Free Sentencing Memorandum - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

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UNITED STATES OF AMERICA, Plaintiff vs. PATRICE ST. SURIN, Defendant * * *

* Civil Docket * No. 3:00CR263(JCH) * * * May 5, 2003 * 9:34 o'clock a.m. * * * * * * * Bridgeport, Connecticut SENTENCING

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BEFORE THE HONORABLE JANET C. HALL UNITED STATES DISTRICT JUDGE Appearances: For the Plaintiffs: BRIAN SPEARS, ESQ. Assistant U.S. Attorney 915 Lafayette Boulevard Bridgeport, CT 06604 JAMES E. SWAINE, ESQ. 18 Trumbull Street New Haven, CT

For the Defendant:

For the Probation Office: 17 18 19 20 21 22 23 24 25 Court Reporter:

Ray Lopez U.S. Probation Officer

Thea Finkelstein RMR, CRR 141 Church Street New Haven, CT 06510

Proceedings recorded by mechanical stenography, transcript produced by computer. EXHIBIT A

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THE COURT:

Good morning.

Please be seated.

We are

here this morning in the matter of the United States of America versus Patrice St. Surin, 3:00CR263. If I could have appearances, please. MR. SPEARS: Good morning, your Honor. For the

United States, Brian Spears. MR. SWAINE: Good morning, your Honor, under the

Criminal Justice Act, James Swaine for Mr. St. Surin. THE COURT: Mr. St. Surin. I just want to state on the record what I've done in preparation for today's hearing: First, I've reviewed the presentence report, including two addenda, I believe, which were prepared by Mr. Lopez. In addition, I've reviewed the defendant's objections to the presentence report, as well as the government's response thereto. And then finally, a response by the defendant to the government's submission, which came in at the end of last week. I just want to be sure -- I've also obviously reviewed a lot of transcript of I'll say related proceedings, as well as the trial of Mr. St. Surin. Is there anything else Good morning, Mr. Swaine. Good morning,

that I should have looked at that's been submitted that I've EXHIBIT A

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overlooked in listing? MR. SPEARS: MR. SWAINE: THE COURT: No, your Honor. No, your Honor. All right, thank you. As I understand

it from counsel's submissions as well as statements made to the probation officer, there are various issues that are outstanding in the case, objections to the presentence report, to put it a different way. First, there's a series of statements made in the presentence report to which the defendant objects as to, that they're not facts or they're things that should not be considered by the Court in connection with this sentencing. I'll just refer to them as in the second addendum, probation officer has summarized them and they're attached, as I say, in the defendant's objections to the presentence report. Secondly, there's the issue of the defendant's financial ability to pay a fine because I believe the probation officer has indicated that in the absence of any evidence, a fine should be imposed, and I think the defense has objected to that. Third, the defense, I believe, presses what I'll call an Apprendi issue, which is whether, in fact, the Court can make findings of quantities in excess of those quantities found by the jury. EXHIBIT A

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And lastly, there is a quantity issue separate and apart from Apprendi which I understand the defendant to press and in particular, I'm going to say the defendant presses it as to findings of crack cocaine attributable to the defendant. Have I fairly stated what the issues are that are outstanding, I would say, from the defendant's point of view? MR. SWAINE: Your Honor, with the exception of

perhaps the way you've characterized the last one as a quantity argument, I think I tried to clarify that with my last submission at the end of the week. I'm not sure we are in a position to debate the quantities of base or crack cocaine that Mr. Weldon may have engaged in, but we do argue that it's not relevant conduct as to Mr. St. Surin. THE COURT: It's a comment fairly taken. By

quantity I meant the ultimate converted to quantity, but obviously the issue that you dispute is the type of drug used in undertaking those quantity conversion calculations. MR. SWAINE: THE COURT: That's correct, your Honor. And I understood that, if I didn't state

it very clearly, but it's quite clear to me that's what your issue is. MR. SWAINE: Other than that, you've articulated the

THE COURT:

All right.

And I assume -- is the

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government in opposition to the defendant on all of those issues? Is that a fair statement? MR. SPEARS: Yes. THE COURT: All right then, let's start first with Yes, it is, as I look down the list.

what I'll call in the objections to the presentence report -I guess I should state, obviously, Mr. St. Surin, you have either family or friends who are here, I'm sure you understand the process I'm going through, I hope you do from talking to counsel, but for those persons who are here that are not involved in the process themselves, the Court's required by law to impose a sentence that's determined under something called the sentencing guidelines and I can't do that until I determine what the facts are that are relevant to the calculations under the guidelines. So there are various issues that have been raised by the defense, as to both facts that would affect -- might affect -- sentencing, and sort of legal issues that could also affect the guideline calculation. So I need to go through all

of those issues first, before I get to the ultimate decision of sentencing. Before I press on to those factual issues, Mr. St. Surin, I want to be certain that you've had an opportunity yourself to review the presentence report, including the addenda, and to discuss it and go over it with Attorney EXHIBIT A

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Swaine. THE DEFENDANT: THE COURT: Well, sort of.

What do you mean by "sort of"? We have issues that we still haven't -I know you have issues.

THE DEFENDANT: THE COURT:

Absolutely.

All I'm asking is have you had a chance to read it and discuss it? THE DEFENDANT: We have issues that we haven't

discussed yet that we should. MR. SWAINE: Your Honor, if I could, and I'll ask

Mr. St. Surin to correct me if he believes I've misstated anything, Mr. St. Surin has given me some directions as his counsel of things that he wanted me to obtain. I did not, in

all candor, believe that they were germane to the issue of sentencing; I think they're germane ultimately to his appeal, and the Court knows he will, has remained adamant of his innocence. THE COURT: MR. SWAINE: Sure. I think he disputes that with me, in

all candor, and without revealing any confidences, I think that's what he's raising this morning, that there are additional things that he thought we should have gone over or explored, and I think that needs to be brought to your attention and I guess I'm simply saying I made professional decisions as his counsel that while they may ultimately be EXHIBIT A

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important, and can be important, to his appeal, I did not see that they were relevant to the issues that have been put before your Honor with regard to his sentencing. He does take exception to my opinion in that area, so he may want to articulate more clearly what those differences are. THE COURT: Would you instruct him not to articulate

those differences for reasons that, in your judgment, it would be to his, inure to his, detriment to either place them before me or expose any confidence? MR. SWAINE: I don't think they relate to any

underlying facts or actions; I think they deal with issues of my representation of him. And again, I would ask Mr. St.

Surin to -- this is awkward. THE COURT: I understand, sir. I will ask him, as

long as I have some comfort level from you that you don't feel he's going to be harming himself, obviously he has a right to remain silent. MR. SWAINE: Right. Maybe if I gave one example.

I'm not even sure how comfortable -- he asked me to obtain a copy, fairly some time ago, of the entire trial transcript and that would include closing argument and charge to the jury. And my opinion was, I wanted to focus on sentencing so I got the trial transcript of the testimony but I've not yet ordered closing argument, charge to the jury, which I will EXHIBIT A

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obviously for the appeal.

That's an example, I think, of

where he felt that was important for him to have, and I kept moving on. There are other -- mostly about documents, that kind of thing, that we've had. THE COURT: I guess, Mr. St. Surin, I don't know

what the issues are you have with Attorney Swaine so I can't assure you that those can be raised in another context, or ought to be raised in another context. On the other hand, I'm concerned, you have obviously maintained your innocence throughout the proceeding and you have a right to remain silent, so I don't want to suggest to you that you need to tell me what these issues are that you have with Attorney Swaine. On the other hand, if you want to tell me, I'm not going to tell you that you can't. My concern, though, is you have a right to remain silent and you also have a right further to keep confidential whatever your conversations are with your counsel. words, he can't reveal them. So I hesitate to ask you to tell me what are these issues but, on the other hand, if you feel you want to, in this context, in connection with sentencing, I'm not going to stop you. That's your choice to make. Obviously, it sounds like counsel is advising you EXHIBIT A In other

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not to raise these issues, and counsel is quite qualified, but obviously he's a little uncomfortable, too, because you obviously have a different view on some of these things. If you don't want to speak, what we'll do is proceed and counsel will raise the various issues he's raised already, we'll have arguments on them, I'll make certain findings, I'll hear from everyone, yourself included, as to what an appropriate sentence is, and then I'll proceed to sentence and then you have your appeal. But if you have issues concerning the sentencing that you want to raise that counsel won't raise, I'm not going to tell you that I won't hear from you but you have the right to remain silent and I can't make you speak, and I'm not even encouraging you to speak but I don't want to prevent you from speaking if you feel you want to put something before me. Do you want to confer with counsel, if you like, Mr. St. Surin? MR. SWAINE: THE COURT: Can we have just a moment, your Honor? Sure, that's fine.

(Mr. Swaine conferring with the defendant.) THE COURT: Attorney Swaine, I don't mean to

interrupt, but of course I am interrupting. MR. SWAINE: THE COURT: MR. SWAINE: I understand, your Honor. We need to proceed, I think. Yes. EXHIBIT A

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THE COURT:

If a few more minutes will help, that's

fine, but you need to tell me how much more time it will take. MR. SWAINE: with the sentencing. THE COURT: MR. SWAINE: Right. I believe my client at this point does Your Honor, I am prepared to go forward

not want to address the Court as it relates to the issues raised before. THE COURT: All right. Let's take up first the

issues you raised concerning what I would call the probation officer's recitation of facts in the presentence report. Picking up from your objections, I believe the first one is paragraph 7 in which you complain or object, excuse me, that's not the right word, that the probation officer accepted the government's version of the offense and that that version relies on information or evidence that has not been provided to the defendant, defense counsel, or a part of the trial of these proceedings. First of all, I guess I would ask the government, Attorney Spears, under Local Rule 10(b)(3), am I correct that the government would make available to defendant and defense counsel all documents available to the probation officer that were not available in discovery in the case? MR. SPEARS: THE COURT: Yes, your Honor, and we did that. You did that? EXHIBIT A All right.

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MR. SPEARS:

I sent to the probation officer on

August 1st the 302s and the like and copied defense counsel on it. THE COURT: MR. SPEARS: THE COURT: You said August. August 1st, 2002. Oh, August 1st, 2002, that's fine. Was that a misspeak?

Attorney Swaine, it seems to me under the sentencing guidelines, 1B1.3 and 1B1.4, I'm not limited to trial evidence in making sentencing determinations. MR. SWAINE: THE COURT: I understand that, your Honor. And that, as I understand the law, I'm

free -- obviously within my sound -- within principles of law I'm free to make a finding regarding relevant conduct based upon preponderance of the evidence here. that as well? MR. SWAINE: THE COURT: Yes, your Honor. All right. The Court's going to You would agree with

overrule that objection to paragraph 7, and to the extent that it reflects what evidence is relied upon as well. You then make objection to a series of paragraphs, I believe 8, 9, 12, 14 through 16, 18, 19, and 60. Let's just

take, the first one is that paragraph 8, that Mr. St. Surin was a long-time sophisticated drug trafficker who, since the fall of '98, distributed more than ten kilograms of cocaine to Eugene Weldon, who in turn sold it in the form of cocaine and EXHIBIT A

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cocaine base, and that also St. Surin distributed heroin to Holman in the late '90s. I understand your objection to consideration under Chapter 1 for purposes of relevant conduct to the Weldon crack cocaine conversion, and I don't believe by the Court adopting paragraph 8 as a finding of fact, that I am ruling against you on that issue. It is a fact that was established at trial beyond a reasonable doubt that Mr. St. Surin sold powder to Weldon and Weldon sold crack, at least beginning in 2000. I don't think

that resolves the legal issue, or the part fact, part law issue that you've raised in your objection, but I do think it is an accurate statement of fact. MR. SWAINE: Your Honor, I won't concede. I

understand what the Court will find.

Obviously, I don't have I read the

the advantage of having sat through trial.

transcript several times, but I will maintain my objection, but I understand that the issue of the attribution of the Weldon crack business is still at issue. THE COURT: Okay. Having said that, the Court is

going to overrule the objection to paragraph 8 because I think the Court does find that to be the fact as well-established at trial. As I say, even making that finding, I've still not

resolved the issue raised by defendant. Paragraph 9 has to do with what I'll call sort of EXHIBIT A

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historical background, at least as the probation officer has come to understand it about Mr. St. Surin. I don't really --

I have no evidence in front of me other than the probation officer's report. I guess, Attorney Spears, I would ask you, I don't think I need to make this finding in order to sentence Mr. St. Surin. MR. SPEARS: THE COURT: I agree. So the Court will sustain the objection I guess that's

to paragraph 9 -- well, I won't resolve it.

the better way to do it, I won't resolve the objection to paragraph 9 because I don't believe what's in paragraph 9 has a bearing on my sentencing decision, and I don't intend to let it have a bearing on my sentencing decision. You have an objection to paragraph 12. Again, 12

goes to what Weldon was doing beginning in 2000 with the powder sold to him by Mr. St. Surin, and I'm going to overrule the objection because I think the record is very strong that that is a correct statement of fact. Actually, I would say that the record supports the conclusion in the last sentence, that Weldon purchased in 500-gram quantities from St. Surin in this time period. turn sold to the Burdens in three to five hundred-gram quantities but his purchases, I believe, I looked at this this morning, the transcript was pretty clear that he was buying in EXHIBIT A He in

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half kilogram quantities from Mr. St. Surin. overrule the objection to 12.

So I will

As to 14, 15 and 16, is the objection to those paragraphs again to its implication for the finding as to whether the crack of Weldon should be attributed to St. Surin? Is that really the only basis? MR. SWAINE: Yes, your Honor, whether that makes a

basis for the Court to then find it was a joint criminal activity and enterprise. THE COURT: Fine. I'm going to overrule the In doing so, I am not resolving

objections to 14, 15 and 16.

the issue of the Chapter 1 relevant conduct issue. I believe what's set forth in these paragraphs is an accurate statement of the evidence in the record which the jury found credible, which the Court also found credible. Paragraph 18, again I believe accurately reflects credible testimony at evidence and while it is I think quite supportive of a conclusion of one of the two prongs under Chapter 1 of the foreseeability, which I don't think the defendant's arguing about, but if he is, I'm not going to rule in his favor on that. I think it's pretty clear, the evidence clearly shows it was foreseeable to Mr. St. Surin that his powder was being converted, certainly beginning in 2000. The Court's going to overrule the objection to 18 EXHIBIT A

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but in doing so, again, the Court isn't necessarily overruling the second of his objections under Chapter 1, that is whether it's within the scope of the jointly undertaken activity. Paragraph 19, again, the Court would overrule the objection as to the first three sentences, because I believe the record, the trial record, is very clear as to in excess of ten kilograms. In fact, I'll weigh in the record how I get in

excess of ten kilograms of powder. It's also clear that Mr. Weldon sold in excess of 1.5 kilograms of cocaine base, and that most of it went to the Burdens, that's also well established. So the Court will

overrule the objection to those three sentences. With respect to the last sentence, again, that's sort of in the nature of paragraph 9, it's background, history, and the Court won't resolve the objection because I don't believe it affects sentencing here today. With respect to paragraph 60, I believe that's the probation officer's conclusions, evaluation, and the Court overrules the objection except with respect to the last part of the last sentence, paragraph 60, in which the probation officer draws the conclusion, on the second factor under Chapter 1, that it was considered part of a jointly undertaken activity. The Court does not at this time adopt that. going to hear some argument about this first. EXHIBIT A I'm

To that, the

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Court will sustain the objection. As to the rest of 60, it is the probation officer's evaluation and, to be frank, I think it's a fair evaluation, but I believe it's characterized as his evaluation and in that respect, it will stand in the report. You also, I think, objected to 23, 30 and 49. Those

all have to do with the guideline calculation, which of course won't happen until I resolve the issue on relevant conduct. So to me, those are in the nature of legal objections the Court will get to after I make my conclusion. 33, paragraph 33, has to do with other criminal conduct having to do with an arrest for domestic violence which did not result in any conviction of any sort. The

defendant objects that there's no disposition and therefore, the defendant objects to my use of the facts as a basis for establishing sentencing, there's no criminal history for Mr. St. Surin, and that the allegations are hearsay and don't have a basis in a conviction. The Court will note that hearsay is useful evidence at sentencing. It can be used in a sentencing. To be

perfectly frank, I don't intend to -- I will not consider the facts set forth in 33. On the other hand, I have no reason to reject what the probation officer sets forth as what the police report and Mr. St. Surin's wife reported occurred to her at that time. EXHIBIT A

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But I'm not going to resolve it because the Court doesn't intend to make use of it. You are correct, it's not a

criminal history, it doesn't affect the guideline calculation, and it's not the Court's intention to consider it in connection with sentencing. objection. Next is objection to the probation officer's conclusion in 61. Again, I think it's properly characterized, So I'm not going to sustain the

it's his evaluation, it's not finding a fact per se. Therefore, I'm going to accept it as this very experienced, very capable probation officer's evaluation of this defendant in form of, I guess, advice to Court or analysis for the Court's use. fact to be made in that. I believe that resolves all of what I'll call the particular facts as they may exist in the probation officer's report. Are there any other facts set forth, or purported There's not really a finding of

facts set forth, in the probation officer's presentence report that there is objection to? MR. SWAINE: None that are not articulated. Thank

THE COURT:

All right.

Attorney Spears, any issues

you have factually with the report? MR. SPEARS: THE COURT: No, your Honor. All right then. EXHIBIT A With the exception of

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those that I commented on that I'm not going to resolve, the Court, with the exception of one or two sentences that I said I would not adopt, the Court adopts the rest of the presentence report as the findings of fact in connection with this presentencing investigation, the presentence report, and then in connection with this sentencing. There remains, however, I believe one further fact to be found by the Court, which relates to the defendant's objections under relevant conduct in Chapter 1. While it has

a legal consequence, I believe that it's quite clearly a factual finding, which has to do with whether the -- let me just get this right paperwork in front of me -- under 1B1.3 of the sentencing guidelines, relevant conduct, I'm going to consider as relevant conduct conduct of Mr. Weldon in distributing crack cocaine as acts that are within the scope of the defendant's agreement or, as the guidelines talk about, in furtherance of jointly undertaken criminal activity in 1B1.3(a)(1)(B). I guess let's just establish some parameters before we tackle this issue. If the probation officer's report, and

I believe the government's position, is correct and Mr. Weldon's conversion of powdered crack is attributable under relevant conduct to Mr. St. Surin, my understanding is that the offense level would be a 38. Do you disagree with that, Attorney Swaine? EXHIBIT A

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MR. SWAINE: THE COURT:

I do not, your Honor. If, in fact, I reject the government's

view that -- and I find that -- Mr. Weldon's conversion of the powder to crack is not attributable as relevant conduct to Mr. St. Surin, it seems as if you argue he should be at a 32, reflecting the jury's verdict finding that at least certain quantities were present in the conduct of Mr. St. Surin, both crack and powder. My question to you is -- well, that then brings us to what I call the Apprendi issue, I guess. this: Let me ask you

If you are wrong about that, that somehow the

guidelines would be driven by the jury's findings of quantity, and if that's mistaken as a matter of law, would you agree with me that the proper level would be a 34? If, in fact, I

find ten or eleven kilograms of powder, no conversion of that to crack, and somewhere in the range of 120 to 160 or 70 grams of crack, which was purchased by Mr. St. Surin from Mr. Weldon? MR. SWAINE: Attorney Spears for the government did

a drug quantity conversion. THE COURT: MR. SWAINE: In his memo at page 11. Yes, he converts, as the drug

equivalency table requires, everything down to a base of marijuana weights, so yes. THE COURT: All right. Let me tackle with you

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first, Mr. Swaine, then I've got a few questions for the government on at least one aspect of this. about what I'm calling the Apprendi issue. Let's talk first Isn't it very well

settled in the Second Circuit, if not under Supreme Court law, that the Apprendi decision does not require a jury finding of the quantity of drugs to be used in determining sentencing guidelines? MR. SWAINE: I don't dispute the comment, that that

observation that in this circuit, it's well-established and for purposes of this Court, other than preserving my record or somebody else's record in the future, I understand that, your Honor. THE COURT: All right. Let's then turn to the other

issue which I think is a challenging one, and that is the question of whether Mr. Weldon's conversion to the crack cocaine is relevant conduct of Mr. St. Surin. Why isn't a defendant like Mr. St. Surin chargeable -I'm using that as a euphemism for relevant conduct under Chapter 1 -- with Weldon's conversion to crack because it was only through the conversion to crack that the quantities moved at the level that Mr. St. Surin was selling? MR. SWAINE: we don't know about. I think that's first an inference that I think certainly if you are looking at

the trafficking of powder cocaine, it wasn't -- and in fact, Weldon conceded he sold both, not every gram of powder cocaine EXHIBIT A

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that came into his possession did he "cook up" and traffic as crack. He was an illegal entrepreneur. He was looking for

the best market he could find, and he happened to tap into the crack cocaine market, but he also was dealing in powder and I think the key is not so much his -- that the benefit, the theoretical benefit, was that allows a supplier to then move more quantities but shows, in fact, an independence by Mr. Weldon that it wasn't jointly undertaken. THE COURT: How about, though, the telephone

transcripts and what I actually heard on the audio in which, for example, on March 20th, Mr. St. Surin is asking Weldon: How's everything? Straight?

And Mr. Weldon says that that was a query as to whether the conversion process was going well. There's another phone call recounted at page 116 of the second day, which Weldon says was again an inquiry by Mr. St. Surin of how it was cooking up when he asks, how'd it look? Also, Weldon testified that he bought from St. Surin because the quality was good, which I believe related to its ability to convert. Aren't those all an involvement by Mr. St. Surin in sort of jointly undertaken activity? MR. SWAINE: Well, I think it's only knowledge of EXHIBIT A

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Mr. Weldon's business.

It's not an interest economically.

If

your Honor will recall, Mr. Weldon testified about two transactions he did with Thomas Holman. THE COURT: MR. SWAINE: Yes. One got delivered to Norwalk and one

got delivered to Bridgeport, and he talked about how, when he purchased the powder, there was an economic transaction, a payment for that, that deal was then done and over with. He and Holman then negotiated the sale of it back out on the street. They upped the price and they shared in

the profit, one time equally and one time, a little bit more to Holman because he did the delivery of it. Well, that shows

that the two of them were engaged in the enterprise of moving the crack cocaine. We also know that Mr. Weldon had an abundance of powder suppliers, Iggy, New York, Toot, Nino, Adam. So that

from his perspective, Weldon's, his business is to buy powder cocaine whenever and wherever he needs it, and there's no loyalty, there's no shared entrepreneurialism about it. And the fact that you want to buy a good product is true whether your end product is crack or powder because the better the product, the more you can do with it. You have the

potential perhaps to cut it more and boost your sales, you have the potential to cook it and boost your sales as well. But I think what's key here is there's no evidence, EXHIBIT A

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other than the knowledge, which is clear from the tapes. There's the transcript of the tape after I believe it's Sanders is arrested about law enforcement coming in and being more active and you ought to get rid of your phone, and he does. THE COURT: MR. SWAINE: don't think so. Right. Is that promoting his business? I

I don't think it makes him part of a jointly You know, I'm not arguing the

undertaken criminal activity.

foreseeability because I think that is there. THE COURT: MR. SWAINE: THE COURT: I think you are wise not to. Right. Because I think, while Mr. St. Surin may

dispute the credibility of the testimony, there's no question that Weldon was believed by the jury and he was credible and that there's quite a bit of testimony in the record of Mr. St. Surin's knowledge that, in fact, Weldon eventually began to convert the powder into crack, including I think Mr. St. Surin being in the apartment once when it was happening, talking to him about it, the Adam Sanders situation, which was a sale of crack that he then got caught with, which they talked about. MR. SWAINE: THE COURT: Correct. Plus even without that, given it's

Norwalk, you might even say foreseeability some of it's going to get converted anyway, but we don't have to stretch that far EXHIBIT A

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because we have actual evidence. I guess the only question I would ask you, I'm going to ask Attorney Spears this as well, is any case law in which this issue has been addressed? I found a case out of the

Tenth Circuit, which is an unreported decision called the Kell case in which a trial judge found that, in fact, someone in Mr. St. Surin's position is attributable, the crack is attributable to him but in there, the appellate court reviewed that on a pretty strict standard of discretion to the lower court and factual findings but there, there was a telephone intercept conversation where the defendant, in effect, offers, there was a problem with conversion, the buyer wasn't getting a very good rate of conversion and at some point on a phone call, the defendant, in effect, says: Look, if it's not

coming out well, call me and I'll come over. And it's not expressly stated but it's pretty easy to infer he was offering to help him cook it, if he continued to have problems, because his having problems with the bad conversion rate was causing problems for the supplier in getting paid and selling more. But other than that case, which I'm sure you would distinguish, I'm sure the government will have a different opinion about whether it's distinguishable but put that case aside, it's incredible to me that there has not been a case yet addressing the issue of the type of drugs in the EXHIBIT A

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downstream distribution, and what's attributable not for conspiracy law purposes but for relevant conduct purposes. And, you know, you read the commentary, there's lovely examples about quantity attributions, but really not a whole lot of help on the type of drugs. So I guess my last question to you, Attorney Swaine, is whether you've done better than we have and can tell me any cases you've found that address the issue. MR. SWAINE: I haven't, your Honor. I just sort of

pull out from various cases language that I think is helpful with regard to involvement, depth of involvement, benefit but they're not even necessarily directly related to this particular interest. The Martinez case in this circuit, for example, talks about once you get passed foreseeability, you look to the benefit, what benefit from the activities of this other individual. I think here, what's absent is what's important, is that there aren't -- there isn't -- evidence of cooking or finding customers or -- as ludicrous as it may sound, and I was again thinking about it last night, if this is a jointly undertaken enterprise, why, in May of that year, did Mr. St. Surin have to go back to a so-called joint enterprise partner and purchase two small quantities of crack? He would have

just said, it's mine, I'm involved in it, give me a couple. EXHIBIT A

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But it shows the independence that Weldon had, his own parameters. And I think what your Honor said a moment ago is true, it's one thing to talk about the definition of who's a co-conspirator and what's the breadth of the conspiracy once you get involved, but in terms of the impact or relevant conduct, when the nature of the substance changes, I think it significantly changes, it's different. Here, it's knowledge

on the part of Mr. St. Surin, what your Honor said about, well, if Weldon sells more, then St. Surin can sell more. That's true of any supplier situation and obviously, Mr. St. Surin was found guilty by the jury in trafficking and they believe that he wanted to profit from that and move as much as one could do. But I think once you get into a situation where there is the change in the inherent nature of the substance and one under the federal sentencing guidelines so radically impacts the sentence, I think there's got to be something more significant than what we see here today. THE COURT: All right. Well, I have a few questions

for the government, Attorney Swaine, so if you will let me turn to Attorney Spears. Let me just lay out, Attorney Spears, a few what I think are facts, and I want you to tell me if you disagree with me, okay? EXHIBIT A

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First of all, that Mr. St. Surin only ever sold

MR. SPEARS: THE COURT: MR. SPEARS: THE COURT:

Well, I would disagree -I'm sorry, to Weldon. I agree with that. Okay. That all of the defendants in the

292 case, which obviously the government chose not to prosecute Mr. St. Surin in the 292 case but he was a defendant originally in that case in a conspiracy, that all of the remaining defendants in that case, I think all of them pled, if I recall. MR. SPEARS: THE COURT: Correct. I guess Mr. Holman, we had a lot of

hearings but that wasn't a trial, that they all pled to powder, is that correct? MR. SPEARS: THE COURT: MR. SPEARS: That's correct. Okay. Offhand, your Honor, I think -- I'm

questioning Jeffrey Lockhart -- and my recollection is I think he was powder. THE COURT: All right. We'll try to connect that.

I thought they were all powder but that's why I'm asking, to see if my memory's wrong. That the one transaction that Mr. St. Surin was involved in that involved crack cocaine was a purchase from EXHIBIT A

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Mr. Weldon. MR. SPEARS: there were two. THE COURT: absolutely right. Two, I'm sorry, there were two. You are Yes, your Honor. As I understand it,

Actually it's a little unclear to me but I

don't think it makes any difference, as to whether there were two purchases of 62 grams each or whether there was one 62-gram purchase and one 25-gram purchase. MR. SPEARS: too. THE COURT: MR. SPEARS: THE COURT: I believe it looks like 187 grams. That's correct. Probation officer's report reflects 124. Right, I saw that in the transcript,

My understanding is it makes no difference in the quantity calculation. MR. SPEARS: THE COURT: That's correct. Okay. So I'm not going to resolve that.

I guess I'll rely on the probation officer's, clearly it's supported by the evidence, 124, so that's what I'm going to find. Do you also agree with me that Weldon and St. Surin weren't partners? I don't know that I have to use that word, In other words, they In other

but just to move it to the specific.

didn't share in each other's profits either way.

words, St. Surin didn't share in Weldon's, Weldon didn't share EXHIBIT A

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in St. Surin's. MR. SPEARS: THE COURT: MR. SPEARS: I don't agree with that, your Honor. You don't? Tell me why not.

Government's Exhibit 703 talks about --

I'm going to give you the context of this call. THE COURT: MR. SPEARS: Yes. Weldon receives a call from Sean

Delmore and there's some question about whether Delmore is in a position to supply Weldon. Weldon then has conversation

about this with Sanders and eventually talks to St. Surin, the defendant. And in the course of that call, which is in February of 2001, Weldon says: "You know, we together, Watty." "We together." I think it's very

Referring to the defendant. significant. brother."

He says, "I ain't going against the grain,

And the context of this call, and he testified, was that this defendant was his primary supplier. Yes, he had

other suppliers but they were together, when they could be, they worked together. So I would offer that as one example.

Another example, your Honor, I think this goes really to the heart of the matter, and I get this language from the Studley case, which is: stake in Weldon's operation? Did this defendant have a

One of the things about the

Studley case that was absent and therefore, the relevant EXHIBIT A

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conduct analysis didn't extend to the conduct of other people there, was the absence of the defendant having a stake in the operation as it related to the other defendants. So the question is what stake did this defendant have in Weldon's sale of crack cocaine? works this way: And I would submit it

He is fronting the narcotics to Weldon, so

that he has a very significant stake in what happens to those narcotics, and whether Weldon is actually able to pay him for the drugs that have been fronted, and the testimony was that after the first or second transaction in 1998, the relationship between these two was one where this defendant was fronting the drugs to Gene Weldon, as a result of which he had a stake in Weldon's sales because otherwise he wouldn't get paid. THE COURT: Can you tell me where in Studley the

concept of stake comes in? MR. SPEARS: THE COURT: Yes, your Honor, on page 576. I just want to see where the word

"stake," what the context is of that phrase, that word. MR. SPEARS: THE COURT: MR. SPEARS: conclusion. Yes, your Honor. Which paragraph is it? The last paragraph before the Maybe I

It's the third sentence, "no interest."

shouldn't use the word "stake." THE COURT: I feel better, though, that it's not EXHIBIT A

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there because I didn't remember the case from a "stake" point of view. MR. SPEARS: Had no interest in the success of the

operation, is the language I'm focusing on. THE COURT: the operation is. But that somewhat begs the issue of what

I mean, clearly, he has an interest, Mr. He doesn't concede

St. Surin, under the defendant's own view.

it happened, I meant the legal argument made by counsel, he has an interest in the success of the operation between himself and Mr. Weldon, meaning he wants to sell to Weldon. MR. SPEARS: conduct of others. I don't think that relates to the

That would be -Absolutely. The question is, does he have an

THE COURT: MR. SPEARS:

interest in what Weldon does afterwards. THE COURT: That's what I'm saying, is that phrase

begs the question because it depends on what the operation is we are talking about, and that I think Studley tells us what the language in Studley, which of course is factually entirely off the mark from what I have in front of me, but it talks about designing or developing the scam at issue in that case. Did he work in any way to further the scheme, you know, in other words, in this instance, it would be Weldon's selling of the crack, did he work in any way to further that? That's where I think Kell perhaps has facts that are a little EXHIBIT A

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bit different because although it's very thin, there is a nugget there of this supplier's going to help the guy cook it, if he's having such trouble. effort, I guess. I don't think we have anything in the record of Mr. St. Surin explaining to Weldon how to cook it, how to cook it better, giving him instructions, or helping him cook it, do we? MR. SPEARS: THE COURT: MR. SPEARS: No, but he -He was present. And the quality of what he was That's furthering that cooking

supplying to Weldon, knowing what he was doing with the narcotics. THE COURT: But he may have wanted to know that

because maybe he could have charged more for it or, I don't know, maybe he would then know that, then he knows that his suppliers could be trusted instead of looking for a different supplier. That could be just to further his own operation,

meaning between himself and Weldon. MR. SPEARS: THE COURT: Another point -I'm sorry, I have one more fact I want

to be sure I have right because it affects my thinking somewhat. My understanding of the record at trial, my

understanding generally, Mr. Weldon's activities, put it that way, is that this defendant and Weldon did transactions in the EXHIBIT A

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'98-'99 time period, some in sizeable quantity, but that at that time, Weldon was doing powder sales himself. MR. SPEARS: way I read it as well. THE COURT: Okay. There came a time in the 2000 As I read the transcript, that's the

period, and maybe as a result of the Burden demand, I'm not quite exactly sure what triggered it but that was my sense, it's not terribly important to Mr. St. Surin's case, but my sense was for that reason, Weldon learns how to, decides to, whatever, begins to convert it into crack in the 2000 time period, right? MR. SPEARS: THE COURT: Yes. And this defendant continues to supply

him powder, which he then converts. MR. SPEARS: THE COURT: Right. As he had been supplying in powder up to

that time that Weldon didn't convert but sold as powder. Okay. I'm having difficulty with the concept under the guideline of jointly undertaken criminal activity if, in '98, when they first deal with each other -- maybe they knew each other before, but they begin a relationship, buyer-seller at least in '98, it's all powder, coming into Weldon and going out of Weldon, okay? MR. SPEARS: Yes. EXHIBIT A

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THE COURT:

Clearly, the jointly undertaken criminal

activity, even in your view, at that time was just powder, right? MR. SPEARS: THE COURT: Right. Okay. Tell me what I would look to in

2000, that because Weldon decides to change his operation and convert, would show that this defendant jointly undertook that criminal activity. In other words, I don't see any change in

Mr. St. Surin's conduct as evidence on the record in front of me in 2000 that has him, in effect -- I understand we can have implicit agreements, but it's not like from day one Weldon was doing crack, from which I might draw certain inferences about Mr. St. Surin, or it's not as if something in 2000 happened involving Mr. St. Surin that I could draw some certain implicit agreement. MR. SPEARS: Well, one thing that does happen, I

think the record bears this out, is that the defendant becomes, again, Weldon's exclusive supplier so that at a point where Weldon is now transacting business with the Burdens and providing them exclusively with crack, a fact that Mr. St. Surin was aware of, that sequence of events coincides with him now using St. Surin as his exclusive source of supply. And actually, the record is also clear that that mattered to the defendant because he talks -- this is around the time of February 10th, I believe, February 8th, actually, EXHIBIT A

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this is Government Exhibit 721.1, he, the defendant, and Weldon talk about this 500-gram transaction that's going to occur. Weldon says: Someone just hollered at me. How big? It was

St. Surin says: Weldon says:

Halfway, they want it halfway.

what's his name, you know who I wanted to get. And St. Surin says: Burden. That shows this defendant has an interest in that, that he knows that one of Weldon's biggest suppliers is now in the market for 500 grams and that those narcotics are going to ultimately be sold in the form of crack cocaine. So I guess in answering your question, it may start as a narcotics conspiracy that is about powder cocaine but focusing on that time in 2000 through February 2001, it is predominantly a crack operation. This defendant's well aware of it, he's profiting from it and actually, isn't going to get paid until Weldon gets paid from his crack customers. THE COURT: Weldon sold powder. That was true when he sold it to him and I mean, I guess what I'm trying to find Ah Tone -- referring to Tony

out is you draw significance from the exclusivity relationship that arises in 2000. MR. SPEARS: And confirmed when he says, we EXHIBIT A

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together, I'm not going against the grain. operation. THE COURT:

This is their

But is there anything that connects that

decision by Weldon to look to Mr. St. Surin alone to Weldon beginning to convert to crack? I mean, I understand vaguely

it's all related, but I don't remember any connect of, well, okay, I'm going to start cooking up crack and I want to sell crack and you've been giving me this great stuff so if you keep giving me this great stuff, I'm going to stay with you alone. I don't have that sense. MR. SPEARS: Reading the transcript, I think

Weldon's need to do business with this defendant, a point where he's supplying the Burdens with crack, is related to the fact that this defendant was providing him with the right kind of product so that he could do that. And Weldon testified about that, about the fact that the quality of this defendant's cocaine allowed him to, allowed, I'm using the phrase jump back is I think what Weldon testified about. THE COURT: But is there any evidence, other than

supplying Mr. Weldon with powder, that this defendant did anything to further this larger jointly undertaken activity that the government claims, which was crack? MR. SPEARS: I would submit that there are, in terms

of other evidence of togetherness would be Adam Sanders gets EXHIBIT A

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arrested and your Honor alluded to this already, this defendant finds out about that and instructs Weldon, watching you, get rid of your phone, Weldon follows the instructions and changes the phone number. THE COURT: I thought about that, actually, and I

thought I was going to press defense counsel about that but the more I thought about it, the phone he tells him to get rid of is the phone that he's on with Weldon talking about powder transactions. In other words, it isn't -- to me, I don't

think it establishes an involvement, an interest, in the crack transactions or the crack activity merely because this defendant says get rid of the phone you and I have been doing our powder deals on. MR. SPEARS: fair inference. THE COURT: Anyway, I had thought about that as a It Right, he doesn't say that but that's a

troublesome issue for defendant and thought more about it. could be what you are arguing but it could just as well be

consistent with behavior of a powder conspiracy because that phone was clearly the one which you folks got all of the tapes about, all the transactions between Mr. St. Surin on the powder. MR. SPEARS: Right. Your Honor, I know that we

don't want to go into the question of knowledge and foreseeability necessarily because I think it's a foregone EXHIBIT A

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conclusion, but by the same token, I think it matters because with respect to what is the jointly undertaken activity, I mean, I don't think it's insignificant that this defendant was well aware of the fact that Weldon was supplying the Burdens, that he was fully aware of his involvement in crack cocaine, his need for good quality, and all of that. So I know we are

not really going into that second prong, but I think it has to be -THE COURT: Well, we should talk about it because

again, to me, there's overwhelming evidence on foreseeability, okay? I agree with you. MR. SPEARS: really. THE COURT: Right. Knowledge. That's right. It's really beyond -- it was knowledge,

Clearly foreseeability's satisfied, there was knowledge. The difficulty, though, and it doesn't really affect the second element consideration directly, but I guess I'll just tell you the two things that are kind of intertwined, I'm not going to articulate them very clearly, but what makes this a very difficult issue in my opinion, putting aside the fact that there's no precedent on it, I guess you should tell me whether I've missed any cases on point under 1B1.3 on relevant conduct. MR. SPEARS: I, too, came across the Kell, there's

another unreported case along those same lines, United States EXHIBIT A

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versus Duffy, D-U-F-F-Y. THE COURT: MR. SPEARS: Out of what circuit? It's a Fourth Circuit case in which

this defendant, Jones, was a cocaine supplier and the ultimate crack cocaine that was sold was attributable to him. THE COURT: that one. MR. SPEARS: WestLaw, 376320. THE COURT: Okay. We have been able to track down You may have had I can give you the WestLaw cite, 2002 I apologize, I don't think I looked at

the 292 case, and Lockhart pled to powder.

evidence of base on him but he pled to powder. I want to take a quick look at the Duffy case, I apologize, I did not look at that one. I guess what I'm focused on is that the commission and Studley, as the Second Circuit made clear that the commission in Chapter 1 says there are two aspects to relevant conduct, and where I think many courts for several years sort of saw foreseeability knowledge that equals jointly undertaken, therefore it's relevant. no. That's the first step, but there's a Second Circuit so I guess I'm caught up by Studley in the sense of it's so clear, the foreseeability element is reached, but there's no question that Studley, and I think Chapter 1 requires me to EXHIBIT A Studley makes it clear

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make a separate finding, particularized finding, on this second element, which is different than knowledge and foreseeability. What I'm trying to say is that where you might have thought that knowledge or foreseeability, together with conduct, like a downstream distribution network, was relevant conduct pre-Studley, I think pre-Studley says stop, you've got to focus on was it in furtherance of the jointly undertaken activity. MR. SPEARS: THE COURT: MR. SPEARS: Right. So I'm very cautious about -I appreciate that, your Honor, because

I have litigated in Second Circuit the absence of findings on two occasions. THE COURT: right. MR. SPEARS: In regard to one of those cases, I Which you don't want to do again. All

should point out it was a similar scenario, it was a case arising out of the Segura case, the defendant's name was Oswaldo Rodriguez and he ended up being a middle man between Rudolfi Segura and Carlos Davila. Rodriguez was accountable

for 1.5 kilos of crack cocaine because what he was doing was getting the powder cocaine from Segura and then giving it to Carlos Davila, who he knew was converting it to crack and selling it as crack. EXHIBIT A

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So I would submit that that case is analogous, it was affirmed by the Second Circuit. THE COURT: Was the issue -- the issue wasn't

written on, though, by the Second Circuit, was it? MR. SPEARS: THE COURT: No, it was not. Let me finish my thought of what's The other thing that's affecting

causing me to hesitate here.

my thinking, which is why all the examples that the commission gives, looks like there's so much help in the commentary but none of it is really terribly helpful, I find, because none of it focuses on the fact that Congress, in statute and the guidelines in guidelines, treats drugs differently. So there's no question, on a superficial -- not even superficial -- that this defendant engaged in jointly undertaken criminal activity and that he supplied an illegal substance to Mr. Weldon to sell as an illegal substance, okay? The jointly undertaken activity was to distribute drugs and the fact that Mr. Weldon sold drugs certainly could be argued to be part of the jointly undertaken activities. Clearly, I don't think Mr. St. Surin wanted Mr. Weldon to sit on it, but I suspect Attorney Swaine might have an argument about that one. with you. But let's assume I went that far

The commission has drawn a distinction in the

guidelines between the type of drugs. For example, in all these examples, in the EXHIBIT A

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guidelines, where they talk about the specific objective of the criminal activity, it would be very easy for me to say, the specific objective was the distribution of an illegal substance and, okay, he did it in the form of crack, fine, we'll charge crack to Mr. St. Surin. But I think that begs the question. I think I've

got to find what was the specific objective of Mr. St. Surin's criminal activity with Weldon? MR. SPEARS: Which was to provide Weldon with the

raw materials so that he could run his business. THE COURT: Well, but he sold for a long time, he

sold it in the raw material form, and Mr. St. Surin didn't say, gee, Eugene, why aren't you out there making this into crack? We would move more. Or why aren't you out there

cooking it? you more.

You will make more money and then I can charge

We don't have that. MR. SPEARS: I guess where I get stuck, your Honor,

is just on the basic principle that, you know, in terms of assessing the culpability of Weldon and this defendant, this defendant is supplying, knowingly supplying, him with the raw materials so that he can run his crack operation. THE COURT: MR. SPEARS: Right, but did this defendant -Culpability, I can't imagine we need to

entirely divorce that question from our analysis under the EXHIBIT A

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relevant conduct provision.

Culpability wise, it stands to

reason that the person supplying the raw materials to someone so that person can then -- that person, Weldon, can run his crack operation shares in the culpability of that, of those end sales. THE COURT: The other difficulty I'm having is

there's this conspiracy law, and then there's relevant conduct. Would you agree those aren't the same? MR. SPEARS: THE COURT: I would. What you just articulated caused me

pause because there's no question on a conspiracy liability basis that he's in a conspiracy but to me, the commission has told me that relevant conduct analysis is different than that. MR. SPEARS: But usually, that's in the flip

situation where you have a nonconspiracy case. THE COURT: MR. SPEARS: I understand. And you are using the relevant conduct

concerted activity conversion to apply to someone not convicted of a conspiracy. Here, there's no question it's

concerted conduct between St. Surin and Weldon. THE COURT: Because of the peculiar facts here, he

was charged with a conspiracy to distribute crack cocaine and powder cocaine, right? MR. SPEARS: THE COURT: Correct. The jury found him guilty of both. EXHIBIT A

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MR. SPEARS: THE COURT:

Correct. However, he could have been convicted of

that conspiracy count if all the jury heard was powder, correct? MR. SPEARS: THE COURT: Correct. We had this on the charge. Even though

it's indicted as an "and," it's really an "or," right? MR. SPEARS: THE COURT: That's correct. We have the peculiar facts or evidence

in this case of crack coming in against the defendant in the form of purchases by the defendant from Mr. Weldon so, yes, there was a conspiracy to distribute crack cocaine involving Weldon and this defendant, right? MR. SPEARS: THE COURT: Right. That could be the basis for the jury's

MR. SPEARS:

Although the verdict form -- I wish I

had it at my fingertips -- reads in terms of agreement and foreseeability on that particular -- on both questions, actually. I apologize for not having that at my fingertips

but my recollection is the verdict form is interestingly somewhat consistent with the 1B1.(3)(a)(1)(B) analysis. THE COURT: We the jury unanimously find that it was

reasonably foreseeable to Patrice St. Surin the conspiracy charged in Count Twelve involved the following quantity of EXHIBIT A

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cocaine base:

50 grams or more.

If I had asked, if the jury bought your argument here on relevant conduct -- I'm sorry, 50 was the most for statutory purposes. MR. SPEARS: Right, but they already found the

agreement, and the question of quantity goes to the foreseeability which I guess is not helpful, that's the second prong which we are not stuck with. THE COURT: helps me. No criticism, but I don't think that

I agree with you that normally, relevant conduct is

a smaller subset of the conspiracy found but here, I think the record, the peculiarity of the facts of the purchase back of crack which satisfy the quantity that the jury found satisfies both for Apprendi purposes as well as conspiracy purposes, can explain the findings about the crack without it being a finding by the jury that this defendant's in a conspiracy to distribute crack cocaine with Weldon, I guess. MR. SPEARS: THE COURT: I agree. Let me see if there's anything else.

Your comment about conspiracy law was bothering me. As I thought about this over the past week, myself, I was thinking sort of, well, he's really in this large conspiracy in 263, that's what he was convicted of. However, the commentary in paragraph 2 at the end of example 8 talks, it says the example of four people EXHIBIT A

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backpacking quantities of marijuana from Mexico and whether you are going to count all four liable for the total quantity or only each what's on their back. At the end of that example, there's language, it says: In cases involving contraband, the scope of the jointly

undertaken criminal activity may depend on whether, in the particular circumstances, the nature of the offense is more appropriately viewed as one jointly undertaken criminal activity or is a number of separate criminal activities. There, they meant separate as to W, X, Y, Z people separated but here, it seems to me I can have an overarching conspiracy to distribute crack and powder in Norwalk ultimately that can involve, in effect, what this talks about as separate criminal activities, pieces of that overarching conspiracy, for purposes of relevant conduct where the defendant doesn't get charged with all of it. MR. SPEARS: I'm not sure I agree with that. Those

would be overt acts, each furthering the same conspiracy. THE COURT: But that's the conspiracy law analysis.

In other words, in this example of the four people walking over the border, the supplier and the four of them would be properly chargeable as having been involved in a conspiracy to import marijuana into the United States, in the total quantity imported, and the supplier would be liable under Chapter 1 for all of the quantity but the four individuals, depending on the EXHIBIT A

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facts, I mean here, the example is they are all responsible because they were helping and supporting one another but if they had all taken off a mile separate from each other from the border and walked separately, you might say, no, they're only liable for what they carried, even though they're guilty of a conspiracy to distribute four times as that or import four times of that. MR. SPEARS: That analogy seems to talk in terms of

the supplier being responsible for all of it, which I would submit that's the more analogous circumstances, this defendant as the supplier. THE COURT: Right. The problem, where the

guidelines are unhelpful, is all the examples of controlled substances have to do with quantity issues, which clearly the supplier is the start of all the quantity and it may break down into trees, roots of separation but it's all traceable to the supplier and that's why, in all these examples, the supplier gets hit with all of it. Here, however -MR. SPEARS: THE COURT: I understand the --- it's almost the r