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United States v. Newman

United States District Court, E.D. Tennessee, Greeneville

March 17, 2017




         The defendant, Thomas Lee Newman, Sr., was convicted of four drug trafficking offenses after a bench trial before the undersigned. After the Court rendered its verdict, a sentencing hearing was scheduled and a presentence investigation report (“PSR”) was ordered. The PSR, disclosed to the parties on October 27, 2016, has been objected to by the defendant. The Court received evidence and heard argument on the objections on February 1, 2017. The government has filed a supplemental brief, [Doc. 103].[1] This memorandum opinion and order will address defendant's objections to the PSR.

         On September 9, 2015, a federal grand jury returned a four-count indictment charging the defendant, Thomas Lee Newman, Sr., a/k/a “Tree” in Count One with conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base (“crack”), in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count One), possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts Two and Four), and distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Three). On September 15, 2015, the United States filed an information to establish a prior conviction pursuant to 21 U.S.C. § 851, [Doc. 11]. The information alleged that, on January 11, 2001, the defendant was convicted “of the felony charges of Possession of Cocaine with Intent to Distribute, in case number. 00-0306-1, and of Drug Violation Within a Drug Free School Zone, in case number 00-0306-2, ” in the Superior Court of Berkshire County, Pittsfield, Massachusetts, and sentenced to 6-7 years, and 4-5 years, respectively. On October 6, 2015, the United States filed an amended information which deleted the second alleged conviction, i.e., in case number 00-0306-2. [Doc. 17]. A second amended information was filed by the government on February 16, 2016, [Doc. 46]. In the second amended information, the government realleged both of the Berkshire Superior Court convictions and additionally alleged a July 2, 1996 conviction in the Central Berkshire District Court, Pittsfield, Massachusetts, for “felony charges of Possession of PCP/Cocaine-Methamphetamine to Distribute, and Manufacture/Distribute PCP/Cocaine-Methamphetamine in case number 9627-CR-1318, ” resulting in a one-year sentence in the Massachusetts Department of Corrections.

         Pursuant to 21 U.S.C. § 841(b)(1)(A), a person convicted of a violation of § 841(a) is subject to a sentence of “not less than 10 years or more than life”; if the violation occurs “after a prior conviction for a felony drug offense has become final, ” then that same person is subject to a sentence “which may be not less than 20 years and not more than life imprisonment.” 21 U.S.C. § 841(b)(1)(A). If the violation occurs “after two or more prior convictions for a felony drug offense have become final, ” then the person “shall be sentenced to a mandatory term of life imprisonment without release.” Id. Section 851 provides that “[n]o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, . . . the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous conviction to be relied upon.” 21 U.S.C. § 851(a)(1). A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State . . . that prohibits or restricts conduct related to narcotic drugs, marijuana, antibiotic steroids, a depressant or stimulant substance.” 21 U.S.C. § 802(44).

         The PSR prepared by the probation officer concluded that the defendant is subject to a mandatory life term of imprisonment upon his conviction of Count One of the indictment. The probation officer also concluded that defendant is a career offender under USSG § 4B1.1(b) because defendant was at least 18 years old at the time of the instant offense, the instant offense of conviction is a felony controlled substance offense, and the defendant has at least two prior felony convictions of a crime of violence or a controlled substance offense. See USSG § 4B1.1(b); PSR at ¶ 27. As a result, defendant's offense level was increased to 37 from 30 and his criminal history category became VI, instead of III. [PSR at ¶¶27, 37-38]. The probation officer identified the 1996 convictions in the Berkshire Superior Court for felony drug offenses and an armed robbery/assault with a deadly weapon/assault and battery conviction in 2003 in the Superior Court of Berkshire County, Massachusetts, as the necessary predicate offenses. [PSR at ¶¶ 35, 36]. The United States filed a notice of no objection to the PSR, [Doc. 79]; the defendant, however, objects to the “accuracy” of paragraphs 27 and 34-38 of the PSR, [Doc. 84].

         In a sentencing memorandum filed before the sentencing hearing, the defendant “den[ied] the information” contained in the government's second amended information pursuant to § 851 and objected to the career offender enhancement under the Guidelines. [Doc. 88]. Upon filing of a written denial of the allegations of the information, [2] the Court is required to “hold a hearing to determine any issues raised by the response which could except the person from increased punishment.” 21 U.S.C. § 851(c)(1). On any issue of fact, the government has the burden of proof beyond a reasonable doubt. 21 U.S.C. § 851(c)(2). The government's burden of proof on the Guidelines objection is by a preponderance of the evidence. United States v. Moore, 161 F.2d 977, 984 (6th Cir. 1998) (citing United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir. 1989)). As noted above, the Court conducted a hearing on February 1, 2017, where it received documentary evidence and heard argument. The matter is now ripe for disposition.

         I. Applicability of Federal Rules of Evidence

         As an initial matter, the defendant argues that the Federal Rules of Evidence should apply in the proceeding insofar as his denial of the allegations of the § 851 enhancement go. He argues that the stricter rules of evidence which apply at trial ought to apply to § 851 proceedings because of the government's burden of proof beyond a reasonable doubt and he specifically objects to Exhibit 4, the affidavit of Joseph A. Pieropan, Assistant District Attorney for the Berkshire District, as hearsay. The issue appears to be a novel one in the Sixth Circuit.

         First of all, the Rules Of Evidence, by their explicit terms, do not apply to sentencing. Fed.R.Evid. 1101(d). Furthermore, Rule 32 of the Federal Rules of Criminal Procedure, which applies at sentencing, provides that the Court “must-for any disputed portion of the presentence report or other controverted matter-rule on the dispute . . ., ” but does not address specifically the standard for the admissibility of evidence at sentencing. Fed.R.Civ.P. 32(i)(3)(B) (emphasis added). The Sentencing Guidelines also contain certain provisions which relate to the resolution of disputed facts at sentencing; § 6A1.3 requires that, after giving the parties an opportunity to be heard and present information to the court, the court “may consider the 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.” USSG § 6A1.3(a). The Sentencing Commission specifically notes in the commentary to the Guidelines that “[w]ritten statements of counsel or affidavits of witnesses may be adequate under many circumstances, ” and that “use of the preponderance of the evidence standard is appropriate to meet due process requirements . . . in resolving disputes regarding application of the Guidelines to the facts of the case.” USSG § 6A1.3, com. Finally, generally speaking, the Sixth Circuit has observed:

“A sentencing hearing . . . is not a criminal trial, and many of the constitutional requirements of a criminal trial do not apply at sentencing.” United States v. Hamad, 495 F.3d 241, 246 (6th Cir. 2007). Thus, it is well established that neither the rules of evidence nor the right to confront witnesses applies at sentencing. Id.; United States v. Brika, 487 F.3d 450, 457 (6th Cir. 2007). “Congress prefers the inclusion rather than the exclusion of information at sentencing, see 18 U.S.C. § 3661 (‘No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.') . . . .” Hamad, 495 F.3d at 246.

United States v. Christman, 509 F.3d 299, 304 (6th Cir. 2007).

         None of this, of course, answers directly the question of whether the Rules of Evidence should apply at a sentencing proceeding such as one under § 851 where the government has the burden of proof beyond a reasonable doubt. Counsel for defendant has referred at oral argument to one case from the District of Maine, one found also by the Court in its own research. In that case, Judge Hornby was confronted with a situation very much like the one which now confronts this Court. In that case, the court noted that “it is not clear whether th[e] exclusion [of Rule 1101(d)(3)] applies to the unique statutory proceeding created by 21 U.S.C. § 851, with a specified different burden of proof.” United States v. Jones, 671 F.Supp.2d 182, 183 (D. Maine Nov. 17, 2009). Also noting the lack of case law that addresses the issue, the court assumed, but did not decide, that the Rules of Evidence apply. Id.

         Although the Court has found no Sixth Circuit or other circuit courts of appeal cases addressing the evidentiary standard in § 851 hearings, the Court has located two other district court cases, one in the Sixth Circuit, which are on point. In United States v. Ingram, Judge Bennett considered whether the Federal Rules of Evidence apply, despite Rule 1101(d)(3)'s provisions, “to a statutory scheme for proof of a prior conviction imposing a ‘beyond a reasonable doubt' burden of proof, even if such proof is made in the context of a sentencing hearing.” 613 F.Supp.2d 1069, 1093 (N.D. Iowa, 2009). While acknowledging that the court had “found no decision of any federal court expressly holding that the Federal Rules of Evidence are applicable to proceedings under § 851, ” the court nevertheless held that

when Congress mandates that the prosecution must prove something beyond a reasonable doubt, the implication, or the reasonable assumption, is that such proof requires compliance with the Federal Rules of Evidence. When Congress places the highest burden of proof in our legal system on the prosecution, with that burden should come the concomitant of the highest standard for admissibility of the pertinent evidence.

Id. at 1093-94. Judge Cohn also faced the same issue in United States v. Sills, 692 F.Supp.2d 792, 799-800 (E.D. Mich. 2010). That court found the analysis by Judge Bennett in Ingram persuasive and likewise considered only evidence offered by the government that was admissible under the Rules of Evidence.

         As noted above, the Sixth Circuit has not directly addressed the question of whether the Rules of Evidence apply in a § 851 proceeding. The Circuit has, however, considered and decided an issue that is instructive on the one before the Court. In United States v. Darwich, the Sixth Circuit considered whether the Rules of Evidence applied at sentencing “when Apprendi requires the district court to find the drug quantity beyond a reasonable doubt.” 337 F.3d 645, 656 (6th Cir. 2003). The court noted that it had “repeatedly held that hearsay is permissible at a sentencing hearing so long as it has some minimum indicia of reliability, ” and that Federal Rule of Evidence 1101(d)(3) provides that the Rules of Evidence do not apply at sentencing hearings. Id. However, because specific drug quantities must be proved beyond a reasonable doubt in order to sentence a defendant pursuant to the enhanced-sentencing provisions of 21 U.S.C. § 841, the court concluded that the Rules of Evidence should apply when the district court is required to make a finding beyond a reasonable doubt. Id. Although the prior convictions at issue here are not elements of the offense like drug quantity, and need not be submitted to a jury, Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Court finds the rationale of Ingram and Sills persuasive and the holding of Darwich to apply with equal force here. The Court holds, therefore, that when § 851 imposes a beyond a reasonable doubt standard, it is implicit therein that the more formal Rules of Evidence should likewise apply.

         II. The Section 851 Information

         A. The July 2, ...

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