United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-1513

___________ United States of America, * * Plaintiff-Appellee, * * v. * * Francis Weekly, also known as * Frank, also known as Beverly, * * Defendant-Appellant. * Appeals from the United States

___________ District Court for the Eastern District of Missouri. No. 96-1516

___________ United States of America, * * Plaintiff-Appellee, * * v. * * Ken Braddock, * * Defendant-Appellant. *

___________-2- No. 96-1532

___________ United States of America, * * Plaintiff-Appellee, * * v. * * Donna Romero, * * Defendant-Appellant. *

___________ Submitted: September 11, 1996 Filed: May 23, 1997

___________ Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.
Francis Weekly, Ken Braddock, and Donna Romero p leaded guilty to one count of conspiring to distribute and/or possess with the intent to distribute heroin an d
co caine in violation of 21 U.S.C. § 846 (1994). Braddock and Weekly appeal thei r sentences, attacking the quantity of heroin on which the district court based thei r sentences. Romero also appeals her sentence, arguing that the district court erred in denying her the benefit of the safety valve provisi on of 18 U.S.C. § 3553(f) (1994) and U.S.S.G. § 5C1.2 (1995), and in allowing hear say testimony at her sentencing hearing.The Honorable Catherine D. Perry, Un ited States District Judge for the Eastern 1 District of Missouri.
-3- We affirm the sentences. 1

Because the issues raised in this appeal are limited to issues of sentencing, we need not discu ss in detail the facts giving rise to the charges and guilty pleas. Suffice it to say, on December 22, 1994, Weekly, Braddoc k, and Romero, along with eighteen other i ndividuals, were charged in a thirteen-count indictment with various dru g offe nses. The offenses involved a cocaine and heroin ring in St. Louis, Missouri , headed by Lamond Sykes. Of the twenty-one individuals named in the indictment, all but six had entered guilty pleas by the time we heard these appeals.

I.
Braddock and Weekly pleaded guiltyto one count of conspiring to distribute an unspecifi ed amount of heroin and cocaine. The presentence report attributed twentyeight kilograms of heroin and 595.35 grams of cocaine to them both. They objecte d to the qu antity determination, and the district court conducted sentencing hearings

. Following the hearings, the district court found that Braddock and Weekly should be sentenced based on the amounts contained in the presentence reports. The court then sentence d Weekly to 188 months imprisonment, and Braddock to 210 month s imprisonment.

The di strict court determines the quantity of drugs involved in the conspirac y which is attributable to each defendant. See Unit ed States v. Flores , 73 F.3d 826, 833 (8th Cir.), cert. denied , 116 S. Ct. 2568 (1996). The quantity determination is a finding of fact that we will only reverse for clear error. See United States v. Alexander , 982 F.2d 262, 267 (8th Cir. 1993), cert. denied , 114 S. Ct. 2761 (1994). A defendan t convicted of conspiracy can be accountable for drug quantities implicated in th e-4-

conspiracy that are reasonably foreseeable to him. See United Sta tes v. Montanye , 996-5-

F.2d 190, 192 (8th Cir. 1993) (en banc) (citing U.S.S.G. § 1B1.3(a)(1)(B)), cert

. denied , 117 S. Ct. 31 8 (1996). The district court may base a defendant’s sentence on drugs attr ibuted to his co-conspirators if it finds, by a preponderance of the evidence, that the co-conspirators' activities were in furtherance of the c onspiracy and were either known to the defendant or were reasonably foreseeable to him. See United States v. Rogers , 982 F.2d 1241, 1246 (8th Cir.), cert. denied , 509 U.S. 912 (1993). Relevant to the determination of reasonable foreseeability is whether and to what extent th e defendan t

benefitted from his co-conspirator's activities, and whether the defendan t demonstrate d a substantial level of commitment to the conspiracy. See United States v. Rice , 49 F.3d 378, 382-83 (8th Cir.), cert. denied , 115 S. Ct. 2630 (1995).

Braddock and Weekl y argue that the district court clearly erred in finding them responsible for the entire amount of heroin attributed to the conspiracy (twenty-eight kilograms) because the entire amount was not reasonably foreseeable to them. Se e United S tates v. Smith , 13 F.3d 860, 867 (5th Cir.), cert. denied , 114 S. Ct. 215 1 (19 94) ("A conviction for conspiracy does not automatically mean that every conspirator has foreseen the total quant ity of drugs involved in the entire conspiracy.") They contend that the district court relied on very general evidence to establish thei r involv ement in the conspiracy, and that the district court should have sentenced them
on the basis of a quantity determination of less than ten kilograms. See U.S.S.G

. § 2D1.1(c) (Nov. 1995).

In additio n, Weekly contends that there was no independent testimony of th e scope of his involvement in the conspiracy, only the h earsay testimony of DEA Special Agent Donald Mendrala. Weekly does not dispute that he was part of the conspiracy, but refut es the suggestion that he broke down heroin, complaining that there is n o physical evidence indicating he was involved in this aspect of the conspiracy. H e fur ther complains that although Mendrala referred to conversations elicited fro m wi retaps and interviews with co-defendants, the government failed to introduc e evide nce of the wiretap transcripts, notes of Mendrala’s interviews of co-defendants,The district court recognized that Braddock did not get out of the penitentiary 2 until October of 1992. It concluded, however, that the evi dence showed that Braddock join ed the conspiracy in late October or early November of 1992, and that eve n assu ming that Braddock was responsible for only half of the heroin, he would still be in the same guidelines range. See U.S.S.G. § 2D1.1(c).
-6- or any other witnesses corroborating Mendrala's testimony. Braddock raises similar complaints and specifically objects to the government's failure to provide Mendrala's notes of his conversations with co-defendants.
The district court did not clearly err in finding Braddock and W eekly responsible fo r the entire amount of the heroin attributable to the conspiracy. Weekly stipulate d that he was part of the charged conspiracy that began in the fall of 1991. He furthe r stipulate d that he assisted in the distribution of heroin to primary distributors , com municatedwith Sykes about the distribution, and received compensation for hi s role in the conspiracy. Likewise, Braddock stipulated that after his release from prison
onOctober 19, 1992, he packaged heroin for distribution, distributed heroin, an d collected money from the distribution of heroin. In addition, the government presented testim ony from Mendrala, the case agent for the Sykes narcotics investigation

. Mendrala testified about the electronic surveillanc e conducted during the investigation,
ex plaining that the government intercepted approximately 10,000 conversations, o f which at least ninety percent were narcotics related. Mendrala also testified about his interviews with several of the co-defendants who sought the benefit of a reduction in their sentences. Base d on the surveillance and interviews, Mendrala believed that the conspiracy distributed just under twenty-ei ght kilograms of heroin. He calculated this 2 amount by concluding that the conspiracy distributed a minimum of one ounc e of heroin per day from the fall of 1991 through December of 1994.

Braddock and Weekly do not argue that the twenty-eight kilogram amount i s overstated as to the conspiracy; instead, they complain that there is no specifi c evidence linking them to the twenty-eight kilogra m amount. However, the government-7-

need only prove that the twenty-eight kilogram amount generated by the conspirac y was reasonably foreseeable to Braddock and Weekly. See Montan ye , 996 F.2d at 192. The court may rely on hea

rsay testimony as long as the evidence has sufficient indicia of reliabilit y to support its probable accuracy. See United States v. Cassidy , 6 F.3 d 554, 557 (8th Cir. 1993). The evide nce showed that Weekly and Braddock benefitted from the conspiracy and were substantiallycommitted to the conspiracy. See Rice , 49 F.3d at 382. Th ere was evidence that Weekly distributed heroin to low-level dealers, and that Braddock worked as a street-level distributor. There was also testimony that the primary role of Braddock and We ekly in the conspiracy was to package the heroin for sale by mixing it with dilutin g agents. Mendrala testified that during the course of surveill ance he saw Weekly repeated times, and that he specifically recounted tw o under cover

purchases involving Weekly. Mendrala also testified that Sykes pai d Weekly and Braddock $1,000 each time they diluted the heroin, and that a "small group of people," including Weekly and Braddock , were responsible for packaging the drugs for retail sale. We see no reason why the court could not rely o n Mendrala's testimony. See , e.g. , United St ates v. Knight , 96 F.3d 307, 310 (8th Cir. 1996), cert. denied , 117 S. Ct. 1458 (1997). United States v. Campos , 87 F.3d 261, 264 (8th Cir.), cert

. denied , 117 S. Ct. 536 (1 996). The government provided Braddock and Weekly with the DEA reports, 200 hours of wiretaps, and wiretap affidavits. The government was not required to turn over Agent Mendrala's notes of his impr essions from his interviews withco-defendants. See , e.g. , United States v. Malone , 49 F.3d 393, 396 (8th Cir.), cert. denied , 116 S. Ct. 208 (1995).
We affirm the sentences of Braddock and Weekly.

II.
Donna Romero pleaded guilty to transporting a qu antity of heroin from Phoenix, Arizona, to St. Louis, and it was stipulated that she wou ld be accountable for the 256.8-8-

grams of heroin she transported. She was gi ven a three-point reduction for acceptance of responsibility, making her offense level twenty-three. Based upon this offense level and a criminal history Category of I, theguideline imprisonment range was from fortysix to fifty-seven months. The statutory minimum sentence was sixty months, and so she was sentenced to sixty months. Romero first argues that the district court clearly
erred in denying her the benefit of the safety-valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 (1995). Like Weekly and Braddock, Romero further argues that the district court erroneously admitted hear say testimony at her sentencing hearing and that the government failed to provide discovery regarding evidence admitted by th e
co urt at sentencing. She contends these errors deprived her of her Sixth Amendment right to confront her accusers.

A.
After Romero pled guilty, the probation office prepared a "Disclosure Copy" of her presentence report. The report stated that "since it appears that [Romero] meet s the criteria of 18 U.S.C. § 3553(f)(1)-(5), the Court may impose a sentence i n accorda nce with the applicable guidelines without regard to the statutory minimu m sentence pursuant to Section 5C1.2."

The government objected to the report, and the probation office prepared a n "Add endum

to the Presentence Report" and then changed the final report. Th e Addendum stated:
[T]he government has received information that Romero was possibl y more involved in the instant offense more [sic] than outlined in th e presen tence report. As a result, the government has requested tha t [Romero] submit to a polygraph test. Romero has ref used to comply with said request. As a resul t, the government believes that [Romero] has not tr uthfully provided all information and evidence that she has concerning the offense . . . . It is the position of the probation office that th e-9-

government has the responsibility of determining whether the defendant-10-

has met the cri teria set for (sic) in Section 5C1.2(5). As the government does not believe that she satisfied said c riteria, the presentence report has been revised. . . .
Romer o objected to the revisions made in the report, complaining that th e revisions could not be made after she "accepted" the report. The court overruled her objection, and then allowed Mendrala to testify about statements made by a co

conspirator, Antonio Grajeda (Romero's husband), and a polygraph examiner, B enjamin Scott.

Afte r

the guilty pleas, Mendrala interviewed both Grajeda and Romer o concerning their role in the conspiracy. Grajeda told him th at he was recruited because he was, at times, an over-the-road truck driver, and that his father-in-law, mother-inlaw, and Romero , set up the delivery. He stated that he traveled to St. Louis to assist in the driving and to be with his family. He told Mendrala that the group had met on one occasi on at his father-in-law's in Phoenix where they discussed the plans to drive the heroin to St. Louis. He admitted that he knew the heroin was in the car but that he did not know exactly where it was hidden i n the car. He told Mendrala that his fatherin-law had put the heroin in the car and told Romero where it was hidden. Once they got to the Days Inn motel in Eureka, Missouri, Romero told him that the heroin was in the center console of the car. Grajeda also admitted that he had been with Romero and his father-in-law when other distributions of heroin took place in the Phoenix area.

Mendrala 's interview with Romero following her guilty plea told a differen t st ory. She told Mendrala that her father-in-law and Grajeda devised the idea t o transpor t the heroin to St. Louis, and that Grajeda asked her to come along at the last minute to throw off a profile stop by a law e nforcement along the way. She stated that she did not know of the heroin d elivery although she knew that “they might have been doing something wrong.” Mendrala also testified that during the electroni c surveillance, several conversations between Sykes and Romero were re corded, and that he felt that Romero knew more about the drug operation than what she admitted.-11-

Be cause of the conflicting statements of Grajeda and Romero, the government asked both to take a polygraph examination. Mendrala testified that Grajeda agree d to take the polygraph examination, and that Special Agent Benjam in Scott administered a polygraph exam

ination to Grajeda. Scott told Mendrala that the results of the exam indicated that Grajeda was t ruthful. Mendrala further testified that Romero refused to take a polygraph examination.

After this testimony, the court found that Romero failed to meet her burden of showing that she was eligible for departure under the safety-valve provisions of 1 8 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2.

U nder the safety-valve exception to statutory minimum sentences, a defendant may be given a more lenient sentence within the otherwise applicable guidelines range if, among other things, the defendant "truthfully provide[s] to the Government al l informatio n

and evidence the defendant has concerning the offense or offenses tha t
were part of the same course of conduct or of a common scheme or plan." U.S.S.G. § 5C1.2(5). A defendant has t he burden to show, through affirmative conduct, that he has given the

government truthful information and evidence about the relevant crimes before sentencing. See United States v. Romo , 81 F.3d 84, 85 (8th Cir. 1996). W e review the district court's finding that Romero did not sat isfy her burden for clear error. Id.

The district court found tha t Romero had failed to show that she was entitled to the saf ety-valve provisions under section 5C1.2, as she had not shown that sh e trut hfully provided to the government all information she had concerning the offense. The court st ated that a defendant would not be required to submit to a polygrap h
e x amination in all cases, but reasoned that Romero's refusal to submit to a polygraph exami nationin light of the conflict with Grajeda's statement supported a finding tha t Romero did not provide truthful information. The court stated there were other grounds for its finding, as well. There was no request at sentencing that the district-12-

judge articulate with s pecificity these alternative grounds. Although the judge did not specifically articul ate its alternative bases, there was certainly sufficient evidence that there were grounds besides the refusal to take the polygraph exa mination to support the district court finding that Romero had not truthfully provided all information that she had concerning the offense. Indeed, the court had just concluded an evident iary hearing in wh ich Mendrala had testified in detail to the conflicts between the testimony o f Grajeda and Romero and to w iretap evidence suggesting Romero's involvement in the offense. This conflict in the evidence alone is independent evidence to support th e district court's finding th at Romero had not truthfully provided all information that she had concerning the offense, and points to the inference drawn by the court that Romero, not Grajeda, was untruthful. The district court finding that Romero did not meet her burden of showing that she truthfully provided the government all in formation about the offense is not clearly erroneous.

B.

Romero also contends that the district court erred in admitting the hearsa y statements t estified to by Mendrala. She contends that there was no basis fo r concluding that Grajeda's statements were reliable, and that the government failed to provi de "discovery" regarding the statements of Scott, the polygraph examiner. Sh e believes the admission of this testimony violated her Sixth Amendment ri ght to confront her accusers.
There is, however, no right of confrontation in the sente ncing process. See , e.g. , United States v. Hammer , 3 F.3d 266, 272 (8th Cir. 1993 ), cert. denied , 510 U.S. 1139 (1994); United States v. Wise , 976 F.2d 393, 400-01 (8th Cir. 1992) (en banc), cert. d e nied , 507 U.S. 989 (1993). "The Guidelines permit the use of hearsay evidence to resolve disputed facts 'provid ed that the information has sufficient indicia of reliability to support its probable accuracy.'" Caseate , 6 F.3d at 557 ( citing U.S.S.G. § 6A1.3(a)). In Wise , we specifically held that the use of hearsay evidence did not violate the-13-

Confrontation Clause. See976 F.2d at 402. The hearsay testimony in Wise was more attenuated than that here. See id. at 396. Furthermore, Romero had the opportunity to cross-examine Mendrala regarding his intervi ews with Grajeda and Scott, and Romero has not provided a specific reason as to why Mendrala's testimony was unreliable.
Finally , Romero expands her argument by stating that had the governmen t produced these witnesses in court, that she would have been entitled to discovery under Federal Rule of Criminal Procedure 16, Brady v. Maryland , 373 U.S. 83, 87 (1963), and the Jencks Act. Romero, however, fails to dis tinguish her sentencing hearing from a trial and does not suggest that any statements exist which are exculpatory to her. See , e.g. , Alone , 49 F.3d at 396 & nn.4-5. No discovery violation occurred.
We affirm the sentences of Weekly, Braddock, and Romero.
BRIGHT, Circuit Judge, dissenting.

I dissent.

Th is case provides a typical, yet disturbing glimpse into the underbelly o f prosecuting non-violent, first time drug offenders under mandator y minimum sentences. The distric t court sentenced Donna Romero, a first time offender and the mother o f thr ee young children, to a five-year mandatory minimum term of incarceration. He r request for a reduced sentence under the safety valve provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 was denied. In my view, this case should be remanded fo r resentencing because the sentencing judge relied on irrelevant eviden ce of a lie detector test to deny Romero application of the safety valve.
Romero and Grajeda transported drugs fro m Phoenix to St. Louis. Romero told the authorities that she did not organize or plan this trip, but merely accompanied-14-

Grajed aat his request. Romero acknowledged that she knew they were doin g something illegal.
Romero sought relief from a five-year mandatory minimum se ntence for this first offense by requesting application of the safety valve provision. Initially, Romer o appear ed to meet the requirements of the safety valve provision and the presentenc e rep ort recommended its application in her case. The safety valve provides that a defendant must not have more than one criminal history point, must not use violence during the commission of the offense, the offense must not result in serious physica l in jury, the defendant must not be an organizer of the offense, and the defendant must truthfully provide all relevant infor mation to the government regarding the offense. 18 U.S.C. § 3553(f). Appl ication of the safety valve provision permits a district judge to senten ce a defendant below the statutory mandatory minimum, but within th e Sentencing Guideline Range. Inthis case, Romero could be sentenced between fortysix and fifty-seven months in prison.
Grajed a, the apparent husband of Ms. Romero and the father of two of he r young children, had a different view of the circumstances. He asserted that Romero
was responsible for transporting the drugs and that he merely joined her for the ride. In an appa rent attempt to resolve the conflicting stories of Romero and Grajeda, th e prosecut or

arranged for Grajeda to take a lie detector test. Romero, on advice fro m counsel, decl ined to submit to a test. After Grajeda "passed” the lie detector test, the prosecutor opposed application of the safety valve provision for Romero and objected to the presenten ce report. Eventually the probation office prepared an "Addendum to the Presentence Report" recommending, based on the government's objection, that the court not apply the safety valve provision to Romero.
The district court relied exclusively upon Grajeda's polygraph in denyingAltho ugh the district court initially stated that it denied the safety valve "on several bases", 3 sent. tr. at 32, the court only mentioned the polygraph examination.
-15- Rom ero the safety valve. The reliability of polygraph evidence has long bee n 3 considered suspect , Brown v. Darcy , 783 F.2d 1389, 1394-97 (8th Cir. 1986), and its admission into evidence is rarely granted. See, e.g. , United States v. Williams , 95 F.3d 723, 728- 730 (8th Cir. 1996) (affirming denial of admission of polygraph int o evidenc e). In the rare instance where it is utilized, courts require careful foundatio n such as a qualified polygraph expert and appropriate questioning. See, e.g. , Unite d States v. Kwong , 69 F.3d 663, 668 (2d Cir. 1995) (polygraph results inadmissibl e because "the questions posed to Kwong were inherently ambiguous no matter how they were answered"), cert. denied , 116 S. Ct. 1343 (1996). The prosecution presented no such foundation here.

Let us review the relevance of Grajeda's lie detector test which was the focus of a hea ring prior to sentencing. The polygraph examiner never testified. Th e government

offered no evidence regarding the qualifications, if any, of the examiner. No report was presented to the district court. It is unknown if the examiner even made a report. Sent. Tr. at 27. We do not know the questions the examiner asked Grajeda, sent. tr. at 27-28, or Grajeda's answers. Indeed, the only testimony relating to th e polygraph examinati on came from an individual, Agent Don Mendrala, who allegedly spoke with the examiner by telephone. The entire testimony on direct examinatio n relating to the polygraph test is as follows:
Q. Who administered the polygraph examination? A. Special Agent Ben Scott, Benjamin Scott. Q. And his duties, he is employed by whom? A. Employed

by DEA as a polygraph examiner. At the time he was assigned to our New Orleans office. [At this point, defense counsel objected to the line of questioning, but was apparently overruled. The questioning continued]-16-

A. Currently assigned to our Washington D.C. office. Q. And he traveled to St. Louis and administered a polygrap h examina tionof Mr. Grajeda regarding his role in the offense, is tha t correct? A. That’s correct. Q. And based upon your con versations with Ben Scott, the examiner, did he render an opinion a s to whether or not Mr. Grajeda passed or was telling the truth during that examination? A. He indicated to me that he was truthful. Q. And that no deception was indicated? A. None at all. Q. That’s all, Judge.

Sent. Tr. at 25.

At se ntencing, of course, the usual federal rules of evidence do not apply. But the evidence presented in this case lacked any trustworthiness or reliability whatsoever. In a word, the "evidence" of Grajeda' s lie detector test was worthless. As such, it was entitled to no consideration by the district judge.

More over, Grajeda's obvious intent to sacrifice his wife and children resulte d from the actions and inducements of the prosecutor. The prosecutor's conduct is but another e xample of United States Attorneys in drug cases who turn family membe r against family member with the result invariably being the de struction of the family and harm to the children. A recent article i n The Atlantic Monthly provided an example of such a situation:

Federal prosecutors in Monta na threatened her [Israel] with a long pris onsentence. Although Israel possessed only eight ounces o f marijuana at the time of her arrest, under the broad federal conspirac y laws she co uld be held liable for many of her husband's crimes. Israe l wa s thirty-one years old, the mother of four young children. She ha d never before been charged with any crime. Judge Jack Shanstrom-17-

warned her in court that without a promise of cooperation "you are no t going to see your children for ten plus years." Nevertheless, Israe l refused to testify against her husband. She was sentenced to eleven years in federal prison without parole. Her husband was sentenced to twentynine years without parole. Her children were scattered among variou s relatives.

Eric Schlosser, "More Reefer Madness", The Atlantic Monthly , Apr. 1997, at 96. In our case, an overzealous prosecutor pitted fa ther against mother in order to incarcerate the latter for a lengthier time. When Romero refused to take a lie detector test, th e prosecut or

did not simply retract his recommendation for the safety valve provision

. Ins tead, he pursued a harsher sentence for obstruction of justice, as if a five-year sentence for this first offender was somehow insufficient punishment. Of course, it is the chi ldren who suffer for turning "family values" on its head in this fashion

. Fortunate ly, the district court properly denied the government's request for a n obstruction of justice adjustment. Sent. Tr. at 33.

The sad outcome of this case results from a sentencing structure whic h improperly confers immense power upon the prosecutor. He or she exercises almost complete control over the sentencing process by determining what charges to pursue and whether to disagree with the rec ommendation contained in the presentence report. As this case demonstrates, the prosecutor, not bound by the rules of evidence, is free to introdu ce worthless evidence to "prove" a point regardless of its relevance

. Unfor tunately, "[o]verzealous prosecutors sometimes forget that the prosecutor' s special duty is not to convict, but to secure justice." United States v. Guerra , No. 96- 2235, 1997 WL 232261, at *8 (8th Cir. May 9, 1997) (citations omitted).
The trial judg e, on the other hand, is confined by the sentencing guidelines, the criminal code, the presentence report and the ch arges filed by the prosecutor. In short, the sentenc ing judge has little flexibility to do what he or she thinks is right

.-18-

Furthermore, if the judge departs do wnward, prosecutors will often take an appeal. In-19-

my experience, the federal courts of appeal all too often side with prosecutors and not the district judges in these situations.

In my view, sentencing in many federal drug cases is unworthy of America n justice , and it pains me that our citizens are sentenced to lengthy prison terms unde r circumstances such a s those presented here. What is most disturbing, perhaps, is that this case is not unusual in any significant respect from the seemin gly endless drug cases we review. It is precisely the ordinariness of the manner in which we lock away Donna Rome ro for five years that appalls me. In the end, it is simply another example o f overzealous prosecution, excessive mandatory sentenc es, the use of improper evidence andthe destruction of families that results from this country's treatment of its non

violent drug offenders.
A recent study by the Drug Policy Center of the Rand Corporation, representing the first detailed examination of the cost effectiveness of mandatory minimu m sentences, concluded that "Mandatory minimum sentences are not justifiable on th e basis of cost-effectiveness at reducing cocaine consumption or drug-related crimes[.]" Study Questions Costs of Shift to Harsher Cocaine Sentences , N.Y. Times, May 13, 1997, at A13; see also United States v. Hiveley , 61 F.3d 1358, 1 363-66 (8th Cir. 1995) (Bright, J., concurring). This case causes me to reflect on the words of the grea t English legal philo sopher Jeremy Bentham: "Every particle of real punishment that is produced, more tha

n what is necessary, is just so much misery run to waste." Jeremy Bentham , Principles of Penal Law , 1 The Works of Jeremy Bentham 398 (Joh n Bowring ed., 1962). I encourage the United States Attorneys who prosecute drug cases to type these words on a three by five card and tape it to their desks.
Therefore, I would reverse and remand for resentencing.-20-

A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.