*1 America, STATES of UNITED
Plaintiff-Appellee,
v. WEEKLY, Frank,
Francis also known Beverly,
also known as Defendant-
Appellant. America,
UNITED STATES of
Plaintiff-Appellee, BRADDOCK, Defendant-Appellant.
Ken America,
UNITED STATES of
Plaintiff-Appellee, ROMERO, Defendant-Appellant.
Donna 96-1513, 96-1516,
Nos. 96-1532. Appeals, Court of States
Eighth Circuit. Sept.
Submitted 1996. May
Decided 1997.
Rehearing Denied in No. 96- July
Rehearing Suggestion Rehearing 96-1513,
En Banc Denied in Nos. July 1997.* * Judge Judge grant suggestion. Chief Richard S. Arnold and McMil- lian would *2 Francis Clayton, argued, for Trog,
JoAnn Weekly. Louis, Meehan, argued, for St.
J. Justin Ken Braddock. Louis, argued, for Don- Hogan,
Jane C. St. na Romero. Tihen, Attor- Assistant U.S.
Kenneth R.
Louis,
ney,
argued, for U.S.
St.
BRIGHT,
BOWMAN,
and JOHN
Before
GIBSON,
Judges.
R.
Circuit
GIBSON,
Judge.
R.
Circuit
which
attributable to each defendant. See
JOHN
Flores,
Braddock,
Weekly, Ken
and Don-
Francis
-,
Cir.), cert.
S.Ct.
guilty to one count of
pleaded
na Romero
quantity
possess with
conspiring to distribute and/or
*3
of
finding
determination is a
fact that we will
cocaine in
the intent to distribute heroin and
only reverse for clear
See
error.
United
(1994).
§
Brad-
violation of 21 U.S.C.
846
(8th
Alexander,
262,
982 F.2d
267
States
sentences,
Weekly appeal
at-
dock and
their
Cir.1992),
denied,
1244,
cert.
512 U.S.
114
which the
tacking
quantity
of heroin on
2761, 129
(1994). A
S.Ct.
L.Ed.2d 876
defen
based their sentences. Romero
district court
conspiracy
dant convicted of
can be accounta
sentence,
appeals
arguing
that the
also
drug quantities implicated
ble for
in the con
denying
in
the bene-
district court erred
reasonably
spiracy that are
foreseeable to
provision
fit
of 18
of the
U.S.C.
Montanye,
him. See
996
3553(f) (1994)
(1995),
§
§
and U.S.S.G. 5C1.2
Cir.1993)
(8th
(en banc)
190,
(citing
F.2d
192
testimony
allowing hearsay
in
at her
—
denied,
1B1.3(a)(1)(B)),
§
cert.
U.S.S.G.
hearing.
sentencing
-,
318,
117
U.S.
S.Ct.
heroin,
physical
is no
complaining that there
Weekly
argue
Braddock and
do not
indicating he was involved in this
twenty-eight kilogram
that
amount
conspiracy.
further com-
aspect of the
He
instead,
conspiracy;
overstated as to the
plains
although
that
Mendrala referred
they complain
specific
that there is no
evi
wiretaps
in-
from
and
conversations elicited
linking
twenty-eight
dence
them to the
kilo
co-defendants,
government
with
terviews
However,
gram
government
amount.
wiretap
of the
failed to introduce evidence
only prove
twenty-eight
need
that the
kilo
interviews of
transcripts, notes of Mendrala’s
gram
generated by
conspiracy
amount
co-defendants,
any
or
other witnesses corrob-
reasonably
was
foreseeable to Braddock and
testimony. Braddock
orating Mendrala’s
Weekly.
Montanye,
See
(8th denied, Cir.1996), -, statutory pursuant to the minimum sentence cert. U.S. (1997). 1458, 117 137 to Section 5C1.2.” S.Ct. Campos, 87 United States v. government objected report, The denied, -, Cir.), U.S. probation prepared office an “Adden- (1996). gov S.Ct. Report” dum to the Presentence and then provided Weekly ernment Braddoek and changed the final The Addendum reports, DEA 200 hours of wire with the stated: taps, wiretap govern affidavits. government has received information [T]he required Agent to turn over ment was not possibly that Romero more involved impressions from his Mendrala’s notes of the instant offense more than outlined [sic] See, e.g., with co-defendants. interviews result, presentence report. in the As a Malone, requested has that [Romero] - -, Cir.), cert. submit to a test. Romero has S.Ct. 133 L.Ed.2d comply request. refused to with As a said of Braddoek We affirm the sentences result, believes
Weekly. truthfully provided has not all [Romero] *5 information and that has con- she II. offense____ cerning position the It is the pleaded guilty Donna Romero to trans- probation government office that the Phoenix, porting quantity a of heroin from responsibility determining has the Louis, Arizona, stipulated it to St. and was whether the defendant has met the criteria that she would accountable for the 256.8 be (sic) 5C1.2(5). in set for Section As the transported. grams of heroin she She was government not that does believe she satis- given three-point acceptance a reduction for criteria, presentence report fied said the responsibility, making her offense level has been revised.... upon twenty-three. Based this offense level objected Romero to the revisions in made I, history Category and a criminal the report, complaining that the revisions guideline imprisonment range was for- “accepted” could not be made after she ty-six fifty-seven statutory months. The objection, The court overruled her months, sixty minimum and so testify and then allowed Mendrala to about sixty she was sentenced to months. Romero co-conspirator, statements made a Anto- argues clearly first that the district court (Romero’s husband), Grajeda poly- nio a and denying erred her the benefit of the safe- examiner, graph Benjamin Scott. 3553(f) ty-valve provisions § of 18 U.S.C. and Weekly § U.S.S.G. 5C1.2 Like and guilty pleas, After inter- Mendrala Braddoek, argues Romero further that Grajeda concerning viewed both and Romero erroneously hearsay district court admitted conspiracy. Grajeda their role in the told sentencing hearing at her and that was, him that he was recruited because he at provide discovery failed to times, driver, truck over-the-road and that evidence admitted the court at father-in-law, mother-in-law, Romero, his sentencing. She contends these errors de- up delivery. set He stated that he trav- prived right her her Sixth Amendment eled to St. Louis to assist in driving confront her accusers. family. to be with his He told Mendrala that group had met on one occasion at his
A. they father-in-law’s in Phoenix where dis- pled guilty, proba plans After Romero cussed the to drive the heroin to St. prepared Copy” tion office a “Disclosure of Louis. He admitted he knew the heroin presentence report. stated was in the car but that he did not know appears exactly that “since it meets [Romero] where was hidden the car. He 3553(f)(1)—(5), put the criteria of 18 U.S.C. told Mendrala that his father-in-law had impose may Court a sentence in accordance the heroin in the ear and told Romero where they got Days it was hidden. Once dence about the relevant crimes before sen- Eureka, Missouri, Romo, Inn motel Romero told See United States v. tencing. that the heroin was in the console (8th Cir.1996). him center 84, 85 We review the district Grajeda of the car. also admitted that he finding court’s satisfy Romero did been with Romero had father-in-law her burden for clear error. Id. place when other distributions heroin took The district court found that Romero had in the Phoenix area. failed to show that she was entitled to the Mendrala’s interview with Romero follow- safety-valve provisions 5C1.2, under section ing guilty plea story. told a different as she had not truthfully shown that she She told Mendrala that her father-in-law and provided all information Grajeda transport devised the idea to concerning she had the offense. The court Louis, Grajeda heroin to St. asked stated that a defendant would not be re- along her to come at the last minute to throw quired to submit to a polygraph examination profile stop by along off a law enforcement cases, in all but reasoned that Romero’s re- way. She stated that she did not know fusal to submit to a examination in delivery although of the heroin she knew that light Grajeda’s of the conflict with statement “they might doing something have been supported finding that Romero did not wrong.” during Mendrala also testified provide truthful information. The court stat- surveillance, the electronic several conversa- grounds ed there were other finding, for its Sykes tions between and Romero re- request well. There was no at corded, felt that Romero knew judge speci- articulate with drug operation more about the than what she ficity these grounds. Although alternative admitted. judge specifically did not articulate its conflicting Because of the statements of *6 bases, alternative certainly there was suffi- Romero, Grajeda government asked cient grounds evidence that there were be- polygraph both to take a examination. Men- sides the refusal to polygraph take the exam- Grajeda agreed drala testified that to take support ination to finding the district court examination, polygraph Special and that that Romero not truthfully provided had all Agent Benjamin poly- Scott administered a information that concerning she had the of- graph Grajeda. examination to Scott told Indeed, just fense. the court had concluded Mendrala that the results of the exam indi- evidentiary hearing in which Mendrala Grajeda cated that was truthful. Mendrala had testified detail to the conflicts between further testified that Romero refused to take testimony Grajeda of and Romero and to polygraph a examination. wiretap suggesting evidence Romero’s in- testimony, After this the court found that volvement the offense. This conflict in the Romero showing failed to meet her burden of independent evidence alone is evidence to eligible departure that she was for under the support finding district court’s safety-valve provisions of 18 U.S.C. truthfully provided Romero had not all infor- 3553(f)(1)—(5) § § and U.S.S.G. 5C1.2. offense, mation that she concerning had points to the inference drawn safety-valve exception Under the to Romero, Grajeda, court was un- sentences, statutory minimum a defendant finding truthful. The court may given be a more lenient sentence within showing Romero did not meet her burden of if, applicable guidelines the otherwise range truthfully provided government that she among things, other the defendant “truthful all information about the offense is not clear- ly provide[s] to the Government all informa ly erroneous. tion and evidence the defendant has concern ing part the offense or offenses that were of
the same
of
course
conduct or of a common
B.
5C1.2(5).
plan.”
§
scheme or
U.S.S.G.
A
show,
has
through
defendant
the burden to
Romero also contends that
the district
conduct,
given
admitting
hearsay
affirmative
court erred in
has
state-
truthful
information and evi- ments testified to Mendrala.
con-
She
disturbing
concluding
provides
typical, yet
case
a
there was no basis for
This
tends that
reliable,
prosecuting
glimpse
underbelly
into the
Grajeda’s
were
statements
non-violent,
under
first time
offenders
provide
“dis-
failed
mandatory minimum sentences. The district
Scott,
covery” regarding
the statements
Romero, a first time
court sentenced Donna
She believes the
examiner.
young chil-
and the
of three
offender
mother
testimony
of this
violated
admission
dren,
five-year mandatory
a
minimum
her ac-
right
Amendment
to confront
Sixth
request
a
of incarceration. Her
term
cusers.
pro-
safety
sentence
valve
reduced
under the
is, however,
right
There
no
3553(f)
§
of 18 U.S.C.
and U.S.S.G.
vision
See,
sentencing process.
in the
view,
confrontation
my
§
denied.
In
this case
5C1.2 was
Hammer,
266,
States v.
e.g., United
resentencing be-
be remanded for
should
denied,
Cir.1993),
510 U.S.
sentencing judge
on irrele-
cause the
relied
(1994);
1139, 114 S.Ct.
deny
evidence of
lie
test to
vant
detector
Wise,
application
safety
Romero
valve.
Cir.1992) (en
banc), cert.
Grajeda
transported
Romero
113 S.Ct.
Phoenix to St.
Romero told the
Louis.
permit
the use of
“The Guidelines
organize
plan
that she
or
authorities
did not
hearsay
disputed
evidence to resolve
facts
merely
Grajeda at
trip,
accompanied
this
but
that the
‘provided
information has sufficient
request.
acknowledged
Romero
that she
reliability
support
probable
its
indicia
they
doing
illegal.
something
knew
(citing
accuracy.’” Cassidy,
The district court relied Grajeda’s polygraph Currently A. denying assigned Romero the to our Washington reliability polygraph vaive.3 The D.C. office. long suspect, evidence has been considered Q. And he traveled to St. Louis and ad- Darcy, Brown v. 783 F.2d 1394-97 polygraph ministered a examination of Mr. Cir.1986), and its admission into is evidence Grajeda regarding offense, his role in the See, rarely granted. e.g., United States v. is that correct? Cir.1996) Williams, A. That’s correct. (affirming polygraph denial admission of Q. upon your And based conversations evidence). into In the rare instance where Scott, examiner, with Ben did he ren- utilized, require courts careful foundation opinion der as to whether or not Mr. qualified polygraph expert such as a Grajeda passed telling or was the truth See, appropriate questioning. e.g., United during that examination? (2d Kwong, Cir. A. He indicated to me that he truth- 1995) (polygraph results inadmissible be ful. questions posed Kwong cause “the were Q. inherently ambiguous deception And that no they no matter was indicated? how answered”), U.S.-, A. None at all. 116 S.Ct. Q. all, Judge. That’s prosecution presented no such foundation Sent. Tr. at 25. here. course, sentencing, At the usual federal Grajeda’s. Let us review the relevance of apply. rules of do evidence But lie detector test which was the focus of a presented in any this case lacked prior hearing sentencing. reliability trustworthiness or whatsoever. examiner never testified. The *8 word, Grajeda’s a the of “evidence” lie detec- qualifica- offered no evidence the such, tor test was worthless. As it was tions, any, if examiner. No was by no entitled to consideration the district presented to the district court. It un- is judge. if known the examiner even amade Moreover, Sent. Tr. at 27. ques- Grajeda’s We do not know the obvious intent to sac- Grajeda, tions the examiner asked sent. tr. at rifice his wife and children resulted from the 27-28, Indeed, Grajeda’s or answers. the prosecutor. actions and inducements of the only testimony relating polygraph prosecutor’s to the ex- The conduct is but another ex- individual, ample amination came from an Agent Attorneys of in drug United States Mendrala, allegedly spoke Don who family family with the cases who turn against member by telephone. examiner The entire invariably being testimo- member with the result the ny relating poly- on direct family examination of destruction the and harm to the graph test is as follows: children. A recent article in The Atlantic Although initially only 3. the district court stated that sent. tr. at the court mentioned the bases”, safety it denied the valve "on several examination. convict, duty special but to example of such a situ- cutor’s is not Monthly provided an Guerra, justice.” secure ation: Cir.1997) (citations threat- in Montana prosecutors Federal omitted). long prison sen- with a [Israel] ened only Although possessed Israel tence. hand, judge, is con- The trial on the other marijuana at the time of ounces of eight by the crimi- sentencing guidelines, fined arrest, con- broad federal under the code, presentence report and nal for she be held liable spiracy laws could short, charges prosecutor. In filed Israel many her husband’s crimes. of flexibility judge sentencing has little old, of years the mother four thirty-one right. he or she is Further- do what thinks never before young children. She had more, downward, judge prose- departs if the Judge Jack any with crime. charged been appeal. In my will often an cutors take in court that with- warned her Shanstrom appeal experience, the courts of all federal “you are not promise cooperation a of out prosecutors side with and not too often plus for ten your see children going to judges in these situations. Nevertheless, refused years.” Israel view, many my sentencing In federal was sen- testify against her husband. She justice, drug unworthy cases is American prison in federal years to eleven tenced pains it me that our citizens are sen- was sen- parole. Her husband without lengthy prison circum- tenced to terms under twenty-nine pa- years without tenced to presented here. stances such those What among Her children were scattered role. disturbing, that this perhaps, is most is ease various relatives. any respect significant not unusual in from is Madness”, Schlosser, “More Reefer Eric seemingly drug cases we endless review. Monthly, Apr. at 96. orn- Atlantic precisely the It is ordinariness manner pitted ease, prosecutor father an overzealous away in which we lock Donna Romero for incarcerate against mother order to end, years appalls In the five me. lengthier time. When Romero latter for a simply example prose- another overzealous test, prose- to take a lie refused detector sentences, cution, mandatory excessive simply retract his recommenda- cutor did improper and the destruction use of Instead, provision. tion for country’s families that from this results pursued a harsher for obstruc- he treatment its non-violent offenders. justice, five-year as if sentence for tion of insufficient this first offender was somehow study Drug Policy recent Center A course, it is the children punishment. Of Corporation, representing of the Rand “family values” on turning its who suffer cost first detailed examination of the effec- Fortunately, the dis- head in this fashion. sentences, mandatory tiveness of minimum government’s properly trict court denied the “Mandatory minimum sen- concluded justice adjust- request for obstruction justifiable are not on the basis of cost- tences atTr. ment. Sent. consump- at reducing effectiveness cocaine Ques- drug-related Study erimes[.]” outcome of this case results tion or sad improperly con- tions Costs to Harsher Cocaine Sen- structure which of Shift tences, Times, 13,1997, A13; prosecutor. at power upon May N.Y. see fers immense complete Hiveley, 61 F.3d exercises almost control also United States v. He or she *9 (8th Cir.1995) J., by determining (Bright, concur- process over the pursue ring). to dis- This case me to reflect on charges what and whether causes great legal philosopher agree English with the contained words of recommendation Jeremy “Every particle case Bentham: of real presentence As this demon- strates, produced, that is more than prosecutor, punishment bound what evidence, just necessary, misery is much run to introduce worth- is so rules free Bentham, Principles regardless Jeremy Pe- “prove” point evidence to of waste.” less Law, Jeremy Unfortunately, 1 The Works of Bentham “[o]verzealous its relevance. nal 1962). (John ed., encourage Bowring I prosecutors prose- forget sometimes Attorneys prosecute the United States who type cases to these words on a three tape
five card and it to their desks.
Therefore, I would reverse and remand for
resentencing. INC., INDUSTRIES, doing
PACE business Industries, Inc.;
as Precision In Pace
dustries, Inc.; Industries, Inc., Pace do
ing business as General Precision Tool Die, Inc., Industries, doing
& Pace busi Castings, Inc.,
ness as Automatic Peti
tioners,
NATIONAL LABOR RELATIONS
BOARD, Respondent. INDUSTRIES, INC., doing
PACE business Industries, Inc.;
as Precision In Pace
dustries, Inc.; Industries, Inc., Pace do
ing business as General Precision Tool Die, Inc., Industries, doing
& Pace busi Castings, Inc.,
ness as Automatic Re
spondents,
NATIONAL LABOR RELATIONS
BOARD, Petitioner. 96-1643,
Nos. 96-1943. Appeals, Court
Eighth Circuit.
Submitted Dec. 1996. July
Decided 1997.
Rehearing Suggestion Rehearing
En Sept. Banc Denied