United States v. Dale M. Hendrickson

con- A reasonable officer who found improper when it was cans. that was seizure cans, probable plaintiffs cause. cannot furnish stove and and who heard ducted them, implausible explanation possessing arrest claim way, plaintiffs false In this probable would have believed that cause ex- through claim unlawful search introduces her plaintiffs isted arrest. alleged conduct door. Since the back cause) (arrest probable does violate a without urges us to right, plaintiff scru-

constitutional CONCLUSION probable giving acts rise to tinize all of the reasons, foregoing For the the decision of (including the seizure of the stove cause granting appellees judg- the district court cans) pre-existing milk under law. See ground ment as a matter law 639, Anderson, at 107 S.Ct. at 3038 483 U.S. qualified immunity is affirmed. (conduct light must be “assessed ‘clearly established’ at legal rules that were taken.”). it was

the time analysis, could plaintiffs an officer

Under qualified immunity for a sei entitled to for an arrest yet be hable

zure nevertheless approach, That

resulting from that seizure.

however, competing none of the advances immunity qualified doc goals served America, UNITED STATES an Holding Troopers hable for

trine. Plaintiff-Appellee, objectively be unreasonable arrest deemed in retro it is based on a seizure that cause would not spect arguably constitutional HENDRICKSON, Dale M. “un adequately pubhc insulate officials from Defendant-Appellant. with their duties and due interference No. Docket 92-1386. liability.” disabhng threats of

potentially Harlow, at 2733. 102 S.Ct. U.S. Appeals, Court of United States liability unlawful ac would such deter Nor Second Circuit. here, tions, complained the action since of— pretex- through a plain view seizure effected Argued Dec. become lawful. Final tual search —vail have 13, 1994. Decided June compen ly, recovery by plaintiff would not action”, “unlawful since a “victim” of an sate was not in that the action

we now understand —Elder, at - U.S. fact unlawful. See

-, Accordingly, at 1022-23. we 114 S.Ct. Troopers are entitled

hold that because seizure, immunity for the qualified a false ar cannot form the basis of

seizure 1983, irrespective pre claim under

rest

existing law. if view the seizure under

Even we were to Troopers it existed

the law as qualified nevertheless be entitled

would noted

immunity arrest claim. As on the false clearly

above, had not Supreme Court necessary ele- as a

established inadvertence plain seizure. There- of a view

ment lawful

fore, have believed officer could a reasonable provided a lawful plain view doctrine

that the and the milk seizing the wood stove

basis for City, for New York Sporn, H.

Michael defendant-appellant. Jr., Okula, Stanley Norling, J.

Peter A. (Andrew J. Malo- Attys., E.D.N.Y. Asst. U.S. counsel), E.D.N.Y., Atty., ney, U.S. appellee. WINTER, Judges, OAKES, Circuit

Before SOTOMAYOR, Judge.* * designation, Judge Sotomayor, United States Sonia Honorable York, sitting by of New the Southern District

SOTOMAYOR, Judge: District ceiving tip Spence from informants Dave (“Lee”) (“Spence”) and Davis Lee that Hen- (“Hen- M. Defendant Dale searching drickson was for means of trans- drickson”) appeals judgment a final from the porting large quantities Nige- of heroin from United States District Court for the Eastern ria to New York. Lee introduced Hendrick- York, following jury District of New trial (“York”), son to Ken York a Customs infor- Johnson, Sterling Judge, convicting before mant, posed who corrupt pilot willing as a him of one count of to distribute fly Nigeria heroin from to New Dur- York. possess with intent to distribute ex- meetings, their first two heroin, kilogram cess one violation of explored proposed Nigerian importation 841(b)(l)(A)(i) (1990); §§ 21 U.S.C. and 846 scheme with York. after these two substantive counts of distribution of her- discussions, early away Hendrickson backed possession oin and with intent to distribute plan, from the eventually and admitted to heroin, 841(a)(1) §§ in violation of 21 U.S.C. York that Nigerian his contacts had no inter- 841(b)(1)(C) (1990); and two counts of distri- pursuing est in magnitude a deal of that bution of heroin within one thousand feet of a Indeed, him. most of Hendrickson’s discus- school, public in violation of 21 U.S.C. during approximately sions with York 845(a) 845(a)(1) (1990); §§ and one count two-year period centered around Hendrick- receiving in interstate commerce firearm son’s export quantities idea to much smaller number, with an obliterated serial in violation of heroin to Bermuda and sup- his efforts to 922(a)(1)(B) (2), §§ of 18 U.S.C. ply York with Despite ounces of heroin. his 922(k) (1990). The district court found that initial quanti- claims of access to substantial import Hendrickson intended to 50-60 kilo- heroin, ties of ultimately Hendrickson grams Nigeria, of heroin from and set Hen- only heroin, able to make two sales of total- drickson’s base offense level at 38. The ling grams, to York. (4) court then four points added for Hen- (5) drickson’s role as a leader of five or more Nigeria Importation A. The Discus- (2) people, points possession two of a nine sions (2) handgun, points millimeter and two Meeting 1. The First perjury, bringing the offense level to 46. Judge Johnson sentenced Hendrickson to life February On Customs informants imprisonment count, on the Lee, Spence, and York met with Hendrickson months each of the two substantive distri- brother, Hendrickson, and his Mark at counts, bution 480 months on each of the two York’s undercover offices. At this video- counts of distribution within one thousand taped meeting, parties discussed the fea- school, public feet of a and 120 months on the sibility of proposed plan Hendrickson’s appeal, firearms count. On Hendrickson import Nige- 50-60 of heroin from principally contends the district court ria to the by private United States aircraft. application erred in its of the federal Sen- Hendrickson Nigerian claimed that his con- Guidelines”) tencing (“Sentencing Guidelines tact keys,” had “like a thousand and used and that the right district court violated his flying “mules” —couriers commercial airlines speedy to a trial. who carried heroin in or on their bodies or luggage smuggle their heroin into the below, For the reasons discussed we affirm —to country. Hendrickson told York conviction, that his but vacate the sentence and contact was interested in alternate means of remand for resentencing.

exporting States, heroin the United since I. frequently BACKGROUND authorities intercepted airports. “mules” Hendrickson’s conviction was a result of a nearly two-year joint investigation by the meeting The bulk of the was devoted to (“Customs”) United States Customs types Service discussions about the of aircrafts that Drug and the potentially used, Enforcement Administration could the time York re- (“DEA”). In January quired Customs and arrange trip Nigeria, various DEA investigation commenced their flight logistics after re- expenses, proposed and a York, plan. York demanded a time-table for the heroin to York. concerned that piloting profits cut in the for his backing one-third Hendrickson was off Nigeria services, telling Hendrickson that his interest plan, protested that a six ounce deal was too operation solely on its small, was based stating “[a]ny operate, time I I promise large amounts of heroin. Later operate big.” get York tried to the conversa- discussion, explained during the Hendrickson Nigeria plan, tion telling back to the Hen- planned the heroin ob- he distribute drickson, thought [you] fifty “I wanted like Nigerian project tained from the the Unit- keys or somethin’ that.” like Bermuda, ed States and where he and his however, explained, piloting that York’s ser- already brother had a distribution network in unnecessary vices were at that time because place. providing suppliers mule carriers were his with sufficient quantities heroin. Unde- meeting, At the conclusion of this Hen- terred, pressed York Hendrickson to intro- try drickson told York that he would to have Nigerian duce him to his contacts so that he Nigerian contact attend their next meet- importing could convince them that heroin plan. through- to discuss private via superior aircraft was not York, out his conversation with present method, mule-carrying their but also Nigerian was clear that his contact had not percent guaranteed.” “one During hundred yet agreed plan. to the Hendrickson advised conversation, the remainder of the York and Nigerian York that his contact had little ex- financing Hendrickson discussed various perience with “this kind of international propose ideas that Hendrickson could to the thing,” and that he and York would have to Nigerians. carefully proposal they research their before Nigerian agree could convince the to it. Meeting further contact

Hendrickson noted his 3. The Third maker, was not the ultimate decision and later, 18, 1989, April Two months York that, proposal, if even the contact liked their again, and Hendrickson met this time at an “verify” the contact would have to it with his airport. provided Hendrickson York with a “clique people.” sample inquired of heroin.1 York When Nigerian plan, about Hendrickson ex- Meeting 2. The Second plained smuggled continued to heroin later, days Four Hendrickson and York into carriers and New York mule there- met a time. Hendrickson told York second fore, piloting York’s services would not be Nigerian that he had with his contact met following exchange needed. The then took hours, contact over three and was place: “receptive” plan. According to Hen- you sayin[g]? you York: “So what are Are drickson, Nigerian import- dealers were cancelling telling you me that Africa?” kilogram one of heroin a week at the “why fly go Hendrickson: there and time, during and that the course of their the., thing through expenses ... when has meeting, guy” he and the “main had dis- right for me here.” been transferred options” “boggled” cussed “different which * * * “[W]hy fly way half around the “mind.” He also claimed that Hendrickson’s have the funds to world when we don’t guy” supplying the “main told him that added). go.” (Emphasis kilograms problem”. of heroin was “no How- ever, Hendrickson, according to the contact explained that Hendrickson further considered York’s demand of a one-third of “hold,” they Nigeria plan was on and profits excessive. money ... should “deal where O.K. this, agreed price, coming By Hendrickson was After York to lower his Hen- from.” operations in Bermu- quickly changed referring drickson the conversation to to his heroin in approximately plan use the funds raised his potential sale of six ounces da and his parties' sample. 1. Neither the record before us nor the heroin briefs, quantity purity indicated the of this to, date, phen Uchannaya operation (“Uchannaya”). Bermuda at some later York testi- Nigerian project. finance the fied that Hendrickson had identified Uchan- national, plan fly naya, Nigerian in invited York to invest this as an alternate kilograms supplier about ten of heroin from New of heroin. During meeting,

York to Bermuda. this subsequent meeting July At Nigerian Hendrickson mentioned that his expressed York his frustration with Hen- “Balogun.” contact was named delay Nigerian plan. drickson’s York 7, 1989, May On Hendrickson introduced complained that “the man come to me in who, Balogun York to ex- take, February. supposed to We take the uh plained, importing was heroin from Africa Nigeria get bring both to [heroin] through Kennedy Airport (“Kennedy John F. right.... it back nothing happen Then Airport”) City, pro- New York and could replied that.” Hendrickson that his contact’s duce amount of heroin York desired. trading” producing weekly “mule heroin The record before us does not indicate what Nigeria. negotiations, any, during if occurred August yet On York made anoth- meeting. attempt purchase er failed heroin from meeting, After this York and Hendrick- time, Hendrickson’s source. This Hendrick- drug dealings son’s turned to sales of small son and York travelled to a video store quantities. Although York continued to by Uchannaya. owned Hendrickson intro- pressure proceed Hendrickson to with the pilot willing fly large duced York as a Nigerian plan, Hendrickson retreated from quantities of heroin into New York. Uchan- idea, ultimately admitted that his naya informed York that he had access to Nigerian contact was not interested Thailand, an desired Nigerian importation plan. importation alternate method since some of parties his couriers had been arrested. The

B. The First Sale Heroin agreed day to meet the next so that York purchase grams could heroin and fur- On June Hendrickson and an (whom smug- ther discuss Hendrickson and York’s Tony individual named Hendrickson gling proposal. “lieutenant”) described as his met with York Armstrong and A1 (“Armstrong”), an under- day, the next when Hendrickson agent, cover DEA whom York introduced to called Uchannaya York to tell him that was potential Hendrickson as a purchaser of way heroin, on his with the York was unable quantities During small of heroin. this meet- buy money, to obtain the and the deal dis- ing, Hendrickson offered to sell York and spoke solved. When York and Hendrickson Armstrong six to seven ounces of heroin. day, complained later that Hendrickson that $40,000 York showed buy purchase York’s failure to the heroin had money promised supply and Hendrickson severely credibility weakened his with following day. heroin the Uchannaya. explained that Hendrickson, however, supply failed to my people “these are not I work with all the drugs. (sic) explained He later to York give that his time the don’t me that kind of supplier’s hold, mule quantity carrier had been you arrested understand what I’m Kennedy Indeed, Airport. (U/I)2 prior trying you? one month people to show .... The York, added). meeting Hendrickson’s June Later, with are (Emphasis new to me.” authorities had arrested a man named Sun- Hendrickson told York that he could not day Phillips Adenekan (“Phillips”) product after find- “deliver the because there’s none strapped body around,” heroin upon to his and that it was ... [that he] “better arrest, Nigeria. Phillips’ just arrival from At thing”. work on ... little [his] York agents DEA seized an address book from Nigerian reminded Hendrickson that containing him telephone project names and option, was still an and that Uchanna- Hendrickson, numbers of Balogun ya go and Ste- “would for the deal”. Hendrickson unintelligible portions refers to recorded "U/I” statements. wife, (“Catala- Uchannaya replied an “emer- that Marie Catalano Hendrickson source, inability go no”), gency” marina, and York’s Long to a Island where Hen- through planned purchase with the had deposited $42,000 drickson on a $1000 cash credibility Uchannaya. with strained their boat, speed telling York that he needed to they pursue Nigerian York insisted that capital raise additional complete pur- plan, asserting ready, willing that he was chase of the boat.4 proceed. Finally, able to Hendrickson ad- During marina, trip their to the York that an mitted he did have happened asked Hendrickson “[w]hat Nigerians, replying: with the guys?” African replied When Hendrickson trying say, people I am these “[W]hat returned, they suggested had York people you you say like this remember he and Hendrickson meet with them. Hen- bring say them over he look he don’t want responded, just drickson my “[l]et’s deal with nowhere, go nothing don’t want to know thing what, ... grams first About things go gradually all he wants as on better, ahm, three, six, things get you seven ounces.” would understand? one, I I going can’t make base how the hell month, Later Hendrickson advised added). (Emphasis to run to base three?” York leaving that he was for Bermuda to issue, press shifting York did not drug operations oversee his there and to purchase. conversation back to the failed He obtain funds to finance his heroin deals with inquired an whether alternate transaction ar- Bermuda, York. From Hendrickson sent ranged following for the week was still on. $6,000, totaling Catalano two checks which yet Emphasizing again experi- that he had no . she turned over to York. transactions, dealing large ence Hen- replied lucky enough drickson that he “was Following Bermuda, his return from Hen- time,” get quantity here one' and that drickson and his wife met with York to dis- proposed if he did not know the sale would drug cuss future During transactions. these place. take meetings, York insisted that Hendrickson Finally, August 1989—a full ten speak Nigerian to his connection about the investigation months after started and long-delayed importation plan. heroin Hen- provided five months after Hendrickson first if go drickson told York that he desired to sample York with a amount of heroin —Hen- plan, forward with the York would have to drickson and York consummated their first directly Nigerian. deal with the Hendrick- deal for one ounce of heroin.3 DEA labora- Nigerian son further stated that his contact tory analysis later revealed that this heroin area, would soon be and that purity. had 84% probably contact was not in im- interested porting fifty keys.” more “than about Hen- Operations C. The Bermuda Heroin drickson turned the conversation to his her- conversations, During one of initial their Bermuda, operations oin which he claimed Hendrickson told York that he wanted to very were successful. Hendrickson boasted purchase high-speed powerboat to aid his “people waiting that he had on in” the street operations. Bermuda heroin Hendrickson Bermuda,, and that he the whole ... “r[an] explained powerboat, his with brother every island”. He further claimed that “for pick up dropped Mark could heroin from gram.... half little five hundred U.S. dollars ships traveling cruise between New York and my goes ... into hand ... so one ounce is Bermuda. twenty-eight thousand dollars I make and nobody September, else have no market like no- drug after his first purchase, York drove Hendrickson and his where around.” $15,000 (28) equivalent twenty-eight early 3. One ounce is bile for October and made grams. $7,000 payment 'down on a in Jackson- home ville, following Florida that November. purchase speed 4. Hendrickson never did However, purchased Jaguar boat. he automo- boasts, Notwithstanding pro- his his numerous failed at- Despite Hendrickson’s tempts get “big moving, from New deal” York posed network heroin distribution again Nigerian project tried to revive the never materialized. No York to Bermuda 12,1990. Bermuda, was three months later on March York heroin sent to nor was Nige- urged proceed Hendrickson to with the currency returned to the United plan: ready go “I’m to Africa. You ria through piloting York’s services. keep telling going me to Africa. I’m we’re ready go going to Africa ... Are we D. The Second Heroin Sale Africa or not?” Later in the conversation from Through a series of conversations pressed “why you holding York further: 31,1989 15,1989, through November October n -. you why you procrastinating? Are back arranged supply to have Hendrickson York attempted afraid of success?” Hendrickson During him additional heroin. these times; subject York, change several discussions, Hendrickson told York that he however, persisted. Finally, Hendrickson supplied to several individuals heroin who anticipated they told York that he would locally. the heroin then resold up bigger be able to “hook deal” at some recently advised York that he had met with point, Nigerian pro- but remarked that the Africans,” “the who claimed to have 60 kilo- ject “easy” was not as York it made sound. However, grams heroin for sale. Hen- negotiated On November York York that “the drickson told Africans” were Hendrickson, purchase another heroin securing piloting not interested in York’s ser- this time for four ounces of heroin. York vices because York was American and did agent Armstrong arranged pick and DEA not have collateral. Hendrickson instead of- up the heroin from Hendrickson at home fered to sell York two ounces of heroin for following day. they when ar- $7,500 ounce; per agreed, York but ex- rived, them that Hendrickson told he had not pressed disgust seemingly over the failed yet sup- received the from his heroin African Nigerian plan. Deciding plier. any longer, not to wait sur- man, guy telling York: This he was agents placed veillance Hendrickson under gonna making money me we all this arrest, and searched his home. The search ... m yielded handgun a nine millimeter with its Hendrickson: I can’t do one little [I]f obliterated, serial number a loaded ammuni-. something, going how the hell am I balance; however, clip triple tion and a beam jump big project you into a like that and no narcotics were found. making people sup- have me who posed give thing. me the break on this II. THE TRIAL SPEEDY MOTION making go yo-yo. You’re them like a original indictment this action was Explain (Emphasis to me now. filed on November 1990. Hendrickson added). arraigned Judge Raggi before Reena 15, 1989, following day, on November 10, Superseding December 1990. indict- approximately Hendrickson sold York 1.7 2, February April ments were filed on 1 and heroin, ounces of which lab tests later Thereafter, pre-trial 1991. Hendrickson filed purity. showed had 79% 31, May Following motions on 1991. oral 16, argument August Judge Raggi on denied Unable to obtain more than small amounts all of the motions and determined that 62 Hendrickson, York, heroin from Janu- days Speedy remained under Trial Act. 1990, ary bypassed at- Hendrickson and challenge speedy Hendrickson does not tempted directly Balogun. to deal This up trial calculation to this date. however, backfired, attempt, and Hendrick- overture, 13, 1991, Johnson, September Judge son later scolded York for his On claiming Balogun reassigned, pre- that York had made ner- whom the case was held a vous, might during and that his actions frus- trial conference which have arrange requested Judge Raggi’s trated Hendrickson’s efforts reconsideration of “something big”. denying sup- earlier decision his motion to press tapes authenticity January 19, 1992, two whose Hen- from February 13 to when challenged. Judge drickson Johnson asked the co-defendant was lost in the Bureau of Hendrickson’s counsel whether Hendrick- system. Prisons request son’s should be treated as motion. Judge Johnson denied Hendrickson’s mo- should, Defense counsel stated that it tions and observed: that advised the motion for reconsideration Mr. Hendrickson cannot have it ways. both might require hearing. Judge Johnson He files motions and under the statute the request stated that he would treat as a time is tolled. He cannot file motions and motion and excluded the time for consider- cry then that he having speedy is not ation speedy of this motion from the trial trial. Judge briefing clock. also Johnson set a pa- schedule for defense counsel to submit Thereafter, proceeded the trial and resulted motion,5 pers support of Hendrickson’s in Hendrickson’s conviction. previously and rescheduled the trial date set by Judge Raggi September from 16 to Octo- III. SENTENCING 7, ber 1991. At sentencing 26, hearing on June Judge Because Johnson was unavailable on 1992, objected defense counsel presen- date, changed the trial date was from report’s proposed tence finding that Hen- Thereafter, October to November 5. de- conspired drickson to distribute between 50 unavailable, fense counsel was and the court kilograms of heroin and report’s adjourned 13, January the trial 1992. corresponding recommendation that Hen- pro- When Bureau Prisons failed to drickson be imprisonment. sentenced to life 13, January duce co-defendant Catalano on emphasized Defense counsel that Hendrick- by 1992 because of a transfer necessitated son had consistently throughout contended overcrowding, court moved the trial date the trial that he had lied to York about his February carry out the import scheme to 50- January On Hendrickson filed a Nigeria. of heroin from De- “Motion for Multiple Severance Due to Con- fense counsel further during noted that spiracies.” later, February A month twenty-two course of the investiga- month 1992, Hendrickson filed a motion to dismiss tion, only supplied Hendrickson had York Speedy indictment for violation of the heroin, grams with a total of 77 and after (“STA”). Trial Act Nigerian initial conversations about the Judge argument York, Hendrickson, plan, Johnson heard on Hen- it was who con- outstanding drickson’s February express motions on tinued to plan. interest Coun- hearing, 1992. At argued Hendrickson’s at- sel clearly further that the evidence torney argued period Judge that the repeatedly showed tried to Raggi’s August subject, 16 denials of ultimately Hendrickson’s avoid the admitted to until professed motions November when defense York “connections” were unavailable, periods willing engage counsel became were not in a transaction of the delay magnitude Nigerian to be excluded under the De- proposed STA. deal. facts, fense counsel claimed that the court should Based on these Hendrickson’s counsel ignored papers argued have filed a defendant the Government had failed to counsel, establish, represented by papers required by and that such former (1991), stopped speedy were not motions that Guideline 2D1.4 that Hendrickson challenged capability trial clock. Defense counsel also had the intent and 50- period kilograms the district court’s exclusion of the 60 of heroin. motion, speedy

5. The Government in its brief states that after the trial mentioned that he had re- conference, September papers concerning Hendrickson filed ad- ceived from Hendrickson his papers support Judge ditional of his motion for re- motion for reconsideration. also Johnson However, attorney having consideration. alluded to received various other motions Hendrickson’s us, did not. On the record before it is unclear or from Hendrickson. None of those motions although papers, except papers, speedy when Hendrickson filed his for the severance and trial motions, Judge hearing placed Johnson at the on Hendrickson's were in the record before us. that, countered under The Government IV. DISCUSSION 2D1.4, § Sentencing the de- former Guideline (1) appeal, On Hendrickson contends: proving the burden of that he fendant bore his should be vacated because the sentence intent to and was not reason- lacked finding district court erred in that he intend- kilograms ably capable producing of 50-60 of import kilograms 50-60 ed heroin heroin. The Government maintained Nigeria, considering without ever his detailed discussions about the Hendrickson’s (2) amounts; such and that his high-level purity Nigerian plan, the of the conviction should be reversed and the indict- to York and his access to well- heroin he sold Speedy ment his Trial Act dismissed because dealers, clearly drug demonstrated connected rights Though were violated. Hendrickson’s import capability both his intent and 50-60 Speedy groundless, Act Trial claims are we Nigeria. kilograms of heroin from sentencing challenge, find some merit determining quantity of narcotics below, and for the forth reasons set vacate the defendant’s base offense established resentencing. his sentence and remand for level, Judge Johnson focused on the initial conversations between Hendrickson and Calculating A. the Base Level Offense York, which, view, Judge Johnson’s “willingfness] pur- evinced Hendrickson’s Sentencing Guidelines establish sen- chase, airplane or rent an lease to travel tencing regime punishment which ties Nigeria pick up from the United States to quantity drugs narcotics crimes to the Sentencing Hearing Transcript heroin”. Sentencing involved. Former Guideline (“Tr.”) Concluding at that these conver- 2D1.4, § effect the time of Hendrick- sations demonstrated Hendrickson’s intent to sentencing,6 son’s directed district courts to heroin, kilograms Judge 50-60 drug set the conspira- base offense level for a government Johnson found that “the has cy conspiracy’s goal conviction as if the had 50, substantiated its claim that at least Specifically, been realized. former Sentenc- subject of heroin was the of the provided: § 2D1.4 Guideline conspiracy”. Judge summarily Id. Johnson Base Offense Level: If a defendant is con- argument dismissed Hendrickson’s that he conspiracy attempt victed of a or an capability lacked the these involving commit offense a controlled amounts, stating capable “I think he was substance, the offense level shall be the doing it.” Tr. at 24. The district court set object same as if the 38, adjusted the base offense level at and attempt completed. had been upwards eight points offense level for a final adjust- offense level of 46. drug conspiracy None these Where involved “uncom- appeal. pleted narcotics, ments are at issue in this Application distributions” of appeal pending, Sentencing parties agree, 6. While this son’s sentence. Both albeit for Sentencing reasons, Commission deleted Guideline different that this amendment should (1991), § 2D1.4 transferred much change present our decision in the We case. Commentary, including portion the relevant agree. merely The amendment before us under- Application Application Note Note 12 of holding capability scores our that the intent and 2D1.1, Sentencing § Guideline which sets forth inquiry Application set forth in Note 1 to former the base offense level for various substantive Sentencing part parcel § Guideline 2D1.4 is narcotics crimes. Amendment 447 to the United of the base offense determination. Guidelines, States al, Guidelines Manu- reject argu- we the Government's C, (effective Appendix 269-271 November ment that we could not consider Amendment 447 1992). phrase The amendment also added the inquiry. if it assisted our This amendment mere- "Attempt Conspiracy” heading of Sen- ly simplifies guideline provi- "clarifies and tencing accompanying Guideline 2D1.1. The dealing attempts conspiracies,” sions commentary states that Amendment 447 was de- prior and our consider, case law makes clear that we can signed to consolidate substantive and inchoate appeal, amendments that do not drug sentencing guideline. offenses under one substantially change Id. at 271. the Guidelines used at sen- Colon, tencing. United States v. 961 F.2d argument requested, At oral we and thereafter (2d Cir.1992); Perdomo, obtained, briefing parties additional from the (2d Cir.1991). to whether 116-17 Amendment affected Hendrick-

331 Sentencing 1 produce Note to former Guideline intended to capable nor was pro- of explained “weight § 2D 1.4 the under ducing that Noting amount. Appli- the first negotiation” set the base offense level. language exclusion, cation Note’s of the Gov- If the defendant is convicted of an offense ernment asserts that the capabili- intent and involving negotiation to traffic in a con- ty inquiry is tantamount to a downward de- substance, weight negoti- trolled the under parture mechanism for which the defendant uncompleted ation in an distribution shall proof. bears the burden of in- applicable be used calculate the amount. argues, stead explanation, without the eases, Application in such Note 1 prove Government must capa- intent and also directed courts to exclude from the base bility disputed amount of nar- drug offense calculation those amounts which cotics. the defendant neither intended to expressly We have never addressed wheth reasonably capable producing. nor was er the Government or the defendant bears

[W]here the court finds that the defendant Application burden the first Note’s did not intend to and was not capability intent and query. Other Circuits reasonably capable producing nego- question have addressed split. amount, tiated shall exclude from court The Sixth and analogize Ninth Circuit the calculation the amount that it finds the capability intent and inquiry evaluating defendant did not intend and was not rea- sonably capable producing. mitigating factor since a finding of lack of intent and capability reasonable ultimately Sentencing The Commission amended Thus, benefits the defendant. viewing the Application Note 1 to include this third sen intent capability inquiry as distinct from 136, tence in 1989. Amendment United “negotiated determination, amount” these Manual, Appen Guidelines Circuits have shifted (effective (hereinafter the burden to C, 1,1989) the de dix 64 Nov. 136”). prove fendant to lack of capability intent and “Amendment replaced This sentence proves once the language original Government Application negotiated 1 Note permitted Barnes, amount. departures which downward United States v. 993 F.2d (9th 680, Cir.1993); the offense level “[w]here defendant was 683 United States v. reasonably capable producing Christian, (6th 363, the ne Cir.1991), 942 F.2d —— gotiated amount.” denied, See Amendment 136. As U.S. -, 905, 116 cert. 112 S.Ct. accompanying commentary to Amend (1992); L.Ed.2d 806 United States v. Rodri explained, purpose ment 136 of the 1989 (6th Cir.1990). guez, 896 F.2d change was to insure that courts did not contrast, the First and Seventh Cir calculate using the base offense level cuits, apparently viewing inquiry as the amounts as to which the defendant was negotiated means which the amount is i.e., merely “puffing,” amounts the defendant established, required have that the Govern produce. did not intend to Amendment 136 prove ability ment (“[t]he defendant’s intent and purpose of pro this amendment is to produce specified amounts of narcotics. procedure calculating vide more direct level,” Legarda, See United States v. provided by the offense than that F.3d (1st Cir.1994) (Government mechanism, departure downward must “where the show court finds that the defendant did intend “both intent and deliver order to reasonably capable and was not negotiated allow the inclusion of amounts to amount”). producing negotiated time”); be delivered at a future Ruiz, (7th States v. 1183-84 parties dispute whether the Govern- Cir.1991) (“Government bears burden of ment or the defendant bears the burden of proving negotiation, amount under and con proof capability inquiry the intent and negotiation tested amount could not be under Application Note 1. The con- Government if defendant lacked the intent “negotiated tends that once it establishes the — amount”), denied, narcotics, -, amount” such the defendant bears cert. U.S. (1991). proving the burden of that he she neither S.Ct. 116 L.Ed.2d 116 proof of at the base offense ment’s burden the Seventh Circuit’s view We believe Ruiz, of issue, stage. conflicting is more decisions other expressed As the this language purpose panels and of of this circuit circuits and of different consistent with A(l)(b) illustrate, infra, § 2D1.4. Sentencing amply Guideline see Section former wording in the and struc- courts enmeshed recognized, the past have As our decisions Application third sen- ture of the first Note’s proving the burden Government bears the base offense tence often have turned drugs in narcotics trans- involved amount of (1) head, by suggesting on its determination Colon, actions, v. 961 F.2d see United States capability the defendant’s intent and (2d Cir.1992), drug conspira- and for decrease base offense rather than define cies, Sentencing § 2D1.4 Guideline former it, despite the Government’s claim that a proving into that this translated made clear agreed to personally defendant with others drugs conspira- that was the the amount of (2) amount; particular that a produce a “object.” Application to cy’s The first Note ability produce to a certain defendant’s Sentencing explains § Guideline 2D1.4 amount, regardless of his or her intent to do issue, are at uncompleted transactions where so, proper punishment. is a basis for “object” conspiracy’s is the amount of Yet, drugs “negotiated”. since the focus of Accordingly, for the reasons discussed be- Sentencing § 2D1.4 is the Guideline former low, analysis in we structure our base offense narcotics, produce agreement to unlawful governed by Sentencing cases former Guide- thus, “object,” “negotiat- conspiracy’s § 2D1.4 in accordance that Guide- line cases, must be the ed amount” these purpose, language line’s rather than the conspirators agreed amount of narcotics the language Application literal of its Note agreement can not produce. This critical agreement produce conspiratorial a “meeting of at without a of the minds” exist particular quantity of narcotics should be co-conspirators produce some of the least by all of the circumstances of the informed given of narcotics for a specified a amount case, notably conspirators’ pro- intent price. Thus, duce such amounts. the Gov- where negotiated ernment asserts that a defendant Proving the intent of at least two co- amount, produce a contested we hold conspirators produce a certain amount of proving the Government bears the burden proving conspirato narcotics is essential to produce intent such an the defendant’s Thus, agreement as to that amount. rial amount, informed, necessarily a task al- where the Government asserts that the de determined, though by the defendant’s personally “negotiated” fendant alleged the amount to have quantities contested not that the defen —and agreed upon. been merely secondarily liable for an dant agreed upon participant amount as a in an 1. Burden of Proof alleged conspiracy Government bears —the proving that

the burden of the defendant analy begin proof our We burden intended to such an amount. sis with the well-established rule that at sen cases, “ability” the defendant’s and that such offenses, tencing drug-related the Gov particular co-conspirators of his proving ernment bears the burden of though play important, amount an not dis- involved, amount of narcotics since it is this establishing positive, role in the defendant’s amount that establishes the base offense lev amount, thereby, intent to (Government Colon, el. 961 F.2d at 43 must agreement as to such conspiratorial prove quantity drugs pre involved amount. evidence). ponderance also See Unit (8th Smiley, centrality conspirato- ed Obscuring the of the Cir.1993) (“government bears the burden of rial Guideline determination, proof by preponderance lan- of the evidence the 2D1.4 base offense involved”); Barnes, Application quantity drug guage and form of the first (“government capability inquiry has F.2d at 683 bears the burden Note’s intent and negotiation”). prompted analyses proving the amount under mistaken Govern-

333 Sentencing § a. Former Guideline 2D1.4 must be with someone govern other than a agent ment or informant. Montgomery v. drug conspiracies, conspira States, (2d 83, Cir.1988). United 853 F.2d 85 agreement produce narcotics, tors’ not the Moreover, conspiratorial to establish a agree possession, delivery actual sale or of the ment, the Government must demonstrate drugs, is the essence of the crime. United “ conspirators that the possessed ‘at least the (2d Labat, 18, Cir.1990) States v. 905 F.2d 21 degree of criminal necessary intent for the (“the conspiracy agreement essence of is the ” substantive Ingram offense itself.’ v. Unit and not the commission of the substantive States, ed 360 1314, U.S. 79 S.Ct. objective”); offense that is its United States 1319, (1959) (citation 3 L.Ed.2d 1503 omit (2d Cir.) Tejada, 1256, v. 956 F.2d 1264 ted); Fletcher, 495, United 928 F.2d (“agreement conspiracy”), defines the cert. — (2d — Cir.), denied, 501-02 U.S. -, cert. denied, -, 124, U.S. 113 S.Ct. 121 67, 112 (1991); S.Ct. 116 L.Ed.2d 41 (1992); United L.Ed.2d 80 see United States v. (2d Gurary, 521, States v. 860 F.2d Rubin, (2d 525 979, Cir.1988) (“The Cir. 844 F.2d 1988). specifically, More proof conspira of a fundamental element of a conspiracy is un- agreement evidence, torial requires which agreement.”). lawful may circumstantial, conspirators Sentencing 2D1.4, § Former Guideline agree intended to to commit an unlawful act. “displaying punish a clear resolve to the [con Tyler, States v. 758 F.2d 70-71 Cf. spiratorial] agreement,” commands that the (2d Cir.1985) (conspiratorial agreement re object conspiracy set the base offense “ quires more than ‘community of unlaw Tejada, level. 956 F.2d at 1264. Since the ” ful intent’ required aiding and abetting agreement conspiracy, defines the it follows liability) (quoting United States v. Bright, conspiracy’s “object” must be the (5th Cir.1980)) (citations 630 F.2d conspirators’ amount of narcotics the agreed omitted). Here, conspirators were produce. Clearly, conspiratorial agree charged with and convicted of specific type quantity ment to only to possess distribute with intent to of narcotics can be formed without the assent distribute “an amount in excess of one kilo participation every member of the con gram” of heroin. Indeed, spiracy. Guidelines, Sentencing conduct,” defining provide “relevant that a Consequently, satisfy its burden of drug quanti defendant will not be liable for proving conspiratorial agreement as to a co-conspirators agreed ties that greater quantity narcotics, the Govern reasonably which were not foreseeable in the required prove ment was conspir activity agreed criminal the defendant to un i.e., produce, agreed ators intended to dertake and as to which the defendant lacked produce, such amounts. Where the Govern knowledge. 1.3, Sentencing § Guideline IB ment asserts that directly partic a defendant (1993) (“[t]he Application 2Note conduct of ipated in conspiratorial agreement others that was not in furtherance of the specified type amount and of nar activity jointly criminal undertaken cotics, prove must Government that such defendant, reasonably or was not foreseeable defendant intended to that amount. activity, connection with that criminal proving Government bears the burden of conduct”); not relevant Neg United States v. the defendant’s intent such (2d ron, (defendant Cir.1992) intent, along amounts because it is this drug quantities not liable for which were not culpable eo-eonspirators, the intent of reasonably foreseeable in connection with the conspiratorial agreement defines the which activity agreed criminal the defendant to un Sentencing § former Guideline 2D1.4 seeks dertake); Cardenas, United States v. punish. (2d Cir.1990) (same). F.2d 686-87 however, emphasize, it is axiomatic that no We that this sit conspiratorial agreement radically exists posed unless uation is different from that culpable co-conspirators agree, least two challenge and when the defendant does not consequently, narcotics, charged the defendant’s amount of but instead as- level, wording attrib- base offense and structure amount should not be

serts that such misguided of this sentence has fostered anal- her as relevant conduct utable to him or yses of the base offense determination. 1B1.3. pursuant Guideline There, already met its has the Government Application Note 1 b. conspiratorial agree- proving burden specified quantity of produce to ment Application designed Note 1 was to inter drugs; only question partic- is whether a Sentencing pret implement and former responsible for defendant should be held ular § 2D1.4. See Stinson v. United Guideline — agreement, despite or her specific this States, U.S. -, -, 113 S.Ct. (1993) in its formation. We 1919, 123 lack of involvement (commentary to L.Ed.2d 698 cases, that in relevant conduct agency’s have held Sentencing “is akin to an Guidelines rules”). prove must his or her lack of legislative defendant interpretation of its own knowledge foreseeability lack of of the Though Sentencing and focus of former by quantities agreed upon co-conspira- conspirators’ agree other Guideline 2D1.4 is the Negron, ment, Application employ tors. United States v. Note 1 does not Cir.1992) (2d (“when “agreement” 72 defendant asserts the term or derivation Instead, uncompleted drug responsible is not for the entire thereof. he transactions, range Application the first Note’s of misconduct attributable to the con- sec member, spiracy of which he was a the Sen- ond sentence directs courts to use “the tencing place weight negotiation” calculating him Guidelines the burden under establishing knowledge the lack of base offense level. foreseeability”). prop- The lack defendant by a word is not defined “When erly proving the burden of these ele- bears statute, normally it in we construe accord ments, stage, because at the relevant conduct ordinary meaning.” natural with its or already the Government has satisfied its bur- — States, U.S. -, -, Smith v. United (1) proving partici- that the den of defendant (1993). 124 L.Ed.2d S.Ct. (2) pated culpable in the Dictionary “negotiate” Webster’s defines co-conspirators agreed produce the con- through “to another to arrive meet with so as tested amount of narcotics. agreement discussion at some kind of or contrast, By conspiratorial where compromise something.” about Webster’s agreement particular drug produce quanti- Dictionary Third New International En issue, conspirators’ agree- ties is itself (1986). glish Language 1324 Black’s Law ment, intent, particular hence Dictionary “negotiate” states is “[t]o integral Sentencing amount is Guide- business; bargain transact with another § line 2D1.4 base offense determination. transaction; respecting a to conduct commu discerning agreement The task of this or conferences a view to reach nications clearly conspirators’ ability informed ing agreement.” a settlement or Black’s amount, such an since former (6th ed.1990). Dictionary Law pun- § 2D Guideline 1.4 seeks to “negotiation” the term under agreements, merely ish unlawful wishful encompass both these definitions would dis Thus, thinking exploratory discussions. cussions tentative in nature as well as those where the asserts that a Government defen- degree greater that have achieved a of finali directly agreement dant was involved in the course, ty. “Language, of can not be inter narcotics, quantities specified — Smith, preted apart from context.” U.S. inquiry in the critical the base offense deter- at -, Thus, 113 S.Ct. at 2054. as used in agreed, mination is whether that defendant Application “negotiation” Note must de intended, i.e., the contested dealings scribe closer to the end amount. spectrum, conspiracy’s since the “ob ject” only language Ap-

The of the third can be the amount of narcotics the sentence plication conspirators agreed produce, Note obfuscates this rather merely conspira straightforward point. By confusing the role discussed. The which intent, “capability” defining upon factors which bear of “intent” and tors’ intent, notably conspirators’ ability properly [were] more characterized as a miti- produce specified amounts, is thus inher- gating factor for which the defendant b[ore] “weight negotiation” ent in the under con- the burden.” Id. at 683-84. The Sixth Cir- above, cept. As we noted where the Govern- cuit seems to inbe accord with this reason- particular.defendant ment asserts that a “ne- ing. (defen- Rodriguez, See 896 F.2d at 1033 gotiated” specified quantity drugs, dant bears the burden of proving intent and drugs amount of that defendant intended to capability, mitigating factors, since like they conspiratorial agree- informs the have the effect of decreasing the defendant’s amount, consequently, ment as to sentence). However, since former Sentenc- “weight negotiation”. under Guideline 2D1.4 mandates that the “ob- language Application ject and structure of of the conspiracy” determines the base 1, however, integral Note confuses level, role of offense “baseline” can be the determining this “weight the amount of drugs the conspirators agreed negotiation,” under thereby the base of- Thus, produce. analogy the mitigating Application provides fense level. 1Note that fail, factors must conspirators’ since the in- “where the court finds that the defendant did produce specified tent drug quantities, produce not intend to reasonably and was not by informed ability so, their to do does not capable producing negotiated amount, of the lower the base offense: it defines the base it Sentencing shall exclude from the Guide- offense level.7 line calculation the amount that it finds the conjunctive wording The of Appli- the first produce defendant did not intend to and was capability” cation Note’s “intent and stan- reasonably capable producing.” of For- dard has further confused Sentencing the Sentencing 2D1.4, § mer Applica- Guideline § Guideline 2D1.4 base (1991). offense determina- tion Note 1 implies Since exclusion By tion. suggesting capabili- that intent diminution, “negotiation” and the term en- ty independent factors, co-equal this lan- compasses activities, range wide of the first courts, guage including has led Application courts in this suggests Note’s third sentence Circuit, suggest “negotiated sentencing that the amount” on the could be an greater basis of amounts amount than that the defendant which the defen- never intend- Thus, produce dant ed to produce. required intended to is courts where the defen- could conclude that drugs ability the amount of dant had the the such defendant intended to is distinct amounts. example, For in our recent deci- from, of, rather than the “negoti- Howard, essence sion in United States v. 998 F.2d (2d ated amount” or base offense. Cir.1993), 50-51 interpreted we the first Application capability Note’s intent and in- apparently This precisely is the conclusion quiry requiring finding of lack of both by reached the Sixth and Ninth Circuits as ability intent and lack of before a contested by analogy evidenced their of intent and amount could be guideline excluded Barnes, capability mitigating factors. calculation. (“given quantity Id. of narcotics the Ninth Circuit reasoned that the exclu- charged will not be to a if defendant sionary language “indicate[d] the base- reasonably defendant both capable was not line is negotiated the inclusion of the entire producing amount; and did not intend to it is when the district court issue”) (emphasis amount of narcotics affirmatively at add- finding makes the that the of- ed). logical Barnes, proposition fense level is converse lowered.” 993 F.2d at added). (emphasis is that contested Since amounts must be the intent and included capability inquiry potentially could where one of these capa- elements —intent or “lower[] level,” the offense bility the Barnes court deemed Since the Howard court was —exists. capability intent and “combined ... faced with lack challenge, Indeed, this rationale harkens back amounts that the defendant neither intended to departure system Sentencing downward reasonably capable produc- nor was Appli- Commission abandoned when it amended calculating when the base offense For- level. require cation Note 1 in 1989 to courts to follow (1989). mer Guideline 2D1.4 procedure” excluding drug the “more direct determination in implications for meshed the base offense did not address court quandaries of sub missing is the of form to exclusion element sentencing when statutory Extrapolating from basic the contested stance. defendant’s intent Brooks, may, principles, this court v. construction also United States amount. See Cir.1992) indeed, must, (4th beyond Applica first (Application look 957 F.2d 1138 terms where “slavish showing of both lack of tion Note’s literal requires a Note capability language to such would subvert be adherence” lack of reasonable intent and purpose very Sentencing be excluded of the Guideline amount will fore a contested calculation), explicate. Light & cert. de it seeks to See Grand guideline from the — Inc., nied, -, Supply Honeywell, v. 771 F.2d 112 S.Ct. Co. U.S. (2d Cir.1985) (“[w]here Barnes, (1992); the result of a 682 677 L.Ed.2d 917 conjunc interpretation statutory language Application Note is literal (language n. 1 absurd, “[t]hus, tive, purpose or where the obvious disjunctive, and district find both lack of intent statute is thwarted slavish adherence to court would have to terms, may beyond plain excluding the its we look capability and lack of before (citation amount”) Thus, omitted); language”) original). Bob Jones (emphasis States, 574, 586, 103 language im Application first Note’s literal Univ. United U.S. (1983) (“[i]t regardless plies opportunity, of S.Ct. 76 L.Ed.2d 157 mere intent, statutory is a canon of con appropriate is a sufficient and basis well-established go beyond punishment. interpretation, This howev struction that a court should the er, language if language purpose the literal of a statute reliance on is at odds with 2D1.4, Sentencing language plain purpose § focus would defeat the of Guideline whose statute”); Int’l, FCC, object conspiracy’s agreement, or of the Inc. v. is the Viacom (2d Cir.1982) (“the 1034, 1039 potential. 672 F.2d surest its mere way misinterpret to a statute or a rule is to courts, surprisingly, including Not several language follow its literal without reference on at two occa- courts this Circuit least purpose”). Kelly to its See also v. Waucon sions, capability” the “intent and have read (7th Dist., 269, da Park 801 F.2d n. 1 270 See, disjunctively. e.g., United standard Cir.1986), denied, 940, cert. 480 107 U.S. (2d Stevens, 985 F.2d (1987) (courts S.Ct. 94 L.Ed.2d 781 Cir.1993) (though citing conjunctive lan- “rely heavily must not too on characteriza guage, panel remanded with instructions to ‘disjunctive’ form tions such as versus ‘con the district court to exclude amount defen- junctive’ form to difficult of resolve issues reasonably capable producing dant was not of construction,” statutory but instead must sentencing); Tejada, 956 F.2d at 1264 statute”). parts at of “look all the (amount defendant did excluded where “the reasonably capable not intend or of was By regardless requiring punishment of the amount”) supplying agreed upon (empha- produce defendant’s intent contested Molina, added); sis United States v. 934 amounts, language Application the literal of (9th Cir.1991) (“negotiated F.2d purpose Note obfuscates the of former charged amount” not to a defendant who “did Sentencing punishing § Guideline 2D1.4— produce, not intend to or who was not rea- object conspiracy. To this the extent amount) sonably capable producing” of such language suggests setting the base of- Ruiz, added); (emphasis 932 F.2d at 1183-84 fense level is a task distinct from determin- (amount if included defendant “intended to ing suppos- the intent the defendant who produce ‘reasonably capable pro- edly negotiated agreement, it undermines ducing’” quantity drugs).8 purpose. this Therefore, remedy despite suggestion

Though designed to our Howard, not, problems posed by “puffing,” Appli contrary in do at in a the first we least ease, conspiracy require sentencing courts to cation Note’s third sentence has thus en- court, though expressly refusing agreement produce least an the amount At one onstrated issue, examined, proof Smiley, States v. decide the burden of has issue. United Cir.1993). (8th correctly, we believe whether the evidence dem- only drug exclude from consideration about ability buy those marijuana boasts”). amounts which the defendant neither intend- amounted] more than idle How- reasonably ever, produce capable ed to nor was where is lacking, talk about sell- Instead, producing. Sentencing we shift the supplying or just narcotics often remains analysis proper § 2D1.4 reason, Guideline back to its that —talk. For this where neither “object conspiracy.” focus—the nor defendant co-conspir- defendant’s words, courts other must consider ators had a plan acquiring, the means of drugs conspirators agreed amount of obtaining, disputed quantities access to produce. drugs, Because amount imagine defines it is hard to conspira- level, base offense we hold that the Govern- actually agreed tors these proving ment bears the burden of the defen- amounts. quanti- dant’s intent to the contested Thus, an assessment of the reasons ty of Sentencing narcotics under former why yielded never the con § Guideline 2D1.4. As noted previously, tested highly amounts is relevant to a court’s upon agree-

where the Government relies analysis of conspirators agreed whether the co-conspirators ment of other to establish the emphasize, such amounts. We level, inquiry base offense then the shifts to however, inability due to frustrated ef inquiry the relevant conduct of Sentencing forts, impossibilities factual or unforeseen § Guideline 1B1.3. circumstances does not defeat the inference We now address the considerations that an contested sentencing should guide the court in its eval- amounts of prior narcotics. As our decisions uation of whether the Government has satis- addressing capability” “reasonable sentenc fied its burden under former ing challenges demonstrate, failure Guideline 2D1.4. is relevant to the extent it suggests an agreement. absence of intent or Proving Object Conspiracy the Howard, example, For rejected in we above, As ability, stated argument defendant’s defendant’s that he was not “rea which includes that of his co-conspirators, sonably capable” to producing the three kilo produce specific narcotics, grams amounts of planned steal, of cocaine he to because highly in determining relevant whether the there was no apartment cocaine he conspirators agreed produce to these broke into. factually That it was impossible Providing wishes, amounts. produce substance to to drugs irrelevant; was ability transforms often the desire to capability” “reasonable analysis to “looks narcotics into intent sufficient form to an whether a would defendant have been to able so; indeed, agreement ability operates to do consummate a narcotics transaction if the much required like the overt act conspira- facts were he as believed them to be.” 998 drug conspiracies, cies than other in that it F.2d at 51. plans The defendant’s steal to provides proof agreement additional drugs an left the realm thinking of wishful Brown, existed.9 See United States v. key 985 when he a “obtained the tools neces (5th Cir.1993) 766, (defendants F.2d 768 sary carry Thus, were to out.” Id. [them] “reasonably capable” of producing contested drugs, absence of the not the lack of or intent negotiations amounts since their agreement to obtain an among co-conspirators, drugs repeated attempts arrange precluded to fi- realizing the defendant from his nancing they plan. alternatives demonstrated Id. also See United States v. Beau lieau, (2d clearly possess marijuana”); Cir.1992) (inabili 375, “intended to 959 F.2d 379 Fowler, 1005, ty United 990 produce drugs requested F.2d 1006 to at the time (7th Cir.1993) (defendant’s past drug deals not pro did the defendant’s vitiate intent to financing purchasing narcotics); scheme for contest- duce the United States v. Pimen tel, (2d Cir.1991) (defen- ed demonstrated that amount his “claims 932 F.2d 1031 (1990); denied, § 9. See 21 U.S.C. 846 United States v. cert. 425 U.S. 96 S.Ct. Bermudez, (2d Cir.1975) (overt 526 F.2d 89 (1976). act L.Ed.2d 793 convictions), required drug conspiracy not intent, were arrest, pre- termine whether such conversations their lack of dants’ delivery, producing sufficiently specific price, the contested as to fi- them from cluded amounts). logistics suggest firm nancing, and other to a amounts, agreement produce specific ability important, defendant’s While opposed exploratory to mere discussions dispositive specified quantities is not Ruiz, quantities. about such See 932 F.2d at pro her the issue of his or (defendant’s comment, single “even ten earlier, amounts; such as we noted duce get,” “hardly negotiation Imore can § Sentencing 2D1.4 was not former Guideline transaction”). However, specific drug aof punish opportunity. mere designed to sentencing simply courts must not end the Therefore, ability the defendant’s analysis stage, at the discussion but must is irrelevant in the ab contested amounts further examine whether the defendant agreed of evidence that the defendant sence (i.e. co-conspirators took action toward his govern co-conspirator a liable amounts, producing the contested such as agent) upon to draw ment seeking financing, making arrangements for purported further transactions. Cf. Foley, delivering drugs, contacting suppliers States v. (8th Cir.1990) (“without Pimentel, some evidence of procure such narcotics. See knowing participation” purported Fowler, transac 1031; F.2d at 990 F.2d at 1007.10 price mere mention of of two tion defendant’s short, determining In whether the Gov- to establish ounces of cocaine insufficient burden, sentencing ernment has met its agreed supply that defendant that amount court all which inform must consider factors amounts); despite such Beau her access to conspiratorial agreement (defendant’s lieau, 959 F.2d at 379 intent amount, specific pre- and evaluate whether relationship sup demonstrated with a ponderance of reliable evidence demonstrates plier and efforts to obtain the contested culpable co-conspir- that the defendant and a source). amounts from this intended, ator such an amount. addition, discerning the con (1993) See Guideline 6A1.3 object, spiracy’s the court must examine the (finding sentencing hearing of fact at must be statements, defendant’s conduct and as well evidence). on reliable based co-conspirators, throughout as that of his conspiracy, course of the and not limit the Findings 3. The District Court’s analysis preliminary discussions. See review a district court’s factual We Moon, 204, States v. 926 F.2d 209-10 United finding regarding quantity drugs in (2d Cir.1991) (sentence based on two kilo volved for clear error. United States v. despite grams of cocaine vacated the defen (2d Howard, 42, Cir.1993); 998 F.2d 51 Unit “early price dant’s conversations” about (2d Olvera, 788, ed States v. 954 F.2d 791 availability of such amount where the — Cir.), denied, U.S. -, cert. 112 actions statements S.Ct. bulk defendant’s 3011, (1992); kilogram). 120 L.Ed.2d 885 see also 18 revealed an intent to one 3742(e) (1993 Hence, § Supp.) (reviewing U.S.C. courts must consider all discussions transaction, concerning “accept findings the narcotics and de- court must of fact of the argues negoti- very negotiations 10. The dissent that "evidence of a tenor and substance of the quantity prima suggest inability intent issue a intent and an to ated is facie evidence of lack of narcotics, However, capability." just any and evidence, it is not the contested amount of may predicate sentencing preponderance but rather a of the evi- district court isolated, not on discussions, by passing preliminary but dence—to be demonstrated the Government— proffered negotiated negotiations, parties’ support and the that must amount. must examine the cases, conduct, entirety. Contrary question, "negotiations Without in most course of in their to view, imposes [defendant's] admissions as to a the dissent's no additional or [will be] reliable courts; indeed, heightened regard quantities intentions with to intended to burden on district it is, been, conspiracy,” always flow and evidence of such and has the essence of the from the negotiations outweigh any post-convic- obligation sentencing stage court's at the to en- will often tion claims defendant either the sure that amount which determined the base that the lacked preponderance ability intent or the to the contested offense level be established However, here, thrust, of the evidence. amount. where as

339 clearly they willing purchase, are errone- defendant to court unless was district lease or ous”); Castagnet, airplane rent an travel States v. 936 F.2d from the United United (2d Cir.1991) (a 57, Nigeria pick up heroin, States to applica- 59 court’s I district that—you going take findings of the tion Guidelines rent an airplane length purchase to travel that clearly is of fact reviewable under erroneous standard”). kilo, three ounces or one Only are left when we with “the lends some credence the conversation firm that a that it definite and conviction mistake was the intent of the defendant committed,” bring been will we disturb a trial has 50, maybe 60 or even more kilos. judge’s findings of fact. United States v. Co., 364, I finding So think Gypsum States 333 as a of fact United U.S. (1948). 395, 525, government 542, 68 S.Ct. 92 L.Ed. 746 has substantiated its claim kilograms that at least 60 of heroin was scope our despite narrow subject conspiracy. of the review, require sentencing we courts to Tr., at 22. court summarily The district specific findings regarding clear and make argument dismissed Hendrickson’s that he drug amount of involved in narcotics lacked import amounts,11 these conspiracy, adequately stating the reasons simply remarking, “I think that he capa- their States v. conclusions. United Ma doing ble of it.” at 24. Tr. turo, (2d Cir.1992) (remanding 982 F.2d 57 The district court never addressed Hen- sentencing proceedings case additional repeated drickson’s throughout statements “specific to make where district court failed his Nigerian conversations with York that his findings” regarding factual affirmative contacts had with him not dealt before on a involved), amount of cert. narcotics de project large proposed Nigerian as —nied, -, S.Ct. U.S. 125 importation deal. Nor did the district . court (1993); United L.Ed.2d see also States v. mention later Hendrickson’s admissions dur- (2d Jacobo, Cir.1991) (sen 934 F.2d ing the course investiga- of the undercover tencing required court to make its own factu tion that his contacts were satisfied with quantity drugs al determinations as to their Niger- mules and not interested in his Palta, involved); Thus, importation plan. ian the district (2d Cir.1989) (sentencing court court never how it articulated reached the clearly “shall state its resolution dis agreed conclusion that Hendrickson had predicated upon puted findings”); factors its York, government someone other than in- 3553(c)(1) (1988 Supp.1993) 18 U.S.C. & formant, kilograms the 50-60 (court imposi shall for its state the reasons object conspiracy. it deemed to be the sentence). particular of a tion recognize judge We that the trial Here, court the district based its position in the credibility best to evaluate the finding agreed that Hendrickson’s with co- presented, of the witnesses and the evidence conspirators or 60 appellate lightly and that should courts conversations heroin Hendrickson’s initial disturb such evaluations. United States v. proposed regarding importa York with his (2d Cir.1993); Beverly, 5 F.3d see Specifically, Judge tion scheme. Johnson Maldonado-Rivera, States v. 922 F.2d stated: (2d Cir.1990). Here, however, the totali concerning I also heard the conversations ty strongly suggests of the evidence kilograms of heroin. drug may Hendrickson was a dealer who importing also have dreamed millions of dollars I heard conversations between the Nigeria, certainly worth of but defendant and the informant where the heroin from acknowledged sentencing sentencing, parties dispute At did that at least one to 11. the not at kilograms grams sold York total of 77 three of heroin the minimum Hendrickson produce. disagreement centered on amount Hendrickson intended to We heroin. whether kilograms position parties might argue, take no 50-60 of heroin was the amount the on what conclude, might conspirators agreed produce. Both or what the district court at to defense resentencing concerning conspirators Attorney, what the counsel and the United States Assistant calculation, agreed produce. explaining without the basis their Indeed, the fact that Hendrickson was able agreed anyone oth- nor with intended neither difficulty, only 77 great with produce, do so.12 than York to er the course of almost grams of heroin over sure, drug knew deal- To be alleged conspiratorial years makes his two Uchannaya, ers, Balogun and among them agreement someone besides York to with large quantities may had access who have doubtful, kilograms of supply 50 or 60 heroin however, heroin; is no indication there Notwithstanding meager at best. Nigerian they any other dealers were actually pro- amount of heroin Hendrickson pro- “receptive” to Hendrickson’s more than duced, Government, citing our decision During his initial conversa- posed scheme. Olvera, United States v. York, made clear tions with (2d Cir.1992), argues high purity Nigerian project, tell- of his tentative nature drugs implies conspi- these the existence of concrete, needed to devise ing York that he large quanti- agreement produce ratorial con- plan before he could well-researched matter, narcotics. As an initial ties of agree Nigerian contacts vince his pro- origin drug samples Hendrickson given Hendrickson’s re- plan. Apparently, unclear; to York is the record before duced Nigerian peated that the contacts statements samples us does not indicate whether the dealer and deemed him a small-time believed Nigerian were obtained from Hendrickson’s unworthy importation idea proposed his operations. or his Bermuda More sources consideration, they were never convinced.13 Olvera, importantly, unlike the defendants Tellingly, after the two initial conversa- Hendrickson disclaimed the existence of an York, Nigeria plan, it was tions about the produce kilograms agreement to 50 or 60 defendant, inquired about and con- who during investigation, undercover heroin proceed tinually expressed Where, a desire to with just arrest, post after his arrest. During Nigerian deal. purported agreed a defendant denies that he or she investigation, narcotics, remaining particular 18 months of amount of actually se- high purity drugs produced Hendrickson directed his efforts towards curing quantities may heroin to sell to him small defendant or seized from or her York, strong agreement developing operations provide heroin evidence that an and his larger amounts existed. See id. Bermuda. operations proposed Although and brother Mark was Bermuda his Bermuda Hendrickson's York, meeting present with at Hendrickson's first distribution network. The evidence reveals that Mark, Catalano, during meeting point perhaps, asked York and at one were involved in going “pilot,” if to be their there is no projects. he was Hendrickson's Bermuda activities and any Yet, subse- evidence that Mark was involved sentencing it is not clear from the court's quent proposed Nigerian who, York, discussions about the findings agreed other than had any importation action in fur- scheme or took pursue Nigerian importation Hendrickson to therance of the scheme. idea. conspiratorial agreement Clearly, a Mark, Aside the evidence reveals two from partici- narcotics can be formed between two co-conspirators, Balogun Uchannaya, other pants drug operation, they suppliers, in a Nigerian who were even aware of Hendrickson's distributors or manufacturers. To base Hen- importation Uchannaya discussed the scheme. kilograms drickson’s sentence on 50-60 oin, of her- Nigerian importation idea with Hendrickson and sentencing court must find an August expressed York on such amount between Hendrickson importing desire for alternate means of heroin culpable co-conspirator. other least one suggests Nigeria, nothing but in the record however, findings, are silent The district court's plan. agreed that he ever to Hendrickson's As who, York, other than Hendrickson con- Balogun, there is no evidence that he ever spired with to 50-60 of her- plan. expressed interest in Hendrickson's oin. fact, attempt the evidence reveals that York's apparently spark Balogun's in the to interest apparently Uchannaya, who once 13. Nor nervous, plan extremely Balogun ac- made and Nigerian expressed in Hendrickson’s Hendrickson, interest cording to his efforts to frustrated complete drug plan. to a small After York failed arrange "something big.” Uchannaya, told transaction with potential co-con- As for Hendrickson's other through inability go with the York that York’s to spirators, only drug projects the deals or as to severely any transaction had strained Hendrickson's which there is evidence of their involvement York, Uchannaya. credibility his with Hendrickson’s sales of heroin (high purity of narcotics supported seized appears ond Circuit accepted have pre- sentencing finding court’s that the defen- ponderance of standard). the evidence To agreed dants kilograms distribute 5 of justify its sentence of imprisonment, life cocaine for it they “showed that were not district court must clearly articulate its rea- traffickers”). low-level However, standing why sons as to exploratory about discussions alone, high purity drugs or suppli- access to plan that materialized, never in the face of provide ers do not grounds sufficient to infer Hendrickson repeated disavowals of an the existence of a conspiratorial agreement agreement during the course of conspira- to supply specified quantities of narcotics cy, demonstrate a conspiratorial agreement where, here, as during the course of an un- import küograms 50-60 of heroin. dercover investigation, the defendant admits agreement such an We, never therefore, existed. remand re-sentencing may While there be other suggest- evidence grounds. First, on two we believe that the ing conspiratorial existence of a agree- district may have, court on the basis of ment to kilograms or 60 of her- argument Government’s the defendant oin, the evidence in the limited record before bore the of proving burden lack'of intent and us does not support that conclusion.14 capability, improperly assigned to the defen- Consequently, us, dant the the record burden of disproving before object argument Hendrickson’s is compelling conspiracy, words, in other conspira- his initial discussions with York im- agreement about torial küograms 50-60 porting kilograms 50-60 Nige- heroin from Second, of heroin. we find that the district ria, more, without do not conspi- establish a court’s fañure to “clearly state its resolution ratorial agreement between Hendrickson and any disputed predicated factors upon its culpable co-conspirator import such findings,” precluded has appropriate appel- amounts. The district court noted Hendrick- late review pursuant to 18 U.S.C. son’s initial York, conversations with but Palta, 880 F.2d at 641. explain failed to how Hendrickson’s desire to remand, On the sentencing court import quantities huge should of heroin Nige- from forth set in greater expressed ria as detañ the evidence that these discussions trans- supports finding its lated into an agreement agreed amount others beside upon, explaining York to Nevertheless, why so. contrary do on the basis of is evidence extremely persuasive. sparse findings, Specifícaüy, the district court the court must calculated the base examine using offense level Hendrickson’s statements and ac- amounts that had the effect of increasing throughout tions of the course undercov- defendant’s sentence to life imprisonment. investigation, er explain and why Hendrick- repeated pre-arrest son’s disavowals of an We can not countenance a life sentence import kilograms 50-60 of her- this case or other without more extensive from Nigeria oin inability factual findings by detañed the sentenc- more than grams negate heroin do not court. A sentencing court be must more whatever inference of searching intent that might in its inquiry, and specific more drawn from his findings its initial than the here; district conversations with court was least, York. very at the The court identify must a district also cul- court should pable exercise co-conspirator[s] care in addressing arguments with whom Hendrick- agreed raised son defendant at sentencing. 50-60 Cf. heroin, v. Concepcion, set forth the F.2d basis its conclu- (2d Cir.1992) (recognizing sion that such participated other individual[s] required courts have clear and convincing opposed relating those support evidence to extraordinary sentencing to Hendrickson’s operations Bermuda or his enhancements, although noting that the Sec- sales heroin to York. 14. The appeal record on script, includes tran- transcripts and various pre-trial scripts wiretapped video-recorded con- hearings. transcripts the actual trial York, between versations not included. conspirators, other sentencing hearing tran-

342 CONCLUSION V. Act Motion Speedy Trial

B. The reasons, judgment of the foregoing For the Speedy Trial Hendrickson’s findWe vacated, affirmed, the sentence is conviction merit. Sec utterly without arguments Act sen- for additional remanded the matter and Trial Act 3161(h)(1)(F) Speedy the tion with this in accordance tencing proceedings calculations Trial Act Speedy from excludes opinion. and motion filing of a time between “all motion, that hearing a the conclusion concurring in WINTER, Judge, Circuit holding that hear delay in or not whether dissenting part: in and part necessary’ Henderson ‘reasonably ing was of the convic- the affirmance I concur in 330, 106 States, S.Ct. 476 U.S. v. United for resen- from the remand I tion. dissent (1986). Hen 1871, 1877, 299 L.Ed.2d Application agree that tencing. I do that the dis contends nevertheless drickson former United with 1 is inconsistent Note pe time two improperly excluded court trict Commission, Guidelines to Novem September riods—from (Nov.1991). Manual, Application § 2D1.4 January 1992 to and ber evidentiary guid- provides sensible Note motions February 1992—because sentencing purposes ance determine “required vir during periods those pending quantity in cases which applicable tually at all to decide.” no time buy not result. but a does negotiations occur guidance, nothing invalid in such is There how pressed hard to understand areWe that, colleagues my agree I with cannot scope argument is outside Hendrickson’s quantity for sentenc- applicable prove event, In holding in Henderson. government must purposes, show ing first time during the pending the motion negotiation quantity under more than the Judge a motion reconsider period was capability to that and an intent or the use at ruling permitting Raggi’s earlier agree I particular, do that quantity. claimed had tapes two trial of co- identify particular government must Though he York. tampered with been supply the having agreed to conspirators as required little this motion that now asserts believe, I howev- negotiated amount. precise Judge consideration, told counsel defense govern- er, 1 the Application under Note that September 13 conference at the Johnson capability pro- prove intent or ment must necessary to evidentiary hearing might be an once intent amount negotiated duce the Thus, extremely is it decide the motion. In the instant capability put issue. claim to now disingenuous matter, import 50 Hendrickson’s intent decide. required “no time” that this motion by over- kilograms of heroin established whelming evidence. for sever- Similarly, motion Hendrickson’s period of during the second ance was filed I good faith There is no delay in the trial. per- provided 2D1.4 Former U.S.S.G. argue that for Hendrickson basis “If a defendant is convicted part: tinent by Judge Johnson time taken month’s any offense involv- ... to commit conspiracy motion, purport- even hear decide substance, offense level ing a controlled motion, edly simple was unreasonable. object of if the same as shall be Thus, Judge Johnson we agree completed.” ... had been The ways” by not “have it both Hendrickson can jury that the require relevant statutes interrupted the filing pretrial motions possess conspirators agreed find that the calculations, complain- then speedy trial in excess quantity distribute with intent to court not decide district did minimum amounts. U.S.C. designated (1988). Therefore, jury 841(b)(l)(A)(i), hold that we expeditiously. §§ them identify precise the two amounts ex- properly excluded district not asked court minimum amounts. speedy trial periods from cess those contested time (2d 677, 679 Campuzano, 905 F.2d conviction. States period and Hendrickson’s affirm

343 Cir.), denied, 947, cert. 498 U.S. 111 S.Ct. cation Note 1 is therefore binding upon us 363, 112 (1990). L.Ed.2d 326 Before sentenc plainly unless erroneous or inconsistent with ing, therefore, object “the of conspiracy” the former Section 2D1.4. Stinson v. United — by jury found the quantity will be a States, is U.S. -, -, 1913, 113 S.Ct. except undetermined greater it is 1919, than (1993). 123 598 L.Ed.2d designated minimum. Application Note 1 clearly valid under A precise determination of quantity the of test. It suggests nothing that is not narcotics involved is thus relevant for by dictated common sense. entirely Based sentencing purposes, particular in to deter part or in on the negotiations, evidence of the mine the base offense level. United States v. jury the already has convicted the defendant Moore, 216, (2d 968 Cir.), F.2d 224 cert. to distribute controlled sub- — denied, -, U.S. 113 S.Ct. quantities stances in desig- excess the (1992); L.Ed.2d 385 States Madk nated minimum. For sentencing purposes, our, (2d Cir.), cert. de negotiations the may presumed be to reflect —nied, -, U.S. 112 S.Ct. 116 the defendant’s intentions regarding quanti- (1991). L.Ed.2d 251 ties and thus degree the of his or her culpa- Application Note 1 deals bility. with that However, deter- protect defendants who mination in cases where negotiations may engaged have in what the Commentary to occurred but a distribution pertinent has not provisions taken the calls “puffing,” Unit- place. provides It pertinent part: ed States Sentencing Commission, Guide- C,

If lines the Manual app. (Nov.1991), defendant is of an amd. convicted offense Application involving negotiation Note 1 states traffic in a con- where the substance, trolled defendant’s intent and weight capability the negoti- under negotiated (more quantity ation an uncompleted is negated distribution shall proof infra), be used to burden of applicable calculate quantity amount. ne- gotiated loses presumptive its weight. where court finds that defendant did not intend to My colleagues decline to follow the com- was not reasonably capable of producing guidance mon sense Application Note negotiated amount, the court shall ex- find it with inconsistent former Section clude from guideline calculation the 2D1.4, and hold that government must amount that it finds the defendant did not prove specific agreement among particular intend to and was not reasonably conspirators provide precise quantity capable of producing. that determines the base offense level.1 In Application 1 thus view, Note indicates that the their negotiations alone do not suffice quantity under negotiation as reflected in prove the relevant quantity, gov- and the evidence at trial should determine the base ernment must at sentencing show either “a offense level for sentencing purposes, subject plan acquiring, for obtaining, means of or capability intent and qualification. access disputed We quantities of drugs” Supreme instructed Court to among treat the conspirators. However, it is not commentary to the as an agency Guidelines enough to show even that a defendant who interpretation of regulations. its own Appli- negotiated has particular quantity is aetual- My colleagues' ambigu- decision is drag somewhat for participated deal. Mark in the they ous as to whether believe that there was no and, conversation on at least three occasions proof anyone conspiring with Hendrickson to significantly, pilot.” to York referred “our I proof specific distribute or no of a point do logic my not belabor this because the conspiratorial agreement between Hendrickson colleagues’ position quotations as reflected in the supplier regard and a negotiated with following the text requisite this note is that the Certainly, amount. there is evidence that Mark co-conspirator present in the must circumstances conspired Hendrickson gard appellant with with re- supplier be a rather than a distributor. For kilograms, to 50 or so the district court example, finding co-conspirator that Mark was a present could have Mark was found. at the plan acquiring, would show "a the means initial conversation York. This was no obtaining, drugs access to” or "action to- meeting by appointment chance but occurred producing ward the contested amounts.” purpose the specific arranging transportation account the fact failing take into by to proach “a quantity because produce that

ly to able In- convicted. quan- has been specified that to defendant’s upon for deed, his or easelaw relied the issue of of the dispositive of much not tities is at government produce such amounts.” on the placing to this burden her simply all but Rather, “sentencing sentencing courts must cases at sentencing are not stage, sufficiency but relating the discussion of analysis at to the end the rather decisions the defendant conspiracy, whether an further examine the crime of must of the evidence to- any took action co-conspirators sentencing. and his before settled issue amounts, such contested producing the ward challenge Notably, Hendrickson does arrangements financing, making seeking as underlying his sufficiency of the evidence the suppli- contacting drugs, or delivering for the adju- thus had been conviction. Because ne- narcotics.” procure to such ers narcotics con- to be member of dicated together amount particular gotiations over a necessary Judge for spiracy, and it was not ne- the amount capability with a findings any re- make further Johnson colleagues’ enough my in gotiated are not conspiracy or of that the existence garding negotiated quantity the prove that view to sentencing. identity conspirators at the conspiracy, already proven goal of was a the quantity judge had to find was the What sentencing is government’s burden import Hendrickson intended of narcotics indeed, and, many perhaps in cases heavy York or negotiations in his with as reflected un- in the nature of It is insurmountable. Hen- If at time transactions. other buys will be that some details completed kilograms, import intended to drickson suppliers foreign lacking, particularly where correctly was base offense level then the do, hold, my colleagues To as are involved. determined. weight of little deter- negotiations are that sentencing quantity for mining applicable unnecessarily allow purposes will defendants II highly by common sense standards

who are proof regard to the burden of as With escape well-deserved sentences. culpable to Application Note capability under intent and my distressingly wrong col- with isWhat why my colleagues I at a loss as am ignores that a position is that it leagues’ Application If question. even address already conspiracy has been for conviction with Guidelines Section Note 1 is inconsistent negotiations that viewed and rendered 2D1.4, prove at government must and the. of that conviction against background co-conspirators particular that sentencing defen- of a convicted highly rehable evidence quantity in particular agreed regard to the distribu- dant’s intentions with proof arises with re- question, no burden of quantities of narcotics. particular tion of qualification Application Note l’s gard to that The conviction ensures concerning capability. intent and negotiations were existed agree Application I do not Because negotiations are di- The furtherance it. invalid, briefly I address the is will Note 1 as to his by the defendant rect admissions might have proof issue. It well burden in- regard quantities intentions Sentencing for the Commission been sensible conspiracy’s activi- tended to flow from lack showing the impose the burden of ought to be determi- ties. admissions Such defendant. The capability on the intent and sentencing pur- quantities such for native of position to surely superior in a is defendant evidence, Application Note poses absent concerning the absence produce evidence conjunctive,2 States v. in the provides (2d Cir.1993), factors. those Howard, 42, 50-51 comprehensive purport to be Guidelines nor had neither that the defendant intended adopt code, reluctant to courts should be capability quantities. such proof absent shifting the ap- a rule burden reject colleagues this common sense My producing nego- capable is capability ther requirement intends that both intent and 2. The culpable "puffing” but is purpose amount is not tiated lacking stems from Commission’s be mitigate "puffing.” A who ei- amount. defendant support would, therefore, some I text. error so I know what it take[s] and how to agree that intent and capability must cut it too.” government. However, shown I also plan import by private narcotics evidence, negotiated believe of a quantity plane from Nigeria was many one of prima, evidence intent capabili- facie operations in which Hendrickson in- was ty that, assuming already evidence in the volved. Hendrickson already part of an record does not raise doubt as to those “ongoing operation [that] holds about one a

matters, the defendant must bear the burden week,” i.e., a conspiracy import heroin in producing puts evidence that the matter in weekly one-kilogram However, loads. Hen- issue, although the ultimate per- burden of expressed drickson frustration with this ar- suasion government. remains with the rangement gradual because of its nature and

affirmed his intention to big “Go and that’s it.” Hendrickson thus repeatedly empha- Ill sized the desirability of importing a large regard With to the facts in the instant amount of heroin in a single trip and his matter, Hendrickson was an international arrange for such a shipment. narcotics dealer with Nigeria, contacts in Turning specifically plan import Bermuda, Thailand, and the United States. 50 to kilograms from Nigeria, Hendrick- samples Hendrickson sold of high-purity her- sought son out York because he pilot was a government oin to planned informants and who was to willing believed fly large buy speedboat to be used smuggling shipment of heroin from a source location to narcotics. conspired Hendrickson in the nar- the United States. In their first conversa- dealing activity cotics of several other indi- tion, Hendrickson logistics discussed the viduals, among them Sunday Phillips, Balo- transporting than more of her- (whom gun York), he introduced to Uchanna- oin by plane, analyzing specifications for an (whom ya York), he also introduced to a man aircraft, appropriate route, the best and the “Tony,” named brother, and his own Mark of refueling location stops. He negotiated a My Hendrickson. colleagues stress price for transporting York’s the heroin and Hendrickson did not more than 77 financing discussed the length, referring grams of dealings heroin his with York. experience to his banking with arrangements Tellingly, however, Hendrickson indicated ongoing his importation conspiracy in Ber- planned that one sale to York failed because muda. It should be emphasized that Hen- a courier had been arrested. This arrest is did drickson seek not out York purchas- as a confirmed the record. er but pilot. as a If Hendrickson did not carry deal, intend out Nigerian there negotiations York, Hendrickson’s with oth- was no reason to contact York. er government informants, and Hendrick- Mark, brother son’s demonstrated his knowl- At no time in the initial conversation did edge of the details international narcotics express Hendrickson misgivings or doubts smuggling. Hendrickson identified himself about kilogram the 50 deal. He said he had as “a veteran in the business” of multi-kilo- standing “a Nigeria invitation” in sug- gram smuggling, heroin explained gested his Nigerian that his might contact well expertise by stating, spent “I’ve the time and transport want to kilograms.3 more than 50 energy and the research and trial and He reassured York that who, “I have people agree doI my colleagues' with interpreta- York: Yeah. that, gloss tive in his first conversation with off, right Hendrickson: He's going to if I want York, suggested everything Hendrickson was ten- fifty myself, gonna’ figure he wonna’ as I he tative. It true Hendrickson said put fifty will want to sixty another for him- Nigerian contact was “not used to this kind of self. thing." international regard in that Also, the Nigerian stated need "verify" for the transcript reads as follows: something was an observation that the contact see, him, go Hendrickson: You when I he’s would want to meet with York. used not right? to this kind thing, of international all go When I to him and I tell him about you what I have understand? issue, findings, specifically and his money up front what put up will who of Hendrickson’s the face value based on the conversation and ended you ever want” statements, clearly erroneous. have our were that “we York with agreeing entirely I fact, they correct. would were deal.” the sentence. the conviction and affirm and notwithstand- subsequent times At all com- difficulties, remained Describ- scheme. kilogram the 50 mitted to contact, Nigerian ing conversation I stated, him want- “I told what [kilograms heroin] fifty I wanted

ed.... Questions problem.” that’s no

and he said Nigerian timing of the about

later arose re-

deal, commitment but Hendrickson’s view the firm, he did not although DiGIANNI, Plaintiff-Appellant, mained M. Lois excluding narcot- smaller Nigerian scheme v. concern expressing his Even after deals. ics 50-kilogram Defendant-Appellee. for” a “[y]ou STERN’S, have to braid “every- insisted that operation, Hendrickson DiGIANNI, Plaintiff-Appellant, M. Lois and, trip to referring to a recent thing is set” light, stated, saying green “I’m it’s Nigeria, All the there. that. I’ve been and that’s BLOOMINGDALES, INC., operation, seen the plans made. I’ve Defendant-Appellee. everything.” gonna go, it’s know where standard, Hendrick- By any sense 93-9218, common 93-9222. Dockets Nos. overwhelmingly reflect son’s own words Appeals, States Court import 50 to intention to Second Circuit. in- already experienced an He was heroin. smuggler who was look- narcotics ternational Argued May 1994. contacting of very big kill. His ing for a 14, 1994. Decided June in the first conversation York and statements any beyond rea- his intent alone demonstrate dispute. Difficulties encoun- were

sonable Balogun developed perhaps because

tered — the exis- concerning York —but suspicions during the point at of that intent

tence period to establish is sufficient quantity regard- applicable

kilograms as the (In Howard See

less of later events. carry out view, intended to

my His kilogram up deal to his arrest.

the 50 generally ac- of difficulties were

concessions of his intent

companied statements deal.) capability

pursue the Hendrickson’s issue, be- carry deal is closer out the factors. contingent upon other

cause it was intent Application Note under applicable establish

alone suffices to accompa- swpra, and

quantity. See Note

nying text.

Therefore, dis- I not remand. The would he be- judge gave no indication that

trict proof bore burden

lieved Hendrickson

Case Details

Case Name: United States v. Dale M. Hendrickson

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 13, 1994

Citation: 26 F.3d 321

Docket Number: 605, Docket 92-1386

Court Abbreviation: 2d Cir.