Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Criminal Action No. 89-00288-08.
Stapleton, Hutchinson and Garth, Circuit Judges.
HUTCHINSON, Circuit Judge
Jeanette Santos (Santos), who is also known as Jeanette Ramos, appeals from a judgment of conviction and sentence entered against her in the United States District Court for the Eastern District of Pennsylvania following a jury trial. The jury convicted Santos on seven counts of cocaine-related criminal activity.
On appeal, Santos raises three issues. First, she contends that the district court abused its discretion by failing accurately and completely to submit her duress defense to the jury and by prejudicially commenting upon the strength and credibility of the evidence offered at trial in support of that defense. Second, she contends that the United States Sentencing Guidelines on their face violate the Due Process Clause of the Fifth Amendment to the United States Constitution. Her final contention is that the application of the Sentencing Guidelines to her case deprived her of due process of law. For the reasons set forth below, we will affirm the district court's judgment of conviction and sentence.
The indictment in this matter charged that Santos, her common law husband Elvin Ramos (Ramos) and a number of others conspired to possess with intent to distribute and conspired to distribute cocaine in Philadelphia and elsewhere. See Appendix (App.) at 10-24. The indictment also charged that on six different occasions, July 7, 1987, September 2, 1987, October 21, 1987, March 17, 1988, April 11, 1988 and May 22, 1988, Santos distributed a half ounce of cocaine. See id. at 25-30.
Following the issuance of the indictment, Federal Bureau of Investigation (FBI) agents arrested Santos in July of 1989. Santos was arrested at her home, where she lived with Ramos and her two young children, Christopher and Elvin, Jr. Immediately after the arrest, Santos suggested that she could help federal agents investigate and prosecute other drug offenses. Santos and her court-appointed attorney met with an FBI agent and an Assistant United States Attorney to discuss her possible cooperation. At the meeting, Santos agreed to cooperate but expressed fears for her safety and the safety of her children.
Under the terms of the agreement, Santos engaged in monitored telephone conversations with suspected criminals, took part in controlled purchases of narcotics and helped the FBI engage in electronic surveillance of suspected drug distributors. In exchange for her help, the government promised to place Santos into the Federal Witness Protection Program. Santos states in her brief on appeal that the government also repeatedly promised her leniency in connection with the charges against her.
Santos began cooperating with the government in late July of 1989. Two weeks following her arrest, the government moved Santos to a confidential location; however, after four weeks at the secret location she became despondent and attempted to take her own life. Santos was then hospitalized and subjected to a psychiatric evaluation. Following the suicide attempt, the government found Santos unfit to provide any further cooperation. As a result, the government asked the district court to revoke her bail.
Thereafter, the government approached Santos once again, this time asking for her help in the investigation and prosecution of the others named in the indictment against her. Santos met with case agents twice and provided them with detailed information about this case. At about the same time, the government began plea bargaining with all defendants named in the indictment. Santos was unable to reach an agreement with the government, so her case proceeded to trial.
At trial, Santos put forth the defense of duress. She claimed that Ramos, her common law husband, had engaged in a pattern of violent and abusive behavior towards her and her children. Santos introduced evidence that after the birth of her second child Ramos developed a serious problem with alcohol and drugs. As her common law husband's substance abuse problem worsened, Santos claimed that he became more abusive to her and her children.
Santos claimed that Ramos had stolen and run off with two kilograms of cocaine in 1986 that belonged to a major narcotics distributor. According to Santos, the distributor approached her and demanded that she repay Ramos's debt by distributing drugs. When she said no, Santos claimed that the distributor threatened her and her children. The next day, the distributor picked up her older son at school and delivered him to Santos' home. Only then, Santos stated, did she begin to distribute drugs.
Soon thereafter, Ramos returned home and insisted that Santos continue to sell drugs. According to Santos, Ramos continually beat her and her children and threatened them with guns and knives. In September of 1988, Santos sought assistance for herself and her children from a center for battered and abused women. The center housed Santos in a confidential location in the Philadelphia area and obtained a court order for Ramos's arrest.
At trial, Santos called as a witness Dr. John O'Brien (Dr. O'Brien), a forensic psychiatrist with extensive experience in the treatment of battered spouses. Dr. O'Brien testified that he had examined Santos and had concluded that she suffered from Battered Woman Syndrome. One of the symptoms of this syndrome, Dr. O'Brien testified, is that the woman is unable to sever her relationship with the abusive husband. Dr. O'Brien also testified that Ramos's violence towards the children and his common law wife caused Santos to believe that if she stopped selling drugs the violence would only intensify.
In response to the duress defense, the government introduced tapes at trial that it had secretly made of Santos through another informant. These tapes, which provided the basis for the indictment against Santos, were recorded during the various cocaine sales that Santos was charged with having made. From these tapes, the government argued that the duress defense should be rejected because Santos did not sound as if she were an abused woman. The government did not attempt to disprove the instances of abuse Santos testified about, nor did the government introduce any expert psychiatric testimony of its own.
At the close of all the evidence, the district court informed the parties that it would submit the duress defense to the jury. In this appeal, Santos attacks the district court's duress charge, which we examine in detail below. Following its deliberations, the jury returned with a verdict of guilty on all seven counts of the indictment against Santos.
The district court sentenced Santos on May 4, 1990. During the hearing, Santos informed the district court that despite her cooperation with the authorities the government refused to file a motion for a departure below the Sentencing Guidelines range. Santos asked the district court to recognize her substantial assistance and depart below the Guidelines range. The district court declined to depart below the Guidelines range in the absence of a motion from the government. The district court sentenced Santos under the Guidelines to a prison term of 210 months. Santos has filed a timely notice of appeal.
We have appellate jurisdiction over the district court's final order of judgment and sentence pursuant to 28 U.S.C.A. § 1291 (West Supp. 1990) and 18 U.S.C.A. § 3742(a)(1) & (2) (West 1985 & Supp. 1990). The district court had subject matter jurisdiction pursuant to 18 U.S.C.A. § 3231 (West 1985).
To the extent that Santos properly objected to the district court's jury instructions, we review the instructions under the abuse of discretion standard. See United States v. Beros, 833 F.2d 455, 458 n.3 (3d Cir. 1987). To the extent that Santos seeks to raise on appeal errors in the jury charge that she did not call to the district court's attention, we review for plain error. See Fed. R. Crim. P. 30; Fed. R. Crim. P. 52(b); United States v. Wright, 921 F.2d 42, 46 (3d Cir. 1990); Beros, 833 F.2d at 458 n.3.
We exercise plenary review over the final two arguments that Santos raises, since both involve alleged due process violations arising out of the Sentencing Guidelines and their application in this case. See United States v. Cifuentes, 863 F.2d 1149, 1150 (3d Cir. 1988).
At the close of the evidence, the district court informed the parties that it would send Santos' duress defense to the jury. Santos had proposed a specific charge to the jury concerning the defense of duress, and the district court informed Santos' counsel that it had no problem with her suggested charge.
In her proposed charge, Santos asked the district court to tell the jury that she bore the burden of proving the elements of the duress defense by a preponderance of the evidence. See App. at 39. She then asked the district court to instruct the jury that if Santos met her burden, the burden shifted to the government to disprove duress beyond a reasonable doubt. See id. at 45. The proposed charge also noted that Santos could establish duress as a result of the threats made against her children. Id.
The charge that Santos proposed explained that the preponderance of the evidence standard meant that her burden was to prove that it was more likely than not that she had established the elements of duress. See id. at 39. The elements of duress as set forth in Santos' proposed charge were:
First, that at the time [she] did the acts alleged in the indictment, she was acting in response to an immediate threat of death or serious bodily injury to herself or her children;
Second, that [she] had a well-grounded fear that the threats would be carried out if she did not do the acts alleged in the indictment; and
Third, that [she] had no reasonable opportunity to escape the threatened harm.
App. at 41. Her proposed charge then proceeded to examine each element of the defense in more detail.
Counsel for Santos, in his closing argument to the jury, explained the meaning of preponderance of the evidence. He stated:
Members of the jury, preponderance of the evidence means, simply: Is it more likely that something happened than not? Sometimes lawyers and judges explain preponderance of the evidence to the jury by making the analogy to a scale, a simple scale; and they say, look at the evidence in favor of the proposition -- and in this case the proposition is, was [Santos] under duress or not; and then look at the evidence against that proposition. And then whichever side preponderates or tips, that is where you should abide your decision.
Supplemental Appendix (Supp. App.) at 10-11.
Despite the district court's earlier statement that it would give Santos' proposed charge to the jury, the district court did not deliver her suggested charge verbatim. See United States v. Goldblatt, 813 F.2d 619, 623 (3d Cir. 1987) ("It is, however, within the sound discretion of the trial judge to determine the particular language to be employed when charging the jury.").
While the district court instructed the jury that Santos carried the initial burden of proving the elements of the duress defense by a preponderance of the evidence, it did not define for the jury what "preponderance of the evidence" meant. Further, the district court did not tell the jury that threats of violence directed at Santos' children could support her duress defense. The district court did explain the meaning of the term "beyond a reasonable doubt" in connection with the government's burden to prove guilt and to disprove the duress defense if Santos met her burden to establish the elements of the defense.
When the parties briefed this appeal in our Court, Santos once again maintained that the initial burden with regard to the duress defense was hers to establish the elements of the defense by a preponderance of the evidence. In her brief, Santos concentrated upon the district court's failure to define "preponderance" and the district court's failure to instruct the jury that it could consider the threats against her children in connection with her duress defense. The government, in its brief, did not dispute that Santos had to establish the elements of ...