                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-1997

United States v. Roman
Precedential or Non-Precedential:

Docket 96-1962




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iled August 15, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-1962 and 96-1963

UNITED STATES OF AMERICA

v.

SAMUEL ROMAN, a.k.a. SAMUEL MERCADO

SAMUEL ROMAN,

Appellant

UNITED STATES OF AMERICA

v.

OSCAR ROMAN, a.k.a. OSCAR MERCADO,

Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 95-cr-00335-1)
(D.C. Crim. No. 95-cr-00335-2)

Submitted Pursuant to Third Circuit LAR 34.1(a)
June 27, 1997

Before: GREENBERG and MCKEE, Circuit Judges,
GREENAWAY,* District Judge.

(Filed August 15, 1997)
_________________________________________________________________

* The Honorable Joseph A. Greenaway, Jr., United States District Judge
for the District of New Jersey, sitting by designation.
Rocco C. Cipparone, Jr., Esq.
203-205 Black Horse Pike
Haddon Heights, NJ 08035

Attorney for Appellant
Oscar Roman

Jeffrey M. Lindy, Esq.
1760 Market St.
Suite 600
Philadelphia, PA 19103

Attorney for Appellant
Samuel Roman

Michael R. Stiles, Esq.
United States Attorney
Walter S. Batty, Jr., Esq.
Assistant United States Attorney
Chief of Appeals
Kristin R. Hayes, Esq.
Assistant United States Attorney
615 Chestnut St.
Suite 1250
Philadelphia, PA 19106

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

In this consolidated appeal, we are asked to review the
sentences of Samuel Roman, who pled guilty to possession
with intent to distribute cocaine base and aiding and
abetting, and Oscar Roman, who pled guilty to possession
with intent to distribute and distribution of cocaine base as
well as carrying a firearm in connection with a drug-
trafficking crime. The district court sentenced both Samuel
and Oscar Roman to 188 months of imprisonment for the
drug related offenses and imposed a consecutive sentence
of five years on Oscar Roman for the firearm offense. Both

                                2
defendants contend that the district court erred by
imposing enhancements for "crack cocaine" and concluding
that the government had not breached their plea
agreements by refusing to file a downward departure
motion. Samuel Roman raises the additional argument that
the district court erred by refusing his request for funds to
retain a psychologist to testify on his behalf at sentencing.
For the reasons that follow, we will affirm.

I.

These prosecutions are based on three separate
incidents. On September 2, 1994, during surveillance of the
4400 block of North 4th Street, Philadelphia police officers
observed Bobby Rodriguez and an unknown purchaser
engage in a drug transaction with Samuel Roman. After the
purchaser paid Rodriguez for the drugs, he handed the
money to Roman. The police stopped Rodriguez and Roman
and seized fifty vials of crack cocaine from Rodriguez and
$494 in cash from Roman.

On November 7, 1994, Philadelphia police officers, again
surveilling the 4400 block of North 4th Street, saw William
Serrano engage in a drug sale. An undercover officer then
approached and purchased two vials of crack from Serrano.
Serrano then handed the money to Oscar Roman, who was
seated in a nearby car. Backup officers arrested Serrano
and Roman. They seized eleven vials of crack from Serrano
and a loaded weapon and $259 in cash from Roman. A
subsequent search of the car disclosed additional "bundles"
containing numerous vials of crack cocaine.

On November 22, 1994, police officers were once again
surveilling the same block of North 4th Street when they
saw Samuel Roman hand a brown paper bag to Oscar
Roman and another individual. Oscar Roman and the other
individual then hid the paper bag in a vacant lot. Samuel
collected money from the two and left. Police apprehended
Samuel in a car shortly thereafter. They found $1,494 on
his person and a bundle of suspected crack cocaine in the
car. The officers searched the vacant lot and found the
brown paper bag that Oscar and the other individual had
hidden. It contained fourteen bundles of crack, and three
more bundles were found nearby.

                               3
Samuel and Oscar Roman both were charged with
possession with intent to distribute crack cocaine (21
U.S.C. § 841 (a)(1)), and Oscar Roman was also charged
with distribution of crack cocaine (21 U.S.C. § 841(a)(1))
and carrying a firearm in connection with a drug-trafficking
crime (18 U.S.C. § 924(c)). Defendants were initially named
in an indictment that specifically charged them with
offenses involving "crack cocaine." However, the government
obtained a superseding indictment that identified the
controlled substance at issue as "cocaine base."

Both defendants pled guilty to all of the offenses in the
superseding indictment pursuant to standard written plea
agreements. In those agreements, each defendant agreed
"to provide truthful, complete, and accurate information,"
"to provide all information concerning his knowledge of, and
participation in, the distribution of cocaine base and any
other crimes about which he has knowledge," and not to
"protect any person or entity through false information or
omission." App. at 19a-20a, 26a-27a. During the change-of-
plea hearings that followed their initial plea of not guilty,
the government clarified their obligations under the plea
agreements by acknowledging that defendants could
provide historical information only, and did not have to
"engage in affirmative investigative techniques." App. at
59a.

A sentencing hearing was held on October 16, 1996. Both
defendants argued that the government had the burden of
proving that the controlled substance involved in this case
was crack cocaine. To meet its burden, the government only
presented the testimony of Officer Wilbert Kane, the officer
assigned to the case. Kane had twelve years of experience
in investigations and prosecutions of persons charged with
crack cocaine distribution and had trained state and
federal narcotics officers. Over defense objections, Kane
testified that the substance seized from defendants was
crack cocaine. His conclusion was based solely upon the
way the substance was packaged. Kane conceded that the
substance seized from the defendants did not contain
sodium bicarbonate, a residue common in crack cocaine.
However, he explained that the head of the police
laboratory had told him that the absence of sodium

                               4
bicarbonate did not mean the substance was not crack
because, if the "cook" was good, sodium bicarbonate would
not be found in the finished crack. App. at 74a.

Kane testified that he had seen crack cocaine cooked and
that he had seen the substance that was seized from the
defendants. For some reason, he was not asked to compare
that crack's appearance with the substance seized from the
defendants. He did, however, testify that the drugs taken
from the defendants was in vials with color caps which is
how crack cocaine is typically packaged for sale in
Philadelphia. He testified that "powder cocaine," in contrast,
is usually packaged in ziplock bags. App. at 75a. Based
solely upon the packaging, Kane concluded that the
substance seized from the defendants was crack. The court
accepted that conclusion and sentenced the defendants
accordingly over defense objections.

Defendants also objected to the government's decision
not to file a downward departure motion. They argued that
this decision breached their plea agreements and that
government investigators were angry because they were
only able to provide "historical" information. The defendants
maintained that they only had historical information and
that their agreements did not require them to provide more.
The government, however, argued that it was the Romans
who breached the agreement by not providing complete
information. In support of its argument, the government
again presented the testimony of Officer Kane who testified
that "the accumulation of intelligence that [the Romans]
would have gathered while in the business far exceeded
what they were willing to tell us in the proffer." App. at 83a.
Kane conceded, however, that the information the Romans
had provided was accurate. The district court concluded
that the government had not breached the plea agreements.

Samuel Roman was sentenced at the bottom of the
applicable guidelines range to 188 months imprisonment.
Oscar Roman was also sentenced to 188 months on the
narcotics offenses as well as to a consecutive sentence of 60
months stemming from his 924(c) conviction. These appeals
followed.

This Court has jurisdiction to review final sentences
pursuant to 18 U.S.C. § 3742(a).

                               5
Discussion

II.

Defendants contend that the district court erred in
finding that the controlled substance involved in their case
was crack cocaine and sentencing them pursuant to the
guideline enhancement for that drug.1 The district court's
determination that the substance seized from defendants
was crack cocaine is a finding of fact that we review for
clear error. See United States v. Johnson, 12 F.3d 760, 765
(8th Cir. 1993). "Factual findings are clearly erroneous if
the findings are unsupported by substantial evidence, lack
adequate evidentiary support in the record, are against the
clear weight of the evidence or where the district court has
misapprehended the weight of the evidence." Davin v.
United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir.
1995)(internal quotations omitted). However, "[t]his court
has plenary review of issues of law raised by the district
court's application of the Sentencing Guidelines." United
States v. James, 78 F.3d 851, 855 (3d Cir.), cert. denied,
117 S. Ct. 128 (1996).

In support of their argument, defendants cite our recent
decision in United States v. James. There, the defendant
was charged with distribution and possession of a
"substance containing a detectable amount of cocaine
base." Id. (emphasis added). He plead guilty to that charge
and stipulated for sentencing purposes that "the relevant
quantity of cocaine base is 57.4 grams." Id. at 856
(emphasis added). At his plea colloquy the court asked
"Now Mr. James, did you, as charged in Count One of the
indictment . . . knowingly, intentionally and unlawfully
distribute in excess of five grams of a mixture and
substance containing a detectable amount of cocaine base?"
Id. (emphasis added). James answered this question
_________________________________________________________________

1. Note D of section 2D1.1 of the Sentencing Guidelines defines "cocaine
base" as "crack." " `Crack' is the street name for a form of cocaine base,
usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G.
§ 2D1.1 n.D.

                               6
affirmatively. However, during the plea colloquy, the
government made several casual references to "crack":

The parties agree that the relevant quantity of cocaine
base . . . is 57.4 grams. That's the total net weight of
the crack cocaine that was purchased . . . .

. . . .

Mr. James exchanged a plastic baggy that contained
some suspected crack cocaine. . . . I believe the net
weight was 22.0 grams of cocaine base or crack
cocaine.

Id. (emphasis added). Although we recognized that
"admissions to the court by a defendant during a guilty
plea colloquy can be relied upon by the court at the
sentencing stage," we concluded that these casual
references, without more, did not "amount[ ] to a knowing
and voluntary admission that the cocaine base constituted
crack." Id. The government had the burden of showing by
a "preponderance of the evidence that the substance in
question was actually crack." Id. Because we concluded
that the government had not met that burden, we vacated
James's sentence under the crack cocaine enhancement
and remanded for resentencing.

Here, we conclude that the government did meet its
burden but just barely. The government's only evidence was
the testimony of Officer Kane. Kane is assigned to the task
force of the Philadelphia Drug Enforcement Administration
and admits that he is not a chemist. See app. at 77a. The
district court, nevertheless, permitted him to state his
opinion about the identity of the controlled substance
involved in this case based upon his years of experience as
a police officer. "Courts imposing sentence are free to
consider a wide range of relevant material." United States v.
Deaner, 1 F.3d 192, 198 (3d Cir. 1993)(internal quotations
omitted). Moreover, Rule 704 of the Federal Rules of
Evidence "provides that opinion testimony is not
objectionable because it embraces an ultimate issue to be
decided." United States v. Theodoropoulos, 866 F.2d 587,
591 (3d Cir. 1989)(internal quotations omitted). Thus, it
was not improper for the district court to rely upon Kane's
testimony at sentencing.

                               7
The substance seized from defendants did not contain
sodium bicarbonate - a common residue in crack cocaine.
See app. at 73a. However, Kane explained that the presence
of that ingredient is not crucial "[I]t depends on the cooker
and how precise he is in his measurements as to whether
there would be sodium bicarbonate left behind after the
crack cocaine cooking process is over." App. at 74a.2
However, no evidence was presented about the expertise of
the person who "cooked" the drugs seized from defendants.3

Kane stressed that the substance seized from defendants
was packaged in "clear plastic vials with color caps" which
is how crack is commonly packaged on the streets of
Philadelphia. App. at 75a. He, therefore, concluded that
this substance was in fact "crack cocaine," see app. at 77a,
and the strength of that conclusion was tested by cross
examination.

Although the identity of the substance defendants
possessed need only be established by a preponderance of
the evidence, "the preponderance standard is not toothless.
It is the district court's duty to ensure that the Government
carries this burden by presenting reliable and specific
evidence." United States v. Lawrence, 47 F.3d 1559, 1566
(11th Cir. 1995). Officer Kane has over twelve years of
experience on the DEA task force, and, in that time, he has
participated in over 1000 cases involving crack cocaine.
Kane has also attended training sessions on cocaine
conducted by the Philadelphia police chemical lab, and
himself instructs other narcotics officers about identifying
crack and prosecuting such cases. See app. at 74a-75a.
Given Kane's experience and expertise, we conclude that
the record adequately supports the district court's finding
that the controlled substance here was crack cocaine.4
_________________________________________________________________

2. See United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir. 1989)(hearsay
admissible at sentencing hearing).

3. It is certainly understandable that the government would not know
who manufactured a given seizure of drugs, and we do not fault the
government for not presenting that evidence. We mention the absence of
such testimony because it reduces (but does not negate) the probative
value of Kane's explanation for the absence of sodium bicarbonate.

4. We take this opportunity to express our concern over the manner in
which the government chose to establish that the substance involved in

                               8
III.

Defendants next contend that the district court erred in
concluding that the government had not breached their
plea agreements. "Whether the government's conduct
violated the terms of the plea agreement is a question of
law" to which this Court gives plenary review. United States
v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994)(internal
quotations omitted); see also United States v. Hernandez,
17 F.3d 78, 80-81 (5th Cir. 1994). As the parties alleging
the breach, defendants "bear[ ] the burden of proving the
underlying facts establishing a breach by a preponderance
of the evidence." Wilder, 15 F.3d at 1295 (internal
quotations omitted). "In determining whether the terms of
the plea agreement have been violated, the court must
_________________________________________________________________

this case was crack. We have previously emphasized the importance of
correctly determining that a substance is crack because of the 100:1
sentencing ratio for cocaine base, as compared to cocaine, under the
Sentencing Guidelines. See James, 78 F.3d at 855. Indeed, the wisdom
and fairness of that ratio, and the social consequences of it, have been
discussed and debated in forums so vast and varied that they need not
be referenced here. The wisdom of the policy is not for us to determine.
However, we would hope that the government would take steps to
provide a quality of proof that is consistent with the seriousness of the
consequences of that distinction.

We have recently stated that an indictment need not identify the
controlled substance at issue as the identity is a factor for sentencing,
and not an element of the offense. See United States v. Lewis, 113 F.3d
487, 490 (3d Cir. 1997). However, where a written plea agreement is
entered questions of notice and proof at sentencing could be greatly
minimized by simply including language in the plea agreement by which
a defendant acknowledges the identity of the drugs involved. Similarly,
problems of proof could be eliminated by a specific inquiry of the
defendant during the Rule 11 colloquy as opposed to only casual
references to "crack" or "cocaine base."

Given our limited standard of review here, we cannot say that the
government's evidence was insufficient to carry its burden. As we noted
above, the government did meet its burden and that ends our inquiry on
that issue. Nevertheless, in view of our recent holding in James, we hope
the proof presented in this case on the crucial issue of whether the
substance was crack cocaine does not reflect a lack of appreciation for
the seriousness of that determination or the consequences that flow from
it.

                               9
determine whether the government's conduct is consistent
with the parties' reasonable understanding of the
agreement." Id. (internal quotations omitted).

In Hernandez, the defendant pled guilty pursuant to a
written agreement in which the government agreed to
"recommend [that Hernandez receive] credit for acceptance
of responsibility and a sentence at the low end of the
guideline range." Id. at 80. The agreement was amended in
court by the Assistant U.S. attorney who stated on the
record "that if Mr. Hernandez should provide substantial
assistance to the Government, either I guess through
truthful information and testimony if necessary, that the
Government may make a motion for downward departure at
sentencing." Id. Following his guilty plea, Hernandez
provided two types of assistance. "First, he gave the
government a hand-drawn map that ostensibly showed
where a stash of cocaine could be found." Id. "Second,
Hernandez provided the government with information
(which the government insists was `stale') concerning drug
dealing and illegally possessed guns in the Corpus Christi
area." Id. The government argued that the assistance was
not substantial and refused to move for a downward
departure at Hernandez's sentencing. He then appealed his
sentence on grounds that the government had breached the
plea agreement. "Considering the type of information that
the government should have expected from a defendant like
Hernandez, who had been incarcerated for over six months,
[the court of appeals] f[ou]nd it difficult to conceive of what
more Hernandez could have provided that would be
substantial . . . ." Id. at 82. It therefore vacated his
sentence and remanded to the district court for a
determination of what the parties intended as "substantial
assistance."

Here, the government concedes that the defendants did
provide truthful and accurate information, but insists that
the information was not "complete" as required under the
plea agreements. Officer Kane testified that "[he] believe[d]
it was truthful, the information they gave us, although I did
not believe it was full or complete." App. at 82a. "Because
both of the defendants had been involved in the drug
business, specifically crack cocaine for numerous years.

                               10
. . . the accumulation of intelligence that they would have
gathered while in the business far exceeded what they were
willing to tell us in the proffer." App. at 83a. Kane's
suspicions are supported by the defendants' conduct
during the "debriefing" sessions. Defendants demanded that
they be interviewed together, and, during the interview,
"one brother or the other would begin talking about
something and the other brother would tell him, no, . . .
we're not going to tell them about that. Often times they
would laugh at each other." App. at 83a. From this
testimony, the district court properly could conclude that
the each defendant failed to provide "all information
concerning his knowledge of, and participation in the
distribution of cocaine base and other crimes about which
he has knowledge" as was required by the agreement. App.
at 19a, 26a-27a.

We also agree with the district court that the
government's in-court clarification of the terms of the plea
agreements did not in any way alter defendants' obligation
to provide complete information. In open court, the
Assistant U.S. Attorney acknowledged that "it's the
Government's expectation after the proffer that Mr. Roman,
if the information he is able to provide proves truthful and
accurate, that he would receive a downward departure
motion and it would not be a barrier to receiving such a
motion, simply that he could not engage in affirmative
investigative techniques but that he solely may be able to
provide historical information to the Government." App. at
58a-59a. Defendants argue that, if they provided truthful,
accurate, but incomplete historical information, the
government was still obligated to move for a downward
departure. See Appellant Br. at 16. (Appellant Oscar
Roman)("There is no ambiguity in that language . . . Oscar
Roman would receive a downward departure motion if the
information he provided met two criteria -- truthfulness
and accuracy . . . ."). We disagree. Instead, we believe that
the district court correctly interpreted this statement to
mean that "the fact that [the information defendants
provided] was simply historical would not, in and of itself,
prevent it from qualifying as substantial assistance." App.
at 143a. Therefore, we find no error in the district court's

                               11
determination that the government did not breach the plea
agreement by refusing to file a downward departure motion.

IV.

Samuel Roman alleges error in the district court's denial
of his request for CJA funds to retain a psychiatrist. In
appropriate cases a court can order that such funds be
provided to assist an indigent defendant in preparing for
sentencing.

Counsel for a person who is financially unable to
obtain investigative, expert, or other services necessary
for adequate representation may request them in an ex
parte application. Upon finding, after appropriate
inquiry in an ex parte proceeding, that the services are
necessary and that the person is financially unable to
obtain them, the court . . . shall authorize counsel to
obtain the services.

18 U.S.C. § 3006A(e)(1). However, a court should first
"satisfy itself that a defendant may have a plausible
defense." United States v. Alden, 767 F.2d 314, 318 (7th
Cir. 1984)(emphasis added). "The decision to grant or deny
a motion under section 3006A(e) is one committed to the
discretion of the district court, and a district court's
decision will be disturbed on appeal only if it constitutes an
abuse of discretion." Id. at 319.

Samuel Roman wanted a psychiatrist "to testify at
sentencing in support of his motion for a downward
departure . . . based on mental and emotional conditions
and diminished capacity." Appellant Br. at 12 (Appellant
Samuel Roman). His mental and emotional condition, he
claimed, was "due to, (a) the murder of his father, (b) the
fact that from the age of five years old, he grew up without
a father, and (c) his extensive abuse of drugs and alcohol."
Appellant Br. at 15 (Appellant Samuel Roman).

Under the Guidelines, those factors do not warrant a
downward departure. Section 5H1.4 of the Guidelines
states that "[d]rug or alcohol dependence or abuse is not a
reason for imposing a sentence below the guidelines."
U.S.S.G. § 5H1.4 (emphasis added). Section 5H1.12 states

                               12
that "[l]ack of guidance as a youth and similar
circumstances indicating a disadvantaged upbringing are not
relevant grounds for imposing a sentence outside the
applicable guideline range." U.S.S.G. § 5H1.12 (emphasis
added). Taken together, these sections demonstrate that the
facts of his case did not warrant a downward departure.
Accordingly, the district court did not abuse its discretion
by denying Samuel Roman funds to retain a psychiatrist to
testify in support of that departure.

He also claims that this denial "deprived him of his rights
under the Due Process and Equal Protection clauses of the
United States Constitution." Appellant Br. at 12 (Appellant
Samuel Roman). For this proposition, he cites Ake v.
Oklahoma, 470 U.S. 68 (1985). In Ake, the Supreme Court
held that, when a capital defendant demonstrates that his
mental condition is a significant factor at his sentencing
phase, he is "entitled to the assistance of a psychiatrist . . .
and [ ] the denial of that assistance deprive[s] him of due
process." Id. at 87. The Court recognized, however, that "[a]
defendant's mental condition is not necessarily at issue in
every criminal proceeding . . . and it is unlikely that
psychiatric assistance . . . would be of probable value in
cases where it is not." Id. at 82. "The variable on which [a
court] must focus is, therefore, the probable value the
assistance of a psychiatrist will have . . . and the risk
attendant on its absence." Id. at 84. Since the psychiatric
testimony that Samuel Roman wanted to present would
have been irrelevant, the court did deprive him of due
process in refusing to authorize funds for a psychiatrist.

V.

For the reasons set forth above, we will affirm defendants'
judgments of sentence entered on October 16, 1996.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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