UNITED STATES DISTRICT COURT

FOR THE 

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 : 4:CR-05-0058

v. : 

:

DAVID S. GREEN : (Judge Muir)

:

OPINION

I. Introduction.

On February 3, 2005, Defendant David S. Green pled guilty to

an information charging him with possession of less than 5 grams

of crack cocaine, in violation of 21 U.S.C. § 844(a). United

States Probation Officer Eric Noll prepared a pre-sentence report

in which he determined Green’s advisory guideline imprisonment

range to be 0 to 6 months. Neither party objected to the presentence report. A pre-sentence conference was held on May 9,

2005. 

On May 10, 2005, we issued an order in which we established

a briefing schedule on the sentencing factors set forth in 28

U.S.C. § 3553(a). At that point we intended to consider the

parties’ briefs, schedule Green’s sentencing, and proceed

directly to sentencing. However, the sentencing briefs submitted

by the parties indicated that material facts were in dispute. On

July 18, 2005, we issued an order in which we required the

government to file a sur-reply brief concerning the disputed

facts, and we allowed the parties an opportunity to file a motion

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Although the government timely filed its annotated proposed

findings of fact and conclusions of law electronically by way of

computer on September 28, 2005, they were not filed under the

caption of this case. The government noticed its error and

electronically deleted the proposed findings and conclusions. A

document with the corrected caption by the government was

subsequently filed on October 4, 2005.

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We overrule the objections to the undisputed findings of

fact used herein to which there have been objections.

2

for a pre-sentence hearing to resolve any factual disputes. 

On August 8, 2005, the government timely filed a motion for

a pre-sentence hearing. On August 10, 2005, we issued an order

scheduling the hearing for September 23, 2005. The hearing

occurred on that date. During the hearing we issued an order

allowing the parties until September 28, 2005, to file annotated

proposed findings of fact and conclusions of law. The parties’

timely filed those proposed findings and conclusions.1

The following are the Court’s findings of fact, discussion,

and conclusions of law. Findings of fact which are not disputed

are noted with a “U” in parenthesis after each such finding. 

Findings of fact which are not disputed yet are objected to by

one party are noted with a “U/O” in parenthesis after each such

finding.2

II. Findings of Fact

1. Shortly after 1:00 a.m. on September 18, 2004,

Williamsport Police Officers Jason Bolt and Roy Snyder

stopped a vehicle on Hepburn Street just north of West

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Third Street in Williamsport, Pennsylvania, for failing

to stop at a flashing red light at the corner of

Hepburn Street and West Third Street. (U)

2. The vehicle was heading north on Hepburn Street. (U)

3. The vehicle was driven by Haisson Williams. (U)

4. Eddie J. Billingsley was in the front passenger seat. 

(U)

5. Seated in the rear, behind the front passenger was

David Green. (U)

6. The traffic stop occurred during Hurricane Ivan and

throughout the entire stop there was heavy rain.

7. The police cruiser which had stopped the Defendants’

vehicle on September 18, 2004, was equipped with a

video system which records vehicle stops when

activated. (U)

8. The vehicle stop and events immediately following the

stop were recorded from a camera mounted in the police

cruiser. (U)

9. Immediately following the vehicle stop, Officer Bolt

approached the vehicle and requested identification

from David Green and co-defendant Eddie Billingsley. 

(U)

10. David Green verbally identified himself but initially

did not produce identification. (U)

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11. At 1:21:35 a.m. Eddie Billingsley opened the right

front door of the vehicle. (U)

12. Billingsley got out of the car and got back into the

car during the period time stamped on the videotape as

1:21:35 through 1:23:35. (U)

13. During the traffic stop, Billingsley made furtive

movements before he got out of the car and after he got

back into the car.

14. During the time when Billingsley was outside of the

vehicle, David Green also got out of the vehicle.

15. Green was not wearing a raincoat.

16. Green appears to have exited the vehicle at that time

to talk to Officer Bolt.

17. As Green approached Bolt he reached into one of his

back pants pockets and retrieved his wallet.

18. While Green was outside the vehicle, Billingsley

returned to the vehicle and paused while standing by

the right front door of the vehicle.

19. The movements of Green and Billingsley do not appear to

have been coordinated or orchestrated in any manner.

20. Officer Bolt does not remember any conversation he had

with Green during the period time stamped on the

videotape as 1:21:35 through 1:23:35.

21. Officer Bolt did not observe Eddie Billingsley dispose

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of anything at any time during the traffic stop. (U)

22. After reviewing the portion of the videotape time

stamped 1:21:35 through 1:23:35 at the sentencing

hearing, Officer Bolt acknowledged that he observed

David Green remove something from his back pocket after

he exited the vehicle which quite possibly was his

identification.

23. Eddie Billingsley later exited the vehicle a second

time. (U)

24. The second time that Billingsley exited the vehicle

during the traffic stop is shown during the portion of

the videotape time stamped 1:39:41 through 1:40:17.

25. Green remained in the vehicle when Billingsley exited

the vehicle the second time.

26. During his cross examination, Officer Roy Snyder

testified as to what he observed when reviewing the

portion of the videotape time stamped 1:39:41 through

1:40:17. (U)

27. At the point time stamped on the videotape 1:39:41,

Haisson Williams was directly in front of the camera

wearing a white shirt. (U)

28. At the point time stamped on the videotape 1:39:41,

Eddie Billingsley is seen to the right of Haisson

Williams. (U)

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29. At the point time stamped on the videotape 1:39:41,

David Green is seated in the back seat of the vehicle. 

(U)

30. During the portion of the videotape time stamped

1:39:41 through 1:40:17 Billingsley moves to the front

right fender area of the vehicle.

31. Billingsley’s movements at that time are consistent

with the actions one would take to attempt to remove

something from the vehicle without detection and

deposit it in the street.

32. Officer Snyder testified that Eddie Billingsley’s

movements at the front right of the vehicle during the

period time stamped 1:39:41 to 1:40:17 is the portion

of the videotape to which he was referring in his

report when he stated “[w]hen reviewing the videotape

it was observed that Billingsley exited the Infinity,

walked to the front of the car and dropped the black

plastic bag object to the ground, then got back into

the car.” (U/O)

33. David Green could not have been distracting the police

officer to facilitate Billingsley’s disposal of the 10

ounces of crack cocaine during the period time stamped

on the videotape 1:39:41 to 1:40:17 because he was

seated in the back seat of the vehicle.

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34. In connection with the traffic stop, the Williamsport

Police Officers discovered 284.9 grams of cocaine base,

or crack cocaine, in the street pavement area where the

vehicle had been stopped.

35. At some time during the traffic stop Eddie Billingsley

dropped the package containing the approximately ten

ounces of crack cocaine by the right front of the

vehicle in which the defendants had been riding. (U)

36. On September 23, 2004, a federal grand jury returned a

one-count indictment charging Green, Williams, and

Billingsley with possession with the intent to

distribute more than 50 grams of cocaine base and

aiding and abetting in violation of 21 U.S.C. §

841(a)(1), and 18 U.S.C. § 2.

37. On February 3, 2005, the government, Green, and counsel

for Green stipulated that “[a]fter the vehicle was

stopped for a traffic violation, David Green learned

that there was crack cocaine in the vehicle.” (U)

38. The felony charges initially filed against Green were

ultimately resolved by Green pleading guilty to an

information charging him with possession of less than 5

grams of cocaine base in violation of 21 U.S.C. §

844(a).

39. Haisson Williams is facing a sentencing guideline

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imprisonment range of 151 to 188 months. (U)

40. The government has agreed to recommend a downward

departure in exchange for Haisson Williams’s

cooperation. (U/O)

41. During Green’s pre-sentence hearing, Williams stated

for the first time that Williams had possessed five

grams of crack cocaine when the traffic stop occurred

on September 18, 2004.

42. Haisson Williams testified that Eddie Billingsley knew

women in Williamsport and was going to introduce

Haisson Williams and David Green to women. (U/O)

43. Williams further testified that Green had been aware of

the crack possessed by Williams.

44. There was no evidence relating to the recovery or

disposition of the five grams of crack cocaine Williams

claimed he possessed. (U/O)

45. There were no police reports or reports of interviews

of Williams relating to his supposed possession of five

grams of crack cocaine and Green’s supposed knowledge

of that fact introduced at the sentencing hearing held

on September 23, 2005. (U/O)

46. Following his arrest on September 18, 2004, Williams

made a statement to Williamsport Police Officer Snyder

and lied. (U/O)

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47. On September 18, 2004, Williams lied when he told

Officer Snyder that the vehicle in which they were

riding belonged to his cousin, Kelly. (U/O)

48. On September 18, 2004, Williams lied when he told

officer Snyder that Kelly was his cousin. (U/O)

49. On September 18, 2004, Williams lied when he told

Officer Snyder that he had called Kelly from New York

to tell her that he was coming to Williamsport to

visit. (U/O)

50. On September 18, 2004, Williams lied when he told

Officer Snyder that Kelly asked him to bring Green and

Billingsley with him. (U/O)

51. On September 18, 2004, Williams lied when he told

Officer Snyder that he, Green, and Kelly were all

cousins. (U/O)

52. On September 18, 2004, Williams lied when he told

Officer Snyder that Green had been to Williamsport

before and that Green usually comes with him when he

comes to Williamsport. (U/O)

53. Prior to September 18, 2004, Green had never been to

Williamsport, Pennsylvania. (U/O)

54. Prior to the traffic stop Green did not know that there

was crack cocaine in the vehicle.

55. Green was not coming to Williamsport, Pennsylvania, to

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sell crack cocaine.

II. Discussion.

The parties do not contest the Probation Officer’s

determination that the advisory guideline imprisonment range is 0

to 6 months. The dispute in this case concerns the issue of

whether we may rely upon certain facts asserted in the

government’s sentencing briefs in sentencing Green. The

assertions at issue relate to Green’s involvement in Williams’s

and Billingsley’s conspiracy to distribute drugs in Williamsport. 

The government specifically claims the following in its

sentencing brief: 1) “While Billingsley was attempting to dispose

[of] the ten ounces of crack[,] Green exited the vehicle and

attempted to distract the police officers”; and 2) “... Green was

coming to Williamsport, ..., to sell crack cocaine.” (United

States Opposition Brief, p. 1, 2) 

As a threshold matter, we are compelled to note that those

assertions are inconsistent with, if not completely contrary to,

a stipulation filed by the parties on February 3, 2005. The

stipulation provides in relevant part as follows:

2. After the vehicle was stopped for a traffic violation, 

David Green learned that there was crack cocaine in the

vehicle.

3. The defendant reasonably believed the quantity of drugs

was less than 5 grams of crack, cocaine base, and that he

was going to get some of it.

(Stipulation, pp. 1-2, ¶¶2, 3)

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The government argues that neither it nor the court is bound

by the facts set forth in the stipulation because facts first

discovered after entry of the stipulation disprove the

stipulation’s accuracy. The government has not provided any

authority to support its position. 

Our view, and that of the reported cases, is that the

government remains bound by the stipulation. See U.S. v. DeWitt,

366 F.3d 667, 672 (8th Cir. 2004)(“Where the government

stipulates to a drug quantity and a base offense level, it may

not then initiate an effort at the sentencing hearing to obtain a

greater sentence, even if the government has come to believe that

the stipulation was made in error.”); see also United States v.

Cianci, 154 F.3d 106, 110 (3d Cir. 1998)(noting the court’s

reluctance “to allow a defendant to argue facts which

contradicted those he agreed to in his plea agreement”). 

For that reason, to the extent that any other evidence

(including Haisson Williams’s testimony) is inconsistent with the

parties’ stipulation, we summarily disregard the evidence without

further comment on it. The terms of the stipulation bind the

parties and we will sentence Green pursuant to the terms of the

stipulation.

Our decision to apply the terms of the parties’ stipulation

squarely resolves the factual disputes in this case. However,

the videotape introduced into evidence at Green’s pre-sentence

Case 4:05-cr-00058-MM Document 31 Filed 10/13/05 Page 11 of 14
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hearing merits further consideration because it supports the

conclusions we have reached as a result of the stipulation.

The government asserts that Green exited the vehicle during

the traffic stop in an attempt to distract the police to

facilitate Billingsley’s disposal of the drugs. A corollary to

that assertion is that Green was acting in concert with

Billingsley and the two men coordinated their movements to

achieve their joint goal (i.e., disposal of the crack cocaine

beside the vehicle). The videotape shows that while Green exited

the vehicle only once, Billingsley did so twice. During the

instance that both men were outside the vehicle, Billingsley’s

movements near the door of the vehicle do not appear to have been

adequate for him to dispose of anything alongside the vehicle. 

It is far more likely that Billingsley placed the drugs on the

road during the second time when he exited the vehicle and when

Green was in the car. Consequently, the evidentiary record

presented to us does not support the government’s position.

For the reasons set forth above, the government has not met

its burden of establishing (by even a preponderance of the

evidence) that Green was in any manner involved with Williams’s

and Billingsley’s plan to distribute drugs in Williamsport,

Pennsylvania. Similarly, the government has not proven that, at

any point prior to the traffic stop by the police on September

18, 2004, Green knew that there was crack cocaine in the vehicle. 

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The sentence imposed in this case will not be based upon any such

involvement or knowledge.

III. Conclusions of law.

1. The government is bound by the stipulation entered into

by the parties and filed on February 3, 2005.

2. The government has not proven by a preponderance of the

evidence that Green was in any manner involved with or

aware of Williams’s and Billingsley’s conspiracy to

distribute drugs in Williamsport, Pennsylvania.

3. The government has not proven by a preponderance of the

evidence that, at any point prior to the traffic stop

by the police on September 18, 2004, Green knew that

there was crack cocaine in the vehicle.

An appropriate order will be entered.

s/Malcolm Muir 

MUIR, U.S. District Judge

DATED: October 13, 2005

MM:ga

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UNITED STATES DISTRICT COURT

FOR THE 

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 : 4:CR-05-0058

v. : 

:

DAVID S. GREEN : (Judge Muir)

:

ORDER

October 13, 2005

Green’s sentence will be imposed on November 4, 2005, at

4:15 p.m.

s/Malcolm Muir 

MUIR, U.S. District Judge

MM:ga

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