The opinion of the court was delivered by: VAN ANTWERPEN
The present memorandum addresses issues arising during sentencing of Corrections Officers Torok and Blount for their role in a large conspiracy headed by inmate Charles Pernell Riddick to bring in and distribute drugs inside the former and new facilities of Lehigh County Prison, Allentown, Pennsylvania. A total of eight persons were charged in the overall conspiracy.
Of primary concern throughout several hearings has been the drug quantities attributable to Defendants Officer Torok and Officer Blount. We have also addressed drug distribution activity in proximity to a school; possible downward adjustment for acceptance of responsibility; enhancement for obstruction of justice; average drug quantity brought into the prison per day by the conspiracy; and Defendants' time involved in the conspiracy.
We received guilty pleas from Officers Joseph Torok and Daniel Blount on May 8, 1995, immediately before their jury trial was scheduled to begin.
Some seven months after his plea of guilty, Officer Blount sought to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 32(e). We also address our denial of his motion in detail below.
At a sentencing hearing on August 23, 1995 we heard testimony and argument regarding the proximity of the drug transactions to school property. We ruled that the distribution of drugs did take place within 1000 feet of a school as noted in the presentence report. Additionally Defendants Officer Torok and Officer Blount at that time conceded their abuse of a position of trust and the two point enhancement it entails. The government wished to rely upon the extensive trial testimony to establish the quantities of drugs which were attributable to each defendant. At the request of the defense, we granted a continuance to allow the defense to review the trial testimony and cross-examine the trial witnesses at a later sentencing hearing.
At a further sentencing hearing on November 30, 1995 we heard testimony to determine the quantity of drugs that the defendants were involved with during the conspiracy. We reaffirmed our prior ruling relating to distribution within 1000 feet of a school and ruled that the defendant should receive a two level increase and no downward adjustment for acceptance of responsibility. We further found that Defendant Officer Torok had perjured himself at an earlier suppression hearing and found him subject to a two-level enhancement for obstruction of justice. We directed that the Probation Office prepare a memorandum to supplement the presentence report with regard to the issues of the quantity of drugs attributable to each defendant. We set a final sentencing hearing for January 3, 1996. However, this hearing had to be continued because of Defendant Officer Blount's pro se motion to withdraw his guilty plea.
II. FINDINGS AND DISCUSSION RE SENTENCING
Defendants are charged with a violation of 21 U.S.C. § 860, distribution of drugs near a school. Specifically, the statute prohibits "distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising [a school, playground, etc.]." The relevant distance is between the actual point of possession and the school property line, not the shortest distance between the two relevant property lines. See U.S. v. Haynes, 881 F.2d 586, 591 (8th Cir. 1989), cert. denied, 506 U.S. 898, 113 S. Ct. 279, 121 L. Ed. 2d 206 (1992). The distance is measured "as the crow flies" and not as a pedestrian would walk. U.S. v. Johnson, 310 U.S. App. D.C. 249, 46 F.3d 1166, 1169 (D.C. Cir. 1995). See also U.S. v. Clavis, 956 F.2d 1079, 1088 (11th Cir. 1992), cert. denied, 504 U.S. 990, 112 S. Ct. 2979 (1992) and 113 S. Ct. 1619 (1993)("The statutory distance must be measured by a straight line method rather than a pedestrian travel route"); U.S. v. Watson, 887 F.2d 980, 980-81 (9th Cir. 1989)(adopting a method other than "as the crow flies" would create uncertainty in the statute, generate needless debate, and thwart statute's purpose of creating "a readily ascertainable zone of protection."); U.S. v. Ofarril, 779 F.2d 791, 792 (2d Cir. 1985)(per curiam), cert. denied, 475 U.S. 1029, 106 S. Ct. 1231, 89 L. Ed. 2d 340 (1986)(measuring distance by pedestrian route rather than by straight line would be "a tortuous reading [that] would violate the plain meaning of the statute."); U.S. v. Robles, 814 F. Supp. 1249, 1251 (E.D.Pa.), aff'd 8 F.3d 813 and 8 F.3d 814 (1993); and U.S. v. Rodriguez, 961 F.2d 1089, 1095 (3d Cir. 1992)("schoolyard statute applies to a defendant who possesses drugs within 1000 feet of a school with the intent to distribute those drugs at any location")(emphasis added).
At the sentencing hearing on August 23, 1995, we heard testimony that Pod 2C of the new Lehigh County Prison is located within 1000 feet of the Allentown Central Catholic High School parking lot, a lot that was used for school activities. We also heard testimony that the entire old jail facility
was within 1000 feet of a building used by Lehigh County Community College, a school of higher education. The government also pointed out that distribution activity relating to placing drugs into Officer Blount and Officer Torok's vehicles occurred in the home of Ms. Theresa Cordero, at 408 Chestnut Street, Allentown, Pennsylvania. At the August 23 hearing it was shown that 408 Chestnut Street is within 1000 feet of the Allentown Central Catholic High School building itself. In light of this testimony, we concluded that Officer Blount and Officer Torok were both subject to the two point enhancement for violating 21 U.S.C. § 860. We found little merit in Defendants' argument that because it was not proven that any class or other school activity was actually held on the specific portion of the school's parking lot that falls within the 1000 foot line, Defendants should therefore not be found in violation of the statute. The aim of the statute is to create an absolute zone of safety where drug activity should never occur. It would be inappropriate for us to amend or second guess the statute's plain language which clearly mandates the two-point enhancement.
B. Acceptance of Responsibility.
With respect to Officer Torok, the Government sought a two-point enhancement for obstruction of justice and asserted that Defendant does not warrant a reduction for acceptance of responsibility. On November 30, 1995, we adopted paragraph 66 of the Presentence Investigation recounting Officer Torok's statements at his suppression hearing on pretrial motions of May 4, 1995. Specifically, we determined that those statements -- made under oath and alleging that the arresting case agents directed Officer Torok what to say at the time of his arrest -- amounted to perjury. We found that a two-level enhancement for obstruction of justice was therefore warranted.
With respect to acceptance of responsibility, we considered, among other things, a letter dated July 27, 1995, submitted through defense counsel, of Officer Torok's version of his offense. In that letter, Officer Torok claimed: not to have known the contents of the package Mr. Krause asked him to bring into the prison; not to have been willing to bring alcohol into the jail (although later succumbing due to threats to damage his vehicle); and to have felt intimidated by Pernell Riddick Sr. into bringing a package into the jail. Officer Torok summarily denied his involvement "in the whole conspiracy of bringing drugs into the prison." On November 30, 1995, we adopted the testimony of Douglas Krause and Theresa Cordero detailing Officer Torok's extensive involvement in smuggling drugs into the prison. We explicitly found further that Officer Torok had not truthfully provided to the Government all information necessary to limit applicability of a statutory minimum pursuant to U.S.S.G. § 5C1.2, assuming it became relevant. We now fully adopt paragraphs 67-73 from the Probation Office's Presentence Report which clearly show Officer Torok's version of the offense he committed is not comparable to the involvement outlined by Theresa Cordero and Douglas Krause. Paragraph numbers 72 and 73 state in their entirety:
Section 3E1.1(a) of the Guidelines allows for a two-point reduction in the offense level if the defendant clearly accepts personal responsibility for his offense. Section 3E1.1(b) states, "If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant assisted in the investigation or prosecution of his own misconduct by taking one or more of the following of the following steps: (1) timely providing information to the government concerning his own involvement in the offense: or (2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the Court to allocate its resources efficiently, decrease the offense level by one additional level."
Despite the defendant's statement, pursuant to Application Note 1(a) of § 3E1.1 of the guidelines, since the defendant may have perjured himself at his pretrial suppression hearing on May 4, 1995, the defendant did not truthfully admit his conduct comprising the offense of conviction and did falsely deny relevant conduct for which he is accountable, further, pursuant to Application Note 4, § E1.1, "conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct". Finally, the defendant pled guilty on May 8, 1995, in open court while the jury for his trial was being selected. Based on these factors, specifically, the defendant's obstructive behavior, the probation department has found that the defendant is not entitled to a reduction for acceptance of responsibility.
We therefore conclude that Officer Torok has in no significant way accepted responsibility for his pervasive role in the Riddick's drug-smuggling conspiracy. Defense counsel for Officer Torok argues that finding Officer Torok not qualified for a two-point reduction for acceptance of responsibility and yet qualified for a two-point enhancement for obstruction of justice amounts to double counting by the Court. We agree with the government's position at sentencing on November 30, 1995, that this is precisely what the guidelines -- by maintaining separate but overlapping categories -- require. See U.S. v. Scurlock, 52 F.3d 531, 540 (5th Cir. 1995), cert. denied, 115 S. Ct. 344 (1994)(each enhancement targets different aspects of a defendant's behavior); U.S. v. Jackson, 25 F.3d 327, 332 (6th Cir. 1994)(where defendant is unable to demonstrate that he assisted the authorities, owned up to his criminal behavior, or otherwise accepted responsibility, he fails to carry his burden of proof entitling him to a sentence reduction).
With regard to Officer Blount, On November 30, 1995, we accepted the testimony of Shannon Sicher and Nigel McFarlane which, in addition to their testimony at trial, detailed Officer Blount's extensive involvement in the conspiracy headed by the Riddicks. Both witnesses stated that Officer Blount was known among the inmates for bringing drugs into the prison. Ms. Sicher testified that Officer Blount was the officer on duty when she had screen room visits with Mr. Riddick. Ms. Sicher also testified she slipped drugs under the door to the utility closet during those visits where other inmates would be waiting to retrieve them. Also at the November 30 hearing, Mr. McFarlane detailed Officer Blount's specific efforts to deliver drugs to him from outside the prison. In comparing this testimony with the admissions made by Officer Blount, we concluded, in full agreement with the Probation Office's presentence report, that Officer Blount to date has revealed only a very small part of his participation in this drug conspiracy. We therefore found that, as with Officer Torok, no downward adjustment for acceptance of responsibility for Officer Blount was warranted.
On November 30, we stated our tentative conclusion that Defendant Officer Blount's period in the conspiracy ran from March 1992 through March 1994. After thorough review of the tape transcript on which the government relied to attain the March 1992 starting date, we now adopt the more conservative October 1992 date as the beginning of Officer Blount's involvement in the conspiracy. This decision reflects our ambiguity as to the statement made in March 1992 by Riddick Sr. to his brother and including reference to "Pipe," Officer Blount's nickname.
D. Conspiracy -- Drug Quantity
From the moment we accepted Officer Torok and Officer Blount's guilty pleas, there has been little question that defendants are responsible for the amounts they personally brought in to the jail facility. The principal issue for sentencing purposes is the quantity of drugs to properly attribute to them from the overall drug conspiracy.
On August 22, 1995 at the sentencing hearing for inmate Charles Pernell Riddick Sr. and inmate Charles Pernell Riddick Jr., we adopted the probation office's report which explicitly found:
The defendant was involved on a daily basis in smuggling and distributing cocaine and marijuana within the Prison from July, 1988 through March, 1994 (approximately 2,097 days). It is conservatively estimated that during this time period, the defendant was involved with at least 3.5 grams cocaine and 14 grams of marijuana per day. Accordingly, it is estimated that a total of 7.33 kilograms of cocaine, and 29.33 kilograms of marijuana can be attributed to the defendant as a result of his participation in the conspiracy.
Presentence Investigation Report for Charles Pernell Riddick, Sr., at 12 (emphasis added).
At the sentencing of inmates Charles Pernell Riddick, Sr. and Charles Pernell Riddick, Jr. on August 22, 1995, we stated:
The findings as to both Riddick, Sr. and Riddick, Jr. in the Pre-Sentence Reports are conservative estimates. I believe they are correct and I do adopt the findings of the probation officer in that regard and I of course, again, have also heard the trial testimony and under Collado, I have made a searching inquiry as to rule under Collado. Nevertheless, it becomes necessary to make certain estimates. Conservative and reasonable estimates have been made, I believe, in this case by the probation officer and I adopt those as the findings of the Court.
On November 30, 1995, we directed the probation officer to revisit those quantities to see if they were or were not supportable in the case of Officer Blount and Officer Torok.
On November 30, 1995, we also tentatively sided with the Government's position "that a prison guard, because of his unique status as a facilitator, can be responsible and would be responsible in a jointly undertaken criminal activity for those quantities that came in on the days that he was working during a period of time that he was a member of the conspiracy." The Probation Office was directed to recalculate the guideline sentencing range according to two additional methods: first, attributing to the guards the daily average from the time they became involved in the conspiracy until they ceased to be involved, regardless of whether they actually worked those days; and second, attributing to the guards the daily average for the conspiracy for the days they worked.
The Probation Office concluded in a December 15, 1995 addendum to the presentence report, that attributing the daily average
for every day of the guards involvement in the conspiracy resulted in a base offense level of 26 for Defendants Officer Torok and Officer Blount. If instead the attribution was based on the actual number of days the guards worked, the base offense level for Defendants Officer Torok and Officer Blount was still 26. In contrast, if only the amounts they personally brought into the prison or otherwise controlled were attributed to them, Defendants Officer Torok and Officer Blount would both receive a base offense level of 20.
At the sentencing hearing on November 30, 1995, attorney Donato argued that the government had proven amounts meriting a guideline sentencing of level 8 (zero to six months) for Officer Blount. This rationale would hold Officer Blount responsible solely for the amounts of drugs he personally brought into the Prison. Similarly, counsel for Officer Torok asserted that Mr. Torok should be held accountable solely for the two packages he personally delivered to inmate Charles Pernell Riddick, Sr. and the four packages he personally delivered to Douglas Krause.
As we explain in detail below, we are unpersuaded by this argument. Because we conclude that Corrections Officers Torok and Blount's role in the drug conspiracy was critical to its overall success, we hold them commensurately responsible for their co-conspirator's drug activities. That conspiracy, as determined by the Probation Office, brought an overall total of 7.33 kilograms of cocaine and 29.33 kilograms of marijuana into the Prison over a period of 2,097 days, or a daily average of 3.5 grams of cocaine and 14 grams of marijuana per day. See Presentence Investigation Report for Charles Pernell Riddick, Sr., at 12. As we explain thoroughly below, we find Officers Torok and Blount responsible as full members of the conspiracy for that same daily average during their lesser period of involvement in the conspiracy.
In their Memorandum Regarding Relevant Conduct, filed December 15, 1995, Defendant Officers Torok and Blount argue that their failure to report the existence of drugs in the prison cannot seriously be argued to be the legal sine qua non to the life of the conspiracy. On the contrary, they argue, these drugs were entering from so many different points of entry involving so many different individuals that, in addition to the lack of a legal duty, there is no causative, "but for", connection. Again, we find this argument totally without merit. As we conclude below, it was precisely these Corrections Officers' involvement that allowed the conspiracy to survive and flourish. But for their failure to report and put an end to the drug transactions occurring all around them -- transactions they knew about and in which they personally participated -- this conspiracy would have met an early and appropriate end.
The Sentencing Guidelines direct sentencing courts to determine a defendant's base offense level by considering:
in the case of a jointly-undertaken criminal activity a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly-undertaken criminal activity, that occurred in the commission of the offensive conviction, in preparation for that offense or in the course of attempting to avoid detection or responsibility for that offense. (emphasis added).
U.S.S.G. § 1B1.3(a)(1)(B). The Third Circuit has recognized, "the provision directs the sentencing court to include in the base offense level certain amounts in addition to those amounts the defendant was convicted of distributing. U.S. v. Collado, 975 F.2d 985, 990 (3d Cir. 1992)(emphasis in original).
The standards for accomplice attribution at sentencing are different than those for determination of complicity in the conspiracy itself. As the Collado court stated:
Specifically, the note instructs courts to assess accomplice attribution by determining whether the co-conspirator's conduct was "in furtherance of the...jointly undertaken...activity " (as opposed to the conspiracy as described in the count of conviction), "within the scope of the defendant's agreement," and "reasonably foreseeable in connection with the criminal activity the defendant agreed to undertake."
Collado, 975 F.2d at 991 (emphasis in original). See also, U.S. v. Scurlock, 52 F.3d 531, 539 (5th Cir. 1995); U.S. v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993), cert. denied, 114 S. Ct. 1086 (1994); U.S. v. Becerra, 992 F.2d 960, 966 (9th Cir. 1993)(under guidelines, each conspirator may be sentenced only for the quantity of drugs that he reasonably foresaw would be distributed or that fell within the scope of his own agreement with the coconspirators); U.S. v. Gilliam, 987 F.2d 1009, 1012 (4th Cir. 1993); U.S. v. Jones, 965 F.2d 1507, 1517 (8th Cir. 1992), cert. denied, 506 U.S. 924, 113 S. Ct. 346, 121 L. Ed. 2d 261 (1992). The Collado court concluded:
Whether a particular defendant may be held accountable for amounts of drugs involved in transactions conducted by a co-conspirator depends upon the degree of the defendant's involvement in the conspiracy and, of course, reasonable foreseeability with respect to the conduct of others within the conspiracy.
Collado, 975 F.2d at 992. The Third Circuit provides sentencing courts with clear directions concerning how to conduct the proper analysis.
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.
Collado, 975 F.2d at 995. See also U.S. v. Conkins, 9 F.3d 1377, 1387 (9th Cir. 1993);
We are faced with a difficult determination. As we stated previously on August 22, 1995 at the sentencing for the Riddicks, "Drug organizations do not follow the organizational charts of the American Management Association." We can not simply determine the Defendants' ranks in the distribution organization by their titles and calculate attribution accordingly. We have received testimony as to Defendants involvement in the Riddick's conspiracy. Specifically we have the testimony of Douglas Krause concerning Officer Torok's agreement to prevent discovery of contraband in the event Krause's cell was searched. Similarly, with respect to Officer Blount, we have the testimony of Shannon Sicher that Officer Blount was on duty during several of the occasions she slipped drugs under the door of the screen visit room, to be picked up by other members of Mr. Riddick's organization.
We are ever-mindful of our obligation to conduct a searching inquiry under U.S. v. Collado. As the Collado court itself recognized, it becomes necessary to make certain estimates. See also, U.S. v. Paulino, 996 F.2d 1541, 1545 (3d Cir. 1993), cert. denied, 114 S. Ct. 449 (1993), (recognition of the need to estimate is not a license to calculate by guesswork. Sentencing court must carefully scrutinize government's proof).
On August 22, 1995, we adopted the probation officer's "conservative and reasonable estimates" for the amounts of drugs coming in to the jail facility on a daily basis as 3.5 grams of cocaine and 14 grams of marijuana per day. We conclude that the most sensible and logical method of calculating the quantities for which Defendants Officer Blount and Officer Torok are to be held accountable is to multiply the daily average by the time period of their involvement in the conspiracy. This is done in recognition of our conclusion, discussed below, that the role played by Defendants Officer Blount and Officer Torok was more than incidental. Rather, it was crucial to the very existence and survival of the conspiracy. As the Collado court concluded:
We recognize that in calculating the amounts in drug transactions, some degree of estimation must be permitted, for the government usually cannot seize and measure all the drugs that flow through a large drug distribution conspiracy. This is not to say that the calculations of drug amounts may be based on mere speculation, however. Given the dramatic effect such estimates have on the defendant's sentence, the sentencing court must carefully review the government's submissions to ensure that its estimates are proven by a preponderance of the evidence.
Defendant Officer Joseph Torok jointly undertook to perform at least two important roles in the drug conspiracy: (1) to personally smuggle drugs and drug paraphernalia into the Prison on a regular basis; and (2) to help conceal and protect the conspiracy by violating his duties as a correctional officer by helping inmates such as Krause to avoid discovery of contraband and by not reporting his own and others' drug trafficking to prison authorities, as he was required to do.
The trial testimony shows that Officer Torok smuggled drugs into the Prison regularly from September, 1991 through April, 1992. As would be expected in a unique environment such as a prison, Officer Torok's reputation for drug smuggling was well known among inmates. By early January of 1992, inmate Ronald Martin told inmate Douglas Krause that Officer Torok was "the guy that brings the drugs in." In late December or early January of 1992, inmate Ronald Martin told Douglas Krause that Officer Torok would smuggle drugs in for prisoners. Krause then told Officer Torok that Krause had heard of Torok's drug smuggling reputation:
So I went and talked to Joe Torok about it. I asked him, I said that, you know, I've been around a little bit and I heard that he'll bring a package of drugs in for a certain amount. You know, I didn't mention no price at the time, but he said, "Yeah, I'll do that." And I said, "Well, what'll it cost me, $ ...