UNITED STATES OF AMERICA versus CHARLES O. SHONUBI
CR 92-0007
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
962 F. Supp. 370; 1997 U.S. Dist. LEXIS 5427
April 21, 1997, Decided
SUBSEQUENT HISTORY: As Amended May 20, 1997.
COUNSEL: For the United States:
Zachary Carter, Esq., United States Attorney, Brooklyn, NY, By: Peter A. Norling, Esq.
For Defendant: David Secular,
Esq., New York, NY.
JUDGES: JACK B. WEINSTEIN, SENIOR
UNITED STATES DISTRICT JUDGE
OPINIONBY: JACK B. WEINSTEIN
OPINION:
AMENDED MEMORANDUM, ORDER
AND JUDGMENT
WEINSTEIN, Senior District
Judge:
I Introduction
II Procedural History
III Sentence
IV Guideline Injustices
V Avoiding Guideline
Injustices
A.
Unconstitutionality
B.
Moderating Effects of Acquitted Conduct
C.
Changing Preponderance-of-Evidence Standard
D. Techniques Employed by Prosecutors and Judges
VI Requiring "Specific
Evidence" as a Mitigation Technique
A.
Incompatibility with Rules of Evidence
B.
Courts' Urge to do Justice
VII Conclusion
I Introduction
This cause for resentencing suggests
some of the quandaries faced by trial and appellate judges in attempting to
minimize the injustices and inutile cruelties required by the Sentencing
Guidelines. The court of appeals' mandate requiring a reduced sentence of at
least 97 months in prison must be followed. Even as reduced by the court [**2] of appeals the sentence
is harsh by pre-Guideline standards. The reduction required by the court of
appeals is thus desirable as a matter of policy and fairness. Unfortunately,
the technique and rationale utilized by the court of appeals in justifying the
result is of dubious validity.
II Procedural History
In United States v. Shonubi, 802 F. Supp. 859 (E.D.N.Y. 1992)
("Shonubi I"), the trial court found that the defendant had made
eight related heroin smuggling trips; it sentenced him, based on a total
estimated quantity of 3419.2 grams with a Guideline range of 151 to 188 months,
to 151 months in prison. In United States v. Shonubi, 998 F.2d 84 (2d Cir.
1993) ("Shonubi II") the court of appeals concurred with the trial
court's finding that defendant engaged in eight related smuggling trips --
making this the law of the case -- but remanded because it was not satisfied
with the basis for the finding of the total amount smuggled. It held, "We
agree with the District Court's factual determination that Shonubi's travel ...
was part of the same course of conduct as the instant offense." Id, at 89.
In United States v. Shonubi, 895 F. Supp. 460 (E.D.N.Y.1995)
("Shonubi III), after extensive evidentiary hearings and experts' reports,
the trial court found the total smuggled amount to be between one to three
kilograms. It resentenced the defendant to 151 months
-- the lowest point in the adjusted applicable Guidelines range of 151 to 188
months. In United States v. Shonubi, 103 F.3d 1085 (2d Cir. 1997)
("Shonubi IV") the court of appeals reversed and ordered that the
defendant's sentence be based only on the "quantity of drugs Shonubi
carried on the night of his arrest" -- 427.4 grams. Id. at 1092.
Adjusted upward by two levels for perjury, as required by Shonubi II, this
leads to a guideline range of 97 to 121 months.
III Sentence
Upon remand, defendant, who has no prior record and was gainfully
employed, is sentenced to the lowest point in the Guideline range now required
by the court of appeals, 97 months in prison. Since he has no known assets he
is not fined, but is assessed $ 50 as required by law. A supervised release
term of five years will not need to be served in this country. It is assumed
that as a non-citizen, defendant will be promptly deported after the time for
appeals has expired.
This shortened term of imprisonment is entirely appropriate to the
crime and to the defendant even though it is based upon a radical
interpretation of the Federal Rules of Evidence, the Sentencing Guidelines and
the Supreme Court precedents by the court of appeals to obtain a more
"just" result. Even as ameliorated, the sentence is longer than it
would have been under pre-Guideline practice where excessively short or long sentences
were avoided. In the Eastern District of New York, for example, three judges
and the Chief Probation Officer met to discuss each sentence in depth.
Excessive sentences throughout the country were limited by the Parole Board's
protocols on release.
Under the current
Guidelines' "real-time" regime, no such mitigation is possible.
Defendant cannot be paroled after serving only a portion of the sentence
imposed, and reduction is limited to a maximum of fifty-four days per year for
good time. See Comprehensive Crime Control Act of 1984, Pub.L.
No. 98-473, Title II, §
235, 98 Stat. 2031-2034 (1984) (abolishing the Parole
Commission); 18 U.S.C. § 3624(b).
IV Guideline Injustices
Guideline sentences in drug cases involving couriers are often
inordinately long -- and substantially discriminatory in their effect on
minorities -- partly because, unlike other crimes where the ranges provided by
the Sentencing Commission were based on statistical summaries of the way the
courts sentenced in the past, drug offenses tables were unnecessarily pegged to
high minimum statutory terms. Mary Pat Flaherty and Joan Biskupic,
Rules Often impose Toughest Penalties on Poor,
Minorities, Wash. Post, Oct. 9, 1996, at A1. Another reason for the
disturbingly long prison terms of many drug sentences is the widely condemned
"relevant unconvicted conduct" provision of
the Guidelines. See U.S.S.G. § 1B1.3. As the court of appeals noted
in Shonubi IV,
the Guidelines ... took the extraordinary and totally unprecedented
step of punishing the relevant conduct at precisely the same degree of severity
as if the defendant had been charged with and convicted of the activity
constituting the "relevant conduct." No other guideline system in any
of the states has instituted such an approach to punishment.
United States v. Shonubi,
103 F.3d 1085, 1088 (2d Cir.1997).
There is a "conviction among many judges that they are
participating in an unjust procedure." Robert W. Sweet, D. Evan van Hook,
and Edward V. DiLello, Towards a Common Law of
Sentencing: Developing Judicial Precedent in Cyberspace, 65 Ford. L. Rev. 927,
935 (1996); Joan Biskupic and Mary Pat Flaherty, Loss
of Discretion Fuels Frustration On Federal Bench: Most District Judges Want
Shift in Sentencing Rules, Wash. Post, Oct. 8, 1996, at Al (quoting Judge James
M. Ideman that guidelines have substituted one set of
injustices for another"'); see also, e.g., United States v. Kalb, 105 F.3d
426, 430 (8th Cir.1997) (Bright, J., dissenting) (Federal judges'
"dismay[]" at the impact of mandatory and guideline sentencing);
United States v. Ruffin, 997 F.2d 343, 344 (7th Cir.1993) ("the Guidelines
are bound to leave many judges believing that they have been instructed to
impose unjust sentences"); United States v. Baker, 961 F.2d 1390, 1393
(8th Cir.1992) (Bright, J., concurring); (This case is another example of rigid
Guidelines producing inequity and injustice in sentencing . . ."); United
States v. Silverman, 976 F.2d 1502, 1520 (6th Cir.1992) (Merritt, C.J., dissenting)
("The [Supreme] Court's unwillingness to confine the Sentencing Commission
and its Guidelines within applicable statutory and constitutional limitations
is unfortunate because of the grave injustices it allows . . . .").
Most judges "strongly prefer a system in which judges are
accorded more discretion than they are under the current guidelines. Judges
would prefer that the guidelines be advisory or that, if they continue to be
mandatory, sentencing judges be given more opportunity to exercise discretion .
. ." Molly Treadway Johnson & Scott Gilbert,
The U.S. Sentencing Guidelines: Results of the Federal Judicial Center's 1996
Survey 3 (1997).
V. Avoiding Guideline
Injustices
The Guidelines have had the unfortunate ancillary result of
creating unusual tensions among and between normally collegial trial and
appellate judges as they struggle to conform to a system so many consider
unjust, unfair and counterproductive. In order to avoid injustices required by
the Guidelines, federal courts have tried a number of techniques.
A. Unconstitutionality
First, shortly after the Guidelines' enactment some courts
declared them unconstitutional. See, e.g., United States v. Davis, 715 F. Supp.
1473, 1477-78 (C.D.Cal.1989) (Guidelines unconstitutional due to limitations on
sentencing discretion), overruled by United States v. Wilson, 900 F.2d 1350
(9th Cir.1990); United
States v. Alafriz, 690 F. Supp. 1303, 1310-11
(S.D.N.Y.1988) (Guidelines unconstitutional as denying due process right to
individualized sentence by judge), overruled by United States v. Vizcaino, 870 F.2d 52 (2d Cir.1989). The Supreme Court then
declared the Guidelines constitutional. United States v. Mistretta, 488 U.S. 361,
109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).
B. Moderating Effects of Acquitted Conduct
Second, some courts ruled that acquitted offenses could not be
used in enhancing penalties where the defendant had been acquitted of the
offense. See, e.g., United States v. Putra,
78 F.3d 1386 (9th Cir.1996). The Supreme Court rejected this exception
on the ground that the burden of proof for the sentencing court was less than
that for the jury so that collateral estoppel would not apply. United States v. Watts, 136
L. Ed. 2d 554, 117 S. Ct. 633 (1997).
The court of appeals for the Second Circuit has attempted to
mitigate in acquittal cases by a different technique, permitting "a
downward departure from the sentencing range calculated on the basis of acquitted conduct."
United States v. Shonubi, 103 F.3d 1085, 1088, n.2 (2d
Cir.1997). This escape route seems dubious in light of the Supreme
Court's opinion in Watts, which treats acquitted conduct the same way as any
other conduct.
C. Changing Preponderance-of-Evidence Standard
Third, where a relevant conduct adjustment may increase
significantly the severity of a sentence, some courts have avoided the
Sentencing Commission's preponderance-of-the-evidence standard for resolving
disputed fact issues at sentencing. See U.S.S.G. § 6A1.3 commentary. As the court of
appeals for the Second Circuit pointed out in Shonubi IV:
we have ruled that a more rigorous standard should be used in
determining disputed aspects of relevant conduct, where such conduct, if
proven, will significantly enhance a sentence.
United States v. Shonubi, 103 F.3d 1085, 1089
(2d Cir.1997); United States v. Gigante, 94 F.3d 53,
56-57 (2d Cir. 1996) ("The preponderance standard is no more than a
threshold basis for adjustments and departures, and the weight of the evidence,
at some point along the continuum of sentence severity, should be considered
with regard to both upward adjustments and upward departures"); see also
United States v. Kikumura, 918 F.2d 1084, 1102 (3d
Cir.1990) (in circumstance involving twelve-fold upward departure clear and
convincing standard is . . . implicit" in 18 U.S.C. § 3553(b)); United States v. Townley, 929 F.2d 365 (8th Cir. 1991) (same); but see,
United States v. Washington, 11 F.3d 1510, 1516 (10th Cir.1993) ("As
concerns making guideline calculations the issue of a higher than a preponderance
standard is foreclosed in this circuit").
It is worth noting that almost a third of the judges responding to
the Federal Judicial Center's 1996 survey on the Guidelines believe that
"facts of conduct outside the offense of conviction should be subject to
the more stringent clear and convincing evidence' standard." See Molly Treadway Johnson & Scott Gilbert, The U.S. Sentencing
Guidelines: Results of the Federal Judicial Center's 1996 Survey 14-15 (1997).
This view relates to all relevant conduct, not just those cases where the
relevant conduct adjustment may increase significantly the severity of the
sentence.
The approach of a variable standard for burdens of proof as to
critical factual issues was common in pre-Guideline sentencing. See United
States v. Fatico, 458 F. Supp. 388, 409 (E.D.N.Y. 1978) (sliding scale for burdens
of proof in sentencing depending upon the seriousness of a finding's impact),
affirmed, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 62 L. Ed.
2d 755, 100 S. Ct. 1018 (1980). It has been widely followed in practice among
judges under the Guidelines. See A Trial Judge's Second impression of the
Federal Sentencing Guidelines, 66 S. CAL. L. REV. 357, 360-63 (1992) (survey of
judges in the Eastern and Southern Districts of New York showing that most
implicitly raise the burden of proof on critical factual issues); cf. Woodby v.
Immigration and Naturalization Service, 385 U.S. 276, 286, n.2, 87 S. Ct. 483,
488, 17 L. Ed. 2d 362 (1966) (practical flexibility of a theoretically rigid
standard: "This standard of proof applies to all deportation cases,
regardless of the length of time the alien has resided in this country. It is
perhaps worth pointing out, however, that, as a practical matter, the more
recent the alleged events supporting deportability, the more readily the
government will generally be able to prove its allegations by clear,
unequivocal and convincing evidence"). Jurors also often utilize a burden
of proof standard that varies with the seriousness of the matter even though,
technically, they are applying a unitary beyond a reasonable doubt standard. Cf. Noto v. United States, 367 U.S. 290, 299-300, 81 S. Ct.
1517, 6 L. Ed. 2d 836 (1961) (membership crimes; "strictissimi
juris"); see also, Vargas v. Keane, 86 F.3d
1273, 1281 (2d Cir.1996)(concurrence) (survey of jurors); John H. Mansfield,
Norman Abrams, Margaret A. Berger, et al., Evidence, Cases and Materials 1140
(8th ed. 1988).
The shifting burden of proof technique for avoiding injustice
retains vitality and continued utility. Although the Supreme Court rejected
characterizing a sentence enhanced on acquitted conduct as inherently
exceptional, United States v. Watts, 136 L. Ed. 2d 554, 117 S. Ct. 633, 637-38
(1997), it acknowledged "a divergence of opinion among the Circuits as to
whether, in extreme circumstances, relevant conduct that would dramatically
increase the sentence must be based on clear and convincing evidence."
Noting that the case before it did not present such "exceptional" or
"extreme" circumstances, the Watts Court declined to address this
issue, thus preserving the viability of the approach. 117 S. Ct. at 637-38; see also McMillan v.
Pennsylvania, 477 U.S. 79, 88, 106 S. Ct. 2411, 2417, 91 L. Ed. 2d 67 (1986)
(preponderance standard sufficient where there is no allegation that the
sentencing enhancement is "a tail which wags the dog of the substantive
offense"); see also, Addington v. Texas, 441
U.S. 418, 423, 99 S. Ct. 1804, 1808, 60 L. Ed. 2d 323 (1979) ("The
standard [of proof] serves to . . . indicate the relative importance attached
to the ultimate decision"); David N. Adair, Jr, Commentary: House Built On
Weak Foundation -- Sentencing Guidelines and the Preponderance Standard of
Proof, 4 Fed.Sent.Rep. 292
(April/May 1992) (same).
D. Techniques Employed by Prosecutors and Judges
Fourth, the most common methods today of successful amelioration
are utilized at the prosecutorial and trial level. Reduced charges, plea
agreements, stipulations as to facts, and 5K.1 letters for substantial
assistance are widely used by United States Attorneys See United States
Sentencing Commission, 1995 Datafile Prepared for the
Eastern District of New York 11 (Aug 1996) (substantial assistance departure
was sought in 19.7% of all cases nationwide, October 1, 1994 to September 30,
1995). The sentencing court, in addition to assisting the prosecutor in
arriving at sensible sentences, departs -- usually downward -- utilizing
specific conditions of the particular case to justify a finding that the Sentencing
Commission did not adequately consider defendant's or the crime's special
circumstances. In most cases the prosecutor cooperates by not appealing. Cf.,
e.g., Mark D. Harris & Douglas A Berman, The Koon
Case: Departures and Discretion, in Symposium on Koon
v. United States, 9 Fed.Sent.Rep. 4, 5
(July/Aug.1996) ("Court-initiated departures have become less frequent
over time because of two related developments: (1) an increase in plea
agreements that do not allow either side to seek departures, and (2) skillful
guideline manipulation that allows the parties to obtain the sentence they
think appropriate without needing to escape the calculated guideline
range"). In the instant case, neither counsel nor sentencing judge could
justify an upward departure or downward adjustment.
VI Requiring "Specific Evidence" as a Mitigation
Technique
The court of appeals in Shonubi II and IV relied upon a unique
method of mitigation. It required "specific evidence" to prove the
"relevant conduct quantity" of drugs under the Guidelines. As it
wrote in Shonubi IV:
"specific evidence" we required to prove a
relevant-conduct quantity of drugs for purposes
of enhancing a sentence must be evidence that points specifically to a
drug quantity for which the defendant is responsible. By mentioning "drug
records" and "admissions" as examples of specific evidence we
thought it reasonably clear that we were referring to the defendant -- his
admissions and records of his drug transactions. And by "live testimony"
we were referring to testimony about his drug transactions.
United States v. Shonubi,
103 F.3d 1085, 1089-90 (2d Cir.1997) (emphasis in original).
A. Incompatibility with Rules of Evidence
The problem with requiring a special restrictive category of
evidence for sentencing purposes is that Supreme Court precedents, the United
States Code, and the Federal Rules of Evidence reject this approach. See
e.g. Williams
v. New York, 337 U.S. 241, 247, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949); United
States v. Watts, 136 L. Ed. 2d 554, 117 S. Ct. 633, 635 (1997); see also 18
U.S.C. § 3661 ("No limitation shall
be placed on the information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence");
U.S.S.G. § 1B1.4.
The capstone provisions of the Federal Rules of Evidence are Rules
401 and 402. Rule 401 defines relevant evidence as generally as possible in
terms of whether a trier would find in it any tendency to affect evaluation of
the operative facts. It reads:
Rule 401.
DEFINITION OF "RELEVANT EVIDENCE"
Relevant evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.
Rule 402 makes all relevant
evidence admissible except as otherwise specifically provided by the
Constitution, Congress, or rules adopted by the Supreme Court:
Rule 402.
RELEVANT EVIDENCE GENERALLY ADMISSIBLE;
IRRELEVANT EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by Act of Congress, by these rules,
or by other rules prescribed by the Supreme Court pursuant [**17] to statutory authority. Evidence which is not
relevant is not admissible.
The sentencing court has the
broadest discretion in determining admissibility and evaluating probative
force. See, e.g., FED.R.EVID. 104(a)(b),
401, 402, 403. The Federal Rules of Evidence are further explicitly broadened
because they do not limit admissibility in the case of sentencing except as to
privileges. See FED.R.EVID. 1101(d)(3).
What the Rules do not do is categorize, for exclusionary purposes,
or for purposes of requiring certain evidence for certain crimes, forms of
relevant evidence such as direct, circumstantial, or "specific." The
new vaguely defined classification of "specific evidence" relied upon
by the court of appeals in Shonubi ii and IV is not only unauthorized by controlling
case law and the Federal Rules of Evidence, it runs counter to our modern
theory of forensic evidence. The unique Second Circuit rule represents a
retrogressive step towards the practice relied upon from the Middle Ages to the
late Nineteenth Century, which often limited the use and weight of evidence by
category of evidence and type of case. See United States v. Shonubi, 895 F.
Supp. 460, 492-99 (E.D.N.Y.1995) (Part IX, the general rule favoring admissibility
of, and reliance on, all helpful evidence); Essay, Some Difficulties in
Determining Truth in Judicial Trials, 66 COLUM.L.REV. 223,
234 (1966).
The specific evidence requirement of Shonubi I and IV is a
denigration of the modern evidentiary principles of free admissibility and free
evaluation of probative force by the trier that is the fundamental tenet of
Twentieth Century evidentiary developments based on the work of such leaders in
the field of evidence as Professors James Bradley Thayer, John Henry Wigmore,
Jerome Michael and Edmund M. Morgan -- as well as of Congress and the Supreme
Court in adopting the Federal Rules of Evidence. Exclusion of evidence because
it is not "specific," or giving such evidence special weight, or
requiring such evidence as a basis for a finding, is not appropriate under
current federal practice, absent a basis in the rules, statutes or
constitution. There is no such basis for the "specific evidence" rule
in sentencing cases such as Shonubi.
It is possible, of course, that the evidence admitted by a trial
judge at a trial or sentencing will not rationally support a conclusion to the
requisite degree of probability. The evaluation of probative force and conclusions
drawn from the evidence must be rational and burdens of proof can be varied to
provide greater protection to one side or the other. In theory, the court of appeals
in Shonubi II and IV appropriately could have ruled that the sentencing court
in Shonubi I and III could not rationally have reached the result it reached.
The wide discretion afforded the trier in evaluating evidence, however, makes
this approach somewhat unusual and difficult to justify. See e.g., United
States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995)
(district court's finding of fact upheld unless clearly erroneous), cert.
denied, 116 S. Ct. 1671, 134 L. Ed. 2d 776 (1996); United States v. Koon, 135 L. Ed. 2d 392, 116 S. Ct. 2035, 2046 (1996)
("traditional sentencing discretion"). This basis for reversal, while
trenching on the district court's role, does not create a dubious rule of
evidence for sentencing.
For reasons of policy it is also possible to justify a rule of
evidence making conviction or sentence more difficult. For example, the
Constitution, Section 3 of Article III, provides that "No Person shall be
convicted of Treason unless on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court." See also, e.g., Rules 413 and 414 of
the Federal Rules of Evidence, adopted by Congress for reasons of special
policy in sex crimes, Pub.L. 103-322
(1994). No such policy is relied upon in Shonubi II or IV.
B. Courts' Urge to do Justice
The result required by Shonubi IV is compassionate, just and
sensible by any acceptable principle of sentencing. In Shonubi II and IV the court
of appeals was acting in the highest tradition of the common law in seeking a
just result. As Professor Karl N. Llewellyn pointed out, in appellate courts
"there exists, and guides and shapes the deciding, an ingrained deep-felt
need, duty, and responsibility for bringing out a result which is just."
Karl N. Llewellyn, The Common Law Tradition, Deciding Appeals 23 (1960); see
also, e.g., United States v. Collado, 106 F.3d 1097
(2d Cir.1997)(interpreting statute under rule of
lenity to reduce impact of out-of-jurisdiction convictions on second offender
laws); People v. Olah, 300 N.Y. 96, 89 N.E.2d 329
(1949)(Fuld, J.)(same);
United States v. Concepcion, 795 F. Supp. 1262
(E.D.N.Y.1992) (interpreting applicable statutes to increase discretion under
Guideline regime), rev'd sub nom. United States v. DeRiggi, 45 F.3d 713 (2d Cir.1995). Llewellyn went on to
note that "while the appellate court is bound by any reasonable finding of
fact by the trier, the rule is "colored in operation by the appellate
court's duty to justice . . . " Llewellyn, The Common Law Tradition,
Deciding Appeals 28; but see id., at 121 ("'Hard cases make bad law' reminds
us that the thrust [toward justice] may be enough to twist an otherwise good
rule out of shape").
VII Conclusion
The attempt by the court of appeals to provide justice in Shonubi
II and IV distorts the Federal Rules of Evidence. If it has any vitality at
all, the "specific evidence" rule should not be extended beyond the
special facts of the Shonubi case to limit the full use of statistical and
other admissible probative evidence. Only approaches such as those in Concepcion or Koon, Fatico's or Gigante's shifting
burden of proof, or a wholesale modification of the Guideline protocols and the
present sentencing statutes, can ensure just sentencing, protective of society,
defendants, and the criminal justice [**22]
system's symmetry.
So ordered.
JACK B. WEINSTEIN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: May 20, 1997
Brooklyn, New York