There was a problem locating the requested document.
Page 1 This is a reproduction of a library book that was digitized
by Google as part of an ongoing effort to preserve the
information in books and make it universally accessible.
https://books.google.comPage 2 UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CAUSE NO. 96-2467
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
) Appeal from the
) United States District Court
) Northern District of Indiana
)
VS.
Hammond Division
)
) Cause No. 92 CR 113
)
WILLIE EDWARDS ,
Defendant- Appellant.
) The Honorable Rudy Lozano ,
Judge
)
BRIEF AND APPENDIX OF DEFENDANT-APPELLANT WILLIE EDWARDS
U.S.C.A. - 7th Circuit
FILED
TM
SEP 17 1996
THOMAS F. STRUBBE
CLERK
DOC. #
RochelleA.
Meyers
Rochelle S. Meyers (# 18791-71)
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend , Indiana 46601
PH: (219) 234-7606Page 3 Digitized by GooglePage 4 UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CAUSE NO . 96-2467
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
) Appeal from the
)
United States District Court
) Northern District of Indiana
)
VS.
Hammond Division
)
)
Cause No. 92 CR 113
)
WILLIE EDWARDS ,
Defendant-Appellant .
) The Honorable Rudy Lozano ,
Judge
BRIEF AND APPENDIX OF DEFENDANT-APPELLANT WILLIE EDWARDS
Meyers
Recelle
A.
Rochelle S. Meyers (# 18791-7 )
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend, Indiana 46601
PH: (219 ) 234-7606Page 5 Digitized by GooglePage 6 CERTIFICATE OF INTEREST
The undersigned counsel of record for the Defendant- Appellant Willie Edwards furnishes the
following list in compliance with Circuit Rule 26.1 .
Willie Edwards
2.
(i) None
1
1.
(ii) None
3.
Rochelle S. Meyers, Esq.
Fred R. Hains , Esq.
413 West Jefferson Blvd.
South Bend, Indiana 46601
PH: (219) 234-7606
DATED this
day of September, 1996 .
& Meyers
Rochelle
Rochelle S. Meyers (# 18791-71 )
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend , Indiana 46601
PH: (219 ) 234-7606
FAX : (219) 282-1360
iPage 7 Digitized by GooglePage 8 TABLE OF CONTENTS
Certificate of Interest
i
Table of Cases and Other Authorities
iv
Jurisdictional Statement •
.1
Statement of the Case ...
2
Statement of the Facts
....
3
...
6
Statement of Issue
Summary of the Argument . . .
7
Argument :
9
I.
The District Court erred in its application of Sections 1B1.3 and 3D1.2 (d) of the
United States Sentencing Guidelines when it found the Defendant accountable
for the amount of drugs attributed to the entire conspiracy because this amount
was foreseeable by the defendant without first making a finding as to the scope
of the criminal activity jointly undertaken by the defendant.
A.
9
Under Application Note 2 of U.S.S.G. 1B1.3 , the Court must keep in
mind that the scope of the criminal activity jointly undertaken by the
defendant ... is not necessarily the same as the scope of the conspiracy,
and hence relevant conduct is not necessarily the same for every
9
participant. . . .
II .
The District Court was clearly erroneous when it found that the evidence
showed that the Defendant Willie Edwards was involved in every part ofthe
organization and that his participation began before February 1989. .
A.
12
The evidence in the record does not support the District Court's finding
that the Defendant was involved in every part of the organization over a
two and a half year period and therefore the defendant should not be held
accountable for the actions of the conspiracy for this entire time period. . .
ii.
12Page 9 Digitized by GooglePage 10 B.
The evidence at the sentencing does not support the District Court's
finding that the Defendant participated in the conspiracy as early as
February 1989 and therefore the Defendant should not have had his
sentence increased pursuant to U.S.S.G Section 4A1.1 (d ) and (e) ...
13
Conclusion
15 Rule 30 (c) Statement 21
16
Appendix
17
iii .Page 11 Digitized by GooglePage 12 AUTHORITIES CITED
CASES :
PAGE :
United States v . Akinrinade , 61 F.3d 1279
9 .
(7th Cir. 1995)
1
United States v . Edwards, 945 F.2d 1387
.
(7th Cir. 1993)
10
United States v . Edwards , 77 F.3d 968
(7th Cir. 1996)
·
10
United States v. Fones, 51 F.3d 663
(7th Cir. 1995)
•
.
8
United States v. Gregory, 74 F.3d 819
11
(7th Cir. 1996)
United States v. Gutizierrez-Hernandez, 1996 WL 488070
...
(9th Cir. 1996)
10
United States v. Hernandez- Santiago, 1996 WL 447715
..
(2nd Cir. 1996)
10
United States v . Montgomery, 14 F.3d 1189
… ..
(7th Cir. 1994)
9
United States v . Townsend , 924 F.2d 1385
(7th Cir. 1991 )
10
...
United States v. Windom , 82 F.3d 742
(7th Cir. 1996)
.. 9
·
iv.Page 13 Digitized by GooglePage 14 STATUTES :
. 8
18 U.S.C. Section 3231 ...
..
18 U.S.C. Section 3742 ( a) ....
9
. 2
21 U.S.C. Section 843 (b) (2 ) ....
21 U.S.C. Section 846 ....
2
U.S.S.G. Section 1B1.3 ....
7,9
.
U.S.S.G. Section 3D1.2 (d) . . . ...
9
8, 13
U.S.S.G. Section 4A1.1 (d) and (e) .....
V.Page 15Page 16 JURISDICTIONAL STATEMENT
This is a criminal appeal from a sentence rendered by the United States District Court for the
Northern District of Indiana, Hammond Division , under Cause No. 92 CR 113 , the Honorable Rudy
Lozano presiding . The Appellant, Willie Edwards was sentenced on May 28 , 1996 for the violation of
21 U.S.C. § 846 and 21 U.S.C. Section 843 (b) (2) . The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. This Court has jurisdiction for this appeal pursuant to 18 U.S.C. § 3742 (a) .
Notice for Appeal was timely filed on June 5 , 1996 .
1Page 17Page 18 STATEMENT OF THE CASE
On August 20 , 1992 , the grand jury for the U.S. District Court, Northern District of Indiana
named the Defendant Willie Edwards, Jr. ( " Edwards " ) along with fourteen ( 14 ) other co -defendants in a
thirty-nine (39) count indictment.
Edwards proceeded to trial which was conducted February 22 , 1994
through February 25 , 1994 and was subsequently found guilty of one ( 1 ) count of Conspiracy to
Distribute Heroin in violation of Title 21 U.S.C. § 846 and one ( 1 ) count of Use of a Communication
Facility in a Drug Trafficking Crime in violation of Title 21 U.S.C. § 843 (b) (2 ) . The Court, having
previously found at the sentencing of co-defendant Lee Edwards that the conspiracy to which Defendant
Edwards was convicted involved forty- seven (47) kilos of heroin , made a finding that this entire amount
was attributable to Edwards , thereby placing him at a offense level of 38 pursuant to U.S.S.G. §
3D1.2 (d) . The Court also found that Willie Edwards had been involved in the conspiracy for the last
two-and-a-half years of the conspiracy , thereby finding that this involvement was within two (2) years of
release from state custody and that he was involved in the conspiracy while still on probation for the
state crime .
By these findings , the District Court committed Mr. Edwards to the custody of the United
States Bureau of Prisons for a term of Three Hundred Twenty- four (324) months .
Mr. Edwards appeals the District Court's sentencing decision based on the fact that the
District Court improperly attributed forty-seven (47) Kilos to Edwards without finding that the scope of
his agreement encompassed the conduct of the conspiracy which included all of the forty- seven (47)
Kilos , and further, that the District Court committed clear error in finding that Edwards had been
involved with the conspiracy while on probation and within two (2) years of his release from prison .
2Page 19 Digitized by GooglePage 20 STATEMENT OF THE FACTS
On August 14, 1990 , the Federal Bureau of Investigation was issued a wire interception
order, directing the interception of wire communications over telephone line 219-949-3704 located at
1522 Taft Street and telephone line 219-883-3811 located at 460 Taft Place , both addresses being in
Gary, Indiana. (Trial Transcript; p.410) . The wire interception order was renewed on September 13 ,
1990. 1522 Taft Street and 460 Taft Street were both residences of Lee Edwards and his wife Lorri
Edwards. (Trial Transcript; p.410) The basis for the original wire tap order was confidential
information which indicated that there may have been drug trafficking taking place at these addresses.
Pursuant to the information obtained by these wire interceptions , a search warrant was issued and
executed by the Federal Bureau of Investigation on October 11 , 1990. The information gathered by the
wire taps and the executed warrant resulted in the thirty-nine (39) count indictment filed in this case on
August 20 , 1992 which named fifteen ( 15) co -defendants . Defendant Willie Edwards , Jr. was named in
three (3 ) of the thirty- nine ( 39 ) counts .
Co -defendant Lee Edwards was convicted on seventeen ( 17) counts from the August 20 , 1992
indictment, including convictions for multiple conspiracies to distribute heroin and cocaine , continuing
criminal enterprise , multiple counts of distribution of heroin and cocaine, use of a weapon during a drug
trafficking crime, and use of a communication facility in drug trafficking crime and aiding and abetting .
Lee Edwards received a sentence of life imprisonment plus thirty-nine (39) months .
Lorri Edwards , the
wife of Lee Edwards, was convicted of three (3 ) counts , including one ( 1 ) count of conspiracy to
distribute heroin, and two (2) counts of possession with intent to distribute heroin and received a
sentence of five (5) years probation.
By all accounts , the kingpin in the heroin and cocaine conspiracy
was Lee Edwards . (Trial transcript; p . 467) .
3Page 21Page 22 At trial , a number of co - defendants, including Lorri Edwards, testified regarding Willie Edwards'
involvement in the drug conspiracy. Between August and October of 1990 , Lee Edwards and Lorri
Edwards were living at both 460 Taft Street and 1522 Taft Street in Gary, Indiana. Drugs were sold out
of both of these residences and the couple would move back and forth between the two residences to
avert detection of their drug trafficking . (Trial Transcript , p . 411 ) . Lee Edwards owned both of these
residences, along with an apartment building, and the Black Horseman liquor store . Drugs were sold out
of all of these locations . (Trial Transcript; p . 411 ) . Because Willie Edwards , Jr. was the nephew of Lee
Edwards , he would spend time at the residences of his Uncle Lee . Lee Edwards had developed an
arrangement whereby he would hire workers to sell for him at these locations . Of all of the workers who
worked for Lee Edwards , co-defendant Flakes Kellum sold the most drugs for Lee. (Trial Transcript; pg
416) . Lee Edwards would make arrangements to buy pure heroin, then mix and cut the heroin himself.
Willie Edwards was never involved in the mixing and cutting of the heroin . (Trial Transcript; pgs . 458-
459 ) . Lee Edwards , Lorri Edwards, and other workers including Flakes Kellum, would make up the
packages of heroin and cocaine for the purposes of distributing to others . Willie Edwards was not
involved in the packaging of the drugs for sale. (Trial Transcript; pgs . 459-460) .
Defendant Willie Edwards began snorting heroin at the age of 15. By the age of 18 , he was
injecting the heroin into his veins . By the age of 28 , he began to also use cocaine . (Trial Transcript; p .
488) . On February 7 , 1984 , also at the age of 28 , Willie Edwards , Jr. began serving a state sentence for
dealing narcotics . He was released from prison on February 24 , 1987 and placed on probation for two
years . He successfully completed his probation and was discharged from probation on January 24, 1989 .
(Pre-sentence Report, p . 6) . Between December 1 , 1987 and November 17 , 1989 , Defendant Willie
4Page 23Page 24 Edwards , Jr. was employed as a laborer at National Briquette Corporation in East Chicago , Illinois . (Pre-
Sentence Report, p . 9) .
During the time period which the conspiracy covered , Willie Edwards was known to be a drug
addict who used both heroin and cocaine . (Trial Transcript; pg . 456) .
go for his supply of heroin was his Uncle Lee .
The place for Willie Edwards to
The relationship between Willie Edwards and Lee
Edwards was one of addict and supplier . Any drugs which Willie sold for Lee was for the purpose of
getting heroin for his own consumption . Because Lee Edwards did not always receive all of the money
which was owed to him from sales made by Willie Edwards, Lee Edwards distrusted Willie Edwards
and stopped giving him drugs to sell . (Trial Transcript; pg . 469) . There was also a belief by Lorri
Edwards that because Willie was such a heroin addict, he would take drugs out of packages for his own
personal use and short customers of the drug.
(Trial Transcript pgs . 469-470) .
Between February 22 and February 25 , 1994 , a jury trial was conducted before the Honorable
Rudy Lozano in the United States District Court, Hammond Division . Willie Edwards was found guilty
at trial of conspiracy to distribute cocaine and using a communication facility to facilitate drug felonies .
Sentencing was held on May 28 , 1996. At the sentencing of Willie Edwards, Jr. , the District
Court relied on its earlier finding in the sentencing of co -defendant Lee Edwards that the quantity of
drugs attributable to the conspiracy was forty-seven (47) Kilos.
The District Court's sentencing of Lee Edwards , including its findings regarding the amount of
drugs involved in the conspiracy, was affirmed by the Seventh Circuit Court of Appeals in United States
v. Edwards , 77 F.3d 968 ( 7th Cir. 1996) .
5Page 25Page 26 STATEMENT OF THE ISSUE FOR REVIEW
I.
Whether the District Court erred in its application of Sections 1B1.3 and 3D1.2 (d) of the United
States Sentencing Guidelines when it found the Defendant accountable for the amount of drugs
attributed to the entire conspiracy because this amount was foreseeable by the defendant without
first making a finding as to the scope of the criminal activity jointly undertaken by the defendant .
II .
Whether the District Court was clearly erroneous when it found that the evidence showed that the
Defendant Willie Edwards was involved in every part of the organization and that his
participation began before February 1989 .
6Page 27Page 28 SUMMARY OF THE ARGUMENT
The District Court erred by finding that the Defendant Willie Edwards, Jr. should be held
accountable for the entire quantity of drugs which were attributable to the entire conspiracy . Though the
District Court found that the Defendant was involved in every aspect of the organization during his two-
and-a-half year involvement, and that the amount of drugs attributable to the conspiracy was foreseeable
to the Defendant, the Court failed to make any findings as to whether or not the entire conspiracy was a
"jointly undertaken criminal activity" for the Defendant . The Court did not at any point in the
sentencing of the Defendant make findings as to the scope of the Defendant's agreement to participate in
the conspiracy , as required by U.S.S.G. Section 1B1.3 (a)( 1 ) (B) .
The District Court also was clearly erroneous in finding that the Defendant participated fully in
every aspect of the conspiracy . The evidence shows clearly the opposite . Because the Defendant was a
heroin addict with little control over his addiction , and because the kingpin of the organization was his
uncle , Lee Edwards, who knew that because of his addiction , the Defendant could not even be trusted to
sell the drugs as one of Lee Edwards' workers , the Defendant's scope of agreement as to his involvement
in the conspiracy could not have encompassed the entire conspiracy . Co-defendant Lee Edwards
controlled the entire conspiracy. By no means would he have even allowed Willie Edwards the power to
agree to participate in every aspect of the conspiracy . The relationship between Lee Edwards and Willie
Edwards was one of supplier and addict and rather than Willie agreeing every aspect of the conspiracy,
Willie merely did whatever Lee required of him in order to get his heroin .
The District Court also erred when it determined the time period in which Willie Edwards
participated in this drug conspiracy. There is nothing in the record except unreliable hearsay which
places the Defendant's participation in the conspiracy as early as January 1989. This is particularly
7Page 29Page 30 important because of the fact that the Defendant was released from state prison in February 1987 and
was on probation until January 1989. By the Court finding that the Defendant was involved as early as
January 1989 , the Defendant has been given an additional 3 criminal history points pursuant to U.S.S.G.
Section 4A1.1 (d) and (e) .
8Page 31Page 32 ARGUMENT
I.
The District Court erred in its application of Sections 1B1.3 and 3D1.2 (d ) of the United States
Sentencing Guidelines when it found the Defendant accountable for the amount of drugs
attributed to the entire conspiracy because this amount was foreseeable by the defendant without
first making a finding as to the scope of the criminal activity jointly undertaken by the defendant.
A district court's calculation of the quantity of drugs involved in the offense and in relevant
conduct is finding of fact and is subject to the clearly erroneous standard . United States v. Windom, 82
F.3d 742 (7th Cir. 1996) ; United States v . Montgomery, 14 F.3d 1189 , 1196 ( 7th Cir. 1994) . However,
the interpretation of the Sentencing Guidelines and how they are to be applied is a question of law which
should be reviewed de novo . United States v. Akinrinade , 61 F.3d 1279 , 1288-1289 ( 7th Cir . 1995) ;
United States v. Fones , 51 F.3d 663 , 665 ( 7th Cir. 1995) .
A.
Under Application Note 2 of the U.S.S.G. Section 1B1.3 , the Court must keep in mind
that " the scope of the criminal activity jointly undertaken by the defendant ….. is not
necessarily the same as the scope of the conspiracy , and hence relevant conduct is not
necessarily the same for every participant. "
When a defendant has been convicted of a conspiracy involving drugs , the Court is required to
determine the base offense level on the basis of the application of U.S.S.G. Section 1B1.3 . This
guideline defines what is to be considered relevant conduct which should therefore determine the base
offense level . The conduct for which a defendant is accountable is that which is both " in furtherance of
the jointly undertaken criminal activity" and " reasonably foreseeable in connection with that criminal
activity. " U.S.S.G. Section 1B1.3 , Application Note 2. And, " [b ] ecause a count may be worded broadly
and include the conduct of many participants over a period of time , the scope of the criminal activity
9Page 33Page 34 jointly undertaken by the defendant ... is not necessarily the same as the scope of the entire conspiracy ,
and hence relevant conduct is not necessarily the same for every participant. "
The District Court, in sentencing the Defendant Willie Edwards, skipped completely the inquiry
as to the scope of the criminal activity jointly undertaken by the defendant. In other jurisdictions,
"jointly undertaken" has been interpreted to require actual agreement between the individual defendant
and the conspirators as the conduct for which the defendant is to be punished . See United States v .
Gutizierrez-Hernandez , 1996 WL 488070 (9th Cir. 1996) (remanded for the court to make express
factual findings as to the amount of drugs reasonably foreseen by the defendant or which fell within the
scope of defendant's particular agreement with the conspirators) ;United States v . Hernandez- Santiago , 1996 WL 447715 (2nd Cir. 1996) (district court improperly calculated defendant's base offense level by
holding him responsible for amount foreseeable to him without making particularized finding as to
scope of defendant's agreement) .
The Seventh Circuit has discussed the requirements of relevant conduct in determining the base
offense level pursuant U.S.S.G. 1B1.3 . In United States v. Edwards , 945 F.2d 1387 , 1396-1397 , the
Court extensively citing to United States v. Townsend , 924 F.2d 1385 ( 7th Cir. 1991 ) , states that:
In order to sentence a defendant based on the entire quantity of drugs
distributed in a conspiracy, when the defendant has joined the conspiracy
in its late stages , it must be shown that those earlier transactions were
reasonably foreseeable to him. The Government must show that the
defendant agreed to a conspiracy whose scope included so large a
distribution of heroin.
The Defendant Willie Edwards should be accountable only for the amount of drugs which were
distributed by others " in furtherance of the jointly undertaken criminal activity " which was " reasonably
foreseeable " by Edwards . Therefore , only the amount of drugs distributed by the conspiracy within
10Page 35 Digitized by GooglePage 36 which Edwards had undertaken to conspire with others should be attributable to Edwards. In United
States v. Gregory, the Court further interpreted Edwards to require that " the relevant issue for
determining relevant conduct in a conspiracy ... [ is ] whether the defendant's actions were in furtherance
of the illegal acts of co -conspirators of which the defendant had actual awareness or reasonable
foresight. " 74 F.3d 819 (7th Cir . 1996) .
The Court did not make any findings as to the scope of the defendant's relevant conduct which
was in furtherance of the illegal acts of the co-conspirators, whose conduct the Court has attributed to
the Defendant for the purposes of establishing his base offense level . No where is there evidence that
Willie Edwards acted in furtherance of jointly undertaken criminal conduct which encompassed the full
47 Kilos of heroin .
His role was limited to getting heroin to feed his own habit and the acts which he
did in furtherance of the conspiracy were only those acts which were incidental to getting Lee Edwards
and other members of the conspiracy to pass on to him some of the drugs.
11Page 37 Digitized by GooglePage 38 II .
The District Court was clearly erroneous when it found that the evidence showed that the
Defendant Willie Edwards was involved in every part of the organization and that his
participation began before February 1989 .
A.
The evidence in the record does not support the District Court's finding that the
Defendant was involved in every part of the organization over a two and a half
year period and therefore the defendant should not be held accountable for the
actions of the conspiracy for this entire time period .
At the sentencing hearing held on May 28 , 1996 , the District Court found that Willie Edwards
was " very heavily involved at every phase of the Lee Edwards drug trafficking organization . " However
this finding completely overlooks the testimony made in court by Lorri Edwards, who was the chief
witness against Willie Edwards. The following testimony helps to explain the inner workings of the
conspiracy and why Willie Edwards could not have been " very heavily involved in every phase " :
Redirect Examination of Lorri Edwards by District Attorney Daniel Bella :
Q:
Who was in charge of the whole show as far as this drug trafficking activity?
A:
Lee was.
Q:
Did Lee control things?
A:
Yes.
Q:
Was it always that way?
A:
Yes .
Trial Transcript; p . 467 .
12Page 39 Digitized by GooglePage 40 The evidence also shows that there were a number of parts of the conspiracy which Willie
Edwards was not involved in . For example, Lorri Edwards testified that Willie Edwards was not
involved in mixing and cutting the heroin, which was clearly a very important part of this continuing
conspiracy. (Trial Transcript, p.458-459 ) . Also , she testified that he was rarely involved in packaging
the drugs and that this was done by Lee Edwards, herself, and Flakes Kellum . (Trial Transcript; p . 459-
460) .
Willie Edwards is the nephew of Lee Edwards . Because of the family relationship , Willie
Edwards had a relationship with both Lee Edwards and Lorri which was separate from Lee's ongoing
criminal enterprise . It is only nature for Willie Edwards , admittedly a heroin addict, to spend time at the
home of his uncle who was a major heroin dealer. Because the drugs were there, Willie was there.
However, Willie's inability to stay away from the heroin and his familial relationship with Lee Edwards
should not form the basis for the Court's conclusion that Willie Edwards was involved in every phase of
the conspiracy. Because of the relationship between Willie Edwards and Lee Edwards , Willie was
allowed to spend much time at Lee's residence . Because of Willie's serious heroin addiction, Willie
needed to be surrounded by the drug . Willie was not any more involved in the conspiracy than any of
the other workers who Lee controlled . He never agreed to be a part of the greater conspiracy. He was
merely an addict who Lee did not even trust to sell the drugs for him who hung around because he
needed the drugs so badly to support his habit.
B.
The evidence at the sentencing does not support the District Court's finding that
the Defendant participated in the conspiracy as early as February 1989 and
therefore the Defendant should not have had his sentence increased pursuant to
U.S.S.G Section 4A1.1 (d) and (e)
13Page 41Page 42 The only evidence which the Government presented which supported the position that Willie
Edwards participated in the Lee Edwards conspiracy any time prior to 1990 was in the form of testimony
by Lorri Edwards at the sentencing of the Willie Edwards . (Sentencing Transcript; p . 4) . When that
evidence is held up against strong evidence to the contrary , the Government's burden of proving the
truth of this allegation by a preponderance of the evidence is not met.
Unrefuted evidence which shows that Lorri Edwards ' testimony is erroneous includes the fact
that Willie Edwards was employed as a laboror at National Briquette Corporation in East Chicago ,
Illinois from December 1 , 1987 to November 17, 1989. (Pre- sentencing Report; p . 9) . Also , on January
24 , 1989, the defendant was discharged from probation after successfully completing what was required
of him . If the defendant had been active in the Lee Edwards drug trafficking conspiracy during the time
that he was on probation , this fact would likely have been discovered by the probation department.
The more accurate interpretation of Willie's involvement in the conspiracy was an escalation
over time as Willie became more and more hooked on the heroin and that his involvement did not ever
reach the level claimed by the government because Lee Edwards would never have allowed that level of
involvement.
14Page 43 Digitized by GooglePage 44 CONCLUSION
The District Court erred in holding the Defendant liable for the full amount of drugs in the
conspiracy by not finding that the Defendant had agreed to the full extent of the conspiracy. The District
Court also was clearly erroneous in its findings of the facts regarding the extent of the Defendant's
involvement in that the evidence does not support the District Court's findings .
RochelleSteyers
Rochelle S. Meyers (# 18791-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend, Indiana 46601
PH: (219 ) 234-7606
FAX : ( 219) 282-1360
15Page 45 Digitized by GooglePage 46 UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CAUSE NO . 96-2467
UNITED STATES OF AMERICA,
Plaintiff-Appellee ,
) Appeal from the
)
United States District Court
) Northern District of Indiana
) Hammond Division
VS.
)
)
WILLIE EDWARDS , JR . ,
Cause No. 92 CR 113
) The Honorable Judge Rudy Lozano
Defendant - Appellant.
STATEMENT OF COUNSEL
PURSUANT TO CIRCUIT RULE 30 (c)
Rochelle S. Meyers, the Court Appointed Counsel for the Appellant, Willie Edwards , Jr. , states and
certifies as follows :
1.
That the following Appendix to the Brief of Appellant includes all of the materials required
by Circuit Rule 30 ( a) and (b) .
2.
There are no other materials of which I am aware within the scope of Circuit Rule 30 which
are required to be included by Circuit Rule 30 (a) and (b) .
I certify under the penalty of perjury that the foregoing statements are true , to the best of my
knowledge and belief.
Rochelle
Meyers
Rochelle S. Meyers (# 187911 )
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend, Indiana 46601
PH : (219) 234-7606
FAX : (219 ) 282-1360Page 47 Digitized by GooglePage 48 APPENDIXPage 49Page 50 APPENDIX
TABLE OF CONTENTS
1.
Judgment of the District Court A- 1 .
2.
Transcript of Proccedings held on May 28 , 1996 at 9:00 o'clock a.m.Page 51Page 52 1
APPENDIX , A- 1Page 53 Digitized by GooglePage 54 FILED
MAY 3 0 1996
UNITED
STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
AT
STEPHEN R. LUDWIG, CLERK
U.S. DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed on
or After November 1 , 1987 )
UNITED STATES OF AMERICA )
>
WILLIE EDWARDS ,
THE
(
)
(X )
()
Cause No.2 : 92
>
113
( 09 )
Scott King
JR
Defendant
Attorney
WILLIE EDWARDS ,
DEFENDANT
cr
1
V.
for Defendant
JR .
pleaded guilty to Count ( s ) .
was found guilty on Counts 3 & 18 after a plea of not
guilty .
The Plea Agreement between the defendant and the U.S.
is ACCEPTED .
Government filed
Accordingly , the defendant is adjudged guilty
Counts , which involve the following offenses :
of such
Date Offense
Title
&
Section
21 : 846
Nature
Conspiracy to Distribute Heroin , a
Schedule I Contolled
21 : 843 ( b )
18 : 2
of Offense
&
Count
No.
Concluded
August 1990
through
October 1990
3
August 1990
through
October 1990
18
Substance
Use of Communication Facility In
Drug Trafficking
Crime & Aiding
Abetting
Defendant
is sentenced as provided
in pages
2
to
through
The sentence is imposed pursuant
this Judgment .
Sentencing Reform Act of 1984 .
[ ]
The defendant has been found not guilty on Count ( s ) ,
[x ]
[ ]
is discharged as to such Count ( s ) .
Count 23 is dismissed on motion of the United
of
the
and
states .
It is ordered that defendant shall pay to the United States
a special assessment of $ 100.00 , for Counts 3 and 18 , which
shall be
due immediately as follows :
payable to Clerk ,
U.S.
District
Court ,
507
State
Street ,
Hammond ,
Indiana
46320 .
APPENDIX ,
A- 1
80Page 55Page 56 Defendant :
Cause No .:
Willie Edwards ,
2:92 cr 113-09
Jr.
Judgment-
Page
2
of 6
:: ` .
IT IS FURTHER ORDERED that the defendant
United States Attorney
change
of name ,
for this district ,
residence
costs
fully paid .
are
Defendant
Social
or mailing address until
and special
Security No .:
assessments
notify the
days ,
all
of any
fines ,
imposed by this
1
restitution ,
Judgment
shall
within 30
May
28 ,
1996
Date of Imposition
of Sentence
304-66-6805
Defendant's Date
of Birth :
Hon
Rudy Lozano ,
age
11/8/96
Defendant's Mailing Address :
4309 E.
Gary ,
United States District Court
pistrict
11th Avenue
IN 46404
5/30/176
Defendant's Residence :
Date
4309 E.
Gary ,
11th Avenue
IN 46404Page 57 Digitized by GooglePage 58 Defendant :
Willie Edwards ,
Cause No .:
2:92
cr
Jr.
Judgment
- Page
of 6
113-09
IMPRISONMENT
:'.
The defendant
is hereby committed to the
custody
of the
United States Bureau of Prisons to be imprisoned for a term of
three hundred and twenty - four ( 324 ) months , as to count 3 and for
a term of ninety - six ( 96 ) months on count 18 , to be served
concurrently .
[ ]
The Court makes the
of Prisons :
[X ]
The defendant
Marshal .
is remanded to the
The
shall surrender to the U.S.
on
Marshal
shall surrender for service
of sentence
[ ]
defendant
district
[ ]
The
at
defendant
following recommendations
to
the
Bureau
custody of the U.S.
for this
at the
institution designated by the Bureau of Prisons , before
12:00 Noon on
as notified by the U.S. Marshal
or U.S. Probation Office .
RETURN
I have executed
this Judgment
as
follows :
to
Defendant delivered on
with a certified
at
this Judgment .
United
States Marshal
By :
Deputy Marshal
copy ofPage 59Page 60 Defendant :
Cause No .:
Willie Edwards ,
2:92 cr 113-09
Jr.
Judgment
- Page
4
of 6
SUPERVISED RELEASE
Upon release from imprisonment , the defendant shall be on
This term
supervised release for a term of ten ( 10 ) years .
consists
of ten
on Count
18 ,
( 10 ) years
all
on Count
and term of Three
(3)
years
such terms to run concurrently .
1
While on supervised release , the defendant
another federal , state or local crime and shall
possess a
controlled substance ,
the standard conditions
the defendant
shall not commit
not illegally
shall
comply with
that have been adopted by this
court .
If
this Judgment imposes a restitution obligation , it shall be a
condition of supervised release that the defendant pay any such
restitution that remains
of supervised release .
unpaid at the
The defendant
commencement
shall report
of the term
in person to
the probation office in the district to which the defendant
released within 72 hours of release from the custody of the
Bureau of Prisons . The
additional conditions :
defendant
shall
comply with the
following
14 )
The defendant shall
destructive device .
not possess
a
23)
The defendant
participate
in drug aftercare
shall
is
firearm or
treatment under a copayment plan which may include
urine testing at the discretion and direction of the
probation officer .
As part of the copayment plan , the
defendant will be held responsible for payment of $ 10
per month .
The $ 10 per month requirement is intended
for offenders who are not currently working
receiving public assistance ..
STANDARD CONDITIONS
or are
OF SUPERVISION
While the defendant is on probation or supervised release
pursuant to this judgment , the defendant shall not commit another
federal , state or local crime .
In addition the defendant :
1)
shall
2)
permission of the court or probation officer ;
shall report to the probation officer as directed by
the court or probation officer and shall submit a
not
leave
the judicial
district without the
truthful and complete written report within the
five days of each month ;
first
3)
shall answer truthfully all inquiries by the probation
officer and follow the instructions of the probation
officer ;
4)
shall support his or her dependents and meet
family responsibilities ;
5)
shall work regularly at
a
lawful
other
occupation unlessPage 61Page 62 Defendant :
Cause No .:
Willie Edwards ,
2:92 cr 113-09
Jr.
- Page
Judgment
5
of 6
excused by the probation officer for schooling ,
training , or other acceptable reasons ;
6)
shall
7)
any change in residence or employment ;
shall refrain from excessive use of alcohol
notify the probation officer within 72 hours of
possess ,
use ,
distribute ,
or administer
any narcotic or other controlled substance ,
shall
not
criminal
10 )
or any
paraphernalia related to such substances , except as
prescribed by a physician ;
shall not frequent places where controlled substances
are illegally sold ,
administered ;
9)
shall
1
not purchase ,
8)
and
used ,
distributed ,
associate with any persons
activity ,
and
shall
not
or
engaged
in
associate with any
person convicted of a felony unless granted permission
to do so by the probation officer ;
shall permit a probation officer to visit him or her at
any time at home or elsewhere and shall permit
confiscation of any contraband observed in plain view
by the probation officer ;
11)
shall
notify the probation officer within 72
hours
of
being arrested or questioned by a law enforcement
officer ;
12 )
shall
not
enter into
informer or a
13)
special
any agreement to act as an
agent
of a law enforcement
without the permission of the court ;
as directed by the probation officer ,
shall
agency
notify
third parties of risks that may be occasioned by the
defendant's criminal record or personal history or
characteristics , and shall permit the probation officer
to make such notifications and to confirm the
defendant's compliance with such notification
requirement .Page 63Page 64 Defendant :
Willie
Cause No .:
2:92
Edwards ,
cr
Jr.
Judgment
- Page
6
of 6
113-09
STATEMENT OF REASONS
[x]
The court adopts the factual findings and guideline
application in the presentence report .
OR
1
adopts the factual findings and guideline
application in the presentence report except ( see
attachment , if necessary ) :
The
[ ]
court
GUIDELINE RANGE DETERMINED BY THE COURT :
Total
Offense Level :
38
Criminal History Category : IV
Imprisonment Range : 324
to 405
Supervised Release Range :
Fine Range : $ 25,000
to
[x]
]
[ ]
months
years
Fine is waived or is below the guideline range ,
because of the defendant's inability to pay .
Restitution :
[
to 10
$ 25,000
$
Full restitution is
reason ( s ) :
not
ordered
for the
following
The sentence is within the guideline range , that range does
not exceed 24 months , and the court finds no reason to
depart from the sentence
guidelines .
called
for by application
of the
OR
[x ]
The sentence
is within the guideline range , that range
exceeds 24 months , and the sentence is imposed for the
following reason ( s ) : Age , health , large amount of drugs
involved ; long involvement in drug sales ; not organizer or
leader .
OR
[ ]
The sentence
[ ]
[
]
departs from the guideline
upon motion of the government , as a
defendant's substantial assistance .
for the
following reason ( s ) :
range
result
ofPage 65 Digitized by GooglePage 66 1
APPENDIX , A-2Page 67 Digitized by GooglePage 68 1
1
UNITED
STATES
DISTRICT COURT
NORTHERN DISTRICT OF
2
INDIANA
HAMMOND DIVISION
3
UNTITED
STATES
OF AMERICA ,
)
4
DOCKET NO :
2 : 92 - CR - 113- ( 09 ) RL
) APPEAL NO :
Plaintiff ,
96-2467
)
5
VS.
6
)
WILLIE EDWARDS ,
)
)
7
Defendant .
MAY
TUESDAY ,
1996
28 ,
)
9:00 A.M.
)
SENTENCING HEARING
8
9
TRANSCRIPT OF PROCEEDINGS
10
HONORABLE
11
APPEARANCES :
12
On behalf
of the
RUDY LOZANO ,
Plaintiff :
JUDGE
JON E.
PRESIDING
DE GUILIO
UNITED STATES ATTORNEY
13
BY :
DANIEL A.
Assistant U.
14
S.
Attorney
1001 Main Street ,
15
16
BELLA
On behalf of the
Defendant :
Dyer ,
Indiana
( 219 )
322-8576
Suite A
46311
KING & MEYER
BY :
17
18
SCOTT L.
KING ,
ESQ .
363 South Lake
Street
Gary ,
Indiana
46403
( 219 )
938-0800
19
20
21
22
APPENDIX ,
A- 2
23
24
JULIE A.
25
507
STATE
CHURCHILL ,
STREET ,
CSR ,
UNITED STATES COURTHOUSE
ROOM 217 ,
( 219 )
HAMMOND ,
937-5310
INDIANA 46320Page 69Page 70 2
1
TUESDAY ,
MAY
28 ,
2
THE COURT :
3
America versus Willie Edwards ,
4
HCR - 92-113 ( 09 ) .
This
is
1996 ;
the
9:00
case
A.M.
of the
Junior ,
Hammond
United States
Criminal
of
Number
1
5
6
The defendant
attorney Mr.
7
8
is
is
States Attorney Mr.
9
The Court's
10
probation officer Mr.
11
Counsel ,
represented by its Assistant
Dan Bella .
Probation Office
this
is
a
continuation
that was
13
either further argument
14
transcripts were being ordered .
commenced on several
Mr.
16
this
17
paramount
case
King ,
except
19
THE COURT :
KING :
occasions
of the
in the
sentencing
past
further
that you withdrew all
quantity of drugs
length of the
in which
involved ,
issues
in
which
is
conspiracy .
Yes .
Aside
from that ,
all
other objections
have been withdrawn and waived .
21
MR .
22
THE COURT :
23
believe
also with the
MR .
represented by its
or further research or
for the
18
20
I
is
Mark Kroft .
12
15
in person and with his
Scott King .
The government
United
present
the government
KING :
does
24
MR .
25
THE COURT :
BELLA :
Yes ,
Mr.
not
your Honor .
Bella ,
have
That's
any
it
is
recollection that
objections .
correct ,
Counsel ,
my
the
Judge .
last
time we were herePage 71Page 72 3
1
there was
an
2
referred
3
one of the
to
4
issue
the
that
I was
testimony
received
the matter at the
5
stipulation of both counsel
6
received .
7
Did counsel also receive
MR .
KING :
9
MR .
BELLA :
10
present ?
copy
Yes ,
MR .
that
a
15
transcript ,
16
that
17
Mr.
18
was responsible .
19
used from earlier evidence
Willie
again ,
20
So
21
Therefore ,
22
admitted
23
1990 ,
24
amount
25
basis
I
to ,
of drugs
transcript
could be
last Friday .
transcript ?
any
further argument
this
issue
or
that you wish to
page
not
simply it
18
met
amount
burden attributing
of drugs
which
for a sentence .
should
they clearly
their burden .
certainty ,
from August
has
to
sentencing proceeding .
submit they haven't met
Willie Edwards
11 ,
for which Lee Edwards
the calculations
know for a
Edwards '
contrasted with page
its
in this
periods
is the defense
review now of Miss
And that's
is the
which Mr.
has
the
what we
and
transcript
have
just
with
particularly ,
Edwards
to
Nothing
contention
government
request
--
KING :
that ,
of the
Do counsel
14
the
during
your Honor .
further with regards
13
Edwards
your Honor .
Yes ,
THE COURT :
12
so
I received a copy of that
8
anything
from Lori
it
sentencing hearings .
We continued
11
still concerned with and
because
it
has been
through October of
admitted
to ,
and
form the appropriate
it
is
that
guidelinePage 73 Digitized by GooglePage 74 4
1
I
2
THE COURT :
3
MR .
think it's
KING :
a
sufficiency of the
Mr.
evidence
issue .
Bella ?
As Mr.
King
indicated ,
you
realize
on
--
4
page
5
testimony
6
couldn't
be
7
dealing ,
but
8
that
9
Indiana
18
of the
transcript
leading up to
exact
it was
as
that ,
the
less
exact
or sure
11
admitted
that Willie
and the
that
she
started
of herself in testifying
release
from the
of Corrections .
press
11
mouth ,
12
not tell
us
13
was
than a year after his
14
Corrections .
it's
date
than a year after his
I tried not to
and
rely on page
wherein Lori
she was precise
Department
10
to
and I
clear that
she
precisely when he
her on that
or put words
in her
admits
although
could
that
started dealing ,
she
she was
sure
it
)
less
15
That ,
government
17
the government's
18
that
20
Edwards
21
the
the
same
22
23
its
Sentencing Memorandum ,
that the
think supports
conclusion .
And
it's your contention ,
quantity of drugs
during
I
of
his
trial
time
frame ?
MR .
BELLA :
that were
are
Yes ,
also
attributed
applicable
your Honor ,
the
Mr.
to Mr.
here
time
Bella ,
Lee
because
frame
it's
is the
same .
24
25
in
THE COURT :
19
from the Department
connected with the other things
16
put
release
We are not
or a
leader of the
claiming
that Willie
organization ,
Edwards
as Lee was ,
but
is a manager
he wasPage 75Page 76 5
1
involved
2
conspiracy .
in the
same
3
THE COURT :
4
MR .
5
THE COURT :
6
trial ,
7
exhibits ,
8
hearings
9
briefs .
the
time
and
No ,
Anything
has
reviewed
testimony presented by the
The Court
of counsel ,
has
also
the witnesses .
12
involved
13
from prison ,
The Court
14
agreed to by the parties
15
Therefore ,
16
trafficking organization
17
until
18
that was
conspiracy
which was
1990 ,
Mr.
King ?
the
less
sentencing
both orally and
the
in their
credibility of
than one year after his
be
all
that the defendant was
indicated
to
testimony of
government by way of
considered
finds
the defendant was
September
of the
else ,
testimony given at the various
and arguments
in a
aspects
your Honor .
The Court
11
in the
Presentence
February
involved
from at
in the
least
when there was
24th ,
a
Report
and
1987 .
Lee Edwards
2-24-88 ,
also
release
and at
phone
least
conversation
taped .
19
The Court
finds
that
the defendant was
20
but was very heavily
21
Edwards
22
picked
23
knew when key deliveries were made .
involved at every phase
drug trafficking
up drugs
24
25
in all
I understand .
KING :
and the
10
frame
Mr.
testified
that
organization ;
from sources
Vincent
the
Balbo ,
defendant
of
that
a
leader
of the Lee
the defendant
supply to Mr.
Special Agent
not
Lee Edwards
of the
D.E.A. ,
picked up brown heroin
from
andPage 77 Digitized by GooglePage 78 6
1
Raymond Davis
2
white heroin was
3
information by way of his
་
)
involved
4
and
for Lee Edwards ,
5
took numerous
also made
numerous
7
indicated
on Government
Exhibits
8
113 ,
115 ,
and
9
deliveries
117
The defendant
10
apartment
at
Sixth and
11
Store
at
the
12
out of both residences
13
In
and
Balbo
Mr.
interviewing various
6
116 ,
defendant
knew when
got this
other people
trafficking .
The defendant
114 ,
the
for delivery .
available
in this drug
and
of drugs ,
105 ,
for drugs
which were
106 ,
108 ,
and
partially
109 ,
110 ,
111 ,
118 .
sold
Grant ,
parking
orders
lot
drugs
for Lee
Edwards
at the
at the Black Horseman Liquor
in
front
of the
liquor store ,
and
of Lee Edwards .
)
fact ,
14
change
from one
15
given or
16
shown by ledgers
17
were
19
and 42
20
1990 .
100
fronted
21
$ 10
bags
defendant
residence
large
bags
quantities
seen by the
23
large ,
independent
24
strike
that .
evidence
heroin ,
also
on the
$ 10
contractors who
knew of the
as
bags
ledger ,
there
of brown heroin
entry of March 7th ,
a runner
during trial .
The defendant
30
on consignment ,
trial .
indication
That was the
The defendant was
22
The defendant was
of drugs
during the
in one
of white
of cocaine .
knew when distribution would
to the other .
introduced
For example ,
18
25
the
The
for Lee Edwards ,
defendant
sold drugs
large ,
as
knew when
for Lee Edwards
independentPage 79 Digitized by GooglePage 80 7
1
contractors who
2
they were
3
be reached .
4
the
5
co - conspirator with respect
6
The defendant was
sold drugs
for Lee Edwards ,
supplied with and the
Therefore ,
evidence
the Court
to the
7
organization during
his
8
the amount
distributed
9
foreseeable by the defendant
10
for the total
11
12
22
calculations
13
33
to the Lee Edwards
14
that
15
Appeals .
16
earlier ,
as to the
That
at
amount
quantity was
trial
and
19
Report .
20
Raymond Davis
21
supply of heroin to Lee Edwards .
for the guideline
D.E.A.
25
Edwards
and
he
is
and
accountable
calculations
Balbo
that
cooperate with the
that he was a source
1988 ;
that
on a
by the
of the
go through
Court
of
for Mr.
Lee
amount of heroin
and the Presentence
Vincent Balbo
testified
I made
that were attributable
I'll try to
given in support
Special Agent
agreed to
since
therefore ,
and Abieldon-Agabelli
Agent
indicated
involvement ,
evidentiary hearing
used
evidence was
24
of the
organization was
affirmed
18
had
in every part
of drugs
Edwards ,
and
of activities .
a prior sentencing ,
17
23
scope
by the
organization ,
During the
22
of
amount of drugs .
Counsel ,
again .
by a preponderance
two - and - a - half year
and ,
they could
a knowledgeable
involved
7
numbers where
finds
defendant was
that the
of drugs
phone
knew what drugs
( ph )
testified
were
Raymond
sources
Davis
government ;
that
of
pled
that
guilty
Davis
of supply of heroin to Lee
regular basis ,
Edwards '
workersPage 81 Digitized by GooglePage 82 8
1
Lee Edwards '
2
at
least
workers would
twice
3
Edwards
5
Davis
6
which was
over the
supplied
sold
for
$ 6,700
Therefore ,
8
black tar heroin was
9
white
heroin ,
grams ,
at
making a
11
Chicago
6
kilograms
Davis
of
residence
result
14
testesd by the D.E.A.
15
pure .
16
percent
heroin ,
for in cash .
a calculation was made
that
6
equal
of
Special Agent
13
of white
paid
total
the purity of have
tar heroin .
per ounce and was
point
12
supplied Lee
black
Lee Edwards with 3 ounces
7
10
two - year period ,
with approximately
also
to Davis '
a week to purchase black tar heroin .
That
4
travel
the
to
35
6,000
grams ,
grams per
6,085
Balbo
that
ounce ,
kilos
of
ounces
of
was
equal
to
85
grams .
also
testified
heroin being supplied
to the
regarding
to Davis
as
a
)
of purchases
Therefore ,
comes
17
made
of heroin
laboratory and
multiplying
out to
2,130
Special Agent
the
19
cooperate with the Government .
conspiracy ,
Agabelli
indicated
21
white
heroin to Lee Edwards ;
22
1990 ,
Agabelli
23
Agabelli
24
a
25
the country
sold
obtained
carrier ,
and Mr.
Agabelli
a
that between
of white
another resupply of
it was
35
percent
of heroin by 35
and
that
Agabelli
also
source
1989
and
agreed
also
to
of supply of
January of
heroin to Lee Edwards .
180
grams
understood had brought
from Nigeria ,
be
that Mr.
that he was
ten ounces
who Agabelli
to
6,085 grams
Balbo testified
pled
20
found
and
grams .
18
guilty to a
from Davis ,
of heroin
from
to heroin into
he delivered thisPage 83 Digitized by GooglePage 84 9
1
additional
2
1990 .
2
amount
of heroin to Mr.
3
Therefore ,
4
heroin
5
The
6
that amount comes
180
7
times
per ounce
of heroin delivered
to a
purity of the
9
further testified
Balbo
also
individual ,
11
white
12
50 percent pure .
Multiplying the
13
percent
to 232
14
comes
out
Special Agent
that
to
testified
Agabelli ,
it was
made
463.5 grams
Balbo
also
testified
17
individuals
18
made
19
Lee Edwards .
government witness ,
Special Agent Balbo testified
drugs would be
cut
23
the
24
25
that
purchase
of heroin
at
50
quantity of heroin available
of narcotics
that
( ph ) ,
from
after Lee Edwards
from Edwards '
suppliers ,
to
the
increase
for sale .
purchases mentioned
and they ranged from 3 to
street
cooperating
or mixed with other substances
The various
of the
found to be
Walter Pedigrue
of six controlled purchases
22
cooperating
regarding the
established
supplies
he
grams .
trial
would purchase
added to
that
by the
level .
21
1990
tested and
16
20
a
a
sold by Lee Edwards
a series
283.5 grams .
and
1990 ,
purity of the heroin being
and the
of white
regarding the
15
Testimony at
of
grams .
in cooperation with D.E.A. ,
heroin from Agabelli ,
ten ounces
out
on November 20th ,
10
in February
in February of
heroin supplied by Mr.
that
of
comes
of 463.5
total
Special Agent
8
Edwards
the multiplication
28.35 grams
grams
Lee
percent .
herein were
tested ,
Being conservative
andPage 85 Digitized by GooglePage 86 10
1
figuring
the
2
numbers ,
both
3
to
4
percent
2,362
percent
from Raymond
grams .
and multiplying that
Davis
and Mr.
out
comes
The Court
has
considered the
7
other individuals who
∞
considered the
9
testimony to be credible and believable .
10
the
testimony that was
supplied
other evidence
The Court thus
11
Guidelines
12
Category 4 ,
13
years '
14
imprisonment
15
assessment .
are :
Total
calling
supervised
16
Insofar as
17
agrees
18
probation .
that the
19
objections
21
this
offense
for 324
to
$ 25,000
fine ,
and
objection is
that have
Counsel ,
38 ,
405 months
supervision ,
the
that
level
a
out
5
kilos .
given regarding the
information ,
case
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22
MR .
KING :
23
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24
THE COURT :
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do you
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behalf beforePage 87 Digitized by GooglePage 88 1Page 89 UNIVERSITY OF ILLINOIS- URBANA
0000000003198
PDF Page 1
PlainSite Cover Page
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This is a reproduction of a library book that was digitized
by Google as part of an ongoing effort to preserve the
information in books and make it universally accessible.
https://books.google.com
PDF Page 3
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CAUSE NO. 96-2467
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
) Appeal from the
) United States District Court
) Northern District of Indiana
)
VS.
Hammond Division
)
) Cause No. 92 CR 113
)
WILLIE EDWARDS ,
Defendant- Appellant.
) The Honorable Rudy Lozano ,
Judge
)
BRIEF AND APPENDIX OF DEFENDANT-APPELLANT WILLIE EDWARDS
U.S.C.A. - 7th Circuit
FILED
TM
SEP 17 1996
THOMAS F. STRUBBE
CLERK
DOC. #
RochelleA.
Meyers
Rochelle S. Meyers (# 18791-71)
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend , Indiana 46601
PH: (219) 234-7606
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UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CAUSE NO . 96-2467
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
) Appeal from the
)
United States District Court
) Northern District of Indiana
)
VS.
Hammond Division
)
)
Cause No. 92 CR 113
)
WILLIE EDWARDS ,
Defendant-Appellant .
) The Honorable Rudy Lozano ,
Judge
BRIEF AND APPENDIX OF DEFENDANT-APPELLANT WILLIE EDWARDS
Meyers
Recelle
A.
Rochelle S. Meyers (# 18791-7 )
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend, Indiana 46601
PH: (219 ) 234-7606
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CERTIFICATE OF INTEREST
The undersigned counsel of record for the Defendant- Appellant Willie Edwards furnishes the
following list in compliance with Circuit Rule 26.1 .
Willie Edwards
2.
(i) None
1
1.
(ii) None
3.
Rochelle S. Meyers, Esq.
Fred R. Hains , Esq.
413 West Jefferson Blvd.
South Bend, Indiana 46601
PH: (219) 234-7606
DATED this
day of September, 1996 .
& Meyers
Rochelle
Rochelle S. Meyers (# 18791-71 )
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend , Indiana 46601
PH: (219 ) 234-7606
FAX : (219) 282-1360
i
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TABLE OF CONTENTS
Certificate of Interest
i
Table of Cases and Other Authorities
iv
Jurisdictional Statement •
.1
Statement of the Case ...
2
Statement of the Facts
....
3
...
6
Statement of Issue
Summary of the Argument . . .
7
Argument :
9
I.
The District Court erred in its application of Sections 1B1.3 and 3D1.2 (d) of the
United States Sentencing Guidelines when it found the Defendant accountable
for the amount of drugs attributed to the entire conspiracy because this amount
was foreseeable by the defendant without first making a finding as to the scope
of the criminal activity jointly undertaken by the defendant.
A.
9
Under Application Note 2 of U.S.S.G. 1B1.3 , the Court must keep in
mind that the scope of the criminal activity jointly undertaken by the
defendant ... is not necessarily the same as the scope of the conspiracy,
and hence relevant conduct is not necessarily the same for every
9
participant. . . .
II .
The District Court was clearly erroneous when it found that the evidence
showed that the Defendant Willie Edwards was involved in every part ofthe
organization and that his participation began before February 1989. .
A.
12
The evidence in the record does not support the District Court's finding
that the Defendant was involved in every part of the organization over a
two and a half year period and therefore the defendant should not be held
accountable for the actions of the conspiracy for this entire time period. . .
ii.
12
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B.
The evidence at the sentencing does not support the District Court's
finding that the Defendant participated in the conspiracy as early as
February 1989 and therefore the Defendant should not have had his
sentence increased pursuant to U.S.S.G Section 4A1.1 (d ) and (e) ...
13
Conclusion
15
Rule 30 (c) Statement 21
16
Appendix
17
iii .
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AUTHORITIES CITED
CASES :
PAGE :
United States v . Akinrinade , 61 F.3d 1279
9 .
(7th Cir. 1995)
1
United States v . Edwards, 945 F.2d 1387
.
(7th Cir. 1993)
10
United States v . Edwards , 77 F.3d 968
(7th Cir. 1996)
·
10
United States v. Fones, 51 F.3d 663
(7th Cir. 1995)
•
.
8
United States v. Gregory, 74 F.3d 819
11
(7th Cir. 1996)
United States v. Gutizierrez-Hernandez, 1996 WL 488070
...
(9th Cir. 1996)
10
United States v. Hernandez- Santiago, 1996 WL 447715
..
(2nd Cir. 1996)
10
United States v . Montgomery, 14 F.3d 1189
… ..
(7th Cir. 1994)
9
United States v . Townsend , 924 F.2d 1385
(7th Cir. 1991 )
10
...
United States v. Windom , 82 F.3d 742
(7th Cir. 1996)
.. 9
·
iv.
JURISDICTIONAL STATEMENT
This is a criminal appeal from a sentence rendered by the United States District Court for the
Northern District of Indiana, Hammond Division , under Cause No. 92 CR 113 , the Honorable Rudy
Lozano presiding . The Appellant, Willie Edwards was sentenced on May 28 , 1996 for the violation of
21 U.S.C. § 846 and 21 U.S.C. Section 843 (b) (2) . The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. This Court has jurisdiction for this appeal pursuant to 18 U.S.C. § 3742 (a) .
Notice for Appeal was timely filed on June 5 , 1996 .
1
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STATEMENT OF THE CASE
On August 20 , 1992 , the grand jury for the U.S. District Court, Northern District of Indiana
named the Defendant Willie Edwards, Jr. ( " Edwards " ) along with fourteen ( 14 ) other co -defendants in a
thirty-nine (39) count indictment.
Edwards proceeded to trial which was conducted February 22 , 1994
through February 25 , 1994 and was subsequently found guilty of one ( 1 ) count of Conspiracy to
Distribute Heroin in violation of Title 21 U.S.C. § 846 and one ( 1 ) count of Use of a Communication
Facility in a Drug Trafficking Crime in violation of Title 21 U.S.C. § 843 (b) (2 ) . The Court, having
previously found at the sentencing of co-defendant Lee Edwards that the conspiracy to which Defendant
Edwards was convicted involved forty- seven (47) kilos of heroin , made a finding that this entire amount
was attributable to Edwards , thereby placing him at a offense level of 38 pursuant to U.S.S.G. §
3D1.2 (d) . The Court also found that Willie Edwards had been involved in the conspiracy for the last
two-and-a-half years of the conspiracy , thereby finding that this involvement was within two (2) years of
release from state custody and that he was involved in the conspiracy while still on probation for the
state crime .
By these findings , the District Court committed Mr. Edwards to the custody of the United
States Bureau of Prisons for a term of Three Hundred Twenty- four (324) months .
Mr. Edwards appeals the District Court's sentencing decision based on the fact that the
District Court improperly attributed forty-seven (47) Kilos to Edwards without finding that the scope of
his agreement encompassed the conduct of the conspiracy which included all of the forty- seven (47)
Kilos , and further, that the District Court committed clear error in finding that Edwards had been
involved with the conspiracy while on probation and within two (2) years of his release from prison .
2
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STATEMENT OF THE FACTS
On August 14, 1990 , the Federal Bureau of Investigation was issued a wire interception
order, directing the interception of wire communications over telephone line 219-949-3704 located at
1522 Taft Street and telephone line 219-883-3811 located at 460 Taft Place , both addresses being in
Gary, Indiana. (Trial Transcript; p.410) . The wire interception order was renewed on September 13 ,
1990. 1522 Taft Street and 460 Taft Street were both residences of Lee Edwards and his wife Lorri
Edwards. (Trial Transcript; p.410) The basis for the original wire tap order was confidential
information which indicated that there may have been drug trafficking taking place at these addresses.
Pursuant to the information obtained by these wire interceptions , a search warrant was issued and
executed by the Federal Bureau of Investigation on October 11 , 1990. The information gathered by the
wire taps and the executed warrant resulted in the thirty-nine (39) count indictment filed in this case on
August 20 , 1992 which named fifteen ( 15) co -defendants . Defendant Willie Edwards , Jr. was named in
three (3 ) of the thirty- nine ( 39 ) counts .
Co -defendant Lee Edwards was convicted on seventeen ( 17) counts from the August 20 , 1992
indictment, including convictions for multiple conspiracies to distribute heroin and cocaine , continuing
criminal enterprise , multiple counts of distribution of heroin and cocaine, use of a weapon during a drug
trafficking crime, and use of a communication facility in drug trafficking crime and aiding and abetting .
Lee Edwards received a sentence of life imprisonment plus thirty-nine (39) months .
Lorri Edwards , the
wife of Lee Edwards, was convicted of three (3 ) counts , including one ( 1 ) count of conspiracy to
distribute heroin, and two (2) counts of possession with intent to distribute heroin and received a
sentence of five (5) years probation.
By all accounts , the kingpin in the heroin and cocaine conspiracy
was Lee Edwards . (Trial transcript; p . 467) .
3
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At trial , a number of co - defendants, including Lorri Edwards, testified regarding Willie Edwards'
involvement in the drug conspiracy. Between August and October of 1990 , Lee Edwards and Lorri
Edwards were living at both 460 Taft Street and 1522 Taft Street in Gary, Indiana. Drugs were sold out
of both of these residences and the couple would move back and forth between the two residences to
avert detection of their drug trafficking . (Trial Transcript , p . 411 ) . Lee Edwards owned both of these
residences, along with an apartment building, and the Black Horseman liquor store . Drugs were sold out
of all of these locations . (Trial Transcript; p . 411 ) . Because Willie Edwards , Jr. was the nephew of Lee
Edwards , he would spend time at the residences of his Uncle Lee . Lee Edwards had developed an
arrangement whereby he would hire workers to sell for him at these locations . Of all of the workers who
worked for Lee Edwards , co-defendant Flakes Kellum sold the most drugs for Lee. (Trial Transcript; pg
416) . Lee Edwards would make arrangements to buy pure heroin, then mix and cut the heroin himself.
Willie Edwards was never involved in the mixing and cutting of the heroin . (Trial Transcript; pgs . 458-
459 ) . Lee Edwards , Lorri Edwards, and other workers including Flakes Kellum, would make up the
packages of heroin and cocaine for the purposes of distributing to others . Willie Edwards was not
involved in the packaging of the drugs for sale. (Trial Transcript; pgs . 459-460) .
Defendant Willie Edwards began snorting heroin at the age of 15. By the age of 18 , he was
injecting the heroin into his veins . By the age of 28 , he began to also use cocaine . (Trial Transcript; p .
488) . On February 7 , 1984 , also at the age of 28 , Willie Edwards , Jr. began serving a state sentence for
dealing narcotics . He was released from prison on February 24 , 1987 and placed on probation for two
years . He successfully completed his probation and was discharged from probation on January 24, 1989 .
(Pre-sentence Report, p . 6) . Between December 1 , 1987 and November 17 , 1989 , Defendant Willie
4
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Edwards , Jr. was employed as a laborer at National Briquette Corporation in East Chicago , Illinois . (Pre-
Sentence Report, p . 9) .
During the time period which the conspiracy covered , Willie Edwards was known to be a drug
addict who used both heroin and cocaine . (Trial Transcript; pg . 456) .
go for his supply of heroin was his Uncle Lee .
The place for Willie Edwards to
The relationship between Willie Edwards and Lee
Edwards was one of addict and supplier . Any drugs which Willie sold for Lee was for the purpose of
getting heroin for his own consumption . Because Lee Edwards did not always receive all of the money
which was owed to him from sales made by Willie Edwards, Lee Edwards distrusted Willie Edwards
and stopped giving him drugs to sell . (Trial Transcript; pg . 469) . There was also a belief by Lorri
Edwards that because Willie was such a heroin addict, he would take drugs out of packages for his own
personal use and short customers of the drug.
(Trial Transcript pgs . 469-470) .
Between February 22 and February 25 , 1994 , a jury trial was conducted before the Honorable
Rudy Lozano in the United States District Court, Hammond Division . Willie Edwards was found guilty
at trial of conspiracy to distribute cocaine and using a communication facility to facilitate drug felonies .
Sentencing was held on May 28 , 1996. At the sentencing of Willie Edwards, Jr. , the District
Court relied on its earlier finding in the sentencing of co -defendant Lee Edwards that the quantity of
drugs attributable to the conspiracy was forty-seven (47) Kilos.
The District Court's sentencing of Lee Edwards , including its findings regarding the amount of
drugs involved in the conspiracy, was affirmed by the Seventh Circuit Court of Appeals in United States
v. Edwards , 77 F.3d 968 ( 7th Cir. 1996) .
5
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STATEMENT OF THE ISSUE FOR REVIEW
I.
Whether the District Court erred in its application of Sections 1B1.3 and 3D1.2 (d) of the United
States Sentencing Guidelines when it found the Defendant accountable for the amount of drugs
attributed to the entire conspiracy because this amount was foreseeable by the defendant without
first making a finding as to the scope of the criminal activity jointly undertaken by the defendant .
II .
Whether the District Court was clearly erroneous when it found that the evidence showed that the
Defendant Willie Edwards was involved in every part of the organization and that his
participation began before February 1989 .
6
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SUMMARY OF THE ARGUMENT
The District Court erred by finding that the Defendant Willie Edwards, Jr. should be held
accountable for the entire quantity of drugs which were attributable to the entire conspiracy . Though the
District Court found that the Defendant was involved in every aspect of the organization during his two-
and-a-half year involvement, and that the amount of drugs attributable to the conspiracy was foreseeable
to the Defendant, the Court failed to make any findings as to whether or not the entire conspiracy was a
"jointly undertaken criminal activity" for the Defendant . The Court did not at any point in the
sentencing of the Defendant make findings as to the scope of the Defendant's agreement to participate in
the conspiracy , as required by U.S.S.G. Section 1B1.3 (a)( 1 ) (B) .
The District Court also was clearly erroneous in finding that the Defendant participated fully in
every aspect of the conspiracy . The evidence shows clearly the opposite . Because the Defendant was a
heroin addict with little control over his addiction , and because the kingpin of the organization was his
uncle , Lee Edwards, who knew that because of his addiction , the Defendant could not even be trusted to
sell the drugs as one of Lee Edwards' workers , the Defendant's scope of agreement as to his involvement
in the conspiracy could not have encompassed the entire conspiracy . Co-defendant Lee Edwards
controlled the entire conspiracy. By no means would he have even allowed Willie Edwards the power to
agree to participate in every aspect of the conspiracy . The relationship between Lee Edwards and Willie
Edwards was one of supplier and addict and rather than Willie agreeing every aspect of the conspiracy,
Willie merely did whatever Lee required of him in order to get his heroin .
The District Court also erred when it determined the time period in which Willie Edwards
participated in this drug conspiracy. There is nothing in the record except unreliable hearsay which
places the Defendant's participation in the conspiracy as early as January 1989. This is particularly
7
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important because of the fact that the Defendant was released from state prison in February 1987 and
was on probation until January 1989. By the Court finding that the Defendant was involved as early as
January 1989 , the Defendant has been given an additional 3 criminal history points pursuant to U.S.S.G.
Section 4A1.1 (d) and (e) .
8
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ARGUMENT
I.
The District Court erred in its application of Sections 1B1.3 and 3D1.2 (d ) of the United States
Sentencing Guidelines when it found the Defendant accountable for the amount of drugs
attributed to the entire conspiracy because this amount was foreseeable by the defendant without
first making a finding as to the scope of the criminal activity jointly undertaken by the defendant.
A district court's calculation of the quantity of drugs involved in the offense and in relevant
conduct is finding of fact and is subject to the clearly erroneous standard . United States v. Windom, 82
F.3d 742 (7th Cir. 1996) ; United States v . Montgomery, 14 F.3d 1189 , 1196 ( 7th Cir. 1994) . However,
the interpretation of the Sentencing Guidelines and how they are to be applied is a question of law which
should be reviewed de novo . United States v. Akinrinade , 61 F.3d 1279 , 1288-1289 ( 7th Cir . 1995) ;
United States v. Fones , 51 F.3d 663 , 665 ( 7th Cir. 1995) .
A.
Under Application Note 2 of the U.S.S.G. Section 1B1.3 , the Court must keep in mind
that " the scope of the criminal activity jointly undertaken by the defendant ….. is not
necessarily the same as the scope of the conspiracy , and hence relevant conduct is not
necessarily the same for every participant. "
When a defendant has been convicted of a conspiracy involving drugs , the Court is required to
determine the base offense level on the basis of the application of U.S.S.G. Section 1B1.3 . This
guideline defines what is to be considered relevant conduct which should therefore determine the base
offense level . The conduct for which a defendant is accountable is that which is both " in furtherance of
the jointly undertaken criminal activity" and " reasonably foreseeable in connection with that criminal
activity. " U.S.S.G. Section 1B1.3 , Application Note 2. And, " [b ] ecause a count may be worded broadly
and include the conduct of many participants over a period of time , the scope of the criminal activity
9
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jointly undertaken by the defendant ... is not necessarily the same as the scope of the entire conspiracy ,
and hence relevant conduct is not necessarily the same for every participant. "
The District Court, in sentencing the Defendant Willie Edwards, skipped completely the inquiry
as to the scope of the criminal activity jointly undertaken by the defendant. In other jurisdictions,
"jointly undertaken" has been interpreted to require actual agreement between the individual defendant
and the conspirators as the conduct for which the defendant is to be punished . See United States v .
Gutizierrez-Hernandez , 1996 WL 488070 (9th Cir. 1996) (remanded for the court to make express
factual findings as to the amount of drugs reasonably foreseen by the defendant or which fell within the
scope of defendant's particular agreement with the conspirators) ;United States v . Hernandez- Santiago ,
1996 WL 447715 (2nd Cir. 1996) (district court improperly calculated defendant's base offense level by
holding him responsible for amount foreseeable to him without making particularized finding as to
scope of defendant's agreement) .
The Seventh Circuit has discussed the requirements of relevant conduct in determining the base
offense level pursuant U.S.S.G. 1B1.3 . In United States v. Edwards , 945 F.2d 1387 , 1396-1397 , the
Court extensively citing to United States v. Townsend , 924 F.2d 1385 ( 7th Cir. 1991 ) , states that:
In order to sentence a defendant based on the entire quantity of drugs
distributed in a conspiracy, when the defendant has joined the conspiracy
in its late stages , it must be shown that those earlier transactions were
reasonably foreseeable to him. The Government must show that the
defendant agreed to a conspiracy whose scope included so large a
distribution of heroin.
The Defendant Willie Edwards should be accountable only for the amount of drugs which were
distributed by others " in furtherance of the jointly undertaken criminal activity " which was " reasonably
foreseeable " by Edwards . Therefore , only the amount of drugs distributed by the conspiracy within
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which Edwards had undertaken to conspire with others should be attributable to Edwards. In United
States v. Gregory, the Court further interpreted Edwards to require that " the relevant issue for
determining relevant conduct in a conspiracy ... [ is ] whether the defendant's actions were in furtherance
of the illegal acts of co -conspirators of which the defendant had actual awareness or reasonable
foresight. " 74 F.3d 819 (7th Cir . 1996) .
The Court did not make any findings as to the scope of the defendant's relevant conduct which
was in furtherance of the illegal acts of the co-conspirators, whose conduct the Court has attributed to
the Defendant for the purposes of establishing his base offense level . No where is there evidence that
Willie Edwards acted in furtherance of jointly undertaken criminal conduct which encompassed the full
47 Kilos of heroin .
His role was limited to getting heroin to feed his own habit and the acts which he
did in furtherance of the conspiracy were only those acts which were incidental to getting Lee Edwards
and other members of the conspiracy to pass on to him some of the drugs.
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II .
The District Court was clearly erroneous when it found that the evidence showed that the
Defendant Willie Edwards was involved in every part of the organization and that his
participation began before February 1989 .
A.
The evidence in the record does not support the District Court's finding that the
Defendant was involved in every part of the organization over a two and a half
year period and therefore the defendant should not be held accountable for the
actions of the conspiracy for this entire time period .
At the sentencing hearing held on May 28 , 1996 , the District Court found that Willie Edwards
was " very heavily involved at every phase of the Lee Edwards drug trafficking organization . " However
this finding completely overlooks the testimony made in court by Lorri Edwards, who was the chief
witness against Willie Edwards. The following testimony helps to explain the inner workings of the
conspiracy and why Willie Edwards could not have been " very heavily involved in every phase " :
Redirect Examination of Lorri Edwards by District Attorney Daniel Bella :
Q:
Who was in charge of the whole show as far as this drug trafficking activity?
A:
Lee was.
Q:
Did Lee control things?
A:
Yes.
Q:
Was it always that way?
A:
Yes .
Trial Transcript; p . 467 .
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The evidence also shows that there were a number of parts of the conspiracy which Willie
Edwards was not involved in . For example, Lorri Edwards testified that Willie Edwards was not
involved in mixing and cutting the heroin, which was clearly a very important part of this continuing
conspiracy. (Trial Transcript, p.458-459 ) . Also , she testified that he was rarely involved in packaging
the drugs and that this was done by Lee Edwards, herself, and Flakes Kellum . (Trial Transcript; p . 459-
460) .
Willie Edwards is the nephew of Lee Edwards . Because of the family relationship , Willie
Edwards had a relationship with both Lee Edwards and Lorri which was separate from Lee's ongoing
criminal enterprise . It is only nature for Willie Edwards , admittedly a heroin addict, to spend time at the
home of his uncle who was a major heroin dealer. Because the drugs were there, Willie was there.
However, Willie's inability to stay away from the heroin and his familial relationship with Lee Edwards
should not form the basis for the Court's conclusion that Willie Edwards was involved in every phase of
the conspiracy. Because of the relationship between Willie Edwards and Lee Edwards , Willie was
allowed to spend much time at Lee's residence . Because of Willie's serious heroin addiction, Willie
needed to be surrounded by the drug . Willie was not any more involved in the conspiracy than any of
the other workers who Lee controlled . He never agreed to be a part of the greater conspiracy. He was
merely an addict who Lee did not even trust to sell the drugs for him who hung around because he
needed the drugs so badly to support his habit.
B.
The evidence at the sentencing does not support the District Court's finding that
the Defendant participated in the conspiracy as early as February 1989 and
therefore the Defendant should not have had his sentence increased pursuant to
U.S.S.G Section 4A1.1 (d) and (e)
13
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The only evidence which the Government presented which supported the position that Willie
Edwards participated in the Lee Edwards conspiracy any time prior to 1990 was in the form of testimony
by Lorri Edwards at the sentencing of the Willie Edwards . (Sentencing Transcript; p . 4) . When that
evidence is held up against strong evidence to the contrary , the Government's burden of proving the
truth of this allegation by a preponderance of the evidence is not met.
Unrefuted evidence which shows that Lorri Edwards ' testimony is erroneous includes the fact
that Willie Edwards was employed as a laboror at National Briquette Corporation in East Chicago ,
Illinois from December 1 , 1987 to November 17, 1989. (Pre- sentencing Report; p . 9) . Also , on January
24 , 1989, the defendant was discharged from probation after successfully completing what was required
of him . If the defendant had been active in the Lee Edwards drug trafficking conspiracy during the time
that he was on probation , this fact would likely have been discovered by the probation department.
The more accurate interpretation of Willie's involvement in the conspiracy was an escalation
over time as Willie became more and more hooked on the heroin and that his involvement did not ever
reach the level claimed by the government because Lee Edwards would never have allowed that level of
involvement.
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CONCLUSION
The District Court erred in holding the Defendant liable for the full amount of drugs in the
conspiracy by not finding that the Defendant had agreed to the full extent of the conspiracy. The District
Court also was clearly erroneous in its findings of the facts regarding the extent of the Defendant's
involvement in that the evidence does not support the District Court's findings .
RochelleSteyers
Rochelle S. Meyers (# 18791-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend, Indiana 46601
PH: (219 ) 234-7606
FAX : ( 219) 282-1360
15
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UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CAUSE NO . 96-2467
UNITED STATES OF AMERICA,
Plaintiff-Appellee ,
) Appeal from the
)
United States District Court
) Northern District of Indiana
) Hammond Division
VS.
)
)
WILLIE EDWARDS , JR . ,
Cause No. 92 CR 113
) The Honorable Judge Rudy Lozano
Defendant - Appellant.
STATEMENT OF COUNSEL
PURSUANT TO CIRCUIT RULE 30 (c)
Rochelle S. Meyers, the Court Appointed Counsel for the Appellant, Willie Edwards , Jr. , states and
certifies as follows :
1.
That the following Appendix to the Brief of Appellant includes all of the materials required
by Circuit Rule 30 ( a) and (b) .
2.
There are no other materials of which I am aware within the scope of Circuit Rule 30 which
are required to be included by Circuit Rule 30 (a) and (b) .
I certify under the penalty of perjury that the foregoing statements are true , to the best of my
knowledge and belief.
Rochelle
Meyers
Rochelle S. Meyers (# 187911 )
Fred R. Hains (#7376-71 )
Attorney at Law
413 West Jefferson Boulevard
South Bend, Indiana 46601
PH : (219) 234-7606
FAX : (219 ) 282-1360
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
1.
Judgment of the District Court A- 1 .
2.
Transcript of Proccedings held on May 28 , 1996 at 9:00 o'clock a.m.
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1
APPENDIX , A- 1
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FILED
MAY 3 0 1996
UNITED
STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
AT
STEPHEN R. LUDWIG, CLERK
U.S. DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed on
or After November 1 , 1987 )
UNITED STATES OF AMERICA )
>
WILLIE EDWARDS ,
THE
(
)
(X )
()
Cause No.2 : 92
>
113
( 09 )
Scott King
JR
Defendant
Attorney
WILLIE EDWARDS ,
DEFENDANT
cr
1
V.
for Defendant
JR .
pleaded guilty to Count ( s ) .
was found guilty on Counts 3 & 18 after a plea of not
guilty .
The Plea Agreement between the defendant and the U.S.
is ACCEPTED .
Government filed
Accordingly , the defendant is adjudged guilty
Counts , which involve the following offenses :
of such
Date Offense
Title
&
Section
21 : 846
Nature
Conspiracy to Distribute Heroin , a
Schedule I Contolled
21 : 843 ( b )
18 : 2
of Offense
&
Count
No.
Concluded
August 1990
through
October 1990
3
August 1990
through
October 1990
18
Substance
Use of Communication Facility In
Drug Trafficking
Crime & Aiding
Abetting
Defendant
is sentenced as provided
in pages
2
to
through
The sentence is imposed pursuant
this Judgment .
Sentencing Reform Act of 1984 .
[ ]
The defendant has been found not guilty on Count ( s ) ,
[x ]
[ ]
is discharged as to such Count ( s ) .
Count 23 is dismissed on motion of the United
6 of
the
and
states .
It is ordered that defendant shall pay to the United States
a special assessment of $ 100.00 , for Counts 3 and 18 , which
shall be
due immediately as follows :
payable to Clerk ,
U.S.
District
Court ,
507
State
Street ,
Hammond ,
Indiana
46320 .
APPENDIX ,
A- 1
80
PDF Page 56
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Defendant :
Cause No .:
Willie Edwards ,
2:92 cr 113-09
Jr.
Judgment-
Page
2
of 6
:: ` .
IT IS FURTHER ORDERED that the defendant
United States Attorney
change
of name ,
for this district ,
residence
costs
fully paid .
are
Defendant
Social
or mailing address until
and special
Security No .:
assessments
notify the
days ,
all
of any
fines ,
imposed by this
1
restitution ,
Judgment
shall
within 30
May
28 ,
1996
Date of Imposition
of Sentence
304-66-6805
Defendant's Date
of Birth :
Hon
Rudy Lozano ,
age
11/8/96
Defendant's Mailing Address :
4309 E.
Gary ,
United States District Court
pistrict
11th Avenue
IN 46404
5/30/176
Defendant's Residence :
Date
4309 E.
Gary ,
11th Avenue
IN 46404
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Defendant :
Willie Edwards ,
Cause No .:
2:92
cr
Jr.
Judgment
- Page
3 of 6
113-09
IMPRISONMENT
:'.
The defendant
is hereby committed to the
custody
of the
United States Bureau of Prisons to be imprisoned for a term of
three hundred and twenty - four ( 324 ) months , as to count 3 and for
a term of ninety - six ( 96 ) months on count 18 , to be served
concurrently .
[ ]
The Court makes the
of Prisons :
[X ]
The defendant
Marshal .
is remanded to the
The
shall surrender to the U.S.
on
Marshal
shall surrender for service
of sentence
[ ]
defendant
district
[ ]
The
at
defendant
following recommendations
to
the
Bureau
custody of the U.S.
for this
at the
institution designated by the Bureau of Prisons , before
12:00 Noon on
as notified by the U.S. Marshal
or U.S. Probation Office .
RETURN
I have executed
this Judgment
as
follows :
to
Defendant delivered on
with a certified
at
this Judgment .
United
States Marshal
By :
Deputy Marshal
copy of
PDF Page 60
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Defendant :
Cause No .:
Willie Edwards ,
2:92 cr 113-09
Jr.
Judgment
- Page
4
of 6
SUPERVISED RELEASE
Upon release from imprisonment , the defendant shall be on
This term
supervised release for a term of ten ( 10 ) years .
consists
of ten
on Count
18 ,
( 10 ) years
all
on Count
3 and term of Three
(3)
years
such terms to run concurrently .
1
While on supervised release , the defendant
another federal , state or local crime and shall
possess a
controlled substance ,
the standard conditions
the defendant
shall not commit
not illegally
shall
comply with
that have been adopted by this
court .
If
this Judgment imposes a restitution obligation , it shall be a
condition of supervised release that the defendant pay any such
restitution that remains
of supervised release .
unpaid at the
The defendant
commencement
shall report
of the term
in person to
the probation office in the district to which the defendant
released within 72 hours of release from the custody of the
Bureau of Prisons . The
additional conditions :
defendant
shall
comply with the
following
14 )
The defendant shall
destructive device .
not possess
a
23)
The defendant
participate
in drug aftercare
shall
is
firearm or
treatment under a copayment plan which may include
urine testing at the discretion and direction of the
probation officer .
As part of the copayment plan , the
defendant will be held responsible for payment of $ 10
per month .
The $ 10 per month requirement is intended
for offenders who are not currently working
receiving public assistance ..
STANDARD CONDITIONS
or are
OF SUPERVISION
While the defendant is on probation or supervised release
pursuant to this judgment , the defendant shall not commit another
federal , state or local crime .
In addition the defendant :
1)
shall
2)
permission of the court or probation officer ;
shall report to the probation officer as directed by
the court or probation officer and shall submit a
not
leave
the judicial
district without the
truthful and complete written report within the
five days of each month ;
first
3)
shall answer truthfully all inquiries by the probation
officer and follow the instructions of the probation
officer ;
4)
shall support his or her dependents and meet
family responsibilities ;
5)
shall work regularly at
a
lawful
other
occupation unless
PDF Page 62
PDF Page 63
Defendant :
Cause No .:
Willie Edwards ,
2:92 cr 113-09
Jr.
- Page
Judgment
5
of 6
excused by the probation officer for schooling ,
training , or other acceptable reasons ;
6)
shall
7)
any change in residence or employment ;
shall refrain from excessive use of alcohol
notify the probation officer within 72 hours of
possess ,
use ,
distribute ,
or administer
any narcotic or other controlled substance ,
shall
not
criminal
10 )
or any
paraphernalia related to such substances , except as
prescribed by a physician ;
shall not frequent places where controlled substances
are illegally sold ,
administered ;
9)
shall
1
not purchase ,
8)
and
used ,
distributed ,
associate with any persons
activity ,
and
shall
not
or
engaged
in
associate with any
person convicted of a felony unless granted permission
to do so by the probation officer ;
shall permit a probation officer to visit him or her at
any time at home or elsewhere and shall permit
confiscation of any contraband observed in plain view
by the probation officer ;
11)
shall
notify the probation officer within 72
hours
of
being arrested or questioned by a law enforcement
officer ;
12 )
shall
not
enter into
informer or a
13)
special
any agreement to act as an
agent
of a law enforcement
without the permission of the court ;
as directed by the probation officer ,
shall
agency
notify
third parties of risks that may be occasioned by the
defendant's criminal record or personal history or
characteristics , and shall permit the probation officer
to make such notifications and to confirm the
defendant's compliance with such notification
requirement .
PDF Page 64
PDF Page 65
Defendant :
Willie
Cause No .:
2:92
Edwards ,
cr
Jr.
Judgment
- Page
6
of 6
113-09
STATEMENT OF REASONS
[x]
The court adopts the factual findings and guideline
application in the presentence report .
OR
1
adopts the factual findings and guideline
application in the presentence report except ( see
attachment , if necessary ) :
The
[ ]
court
GUIDELINE RANGE DETERMINED BY THE COURT :
Total
Offense Level :
38
Criminal History Category : IV
Imprisonment Range : 324
to 405
Supervised Release Range :
Fine Range : $ 25,000
to
[x]
]
[ ]
months
years
Fine is waived or is below the guideline range ,
because of the defendant's inability to pay .
Restitution :
[
10 to 10
$ 25,000
$
Full restitution is
reason ( s ) :
not
ordered
for the
following
The sentence is within the guideline range , that range does
not exceed 24 months , and the court finds no reason to
depart from the sentence
guidelines .
called
for by application
of the
OR
[x ]
The sentence
is within the guideline range , that range
exceeds 24 months , and the sentence is imposed for the
following reason ( s ) : Age , health , large amount of drugs
involved ; long involvement in drug sales ; not organizer or
leader .
OR
[ ]
The sentence
[ ]
[
]
departs from the guideline
upon motion of the government , as a
defendant's substantial assistance .
for the
following reason ( s ) :
range
result
of
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1
APPENDIX , A-2
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PDF Page 69
1
1
UNITED
STATES
DISTRICT COURT
NORTHERN DISTRICT OF
2
INDIANA
HAMMOND DIVISION
3
UNTITED
STATES
OF AMERICA ,
)
4
DOCKET NO :
2 : 92 - CR - 113- ( 09 ) RL
) APPEAL NO :
Plaintiff ,
96-2467
)
5
VS.
6
)
WILLIE EDWARDS ,
)
)
7
Defendant .
MAY
TUESDAY ,
1996
28 ,
)
9:00 A.M.
)
SENTENCING HEARING
8
9
TRANSCRIPT OF PROCEEDINGS
10
HONORABLE
11
APPEARANCES :
12
On behalf
of the
RUDY LOZANO ,
Plaintiff :
JUDGE
JON E.
PRESIDING
DE GUILIO
UNITED STATES ATTORNEY
13
BY :
DANIEL A.
Assistant U.
14
S.
Attorney
1001 Main Street ,
15
16
BELLA
On behalf of the
Defendant :
Dyer ,
Indiana
( 219 )
322-8576
Suite A
46311
KING & MEYER
BY :
17
18
SCOTT L.
KING ,
ESQ .
363 South Lake
Street
Gary ,
Indiana
46403
( 219 )
938-0800
19
20
21
22
APPENDIX ,
A- 2
23
24
JULIE A.
25
507
STATE
CHURCHILL ,
STREET ,
CSR ,
UNITED STATES COURTHOUSE
ROOM 217 ,
( 219 )
HAMMOND ,
937-5310
INDIANA 46320
PDF Page 70
PDF Page 71
2
1
TUESDAY ,
MAY
28 ,
2
THE COURT :
3
America versus Willie Edwards ,
4
HCR - 92-113 ( 09 ) .
This
is
1996 ;
the
9:00
case
A.M.
of the
Junior ,
Hammond
United States
Criminal
of
Number
1
5
6
The defendant
attorney Mr.
7
8
is
is
States Attorney Mr.
9
The Court's
10
probation officer Mr.
11
Counsel ,
represented by its Assistant
Dan Bella .
Probation Office
this
is
a
continuation
that was
13
either further argument
14
transcripts were being ordered .
commenced on several
Mr.
16
this
17
paramount
case
King ,
except
19
THE COURT :
KING :
occasions
of the
in the
sentencing
past
further
that you withdrew all
quantity of drugs
length of the
in which
involved ,
issues
in
which
is
conspiracy .
Yes .
Aside
from that ,
all
other objections
have been withdrawn and waived .
21
MR .
22
THE COURT :
23
believe
also with the
MR .
represented by its
or further research or
for the
18
20
I
is
Mark Kroft .
12
15
in person and with his
Scott King .
The government
United
present
the government
KING :
does
24
MR .
25
THE COURT :
BELLA :
Yes ,
Mr.
not
your Honor .
Bella ,
have
That's
any
it
is
recollection that
objections .
correct ,
Counsel ,
my
the
Judge .
last
time we were here
PDF Page 72
PDF Page 73
3
1
there was
an
2
referred
3
one of the
to
4
issue
the
that
I was
testimony
received
the matter at the
5
stipulation of both counsel
6
received .
7
Did counsel also receive
MR .
KING :
9
MR .
BELLA :
10
present ?
copy
Yes ,
MR .
that
a
15
transcript ,
16
that
17
Mr.
18
was responsible .
19
used from earlier evidence
Willie
again ,
20
So
21
Therefore ,
22
admitted
23
1990 ,
24
amount
25
basis
I
to ,
of drugs
transcript
could be
last Friday .
transcript ?
any
further argument
this
issue
or
that you wish to
page
not
simply it
18
met
amount
burden attributing
of drugs
which
for a sentence .
should
they clearly
their burden .
certainty ,
from August
has
to
sentencing proceeding .
submit they haven't met
Willie Edwards
11 ,
for which Lee Edwards
the calculations
know for a
Edwards '
contrasted with page
its
in this
periods
is the defense
review now of Miss
And that's
is the
which Mr.
has
the
what we
and
transcript
have
just
with
particularly ,
Edwards
to
Nothing
contention
government
request
--
KING :
that ,
of the
Do counsel
14
the
during
your Honor .
further with regards
13
Edwards
your Honor .
Yes ,
THE COURT :
12
so
I received a copy of that
8
anything
from Lori
it
sentencing hearings .
We continued
11
still concerned with and
because
it
has been
through October of
admitted
to ,
and
form the appropriate
it
is
that
guideline
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4
1
I
2
THE COURT :
3
MR .
think it's
KING :
a
sufficiency of the
Mr.
evidence
issue .
Bella ?
As Mr.
King
indicated ,
you
realize
on
--
4
page
5
testimony
6
couldn't
be
7
dealing ,
but
8
that
9
Indiana
18
of the
transcript
leading up to
exact
it was
as
that ,
the
less
exact
or sure
11
admitted
that Willie
and the
that
she
started
of herself in testifying
release
from the
of Corrections .
press
11
mouth ,
12
not tell
us
13
was
than a year after his
14
Corrections .
it's
date
than a year after his
I tried not to
and
rely on page
wherein Lori
she was precise
Department
10
to
and I
clear that
she
precisely when he
her on that
or put words
in her
admits
although
could
that
started dealing ,
she
she was
sure
it
)
less
15
That ,
government
17
the government's
18
that
20
Edwards
21
the
the
same
22
23
its
Sentencing Memorandum ,
that the
think supports
conclusion .
And
it's your contention ,
quantity of drugs
during
I
of
his
trial
time
frame ?
MR .
BELLA :
that were
are
Yes ,
also
attributed
applicable
your Honor ,
the
Mr.
to Mr.
here
time
Bella ,
Lee
because
frame
it's
is the
same .
24
25
in
THE COURT :
19
from the Department
connected with the other things
16
put
release
We are not
or a
leader of the
claiming
that Willie
organization ,
Edwards
as Lee was ,
but
is a manager
he was
PDF Page 76
PDF Page 77
5
1
involved
2
conspiracy .
in the
same
3
THE COURT :
4
MR .
5
THE COURT :
6
trial ,
7
exhibits ,
8
hearings
9
briefs .
the
time
and
No ,
Anything
has
reviewed
testimony presented by the
The Court
of counsel ,
has
also
the witnesses .
12
involved
13
from prison ,
The Court
14
agreed to by the parties
15
Therefore ,
16
trafficking organization
17
until
18
that was
conspiracy
which was
1990 ,
Mr.
King ?
the
less
sentencing
both orally and
the
in their
credibility of
than one year after his
be
all
that the defendant was
indicated
to
testimony of
government by way of
considered
finds
the defendant was
September
of the
else ,
testimony given at the various
and arguments
in a
aspects
your Honor .
The Court
11
in the
Presentence
February
involved
from at
in the
least
when there was
24th ,
a
Report
and
1987 .
Lee Edwards
2-24-88 ,
also
release
and at
phone
least
conversation
taped .
19
The Court
finds
that
the defendant was
20
but was very heavily
21
Edwards
22
picked
23
knew when key deliveries were made .
involved at every phase
drug trafficking
up drugs
24
25
in all
I understand .
KING :
and the
10
frame
Mr.
testified
that
organization ;
from sources
Vincent
the
Balbo ,
defendant
of
that
a
leader
of the Lee
the defendant
supply to Mr.
Special Agent
not
Lee Edwards
of the
D.E.A. ,
picked up brown heroin
from
and
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PDF Page 79
6
1
Raymond Davis
2
white heroin was
3
information by way of his
་
)
involved
4
and
for Lee Edwards ,
5
took numerous
also made
numerous
7
indicated
on Government
Exhibits
8
113 ,
115 ,
and
9
deliveries
117
The defendant
10
apartment
at
Sixth and
11
Store
at
the
12
out of both residences
13
In
and
Balbo
Mr.
interviewing various
6
116 ,
defendant
knew when
got this
other people
trafficking .
The defendant
114 ,
the
for delivery .
available
in this drug
and
of drugs ,
105 ,
for drugs
which were
106 ,
108 ,
and
partially
109 ,
110 ,
111 ,
118 .
sold
Grant ,
parking
orders
lot
drugs
for Lee
Edwards
at the
at the Black Horseman Liquor
in
front
of the
liquor store ,
and
of Lee Edwards .
)
fact ,
14
change
from one
15
given or
16
shown by ledgers
17
were
19
and 42
20
1990 .
100
fronted
21
$ 10
bags
defendant
residence
large
bags
quantities
seen by the
23
large ,
independent
24
strike
that .
evidence
heroin ,
also
on the
$ 10
contractors who
knew of the
as
bags
ledger ,
there
of brown heroin
entry of March 7th ,
a runner
during trial .
The defendant
30
on consignment ,
trial .
indication
That was the
The defendant was
22
The defendant was
of drugs
during the
in one
of white
of cocaine .
knew when distribution would
to the other .
introduced
For example ,
18
25
the
The
for Lee Edwards ,
defendant
sold drugs
large ,
as
knew when
for Lee Edwards
independent
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PDF Page 81
7
1
contractors who
2
they were
3
be reached .
4
the
5
co - conspirator with respect
6
The defendant was
sold drugs
for Lee Edwards ,
supplied with and the
Therefore ,
evidence
the Court
to the
7
organization during
his
8
the amount
distributed
9
foreseeable by the defendant
10
for the total
11
12
22
calculations
13
33
to the Lee Edwards
14
that
15
Appeals .
16
earlier ,
as to the
That
at
amount
quantity was
trial
and
19
Report .
20
Raymond Davis
21
supply of heroin to Lee Edwards .
for the guideline
D.E.A.
25
Edwards
and
he
is
and
accountable
calculations
Balbo
that
cooperate with the
that he was a source
1988 ;
that
on a
by the
of the
go through
Court
of
for Mr.
Lee
amount of heroin
and the Presentence
Vincent Balbo
testified
I made
that were attributable
I'll try to
given in support
Special Agent
agreed to
since
therefore ,
and Abieldon-Agabelli
Agent
indicated
involvement ,
evidentiary hearing
used
evidence was
24
of the
organization was
affirmed
18
had
in every part
of drugs
Edwards ,
and
of activities .
a prior sentencing ,
17
23
scope
by the
organization ,
During the
22
of
amount of drugs .
Counsel ,
again .
by a preponderance
two - and - a - half year
and ,
they could
a knowledgeable
involved
7
numbers where
finds
defendant was
that the
of drugs
phone
knew what drugs
( ph )
testified
were
Raymond
sources
Davis
government ;
that
of
pled
that
guilty
Davis
of supply of heroin to Lee
regular basis ,
Edwards '
workers
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8
1
Lee Edwards '
2
at
least
workers would
twice
3
Edwards
5
Davis
6
which was
over the
supplied
sold
for
$ 6,700
Therefore ,
8
black tar heroin was
9
white
heroin ,
grams ,
at
making a
11
Chicago
6
kilograms
Davis
of
residence
result
14
testesd by the D.E.A.
15
pure .
16
percent
heroin ,
for in cash .
a calculation was made
that
6
equal
of
Special Agent
13
of white
paid
total
the purity of have
tar heroin .
per ounce and was
28 point
12
supplied Lee
black
Lee Edwards with 3 ounces
7
10
two - year period ,
with approximately
also
to Davis '
a week to purchase black tar heroin .
That
4
travel
the
to
35
6,000
grams ,
grams per
6,085
Balbo
that
ounce ,
kilos
of
3 ounces
of
was
equal
to
85
grams .
also
testified
heroin being supplied
to the
regarding
to Davis
as
a
)
of purchases
Therefore ,
comes
17
made
of heroin
laboratory and
multiplying
out to
2,130
Special Agent
the
19
cooperate with the Government .
conspiracy ,
Agabelli
indicated
21
white
heroin to Lee Edwards ;
22
1990 ,
Agabelli
23
Agabelli
24
a
25
the country
sold
obtained
carrier ,
and Mr.
Agabelli
a
that between
of white
another resupply of
it was
35
percent
of heroin by 35
and
that
Agabelli
also
source
1989
and
agreed
also
to
of supply of
January of
heroin to Lee Edwards .
180
grams
understood had brought
from Nigeria ,
be
that Mr.
that he was
ten ounces
who Agabelli
to
6,085 grams
Balbo testified
pled
20
found
and
grams .
18
guilty to a
from Davis ,
of heroin
from
to heroin into
he delivered this
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PDF Page 85
9
1
additional
2
1990 .
2
amount
of heroin to Mr.
3
Therefore ,
4
heroin
5
The
6
that amount comes
180
7
times
per ounce
of heroin delivered
to a
purity of the
9
further testified
Balbo
also
individual ,
11
white
12
50 percent pure .
Multiplying the
13
percent
to 232
14
comes
out
Special Agent
that
to
testified
Agabelli ,
it was
made
463.5 grams
Balbo
also
testified
17
individuals
18
made
19
Lee Edwards .
government witness ,
Special Agent Balbo testified
drugs would be
cut
23
the
24
25
that
purchase
of heroin
at
50
quantity of heroin available
of narcotics
that
( ph ) ,
from
after Lee Edwards
from Edwards '
suppliers ,
to
the
increase
for sale .
purchases mentioned
and they ranged from 3 to
street
cooperating
or mixed with other substances
The various
of the
found to be
Walter Pedigrue
of six controlled purchases
22
cooperating
regarding the
established
supplies
he
grams .
trial
would purchase
added to
that
by the
level .
21
1990
tested and
16
20
a
a
sold by Lee Edwards
a series
283.5 grams .
and
1990 ,
purity of the heroin being
and the
of white
regarding the
15
Testimony at
of
grams .
in cooperation with D.E.A. ,
heroin from Agabelli ,
ten ounces
out
on November 20th ,
10
in February
in February of
heroin supplied by Mr.
that
of
comes
of 463.5
total
Special Agent
8
Edwards
the multiplication
28.35 grams
grams
Lee
5 percent .
herein were
tested ,
Being conservative
and
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10
1
figuring
the
2
numbers ,
both
3
to
4
percent
2,362
5 percent
from Raymond
grams .
and multiplying that
Davis
and Mr.
out
comes
The Court
has
considered the
7
other individuals who
∞
considered the
9
testimony to be credible and believable .
10
the
testimony that was
supplied
other evidence
The Court thus
11
Guidelines
12
Category 4 ,
13
years '
14
imprisonment
15
assessment .
are :
Total
calling
supervised
16
Insofar as
17
agrees
18
probation .
that the
19
objections
21
this
offense
for 324
to
$ 25,000
fine ,
and
objection is
that have
Counsel ,
38 ,
405 months
supervision ,
the
that
level
a
out
5
kilos .
given regarding the
information ,
case
position taken by the
With that ,
20
determines
release ,
and/or
him with
in the
comes
testimony of Mr.
Vincent
Vincent
and
by the two
to obtain a
or 47
to 47,240 grams ,
6
Balbo ,
Agabelli ,
by 20 ,
And multiplying that
mixture ,
5
figure ,
and
the
finds
and
also
that
applicable
Criminal History
imprisonment ,
plus
$ 100
cost
ten
of
special
concerned ,
the Court
government and by
if I wish to make
not
already been made ,
No ,
your Honor .
further
you may do
so
at
time .
22
MR .
KING :
23
MR .
BELLA :
No ,
your Honor .
24
THE COURT :
Mr.
King ,
as
attorney
for the defendant ,
ノ
25
do you
have
anything
to
say on the defendant's
behalf before
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