1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-15-1997

United States v. Roman

Precedential or Non-Precedential:

Docket 96-1962

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Recommended Citation

"United States v. Roman" (1997). 1997 Decisions. Paper 194.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/194
iled August 15, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 96-1962 and 96-1963 

UNITED STATES OF AMERICA 

v. 

SAMUEL ROMAN, a.k.a. SAMUEL MERCADO 

SAMUEL ROMAN, 

Appellant 

UNITED STATES OF AMERICA 

v. 

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

Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Crim. No. 95-cr-00335-1) 

(D.C. Crim. No. 95-cr-00335-2) 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

June 27, 1997 

Before: GREENBERG and MCKEE, Circuit Judges, 

GREENAWAY,* District Judge. 

(Filed August 15, 1997) 

_________________________________________________________________ 

* The Honorable Joseph A. Greenaway, Jr., United States District Judge 

for the District of New Jersey, sitting by designation. 
Rocco C. Cipparone, Jr., Esq. 

203-205 Black Horse Pike 

Haddon Heights, NJ 08035 

Attorney for Appellant

Oscar Roman

Jeffrey M. Lindy, Esq. 

1760 Market St. 

Suite 600 

Philadelphia, PA 19103 

Attorney for Appellant

Samuel Roman

Michael R. Stiles, Esq. 

United States Attorney 

Walter S. Batty, Jr., Esq. 

Assistant United States Attorney 

Chief of Appeals 

Kristin R. Hayes, Esq. 

Assistant United States Attorney 

615 Chestnut St. 

Suite 1250 

Philadelphia, PA 19106 

Attorneys for Appellee

OPINION OF THE COURT 

McKEE, Circuit Judge. 

In this consolidated appeal, we are asked to review the 

sentences of Samuel Roman, who pled guilty to possession 

with intent to distribute cocaine base and aiding and 

abetting, and Oscar Roman, who pled guilty to possession 

with intent to distribute and distribution of cocaine base as 

well as carrying a firearm in connection with a drugtrafficking crime. The district court sentenced both Samuel 

and Oscar Roman to 188 months of imprisonment for the 

drug related offenses and imposed a consecutive sentence 

of five years on Oscar Roman for the firearm offense. Both 

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defendants contend that the district court erred by

imposing enhancements for "crack cocaine" and concluding 

that the government had not breached their plea 

agreements by refusing to file a downward departure

motion. Samuel Roman raises the additional argument that 

the district court erred by refusing his request for funds to 

retain a psychologist to testify on his behalf at sentencing. 

For the reasons that follow, we will affirm. 

I. 

These prosecutions are based on three separate 

incidents. On September 2, 1994, during surveillance of the 

4400 block of North 4th Street, Philadelphia police officers 

observed Bobby Rodriguez and an unknown purchaser 

engage in a drug transaction with Samuel Roman. After the 

purchaser paid Rodriguez for the drugs, he handed the 

money to Roman. The police stopped Rodriguez and Roman 

and seized fifty vials of crack cocaine from Rodriguez and 

$494 in cash from Roman. 

On November 7, 1994, Philadelphia police officers, again 

surveilling the 4400 block of North 4th Street, saw William 

Serrano engage in a drug sale. An undercover officer then 

approached and purchased two vials of crack from Serrano. 

Serrano then handed the money to Oscar Roman, who was 

seated in a nearby car. Backup officers arrested Serrano 

and Roman. They seized eleven vials of crack from Serrano 

and a loaded weapon and $259 in cash from Roman. A 

subsequent search of the car disclosed additional "bundles" 

containing numerous vials of crack cocaine. 

On November 22, 1994, police officers were once again 

surveilling the same block of North 4th Street when they 

saw Samuel Roman hand a brown paper bag to Oscar 

Roman and another individual. Oscar Roman and the other 

individual then hid the paper bag in a vacant lot. Samuel 

collected money from the two and left. Police apprehended 

Samuel in a car shortly thereafter. They found $1,494 on 

his person and a bundle of suspected crack cocaine in the 

car. The officers searched the vacant lot and found the 

brown paper bag that Oscar and the other individual had 

hidden. It contained fourteen bundles of crack, and three 

more bundles were found nearby. 

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Samuel and Oscar Roman both were charged with 

possession with intent to distribute crack cocaine (21 

U.S.C. § 841 (a)(1)), and Oscar Roman was also charged 

with distribution of crack cocaine (21 U.S.C. § 841(a)(1)) 

and carrying a firearm in connection with a drug-trafficking 

crime (18 U.S.C. § 924(c)). Defendants were initially named 

in an indictment that specifically charged them with 

offenses involving "crack cocaine." However, the government 

obtained a superseding indictment that identified the 

controlled substance at issue as "cocaine base." 

Both defendants pled guilty to all of the offenses in the 

superseding indictment pursuant to standard written plea 

agreements. In those agreements, each defendant agreed 

"to provide truthful, complete, and accurate information," 

"to provide all information concerning his knowledge of, and 

participation in, the distribution of cocaine base and any 

other crimes about which he has knowledge," and not to 

"protect any person or entity through false information or 

omission." App. at 19a-20a, 26a-27a. During the change-ofplea hearings that followed their initial plea of not guilty, 

the government clarified their obligations under the plea 

agreements by acknowledging that defendants could 

provide historical information only, and did not have to 

"engage in affirmative investigative techniques." App. at 

59a. 

A sentencing hearing was held on October 16, 1996. Both 

defendants argued that the government had the burden of 

proving that the controlled substance involved in this case 

was crack cocaine. To meet its burden, the government only 

presented the testimony of Officer Wilbert Kane, the officer 

assigned to the case. Kane had twelve years of experience 

in investigations and prosecutions of persons charged with 

crack cocaine distribution and had trained state and 

federal narcotics officers. Over defense objections, Kane 

testified that the substance seized from defendants was 

crack cocaine. His conclusion was based solely upon the 

way the substance was packaged. Kane conceded that the 

substance seized from the defendants did not contain 

sodium bicarbonate, a residue common in crack cocaine. 

However, he explained that the head of the police 

laboratory had told him that the absence of sodium 

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bicarbonate did not mean the substance was not crack 

because, if the "cook" was good, sodium bicarbonate would 

not be found in the finished crack. App. at 74a. 

Kane testified that he had seen crack cocaine cooked and 

that he had seen the substance that was seized from the 

defendants. For some reason, he was not asked to compare 

that crack's appearance with the substance seized from the 

defendants. He did, however, testify that the drugs taken 

from the defendants was in vials with color caps which is 

how crack cocaine is typically packaged for sale in

Philadelphia. He testified that "powder cocaine," in contrast, 

is usually packaged in ziplock bags. App. at 75a. Based 

solely upon the packaging, Kane concluded that the 

substance seized from the defendants was crack. The court 

accepted that conclusion and sentenced the defendants 

accordingly over defense objections. 

Defendants also objected to the government's decision 

not to file a downward departure motion. They argued that 

this decision breached their plea agreements and that 

government investigators were angry because they were 

only able to provide "historical" information. The defendants 

maintained that they only had historical information and 

that their agreements did not require them to provide more. 

The government, however, argued that it was the Romans 

who breached the agreement by not providing complete 

information. In support of its argument, the government 

again presented the testimony of Officer Kane who testified 

that "the accumulation of intelligence that [the Romans] 

would have gathered while in the business far exceeded 

what they were willing to tell us in the proffer." App. at 83a. 

Kane conceded, however, that the information the Romans 

had provided was accurate. The district court concluded 

that the government had not breached the plea agreements. 

Samuel Roman was sentenced at the bottom of the 

applicable guidelines range to 188 months imprisonment. 

Oscar Roman was also sentenced to 188 months on the

narcotics offenses as well as to a consecutive sentence of 60 

months stemming from his 924(c) conviction. These appeals 

followed. 

This Court has jurisdiction to review final sentences 

pursuant to 18 U.S.C. § 3742(a). 

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Discussion 

II. 

Defendants contend that the district court erred in

finding that the controlled substance involved in their case 

was crack cocaine and sentencing them pursuant to the 

guideline enhancement for that drug.1 The district court's 

determination that the substance seized from defendants 

was crack cocaine is a finding of fact that we review for 

clear error. See United States v. Johnson, 12 F.3d 760, 765 

(8th Cir. 1993). "Factual findings are clearly erroneous if 

the findings are unsupported by substantial evidence, lack 

adequate evidentiary support in the record, are against the 

clear weight of the evidence or where the district court has 

misapprehended the weight of the evidence." Davin v.

United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir. 

1995)(internal quotations omitted). However, "[t]his court 

has plenary review of issues of law raised by the district 

court's application of the Sentencing Guidelines." United

States v. James, 78 F.3d 851, 855 (3d Cir.), cert. denied, 

117 S. Ct. 128 (1996). 

In support of their argument, defendants cite our recent 

decision in United States v. James. There, the defendant 

was charged with distribution and possession of a 

"substance containing a detectable amount of cocaine

base." Id. (emphasis added). He plead guilty to that charge 

and stipulated for sentencing purposes that "the relevant 

quantity of cocaine base is 57.4 grams." Id. at 856 

(emphasis added). At his plea colloquy the court asked 

"Now Mr. James, did you, as charged in Count One of the 

indictment . . . knowingly, intentionally and unlawfully 

distribute in excess of five grams of a mixture and

substance containing a detectable amount of cocaine base?" 

Id. (emphasis added). James answered this question 

_________________________________________________________________ 

1. Note D of section 2D1.1 of the Sentencing Guidelines defines "cocaine 

base" as "crack." " `Crack' is the street name for a form of cocaine base, 

usually prepared by processing cocaine hydrochloride and sodium 

bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G. 

§ 2D1.1 n.D. 

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affirmatively. However, during the plea colloquy, the 

government made several casual references to "crack": 

The parties agree that the relevant quantity of cocaine 

base . . . is 57.4 grams. That's the total net weight of 

the crack cocaine that was purchased . . . . 

 . . . . 

Mr. James exchanged a plastic baggy that contained 

some suspected crack cocaine. . . . I believe the net 

weight was 22.0 grams of cocaine base or crack

cocaine. 

Id. (emphasis added). Although we recognized that 

"admissions to the court by a defendant during a guilty 

plea colloquy can be relied upon by the court at the 

sentencing stage," we concluded that these casual 

references, without more, did not "amount[ ] to a knowing 

and voluntary admission that the cocaine base constituted 

crack." Id. The government had the burden of showing by 

a "preponderance of the evidence that the substance in 

question was actually crack." Id. Because we concluded 

that the government had not met that burden, we vacated 

James's sentence under the crack cocaine enhancement 

and remanded for resentencing. 

Here, we conclude that the government did meet its 

burden but just barely. The government's only evidence was 

the testimony of Officer Kane. Kane is assigned to the task 

force of the Philadelphia Drug Enforcement Administration 

and admits that he is not a chemist. See app. at 77a. The 

district court, nevertheless, permitted him to state his 

opinion about the identity of the controlled substance 

involved in this case based upon his years of experience as 

a police officer. "Courts imposing sentence are free to 

consider a wide range of relevant material." United States v.

Deaner, 1 F.3d 192, 198 (3d Cir. 1993)(internal quotations 

omitted). Moreover, Rule 704 of the Federal Rules of 

Evidence "provides that opinion testimony is not 

objectionable because it embraces an ultimate issue to be 

decided." United States v. Theodoropoulos, 866 F.2d 587, 

591 (3d Cir. 1989)(internal quotations omitted). Thus, it 

was not improper for the district court to rely upon Kane's 

testimony at sentencing. 

 7 
The substance seized from defendants did not contain 

sodium bicarbonate - a common residue in crack cocaine. 

See app. at 73a. However, Kane explained that the presence 

of that ingredient is not crucial "[I]t depends on the cooker 

and how precise he is in his measurements as to whether 

there would be sodium bicarbonate left behind after the 

crack cocaine cooking process is over." App. at 74a.2 

However, no evidence was presented about the expertise of 

the person who "cooked" the drugs seized from defendants.3 

Kane stressed that the substance seized from defendants 

was packaged in "clear plastic vials with color caps" which 

is how crack is commonly packaged on the streets of

Philadelphia. App. at 75a. He, therefore, concluded that 

this substance was in fact "crack cocaine," see app. at 77a, 

and the strength of that conclusion was tested by cross 

examination. 

Although the identity of the substance defendants 

possessed need only be established by a preponderance of 

the evidence, "the preponderance standard is not toothless. 

It is the district court's duty to ensure that the Government 

carries this burden by presenting reliable and specific 

evidence." United States v. Lawrence, 47 F.3d 1559, 1566 

(11th Cir. 1995). Officer Kane has over twelve years of 

experience on the DEA task force, and, in that time, he has 

participated in over 1000 cases involving crack cocaine. 

Kane has also attended training sessions on cocaine

conducted by the Philadelphia police chemical lab, and 

himself instructs other narcotics officers about identifying 

crack and prosecuting such cases. See app. at 74a-75a. 

Given Kane's experience and expertise, we conclude that 

the record adequately supports the district court's finding 

that the controlled substance here was crack cocaine.4 

_________________________________________________________________ 

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

admissible at sentencing hearing). 

3. It is certainly understandable that the government would not know 

who manufactured a given seizure of drugs, and we do not fault the 

government for not presenting that evidence. We mention the absence of 

such testimony because it reduces (but does not negate) the probative 

value of Kane's explanation for the absence of sodium bicarbonate. 

4. We take this opportunity to express our concern over the manner in 

which the government chose to establish that the substance involved in 

 8 
III. 

Defendants next contend that the district court erred in 

concluding that the government had not breached their 

plea agreements. "Whether the government's conduct 

violated the terms of the plea agreement is a question of 

law" to which this Court gives plenary review. United States

v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994)(internal 

quotations omitted); see also United States v. Hernandez, 

17 F.3d 78, 80-81 (5th Cir. 1994). As the parties alleging 

the breach, defendants "bear[ ] the burden of proving the 

underlying facts establishing a breach by a preponderance 

of the evidence." Wilder, 15 F.3d at 1295 (internal 

quotations omitted). "In determining whether the terms of 

the plea agreement have been violated, the court must 

_________________________________________________________________ 

this case was crack. We have previously emphasized the importance of 

correctly determining that a substance is crack because of the 100:1 

sentencing ratio for cocaine base, as compared to cocaine, under the 

Sentencing Guidelines. See James, 78 F.3d at 855. Indeed, the wisdom 

and fairness of that ratio, and the social consequences of it, have been 

discussed and debated in forums so vast and varied that they need not 

be referenced here. The wisdom of the policy is not for us to determine. 

However, we would hope that the government would take steps to 

provide a quality of proof that is consistent with the seriousness of the 

consequences of that distinction. 

We have recently stated that an indictment need not identify the 

controlled substance at issue as the identity is a factor for sentencing, 

and not an element of the offense. See United States v. Lewis, 113 F.3d 

487, 490 (3d Cir. 1997). However, where a written plea agreement is 

entered questions of notice and proof at sentencing could be greatly 

minimized by simply including language in the plea agreement by which 

a defendant acknowledges the identity of the drugs involved. Similarly, 

problems of proof could be eliminated by a specific inquiry of the 

defendant during the Rule 11 colloquy as opposed to only casual 

references to "crack" or "cocaine base." 

Given our limited standard of review here, we cannot say that the 

government's evidence was insufficient to carry its burden. As we noted 

above, the government did meet its burden and that ends our inquiry on 

that issue. Nevertheless, in view of our recent holding in James, we hope 

the proof presented in this case on the crucial issue of whether the 

substance was crack cocaine does not reflect a lack of appreciation for 

the seriousness of that determination or the consequences that flow from 

it. 

 9 
determine whether the government's conduct is consistent 

with the parties' reasonable understanding of the 

agreement." Id. (internal quotations omitted). 

In Hernandez, the defendant pled guilty pursuant to a 

written agreement in which the government agreed to

"recommend [that Hernandez receive] credit for acceptance 

of responsibility and a sentence at the low end of the 

guideline range." Id. at 80. The agreement was amended in 

court by the Assistant U.S. attorney who stated on the 

record "that if Mr. Hernandez should provide substantial 

assistance to the Government, either I guess through 

truthful information and testimony if necessary, that the 

Government may make a motion for downward departure at 

sentencing." Id. Following his guilty plea, Hernandez 

provided two types of assistance. "First, he gave the 

government a hand-drawn map that ostensibly showed 

where a stash of cocaine could be found." Id. "Second, 

Hernandez provided the government with information 

(which the government insists was `stale') concerning drug 

dealing and illegally possessed guns in the Corpus Christi 

area." Id. The government argued that the assistance was 

not substantial and refused to move for a downward 

departure at Hernandez's sentencing. He then appealed his 

sentence on grounds that the government had breached the 

plea agreement. "Considering the type of information that 

the government should have expected from a defendant like 

Hernandez, who had been incarcerated for over six months, 

[the court of appeals] f[ou]nd it difficult to conceive of what 

more Hernandez could have provided that would be 

substantial . . . ." Id. at 82. It therefore vacated his 

sentence and remanded to the district court for a 

determination of what the parties intended as "substantial 

assistance." 

Here, the government concedes that the defendants did 

provide truthful and accurate information, but insists that 

the information was not "complete" as required under the 

plea agreements. Officer Kane testified that "[he] believe[d] 

it was truthful, the information they gave us, although I did 

not believe it was full or complete." App. at 82a. "Because 

both of the defendants had been involved in the drug 

business, specifically crack cocaine for numerous years. 

 10 
. . . the accumulation of intelligence that they would have 

gathered while in the business far exceeded what they were 

willing to tell us in the proffer." App. at 83a. Kane's 

suspicions are supported by the defendants' conduct

during the "debriefing" sessions. Defendants demanded that 

they be interviewed together, and, during the interview, 

"one brother or the other would begin talking about

something and the other brother would tell him, no, . . . 

we're not going to tell them about that. Often times they 

would laugh at each other." App. at 83a. From this 

testimony, the district court properly could conclude that 

the each defendant failed to provide "all information 

concerning his knowledge of, and participation in the 

distribution of cocaine base and other crimes about which 

he has knowledge" as was required by the agreement. App. 

at 19a, 26a-27a. 

We also agree with the district court that the 

government's in-court clarification of the terms of the plea 

agreements did not in any way alter defendants' obligation 

to provide complete information. In open court, the

Assistant U.S. Attorney acknowledged that "it's the

Government's expectation after the proffer that Mr. Roman, 

if the information he is able to provide proves truthful and 

accurate, that he would receive a downward departure 

motion and it would not be a barrier to receiving such a 

motion, simply that he could not engage in affirmative 

investigative techniques but that he solely may be able to 

provide historical information to the Government." App. at 

58a-59a. Defendants argue that, if they provided truthful, 

accurate, but incomplete historical information, the 

government was still obligated to move for a downward 

departure. See Appellant Br. at 16. (Appellant Oscar 

Roman)("There is no ambiguity in that language . . . Oscar 

Roman would receive a downward departure motion if the 

information he provided met two criteria -- truthfulness 

and accuracy . . . ."). We disagree. Instead, we believe that 

the district court correctly interpreted this statement to 

mean that "the fact that [the information defendants 

provided] was simply historical would not, in and of itself, 

prevent it from qualifying as substantial assistance." App. 

at 143a. Therefore, we find no error in the district court's 

 11 
determination that the government did not breach the plea 

agreement by refusing to file a downward departure motion. 

IV. 

Samuel Roman alleges error in the district court's denial 

of his request for CJA funds to retain a psychiatrist. In 

appropriate cases a court can order that such funds be 

provided to assist an indigent defendant in preparing for 

sentencing. 

Counsel for a person who is financially unable to 

obtain investigative, expert, or other services necessary 

for adequate representation may request them in an ex 

parte application. Upon finding, after appropriate 

inquiry in an ex parte proceeding, that the services are 

necessary and that the person is financially unable to 

obtain them, the court . . . shall authorize counsel to 

obtain the services. 

18 U.S.C. § 3006A(e)(1). However, a court should first 

"satisfy itself that a defendant may have a plausible

defense." United States v. Alden, 767 F.2d 314, 318 (7th 

Cir. 1984)(emphasis added). "The decision to grant or deny 

a motion under section 3006A(e) is one committed to the 

discretion of the district court, and a district court's 

decision will be disturbed on appeal only if it constitutes an 

abuse of discretion." Id. at 319. 

Samuel Roman wanted a psychiatrist "to testify at 

sentencing in support of his motion for a downward 

departure . . . based on mental and emotional conditions 

and diminished capacity." Appellant Br. at 12 (Appellant 

Samuel Roman). His mental and emotional condition, he 

claimed, was "due to, (a) the murder of his father, (b) the 

fact that from the age of five years old, he grew up without 

a father, and (c) his extensive abuse of drugs and alcohol." 

Appellant Br. at 15 (Appellant Samuel Roman). 

Under the Guidelines, those factors do not warrant a 

downward departure. Section 5H1.4 of the Guidelines

states that "[d]rug or alcohol dependence or abuse is not a

reason for imposing a sentence below the guidelines." 

U.S.S.G. § 5H1.4 (emphasis added). Section 5H1.12 states 

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

circumstances indicating a disadvantaged upbringing are not

relevant grounds for imposing a sentence outside the

applicable guideline range." U.S.S.G. § 5H1.12 (emphasis 

added). Taken together, these sections demonstrate that the 

facts of his case did not warrant a downward departure. 

Accordingly, the district court did not abuse its discretion 

by denying Samuel Roman funds to retain a psychiatrist to 

testify in support of that departure. 

He also claims that this denial "deprived him of his rights 

under the Due Process and Equal Protection clauses of the 

United States Constitution." Appellant Br. at 12 (Appellant 

Samuel Roman). For this proposition, he cites Ake v.

Oklahoma, 470 U.S. 68 (1985). In Ake, the Supreme Court 

held that, when a capital defendant demonstrates that his 

mental condition is a significant factor at his sentencing 

phase, he is "entitled to the assistance of a psychiatrist . . . 

and [ ] the denial of that assistance deprive[s] him of due 

process." Id. at 87. The Court recognized, however, that "[a] 

defendant's mental condition is not necessarily at issue in 

every criminal proceeding . . . and it is unlikely that 

psychiatric assistance . . . would be of probable value in 

cases where it is not." Id. at 82. "The variable on which [a 

court] must focus is, therefore, the probable value the 

assistance of a psychiatrist will have . . . and the risk 

attendant on its absence." Id. at 84. Since the psychiatric 

testimony that Samuel Roman wanted to present would

have been irrelevant, the court did deprive him of due 

process in refusing to authorize funds for a psychiatrist. 

V. 

For the reasons set forth above, we will affirm defendants' 

judgments of sentence entered on October 16, 1996. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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