United States v. James Richard Bello, United States of America v. James Richard Bello
767 F.2d 1065
4th Cir.
1985
Check Treatment

*1 concerning jury the voice charge to the His totally if not neut fair America, spectrogram Appellee, UNITED STATES of Therefore, com the district court’s

ral.16 spectrogram did regarding the voice ments BELLO, Appellant. Richard James reversible error. constitute not America, Appellee, UNITED STATES Remaining Issues E. allegation er- discussing each Without BELLO, Appellant. James Richard having carefully re- ror, we conclude the record and the briefs that none viewed (L), Nos. 84-5144 remaining trial appellants’ asserted Appeals, United States Court of sufficiently war- are meritorious to errors Fourth Circuit. rant reversal. Argued Feb.

VIII. July Decided CONCLUSION

Considering complexity prose- of this

cution, prosecution involving a two-week trial, testimony government from 80

jury and the introduction of 150 ex-

witnesses

hibits, particularly appropriate find we concluding

Judge Johnson’s remarks adopt equally appli-

Phillips, and them as facts case:

cable to the of this experienced appellate all trial and

As know,

judges virtually impossible it is

conduct a trial free of some technical ‍​​‌‌‌‌​​‌‌​​‌​​​‌​​‌​‌‌‌​​​‌‌​​‌​​‌​‌​‌​‌‌‌‌‌​‌​‍particularly true in

errors. This is

lengthy involving multiple defend- trials attorneys, and com-

ants and numerous prob-

plex procedural substantive and However,

lems. a defendant is entitled trial, perfect to a fair not a one.

We are convinced after careful and ex-

haustive review of the reсord that each trial, J., Murnaghan, dissented and filed an of the defendants received a fair omitted) (citations F.2d at 1044. appel- lants’ convictions are

AFFIRMED. evidence, upon your jury Depending The trial court instructed the as follows: view obligated you accept opinion are not you spectro- Now will recall that a voice you charge expert gram the voice identification if do con- was admitted into evidence. you spectrogram supporting opinion bаsis clude the reasons are expert’s opinion sound, contradictory the voice identification or if evidence casts testimony you you may disregard it, upon you or if conclude that doubt conclude that his was not expert are not scien- methods used education, training adequate based on or ex- tifically acceptable. perience, professed science of or that sufficiently print voice identification was not reliable, accurate, deрendable. *2 Hundt, (David Washington,

Reed E. D.C. Hazelton, Latham, Hills, R. Watkins & D.C., Washington, brief), appellant. on for Savage, Atty., James C. Asst. U.S. Balti- more, (J. Motz, Md. Frederick Atty., Baltimore, Md., brief), appellee. for WINTER, Judge, Before Chief MURNA- GHAN, MERHIGE, Judge, Circuit and Dis- Judge for the Eastern District of Vir- ginia, sitting by designation. MERHIGE, Judge. District appeal challenges, ‍​​‌‌‌‌​​‌‌​​‌​​​‌​​‌​‌‌‌​​​‌‌​​‌​​‌​‌​‌​‌‌‌‌‌​‌​‍This on due jeopardy grounds, and double imposed the sentence on the defendant-ap- conviction, pellant on one successfully appealed after he a number of Though disagreeing related convictions. appеllant’s contentions several im- portant respects, we find that the sentence is unconstitutional. Bello, appellant, initially James conspiring

convicted for to distribute coc aine,1 cocaine,2 distributing engaging and continuing enterprise.3 a On conspiracy each of the convictions for and distribution, judge imposed the district years imprisonment tences of five served concurrent with one another. Mr. eligible Bello on these sent ences.4 On conviction for enterprise, im posed twelve-year prison sentence consec statute, five-year By utive no term. imposed parole is available on a sentence (Count 1). imposed special pa- § 1. 21 U.S.C. 846 eight years the convictions for role term of as to (Counts 2-8); 841(a)(1) (Counts 2-8). those terms were to 21 U.S.C. distribution another, with one and in addition be concurrent imprisonment. parties (Count 9). 3. 21 U.S.C. 848 special raised the existence of these have not parole terms under the initial sentence in parties dispute eligibili- arguments, however. ty their under these sentences. enterp identify any justifying conduct or event engaging a sen- rise.5 providing tence for incarceration for the appeal, this court vacated On Bello’s first same term combined sentences on conspiracy distri- the convictions on the nine counts. But the sentence United States v. Raim- bution counts. appellant now faces is seventeen years ondo, (4th Cir.1983), *3 parole eligibility, with no in contrast to his — -, U.S. S.Ct. initial sentence of for engag- twеlve (1984). had appealed L.Ed.2d 74 Bello ing continuing in a enterprise criminal engaging continuing for conviction (which parole eligibility) carries no followed ap- enterprise. We dismissed that five for the cocaine conspiracy peal prejudice because the record without (which carry distribution convictions do fully developed, on that issue was not not- parole eligibility). ing could raise issue that Mr. Bello the Shortly re-sentencing, after his Mr. Bello separately by motion under 28 U.S.C. аppeal filed a timely notice of of the new id. at 476. 2255. sentence. he Several weeks later filed a convictions, held, so we were vacated motion correct the which the for of lesser included offenses count F.Supp. judge 102. enter- engaging in a Mr. Bello appeals that denial as well the vacated, Id. prise. With those convictions re-sentencing order itself. We address his engaging for in Mr. Bello’s conviction challenges constitutional below. remained, a Appellant re-sentencing contends that matter and we remanded the the trial because, process due violates while the sec resentencing. court for We cited several ond sentence than the is more severe initial proposition recent cases for the sentencing package7 account of the ab judge im- re-sentencing, the district could parole eligibility, judge of the district sence pose any penalty authorized statute for provide any proper did not reasons in the conviction that ob- remained — creasing the of the sentence. The punishment imposed on that the Government, however, contends that the remand not exceed the no more severe than the latest sentence is counts, initially imposed on all unless the Further, original sentencing package. process judge satisfied the due limi- if the argues that even Pearce, North Carolina tations of severe, it does not due tence more violate 2072, 23 proсess. remand, imposes certain judge recognized process On Due limita record, prison nearly judge that tions on a sentences a defendant after who successfully ap prison,6 two reflected “reha has that taking place.” pealed bilitation He and has been reconvict- ... conviction 848(c) provides: process pro- Appellant argue due 5. Section of Title 21 does not (absent compliance re- hibits with Pearce any under the case section, quirements) any whatever this increase ... section of Title 18 rather, sentence; argues only [which was the section he providing (absent compliance Code when Sec- process prevents that due ..., 848(c) apply. tion shall not Pearce) enacted] any in the sentence that increase origi- the entire make than it more severe re-sentencing hearing, appellant’s At coun- non-paroleable sentencing package of twelve nal appellant spent "nearly sel had stated that two paroleable years. years and five consecutive years” Transcript prison. of Re-sentenc- no occasion to decide p. Hearing Ap- of March Joint prevents process increase in whether due pendix opening appeal, at 44. His brief this whatever, as an however, as well increase the sentence appellant impris- states that thirty had been sentencing package. (30) beyond the entire initial oned sentencing. at the months time of re- Appellant, See Brief at 3. The here, discrepancy is not relevant however. re-sentencing, apparently attempted or suffers other convic- to ef- the offense ed on. appropriate. fectuate his on which tions impose a sentence judge for a In order First, suggests the Government initially imposed, than the one light sentencing judge’s ex “affirmatively identify[ must ] pressed unimpeached desire at re-sen conduct or events occurred relеvent tencing original sentence, to effectuate his sentencing pro- subsequent re-sentencing pre raises no reasonable ceedings.” v. United Wasman sumption requires of vindictiveness that —, —, 82 justification by sentencing judge. This L.Ed.2d see also North Caroli- unpersuasive. Pearce, Since Pearce, na v. 395 U.S. at 89 requires that where a sentences a S.Ct. at 2081. severely defendant more after the defend “presumption ant’s successful *4 that the We have no doubt subse raised, vindictiveness” see United States quent is more severe than the Goodwin, 368, 374, 457 U.S. 102 S.Ct. correct, original The one. Government 2485, 2489, (1982), may 73 L.Ed.2d 74 course, sentences Mr. that under both sentencing judge’s be overcome prison term of seventeen Bello faced a total advancing appropriate reasons. The stated, But, years. as we have under the Government has not cited hold cases portion orig later sentence—unlike a presumption is not raised parole. Al ineligible inal one—Bello is sentencing judge expressed where the imposed by judge a later sentence original desire to effectuate his sentence on imprisonment as is for an identical term of resentencing. perceive any per We one, the initial it ‍​​‌‌‌‌​​‌‌​​‌​​​‌​​‌​‌‌‌​​​‌‌​​‌​​‌​‌​‌​‌‌‌‌‌​‌​‍is nevertheless more se exception suasive reason to create such an pro purposes vere for of due Regardless sentencing judge’s here. vides for consideration later than intent, expressed the increased the initial sentence. See Unitеd States v. the later sentence would create a reason Gilliss, 1269, (8th Cir.1981); 645 F.2d 1283 apprehension able of vindictiveness de Hawthorne, 318, United States v. 532 F.2d fendants, Bello, might such as Mr. (3d Cir.), 894, 323-24 429 U.S. cert. taking well deter them from meritorious 254, 97 S.Ct. 50 L.Ed.2d 177 against appeals. process protects Due this. cf. — 56, (4th F.2d 60 re United 588 Wasman, at -, supra, U.S. 104 See Cir.1978) (order allowing possibility (Powell, J., concurring, joined at S.Ct. 3225 earlier is a reduction of sentence and Blackmun, J.); at-, id. 104 S.Ct. at 35), governed by J., is therefore Fed.R.Crim.P. (Brennan, concurring, joined by 2004, 909, J., 441 U.S. 99 S.Ct. 60 Marshall, J.); (Stevens, concurring). id. (1979). If, here, as the re-sen (and related) argument The second tencing imprison is for the same term of position support of the Government’s original pro ment as the sentence—but presumption if the of vindictive even consideration, vides for no rather raised, sentencing judge ness has been as in than for later consideration by expressing adequately rebutted it here and Hawthorne —it is a Gillis fortiori original his desire to effectuate the more than the sentence. severe argumеnt, sentence. This in our impo- persuasive than the The Government contends that the no more first. occasion, Supreme recently subsequent sition of the sentence—even if Court has had Wasman, sorts of supra, one—does to consider the than judge may ad process. Although sentencing reasons that a violate completely developed justify has not vance to a more severe them, suggested essentially Supreme it has two ar- The indicated Wasman identify “relevant cоn guments must its contention. Both are subsequent to grounded in occurred judge, the fact that at duct or events that original sentencing proceedings.” 818, (1968), See 88 S.Ct. 19 L.Ed.2d 871 as well Wasman, at-, U.S. 104 S.Ct. See, e.g., others. United States v. already at 3225. Court had made clear Jefferson, (7th 706-07 Cir. in Pearce that “relevant conduct or events” 1983)(citing cases from various circuits for light upon are those that throw “new proposition, this although rejecting the ‘life, health, habits, conduct, defendant’s proposition). Supreme Court itsеlf ex- ” propensities.’ and mental and moral Id. pressed fifty years this view over ago. See at-, (Powell, J., at S.Ct. Benz, 304, 307, United States v. 282 U.S. concurring), quoting North Carolina v. 75 L.Ed. 354 Pearce, supra, 395 at at S.Ct. theory position behind such a is that an Whitley, 2079.8 increase in after service has (1985) (en banc), (due commenced multiple punish- constitutes a process bars increased sentences where no offense, see, ment for the same e.g., Pat- intervening justifies conduct or event ton, supra, 381 F.2d at which the increase). A judge’s intent to prohibits. effectuate the initial sentence is not such Pearce, supra, North Carolina v. event, conduct or such an of course. S.Ct. post-appeal DiFrancesco, In United States v. presumption tence raises a of vindictive 66 L.Ed.2d 328 ness because it is more severe than his (1980), Supreme Court ‍​​‌‌‌‌​​‌‌​​‌​​​‌​​‌​‌‌‌​​​‌‌​​‌​​‌​‌​‌​‌‌‌‌‌​‌​‍declined to ad- presumption initial sentence. That is not *5 specific dress the issue of whether the Dou- sentencing rebutted the fact that Jeopardy precludes ble Clause an increase judge apparently attempted to effectuate punishment for a conviction once a de- Further, the sen begun fendant has to serve the sentence. tencing judge identified no other factors 134, (“we at 101 See id. S.Ct. at 436 ven- presumption. would rebut Accord limitation”). ture no comment as to this In ingly, post-appeal sentence of reading DiFrancesco, the narrowest of process. fends due appellant urges, which merely the case discussed, previously appellant As has Jeopardy holds that the Double Clause argued process grounds on due that his preclude does not an increase in a sentence post-appeal sentence could not be more se- directly appeals where the Government vere than his entire initial pack- pursuant specific statutory that sentence age: twelve without and five authority. Robinson, See Ralston v. consecutive eligibility. 201, 3, 233, 3, n. 102 S.Ct. 247 n. Jeopar- Bello also contеnds that the Double (1981)(Stevens, J., 70 L.Ed.2d 345 dissent- dy Clause limits his sentence even further. ing). precludes He claims that it increasing from sen- Although appellant correctly whatever, any way tence in began once he specific problem stated the before the Su- serving his sentence. preme DiFrancesco, reasoning opinion of Justice Blackmun’s for the ma- appellant argues, long it and was jority specific held, beyond went facts of the Jeopardy pre Double Clause case, undеrcutting any gener- the basis for being vents a sentence from increased af Jeopardy ter al rule that the begun a defendant has to serve it. court, precludes That sway view held in this a sentence increase once see Pat the de- Carolina, 636, ton v. North 381 F.2d fendant has commenced the sen- (4th Cir.1967), denied, 905, First, majority opinion cert. 390 U.S. tence. discred- Wasman, Burger 8. The process. supra, of Chief Justice in Was- U.S. at -, may any "legitimate man have intimated that 104 S.Ct. at 3222. But a justification” nonvindictive join should suffice to re- Court declined to the Chief Justice in that presumption satisfy but a portion of vindictiveness and of his Cir.), authority general ited Benz as for such cert. 439 U.S. 103 S.Ct. DiFrancesco, rule.

138-39, Second, Busic, it fo- (3d Cir.), 101 S.Ct. cused on whether the defendant held a

legitimate “expectation finality” of as to 69 L.Ed.2d 422 sentence, order to determine We conclude that a jeopardy double increasing the whether sentence later was challenge appellant’s such as must be re multiple punishment. tantamount Id. jected. above, As discussed DiFrancesco Jones, See also United States inquiry directs the Court’s to whether the (11th Cir.1983). although And legitimate expectation defendant had a of acknowledged might argued that “it finality as to the of his perceives that the defendant of in order to determine whether an increase finally determined when he his sentence as essentially multiple sentence is it,” begins majority opinion to serve punishment for the same offense. The also observed that “the Double urges because Mr. Bello provide Clausе does not the defendant with himself initiated the he has no ex right any specific to know at moment in pectation ‍​​‌‌‌‌​​‌‌​​‌​​​‌​​‌​‌‌‌​​​‌‌​​‌​​‌​‌​‌​‌‌‌‌‌​‌​‍finality. of We do not find this time what the exact limit of his dispositive. important More is the fact Id., will turn out to be.” 449 U.S. at appeal eight that his successful convic at 437. This observation tends to grounded tions being on their lesser undermine the view that the moment at included offenses of the crimi begins serving which a defendant his sen- offense, nal for which he also necessarily triggers expectation tence an perceive convicted. We do not how a finality purposes addressing double expecta defendant can have a reasonable jeopardy problems. finality tion of in a sentence for an offense light DiFrancesco, several federal appeals where the defendant the convic appeals rejected jeop- courts of have double tions on other offenses as lesser included ardy challenges to increased sentences in *6 offenses. It would often be a windfall for presented circumstances similar to those the defendant to have a reduced sentence here. successfully Where defendant has after such an in view of the fact appealed ground convictions on the that the defendant remains convicted of the they were lesser included offenses of other original same conduct for which the offenses for which the defendant remained tencing package imрosed. find no We (or grounds convicted of similar sentenc- jeopardy double in violation ing error), courts since DiFrancesco have judge’s sentence.9 held that the Jeopardy Clause does preclude increasing above, not the sentence on process preclud As discussed remaining offense to effectuate the sen- ed the district from tencing judge’s intent, imposing even a sentence more severe than the begun already the defendant has initial sentence. We believe that subse quent the sentence. subjected See United States v. sentence should not have Jeffer- son, 707; supra, 714 F.2d any greater period McClain v. Mr. Bello to of incarcer States, (2d United ation than he was certain under to serve appellant argues Although 9. The that United States v. id. at the court in Jones Jones, supports position. violation, his jeopardy found a double the circum- Jones, however, reasoning opin- The like this materially stances were different from those iоn, legitimate expec- focuses on the defendant’s appealed here: his the defendant had not con- sentence; finality tation of of his offenses; rather, victions on lesser included opinion rejects the view that the Double district court on its own initiative had increased precludes an increase in sen- by sentence because its own error it begins tence once a to serve it. See parties ly However, cannot part his initial sentence.10 stand. I company Mr. Bello would have been dispute that with the as to how the district serving twenty eligible for judge may resentence. I am unable to sentence, five-year prison of his months accept majority’s assumption flat following term. none of the properly sentence can be sub- free to re-sentence him ject light 848(c): in of 21 U.S.C. § enterprise on the count any the case of un- have to a term that would increased section, imposition der this or execution of incarceration no morе than of such sentence shall suspended, not be is, twenty months —that to a term of thir probation granted____ shall not be years eight teen months. disagree I with the conclusion that Count Nine is permissible maximum sentence is 13 REMANDED FOR RESENTENCING. (12 eight months plus 20 months The sentence should not exceed thirteen which mark the time which would have to eight months. elapse eligibility event before arise). could my reach conclusion MURNAGHAN, Judge, Circuit dissent- by considering prohibition pa- what the ing: role committing for those convicted of partial A dissent is drawn from me be must have accept cause I am unable to a literal statu By 848(c), meant. the inclusion of Con- § tory construction so at odds with the evi gress simply increase, intended to not to Congressional simply dent intent reduce, the time a convicted criminal Holy Trinity the law. Rector cannot stay prison. Church v. United (1892).1 36 L.Ed. 226 majority agrees that a statute, permitted by years, of 17 the last 5 question simple. prior sen- of which are subject unparolable tence called for one term 12оf proper, here wholly have been i.e. constitu- years, having engaged been a con- level, Descending statutory tional. tinuing enterprise, followed my despite 848(c), 21 U.S.C. such spate year sentences, of concurrent 5 all of Congress a sentence is not forbidden. subject parole. year which were The 5 mandate, intend a situation like grounds sentences were all vacated on the one, present release on in no underlying that the crimes them were less- years eight morе than 13 months. It did er included offenses. On remand the dis- judge imposed year eligible pa- a 17 mean to make the criminal sentence un- months, der 21 proper- years eight keep U.S.C. 848. That sentence role in 13 but to *7 application injustice, had misunderstood the circumstances relevant their as not to lead to ability to the defendant’s to make restitution. oppression consequence. or an absurd It will therefore, always, presumed legis- limiting We realize judge exceptions language lаture intended to its imposing to a sentence that does not incarcerate which would avoid results of this character. beyond any period that he was The reason of the law in such cases should serve, perfect certain to equivalent we do not fashion a prevail over its letter.” per- sentence. But a my interpretation To a criticism that stands equivalent impossible, parole fect is because is head, the statute on its it should be observed statutorily precludеd. period We focus on the speech meaning that literal and intended are the defendant was "certain to serve” under the not, every case identical. Here one must appear initial sentence because it would keep language by standing intact the mean- focusing anything else—such as the head, ing way on its or do the reverse. Either “reasonably likely he was to serve”—would in- is, the statute ain sense "turned on its head.” speculation volve undue about both defend- choiсe, making prefer preserve I ant’s future decisionmaking. mean- behavior and the board’s expression rather than an at clear odds intent. should receive a sensible 1. "All laws construc- tion. General terms should be so limited in years him for the full 17 incarcerated he in such a fashion as to misbehaved render MYERS, Appellee, Donald R. ineligible parole. him language 848(a) U.S.C. con- America, UNITED STATES of Office of

templates imprisonment up to life. When a Management; Personnel and Donald J. in his upon discretion hits Devine, Director of Office Personnel combination of sentences for offenses sub- Management; Defendants, sequently determined, because all one but and offenses, were lesser subject included not, only, Congress to one Special Agents Mutual Benefits when it improve forbade mean to Association, Inc., Appellant. things by insisting for the criminal on re- Company Prudential Insurance lease on as soon as the earliest date America, Amicus Curiae. reached, еligibility even in disqualified by case of unseemly someone MYERS, Appellant, Donald R. parole. behavior from Consequently, implicit I find America, UNITED STATES Office of 848(c) addendum, reading U.S.C. an Management; Personnel Donald J. De- something like this: vine, Director of Office Personnel “unless, extent, Management; Special Agents Mu- mandated constitutional considera- Association, Inc., Appel- tual Benefits tions.” lees. Therefore, my paragraph the final should read: Company Prudential Insurance America, Amicus Curiae. Count Nine is REMANDED FOR RESENTENCING. 84-1569(L), Nos. The sentence should not exceed seven- Appeals, United States Court of years, years teen the last five of which Fourth Circuit. subject parole. shall be course, some, Of Argued May 8, would necessitate extensive, modification of the July Decided foregoing reasons set forth in majority With much of what the myself agreement. written find It and 4 months between years eight months and 17 which improperly seem to me treated. The dis- be able include them long everything so over subject parole.