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. e du/thir dc ir c uit_1997/194iled August 15, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96-1962 and 96-1963

UNITED STATES OF AMERICA

v.

SAMUEL ROMAN, a.k.a. SAMUEL MERCADO

SAMUEL ROMAN,

Appellant

UNITED STATES OF AMERICA

v.

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

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 95-cr-00335-1) (D.C. Crim. No. 95-cr-00335-2)

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

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

.

(Filed August 15, 1997)

___________________________________________________ ______________

* The Honorable Joseph A. Greenaway, Jr., United St ates District Judge for the District of New Jersey, sitting by designat ion.Rocco C. Cipparone, Jr., Esq.

203-205 Black Horse Pike Haddon Heights, NJ 08035

Attorney for Appellant

Oscar Roman

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

Attorney for Appellant
Samuel Roman

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

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge

.

In this consolidated appeal, we are asked to review the sentences of Samuel Roman, who pled guilty to posse ssion with intent to distribute cocaine base and aiding a nd abetting, and Oscar Roman, who pled guilty to posse ssion
with intent to distribute and distribution of cocai ne base as well as carrying a firearm in connection with a dru gtrafficking crime. The district court sentenced bot h Samuel and Oscar Roman to 188 months of imprisonment for t he drug related offenses and imposed a consecutive sen tence of five years on Oscar Roman for the firearm offens e. Both

2defendants contend that the district court erred by

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

I.

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

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

On November 22, 1994, police officers were once aga in surveilling the same block of North 4th Street when they saw Samuel Roman hand a brown paper bag to Oscar
Roman and another individual. Oscar Roman and the o ther individual then hid the paper bag in a vacant lot. Samuel collected money from the two and left. Police appre hended Samuel in a car shortly thereafter. They found $1,4 94 on his person and a bundle of suspected crack cocaine in the
car. The officers searched the vacant lot and found the brown paper bag that Oscar and the other individual had hidden. It contained fourteen bundles of crack, and three more bundles were found nearby.

3Samuel and Oscar Roman both were charged with

possession with intent to distribute crack cocaine (21 U.S.C. § 841 (a)(1)), and Oscar Roman was also char ged with distribution of crack cocaine (21 U.S.C. § 841 (a)(1)) and carrying a firearm in connection with a drug-tr afficking crime (18 U.S.C. § 924(c)). Defendants were initial ly named in an indictment that specifically charged them wit h offenses involving "crack cocaine." However, the go vernment obtained a superseding indictment that identified t he
controlled substance at issue as "cocaine base."

Both defendants pled guilty to all of the offenses in the superseding indictment pursuant to standard written plea agreements. In those agreements, each defendant agr eed "to provide truthful, complete, and accurate inform ation," "to provide all information concerning his knowledg e of, and participation in, the distribution of cocaine base and any other crimes about which he has knowledge," and not to "protect any person or entity through false informa tion or omission." App. at 19a-20a, 26a-27a. During the cha nge-ofplea hearings that followed their initial plea of n ot guilty, the government clarified their obligations under th e plea agreements by acknowledging that defendants could provide historical information only, and did not ha ve to "engage in affirmative investigative techniques." A pp. at
59a.

A sentencing hearing was held on October 16, 1996. Both defendants argued that the government had the burde n of proving that the controlled substance involved in t his case was crack cocaine. To meet its burden, the governme nt only presented the testimony of Officer Wilbert Kane, th e officer assigned to the case. Kane had twelve years of expe rience in investigations and prosecutions of persons charg ed with
crack cocaine distribution and had trained state an d federal narcotics officers. Over defense objections , Kane
testified that the substance seized from defendants was crack cocaine. His conclusion was based solely upon the way the substance was packaged. Kane conceded that the
substance seized from the defendants did not contai n sodium bicarbonate, a residue common in crack cocai ne. However, he explained that the head of the police laboratory had told him that the absence of sodium

4bicarbonate did not mean the substance was not crac k

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

Kane testified that he had seen crack cocaine cooke d and
that he had seen the substance that was seized from the defendants. For some reason, he was not asked to co mpare that crack's appearance with the substance seized f rom the defendants. He did, however, testify that the drugs taken from the defendants was in vials with color caps wh ich is how crack cocaine is typically packaged for sale in Philadelphia. He testified that "powder cocaine," i n contrast, is usually packaged in ziplock bags. App. at 75a. B ased solely upon the packaging, Kane concluded that the
substance seized from the defendants was crack. The court accepted that conclusion and sentenced the defendan ts accordingly over defense objections.

Defendants also objected to the government's decisi on not to file a downward departure motion. They argue d that this decision breached their plea agreements and th at government investigators were angry because they we re only able to provide "historical" information. The defendants maintained that they only had historical informatio n and that their agreements did not require them to provi de more. The government, however, argued that it was the Rom ans who breached the agreement by not providing complet e information. In support of its argument, the govern ment again presented the testimony of Officer Kane who t estified that "the accumulation of intelligence that [the Ro mans] would have gathered while in the business far excee ded what they were willing to tell us in the proffer." App. at 83a. Kane conceded, however, that the information the Ro mans had provided was accurate. The district court concl uded that the government had not breached the plea agree ments.

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

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

5Discussion

II.

Defendants contend that the district court erred in finding that the controlled substance involved in t heir case was crack cocaine and sentencing them pursuant to t he guideline enhancement for that drug.1 The district court's
determination that the substance seized from defend ants was crack cocaine is a finding of fact that we revi ew for
clear error. See United States v. Johnson , 12 F.3d 760, 765 (8th Cir. 1993). "Factual findings are clearly erro neous if the findings are unsupported by substantial evidenc e, lack adequate evidentiary support in the record, are aga inst the clear weight of the evidence or where the district court has misapprehended the weight of the evidence." Davin v

. United States Dep't of Justice , 60 F.3d 1043, 1049 (3d Cir. 1995)(internal quotations omitted). However, "[t]hi s court has plenary review of issues of law raised by the d istrict court's application of the Sentencing Guidelines." United

States v. James , 78 F.3d 851, 855 (3d Cir.), cert. denied , 117 S. Ct. 128 (1996).

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

___________________________________________________ ______________

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

6affirmatively. However, during the plea colloquy, t he

government made several casual references to "crack ":

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

. . . .

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

.

Id. (emphasis added). Although we recognized that "admissions to the court by a defendant during a gu ilty plea colloquy can be relied upon by the court at th e sentencing stage," we concluded that these casual references, without more, did not "amount[ ] to a k nowing and voluntary admission that the cocaine base const ituted

crack." Id. The government had the burden of showing by a "preponderance of the evidence that the substance in question was actually crack." Id. Because we concluded that the government had not met that burden, we vac ated
James's sentence under the crack cocaine enhancemen t and remanded for resentencing.

Here, we conclude that the government did meet its burden but just barely. The government's only evide nce was the testimony of Officer Kane. Kane is assigned to the task force of the Philadelphia Drug Enforcement Administ ration
and admits that he is not a chemist. See app. at 77a. The district court, nevertheless, permitted him to stat e his opinion about the identity of the controlled substa nce involved in this case based upon his years of exper ience as a police officer. "Courts imposing sentence are fre e to consider a wide range of relevant material." United States v.

Deaner , 1 F.3d 192, 198 (3d Cir. 1993)(internal quotation s omitted). Moreover, Rule 704 of the Federal Rules o f Evidence "provides that opinion testimony is not objectionable because it embraces an ultimate issue to be decided." United States v. Theodoropoulos , 866 F.2d 587, 591 (3d Cir. 1989)(internal quotations omitted). Th us, it was not improper for the district court to rely upo n Kane's testimony at sentencing.

7The substance seized from defendants did not contai n

sodium bicarbonate - a common residue in crack coca ine.

See app. at 73a. However, Kane explained that the pres ence of that ingredient is not crucial "[I]t depends on the cooker and how precise he is in his measurements as to whe ther
there would be sodium bicarbonate left behind after the crack cocaine cooking process is over." App. at 74a .2 However, no evidence was presented about the expert ise of the person who "cooked" the drugs seized from defen dants.3

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

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

___________________________________________________ ______________

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

3. It is certainly understandable that the governme nt would not know who manufactured a given seizure of drugs, and we d o not fault the government for not presenting that evidence. We men tion the absence of such testimony because it reduces (but does not neg ate) the probative value of Kane's explanation for the absence of sodi um bicarbonate.

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

8III.

Defendants next contend that the district court err ed in concluding that the government had not breached the ir plea agreements. "Whether the government's conduct violated the terms of the plea agreement is a quest ion of law" to which this Court gives plenary review. Unit ed States
v. Wilder , 15 F.3d 1292, 1295 (5th Cir. 1994)(internal quotations omitted); see also United States v. Hern andez , 17 F.3d 78, 80-81 (5th Cir. 1994). As the parties a lleging the breach, defendants "bear[ ] the burden of provi ng the underlying facts establishing a breach by a prepond erance of the evidence." Wilder , 15 F.3d at 1295 (internal quotations omitted). "In determining whether the te rms of the plea agreement have been violated, the court mu st

___________________________________________________ ______________

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

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

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

9determine whether the government's conduct is consi stent

with the parties' reasonable understanding of the agreement." Id. (internal quotations omitted).

In Hernandez , the defendant pled guilty pursuant to a written agreement in which the government agreed to "recommend [that Hernandez receive] credit for acce ptance of responsibility and a sentence at the low end of the guideline range." Id. at 80. The agreement was amended in court by the Assistant U.S. attorney who stated on the record "that if Mr. Hernandez should provide substa ntial assistance to the Government, either I guess throug h truthful information and testimony if necessary, th at the Government may make a motion for downward departure at sentencing." Id. Following his guilty plea, Hernandez provided two types of assistance. "First, he gave t he government a hand-drawn map that ostensibly showed
where a stash of cocaine could be found." Id. "Second, Hernandez provided the government with information (which the government insists was `stale') concerni ng drug dealing and illegally possessed guns in the Corpus Christi

area." Id. The government argued that the assistance was
not substantial and refused to move for a downward departure at Hernandez's sentencing. He then appeal ed his sentence on grounds that the government had breache d the plea agreement. "Considering the type of informatio n that the government should have expected from a defendan t like Hernandez, who had been incarcerated for over six m onths, [the court of appeals] f[ou]nd it difficult to conc eive of what more Hernandez could have provided that would be
substantial . . . ." Id. at 82. It therefore vacated his
sentence and remanded to the district court for a determination of what the parties intended as "subs tantial
assistance."

Here, the government concedes that the defendants d id provide truthful and accurate information, but insi sts that the information was not "complete" as required unde r the plea agreements. Officer Kane testified that "[he] believe[d] it was truthful, the information they gave us, alth ough I did not believe it was full or complete." App. at 82a. "Because
both of the defendants had been involved in the dru g business, specifically crack cocaine for numerous y ears.

10. . . the accumulation of intelligence that they wo uld have

gathered while in the business far exceeded what th ey were willing to tell us in the proffer." App. at 83a. Ka ne's suspicions are supported by the defendants' conduct during the "debriefing" sessions. Defendants demand ed that they be interviewed together, and, during the inter view, "one brother or the other would begin talking about something and the other brother would tell him, no,

. . . we're not going to tell them about that. Often time s they would laugh at each other." App. at 83a. From this testimony, the district court properly could conclu de that the each defendant failed to provide "all information concerning his knowledge of, and participation in t he
distribution of cocaine base and other crimes about which he has knowledge" as was required by the agreement. App. at 19a, 26a-27a.

We also agree with the district court that the government's in-court clarification of the terms of the plea agreements did not in any way alter defendants' obl igation to provide complete information. In open court, the Assistant U.S. Attorney acknowledged that "it's the Government's expectation after the proffer that Mr. Roman, if the information he is able to provide proves tru thful and accurate, that he would receive a downward departur e motion and it would not be a barrier to receiving s uch a motion, simply that he could not engage in affirmat ive investigative techniques but that he solely may be able to provide historical information to the Government." App. at 58a-59a. Defendants argue that, if they provided tr uthful, accurate, but incomplete historical information, the government was still obligated to move for a downwa rd departure. See Appellant Br. at 16. (Appellant Oscar Roman)("There is no ambiguity in that language . . . Oscar
Roman would receive a downward departure motion if the information he provided met two criteria -- truthfu lness and accuracy . . . ."). We disagree. Instead, we be lieve that the district court correctly interpreted this state ment to mean that "the fact that [the information defendant s provided] was simply historical would not, in and o f itself, prevent it from qualifying as substantial assistanc e." App. at 143a. Therefore, we find no error in the distric t court's

11determination that the government did not breach th e plea

agreement by refusing to file a downward departure motion.

IV.

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

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

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

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

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

12that "[l]ack of guidance as a youth and similar

circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside th e applicable guideline range ." U.S.S.G. § 5H1.12 (emphasis added). Taken together, these sections demonstrate that the facts of his case did not warrant a downward depart ure. Accordingly, the district court did not abuse its d iscretion by denying Samuel Roman funds to retain a psychiatr ist to testify in support of that departure.

He also claims that this denial "deprived him of hi s rights under the Due Process and Equal Protection clauses of the United States Constitution." Appellant Br. at 12 (A ppellant Samuel Roman). For this proposition, he cites Ake v

. Oklahoma , 470 U.S. 68 (1985). In Ake , the Supreme Court held that, when a capital defendant demonstrates th at his mental condition is a significant factor at his sentencing phase, he is "entitled to the assistance of a psych iatrist . . . and [ ] the denial of that assistance deprive[s] hi m of due process." Id. at 87. The Court recognized, however, that "[a] defendant's mental condition is not necessarily at issue in every criminal proceeding . . . and it is unlikely that psychiatric assistance . . . would be of probable v alue in
cases where it is not." Id. at 82. "The variable on which [a court] must focus is, therefore, the probable value the assistance of a psychiatrist will have . . . and th e risk
attendant on its absence." Id. at 84. Since the psychiatric testimony that Samuel Roman wanted to present would have been irrelevant, the court did deprive him of due process in refusing to authorize funds for a psychi atrist.

V.

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

A True Copy:

Teste:

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

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