United States v. Tauil-Hernandez ( 1996 )

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No. 95-2808
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United States of America, *
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Plaintiff - Appellee, *
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v. *
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Maribel Tauil-Hernandez, *
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Defendant - Appellant. *
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Appeals from the United States
No. 95-2810 District Court for the
___________ District of Nebraska.
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Julio Mordan, *
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Defendant - Appellant. *
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Submitted: February 13, 1996
Filed: July 3, 1996
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Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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LOKEN, Circuit Judge.
The United States filed a multi-count indictment charging Maribel
Tauil-Hernandez, Julio Mordan, Eladio Rosario, Alfredo Diaz, Oswaldo
Aguirre-Helming, Monica Anderson, and Maria Diaz with narcotics and
conspiracy violations. Each defendant pleaded guilty to conspiracy to
distribute cocaine in violation of 21 U.S.C. § 846, and the government
dropped the remaining charges. Tauil-
Hernandez and Mordan now appeal their sentences. Mordan raises a
significant legal issue, whether the Fourth Amendment exclusionary rule
applies to federal sentencing proceedings. We affirm.
I. Tauil-Hernandez.
A. Drug Quantity. Tauil-Hernandez timely objected to the quantity
of cocaine attributed to her for sentencing purposes in her Presentence
Investigation Report. After an evidentiary hearing at which Rosario,
Alfredo Diaz, and two agents testified for the government, the district
court1 overruled this objection and attributed between five and fifteen
kilograms to Tauil-Hernandez. That resulted in a sentence of 120 months
in prison and five years of supervised release. Tauil-Hernandez argues
that this quantity finding is clearly erroneous because she was only
responsible for distributing between three-and-one-half and five kilograms.
That lesser quantity would reduce her statutory minimum sentence from ten
years to five, see 21 U.S.C. §§ 841(b)(1)(A) and (B), and her Guidelines
base offense level from thirty-two to thirty, see U.S.S.G. §§ 2D1.1(c)(4)
and (5).
The evidence at the sentencing hearing, viewed most favorably to the
government, established that Tauil-Hernandez met Rosario in New York City
in the fall of 1992 and persuaded him to begin distributing cocaine in
Omaha. Between October 1992 and April 1993, Tauil-Hernandez made six trips
to New York City. On each occasion, she transported 450-500 grams of
cocaine purchased by Rosario to Omaha, where the conspirators distributed
the cocaine from an apartment rented by Tauil-Hernandez.
On April 4, 1993, police searched an Omaha motel room, seizing 3.4
grams of cocaine, a large amount of cash, and a semi-automatic
1
The HONORABLE THOMAS M. SHANAHAN, United States District
Judge for the District of Nebraska.
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pistol. They arrested Tauil-Hernandez as she returned to the room. Though
charges resulting from this arrest were dropped, the arrest ended Tauil-
Hernandez's dealings with Rosario. However, in November 1993, she began
transporting cocaine to Omaha for her step-brother, Alfredo Diaz. On March
17, 1994, police arrested her at an Omaha bus station returning from New
York City with 500 grams of cocaine hidden in a pillow and one gram in her
cosmetics case.
On appeal, Tauil-Hernandez concedes that 4650 to 4750 grams of
cocaine should be attributed to her for sentencing purposes: the 2,950
grams she transported for Rosario, the 1700 to 1800 grams she transported
for Alfredo Diaz, and the 4.4 grams seized in her motel room and cosmetics
case. However, that leaves the government 250 to 350 grams short of five
kilograms. The government points to two additional transactions, which
Tauil-Hernandez argues were not part of her role in the conspiracy. First,
Rosario testified that 500 grams of cocaine were transported from San Diego
to Omaha by another courier in February 1993, while Tauil-Hernandez was
hospitalized for surgery. Second, FBI agent William Culver testified that
a cooperating customer of the conspiracy, Javier Malendez, told Culver that
Tauil-Hernandez transported a kilogram of cocaine from New York City to
Omaha in September 1993. Attributing either of these transactions to
Tauil-Hernandez would push her over the five-kilogram sentencing threshold.
When drug quantity is at issue, the government must establish at
sentencing, by a preponderance of the evidence, the type and quantity of
drugs attributable to each conspirator. See United States v. Maxwell, 25
F.3d 1389, 1397 (8th Cir.), cert. denied, 115 S. Ct. 610 (1994). We review
the district court's drug quantity findings for clear error, reversing
"only if the entire record definitely and firmly convinces us that a
mistake has been made." United States v. Sales, 25 F.3d 709, 711 (8th Cir.
1994). After careful review of the sentencing record, we conclude that
Tauil-Hernandez cannot meet this demanding standard of review.
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A conspirator is responsible for all reasonably foreseeable acts of
others taken in furtherance of the conspiracy. See U.S.S.G.
§ 1B1.3(a)(1)(B); United States v. Flores, 73 F.3d 826, 833 (8th Cir.),
cert. denied, 1996 WL 282539 (June 24, 1996) (No. 95-9092). Tauil-
Hernandez admitted making numerous trips to transport cocaine to Omaha.
She could clearly foresee that Rosario would recruit another courier during
her hospitalization to keep the Omaha conspirators supplied with cocaine.
Indeed, there was testimony she knew of the San Diego trip and saw the 500
grams transported to Omaha. Thus, there was no clear error attributing
these additional 500 grams to Tauil-Hernandez, and we need not consider the
second disputed transaction.
In these circumstances, the district court's ultimate drug quantity
finding was not clearly erroneous. The evidence at the sentencing hearing,
viewed favorably to Tauil-Hernandez, would have supported a drug quantity
finding of less than five kilograms. But it is not our task to reweigh the
evidence unless we are firmly convinced that a mistake has been made.
Though her principal role in the conspiracy was that of a courier, Tauil-
Hernandez apparently persuaded more than one New York drug dealer to
distribute cocaine in Omaha, and she transported large quantities of that
drug over a long period of time. As the district court recognized in
sentencing her to the statutory minimum prison term, the five kilogram
quantity finding is harsh but clearly deserved.
B. Possession of a Firearm. Tauil-Hernandez next argues that the
district court erred in assessing a two-level enhancement for possession
of a firearm. See U.S.S.G. § 2D1.1(b)(1).2 This enhancement is
appropriate if the government proves that "the weapon was used to further
the conspiracy and the possession was
2
Though Tauil-Hernandez received a mandatory minimum sentence,
this Guidelines issue was potentially relevant because possession
of a firearm precludes the sentencing court from ignoring the
statutory minimum penalty under 18 U.S.C. § 3553(f).
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reasonably foreseeable to" Tauil-Hernandez. We review those fact
determinations for clear error. See United States v. Garrido, 995 F.2d
808, 815 (8th Cir.), cert. denied, 114 S. Ct. 330 (1993).
Police found the handgun under a motel room mattress, near bundles
containing over $14,000 in cash. Tauil-Hernandez had rented the motel room
and was arrested returning to it. Rosario testified that it was the same
gun he kept under a mattress at the apartment he shared with Tauil-
Hernandez. She admitted that the conspirators distributed cocaine from
that apartment. She also knew that Rosario kept a gun in the apartment and
that conspirator Aguirre-Helming had brought the gun to the motel room.
On this record, the district court's decision to impose a firearm
enhancement must be affirmed. The crucial inquiry is whether "it is not
clearly improbable that the weapon had a nexus with the criminal activity."
United States v. Richmond, 37 F.3d 418, 419 (8th Cir. 1994), cert. denied,
115 S. Ct. 1163 (1995). In a conspiracy case, a sufficient nexus is
established if "the weapon was found in the same location where drugs or
drug paraphernalia were stored, or where part of the conspiracy took
place." United States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996). Even
crediting Tauil-Hernandez's testimony that she was afraid of the gun and
never used it, she knew that other conspirators possessed the gun in
furtherance of the conspiracy.
C. Downward Departure. Finally, Tauil-Hernandez argues that the
district court should have granted her a downward departure under U.S.S.G.
§ 5K2.0 and 18 U.S.C. § 3553(b) because her sentence is substantially
greater than the sentences of more culpable conspirators, and because she
cooperated in unrelated government narcotics investigations, though not
enough to earn a substantial assistance departure motion. At sentencing,
the district court recognized its authority to depart but declined to
exercise that discretion, explaining that it had taken these mitigating
factors
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into account in imposing the mandatory minimum sentence. That
discretionary decision is unreviewable on appeal. See United States v.
Jenkins, 78 F.3d 1283, 1290 (8th Cir. 1996).
II. Mordan.
A. Drug Quantity. Mordan came to Omaha from New York in late 1993
and was recruited by Alfredo Diaz and Aguirre-Helming into the conspiracy.
He made two trips to New York in February 1994, returning with four ounces
of cocaine and three bottles of a cutting agent. In March, he made another
trip to New York City, where he was arrested in a taxi cab with 500 grams
of cocaine. Before Mordan pleaded guilty, the district court suppressed
these 500 grams as illegally seized. On appeal, Mordan argues that the
court then erred in basing its drug quantity finding for sentencing
purposes on this suppressed half kilogram. Excluding this quantity would
reduce his base offense level from twenty-six to eighteen, see U.S.S.G.
§§ 2D1.1(c)(7) and (11), and trigger a reduction in his forty-six-month
prison sentence.
Mordan first argues that the court abused its discretion in granting
the government a two-week continuance of the sentencing hearing. At the
initial hearing, FBI agent Culver testified to the amount of cocaine seized
in New York, relying upon a laboratory report prepared by the New York City
Police Laboratory. Mordan objected to use of this report as unreliable
hearsay, and the court sustained that objection. See United States v.
Marshall, 940 F.2d 382, 383 (8th Cir. 1991) (per curiam). However, the
court also continued the hearing for two weeks so that the government could
produce the author of the report. That chemist testified two weeks later
in support of the statements in the report. She was vigorously cross-
examined by Mordan's attorney.
The district court did not abuse its substantial discretion in
granting this continuance. See United States v. Kopelciw, 815 F.2d
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1235, 1238 (8th Cir. 1987) (standard of review). The government was not
unreasonable in initially believing it had enough other corroboration of
cocaine quantity to establish the lab report's reliability -- Alfredo Diaz
testified that he had sent Mordan to New York to purchase 500 grams of
cocaine. When the district court ruled otherwise, the resulting two-week
delay did not prejudice Mordan, who thoroughly cross-examined the chemist.
Mordan next argues that the cocaine illegally seized in New York
should not be admissible to prove drug quantity at sentencing. This is an
issue of first impression in this circuit. Congress has told us not to
apply exclusionary rules at sentencing. See 18 U.S.C. § 3661, repeated in
U.S.S.G. § 1B1.4. Most of our sister circuits have concluded that the
Fourth Amendment's exclusionary rule does not apply in federal sentencing
proceedings,3 though two separate opinions have urged the contrary rule.
See United States v. Jewel, 947 F.2d 224, 238-40 (7th Cir. 1991)
(Easterbrook, J., concurring); Kim, 25 F.3d at 1437 (Schroeder, J.,
dissenting).
The Supreme Court has declined various invitations to extend the
Fourth Amendment exclusionary rule beyond the criminal trial. The rule
does not apply to grand jury proceedings, see United States v. Calandra,
414 U.S. 338 (1974), to INS deportation proceedings, see I.N.S. v. Lopez-
Mendoza, 468 U.S. 1032 (1984), or to civil tax proceedings, see United
States v. Janis, 428 U.S. 433 (1976). When deciding whether to extend the
rule to proceedings other than criminal trials, the Court balances the
likelihood of
3
See United States v. McCrory, 930 F.2d 63, 68-69 (D.C. Cir.
1991), cert. denied, 502 U.S. 1037 (1992); United States v. Tejada,
956 F.2d 1256, 1263 (2d Cir.), cert. denied, 506 U.S. 841 (1992);
United States v. Torres, 926 F.2d 321, 325 (3d Cir. 1991); United
States v. Montoya-Ortiz, 7 F.3d 1171, 1181 (5th Cir. 1993); United
States v. Jenkins, 4 F.3d 1338, 1345 (6th Cir. 1993), cert. denied,
114 S. Ct. 1547 (1994); United States v. Kim, 25 F.3d 1426, 1436
(9th Cir.), cert. denied, 115 S. Ct. 607 (1994); United States v.
Lynch, 934 F.2d 1226, 1237 (11th Cir. 1991), cert denied, 502 U.S.
1037 (1992).
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deterring Constitutional violations against the cost of withholding
reliable information from the proceedings in question. See Illinois v.
Krull, 480 U.S. 340, 347 (1987).
Extending the exclusionary rule to sentencing would have a
detrimental effect on the traditional judicial prerogative of sentencing
an offender based upon all the relevant and reliable information that is
available. See United States v. Lynch, 934 F.2d 1226, 1236 (11th Cir.
1991), cert denied, 502 U.S. 1037 (1992). Turning to the deterrence side
of the balance, there is some force to the contention that, under the
Sentencing Guidelines' relevant conduct regime, the exclusionary rule is
needed at sentencing to deter police who have lawfully obtained enough
evidence to convict from illegally seizing additional contraband in order
to greatly increase the offender's sentence. See McCrory, 930 F.2d at 70-
72 (Silberman, J., concurring), and the previously cited separate opinions
of Judges Schroeder and Easterbrook. However, we doubt that there are many
police officers who would risk the fruits of prior legitimate law
enforcement activities in so cynical a fashion. See Lynch, 934 F.2d at
1236 & n.14. More significantly, whatever increased deterrence might
result from this extension of the exclusionary rule does not, in our view,
outweigh the cost of truncating the sentencing judge's traditionally broad
inquiry into all that may be relevant and reliable in determining the
convicted defendant's appropriate punishment. See Tejada, 956 F.2d at
1263; Torres, 926 F.2d at 325. We therefore agree with the other circuits
that a sentencing court may properly consider suppressed evidence in
determining a Guidelines sentence.
B. Role in the Offense. Mordan also argues that the district court
erred in finding that he was a "minor" participant in the conspiracy,
entitled to a two-level reduction, rather than a "minimal" participant,
entitled to a three- or four-level reduction. See U.S.S.G. §§ 3B1.2(a) and
(b). Mordan claims that
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he was the least culpable member of the conspiracy because he joined later
than the others and only participated as a courier.
"[T]he downward adjustment for a minimal participant will be used
infrequently," for example, "where an individual was recruited as a courier
for a single smuggling transaction involving a small amount of drugs."
U.S.S.G. § 3B1.2, comment. (n.2). The district court found that Mordan
made several trips to New York to purchase more than a small amount of
cocaine for his more culpable conspirators. The court's findings as to
Mordan's role in the offense are not clearly erroneous, and thus the two-
level reduction must be affirmed. See United States v. Fregoso, 60 F.3d
1314, 1329 (8th Cir. 1995) (standard of review).
The judgments of the district court are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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