, 250-51 (2nd Cir. 1989); United

States v. Ehret, 885 F.2d 441, 444 (8th Cir.

1989), cert. denied, U.8. Soe: fee ee

879, 107 L.Ed.2d 962 (1990); United States v.

Urrego-Linares, 879 F.2d 1234, 1237-38 (4th

Cir.), cert. denied, U.S. , 2a 8.68.

346, 107 L.Ed.2d 334 (1989); United States v.

Wright, 873 F.2d 437, 441 (1st Cir. 1989).

The Sixth Circuit held in this particular

case that a "preponderance of the evidence

finding was sufficient to establish the

quantity of drugs to be used to determine

sentencing guidelines relying on its previous

decision in United States v. Carroll, 893 F.2d

1506 (6th Cir. 1990). However, the Eleventh

Circuit in United States v. Terzado-Madruga,

897 F.2d 1099 (11th Cir. 1990), holding that a

preponderance of the evidence standard

, weeret

satisfied due process in determination of

facts, left open the possibility that a higher

standard of proof might later be warranted as

a matter of policy. Similarly, the Ninth

Circuit in United States v. Wilson, 906 F.2d

1350 (9th Cir. 1990), suggested that although

a preponderance standard satisfies due

process, a more stringent standard might be

appropriate.

The Eighth Circuit, however, confronted

with a trial court's reliance on exaggerated

and fabricated facts and minute evidence

elevated the standard of review to clear and

convincing evidence. United States v. Burks,

934 F.2d 148 (8th Cir. 1991).

In a_very-well reasoned dissenting

opinion in United States v. Miller, 910 F.2d

1321 (6th Cir. 1990), Chief Judge Merritt,

concerned over punishing criminal defendants

without due process of law, held that "If the

government wants to imprison the [defendant]

as a seller of [1,169.5] grams of cocaine, it

must charge, try, and convict him of that

offense and establish its proof beyond a

reasonable doubt, or have him validly waive

his rights and plead guilty to charge. To do

anything less violates due process of law."

The jury's finding of guilty by way of a

general verdict form in no way indicates that

this jury believed Petitioner guilty of

involvement with the 16 pounds of

methamphetamine his sentence was based upon.

The Due Process Clause of the United

States Constitution commands that Congress may

not require that any person be incarcerated

for a fixed period directly attributable to a

specific fact determination unless there is

proof beyond a reasonable doubt. In Re:

Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,

1073, 25 L.Ed.2d 368 (1970).

There is no area of the law where a

higher degree of certainty is required than in

a determination of facts upon which an

individual is to be deprived of personal

liberty. Under the sentencing guidelines,

this sentencing court and others must decide

numerous questions of fact based upon

information which is often by necessity

sparse, biased or otherwise inadequate, and

the absence from the guidelines of a fixed

standard of proof for the factors that affect

the length of sentence, is evidence that the

guidelines are violative of due process.

The only way to know for sure what

quantity of drugs the jury believed Petitioner

should be held accountable for would have been

through the use of special verdict forms.

When the information sought is relevant to the

sentence which may be imposed, use of a

special verdict has been upheld. United

States v. Orozco-Prada, 732 F.2d 1076, i084

(2nd Cir. 1984); United States v. Murray, 618

F.2d 892, 895 n.3 (2nd Cir. 1980); United

States v. Stassi, 544 F.2d 579, 583-84 (2nd

Cir. 1976) cert. denied, 430 U.S. 907, 97

S.Ct. 1176, 51 L.Ed.2d 582 (1977); United

States v. Harrell, 737 F.2d 971, 981 (11th

Cir. 1984); Newman v. United States, 817 F.2d

635, 637 (10th Cir. 1987).

This Court has pointed out in U.S. v.

Powell, 469 U.S. 57 (1984), that inconsistent

jury verdict can be the product of mistake,

compromise or lenity. It appears equally

plausible that a jury could also compromise on

a general guilty verdict. Since there is no

way at this juncture to know the quantity of

drugs the jury believed Petitioner Hill was

involved with, the guilty verdict alone does

not support using 16 pounds of methamphetamine

for punishment purposes.

In the instant case, Petitioner submitted

that the testimony of the informants, which

was used to establish the base offense level,

was inconsistent (TR. 8-11) and that numerous

government witnesses were unreliable, had

motive to lie and exaggerate, and their

testimony was uncorroborated. The judge's

personal findings with regard to the amount of

drugs involved is not persuasive since the

judge was not also the jury. (TR. 8-12).

The absence of a constitutional finding

or standard of review on this issue results in

a violation of the Petitioner's right to Due

Process of law under the Fifth and Fourteenth

Amendments to the United States Constitution.

This Court in McMillan v. Pennsylvania,

477 U.S. 29, 106 S.Ct. 2411, 191 L.Ed.2d 67,68

(1986), stated in the extreme case, when

application of sentencing factors may

overwhelm the sentence that would otherwise be

imposed on the basis of proven elements, the

statute cannot be constitutional. Therefore,

the guidelines as applied to Hill are also

unconstitutional. Furthermore, this Court

needs to establish an articulated standard of

proof for sentencing factors used to deprive

convicted defendants of their liberty.

(B) WHETHER THE SENTENCING GUIDELINES ARE

UNCONSTITUTIONAL AS VIOLATIVE OF THE EX POST

FACTO CLAUSE WHEN APPLIED TO CONSPIRACIES THAT

BEGAN PRIOR TO THE EFFECTIVE DATE OF THE

SENTENCING GUIDELINES AND ENDED AFTER THE

EFFECTIVE DATE OF THE GUIDELINES.

This Court has yet to deal with the Ex

Post Facto argument as relates to the Federal

Sentencing Guidelines. Petitioner submits

that his Petition for Certiorari should be

granted due to the existent conflict between

resolution of streamlining administrative

procedure and conformity of punishment (goals

of the Sentencing Reform Act) and the expense

of the same regarding a criminal defendant's

right against retroactive punishment. The

“

Circuit Courts have unanimously held that

conspiracies beginning before the effective

date of the Sentencing Guidelines and

continuing beyond the effective date of the

Sentencing Guidelines are "straddle crimes"

for purposes of guideline sentencing.

Petitioner submits that an ex post facto

violation resulting from the use of “straddle

crimes" to sentence under the guidelines

because the punishment is both more onerous

and retroactive.

The trial court in Petitioner Hill's case

relied on United States v. Ykema, 887 F.2d 697

(6th Cir. 1989), to reject Petitioner's

argument that the sentence viclated the Ex

Post Facto Clause because the base offense

level was determined in part by activities

committed before November 1, 1987. (See also:

United States v. Allen, 886 F.2d (8th Cir.

1989).

The Sixth Circuit in Ykema, supra, said

that omitting references in the sentencing

information to information that occurred

before the effective date of the guidelines

would cripple the use of the guidelines to

bring conformity to punishment.

Other Circuits have similarly ruled.

(See: United States v. Story, 891 F.2d 988

(2nd Cir. 1989); United States v. Moscony, 927

F.2d 742 (3rd. Cir. 1991) cert. denied, 111

S.Ct. 2812; United States v. Sheffer, 896 F.2d

842 (4th Cir. 1990); United States v. Boyd,

885 F.2d 246 (5th Cir. 1989); United States v.

Fazio, 914 F.2d 950 (7th Cir. 1990); United

States _ v. Tharp, 884 F.2d 1112 (8th Cir.

1989); United States v. Terzado-Madruga, 897

F.2d 1099 (11th Cir. 1990).

This Court in Miller v. Florida, 482 U.S.

423, 96 L.Ed.2d 351, 107 $.Ct. 2446 (1987),

held that for an ex post facto violation to be

iia

implicated, a law must be retroactive and it

must disadvantage the offender affected by the

law.

In the Petitioner's case, there is no

question that application of the Sentencing

Guidelines to the conspiracy is retroactive in

that the conspiracy started before’ the

effective date of the Sentencing Guidelines.

The only real question becomes whether or not

the fact that the conspiracy did not end until

after implementation of the Sentencing

Guidelines nullifies the retroactive question.

There is no question, in the case of

Petitioner Hill, that he is clearly

disadvantaged by the retrospective application

of the Sentencing Guidelines.

Caulder v. Bull, 3 Dall. 386, 1 L.Ed. 648

(1798), was one of the first cases to consider

the scope of ex post facto. This case stated

that the primary intent of the clause was to

restrain state and federal legislators from

enacting arbitrary and vindictive legislation.

In fact, it was done to prevent legislative

abuses.

If the Sentencing Guidelines are applied

to conspiracy cases which began long before

the guidelines became effective, this would be

a condonation of a legislative abuse. The ex

post facto clause should preclude application

of the sentencing guidelines to the total

offense when some of those acts in furtherance

of the conspiracy were committed prior to

implementation of the guidelines and that very

evidence was used to convict the defendant of

the charges.

This Court has clearly set out the

definition of ex post facto. This Court has

only looked at the ex post facto application

to State Sentencing Guidelines. In Miller,

supra, this Court would not accept the fact

that notice that the law might be changed

removes the obligation of the court to apply

the ex post facto law. This Court, however,

has not looked at the application of Federal

Sentencing Guidelines to conspiracy cases.

The Supreme Court, in Lindsay Vv.

Washington, 301 U.S. 397, 81 L.Ed. 1182, 57

S.Ct. 797 (1937), at 401-401, 81 L.Ed. 1182,

57 S.Ct. 797, stated that we need not inquire

28 FS OLE OE ET EI ON IIS PENS EES ME

whether this is technically an increase in the

punishment annexed to the crime because "[iJt

is plainly to the substantial disadvantage of

petitioners to be deprived of all opportunity

i a A LN Ie ee rk ae 8 aA |

to receive a sentence which would give them

freedom from custody and control prior to the

expiration of the 15-year term." In

Washington, supra, as in Hill, the defendant

was sentenced to a mandatory term.

The Court in Miller, supra, also

addressed the fact that sentencing guidelines,

) 25

ital

although they give the appearance of being

procedural in form, fall under the ex post

facto prohibitions because they alter a

substantial right.

The trial court's application of the

Sentencing Guidelines in this’ case is

violative of the Ex Post Facto Clause of the

United States Constitution. The impact,

however, if far greater than just this case.

Countless defendants are being’ punished

excessively for crimes that began prior to the

effective date of the Sentencing Guidelines.

APPLICATION TO THE CASE OF THIS PETITIONER

WERE INCORRECT.

(1) THE COURT ERRED IN PENALIZING PETITIONER

HILL FOR OBSTRUCTION OF JUSTICE DUE TO HIS

PERSISTENT POST-TRIAL PLEA OF NOT GUILTY.

Application of a i oe U.8.8.G.,

enhancement in this case of a defendant who

testifies after being found guilty maintaining

his or her innocence in a judicial proceeding

other than the trial, or, in this case, of a

co-defendant who testifies on behalf of

another defendant who is later found guilty,

is chilling. This Court must decide whether

or not such a procedure is constitutional.

The obstruction of justice enhancement

under the facts of Petitioner's case was

Clearly erroneously. Petitioner Hill objected

to a two-level enhancement for obstruction of

justice under Section 3Cl.1 of the Sentencing

Guidelines Manual. (TR. 8-13).

The basis for the enhancement, which was

cited by the government, was that Petitioner

provided false testimony at a detention

hearing on April 11, 1989 (subsequent to his

trial where he did not testify).

Specifically, the prosecutor charged that

Petitioner maintained his innocence of the

charges against hin. Petitioner's position

was that his testimony was not false and that

his denial of guilt on the charges was merely

an extension of his plea of not guilty.

The Sixth Circuit upheld the two-level

obstruction of justice enhancement relying on

its previous holding in d Vv.

Acosta Cazares, 878 F.2d 945 (6th Cir. 1989).

Petitioner Hill submits that the fact

that he was convicted at trial does not mean

that all of his testimony was_ untrue.

"Suspect testimony and statements should be

evaluated in a light most favorable to the

defendant." United States v. Fiala, 929 F.2d

285 (7th Cir. 1991); United States v. Avery,

887 F.2d 1088 (6th Cir. 1989); United States

v. Franco-Torres, 869 F.2d 797 (5th Cir.

1989). Petitioner conceded that he denied

guilt at the detention hearing. This was a

further extension of his not guilty plea.

"When all is said and done, an_ upward

adjustment for obstruction of justice under

U.S.S.G. Section 3Cl.1 requires more than a

mere conflict in the trial testimony or a

jury's rejection of a defendant's alibi or

denial of guilt." United States v. Akitoye,

923 F.2d (1st Cir. 1991); United States v.

Emanuele, S88-Cr-652, 1989 WL 107234. The

Circuit Court holding in the instant case is

contrary to the law of other circuits.

Further condonation of the

unconstitutional and chilling application of

this sentencing enhancement under the facts is

wrong.

CONCLUSION

Petitioner submits that the issues raised

in his Petition for Certiorari are of such

great import that resolution by this Court

will enhance judicial economy, create

uniformity in sentencing, and provide

certainty in punishment for those

contemplating crimes and those convicted of

federal offenses.

Petitioner prays that this Court will

issue a Writ of Certiorari, review the matters

complained of, and reverse the decision and

opinions of the District Court and the Sixth

Circuit Court of Appeals.

;

“—

APPENDIX

UNITED STATES DISTRICT COURT

EASTERN _ District of TENNESSEE

UNITED STATES OF AMERICA JUDGMENT

INCLUDING

Vv. SENTENCE UNDER

THE SENTENCING

REFORM ACT

DAVID HILL

Case Number CR-

1-88-00096-05

(Name of Defendant)

Timothy A.

Deere, Appointed

Counsel

1106 James

Building

Chattanooga tTN

37402

Defendant's

Attorney

THE DEFENDANT ATTEST:

A true copy:

Certified this

JUN 9 1989

R. MURRY HAWKINS

pleaded guilty to count(s)

_X was found guilty on count(s) 1

after a plea of not guilty.

By [S/ Cyndee Holder

Accordingly, the defendant is adjudged

guilty of such count(s), which involve the

following offenses:

Title & Section

21: 846

Nature of Offense

On or about January 20, 1987 and continuing

until on or about November 9, 1988: With

others, known and unknown, willfully,

knowingly, intentionally, and without

authority, combining, conspiring,

confederating, and agreeing with each other

and with diverse other persons to distribute

and possess with intent to distribute

methamphetamine, a Schedule II _ controlled

substance.

Count Number(s)

The defendant is sentenced as provided in

pages 2 through 6 of this Judgment. The

sentence is imposed pursuant to the Sentencing

Reform act of 1984.

The defendant has been found not guilty

on count (s) , and is

discharged as to such count(s).

Count (s) (is) (are)

dismissed on the motion of the United

States.

The mandatory special assessment is

included in the portion of this Judgment

that imposes a fine.

X It is ordered that the defendant shall

pay to the United States a especial

assessment of $50.00 _, which shall be

due immediately.

It is further ordered that the defendant

shall notify the United States Attorney for

this district within 30 days of any change of

residence or mailing address until all fines,

restitution, costs, and special assessments

imposed by this Judgment are fully paid.

Defendant's Soc. Sec. Number:

9-74-528

Defendant's mailing address:

_Route 1, Box 1335

Dawsonville GA 30534

Defendant's residence address:

Route 1, Box 1335

Dawsonville GA 30534

June 6, 1989

Date of Imposition of Sentence

{S/_ R. Allan Edgar

Signature of Judicial Officer

R. Allan Edgar, United States District Judge

Name & Title of Judicial Officer

June 6, 1989

Date

Judgment-—Page 2 of _6

Defendant: DAVID HILL

Case Number: CR-1-88-00096-05

IMPRISONMENT

The defendant is hereby committed to the

custody of the United States Bureau of Prisons

to be imprisoned for a term of ONE HUNDRED

EIGHTY-EIGH ie) upon Cou :

The Court makes the following

recommendations to the Bureau of Prisons:

Commitment to an institution with a drug-

treatment program, and that defendant

participate in the drug-treatment

program.

The defendant is remanded to the custody

of the United States Marshal.

The defendant shall surrender to the

United States Marshal for this district,

a.m.

at p-m. on °

as notified by the Marshal.

The defendant shall surrender for service

of sentence at the institution designated

by the Bureau of Prisons

before 2 p.m. on °

as notified by the United States

Marshal.

as notified by the Probation Office.

RETURN

I have executed this Judgment as follows:

Defendant delivered on to

at ’

with a certified copy of this Judgment.

United States Marshal

Deputy Marshal

Judgment-Page_3 cf_6

Defendant: DAVID HILL

Case Number: CR-1-88-00096-05

SUPERVISED RELEASE

Upon release from imprisonment, the

defendant shall be on supervised release for a

term of FIVE (5) YEARS upon Count 1

While on supervised release, the

defendant shall not commit another Federal,

state, or local crime and shall comply with

the standard conditions that have been adopted

by this court (set forth on the following

page). If this judgment imposes a restitution

obligation, it shall be a_ condition of

supervised release that the defendant pay any

such restitution that remains unpaid at the

commencement of the term of supervised

release. The defendant shall comply with the

following additional conditions:

The defendant shall pay any fines that

remain unpaid at the commencement of the

term of supervised release.

The defendant shall participate in a program

of treatment and testing for drug and alcohol

abuse, as directed by the Probation Office,

until such time as the defendant is released

form the program Ey the Probation Office.

The defendant shall not own or possess a

firearm or other dangerous weapon.

Judgment-Page_4 of _ 6

Defendant: DAVID HILL

Case Number: CR-1-88-00096-05

FINE WITH SPECIAL ASSESSMENT

The defendant shall pay to the United

States the sum of $_10,050.00 , consisting

of a fine of $_10,000.00 and a special

assessment of $_ 50.00

These amounts are the totals of the fines

and assessments imposed on individual counts,

as foliows:

This sum shall be paid immediately.

_X as follows:

To be paid in a timely manner, which may

include payment on an installment plan, as

approved by the United States Probation

Office.

The Court has determined that’ the

defendant does not have the ability to

pay interest. It is ordered that:

The interest requirement is waived.

The interest requirement is modified

as follows:

- Judgment-Page_5 of 6

Defendant: DAVID HILL

Case Number: CR-1-88-00096-05

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on probation or

supervised release pursuant to this Judgment:

The defendant shall not commit another

Federal, state or local crime;

the defendant shall not leave’ the

judicial district without the permission

of the court or probation officer;

the defendant shall report to the

probation officer as directed by the

court. or probation. officer and shall

submit a truthful and complete written

report within the first five days of each

month;

the defendant shall answer truthfully all

inquiries by the probation officer and

follow the instructions of the probation

officer;

the defendant shall support his or her

dependents and meet other family

responsibilities;

the defendant shall work regularly at a

lawful occupation unless excused by the

probation officer for schooling,

training, or other acceptable reasons;

the defendant shall notify the probation

officer within seventy-two hours of any

change in residence or employment;

the defendant shall refrain from

excessive use of alcohol and shall not

purchase, possess, use, distribute or

administer any narcotic or other

controlled substance, or any

10)

11)

12)

13)

14)

paraphernalia related to such substances

except as prescribed by a physician;

the defendant shall not frequent places

where controlled substances are illegally

sold, used, distributed or administered;

the defendant shall not associate with

any persons engaged in criminal activity,

and shall not associate with any person

convicted of a felony unless’ granted

permission to do so by the probation

officer;

the defendant shall permit a probation

officer to visit him or her at any time

at home or elsewhere and shall permit

confiscation of any contraband observed

in plain view by the probation officer;

the defendant shall notify the probation

officer within seventy-two hours of being

arrested or questioned by a _ law

enforcement officer;

the defendant shall not enter into any

agreement to act as an informer or a

special agent or a law enforcement agency

without the permission of the court;

as directed by the probation officer, the

defendant shall notify third parties of

risks that may be occasioned by the

defendant's criminal record or personal

history or characteristics, and shall

permit the probation officer to make such

notifications and to confirm the

defendant's compliance with such

notification requirement.

These conditions are in addition to any

other conditions imposed by this

Judgment.

Judgment-Page_6 of _ 6

Defendant: DAVID HILL

Case Number: CR-1-88-00096-05

RESTITUTION, FORFEITURE, OR

OTHER PROVISIONS OF THE JUDGMENT

The defendant shall participate in a program

of treatment and testing for drug and alcohol

abuse, as directed by the Probation Office,

until such time as the defendant is released

from the program by the Probation Office.

The defendant shall not own or possess a

firearm or other dangerous weapon.

IT IS FURTHER ORDERED that the defendant shall

pay the United States a special assessment fee

of $50.00 on Count 1 of the indictment, which

shall be due immediately, and that he shall

pay a fine of $10,000.00 to the United States,

to be paid in a timely manner, which may

include payment on an installment plan, as

approved by the United States Probation

Office.

APPENDIX B

NOT RECOMMENDED FOR PUBLICATION

Nos. 89-5952/5953/5954/5957

FILED

APR 23 1991

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT -

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

DAVID HILL (89-5952);

DAVID W. NORMAN

(89-5953) ;

MARK H. RUFF

(89-5954) ;

FERRELL D. CLEMENTS

(89-5957),

Defendants~-Appellants.

)

ON APPEAL FROM THE

UNITED STATES

DISTRICT COURT FOR

THE EASTERN

DISTRICT OF

TENNESSEE.

NOT RECOMMENDED FOR

FULL-TEXT

PUBLICATION

Sixth Circuit Rule

24 limits citation

to specific

Situations. Please

see Rule 24 before

citing in a

proceeding in a

court in the Sixth

Circuit. If cited,

a copy must_ be

served on other

parties and the

Court.

This notice is to

be prominently

displayed if this

decision is

reproduced.

Decided and Filed

BEFORE: NELSON and NORRIS, Circuit Judges;

EDWARDS, Senior Circuit Judge.

ALAN E. NORRIS, Circuit Judge. Ferrell

D. Clements, Mark H. Ruff, David Hill, and

David W. Norman, appeal their convictions and

sentences for conspiracy to distribute and

possess with intent to distribute

methamphetamine in violation of 21 U.S.C.

Section 841.

Clements argues that the district court

erred (1) in failing to properly advise him in

accordance with Fed.R.Evid. 11 of the maximum

sentence he could receive; (2) in considering

conduct that he claims was not relevant

pursuant to U.S.S.G. Section 1Bl1.3; (3) in

Nos. 89-5952/5953/5954/5957

applying the Sentencing Guidelines where his

participation in the conspiracy straddles the

effective date of the guidelines, in violation

of the Ex Post Facto Clause of the

Constitution; and (4) in relying upon the

presentence report to determine the amount of

drugs to be attributed to his participation in

the conspiracy.

Ruff claims that the district court erred

(1) in departing upward and declining to

depart downward from the Sentencing Guidelines

pursuant to U.S.S.G. Sections 3B1.1 and 5K2,

respectively, and (2) in using a preponderance

of evidence standard, in making factual

determinations at sentencing, in violation of

the Due Process Clause of the Constitution.

Hill argues that (1) the district court

abused its discretion in admitting a

photograph which prejudiced his cause; (2) the

isan nnniniiieeieeill

Nos. 89-5952/5953/5954/5957

United States magistrate exceeded his

authority in accepting the jury verdict; and

(3) the district court improperly applied the

guidelines to his case because (a) a

preponderance of the evidence standard was

employed in assessing facts included in the

presentence report, (b) his sentence was not

comparable to others similarly situated, and

been adjusted upward for obstruction of

justice and should have been adjusted downward

for minor participation.

Finally, Norman contends (1) that there

was insufficient evidence to convict him; (2)

that the court improperly allowed opinion

testimony regarding the purpose of a meeting;

(3) that testimony was erroneously admitted

concerning other crimes or acts; (4) that his

base offense level was incorrectly determined;

Nos. 89-5952/5953/5954/5957

and (5) that the district court should have

departed downward for his minor participation.

BACKGROUND

In 1986, defendant Clements and Ruff

began supplying Frank Santiago? with

methamphetamine for distribution. Santiago

eventually stored the substance at his

residence pursuant to Ruff's request. Ruff

had mentioned to Santiago that his father-in-

law, Clements, supplied the drug to Ruff and

that he had seen his father~-in-law's drug lab.

From January 1987 until the summer of 1987,

Santiago obtained methamphetamine, in one-

ounce quantities, from Ruff. In the summer of

1987, Santiago met David Wayne Norman who

became crucial to setting up ties for drug

distributions. Norman received $50 for each

Isantiago was not indicted in tnis case because he had

previously been convicted for his participation :n the conspiracy.

Nos. 89-5952/5953/5954/5957

ounce distributed through people he introduced

to his coconspirators. Hence, a drug

distribution network evolved in which Ruff's

father-in-law, Clements, manufactured the

drug. Ruff, in turn, distributed it to

Santiago, who sold the drug to Craig Van Riper

2 who in turn, with Norman's assistance, sold

it to small distributors. During an eleven-

month period, this network distributed about

sixty pounds of methamphetamine.

In February 1988, defendant Hill met

Craig Van Riper. Van Riper began distributing

the drugs to Hill who received approximately

seventeen pounds of methamphetamine throughout

the course of the conspiracy. As Van Riper,

Hill and Norman developed the distribution

network in Georgia, Clements moved his

2craig Van Riper was also indicted in a prior case.

Therefore, he was not a named defendant in this case.

Nos. 89-5952/5953/5954/5957

laboratory from California to Arkansas. In

November, 1988, Arkansas state police seized

lab equipment and chemicals.

ANALYSIS

Counsel for Clements says in his brief

that "it appears" that his client was unaware

of the maximum sentence he could receive.

Because the record reveals that the district

court advised Clements that the maximum

penalty he faced was twenty years'

imprisonment, a $1,000,000 fine, and at least

three years of supervised release, that

concern is not well-founded.

Clements next contends that the district

court improperly relied upon the presentence

report to determine the amount of drugs

attributable to him. However, because

Clements did not specifically object to the

quantity of drugs mentioned in the presentence

Nos. 89-5952/5953/5954/5957

report -- even after the district judge asked

whether he quarreled with that calculation --

the court was entitled to rely upon the

presentence report at the time of sentencing.

United States v. Fry, 831 F.2d 664, 668 (6th

Cir. 1987). Moreover, Clements does not point

out on appeal how the calculation of the

amount was inaccurate.

Clements also complains that the

chemicals retrieved from the lab in Arkansas

are not relevant to his case. Section 1B1.3

of the Sentencing Guidelines states:

Section 1B1.3 Relevant Conduct

(Factors that Determine the

Guideline Range

(a) Chapters Two (Offense

Conduct) and Three

(Adjustments)....

(1) all acts and omissions

committed or aided and abetted

by the defendant, or for which

the defendant would be

otherwise accountable, that

occurred during the commission

Nos. 89-5952/5953/5954/5957

of the offense of conviction,

in preparation for that

offense, or in the course of

attempting to avoid detection

Or responsibility for that

offense, or that otherwise were

in furtherance of that

offense....

The commentary further explains:

In the case of criminal activity

undertaken in concert with others,

whether or not charged as a

conspiracy, the conduct for which

the defendant "would be otherwise

accountable" also includes conduct

of others in furtherance of the

execution of the jointly-undertaken

criminal activity that was

reasonably foreseeable by the

defendant....

U.S.S.G. Section 1B1.3, comment. (n.1).

Therefore, the court was entitled to rely

on that evidence, since the lab was moved

during the time frame of the conspiracy and

Since "all such acts and omissions that were

part of the same course of conduct or common

scheme or plan as the offense of conviction"

Nos. 89-5952/5953/5954/5957

are to be considered by the court. U.&.S.G.

Section 1Bl1.3(a)(2).

Finally, Clements argues that the Ex Post

Facto Clause of the Constitution is violated

when the guidelines are applied to

conspiracies that began prior to the effective

date of the guidelines and ended after that

date. This issue has been resolved by _the

opinion of this court in United States v.

YKkema, 887 F.2d 697, 700 (6th Cir. 1989),

cert. denied, 110 S.Ct. 878 (1990), which held

that application of the guidelines to straddle

crimes does not violate the Constitution.

Defendant Ruff first maintains that the

district court erroneously found that he was

an organizer and, accordingly, enhanced his

sentence pursuant to section 3B1.1.7 He also

3Secticn 3Bl.1 provides:

Aggravating Role.

Nos. 8°-5952/5953/5954/5957

argues that he and Santiago carried out the

same task, but he improperly received an

upward departure while Santiago did not.

Whether a defendant is "'an organizer, leader,

manager, or supervisor' is a question of fact

reviewable ‘under the clearly erroneous

standard, giving due regard to the trial

court's assessment of the credibility of the

Based on the defendant's role in the offense, increase

the offense level as follows:

(a) If the defendant was an organizer or leader of

a criminal activity that involved five or more

participants or was otherwise extensive,

increase by 4 levels.

(b) If the defendant was a manager or supervisor

(but not an organizer or leader) and the

criminal activity involved five or more

participants or was otherwise extensive,

increase by 3 levels.

manager, or supervisor in any criminal

activity other than described in (a) or (b),

increase by 2 levels.

Nos. 89-5952/5953/5954/5957

witnesses.'" United States v. Barrett, 890

F.2d 855, 867 (6th Cir. 1989) (quoting United

States v. Barreto, 871 F.2d 511, 512) (5th

Cir. 1989)). Contrary to Ruff's contention,

questions of fact upon which a court should

rely in determining sentence may be resolved

by a preponderance of the evidence. United

States _v. Carrol, 893 F.2d 1502, 1506 (6th

Cir. 1990).

Because the facts reveal that Santiago,

unlike Ruff, cooperated with the government

and the two played different rolls in the

offense, Ruff's attempted comparison of

himself with Santiago is unjustified. More

importantly, the record supports the court's

finding with respect to Ruff's supervisory

role.

Ruff's next assignment of error is that

the court erroneously refused to depart

Nos. 89-5952/5953/5954/5957

downward pursuant to section 5K.2.0% of the

guidelines because of alleged psychological

coercion by his father-in-law. That issue has

been resolved in this circuit by United States

v. Draper, 838 F.2d 1100, 1105 (6th Cir.

1989), where we stated:

A sentence which is within the

Guidelines, and otherwise valid, as

is the case here, is not appealable

on the grounds that the sentencing

judge failed to depart from the

Guidelines on account of certain

factors which the defendant feels

were not considered by the

Guidelines and should reduce his

sentence....

The Fourth Circuit in United States v.

Bayerle, 898 F.2d 28 (4th.), cert. denied, 111

S.Ct. 65 (1990), held that an exception exists

where the judge erroneously believed he did

‘under section 5K.2.0, the court may depart if it finds “that

there exists an aggravating or mitigating circumstance of a kind,

or to a degree not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines," the court may

impose an alternate sentence.

Nos. 89-5952/5953/5954/5957

not have the authority to depart downward.

Bayerle, 898 F.2d at 31. That is not

precisely what happened here. The district

judge, in declining the downward departure

observed that: "No, I don't think this is a

case, that's what I am saying. I don't think,

even if it were authorized, the Court doesn't

think, based upon the extensive amount of

drugs and the length of time that this, that

this occurred, that departure is warranted on

that basis."

Defendant Hill complains that the trial

court erred in admitting a photograph showing

him with long hair and a beard when there was

no identification issue and the only intended

purpose was to prejudice the jury. The proper

Standard of review of this evidentiary issue

is an abuse of discretion. United States v.

Phillips, 888 F.2d 38, 40 (6th Cir. 1989).

Nos. 89-5952/5953/5954/5957

The photograph was relevant to supporting

the description of Hill as described by

certain witnesses, since defendant appeared in

the courtroom with short hair and no beard.

It is difficult to comprehend how Hill's prior

appearance may have prejudiced his cause,

however, if there was any prejudice, it cannot

be said to have substantially outweighed the

relevance of the evidence.

Hill's next argument, that it was error

for a magistrate to receive the jury verdict,

has been resolved against him by this court's

opinion in United States v. Sawyers, 902 F.2d

1217, 1220 (6th Cir. 1990). He further

complains that the district court made three

errors in its application of the Sentencing

Guidelines to his case. The first of these

involves the quantity of drugs attributed to

him. That argument is not well-taken in view

Nos. 89-5952/5953/5954/5957

of the fact that the trial judge resolved

facts against him, by using a preponderance of

the evidence standard, in conformity with

Carroll, 893 F.2d at 1506.

He also suggests that application of the

guidelines, in his case, violates the Eight

Amendment to the Constitution because his

sentence did not parallel those meted out to

others involved in the case. Those defendant

received a downward departure for cooperating

with the governnent pursuant to U.S.S.G.

Section 5K1.1,5 while Hill did not cooperate.

Hill's next assignment of error is that

his base level inne not have been adjusted

upward for obstruction of justice pursuant to

5U.S.S.G. Section 5K1.1 provides that "[{u]pon motion of the

government stating that the defendant has provided substantial

assistance in the investigation or prosecution of another person

who has committed an offense, the court may depart from the

guidelines. (a) The appropriate reduction shall be determined by

the court...."

Nos. 89-5952/5953/5954/5957

U.S.S.G. Section 3¢1.1.° Hill committed

perjury when he testified during a detention

hearing that he had never dealt drugs and that

he had only been arrested for a traffic

violation. Under these circumstances, the

departure was warranted. United States v.

Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.),

cert. denied, 110 S.Ct. 255 (1989).

Finally, Hill argues that the court erred

in not departing downward as the result of his

"minor participation" in the crime, pursuant

to section 3Bl.2 of the guidelines. The

commentary to that section explains that

section 3B1.2 "provides a range of adjustments

for a defendant who plays a part in committing

the offense that makes him substantially less

®U.S.S.G. Section 3Cl.1 states that "(1ij)f the defendant

willfully impeded or obstructed, or attempted to impede or obstruct

the administration of justice during the investigation or

prosecution of instant offense, increase the offense level by 2

levels."

Nos. 89-5952/5953/5954/5957

culpable than the average participant."

U.S.S.G. Section 3B1.2, comment. (backg'd).

In the present case, defendant actively

distributed over sixteen pounds of

methamphetamine. The court found "that as a

retailer, if you will, [defendant] was more

caught up in the Van Riper network and was not

by any means anything but a major player."

The district court's evaluation is consisteiit

with the Fifth Circuit's analysis in United

States v. Buenrostro, 868 F.2d 135, 138 (5th

Cir. 1989) cert. denied, 110 S.Ct. 1957

(1890), where the court determined that

couriers are an indispensable part of drug

distribution networks. The district court's

factual findings regarding Hill's sentence are

not clearly erroneous.

Although defendant Norman complains that

there was insufficient evidence to convict

eT a hi ik linc dal ly

Nos. 89-5952/5953/5954/5957

him, he failed to renew his motion for

acquittal at the close of all the proof.

Therefore, he waived any objection to the

denial of his earlier motion for acquittal

made at the close of the government's case-in-

chief. United States v. Faymore, 736 F.2d

328, 334 (6th Cir.), cert. denied, 469 U.S.

868 (1984).

Norman also argues that the trial court

committed reversible error when it permitted

witnesses to testify concerning their

understanding of the purpose of meetings set

up by Norman, as the witnesses were giving

their opinions of his state of mind. However,

this is not a case, as defendant suggests,

that involves testimony as to the defendant's

state of mind by others. See DeLoach v.

United States, 307 F.2d 653, 655 (D.C. Cir.

1962). (The court held that "conclusions or

Nos. 89-5952/5953/5954/5957

interpretations of a witness as to the meaning

of what someone said is not admissible.") In

this case, each witness testified as to his

own state of mind. Furthermore, lay opinion

testimony concerning a defendant's state of

mind is admissible under some circumstances.

See Fed.R.Evid. 701; United States v. Graham,

S56. F.2G 756, 759 {6th Circ. i968), eoart.

denied, 489 U.S. 1022 (1989) (holding that a

witness can testify, in the form of an

opinion, as to his understanding of what a

defendant intended when he made _ certain

statements).

Defendant Norman next complains that the

judge abused his discretion by admitting the

testimony of Debbie Bennett. Bennett

testified that, during the course of the

conspiracy, she visited Norman at his

motorcycle shop to borrow a type of drug scale

Nos. 89-5952/5953/5954/5957

frequently used to weigh quantities of drugs

for repackaging. While there, she observed

Norman using the scales to weigh cocaine.

Since the present case does not deal with the

distribution of cocaine, Norman argues that

the testimony was irrelevant and highly

prejudicial. The district court found that

the evidence was

probative of motive and opportunity

and intent and the other matters

which are listed under Rule 404(b).

It's true that it is a different

drug, but it's the same kind of

activity which he's accused of here,

and it shows that he had certainly

the opportunity to, if he had the

opportunity to repackage and

distribute cocaine, then he had the

opportunity to repackage and

distribute methamphetamine.

According to an earlier opinion of this court:

If evidence falls within one of the

exceptions of 404(b), a district

court may admit the evidence if the

evidence's probative value outweighs

its prejudicial impact. This Court

reviews a district judge's balancing

Nos. 89-5952/5953/5954/5957

of prejudicial impact and probative

value under Fed.R. Evid. 403 in a

Fed.R.Evid. 404(b) context under an

abuse of discretion standard. In

reviewing a district court's ruling

on a Fed.R.Evid. 403 objection, this

Court "look[{s]) at the evidence in a

light most favorable to its

proponent, maximizing its probative

value and minimizing its prejudicial

effect." Furthermore, a district

court should exclude eviclence under

Fed.R.Evid. 403 "only where the

probative value of the relevant

evidence is substantially outweighed

by the danger of unfair prejudice."

United States v. Pollard, 778 F.2d 1177, 1179

(6th Cir. 1985) (emphasis in original)

(citations omitted). See also United States

v. Robison, 904 F.2d 365, 368 (6th Cir.),

cert. denied, 111 S.Ct. 360 (1990) (where this

court affirmed the district court's decision

to admit evidence of prior drug dealing to

show defendant's intent to distribute rather

than merely use). In the present case, the

evidence was probative of opportunity, intent

and knowledge. Defendant has not demonstrated

Nos. 89-5952/5953/5954/5957

that the danger of unfair prejudice

substantially outweighed the probative value

of the evidence.

Norman also complains that the district

court erred in assessing the quantity of drugs

attributable to him during sentencing. The

court based defendant's initial offense level

on the amount of drugs sold by dealers he

brought into the organization and for which he

received a commission. Defendant argues that

the testimony regarding the amount of

compensation he received in exchange for

producing buyers is not credible and should

not be utilized in determining his’ base

offense level. However, since no drugs were

seized, the trial court was warranted in

examining other factors, such as the amount of

money exchanged, in order to approximate the

quantity of drugs’ involved. see U.S.S.G.

Nos. 89-5952/5953/5954/5957

Section 2D1.4, comment (n.2).’ The district

court could have established defendant's base

level based upon all the drugs distributed by

those who became distributors as a result of

Norman bringing them into the organization.

See U.S.S.G. Section 1B1.3, comment (n.1).®

Consequently, defendant's base offense level

is conservative and proper.

7U.S.S8.G. Section 2D1.4, comment (n.2) provides:

Where there is no drug seizure or the amount

seized does not reflect the scale of the

offense, the sentencing judge shall

approximate the quantity of the controlled

substance. In making this determination, the

judge may consider, for example, the price

generally obtained for the controlled

substance, financial or other records, similar

transactions in controlled substances by the

defendant, and the size or capability of any

laboratory involved.

8U.S.S Section 1Bl.3, comment (n.1) provides that a

defendant is accountable for conduct that he "counseled, commanded,

induced, procured, or willfully caused" during the cemmission of

the offense of conviction

Finally, Norman claims that the court's

decision not to depart downward for his

"minimal participation" pursuant to U.S.S.G.

Section 3Bl1.2, is erroneous. In view of

earlier discussion in this opinion concerning

appeals from refusals to depart, and our being

unable to say the guidelines were in this

instance applied to Norman in violation of

law, the argument is not well-taken.

For the reasons stated, the judgments of

conviction and sentences are affirmed.

APPENDIX C

Section 3Cl1.1. Willfully Obstructing or

Impeding Proceedings

If the defendant willfully impeded

or obstructed, or attempted to

impede or obstrut the administration

of justice during the investigation

Or prosecution of the instant

offense, increase the offense level

by 2 levels.

Section 6A1.3. Resolution of Disputed

Factors (Policy Statement)

(a) When any factor imporant to the

sentencing determination is

reasonably in dispute, the parties

shall be given an adequate

opportunity to present information

to the court regarding that factor.

In resolving any reasonable dispute

concerning a facctor important to

the sentencing determination, the

court may consier relevant

information without regard to its

admissibility under the rules of

evidence applicable at trial,

provided that the information has

sufficient indicia of reliability to

support its probable accuracy.

sentencing factors in accordance

with Rule 32(a)(1), Fed.R.Crim.P.

(effective Nov. 1, 1987), notify the

parties of its tentative findings

and provide a reasonably opportunity

for the submission of oral or

written objections before imposition

of sentence.

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

FILED

NOV 9 1989

CLERK

BY_/S/ Mary Hartman

Deputy Clerk

UNITED STATES OF AMERICA

Vv. NO.CR. 1-88-96

)

FERRELL DEAN CLEMENTS, FRANK )

BERNARD BREITKRUETZ, MARK )

HOWARD RUFF, TIMOTHY A. )

CASTLE, DAVID HILL, and )

DAVID WAYNE NORMAN )

INDICTMENT

COUNT I

The Grand Jury charges that from on or

about January 20, 1987, and continuing until

on or about November 9, 1988, within the

Eastern District of Tennessee and elsewhere,

the defendants, FERRELL DEAN CLEMENTS, FRANK

BERNARD BREITKREUTZ, MARK HOWARD RUFF, TIMOTHY

A. CASTLE, DAVID HILL AND DAVID WAYNE NORMAN,

along with Frank Santiago and Craig Van Riper,

unindicted coconspirators herein, and other

persons known and unknown to the Grand Jury,

did willfully, knowingly, intentionally, and

without authority, combine, conspire,

confederate, and agree with each other and

with diverse other persons, to distribute and

possess with intent to distribute

methamphetamine, a Schedule II _ controlled

substance in violation of 21 U.S.C. Section

841(a) (1).

PURPOSE

The purpose and object of the conspiracy

was for the defendants, FERRELL DEAN CLEMENTS,

FRANK BERNARD BREITKREUTZ, MARK HOWARD RUFF,

TIMOTHY A. CASTLE, DAVID HILL, and DAVID WAYNE

NORMAN, along with Frank Santiago and Craig

Van Riper, unindicted coconspirators herein,

and other persons known and unknown to the

Grand Jury, to receive money and derive profit

from the illegal sale and distribution of

methamphetamine.

METHODS AND MEANS

To accomplish the purpose of the

conspiracy the defendants, FERRELL DEAN

CLEMENTS, FRANK BERNARD BREITKREUTZ, MARK

HOWARD RUFF, TIMOTHY A. CASTLE, DAVID HILL,

and DAVID WAYNE NORMAN, along with Frank

Santiago and Craig Van Riper, unindicted

coconspirators herein, and other persons known

and unknown to the Grand Jury, used the

following methods and means, among others:

(a) Acts involving the felonious

distribution and possession with the intent to

distribute methamphetamine, within the Eastern

District of Tennessee and elsewhere, in

violation of Title 21, United States Code,

Section 841(a) (1);

(b) Acts of knowingly and

intentionally using a communication facility,

within the Eastern District of Tennessee and

elsewhere, in committing, ~ausing, and

facilitating the commission of violations of

Titie -2i, United States Code, Sections

841(a)(1) and 846, in violation of Title 21,

United States Code, Section 843(b);

intentionally traveling in interstate commerce

with the intent to promote, manage,

facilitate, and carry on an illegal business

activity, to wit: the possession with the

intent to distribute and the distribution of

methamphetamine, in violation of Title 18,

United States Code, Section 1952(a);

(d) Acts of knowingly and

intentionally traveling in interstate commerce

with the intent to distribute the proceeds of

the illegal methamphetamine distribution, in

violation of Title 18, United States Code,

Section 1952(a).

It was a part of the conspiracy that

FERRELL DEAN CLEMENTS and FRANK '- BERNARD

BREITKREUTZ would manufacture quantities of

methamphetamine for distribution.

It was a further part of the conspiracy

that FERRELL DEAN CLEMENTS and FRANK BERNARD

BREITKREUTZ would supply and provide MARK

HOWARD RUFF with quantities of methamphetamine

for redistribution to other coconspirators

including Frank Santiago and Craig Van Riper.

It was a further part of the conspiracy

that MARK HOWARD RUFF and TIMOTHY A. CASTLE

would supply and provide other coconspirators

including Frank Santiago and Craig Van Riper

with quantities of methamphetamine in exchange

for cash.

It was a further part of the conspiracy

that DAVID HILL would obtain quantities of

methamphetamine from other coconspirators

including Craig Van Riper, for the purpose of

redistributing that methamphetamine for

profit.

It was a further part of the conspiracy

that MARK HOWARD RUFF and TIMOTHY A. CASTLE

would collect and obtain the cash proceeds of

the methamphetamine sales from coconspirators

including Frank Santiago and Craig Van Riper

and redistribute portions of those proceeds to

CERTIFICATE OF SERVICE

I, Jeffery C. Duffey, a member of the Bar

of the Supreme Court of the United States and

attorney for Petitioner, hereby certify that

on this 22nd day of July, 1991, I placed the

foregoing Petition in the United States Mail,

First Class, Postage Prepaid, to Honorable

William K. Suter, Clerk, United States Supreme

Court, 1 First Street, N.W., Washington, D.C.,

20643, and I served the correct number of

copies of the Petition on John W. Gill, Jr.,

United States Attorney, 354 Federal Building,

Chattanocga, Tennessee, 37402, and on the

Solicitor General, Department of Justice,

Washington, D.C. 20530, by First Class Mail,

Postage Prepaid.

ve,

4) / Af /

__£ I fe, _ fe

Jeffery C.' butfey

Attoyney (for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.