Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 86-00203-01).
Mansmann, Hutchinson and Van Dusen, Circuit Judges.
VAN DUSEN, Senior Circuit Judge.
In this case we are presented with an appeal from the denial of what purports to be a Federal Rule of Criminal Procedure 35(b) motion for reduction of sentence filed by defendant-appellant, Mario Vito Heubel. First, we must decide whether we have jurisdiction to consider the appeal since, while Heubel's original Rule 35(b) motion was filed within the 120 days after imposition of sentence allowed by the rule, the supplemental Rule 35(b) motion in which he first raised the issue he seeks to appeal was not. Second, if we find that we have jurisdiction, we must resolve the issue raised on appeal, which is whether the district court impermissibly enhanced Heubel's sentence because of his failure to cooperate with the government and, in so doing, infringed his right not to give testimony that might incriminate himself under the Fifth Amendment to the United States Constitution.
Defendant-appellant Heubel pled guilty in the United States District Court for the Western District of Pennsylvania to one charge of violating 21 U.S.C. § 841(a) (1) by possessing cocaine with intent to distribute. At sentencing, on December 30, 1986, the district court observed that Heubel had been arrested with "a large quantity of cocaine of rather high grade," and asked where he got the money for it. Defendant replied, "[t]he product was fronted to me . . . ." The court inquired, "[b]y whom?" Heubel began to answer, "by a gentleman --," but defense counsel invoked the Fifth Amendment privilege against self-incrimination as to a potential conspiracy charge.
"Well, he's in very serious trouble now and he isn't going to help himself very much by saying this might involve him in others. And usually when a defendant is convicted and pleads, he's pretty ready to help himself by involving other people even though it does tell -- does make him susceptible to further prosecution. But, there are ways of taking care of that."
After defense counsel reaffirmed that Heubel was invoking his Fifth Amendment privilege, the court said, "[a]nd there is a lot of debate in the papers whether that's a very honorable thing to do or not, but we are not commenting on that."
The court then commented, "[h]e's got to have a lot of experience and a lot of reliability in the trade for some larger dealer to front this quantity to him." The court then asked, "[w]hat has he told the authorities?" Defense counsel stated that it was his understanding that no one had asked defendant for information. The court inquired whether Heubel was willing to talk and suggested that this was "a rather usual case for granting immunity." Defense counsel said that he would discuss the matter with Heubel. The court said,
"[y]ou know, the minute he goes to jail, you'll go over and you will take up three, four nice pages of rule 35, and it's not going to be granted. Usually I keep those on file just to show they are timely filed, if there is any reason for later action."
Defendant himself then related the circumstances leading to his involvement with cocaine. At this point, the following exchange occurred:
"DEFENDANT: But, I can honestly say that I know I will never be involved in anything like this again.
THE COURT: Well, we'll make sure that you are not. Because this is not a small one-gram deal, or anything. You're in possession of almost a kilo. The quality of some of it is pretty high.
Let's see. 658 grams of this. It was 72 percent pure. Pretty high. 28 grams. 74 percent, and a hundred and forty seven, forty percent. All of that would be susceptible of cutting, and some of it cutting several times.
So, he's got a total of 850 or 900 grams of cocaine, pretty near a kilogram. Almost two pounds. He's got over a pound and a half and susceptible of cutting. He's got scales and other matters there which allow for division and cutting. It was a pretty big -- the amounts you sold, did you cut it?
DEFENDANT: No, Your Honor.
THE COURT: Never? Well, people don't usually sell quantity unless they are selling it in sort of commercial quantities, ounces or something. When it reaches the street around here, it's usually about eighteen percent.
Well, I think you have had extensive experience and you have got a lot to say, and that's the only thing that's going to help you out in the future."
Then, immediately before imposing sentence, the district court made the following comments:
"All right, Mr. Heubel, as you can see, the Court is impressed by the quantity that you had in your possession at the time of arrest. The materials, the scale, your record of drug transactions, et cetera, shows that you were involved in this real deeply.
It wasn't a one-shot transaction. You're in the possession of a quantity that costs an awful lot of money and either someone loans it to you or someone loans the money to you ...