United States v. Petty

982 F.2d 1365

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 7, 1993
• Docket: Nos. 90-30291 to 90-30294
• Status: Published

Opinions

DAVID R. THOMPSON, Circuit Judge:

Robert M. Petty, Melvin L. DeWitt, Pasqual Debraine and Jordan Rodrigues Quintal, Jr. challenge the use of a coconspirator’s post-arrest statement against them at the sentencing phase of the criminal process. Other issues involving these defendants have been dealt with in an unpublished memorandum disposition. A separate sentencing issue raised by Petty and Quintal is dealt with in a separate opinion filed herewith.

The issue dealt with in this opinion is novel: In sentencing under the Sentencing Guidelines, may the court rely on the sworn, post-arrest admissions of an unavailable coeonspirator given by him in the course of plea bargaining with the government?

FACTS

Donald Craig Kessack was the kingpin in a conspiracy to distribute cocaine. After his arrest, he began plea negotiations with the government. On October 31, 1989, as part of these negotiations, he proffered a statement under oath to the government (“the Statement”). The proffer was made to induce the government to agree to a plea bargain. It was made on the condition that the government would not use the information against Kessack in any way other than to impeach him if he later gave testimony inconsistent with the proffer.

Kessack’s negotiations failed. There was no plea agreement. He went to trial with his coconspirators, including the defendants mentioned in this appeal.

Kessaek and the others were convicted on April 4, 1990. The government then moved for the sentencing of Kessaek, and he was sentenced without the court seeing the Statement. Two weeks later, the sentencing hearing of the other defendants was held. The government called Kessaek as a witness. He refused to testify on the ground of his privilege against self-incrimination. On the government’s motion, the district court entered an order compelling him to testify. Kessaek persisted in his refusal to answer any questions. The government then asked the court to unseal and review the Statement. The court did so and on July 13, 1990 notified the appellants that it had reviewed the Statement and had considered its content for purposes of sentencing.

On July 23, 1990 Kessaek made a second sworn statement in which he cast doubt on the accuracy and reliability of his first Statement. The sentencing hearing then resumed on July 27, 1990. Based on information in the Statement, which the court determined was corroborated by other evidence, the court found that the entire conspiracy involved more than 50 kilograms of cocaine. The court sentenced Petty and Debraine on the 50-kilogram basis, and Quintal and DeWitt on the 15-49.99-kilo-gram basis. Quintal and DeWitt received the lower basis because the court determined that it could not find by a preponderance of the evidence that Quintal and DeWitt were involved during the entire period of the conspiracy, or that they dealt with 50 kilograms or more of cocaine, or that they knew or had reason to know that levels of 50 kilograms or more would be dealt with by the conspiracy. All four defendants appeal the use of the Statement.

ANALYSIS

The appellants first contend that because the Statement is hearsay, the Confrontation Clause bars its consideration at sentencing.¹ We reject this argument.

In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court held that courts may consider hearsay at sentencing. The Sentencing Guidelines do not change this. The Guidelines explicitly allow a sentencing court to consider information relevant to the sentencing determination “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). The commentary to section 6A1.3(a) 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 or reliability to support its probable accuracy.” United States v. Marshall, 519 F.Supp. 751 (D.C.Wis.1981) [sic], aff'd, 719 F.2d 887 (7th Cir.1983); United States v. Fatico, 579 F.2d 707 (2d Cir.1978). 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.” United States v. Fatico, 579 F.2d at 713. Unreliable allegations shall not be considered. United States v. Weston, 448 F.2d 626 (9th Cir.1971).

U.S.S.G. § 6A1.3 comment.; see also United States v. Beaulieu, 893 F.2d 1177, 1180 (10th Cir.) (the Guidelines were not intended to place new restrictions on the sources of information available to the sentencing judge), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990).

It is plain there is no language in the Guidelines that requires the application of the Confrontation Clause at sentencing. The question is whether the dramatic changes in the sentencing process brought about by the Guidelines create a constitutional right of confrontation where none existed before.

Of the circuits that have considered this question, all seven have held that the Confrontation Clause does not apply at sentencing, notwithstanding the enactment of the Guidelines.² These circuits are the First Circuit in United States v. Tardiff, 969 F.2d 1283, 1287 (1st Cir.1992); the Third Circuit in United States v. Kikumura, 918 F.2d 1084, 1102-03 (3d Cir.1990); the Fourth Circuit in United States v. Johnson, 935 F.2d 47, 50 (4th Cir.), cert. denied, — U.S. —, 112 S.Ct. 609, 116 L.Ed.2d 632 (1991); the Fifth Circuit in United States v. Marshall, 910 F.2d 1241, 1244 (5th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991); the Sixth Circuit in United States v. Silverman, 976 F.2d 1502 (6th Cir.1992) (en banc); the Eighth Circuit in United States v. Wise, 976 F.2d 393 (8th Cir.1992) (en banc); and the Tenth Circuit in United States v. Beaulieu, 893 F.2d 1177, 1180 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990).

In holding that the Confrontation Clause does not apply at sentencing under the Guidelines, the Third Circuit noted that “the procedural protections afforded a convicted defendant at sentencing are traditionally less stringent than the protections afforded a presumptively innocent defendant at trial.” United States v. Kikumura, 918 F.2d at 1102-03; see also United States v. Restrepo, 946 F.2d 654 (9th Cir.1991) (en banc) (preponderance of the evidence determines the existence of factors enhancing a sentence), cert. denied, — U.S. —, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992); United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir.) (sentencing courts must consider evidence seized in violation of the Fourth Amendment in passing sentence under the Guidelines), cert. denied, — U.S. —, 113 S.Ct. 124, 121 L.Ed.2d 80 (1992).

Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), is not to the contrary. The Court in Specht held that trial-like procedural protections apply at sentencing only if an entirely new and more serious charge is added at sentencing without notice or “any ‘hearing in the normal sense.’ ” McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 2417, 91 L.Ed.2d 67 (1986).

Judge Wellford, dissenting in the vacated opinion of United States v. Silverman, explained why Specht does not require application of the Confrontation Clause at sentencing; United States v. Silverman, 945 F.2d 1337 (6th Cir.1991) (dissenting opinion) (footnote and emphasis omitted), vacated, 976 F.2d 1502 (6th Cir.1992) (en banc).³

First of all, [Specht] specifically stated adherence to Williams v. New York. What was involved in Specht was a “radically different situation” where invocation of the Colorado law being challenged meant “making of a new charge leading to [enhanced] criminal punishment” without a hearing, presence of counsel, opportunity to be heard, or ability to offer evidence of his own. Specht, 386 U.S. at 608, 610, 87 S.Ct. at 1211, 1212. Specht simply held that Colorado law was deficient for due process reasons because “[i]t makes one conviction the basis for commencing another proceeding under another Act ... [as] an habitual offender and mentally ill” without “reasonable notice and an opportunity to be heard.” Id. at 608, 610, 87 S.Ct. at 1211, 1212. There is simply no analogy to the situation presented under state law in Specht and the panoply of due process protection afforded these federal defendants at their sentencing hearings. Nor, as asserted by the majority, was Williams involved in a “nonadversary” system. A defendant, prior to sentencing guidelines (and after), was represented by counsel as an advocate to speak against any prosecution recommendation or unfavorable information and to offer useful information or evidence on behalf of the defendant.

Although the Confrontation Clause does not apply at sentencing, a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information. United States v. Reid, 911 F.2d 1456, 1463-64 (10th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). Due process requires that some minimal indicia of reliability accompany a hearsay statement. Id. at 1464.

While the district court treated the Statement as “presumptively unreliable,” it determined that when the Statement was considered with other corroborating evidence, the presumption of unreliability was rebutted. The Statement contained estimates that the conspiracy involved at least 50 kilograms of cocaine. The court indicated the evidence corroborating the Statement included:

Krohn’s testimony with respect to what Kessack was telling him the level of activity was for this conspiracy. Statements made by Mr. Kessack to Agent McElderry about the level of activity and what he could produce. The testimony of Neil Stokes and admissions by Kessack to Stokes of the level of activities of the conspiracy. The post-arrest statements and admissions by defendant Brownwood. The post-arrest admissions by defendant Granger to witnesses Peter Constantine and Gary Annunziata that he was dealing a kilo a month for five years. The tape recorded admissions of the level of activity, exhibit 55, where one of the defendants said ten kilos a week for a six-month period. The testimony of the agents concerning the arrest of Mr. Petty in May of 1984 and the cash he had on his possession and the white powdery substance in his possession or in the possession of his traveling companion at that time. The testimony of other witnesses with respect to substantial amount of cash in Petty’s possession in February of 1984.

Under all the circumstances, I feel substantial indicia of reliability has been presented by other corroborating evidence to rebut the presumption of unreliability of Mr. Kessack’s sworn statement. I therefore feel that I should and must consider it. I have done so.

The district court’s evaluation of reliability is reviewed under an abuse of discretion standard. See United States v. Ayers, 924 F.2d 1468, 1481 (9th Cir.1991). The court did not abuse its discretion in concluding that the Statement, when viewed in light of the corroborating evidence, was sufficiently reliable.

Furthermore, the sentencing court did not err in using evidence independent from the Statement to rebut the presumption of its unreliability. Although Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), precludes a court from using extrinsic corroborating evidence to establish the reliability of hearsay at trial, it does not preclude the use of such evidence to establish the reliability of hearsay at sentencing. We agree with the Third Circuit that the Supreme Court’s decision in Wright involved an interpretation of the Confrontation Clause and is thus applicable only at trial. United States v. Kikumura, 918 F.2d 1084, 1103 n. 21 (3d Cir.1990) (“In contrast to Wright, at a ... sentencing hearing, the court is free, and indeed is required, to consider other evidence that substantiates the proffered' hearsay statement.”).

Without squarely addressing the question, other circuit courts have assumed Wright’s ban on extrinsic corroborating evidence of hearsay applied to determine reliability at the trial phase only, not the sentencing phase. See, e.g., United States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir.1990) (hearsay evidence of quantity of drugs admissable at sentencing because corroborated by other witness testimony at grand jury and trial) cert. denied, Ramirez-Fernandez v. United States, — U.S. —, 111 S.Ct. 2039, 114 L.Ed.2d 123 (1991); United States v. Holmes, 961 F.2d 599, 603 (7th Cir.) (corroboration of hearsay statement in presentence report by trial testimony generates sufficient indicia of reliability to be considered by sentencing court), cert. denied, — U.S. —, 113 S.Ct. 232, 121 L.Ed.2d 168 (1992); United States v. Jewel, 947 F.2d 224 (7th Cir.1991) (court affirmed enhancement of offense level for obstruction of justice that was based on hearsay allegation corroborated by extrinsic evidence); United States v. Hubbard, 929 F.2d 307 (7th Cir.) (hearsay evidence of intent to cause bodily injury under U.S.S.G. § 2K1.4(c)(1) corroborated by physical evidence), cert. denied, — U.S. —, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991); United States v. Rivers, 917 F.2d 369, 373 (8th Cir.1990) (“[w]hen the trial court is faced with sentence enhancement based upon hearsay evidence, we deem it advisable that the trial court exercise a more searching inquiry which may or may not serve to provide sufficient corroborating evidence to support the government’s claim.”).

CONCLUSION

Neither the Confrontation Clause nor due process requirements precluded the sentencing court from considering the Statement. The Confrontation Clause does not apply at sentencing to preclude a court from considering hearsay evidence. Due process requires that hearsay bear some minimal indicia of reliability in order to be considered at sentencing. Although the Statement was presumptively unreliable, the presumption of its unreliability was rebutted by extrinsic corroborating evidence, which the district court properly considered at the time of sentencing.

The sentences of DeWitt and Debraine are affirmed. The challenges to the sentences of Petty and Quintal, on the grounds set forth in this opinion, are rejected. However, pursuant to our separate opinion filed herewith, the sentences of Petty and Quintal are remanded to the district court for reconsideration.

Sentences of DeWitt and Debraine AFFIRMED. Sentences of Petty and Quintal REMANDED.

1 . “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him----” U.S. Const. amend. VI.

2 . Three other circuits have held that the due process clause does not require confrontation at sentencing. These circuits are the Second Circuit in United States v. Carmona, 873 F.2d 569, 574 (2nd Cir.1989); the Ninth Circuit in United States v. Notrangelo, 909 F.2d 363, 365-66 (9th Cir.1990); and the Eleventh Circuit in United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir.1989).

3 . We quote from Judge Wellford’s dissent in the vacated Silverman opinion not because that opinion has precedential value, but to give Judge Wellford credit for his reasoning.