cr 12-01259 dkw in the united states court of appeals … · cr 12-01259 dkw (district of hawaii)...
TRANSCRIPT
CA NO. 14-10439 CR 12-01259 DKW (District of Hawaii)
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee v. DAVID STEIDELL Defendant/Appellant. __________________________________ _______________________ APPELLANT'S OPENING BRIEF _____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONORABLE DERRICK K. WATSON UNITED STATES DISTRICT COURT JUDGE DE ANNA S. DOTSON, ESQ. 33121 Ocean Ridge Dana Point, CA 92629 (808) 594-6480 Attorney for Appellant DAVID STEIDELL
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 1 of 77
2
TABLE OF CONTENTS
Page TABLE OF AUTHORITIES…………………………………………………5 I. STATEMENT OF ISSUE PRESENTED FOR REVIEW ................9 II. STATEMENT OF THE CASE ...........................................................10 A. NATURE OF THE CASE 1. JURISDICTION OF THE DISTRICT COURT .............10 2. BASIS FOR JURISDICTION IN THE COURT OF APPEALS..........................................................................10 3. NOTICE OF APPEAL WAS TIMELY ...........................10 B. PROCEEDINGS AND DISPOSITION OF THE TRIAL COURT.............................................................................10 C. BAIL STATUS ............................................................................12 III. STATEMENT OF THE FACTS ........................................................13 IV. STANDARD OF REVIEW AND ARGUMENT A. STEIDELL WAS ENTRAPPED BY A GOVERNMENT
UNDERCOVER AGENT TO COMMIT A CRIME WHICH
SIGNIFICANTLY INCREASED HIS SENTENCE …………24
1. Standard of Review……………………………………24
2. Summary of Argument………………………………...25
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 2 of 77
3
3. Legal Analysis…………………………………………28
a. Steidell Lacked The Intent to Produce
Methamphetamine………………………………29
b. Steidell Lacked The Capability to Produce
Methamphetamine……………………………….31
c. The District Court’s Determination of Steidell’s
Offense Level Was Error Which Was Clear…….36
d. The Error Affected Steidell’s Substantial Rights
and Was Prejudicial……………………………..37
e. Seriously Affected Integrity of Judiciary ………39
B. THE DISTRICT COURT ERRONEOUSLY FOUND THAT
STEIDELL WAS A LEADER AS EVIDENCE FAILED TO
DEMONSTRATE THAT STEIDELL HAD THE REQUISITE
CONTROL OVER OTHERS ………………………………..41
1. Standard of Review……………………………………41
2. Summary of Argument………………………………...41
3. Legal Analysis…………………………………………45
C. STEIDELL’S SENTENCE WAS UNREASONABLE………58
1. Standard of Review……………………………………58
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 3 of 77
4
2. Legal Analysis………………………………………..59
a. Sentence Disparity Between Co-Defendants
Steidell and CHO………………………………60
b. The Court Failed to Adequately Resolve
Steidell’s Objections to the PSR………………..65
c. Steidell’s Sentence Was Substantively
Unreasonable……………………………………72
V. CONCLUSION .....................................................................................73 CERTIFICATE OF RELATED CASES......................................................29 CERTIFICATE OF COMPLIANCE ...........................................................30 CERTIFICATE OF SERVICE……………………………………………31
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 4 of 77
5
TABLE OF AUTHORITIES CASES PAGE Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013)……………………………...36, 37 Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000). ……………36 Freeman v. United States, 131 S. Ct. 2685, 2692, 180 L. Ed. 2d 519 (2011). ………………………..59 Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007)..24, 58, 59, 60, 65 Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)……………36
Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007). …………..65
United States v. Ameline, 409 F.3d 1073, 1085-86 (9th Cir. 2005) (en banc)…………………………65 United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013)……………………………………….24 United States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010)………………………………….35, 38, 40 United States v. Calderon Espinosa, 569 F.3d 1005, 1008 (9th Cir. 2009)……………………………………….40 United States v. Cantrell, 433 F.3d 1269, 1279-80 (9th Cir. 2006)………………………………..40, 41 United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc)……………………24, 59, 65, 72
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 5 of 77
6
United States v. Cortes, 732 F.3d 1078 (9th Cir 2013)…………………………………………...35, 39 United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009)…………………………………….72 United States v. Garcia Guerrero, 635 F.3d 435, 438 (9th Cir. 2011)…………………………………………..24
United States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir. 2008)………………………………………….59 United States v. Harper, 33 F.3d 1143, 1151 (9th Cir. 1994)……………………………………45, 57
United States v. Hoac, 990 F.2d 1099, 1111 (9th Cir. 1993)……………………………………….45 United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007) ………………………………………45 United States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003) …………………………………………25 United States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th Cir 1998) …………………………………..41, 45, 58 United States v. Marcus, 560 U.S. 258, 130 S. Ct. 2159, 2164, 176 L. Ed. 2d 1012 (2010). ………..37
United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009)……………………………………28, 36 United States v. Naranjo, 52 F.3d 245, 250 n.13 (9th Cir. 1995)………………………………….29, 40
United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)……………24
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 6 of 77
7
United States v. Paladino, 401 F.3d 471, 483 (9th Cir 2005)…………………………………………...39 United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995)…………………………………………...41 United States v. Schafer, 625 F.3d 629, 639 (9th Cir. 2010)………………………………………28, 35 United States v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003)……………………………………….28 United States v. Showalter, 569 F.3d 1150, 1160 (9th Cir. 2009)………………………………………..65 United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994)……………………………..28, 35, 39, 40 United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc)………………………………..73 United States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013)………………………………………..65 United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) ………………………………………….45 United States v. Yuman-Hernandez, 712 F.3d 471, 474 (9th Cir. 2013)…………………………………………..34 STATUTES AND RULES 18 U.S.C. § 922(g)(1)………………………………………………………23 18 U.S.C. § 924(a)(2)………………………………………………………..23 18 U.S.C.§ 924(c)(1)(A)…………………………………………………12, 23
18 U.S.C. § 3231…………………………………………………………….10
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 7 of 77
8
18 U.S.C. § 3553(a)…………………………………………………….59, 73
18 U.S.C. § 3553(a)(6)…………………………………………………60, 61 21 U.S.C. 841 (a)(1) and (b)(1)(A)………………………………………11, 12
21 U.S.C. §841(b)(1)(C)…………………………………………………11, 12
21 U.S.C. § 846……………………………………………………………...11
28 U.S.C. § 1291 ……………………………………………………………10 U.S.S.G. § 3B1.1(c) ……………………………………………41, 45, 46, 58
U.S.S.G. §2D1.1(c)………………………………………………………...38
Application Note 5 of the 2013 U.S.S.G. § 2D1.1……………………..38, 39
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 8 of 77
9
CA NO. 14-10439 CR 12-01259 DKW (District of Hawaii) IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/Appellee, vs. DAVID STEIDELL Defendant/Appellant. ____________________________
I.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Steidell’s sentence was enhanced due to government
sentencing entrapment.
2. The District Court erroneously adjusted Steidell’s offense
level for leadership.
3. Steidell’s sentence was unreasonable.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 9 of 77
10
II.
STATEMENT OF THE CASE
A. Nature of the Case
1. Jurisdiction of the District Court.
This appeal is from the District Court's Judgment on September
9, 2014 and filed on September 10, 2014. The District Court had jurisdiction
pursuant to Title 18 U.S.C. § 3231.
2. Basis for Jurisdiction in the Court of Appeals.
Mr. David Steidell is appealing his judgment and sentence. This
Court has jurisdiction over appeals from final judgments under Title 28 U.S.C.
§ 1291.
3. Notice of Appeal was Timely.
The district court entered sentence and judgment against
appellant on September 10, 2014. The Notice of Appeal was filed timely on
September 18, 2014. ER: 1 1
B. Proceedings and Disposition of the Trial Court.
On December 4, 2012, a Criminal Complaint was filed under
seal, against Jesse Cho-Paek (“CHO”), David Steidell (“Steidell”), Jasmine 1 ER refers to Excerpt of Clerk’s Record, DS refers to Court Docket Sheet, PSR refers to Presentence Report, CCA refers to sealed Criminal Complaint Affidavit.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 10 of 77
11
Trujillo (“TRUJILLO”), and Demario Bell (“BELL”) that they knowingly and
intentionally did distribute 5000 tablets of BZP on August 7, 2012, in violation
of 21 U.S.C. §§841(a)(1) and 841(b)(1)(C). (Criminal Complaint Filed Under
Seal)
On December 20, 2012, an Indictment was filed under criminal
case 12-01259 SOM against Appellant Steidell (02) and co-defendant CHO
(01), TRUJILLO (03), and BELL (04), charging them with conspiracy to
possess with intent to distribute MDMA and BZP in violation of 21 USC
§§841(a)(1) and 841(b)(1)(C); 846. (ER: 103)
On February 05, 2014, a Superseding Indictment was filed
charging the same four (4) defendants with Count 1: conspiracy to possess
with intent to distribute MDMA and BZP in violation of 21 USC §§ 841 (a)(1)
and 841 (b)(1)(C); 846.
Count 2: charged Steidell and CHO with conspiracy to possess
with intent to distribute fifty (50) grams or more of methamphetamine, its
salts, isomers, and salts of its isomers in violation of 21 USC §§ 841(a)(1) and
841(b)(1)(A); 846.
Count 3: charged Steidell and CHO with intentionally
distributing fifty (50) grams or more of methamphetamine, its salts, isomers,
and salts of its isomers in violation of 21 USC §§ 841(a)(1) and 841(b)(1)(A).
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 11 of 77
12
Count 4: charged BELL with knowing use and possession of a firearm, during
and in relation to a drug trafficking crime in violation of 21 USC § 841(a)(1)
and 18 USC 924(c)(1)(A).
Count 5: charged Steidell with possession with intent to distribute
BZP in violation of 21 USC §§ 841 (a)(1) and 841 (b)(1)(C). (ER: 89-92)
On May 20, 2014, Steidell withdrew his not guilty plea and pled
guilty to the charges stated in the Superseding Indictment. (ER: 73,74) The
District Court entered judgment and sentence on September 10, 2014. Steidell
was sentenced to170 months imprisonment to be served consecutive to his
state sentence of 80 months. (ER: 26-32, 69,70)
Steidell filed a notice of appeal from the judgment and sentence
on September 18, 2014. (ER: 1)
C. Bail Status
Appellant Steidell is presently in custody serving his state
sentence at the Honolulu Federal Detention Center. His release date is
unknown at this time since he has not commenced his federal sentence.(ER:
57, 94, 95)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 12 of 77
13
III.
STATEMENT OF THE FACTS
In July 2011, a confidential informant (“CI”) reported to
investigators from Homeland Security Investigations, Immigration and
Customs Enforcement, and Drug Enforcement that Jonathan Long (“Long”)
distributed ecstasy in Hawaii. The CI participated in controlled drug
transactions with Long where Long sent large quantities of ecstasy from
California to the CI in Hawaii. Upon Long’s arrest he agreed to cooperate
and identified CHO as his source of supply. (PSR ¶ 11) Long then became a
cooperating defendant (“CD”).
On February 05, 2012, Long (now the CD), contacted CHO to
coordinate delivery of funds to purchase 1000 tablets of ecstasy and paid
CHO $2800. On February 12, 2012, the CD contacted CHO to complete the
transaction; however CHO told the CD that he had to obtain the tablets from
a different supplier so additional money would be required. CHO provided
the CD with 1000 tablets of ecstasy in exchange for the additional $700.
After laboratory analysis CHO distributed 971 tablets weighing 302.1 grams
MDMA. (emphasis added) (PSR ¶ 13)
On August, 7, 2012, the CD, along with a Homeland Security
Investigations undercover agent (“UC”) met with CHO to pick up 1000
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 13 of 77
14
tablets of ecstasy. The CD (Long) introduced the UC to CHO. CHO and the
UC made verbal arrangements to meet later so CHO could provide the UC
with an additional 5000 tablets of ecstasy from his source of supply in
Riverside, CA. (emphasis added)(CCA ¶ 5; ER: 6-8) Subsequent laboratory
analysis established that CHO distributed 1055 tablets weighing 207.1 grams
of BZP. (PSR ¶14)
While waiting to pick up these additional 5000 tablets of
ecstasy, CHO explained to the UC that “his guy” (later identified as Steidell)
was waiting on another person to bring the dope over. (CCA ¶8) This person
was identified to be BELL. (ER: 8)
The UC handed CHO $15,000 for the 5000 tablets. (CCA ¶10).
While the UC was waiting, CHO exchanged numerous text messages with
the UC and in one message told the UC that Steidell was willing to sell an
additional ‘boat’ (street name for 1000 tablets of ecstasy) for $2000. (CCA
¶11)
During these text messages, CHO told the UC not to tell
Steidell that he was from Hawaii and that they had met through Long, the
CD. Just prior to the UC leaving the parking lot, Cho stated through text to
the UC that he told Steidell that the UC was “his Hawaii guy” so the UC
would not have to lie about who he was. (CCA ¶12)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 14 of 77
15
After Steidell placed a Ziploc bag in front of the UC with
approximately 1000 tablets, CHO then introduced the UC to Steidell. The
UC tried to pay Steidell $2000; however he was told he doesn’t have that
‘boat’ but will get it the next day and to hold onto the money until then.
(CCA ¶18)
TRUJILLO and BELL (CHO calls him ‘Cash’) are now present
in the kitchen with CHO and Steidell as he placed five (5) baggies
containing ecstasy tablets on the kitchen island. This purchase of the 5000
tablets of ecstasy was from Steidell, CHO, BELL, and TRUJILLO. (ER: 7)
After departing Steidell’s residence, CHO told the UC that
Steidell doesn’t do small orders and has a minimum of 5000 pills for ecstasy
and four (4) ounces for cocaine. (CCA ¶ 22)
August 10, 2012, CHO sent series of text messages to the UC to
discuss the planned shipment of 1000 tablets of ecstasy from California to
Hawaii. (PSR ¶21)
The UC wanted more pills than he could get on August 07,
2012; therefore the UC had an agreement with CHO to have more ecstasy
tablets shipped to Hawaii. According to CHO’s testimony at his change of
plea hearing on February 12, 2012, the only way for the agent to get in
contact with the information regarding the shipment of more tablets to
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 15 of 77
16
Hawaii was to go through CHO. CHO would text the UC with the
information needed for the shipment of ecstasy to Hawaii. CHO further
testified that he gave Steidell the information of where to ship the tablets in
Hawaii. Steidell packaged and mailed the shipment of additional 1000
tablets to the UC based on CHO’s information. (ER: 81, 82) After
laboratory analysis the parcel contained 997 tablets containing BZP; weight
not noted. (PSR ¶21)
During subsequent recorded conversations with CHO, the UC
suggested possibly obtaining all of the drugs he needed from Steidell.
However, CHO attempted to convince the UC to purchase
methamphetamine from CHO by stating that he had access to multiple
sources of supply that could supply high quality methamphetamine. (PSR
¶21a)
The UC advised Steidell that methamphetamine was the ‘big
money maker’ in Hawaii; however Steidell replied that the quality of
methamphetamine in their area of California was poor, so he would not sell
any methamphetamine to the UC until good quality was available. (PSR ¶
19) Steidell did not purchase, sell or distribute methamphetamine. (ER: 9,
85, 86)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 16 of 77
17
The court asked CHO during his change of plea hearing
concerning the transaction on September 14, 2012 with the UC, “And the
$30,000 that the agent gave to you and to Mr. Steidell was in exchange for
what?” CHO responded: “It was for the ecstasy…” The court confirmed that
it was for the 10,000 tablets of ecstasy. After testing there were 8,030 tablets
with active BZP. (ER: 85) This transaction for the ecstasy took place at
CHO’s residence in his living room. (ER: 83, 84)
CHO produced the methamphetamine the next day. (ER: 9)
CHO admitted during his change of plea hearing that he was the one that
purchased and sold the methamphetamine to the UC in September 2012. The
UC called CHO and told him he was outside his home. CHO went out and
gave him four (4) bags of methamphetamine. CHO told the court how he
acquired the methamphetamine by stating, “Basically I had to make phone
calls and was like to pick it up---I just basically had to go pick it up. I picked
it up and dropped it off.” The court asked CHO if he picked it up from
Steidell. CHO responded, “No, it was another person who sells
methamphetamine. Someone I set up—someone who I started being in
contact with.” (ER: 9, 85, 86)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 17 of 77
18
The laboratory results for the methamphetamine that CHO sold
to the UC was gross weight of 128.7 grams at 93% purity of
methamphetamine. (ER: 86)
CHO further testified that he was a middleman and would make
a profit. “...whatever transaction that transpired between them I would get a
cut. I would get paid for it basically.” (ER: 87) It was unclear the meaning
of ‘them’ as it could have been Steidell, BELL, and CHO dealing with the
UC or any other customers or suppliers.
The UC had set up another transaction for the purchase of
50,000 tablets of ecstasy from Steidell, CHO, BELL, and TRUJILLO. Since
Steidell had been arrested for a state charge on November 26, 2012, the UC
contacted CHO. CHO said he had to contact TRUJILLO to set up the deal.
(ER: 9,10)
On December 7, 2012, BELL was arrested. The next day CHO
was arrested, then later in the day TRUJILLO was arrested. CHO decided to
cooperate and called TRUJILLO concerning the agreed upon purchase of
ecstasy. TRUJILLO said that they did not have the entire amount to give the
UC (they referred to the UC as Hawaii), but she said that there were 6,000
tablets in a storage locker controlled by Steidell’s father. TRUJILLO then
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 18 of 77
19
directed CHO to contact Mr. Steidell Sr. to get the key to the storage locker
and pick up the tablets to provide to the UC. (ER:10, 11)
At the time of TRUJILLO’s arrest she waived her rights and
answered questions. However her only statement was that she was dating
Steidell and knew that he had been arrested on charges of fraud. At the time
of her arrest there were several incoming calls for TRUJILLO; she had
approximately five (5) telephones. At that point TRUJILLO ended her
cooperation with the agents. (ER: 11)
Mr. Steidell Sr. gave the agents permission to search his storage
unit. It had already been established by the investigators that TRUJILLO
was part of the conspiracy to distribute ecstasy. Steidell tried to downplay
TRUJILLO’s part by claiming that she was trying to raise money for his
defense, but indicated that she did have knowledge of what was in the
storage unit. It was indicated by Mr. Steidell Sr. that the contents of his unit
belonged to his son, Steidell. Steidell lived in Riverside and the storage unit
was located in Morena Valley. (ER: 16)
The unit was filled with many items in an unorganized manner.
The agents found four bags of yellow pills and three bags of purple pills
inside a Huggies box. Inside a Coach bag were approximately 66 capsules of
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 19 of 77
20
unknown narcotic. There was also a .40 Ruger caliber pistol inside the box
(ER: 12-15)
The pills were organized as an exhibit as follows: line item 1 –
approximately 4000 yellow ecstasy pills; line item 3 were 66 capsules; line
item 8 were the purple pills. Homeland Security Investigations was not
permitted to retain seized narcotics so they were turned over to Customs and
Border Protection to hold for trial. The seized pills were sent for analysis.
The only items that contained controlled substances were the
purple pills in line item 8. There were approximately 2569 purple pills; only
three pills were tested. All of the pills in item 8 were subsequently
destroyed. Ms. Lisa Leung, an officer with the U.S. Customs and Border
Protection, who was in charge of preserving the evidence inadvertently had
the evidence destroyed approximately April 13, 2013. (ER:17-25)
These purple pills were the basis for Count 5 of the Superseding
Indictment against only Steidell, even though CHO and TRUJILLO were
involved in trying to get these pills to sell to the UC. This Superseding
Indictment was filed February 5, 2014, approximately ten (10) months after
the evidence was destroyed by the government and prior to Steidell pleading
guilty to this charge on May 20, 2014. (ER: 4, 33) It is unknown whether or
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 20 of 77
21
not Steidell knew the evidence to support this charge was destroyed at the
time he pled guilty or even at his sentencing on September 9, 2014.
The Motion to Suppress Evidence filed by TRUJILLO was
heard on September 11, 2014. (ER: 4)This was after Steidell was sentenced.
He had no opportunity to object to being sentenced for drugs destroyed by
the government and no longer available for anyone to dispute or have
separately analyzed. Additionally, there was no mention in the PSR that was
prepared on August 26, 2014, that this evidence was destroyed.
When BELL was arrested investigators recovered a Glock 19,
9mm semi-automatic pistol from his vehicle. From his master bedroom
closet investigators recovered a loaded Taurus “Judge” revolver and a small
loaded EIG revolver. In BELL’s storage unit the investigators recovered an
Intra-Tec-9 semi-automatic machine pistol with a magazine and
ammunition; a Browning .22 caliber pistol with a magazine; heat seal bags;
packaging material; pill pressing equipment and a cocaine kilo press. (PSR
¶¶25, 26)
BELL admitted to distributing marijuana through another
source of supply, and having multiple offers to work for the Mexican Drug
cartel. BELL also admitted that he traded narcotics for the firearms and used
the weapons for protection. (PSR ¶27)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 21 of 77
22
The investigators executed a search warrant on CHO’s
residence and recovered jars of purple colored tablets and cocaine. They
recovered miscellaneous documents, a digital scale with residue, a small safe
of money, and guitar case filled with money. Subsequent laboratory analysis
of the recovered drugs established 34.1 grams of MDMA2 and 17.6 grams of
cocaine. CHO identified his cocaine source and it was not Steidell. (PSR ¶¶
28, 29)
The PSR contained information obtained from co-defendants
CHO, BELL, and TRUJILLO that incriminated Steidell; however there was
no evidence to support any of these hearsay statements by the co-defendants.
Steidell was young and had a tendency to boast and brag; however there was
no evidence to support any of his exaggerated characterizations of his drug
dealings or activities. There was no mention of a search of Steidell’s
residence or of any evidence found to support the hearsay statement by co-
defendants. (ER: 54)
On February 12, 2014, CHO pled guilty without a plea
agreement to Counts 1, 2, and 3 of the Superseding Indictment. (ER: 88) On
November 7, 2014, CHO was sentenced to 46 months. (ER: judge)
2 This drug found in CHO’s residence was included in the total drug quantity for determining the offense level 32 against Steidell .
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 22 of 77
23
On June 4, 2014, BELL pled guilty pursuant to a plea
agreement to Count 1 of the Superseding Indictment; Count 4 was dismissed
which charged a violation of USC 18 § 924(c)(1)(A). BELL pled guilty to
Count 1 under CR.NO. 14-00546DKW for violation of 18 USC §§922(g)(1)
and 924(a)(2). On September 17, 2014, BELL was sentenced to 64 months
for each count to run concurrently. (ER: 112 -119)
On September 26, 2014, TRUJILLO pled guilty pursuant to a
plea agreement for Count 1 of the Superseding Indictment. Her sentencing
hearing is scheduled for January 2015. (ER: 120-122)
On May 20, 2014, Steidell pled guilty during his change of plea
hearing for Counts 1,2,3, and 5 of the Superseding Indictment. (ER: 73, 74)
On September 9, 2014, Steidell was sentenced to 170 months as to each of
Counts 1, 2, 3, and 5 to run concurrently, but consecutive to the state of
California case number SCD 244487 which was for 80 months. (ER: 69, 70;
PSR ¶60) Steidell’s state convictions did not involve any drug charges.
The U.S. Marshal took custody of Steidell from the California
state prison where he was serving his sentence of 80 months pursuant to a
Writ of Habeas Corpus Ad Prosequendum. This Writ stated that custody
would remain with the U.S. Marshall until the termination of criminal
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 23 of 77
24
charges pending which at that point Steidell was to be returned to the
custody of Wasco State Prison. (ER: 94,95)
IV.
ARGUMENT
A. STEIDELL WAS ENTRAPPED BY A GOVERNMENT
UNDERCOVER AGENT TO COMMIT A CRIME WHICH
SIGNIFICANTLY INCREASED HIS SENTENCE
1. Standard of Review
The Court reviews the district court's sentencing decisions for
abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586,
169 L. Ed. 2d 445 (2007); United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). The Court reviews the legality of a sentence de novo.
United States v. Garcia Guerrero, 635 F.3d 435, 438 (9th Cir. 2011).
Steidell objected to the PSR determinations of various aspects
of drug types and quantities; however there was no specific objection to
sentence entrapment. Where a defendant fails to raise an objection to a
sentencing error in the district court, the Court reviews for plain error.
United States v. Bonilla-Guizar, 729 F.3d 1179, 1187 (9th Cir. 2013); Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S. Ct.
1770, 123 L. Ed. 2d 508 (1993).
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 24 of 77
25
"Before an appellate court can correct an error not raised at
trial, there must be (1) error, (2) that is plain, and (3) that affects substantial
rights. If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings." United
States v. Lillard, 354 F.3d 850, 855 (9th Cir. 2003)
2. Summary of Argument
Sentence entrapment involves a government agent using a sting
operation to trap a person known to be involved in some type of illegal drug
activity to produce a larger quantity of drugs to increase the sentence. This is
exactly what happened to Steidell.
Steidell was a small time supplier of ecstasy in the California
area only. He dealt with several people who were distributing ecstasy and
producing ecstasy, including CHO and BELL and TRUJILLO.
Steidell was erroneously charged and convicted of possession
and distribution of methamphetamine. There was no evidence to show that
Steidell had ever dealt with methamphetamine. There was only evidence that
Steidell was involved with ecstasy.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 25 of 77
26
The UC brought up the idea of selling methamphetamine to
Steidell when the UC told Steidell that methamphetamine was the ‘big
money maker’ in Hawaii. However, Steidell did not jump on the suggestion
to distribute methamphetamine, but instead he tried to stay away from that
drug by explaining to the UC that the quality of methamphetamine in their
area of California was poor, so he would not sell any to the UC. (PSR ¶ 19)
If Steidell had the inclination or intent to sell methamphetamine
in Hawaii he would have immediately seized that opportunity at the
suggestion by the UC. However, that did not happen. In fact, Steidell
discouraged the UC from buying methamphetamine from him. Steidell
specifically avoided any pretense that he had the intent or capability to get
involved with methamphetamine.
Steidell was interested in distributing ecstasy to the Hawaii
market; therefore when the UC wanted to increase his purchases of ecstasy
from CHO and Steidell, he did agree. Steidell worked with CHO and the UC
to set up the deal for the 10,000 tablets of ecstasy that was delivered on
September 14, 2012, at CHO’s residence in California. That same deal also
included the transaction for the methamphetamine; however Steidell was not
involved in that transaction. Steidell said he set up the deal that included the
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 26 of 77
27
ecstasy and methamphetamine, but he had nothing to do with the
methamphetamine. (ER: 72)
The day after the transaction involving the ecstasy, CHO alone
met with the UC again at his home, to personally deliver the
methamphetamine to the UC. CHO testified at his change of plea hearing
that he was the person that purchased the methamphetamine from his
supplier, picked it up, and delivered it to the UC. CHO also testified that he
gave the ecstasy tablets to the UC the day before, not Steidell. (ER: 79,
85,86)
The government set up a sting operation to entice Steidell into
selling more drugs and different drugs in order to increase his sentence.
Steidell was never involved in the methamphetamine transaction other than
to include it with the sell of the ecstasy negotiated by CHO and Steidell.
However, Steidell was charged with possession and distribution of the
methamphetamine and his sentence was significantly enhanced. With those
charges for the methamphetamine his sentence now included a mandatory
minimum sentence of ten years and his offense level jumped to level 32
from a possible level 26 or 28, depending on the quantity of drugs included
from the conspiracy from Count 1.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 27 of 77
28
In order to increase Steidell’s sentence the government
entrapped him into selling methamphetamine, a drug that he neither had the
intent to sell nor the capability to obtain. Steidell was the subject of the
classic scenario of sentence entrapment by the government.
3. Legal Analysis
"Sentencing entrapment occurs when a defendant is predisposed
to commit a lesser crime, but is entrapped by the government into
committing a crime subject to more severe punishment." United States v.
Schafer, 625 F.3d 629, 639 (9th Cir. 2010) quoting United States v. Mejia,
559 F.3d 1113, 1118 (9th Cir. 2009). The defendant must show that the
government participated in "outrageous official conduct which caused the
individual to commit a more significant crime for which a greater penalty
attaches." Schafer at 640 quoting United States v. Si, 343 F.3d 1116, 1128
(9th Cir. 2003).
The underlying principle is that it is impermissible for the
government to "structure sting operations in such a way as to maximize the
sentences imposed on defendants" without regard for the defendant's
culpability or ability to commit the crime on his own. United States v.
Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994).
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 28 of 77
29
The burden is on the defendant to show, by a preponderance of
the evidence: 1) the lack of intent to produce the quantity of drugs; and 2)
the lack of capability to produce the quantity of drugs. See United States v.
Naranjo, 52 F.3d 245, 250 n.13 (9th Cir. 1995).
a. Steidell Lacked The Intent to Produce
Methamphetamine
The record was void of any evidence that Steidell had a history
of selling methamphetamine. Additionally, there was no evidence found in
his home or storage unit indicating Steidell had ever possessed or distributed
methamphetamine. (ER: 13-15)
Steidell had a tendency to boast and brag as reported in the PSR
where Steidell asked the UC what else he could ‘use’ in Hawaii. The UC
understood that to mean that Steidell was asking what other drugs the UC
would like to distribute. There was no evidence to support the UC’s
conclusion that Steidell was asking about other drugs to distribute in Hawaii
other that the ecstasy, and in particular Steidell made no mention of
methamphetamine.
The UC brought up the idea of selling methamphetamine to
Steidell when the UC advised Steidell that methamphetamine was “the big
money maker” in Hawaii. Steidell responded to the UC’s suggestion that he
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 29 of 77
30
sell him methamphetamine by stating that “…the quality of
methamphetamine in their area of California was poor, so he would not sell
any methamphetamine to the UC ….” (PSR ¶ 19)
The UC suggested to CHO that he could obtain all the drugs he
needed from Steidell. However, CHO attempted to convince the UC to
purchase methamphetamine from CHO, by stating that “he had access to
multiple sources of supply, who could supply high quality
methamphetamine.” (PSR ¶21a)
During discussions between CHO and the UC after the
transaction on August 7, 2012, nothing was ever mentioned by CHO that
Steidell distributed methamphetamine. CHO bragged to the UC that Steidell
did not do small orders for narcotics and had a minimum of 5000 pills for
ecstasy and four ounces for cocaine. 3(CCA ¶22) Based upon conversations
between CHO and the UC, if Steidell had ever distributed methamphetamine
CHO most likely would have bragged about that fact in order to impress the
UC and open another area for business with the UC and the Hawaii market.
There was no evidence of any such conversations.
3 There was no evidence that Steidell supplied or distributed cocaine.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 30 of 77
31
b. Steidell Lacked The Capability to Produce
Methamphetamine
The last time that Steidell was actually personally involved in
any drug transaction occurred on September 14, 2012, in CHO’s home.
CHO and Steidell met with the UC for the transaction involving the 10,000
tablets of ecstasy. The UC handed the money to someone - CHO’s
testimony is unclear concerning whether the UC (he called him Reyn) came
first and then handed Cho the money or if Steidell came first. CHO did not
clarify who actually took possession of the $30,000, only that it exchanged
hands in his living room. (ER: 83)
During CHO’s Change of Plea hearing on February 12, 2014,
the court stated that “…when the agent (UC) handed you and Mr. Steidell
the money, you in turn gave him the 10,000 tablets of ecstasy?” Cho
responded yes. (ER: 83-85)
The transaction involving the methamphetamine did not take
place that same day or with Steidell present. According to the PSR, the UC
contacted CHO on September 14, 2012, to pick up the 4 ounces of
methamphetamine, not Steidell. The next day, September 15, 2012, CHO
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 31 of 77
32
met the UC at his residence gave the UC four (4) bags of methamphetamine.
(ER: 85, 86; PSR ¶ 23)
Additional proof that Steidell was not involved in the
distribution of the methamphetamine was found in the testimony on
September 11, 2014, by Todd James Nerlin, special agent with Homeland
Security Investigations (“Nerlin”), at the hearing regarding the destruction of
drug evidence by the government. 4 Nerlin was able to testify concerning
conversations and events involving the undercover agent (UC) in this case
because the UC was wearing a wireless transmitter and recorder. (ER: 6, 8)
Nerlin testified that on September 14, 2012, the UC purchased 10,000 tablets
of ecstasy from Steidell and CHO. Nerlin further testified that “… the next
day, September 15th, Mr. Cho produced four ounces of methamphetamine.
(ER: 9)
During CHO’s change of plea hearing on February 12, 2014, he
confessed that he was the one that was distributing the methamphetamine as
shown by his testimony as follows:
Court: How did you come to acquire that methamphetamine?
4 The evidence that was destroyed by the government was confiscated from Mr. Steidell Sr.’s storage locker where his son, Steidell, had stored various items including the destroyed ecstasy tablets.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 32 of 77
33
CHO: Basically I had to make phone calls and it was like pick it up….I just basically had to go pick it up. I picked it up and then just dropped it off. Court: And you picked it up from Mr. Steidell? CHO: No, it was another person who sells methamphetamine. Someone I set up… (emphasis added). Court: Someone who what? CHO: Someone who I started being in contact with. (ER: 85, 86) The information in the PSR contradicts CHO’s testimony by
claiming that CHO confirmed the drugs were from “Dave’s (Steidell’s
boy)(PSR ¶23)
Additional testimony on February 2014, during CHO’s change
of plea hearing, the Court asked CHO to explain why he was guilty of
Counts 2 and 3 (possession and distribution of methamphetamine) he
testified that, “…regarding the methamphetamine, I was kind of like a
liaison---like a messenger. I got it and then gave it to the agent.” (ER: 79)
On May 20, 2014, during Steidell’s change of plea hearing the
following testimony between the Court and Steidell confirms that Steidell
did not have anything to do with the distribution or procurement of the
methamphetamine. For the transaction on September 15, 2012, the court
stated:
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 33 of 77
34
Court: And you gave the four ounces of methamphetamine to your co-defendant, Mr. Cho, to pass on to the undercover agent? Steidell: No, that’s incorrect. (emphasis added) Court: How did that come about then? Steidell: You know what Your Honor, I have no idea how he acquired them. I set up the deal, but I have no idea how he acquired the methamphetamine. …….. Court: But Mr. Cho, your co-defendant, was the one who actually handed over the narcotic to the undercover officer. Steidell: As far as I understand, yes. Court: And you have no idea where he got that from? Steidell: No, Your Honor. (ER: 72)
Steidell was coerced into setting up the deal for the
methamphetamine with the UC; however as testified by both CHO and
Steidell, he had nothing to do with buying or selling that drug to the UC.
There is no evidence to suggest that Steidell had ever possessed or
distributed methamphetamine. However, his sentence was greatly enhanced
by the distribution of the methamphetamine by CHO.
In United States v. Yuman-Hernandez, 712 F.3d 471, 474 (9th
Cir. 2013), the court stated that "the capability to sell a certain quantity of
drugs has concrete contours: the defendant either can or cannot procure or
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 34 of 77
35
produce the amount in question. Similarly, the capability to purchase a given
amount often turns on the defendant’s financial resources."
Steidell has shown both elements for sentence entrapment. See,
e.g., United States v. Naranjo, 52 F.3d at 249-51 (finding that the defendant
"had neither the intent nor the resources to engage" in a higher quantity drug
sale). Steidell did not intend or have the capability to buy and sell
methamphetamine to the UC.
In United States v. Cortes, 732 F.3d 1078 (9th Cir 2013), the
Court explained that "[S]entencing entrapment occurs where 'a defendant,
although predisposed to commit a minor or lesser offense, is entrapped in
committing a greater offense subject to greater punishment.'" United States
v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010) (quoting United States v.
Staufer, 38 F.3d at1106).
"[I]t is impermissible for the government to 'structure sting
operations in such a way as to maximize the sentences imposed on
defendants' without regard for the defendant's culpability or ability to
commit the crime on his own." United States v. Schafer, 625 F.3d at 640,
(quoting Staufer, 38 F.3d at 1107).
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 35 of 77
36
c. The District Court’s Determination of Steidell’s
Offense Level Was Error Which Was Clear
An error is plain if it is "contrary to the law at the time of
appeal . . . ." United States v. Mejia, 559 F.3d at 1115. Johnson v. United
States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997).
According to Alleyne v. United States, 133 S.Ct. 2151, 186
L.Ed. 2d 314 (2013), mandatory minimum sentences increase the penalty for
a crime. It follows, then, that any fact that increases the mandatory minimum
is an “element” that must be submitted to the jury. Id. at 2156.
Facts that increase the mandatory minimum sentence are
elements and must be submitted to a jury and found beyond a reasonable
doubt. Id at 2160. Steidell contends that raising his mandatory minimum
sentence based on a sentencing judge’s finding that he possessed and
distributed methamphetamine violates his Sixth Amendment.
“It is indisputable that a fact triggering a mandatory minimum
alters the prescribed range of sentences to which a criminal defendant is
exposed.” Alleyne at 2161 citing Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000). “Apprendi's definition of
"elements" necessarily includes not only facts that increase the ceiling, but
also those that increase the floor. Both kinds of facts alter the prescribed
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 36 of 77
37
range of sentences to which a defendant is exposed and do so in a manner
that aggravates the punishment. Facts that increase the mandatory minimum
sentence are therefore elements and must be submitted to the jury and found
beyond a reasonable doubt.” Alleyne v. United States, 133 S.Ct. at 2158.
d. The Error Affected Steidell’s Substantial Rights
and Was Prejudicial
A defendant must show that the alleged error was "'prejudicial,'
which means that there is a reasonable probability that the error affected the
outcome.” United States v. Marcus, 560 U.S. 258, 130 S. Ct. 2159, 2164,
176 L. Ed. 2d 1012 (2010).
The error affected Steidell’s substantial rights. Steidell’s
offense level was substantially increased due to the charge of possession and
distribution of methamphetamine. Not only was his offense level increased,
but also the charges for the methamphetamine (Counts 2 and 3), triggered a
mandatory minimum sentence of 10 years. The one time distribution of
methamphetamine of September 15, 2012, increased the total base offense
level to 32 based on a marihuana equivalency of 2,634.97 kg. . However, if
the methamphetamine were eliminated then the total marihuana equivalency
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 37 of 77
38
would be 416.97 kg. with an offense level of 28. 5
Steidell was not involved in any transaction that involved
MDMA and in particular, the MDMA found in the possession of co-
defendant CHO after his arrest.6 If the 34.1 grams of MDMA were deducted
from the total net weight of the drugs confiscated and attributed to Steidell,
then his total marijuana equivalency would be less than 400 kg for an
offense level of 26. (PSR ¶ 35, 43, 46; USSG §2D1.1(c)). The addition of
the two (2) Counts for the methamphetamine resulted in a significant
difference in the possible guideline range for sentencing and enhanced his
sentence with a mandatory minimum sentence of at least 10 years.
When sentencing entrapment occurs, "the amount of drugs used
in calculating the defendant's sentence should be reduced by the amount that
'flows from the entrapment.'" United States v. Briggs, 623 F.3d at 729.
Pursuant to Application Note 5 of the 2013 U.S.S.G. § 2D1.1, it
states that if “…the defendant establishes that the defendant did not intend
to provide or purchase, or was not reasonably capable of providing or
purchasing, the agreed-upon quantity of the controlled substance, the court
5 This total drug quantity included the 34.1 grams of MDMA found in CHO’s residence on December 8, 2012, after his arrest and search. 6 Steidell was charged in Count 5 of the superseding indictment for ecstasy tablets found in the storage unit; however that amount was not included in the conspiracy whereas the MDMA found in CHO’s residence was included.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 38 of 77
39
shall exclude from the offense level determination the amount of controlled
substance that the defendant establishes that the defendant did not intend to
provide or purchase or was not reasonably capable of providing or
purchasing.”
e. Seriously Affected Integrity of Judiciary
The district court’s sentencing violated Steidell’s Sixth
Amendment in light of Alleyne, in which the jury must determine the type
and drug quantity involved in the offense if the drug type and/or quantity
increases the statutorily prescribed minimum sentence. See United States v.
Cortes, 732 F.3d at 1088, 1090-91. “It is a miscarriage of justice to give a
person an illegal sentence…” United States v. Paladino, 401 F.3d 471, 483
(9th Cir 2005). An acknowledged violation of the Constitution would
undermine the fairness, and integrity of the judicial process.
Steidell forfeited many of his constitutional rights when he pled
guilty without the benefit of a jury determining beyond reasonable doubt the
type and quantity of drugs charged. By including the methamphetamine that
the government UC entrapped Steidell into distributing via the conspiracy
allegation with CHO, the district court sentenced Steidell pursuant to an
erroneous offense level and Guideline range.
The Court held in United States v. Staufer, 38 F.3d at1107, that
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 39 of 77
40
where the government induced a target to sell far more of a controlled
substance than had formerly been within his practice or resources, that
sentence entrapment applied and a downward departure was authorized. The
Court also stated that “ law enforcement agents should not be allowed to
structure sting operations in such a way as to maximize the sentences
imposed on defendants.” Id.
The Court in Staufer recognized the "unfairness and
arbitrariness of allowing drug enforcement agents to put unwarranted
pressure on a defendant in order to increase his or her sentence." Id. at 1107.
“A material error in the district court's calculation of the
appropriate Guidelines range requires a remand for resentencing, unless the
error was harmless.” United States v. Calderon Espinosa, 569 F.3d 1005,
1008 (9th Cir. 2009) See United States v. Cantrell, 433 F.3d 1269, 1279-80
(9th Cir. 2006). In those cases where sentencing entrapment occurs, the
amount of drugs used in calculating the defendant's sentence should be
reduced by the amount that 'flow[s] from [the] entrapment.'" Briggs, 623
F.3d at 729 (quoting United States v. Naranjo, 52 F.3d at 250). Significantly
increasing a sentence is not harmless.
Similarly, in this case Steidell’s sentence must be vacated and
remanded for resentencing.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 40 of 77
41
B. THE DISTRICT COURT ERRONEOUSLY FOUND THAT
STEIDELL WAS A LEADER AS EVIDENCE FAILED TO
DEMONSTRATE THAT STEIDELL HAD THE REQUISITE
CONTROL OVER OTHERS
1. Standard of Review
A district court's determination that a defendant was an
"organizer or leader" for purposes of enhancement under U.S.S.G. §
3B1.1(c) is reviewed for clear error. United States v. Lopez-Sandoval, 146
F.3d 712, 716 (9th Cir 1998) citing United States v. Ponce, 51 F.3d 820, 826
(9th Cir. 1995).
The district court's interpretation of the Guidelines is reviewed
de novo and its factual findings for clear error. United States v. Cantrell,
433 F.3d at 1279.
2. Summary of Argument
The government and the court relied on information contained
in the PSR in order to conclude that Steidell was the leader of the
conspiracy. There was only one charge that related to the conspiracy of more
than just Steidell and CHO and that was Count 1 of the Superseding
Indictment. Counts 2 and 3 involved Steidell and CHO only. Count 4 was
BELL only for his possession of firearms in relation to drug trafficking.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 41 of 77
42
Count 5 referred to Steidell only for the ecstasy found in the storage unit that
was later destroyed by the government.
There was no evidence in the record to support the government
or court’s allegations that Steidell was the leader. The government and court
relied upon hearsay statements in the PSR by CHO and BELL. These
hearsay statements were made after their arrests and most likely made to
place any blame upon Steidell and take some of the government’s focus off
themselves and eventually help reduce their sentences, i.e. self-serving
statements.
This was not an organized conspiracy for a large scale
distribution of drugs. Count 1 was a conspiracy charge with Steidell, CHO,
BELL, and TRUJILLO listed as co-conspirators. Count 2 stated that CHO
and Steidell conspired together to possess and distribute methamphetamine.
However, as evidenced by CHO’s testimony at his change of plea hearing,
he admitted that he alone make arrangements, purchased, and sold the
methamphetamine to the UC. (Refer to arguments above in Section A)
Count 1 of the Superseding Indictment alleged the following transactions for
ecstasy:
1. August 7, 2012, CHO sold 1000 ecstasy tablets to the UC;
2. August 7, 2012, CHO, Steidell, BELL, and TRUJILLO sold
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 42 of 77
43
4927 tablets containing BZP to the UC;
3. August 10, 2012, CHO sent messages to the UC regarding
impending shipment of ecstasy to Hawaii;
4. August 14, 2012, the UC received a parcel in Hawaii containing
997 tablets BZP sent by Steidell;
5. September 14, 2012, CHO and Steidell sold 8030 tablets
containing BZP to the UC;
6. October 9, 2012, Steidell called the UC in Hawaii to discuss the
sale of ecstasy. (ER: 90)
There was no evidence in the record to support the
government’s allegations that Steidell was the decision maker for the
charged conspiracy in Count 1 or Count 2, or that he had control or authority
over the other co-conspirators. The evidence does show that CHO made
most of the decisions regarding the distribution of the ecstasy and had
complete control over the possession and distribution of methamphetamine.
CHO was the most active participant of the co-conspirators and
appeared to make many of the important decisions, such as when and where
to distribute the ecstasy to the UC in California and Hawaii. CHO testified
that Steidell only mailed the package to Hawaii as directed by CHO; Steidell
did not obtain the ecstasy that was contained in the package sent to Hawaii
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 43 of 77
44
according to CHO.
Count 5 only charged Steidell with possession with intent to
distribute ecstasy; however once he was incarcerated in November 2012,
TRUJILLO and CHO tried to get the drugs to send to the UC. These drugs
were later destroyed by the government in April 2013.
The facts taken from the criminal complaint filed in this case,
CHO’s change of plea hearing, and the testimony from the government
agent at the motion to suppress evidence together prove that the allegations
of leadership against Steidell are in error. Steidell was not the leader or even
a major player in any charged conspiracy.
The record cannot support the court’s two point role adjustment
as leader for Steidell. The record is totally absent of any facts that show
Steidell had control over any of the other co-defendants. These were four (4)
separate individuals working together on a few drug transactions without
any apparent leader. Furthermore, from codefendant statements it appeared
each had their own agenda and side occupations dealing or supplying other
or similar drugs. If anyone could be considered a leader it would have been
CHO. Seidel was not a leader of any of the co-defendants.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 44 of 77
45
3. Legal Analysis
The Sentencing Guidelines allow for a two-level role
enhancement if a defendant is an "organizer, leader, manager, or
supervisor." U.S.S.G. § 3B1.1(c). A court may impose this enhancement if
there is "evidence that the defendant exercised some control over others
involved in the commission of the offense or was responsible for organizing
others for the purpose of carrying out the crime." United States v. Whitney,
673 F.3d 965, 975 (9th Cir. 2012) quoting United States v. Ingham, 486 F.3d
1068, 1074 (9th Cir. 2007)
This renders conduct which may have been integral to the
success of the criminal enterprise, see United States v. Harper, 33 F.3d 1143,
1151 (9th Cir. 1994), or conduct that reflects a high degree of culpability,
United States v. Hoac, 990 F.2d 1099, 1111 (9th Cir. 1993), insufficient to
support a leadership enhancement unless the defendant also exercised the
requisite control over others.
It is not necessary that the district court make specific findings
of fact to justify the imposition of the role enhancement. Lopez-Sandoval,
146 F.3d at 717. There must, however, be evidence in the record that would
support the conclusion that the defendant exercised the necessary level of
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 45 of 77
46
control. In this case, the evidence is lacking in the record to justify an
enhancement under U.S.S.G. § 3B1.1(c).
The PSR stated the following facts to support the two (2) level
adjustment for leadership role for Steidell: “In this case, the defendant
instructed Bell as to which chemicals to order and paid him between $9,000
and $10,000 per order. Bell estimated that he distributed at least “twenty
boats” (20,000 pills) of ecstasy for the defendant, which included deliveries
to Cho. The defendant negotiated the drug transactions with the UC, and
also coordinated the shipping of drug parcels. As the defendant exercised
decision-making authority, handled all of the money during drug
transactions, collected a larger share of the drug proceeds and was in
possession of the drugs, a 2-level adjustment is warranted for a leadership
role.” (PSR ¶ 50)
Co-defendants CHO and BELL provided the information stated
in the PSR. These hearsay statements were taken after their arrest in order to
place the blame on Steidell to take the emphasis away from them.
The government argued at the sentencing hearing for the
leadership enhancement for Steidell stating similar reasons as found in the
PSR. However, as will be shown there was no evidence in the record to
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 46 of 77
47
support either the conclusions in the PSR or the statements made during the
sentencing hearing by the government or by the court.
Allegation of Decision Making
The government alleged as the first factor to show leadership of
decision making authority that because the transaction on August 7, 2012,
for the additional 5000 tablets (after the purchase from CHO earlier that
same evening) occurred at Steidell’s residence and that Steidell directed
BELL to bring those drugs that proves Steidell had decision making
authority. (ER: 35, 36)
However, there was no evidence in the record that Steidell had
any authority over CHO or BELL or that Steidell ‘directed’ BELL to deliver
the drugs to him. If Steidell received drugs from BELL to supply to CHO
then he is not a leader but one of CHO’s suppliers or working together with
all the co-defendants to complete the transaction.
The affidavit in support of the criminal complaint filed under
seal December 4, 2012, charging all four (4) co-defendants – Steidell, CHO,
TRUJILLO, and BELL with the criminal acts on August 7, 2012, stated the
following:
“On August, 7, 2012, Long, (the Cooperating Defendant (“CD”), along with a Homeland Security Investigations undercover agent (“UC”) met with CHO to pick up 1000 tablets of ecstasy. The CD introduced the UC
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 47 of 77
48
to CHO. CHO and the UC made verbal arrangements to meet later so CHO could provide the UC with an additional 5000 tablets of ecstasy from his source of supply in Riverside, CA.” (emphasis added)(CCA ¶5; ER: 6, 7)
CHO was the person that knew and had previously worked with
the CD (Long) on drug deals. CHO not Steidell negotiated the drug
transaction not only for the first 1000 tablets of ecstasy on August 7, 2012,
but also for the additional 5000 tablets that the UC requested. The UC was
going to meet CHO at his supplier’s residence. (PSR ¶ 14) CHO collected
the money for the first transaction. The UC handed CHO $15,000 for the
1000 tablets. (CCA ¶10). There was no evidence that the money was then
turned over to Steidell.
There was no evidence to support the allegations that Steidell
directed BELL to deliver the drugs to him. As stated in the criminal
complaint’s affidavit: “While waiting to pick up this additional quantity of
ecstasy, CHO explained to the UC that “his guy” (later identified as
Steidell) was waiting on another person to bring the dope over.” (emphasis
added) (CCA ¶8) This person was identified to be BELL.(ER: 8)
Additionally, after BELL delivered the ecstasy to CHO,
Steidell, and Trujillo very late August 7, 2012, after the initial 1000 tablets
CHO had already delivered to the UC, BELL told the UC “that he had to
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 48 of 77
49
pull some of the of narcotics off of the street to finalize the ecstasy purchase
for the UC.” (CCA ¶20)
There was no mention that Steidell had directed BELL to do
this or that Steidell had even been in communication with BELL. CHO was
the one that had negotiated the extra 5000 tablets with the UC after the
delivery of the first 1000 tablets earlier that evening. (CCA ¶5)
Allegation of Participation
Next, the government claimed that the nature of the
participation was another factor to show leadership by alleging that it was
Steidell throughout the conspiracy who asked the UC what drugs he wanted
in Hawaii and what quantity. The government contends that for the
transactions on September 13 and 14, 2012, it was Steidell that negotiated
the price, where and when it would occur. (ER: 36) However, the record
does not support the government’s allegations.
CHO exchanged numerous text messages with the UC and in
one message told the UC that Steidell was willing to sell an additional ‘boat’
(street name for 1000 tablets of ecstasy) for $2000. (CCA ¶11) This merely
details what a supplier would do and not directions or instructions from a
leader.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 49 of 77
50
After departing Steidell’s residence, CHO told the UC that
“Steidell doesn’t do small orders and has a minimum of 5000 pills for
ecstasy and four (4) ounces for cocaine.” (CCA ¶ 22) However, this was
CHO boasting to the UC and there was no evidence in the record to show
that these facts were true about Steidell or that Steidell was dealing in
cocaine or was the leader. Actually, it was not a statement concerning a
leader, but rather regarding a person’s (CHO) supplier.
August 10, 2012, CHO sent a series of text messages to the UC
to discuss the planned shipment of 1000 tablets of ecstasy from California to
Hawaii. During these text messages, CHO told the UC not to tell Steidell
that he was from Hawaii and that they had met through the CD. Later Cho
stated through text to the UC that he told Steidell that the UC was “his
Hawaii guy” so the UC would not have to lie about who he was. (CCA ¶12)
The UC wanted more pills than he could get on August 07,
2012; therefore the UC had an agreement with CHO to have more ecstasy
tablets shipped to Hawaii. According to CHO’s testimony at his change of
plea hearing on February 12, 2012, the only way for the agent (UC) to get in
contact with the information regarding the shipment of more tablets to
Hawaii was to go through CHO. CHO would text the UC with the
information needed for the shipment of ecstasy to Hawaii. CHO further
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 50 of 77
51
testified that he gave Steidell the information of where to ship the tablets in
Hawaii. Steidell packaged and mailed the shipment of additional 1000
tablets to the UC based on CHO’s information. (ER:81, 82)
In direct contradiction of CHO’s testimony, the PSR in support
of the leadership enhancement, stated that Steidell coordinated the shipping
of drug parcels. (PSR ¶ 50) CHO was the person that coordinated the
shipment, not Steidell as he only packaged and mailed it.
An additional meeting with Steidell and CHO was set up for
September 14, 2012 to purchase 10,000 tablets of ecstasy along with four (4)
ounces of crystal methamphetamine. CHO produced the methamphetamine
the next day. (ER: 9)
During CHO’s change of plea hearing on February 12, 2014,
the court asked CHO about the transaction on September 14, 2012 with the
UC:
The Court: And the $30,000 that the agent gave to you and to Mr.
Steidell was in exchange for what?
CHO: It was for the ecstasy…
The court confirms that it was for the 10,000 tablets of ecstasy.
This transaction took place at CHO’s residence in his living room. (ER: 83,
84)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 51 of 77
52
CHO admitted during his change of plea hearing that he was the
one that purchased and sold the methamphetamine to the UC in September
2012. The UC called CHO and told him he was outside his home. CHO went
out and gave him four (4) bags of methamphetamine. CHO told the court
how he acquired the methamphetamine by stating, “Basically I had to make
phone calls and was like to pick it up---I just basically had to go pick it up. I
picked it up and dropped it off.” The court asked CHO if he picked it up
from Steidell. CHO responded, “No, it was another person who sells
methamphetamine. Someone I set up—someone who I started being in
contact with.” (emphasis added) (ER: 85, 86)
Allegation of Control and Authority Over Others
And finally to support its leadership arguments, the government
alleged that the degree of control and authority over others, claimed rights to
a larger share related to the transaction of methamphetamine, the
relationship between the UC and Steidell, negotiations for parcels to be
mailed to Hawaii were between the UC and Steidell, and Steidell transported
those parcels to the UC in Hawaii. (ER: 37)
There was no evidence in the record that Steidell had the degree
of control or authority over others necessary for the leadership adjustment.
There was no evidence that Steidell received any money from the transaction
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 52 of 77
53
of methamphetamine. However, there was evidence that CHO admitted that
he made the arrangements and purchased and sold the methamphetamine to
the UC as evidenced by CHO’s statements during his change of plea
hearing.
CHO’s testimony confirmed that Steidell had nothing to do
with the transaction for the methamphetamine or evidence that he received
any money for that transaction. Testimony by Nerlin, a government witness
that was listening to the transactions with the UC via a wireless transmitter,
also testified that CHO produced the four ounces of methamphetamine on
September 15, 2012. Steidell was not present nor had anything to do with
that transaction. (ER: 6-9)
Concerning the government’s allegation that Steidell was the
one that received the larger share from all transactions, the court asked CHO
during his change of plea hearing concerning the transaction on September
14, 2012 with the UC, “And the $30,000 that the agent gave to you and to
Mr. Steidell was in exchange for what?” CHO responded: “It was for the
ecstasy…” The court confirmed that it was for the 10,000 tablets of ecstasy.
This took place at CHO’s residence in his living room. (ER: 83, 84) There
was no evidence concerning the division of the $30,000 or who took
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 53 of 77
54
possession of the money. If Steidell supplied the ecstasy then he was entitled
for payment as he most likely had to pay his suppliers, maybe even BELL.
Additionally, CHO testified during his change of plea hearing
that “…whatever transaction that transpired between them I would get a cut.
I would get paid for it basically.” (ER: 87) This statement under oath
confirmed that CHO and not Steidell was acting in a position of a leader by
commanding a share of all transactions.
Steidell did not have control or authority over the parcels sent
to the UC in Hawaii as supported by CHO’s testimony. The UC wanted
more pills than he could get on August 07, 2012; therefore the UC had an
agreement with CHO to have more ecstasy tablets shipped to Hawaii.
According to CHO’s testimony at his change of plea hearing on
February 12, 2012, the only way for the agent to get in contact with the
information regarding the shipment of more tablets to Hawaii was to go
through CHO. CHO would text the UC with the information needed for the
shipment of ecstasy to Hawaii. CHO further testified that he gave Steidell
the information of where to ship the tablets in Hawaii. Steidell packaged and
mailed the shipment of additional 1000 tablets to the UC based on CHO’s
directions. (ER: 81, 82)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 54 of 77
55
This evidence established that CHO and not Steidell was the
one giving the orders and directions – CHO was the person in a leadership
role as described by the government.
As far as the relationship between Steidell and the UC, that was
very limited; however CHO had a close relationship with the UC as he was
the first one to have contact with him. CHO supplied ecstasy to Long (the
eventual CD) in Hawaii for several months and maybe even since 2011.
Long contacted CHO in February 2012 to purchase 1000 tablets of ecstasy.
In August 7, 2012, Long and the UC met with CHO to purchase 1000 tablets
of ecstasy. (PSR ¶¶ 11,13,14)
As previously stated above, CHO was the one making the deal,
delivering the drugs and collecting the money from the UC, not Steidell.
The Court’s Allegations to Support the Leadership
The court stated that many of the facts relied upon for the leader
enhancement came from Steidell’s co-defendants, CHO and BELL as
described in the PSR. The court stated that the law enforcement agent
involved from August to December 2012, says that Steidell was the principal
dealer, negotiator and supplier. The court further stated that the $30,000
went directly to Steidell for the payment of the MDMA and
methamphetamine. (ER: 39, 40)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 55 of 77
56
The evidence in the record contradicts the court’s conclusions
that Steidell was the principal dealer, negotiator and supplier. CHO was the
person that met with the UC and the CD on August 7, 2012 to pick up 1000
tablets of ecstasy. CHO agreed to sell the UC an additional 5000 tablets of
ecstasy that night. It was CHO that was negotiator and dealer for the
transactions with the UC.
During CHO’s change of plea hearing he testified that: “So
regarding the ecstasy transactions, basically I met with the agent and set up
the meetings and basically sold the ecstasy to the agent, I think three or four
times. And regarding the methamphetamine, I was kind of like a
liaison…like a messenger. I got it and then gave it to the agent.” CHO
further testified about his participation in the drug transactions.
CHO was responsible entirely for the methamphetamine transaction. (ER: 6-
9, 79-86; CCA ¶¶ 5-23)
There was no evidence that Steidell coordinated or oversaw the
procurement or distribution of all the alleged drugs. The co-defendants were
each involved in their own separate procurement and distribution of various
drugs.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 56 of 77
57
A search of CHO’s residence after his arrest in December 2012,
produced MDMA (34.1 grams)7 and cocaine (17.6 grams) plus money and
instruments of distribution. CHO admitted after his arrest to selling the UC
approximately 30,000 to 40,000 ecstasy tablets and distributing cocaine.
(PSR ¶¶ 28, 29) However, Steidell was only involved with CHO for
approximately 14,000 tablets of ecstasy as stated in the PSR. (PSR ¶35)
After BELL’s arrest he was found to be possession of numerous
weapons and instruments of production and distribution of drugs. BELL
admitted that he distributed marijuana and had offers to work for the
‘Mexican Drug Cartel.’ (PSR ¶¶ 25, 26, 27)
As this court held in United States v. Harper, 33 F.3d at 1151, a
sentencing court may not conclude that an enhancement is appropriate where
the record lacks evidence that the defendant exercised the requisite control
— even if the presentence report states that it is. To the contrary, there must
be "reference [in the record] . . . to any specific facts that indicate [the
defendant] exercised control over or organized others in committing this
crime." Id. at 1151.
7 Steidell was sentenced for the 34.1 grams MDMA as part of the conspiracy in Count 1; however the ecstasy found in the storage unit was not included in this same conspiracy.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 57 of 77
58
Under this circuit's clear articulation of § 3B1.1(c), "even a
defendant with an important role in an offense" cannot receive an
enhancement unless there is also a "showing that the defendant had control
over others." Lopez-Sandoval, 146 F.3d at 717.
However, the record was insufficient to support a determination
that Steidell was an organizer or leader as shown by the various testimonies
of the UC contained in the cited affidavit, the sworn testimony of co-
defendant CHO, in addition to the lack of credible evidence in the record,
the allegations made by the court, the government or contained within the
PSR. The district court’s finding that Steidell qualified for the leadership
upward adjustment of two (2) levels was clearly erroneous. Therefore, this
Court must vacate Steidell’s sentence. (Refer to CCA; PSR; ER: 4-14, 34-
43, 77-87)
C. STEIDELL’S SENTENCE WAS UNREASONABLE
1. Standard of Review
The Court reviews a sentence for abuse of discretion in two
steps. Gall v. United States, 552 U.S. at 51. “First, we ensure that the
district court did not commit any significant procedural errors. Second, once
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 58 of 77
59
we determine that the sentence was procedurally sound, we review the
substantive reasonableness of the sentence.” Gall at 51.
2. Legal Analysis
The Supreme Court has held that improperly calculating the
Guidelines range may constitute "significant procedural error." Id.at 51.
Additionally, “it would be procedural error for a district court to treat the
Guidelines as mandatory instead of advisory; to fail to consider the
§ 3553(a) factors; to choose a sentence based on clearly erroneous facts; or
to fail adequately to explain the sentence selected, including any deviation
from the Guidelines range." Id.
The Court must reverse if the district court committed a
significant procedural error. See United States v. Gomez-Leon, 545 F.3d
777, 782 (9th Cir. 2008). In determining substantive reasonableness, the
Court is to consider the totality of the circumstances. See United States v.
Carty, 520 F.3d at 993.
As the Supreme Court has repeatedly held, the Sentencing
Guidelines are the "starting point" for a district court's sentencing analysis.
Freeman v. United States, 131 S. Ct. 2685, 2692, 180 L. Ed. 2d 519 (2011).
Steidell objected to the guideline calculations that included the type and
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 59 of 77
60
quantity of drugs that determined the base offense level of 32 and the
additional 2 points for leadership. (PSR: pp28-31) After reductions for
acceptance of responsibility of 3 points, Steidell’s total offense level was 33.
Steidell alleges that the court improperly calculated his
guideline range based on improper reliance on the hearsay statements by co-
defendants in the PSR; misinterpreted statements from the government
undercover agent (UC); failure to take into account statements under oath
that contradicted statements in the PSR; and incorrect drug type and
quantities attributed solely to Steidell and not all members of the charged
conspiracy.
a. Sentence Disparity Between Co-Defendants Steidell
and CHO
Steidell further alleges procedural error by the court
improperly calculating his sentence on the ground of disparity with co-
defendants under 18 U.S.C. § 3553(a)(6).
Section 3553(a)(6) requires judges to consider "the need to
avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." Gall v. United
States, 552 U.S. at 54.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 60 of 77
61
Steidell and CHO were both charged and convicted for the
same two conspiracies in Counts 1, 2, and 3 of the Superseding Indictment. 8
They both pled guilty without the benefit of a plea agreement. Steidell had a
higher criminal history than CHO and CHO received a downward departure
pursuant to the safety valve; however that does not account for the great
disparity in their sentences. Steidell was sentenced to 170 months and CHO
only received 46 months.
They both should have started at the guideline offense level 32
for the amount of drugs for the two conspiracies. Taking into consideration
the various adjustments and departures for each defendant, the difference in
the sentence was still too great to follow the mandates of 18 USC §
3553(a)(6) to avoid unwarranted sentence disparities.
Steidell’s offense level 32 was calculated based on the
following drug quantities:
BZP 3.9992 kg (399.92kg marihuana equivalency);
Methamphetamine (ice) 110.9 gm (2218.0kg marihuana equivalency);
MDMA 34.1gm (17.05kg marihuana equivalency)
Total of 2,634.97 kg marihuana equivalency. 9(PSR ¶¶46, 47)
8 Steidell had one additional Count, however the resulting drug amounts did not change the guideline offense level (Count 5). 9 The total amount for BZP of 3999.2 grams included the August 7, 2012
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 61 of 77
62
Since these were the drugs attributed to the conspiracy counts 1,
2, 3, then CHO who was a charged member of both conspiracies should have
received the same offense level. The MDMA of 34.1 grams was found in
CHO’s residence pursuant to a search warrant after his arrest. Steidell was
already in state custody at this time; however Steidell was charged for the
MDMA for his total offense level. (PSR ¶¶28, 43)
Steidell does not know the offense level used to determine
CHO’s sentence, but the same drug type and quantities calculated for the
same two conspiracies (Counts 1, 2, 3) should apply to both Steidell and
CHO.
During CHO’s change of plea hearing, the government stated
that on August 7, 2012, CHO met with the UC and the CD to pick up the
1000 tablets of ecstasy. The CD introduced the UC to CHO and they made
arrangements to meet later that evening so that CHO could provide the UC
with an additional 5000 tablets of ecstasy. The government stated that the
first 1000 tablets were tested; “however that’s going to be counted as
relevant conduct.” (emphasis added)(ER: 77, 78)
In other words, the 1000 tablets distributed by CHO on August
7, 2012, with a net weight of 207.1 grams was not included in the calculation
transaction by CHO for 207.1 grams. (PSR ¶¶35, 43)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 62 of 77
63
of CHO’s offense level, but this transaction was included in Steidell’s
offense level calculations. Why?
Steidell’s 3.9992kg of BZP consisted of the following
transactions: 08/07/2012 – 207.1 grams, 08/07/2012 – 1096 grams,
08/14/2012 – 195.7 grams, 09/14/2012 – 1947.2 grams, and 12/10/2012 –
search of storage unit, 553.2 grams which were later destroyed by the
government . (PSR ¶¶ 35, 43, 46, 47)
CHO was the one that was working with the CD and UC
months before Steidell was even involved. In July 2011, a confidential
informant reported that Long (who became the CD in this case), distributed
ecstasy in HI. After Long’s arrest he identified CHO as his source of supply
for the ecstasy he was distributing in HI. CHO continued to deal with Long
in 2012. (PSR ¶¶11,13,14) CHO definitely had been dealing in ecstasy
since at least 2011 with Long so why include that known amount of 207.1
grams for Steidell and not CHO a co-conspirator?
Steidell had a final offense level of 33 with a criminal history
category IV and received a sentence of 170 months. CHO’s actual final
offense level is unknown to Steidell; however according to the USSG
Sentencing Table for a criminal history category I, a 46 month sentence had
to be anywhere from an offense level no greater than 23 (46-57 months).
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 63 of 77
64
That would be a nine (9) level departure from the original starting
offense level of 32 for the drug quantity attributed for the two (2)
conspiracies. Both Steidell and CHO received the benefit of the two (2) level
reductions for Amendment 782 so that had no impact for the difference in
sentences. CHO received a one (1) level reduction for acceptance of
responsibility; Steidell received a three (3) level reduction for acceptance of
responsibility.
Therefore, a nine (9) offense level difference in the resulting
sentence when the original offense level for the quantity of drugs should
have been the same level 32, demonstrates a significant sentence disparity
between similarly charged and convicted co-defendants Steidell and CHO.10
There should not have been such a disparity in the sentences between
Steidell and CHO of 124 months!
Additionally, CHO was found to be in possession of 34.1 grams
of MDMA and 17.6 grams of cocaine after his arrest and a search of his
residence. The MDMA was used to calculate Steidell’s offense level.
Steidell does not have access to CHO’s PSR, therefore is unaware if this
drug was included in his offense level or not. However, CHO’s sentence
10 CHO and Steidell both pled guilty without a plea agreement.
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 64 of 77
65
does not equate to the same drug type and quantity as was used to calculate
Steidell’s offense level.
b. The Court Failed to Adequately Resolve
Steidell’s Objections to the PSR
“When a defendant raises objections to the PSR, the district
court is obligated to resolve the factual dispute, and the government bears
the burden of proof…The court may not simply rely on the factual
statements in the PSR. " United States v. Showalter, 569 F.3d 1150, 1160
(9th Cir. 2009) (citing United States v. Ameline, 409 F.3d 1073, 1085-86
(9th Cir. 2005) (en banc).
It is a general principle of federal sentencing law that district
courts have a duty to explain their sentencing decisions. Carty, 520 F.3d at
992-93; United States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013). This
duty exists for two distinct prudential reasons. First, “explanations allow
circuit courts to conduct meaningful appellate review of sentencing
decisions.” Gall, 552 U.S. at 50. Second, explanations "promote the
perception of fair sentencing," Id., “creating trust in sentencing decisions by
reassuring the public of the judiciary's commitment to reasoned
decisionmaking,” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456,
168 L. Ed. 2d 203 (2007).
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 65 of 77
66
The court relied on hearsay statements from co-defendants
stated the PSR for determining Steidell’s sentence. The court failed to
consider any evidence that contradicted the accuracy of the facts relied on by
the court. The court relied on clearly erroneous facts found in the PSR to
support sentence enhancements and increased drug type and quantities for
Steidell only.
During sentencing Steidell argued against the two (2) level
increase for leadership. The court’s response acknowledged that “it is true
that much of the …many of the facts supporting whether defendant in fact
qualified for that two-level increase came from his codefendants, Cho and
Bell. Both described, as detailed in the PSR, the defendant in turn made it
clear that he in fact was the leader of this conspiracy and not anyone else.”
(ER: 38) There was no evidence to prove these statements. (Refer to opening
brief argument section B on leadership enhancement.)
The court continued by stating, “And Cho similarly described
his role of drug sales occurring on behalf of the defendant; that the defendant
was Mr. Cho’s source of supply at least for MDMA, BZP and
methamphetamine, not for cocaine.” (ER: 38) The court also referred to a
quote from the PSR to establish that Steidell obtained the methamphetamine
that was sold to the UC in September 2012; however CHO had already
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 66 of 77
67
admitted in his change of plea before this same judge that he was the one
that purchased and distributed the methamphetamine, not Steidell. (ER: 41,
85, 86) The court’s statement was incorrect as CHO admitted that he
purchased the methamphetamine from his own supplier and not through
Steidell.
The court also stated in error that the drug quantities were based
on the transactions that the UC negotiated and consummated with Steidell.
(ER: 40, 41) For example, Long, the CD, identified CHO as his source of
supply for ecstasy. (ER: 79, 85, 86; PSR ¶ 11) There was no direct evidence
other than the self-serving hearsay statements by CHO and BELL that
Steidell was their supplier.
Steidell questions the truthfulness and veracity of the following
statement made by the court during his sentencing as well as the proof of the
statement since it contradicts other evidence already mentioned. The court
stated that, “The law enforcement agent who was involved from the start to
finish here, again from August to December 2012 I think it was the time
frame, he says that the principal dealer, negotiator and supplier in this case
was not Cho or Bell or Ms. Trujillo, but it was Mr. Steidell. (ER: 39, 40)
During Steidell’s sentencing the court made numerous
erroneous statements such as, “ The defendant is a major large scale drug
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 67 of 77
68
distributor in California as well as here in Hawaii. Along with his
coconspirators, they attempted to flood the local market with BZP, MDMA
and to a lesser extent methamphetamine.” (ER:67)
Reviewing the statements found in the affidavit by Special
Agent Nerlin for the criminal complaint and his testimony during the motion
to suppress evidence, and testimony by CHO during his change of plea
hearing, all significantly contradict the court’s conclusions and statements
made during his sentencing. These statements more accurately apply to CHO
not Steidell. The court appeared to disregard actual evidence and rely solely
on hearsay and false statements as the basis for Steidell’s sentence. (Refer
to arguments in opening brief section A – sentencing entrapment; section B
leader)
The court continued to overrule Steidell’s other objections on
the drug quantities. The court construed known testimony in order to show
that Steidell was the person that was responsible for all the drugs used to
calculate his sentence. (ER: 40-42) As a specific example, the court stated:
“Cho later gave the UC the methamphetamine that was purchased on that
particular day; that didn’t occur until the next day. But when he did so, he
told the UC that the methamphetamine came from, quote/unquote, Dave’s
boy, in reference to Mr. Steidell.” (ER: 41)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 68 of 77
69
However, CHO testified at his change of plea hearing on
February 12, 2014, that he did not buy the methamphetamine from
Steidell. Additionally, the court tried to make CHO implicate Steidell by
asking CHO: “And you picked it up from Mr. Steidell?” CHO replied NO.
(ER: 85, 86)
During CHO’s change of plea hearing the government wanted
CHO to clarify what his agreement was with his co-defendants (Steidell,
BELL, and TRUJILLO). Instead of asking that direct question the court
implied that Steidell was the leader by asking CHO the following, “… did
you not, with at least one of your co-defendants, and in particular Steidell,
because he was the principal among the four of you…” No other person
other than Steidell was indicated by the court. (emphasis added)(ER: 87)
CHO’s testimony at his change of plea hearing was in February
2014, several months prior to Steidell’s sentencing hearing in September
2014 and prior to the preparation of the PSR.
During Steidell’s sentencing the court further stated,
“So the mere fact that some of the drug quantities are attributed to the defendant, based on statements from his codefendants, is of little consequence. The codefendants are not avoiding and cannot avoid personal responsibility for the same drugs by attributing them in part to the codefendant…to their codefendant, Mr. Steidell. They’re all going to be held responsible for the drugs that they transacted. “ (ER: 42) (emphasis added)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 69 of 77
70
However, that was not what happened since all codefendants
received significantly lower sentences. As stated above the government
specifically did not include the 1000 tablets of ecstasy CHO distributed on
August 7, 2012. (ER: 77, 78)
CHO and Steidell were both charged for the same two
conspiracies in Counts 1, 2, and 3 of the Superseding Indictment. Steidell
received a sentence of 170 months, CHO was sentenced to 46 months; and
BELL was sentenced to 64 months, which included two weapons charges.
BELL who was arrested in possession of several weapons in his
car, home, and storage unit did not receive punishment for those crimes.
BELL was also charged for the conspiracy in Count 1 and definitely was not
sentenced for the drug quantities for the conspiracy in Count 1. BELL
admitted that he traded narcotics for firearms and used the weapons for
protection. Count 4 of the Superseding Indictment that charged BELL for
use and carrying a firearm during a drug trafficking crime in violation of 18
USC § 924 was dismissed. BELL was also charged under a different
criminal case for felon in possession of a firearm (18 USC § 922) and
sentenced to 64 months to run concurrent to the other 64 month sentence.
(ER: 112-119)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 70 of 77
71
However, the court added a two level enhancement for a gun
found in Steidell’s storage unit. There was no evidence that Steidell ever
used this gun or that it was used during or in connection to a drug offense
other than being in the same storage unit with a small amount of drugs.11
During sentencing, the court stated that, “The defendant has also shown a
penchant for violence, and I draw that conclusion from the fact that there
was a .40 caliber loaded handgun found with the BZP in a storage
unit…..therefore he is an added danger to the community for that reason.”
(ER:68) There was no evidence to support such a statement by the court.
The information cited in the PSR concerning Steidell’s first
state conviction is incorrect and highly inflammatory. Steidell was not
involved in the crimes and circumstances outlined in the PSR ¶ 59. He was
only convicted and involved with robbery and received a three year sentence
on May 29, 2009, according to information in the PSR.
It was error to include the highly prejudicial and erroneous
information for the court’s review and ultimate influence on Steidell’s
sentence. These facts alone would tend to inflame anyone reading it to be
prejudiced against Steidell, including the court. They should not have been
11 The drugs found in the storage unit when Steidell was in state custody were destroyed by the government in 2013. Steidell did not object to the gun enhancement. (ER: 23-25)
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 71 of 77
72
included in the PSR.
Steidell requested the information to be removed prior to the
PSR being sent to the BOP and it was granted; however the damage had
already affected Steidell’s sentence. (PSR ¶ 59; ER: 45, 46, 62)
The PSR failed to include pertinent information regarding
Steidell’s last state conviction in 2013. Steidell’s plea agreement and
judgment stated that his state sentence of 80 months would be
concurrent with his pending federal sentence. (ER: 96-102) However,
Steidell was sentenced 170 months to be served consecutive to his state
sentence of 80 months. The PSR’s final draft was prepared August 26,
2014, well over a year after Steidell’s state sentence. The conviction
information was included, but not the pertinent information concerning his
plea agreement. Steidell’s federal sentence ignored his state plea agreement
and judgment.
c. Steidell’s Sentence Was Substantively
Unreasonable
In determining substantive reasonableness, we are to consider
the totality of the circumstances. Carty, 520 F.3d at 993. "A substantively
reasonable sentence is one that is 'sufficient, but not greater than necessary'
to accomplish § 3553(a)(2)'s sentencing goals." United States v. Crowe, 563
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 72 of 77
73
F.3d 969, 977 n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)). "The
touchstone of 'reasonableness' is whether the record as a whole reflects
rational and meaningful consideration of the factors enumerated in 18 U.S.C.
§ 3553(a)." United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en
banc).
Steidell contends that his sentence of 170 months to run
consecutive to his 80 month state sentence is substantively unreasonable
based on all the arguments set forth in his appeal. Therefore, his sentence
should be vacated and remanded for resentencing.
V.
CONCLUSION
Based on the foregoing, Appellant Steidell respectfully requests
that this Court vacate his sentence and remand for resentencing.
Dated: December 31, 2014 at Dana Point, California s/ DeAnna S. Dotson Attorney for Appellant
DAVID STEIDELL
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 73 of 77
74
CERTIFICATE OF RELATED CASES
Counsel is not aware of any related cases on appeal before this
Court.
DATED: December 31, 2014 at Dana Point, CA s/ DeAnna S. Dotson Attorney for Appellant
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 74 of 77
75
CERTIFICATE OF COMPLIANCE Pursuant to Ninth Circuit Rule 2 (e)(3), I certify that the opening
brief is proportionately spaced, has a New Times Roman typeface of 14 points
or more and contains 12,892 words. The text is double spaced.
DATED: December 31, 2014 at Dana Point, CA s/ DeAnna S. Dotson Attorney for the Appellant
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 75 of 77
76
CERTIFICATE OF SERVICE I hereby certify that on December 31, 2014, I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the forgoing document by First Class Mail, postage prepaid, to the non-CM/ECF participants. I further certify that I have mailed the Excerpts of Record by First Class Mail, postage prepaid to the following: David Steidell #03251-122 Federal Detention Center, Honolulu 351 Elliott Street Honolulu, HI 96819 s/ DeAnna S. Dotson
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 76 of 77
77
Case: 14-10439, 12/31/2014, ID: 9366636, DktEntry: 7-1, Page 77 of 77