United States v. Brothers

• Court: Court of Appeals for the Third Circuit
• Decided: February 1, 1996
• Docket: 95-1303
• Status: Unknown

Opinion

Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit

2-1-1996

United States v. Brothers Precedential or Non-Precedential:

Docket 95-1303

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Recommended Citation "United States v. Brothers" (1996). 1996 Decisions. Paper 225. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/225

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 95-1303 ___________

UNITED STATES OF AMERICA

v.

CLAYTON S. BROTHERS a/k/a CLAYTON COSOM a/k/a JAKE

Clayton S. Brothers, Appellant

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 94-360-02) ___________

Submitted Under Third Circuit LAR 34.1(a) January 12, 1996

Before: SCIRICA, ALITO, SAROKIN, Circuit Judges

(Opinion Filed: February 1, 1996)

Ellen C. Brotman Elaine DeMasse Federal Court Division Defender Ass'n of Philadelphia 437 Chestnut Street Lafayette Building, Suite 800 Philadelphia, PA 19106 Attorneys for Appellant

Joseph T. Labrum, III Assistant United States Attorney 615 Chestnut Street, Suite 1250

1 Philadelphia, PA 19106 Attorney for Appellee

2 ________________

OPINION OF THE COURT ________________

SAROKIN, Circuit Judge: The Federal Sentencing Guidelines are lenient in prescribing

what a court may consider in determining the appropriate

sentence. Although a court may consider information which would

be inadmissible at the guilt phase, such information must have

sufficient indicia of reliability to justify the court's reliance

upon it.

In a drug case, the amount of drugs involved has a

substantial impact upon the severity of the punishment.

Accordingly the need for sufficient indicia of reliability is

particularly manifest when findings regarding the quantity of

drugs are predicated upon evidence which standing alone does not

meet the higher standard of admissibility.

In the instant case, the defendant was convicted of a drug

conspiracy after lending a small sum of money to his cousin for

the purchase of cocaine and driving him to the site of the

transaction. After conviction, the court increased the

defendant's sentence based on the amount of drugs involved. We

conclude that the hearsay evidence upon which the court relied in

this matter, which was in direct conflict with the sworn

testimony of the source, does not meet the test of reliability,

and hold that the government did not meet its burden of

establishing that Mr. Brothers knew the quantity of drugs

involved in the transaction. Accordingly, the judgment of

3 sentence will be vacated and remanded to the district court for

resentencing.

I. Facts and procedural posture

On August 10, 1993, Clayton S. Brothers received a telephone

call from his cousin, Torrance Cosom. Mr. Cosom had been

negotiating a deal to purchase ten kilograms of cocaine for

several days, for the price of $19,000 a kilo, or $190,000

overall. Mr. Cosom was supposed to meet with the alleged seller,

Anthony Resto, and was calling to borrow the balance of the

payment from his cousin. Mr. Cosom contends that he borrowed

$6000 from his cousin; Mr. Brothers maintains that the amount was

$3000.

In either event, Mr. Brothers agreed to Mr. Cosom's request,

and lent him money. At his cousin's request, Mr. Brothers then

drove him to the site where the deal was to be completed. When

they arrived at the location, Mr. Cosom met with Mr. Resto by the

trunk of the car, where the money was kept. They took the money

to the back seat of the car, allegedly to complete the

transaction.

Unfortunately for the two cousins, however, Mr. Resto was a

witness cooperating with the government, and agents of the

Federal Bureau of Investigation were monitoring the exchange.

After an amount of time sufficient to collect the evidence they

needed, the FBI agents descended on the scene and arrested

Messrs. Cosom and Brothers. Mr. Cosom promptly pledged

4 cooperation and asked how he could help himself. Appendix at

100a. An FBI agent interrogated him, and in those conversations

Mr. Cosom gave an account of Mr. Brothers's involvement in the

transaction. Most relevant for our purposes here, Mr. Cosom

claimed that Mr. Brothers was fully aware of the quantity of

drugs at stake.

Messrs. Cosom and Brothers were not arrested at the time,

but were placed under arrest later on and indicted for conspiracy

to possess with intent to distribute cocaine in violation of 21

U.S.C. § 846(a), attempt to possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and

aiding and abetting, pursuant to 18 U.S.C. § 2. Mr. Cosom was

also charged with two counts of possession of a firearm by a

previously convicted felon, in violation of 18 U.S.C. §922(g)(1).

Both men pled guilty to one count of violating 21 U.S.C.

§846(a). Mr. Cosom was sentenced to ten years in prison.

However, a dispute arose during Mr. Brothers's sentencing as to

whether Mr. Brothers was aware of the amount of drugs to be

purchased by his cousin. The effect of such knowledge would be

to significantly increase Mr. Brothers's sentence. The

presentence investigation report concluded on the basis of Mr.

Cosom's earlier statement that Mr. Brothers knew of his cousin's

intent to purchase ten kilograms of cocaine. Through counsel,

Mr. Brothers objected to the attribution of the drug weight to

him.

A sentencing hearing ensued in the United States District

Court for the Eastern District of Pennsylvania, at which Mr.

5 Brothers called Mr. Cosom to testify. Under oath, Mr. Cosom

repeatedly asserted that Mr. Brothers never knew the amount of

cocaine involved in the failed transaction. The government

called the FBI agent who had initially interviewed Mr. Cosom. The

agent testified to his interview with Mr. Cosom, and in

particular to Mr. Cosom's statement that Mr. Brothers knew the

amount involved in the transaction.

At the conclusion of the hearing, the court announced its

conclusion that based on the evidence presented a transaction of

over five kilograms was foreseeable to Mr. Brothers. Accordingly,

he sentenced Mr. Brothers to 70 months imprisonment and five

years supervised release.

Mr. Brothers now appeals his sentence on the grounds that

the evidence was insufficient to support the court's conclusion

that the appellant knew or should have known that the transaction

negotiated by his co-conspirator involved more than five

kilograms of cocaine. In particular, Mr. Brothers argues that

Mr. Cosom's statement attributing such knowledge to him, which

Mr. Cosom contradicted in the sentencing hearing, lacked

sufficient indicia of reliability to support the court's

conclusion.

II. Jurisdiction

The district court had jurisdiction over the criminal

prosecution of Mr. Brothers for violations of laws of the United

States pursuant to 18 U.S.C. § 3231.

6 We have jurisdiction over this appeal from the district

court's final judgment pursuant to 28 U.S.C. § 1291.

III. Standard of review

With respect to the district court's findings of fact, the

government bears the burden of proof by a preponderance of the

evidence. Miele, 989 F.2d at 663; United States v. McDowell, 888

F.2d 285, 290 (3d Cir. 1989). We review these findings to

determine whether they are clearly erroneous. Miele, 989 F.2d at

663; McDowell, 888 F.2d at 291-92. However, we conduct plenary

review of questions of law, such as the admissibility of hearsay

statements.

IV. The "sufficient indicia of reliability" standard

The use of hearsay in making findings for purposes of

Guidelines sentencing violates neither the Sentencing Reform Act

of 1984 nor the Due Process Clause. United States v. Sciarrino,

884 F.2d 95, 98 (3d Cir.), cert. denied, 493 U.S. 997 (1989);

United States v. Inigo, 925 F.2d 641, 660 (3d Cir. 1991). The

sentencing court can give a high level of credence to hearsay

statements, going so far as to "credit hearsay evidence over

sworn testimony, especially where there is other evidence to

corroborate the inconsistent hearsay statement." U.S. v. Miele,

989 F.2d 659, 664 (3d Cir. 1993). However, in order to avoid

"misinformation of constitutional magnitude," Sciarrino, 884 F.2d

7 at 97, we require that "information used as a basis for

sentencing under the Guidelines . . . have 'sufficient indicia of

reliability to support its probable accuracy.'" Miele, 989 F.2d

at 663; see also United States v. Torres, 926 F.2d 321, 324 (3d

Cir. 1991) (noting necessity that information upon which

Guidelines sentences are based be reliable). The Sentencing

Guidelines themselves provide: In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider 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.

U.S.S.G. § 6A1.3(a) (1995). The commentary to § 6A1.3 further

provides:

In determining the relevant facts, sentencing judges

are not restricted to information that would be

admissible at trial. 18 U.S.C. § 3661. Any

information may be considered, so long as it has

"sufficient indicia of reliability to support its

probable accuracy." Reliable hearsay evidence may be

considered. Out-of-court declarations by an

unidentified informant may be considered "where there

is good cause for the nondisclosure of his identity and

there is sufficient corroboration by other means."

U.S.S.G. § 6A1.3(a), Commentary. We have held that "this

standard ["sufficient indicia of reliability"] should be applied

rigorously." Miele, 989 F.2d at 664.

8 In Miele, we vacated the sentence imposed on the defendant

because the statements used to support the factual findings for

sentencing were found to fall short of the "sufficient indicia of

reliability" standard. The statement at issue, involving the

quantities of drugs transacted by the defendant, was from the

testimony of Frank Habera, an informant and drug addict at the

time of the events in question. We outlined three flaws in the

district court's reliance on Mr. Habera's statement. First, we

found that "[t]he vast disparity between Habera's estimate in the

PSI and the significantly lower estimates he provided at the co-

defendants' trial casts doubt on the reliability of the PSI's

estimate, particularly in view of Habera's status as an addict

informant." Id. at 664. Second, "the district court did not

address the inconsistency between Habera's various estimates, and

did not explain why it apparently followed Habera's hearsay

estimate in the PSI rather than the lower estimates Habera

provided under oath . . . ." Id. Third, "no other witnesses

testified as to specific drug quantities." Id. at 65. While

there was ample evidence of Miele's "extensive and continued"

involvement with cocaine, we found that "a determination that

Miele's drug activity was substantial does not translate readily

into a specific drug quantity finding, which is the ultimate

issue for sentencing purposes." Id. at 668. In light of the

inconsistencies in Mr. Habera's statements, the district court's

failure to explain its adoption of the PSI statement over that

under oath, and "the lack of other corroborating evidence to

9 support Habera's hearsay estimate," id. at 665, we vacated the

sentence and remanded for further factfinding. Id. at 668.

As the Third Circuit has emphasized in the past, we should

exercise particular scrutiny of factual findings relating to

amounts of drugs involved in illegal operations, since "the

quantity of drugs attributed to the defendant usually will be the

single most important determinant of his or her sentence." United

States v. Collado, 975 F.2d 985, 995 (3d Cir. 1992). This

mandate is only reinforced when the court seeks to attribute the

quantity of drugs to an accomplice. Accomplice attribution often results in a dramatic increase in the amount of drugs for which the defendant is held accountable, which translates directly into a dramatic increase in the sentence. As we have explained, whether an individual defendant may be held accountable for amounts of drugs involved in reasonably foreseeable transactions conducted by co-conspirators depends upon the degree of the defendant's involvement in the conspiracy. In assessing the defendant's involvement, courts must consider whether the amounts distributed by the defendant's co-conspirators were distributed "in furtherance of the . . . jointly- undertaken . . . activity," were "within the scope of the defendant's agreement," and were "reasonably foreseeable in connection with the criminal activity the defendant agreed to undertake." U.S.S.G. § 1B1.3, application note 1. We wish to emphasize that in deciding whether accomplice attribution is appropriate, it is not enough to merely determine that the defendant's criminal activity was substantial. Rather, a searching and individualized inquiry into the circumstances surrounding each defendant's involvement in the conspiracy is critical to ensure that the defendant's sentence accurately reflects his or her role.

Id. This standard applies in particular when the court seeks to

determine "whether a particular defendant may be held accountable

10 for amounts of drugs involved in transactions conducted by a co-

conspirator." Id. at 992.

V. The district court's analysis

The court relied on certain factual findings in sentencing

Mr. Brothers. One central finding, which is in dispute here, is

that Mr. Brothers had knowledge of the quantities of cocaine

involved in the transaction that was to take place on August 10,

1993. To reach its conclusion, the court relied on hearsay

testimony by FBI Special Agent Bud Warner reporting alleged

statements by Mr. Cosom imputing such knowledge to Mr. Brothers.

As in Miele, Mr. Cosom contradicted his earlier, unsworn

statement when he testified under oath at Mr. Brothers's

sentencing hearing. As in Miele, there was no other witness to

corroborate the facts alleged in Mr. Cosom's earlier statement.

The court, however, found that elements in the record constituted

sufficient corroborating evidence to admit Agent Warner's hearsay

testimony and, on that basis, the court chose to credit Mr.

Cosom's earlier, unsworn statement over his later statements

under oath.

A. The inconsistent statements

During Clayton Brothers's sentencing hearing, the government

called as a witness Special Agent Bud Warner, the FBI agent in

the case. Mr. Warner testified that he took Mr. Cosom into his

custody on the day of the attempted drug sale, Appendix at 60a,

that Mr. Cosom waived his constitutional rights, "stated that he

did not want to be arrested and prosecuted for this crime," and

11 that "he would cooperate fully with the FBI." Id.; see also id.

at 100a (Federal Bureau of Investigation report, Aug. 24, 1993)

("COSOM stated that he did not want to go to jail and inquired as

to how he could help himself."). According to Mr. Warner, Mr.

Cosom told him that day that "Mr. Brothers was fully aware that

they were -- he was to pick up ten kilograms of cocaine that

day." Id. at 61a. Mr. Cosom did not disavow this statement in

subsequent proffer sessions. Id. at 50a.

However, Mr. Cosom's own testimony during the sentencing

hearing contradicted the statement he allegedly made to Mr.

Warner. When asked if Mr. Brothers knew prior to the deal that

Mr. Cosom intended to purchase ten kilograms of cocaine, Mr.

Cosom replied, "He never knew the amount." Id. at 40a; see also

id. at 49a ("I don't think he knew about the ten. He knew I was

going to meet somebody about the coke, though."); id. at 52a ("He

knew I was going to buy it, but he didn't know, you know, how

many, the amount."); id. at 54a (THE COURT: "Did he know how much

money you had?"; MR. COSOM: "No, I don't believe so."); id. at

56a (Q: "[I]s it your recollection that [Mr. Brothers] knew or

did not know the amount of drugs you were going to buy on the

date of this incident?"' A: "He didn't know.").1

1 The government suggests that Mr. Cosom admitted at Mr. Brothers's sentencing hearing that Mr. Brothers knew of the quantity involved. Appellee's Brief at 4. The government's claim is based on the following exchange: THE COURT: And he [Mr. Brothers] knew you were going down there to buy the ten K, right? MR. COSOM: Yes. Appendix at 55a. Taken out of context, this exchange could indeed support the government's claim. In context, however, it is clear that Mr. Cosom was commenting not on Mr. Brothers's

12 B. The court's assessment

Near the conclusion of the hearing, the court announced its

decision on the issue, which we cite here verbatim: All right. I've given a considerable amount of thought to this case and I think the bottom line is that I'd be closing my eyes to the obvious if I were to find that the calculation by the probation officer here was inaccurate.

It seems to me based on the facts we have before us that, first of all, the scope of the conspiracy was to buy a large amount of cocaine, in this case ten kilograms, and that it was reasonably foreseeable to Mr. Brothers, who knew the defendant, was a cousin of the defendant, had had prior dealings with him, it was reasonably foreseeable for him to suspect that there was going to be a great deal more than five kilograms purchased. And part of that is based upon, as I said, the knowledge he has of Mr. Cosom.

The other part is based upon the obvious quantities of money that were involved here, that made it clear that the amount he was contributing was but a small portion of a large amount that was going to be used to purchase a substantial amount of drugs. And I think it's clearly foreseeable that that amount was over five kilograms.

The other facts which support that are the testimony of Mr. Cosom and the -- as well as the statements he's made in the past, which I tend to believe the statements he made in the past were more accurate than those he made today in the presence of his cousin. And therefore I find that the base offense level of 32 is correct.

Appendix at 78a-79a.

Based on the court's statement, it appears that the court

relied primarily on two factors in crediting Mr. Cosom's hearsay

knowledge of the quantity involved but on his knowledge of the purpose of the trip. Right after that exchange, Mr. Brothers's attorney jumped in to ask Mr. Cosom, "So that I'm clear, did -- is it your recollection that my client knew or did not know the amount of drugs you were going to buy on the date of this incident,?" id. at 56a, to which Mr. Cosom responded, "He didn't know." Id.

13 statements over those he made under oath, at the sentencing

hearing: (a) Mr. Brothers's knowledge of Mr. Cosom through their

family relationship and prior dealings; (b) the quantities of

money involved.

C. The corroborating evidence

The district court relied on two elements as corroborating

evidence for Mr. Cosom's statement attributing to Mr. Brothers

knowledge of the quantities of cocaine involved in the failed

transaction of August 10, 1993: the personal relationship between

the two men, and Mr. Brothers's presence at the site of the deal.

1. Mr. Brothers's knowledge of Mr. Cosom

The first element on which the court allegedly relied was

the existing relationship between Messrs. Brothers and Cosom.

There is simply nothing in the relationship that could constitute

corroborating evidence for the claim that Mr. Brothers knew the

quantities involved in the planned purchase on August 10, 1993.

There is nothing about the fact that the two men are cousins that

would indicate to Mr. Brothers that Mr. Cosom intended to

purchase ten kilograms of cocaine.

As for Mr. Brothers's knowledge of Mr. Cosom's past history

of drug dealing, far from supporting the government's position,

it undermines it. The government points out in its brief that

"Cosom [had] supplied Brothers with 4.5 ounce quantities of

cocaine on three separate occasions." Appellee's Brief at 17;

see also Appendix at 44-45a, 51-52a. If anything, the fact that

Mr. Brothers's past drug transactions with Mr. Cosom involved

relatively small amounts supports the position that it was not

14 reasonably foreseeable for him to expect that the August 10

transaction would involve ten kilograms of cocaine. While it is

true that Mr. Cosom started buying kilogram quantities of cocaine

in the Fall of 1991, Appendix at 49a, there is nothing in the

record to indicate that Mr. Brothers knew of that fact.

2. The sums of money involved

The second piece of corroborating evidence mentioned by the

court is the sums of money involved in the transaction. The

amount involved, in and of itself, indicates nothing about Mr.

Brothers's knowledge of the quantity of drugs involved. A

correlation can only be made if Mr. Brothers knew how much money

was involved, and if from that knowledge he could reasonably

foresee the quantity of cocaine involved. The various elements

from which such knowledge might be imputed include: (1) Mr.

Brothers's loan to Mr. Cosom; (2) the conversation between Mr.

Cosom and the government informer, Anthony Resto, during the

transaction; (3) the presence of the bags containing the money in

the car; and (4) Mr. Brothers's statement supporting his cousin's

representation to the government informant that all the money was

there.

First, no knowledge of the quantity of cocaine involved can

be imputed from the amounts of money that Mr. Brothers lent Mr.

Cosom. The court found that the amount of the loan was $6000,

which according to Agent Warner would suffice for a wholesale

purchase of "probably a quarter kilo of cocaine." Appendix at

69a. There is no reason to conclude that, based on his loan of

$6000 to his cousin, Mr. Brothers could somehow foresee that the

15 total amount of the transaction -- $190,000 -- was more than

thirty times that amount.

Second, the conversation between Messrs. Cosom and Resto, as

it is transcribed in the record, cannot support such a finding

either. The government states that "[i]n the consensual

recording of the August 10 meeting, Cosom, referring to the cash-

laden gym bag, told Resto, in the presence of Brothers, that,

'There's two hundred there.'" Appellee's Brief at 15. The

transcript of the recording indicates that the following exchange

took place: AR: You got it a lot of bags?

TC: Only in one big bag.

AR: Well, just put it in the car.

TC: What car? Your car?

AR: No, your car.

TC: I ran it.

AR:I know, but I don't want to be reachin in the trunk, you know what I'm sayin'.

TC: Oh, you want me to put the money in it.

AR:Yeah, just put it in the back seat. Fuck it. Put it, just put it in the back seat like this.

TC: You sit in it.

TC: There's two hundred there.

AR: What's up, aye?

CB: I'm Jake, man.

Appendix at 96a-97a. We know that the following sequence of

events occurred: Messrs. Cosom and Resto went to the trunk of

16 Mr. Cosom's car to look at the two bags containing the money, and

they took those bags to the back seat of Mr. Cosom's car. The

whole time, Mr. Brothers was sitting in the driver's seat of Mr.

Cosom's car. What we don't know is how the images fit with the

soundtrack -- i.e., the transcript. That is, we don't know where

the participants were when certain words were said. In

particular, we do not know where Messrs. Cosom and Resto were

when Mr. Cosom told Mr. Resto, "There's two hundred there." They

could have been in the back seat, audible to Mr. Brothers; they

could just as easily have been standing outside the car, having

just put the bags inside, and beyond Mr. Brothers's auditive

reach. (Messrs. Brothers and Resto did not greet each other

until after this exchange.) There is simply no way to favor one

scenario over the other, and no support for the government's

claim that "the transcript of the August 10 meeting, read in

context, establishes that Brothers was present at the time Resto

placed the money in the back seat of the vehicle and Cosmo

advised him that there was $200,000 present there." Appellee's

Brief at 22. Therefore, because there is no way to conclude that

Mr. Brothers did hear the reference to "the two hundred," we find

that the exchange could not constitute an indicia of reliability

for Mr. Warner's hearsay statement. (Furthermore, as Mr.

Brothers rightly argues in his brief, "Cosom could just as easily

have been pointing to a bundle which contained two hundred

dollars." Appellant's Reply Brief at 5.)

17 Messrs. Cosom and Resto had a second conversation regarding

money during the attempted drug purchase, this one clearly in the

presence of Mr. Brothers. AR: What, what this in staacks [sic] of bill?

TC: Hum?

AR: I'm sayin, I'm sayin. . .

TC: These five, these five.

AR: Oh, alright, man.

AR: Five "G's."

TC: There's two bags. There's another bag under that. See it? It's a white bag.

CB: Yeah, with the ink stains.

AR: This is what?

TC: That's five. Five grand.

AR: Five.

TC: That's a grand, that's a grand. (unintelligible)

TC: Five. Five, five, five, five.

Appendix at 97-98a.

Again, with just the sound and no image, it is impossible to

infer from this exchange any knowledge on the part of Mr.

Brothers. We do not know whether he was looking at the other

protagonists as the conversation was taking place; and if he was,

we do not know what he could and could not see, or whether or not

the various stacks were in his line of vision.

The third possible indication that Mr. Brothers had

knowledge of the sum of money involved, and could therefore

18 reasonably foresee the quantity of drugs at stake, is the

presence of the two money-filled bags in the back of the car.

Again, though, there is no evidence that Mr. Brothers had a full

view of the bags, that he could translate what he could see into

an approximate sum of money, and that he could establish a

correlation between the estimated sum of money and the quantity

of drugs it could purchase. The cost of buying just under five

kilograms of cocaine at the time of the failed transaction was

close to $100,000. Even that amount, in small enough

denominations -- say $10, $20 or even $50 bills -- would have

taken up quite a bit of space. The presence of the two bags,

therefore, was not corroborating evidence for Mr. Warner's

hearsay statement. (There is also no evidence that photographs

of the two bags open, with the money clearly visible, correspond

to the state of the bags when they were within Mr. Brothers's

sight.)

Finally, the fourth possible evidence is a statement by Mr.

Brothers during the transaction. An exchange took place during

which Mr. Resto was trying to ensure that all the money he was to

receive for payment was contained in the two bags. AR: But it ain't short, right?

TC: It ain't short.

CB: He said it's right, man.

Appendix at 98a. This does not necessarily represent evidence of

Mr. Brothers' personal knowledge of the amount involved, but more

likely, as Mr. Brothers contends, a statement that "merely

19 evinces support for Cosom and a desire to conclude a deal."

Appellant's Brief at 16.

D. The more reliable statement

The district court gave one final reason for its finding

regarding Mr. Brothers's knowledge of the quantity of drugs

involved: "I tend to believe the statements [Mr. Cosom] made in

the past were more accurate than those he made today in the

presence of his cousin." Appendix at 79a.

Of course, assessments of credibility by the trial court are

entitled to great deference at the appellate level. However, the

past statement of Mr. Cosom, reported as hearsay by Agent Warner,

lacked "sufficient indicia of reliability to support its probable

accuracy" and therefore could not support the court's conclusion

regarding Mr. Brothers's knowledge of the amount of drugs

involved. There was simply no occasion for the court to compare

the credibility of a hearsay statement that was not properly

admitted with that of another statement made under oath.

We note, however, that both sides have commented on the

issue of the statements' respective credibility. We are not

persuaded by the government's description of Mr. Cosom's earlier

statement as "made at a time when Cosom had no motive to protect

his cousin or to fabricate falsehoods." Appellee's Brief at 11.

Mr. Cosom's earlier statement was made right after he "inquired

as to how he could help himself." Appendix at 100a. There is a

motive right there: in the context of this case, it seems no less

plausible that Mr. Cosom would make up certain facts that could

be of use to the police against an accomplice in order to reduce

20 a certain prison sentence than that he would lie on the stand and

under oath to protect a member of his family.

VI. Conclusion

Because of Mr. Cosom's inconsistent statements and the lack

of "sufficient indicia of credibility" for Mr. Warner's hearsay

testimony, the district court committed clear error under Miele

when it used as a basis for its sentencing of Mr. Brothers the

information contained in Mr. Cosom's earlier statement.

Therefore, we vacate the judgment of sentence and will remand to

the district court for resentencing in accordance with this

opinion.