On Appeal from the United States District Court for the Middle District of Pennsylvania, Crim No. 88-00095-01
Gibbons, Chief Judge, Hutchinson, Circuit Judge and Wolin, District Judge*fn*
Anthony Sciarrino appeals from a judgment of sentence imposed following a guilty plea to charges of conspiracy to distribute marijuana, 21 U.S.C. § 846, and possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1). The offenses occurred after November 1, 1987. Thus, under the sentencing guidelines, calculation of offense conduct involved a determination of the amount of marijuana involved in the offenses. The district court determined that Sciarrino distributed or was involved with distribution of 2,094 pounds of that substance. He was sentenced to two concurrent terms of 97 months imprisonment to be followed by four years of supervised release. Sciarrino contends that the district court erred in calculating his guideline sentence.
Presenting a question of first impression in this court, Sciarrino contends that the district court erred in relying on hearsay evidence in determining the amount of marijuana involved, and thus in determining the appropriate offense conduct under Part D (2) of the sentencing guidelines.
The indictment to which Sciarrino pleaded guilty charged him and co-conspirators Nicholas John Dulak and Steven L. "Wally" Gladfelter with conspiracy and possession with intent to distribute in excess of 1,000 kilograms of marijuana. Sciarrino challenged the amount involved, and an evidentiary hearing was held on that issue. The government presented evidence depicting Sciarrino as a mid-level distributor who obtained marijuana from a government witness, Billie Skinner, and passed it on to Dulak, Gladfelter, and unindicted co-conspirators Timothy O'Donnell and Robert Lee. All of these persons testified about amounts of marijuana, but, it is the testimony of Dulak with which Sciarrino is concerned.
Testifying for the government pursuant to a plea bargain, Dulak stated he received no more than 800 pounds in all from Sciarrino. This was inconsistent with Lee's testimony that Lee alone received 800 pounds from Dulak, and Dulak's testimony that Lee was not his only customer. The government then brought out Dulak's prior inconsistent statement to Special Agent Keith Miller of the Drug Enforcement Administration that Dulak had purchased from Sciarrino 1,400 pounds of marijuana.
Sometime after the hearing, Dulak underwent a polygraph examination with respect to the amount of marijuana he procured from Sciarrino. He failed that test, and subsequently stated that he could have sold 1,200 to 1,400 pounds for Sciarrino. Neither Sciarrino nor his counsel were notified of the polygraph examination, given copies of the results, or permitted to examine the person who conducted it. At the sentencing they objected to it. The district court stated expressly that it did not consider the polygraph.*fn1
In calculating the amount of marijuana involved, the district court discredited Dulak's testimony that he obtained only 800 pounds of marijuana from Sciarrino, but credited Dulak's prior statement to Special Agent Miller that the amount was 1,400 pounds. Thus the district court relied on Dulak's prior inconsistent statement not for impeachment purposes, as permitted by Fed.R.Evid. 613(b), but for the truth of the matter asserted. The court's reliance on this hearsay statement to establish the amount of marijuana is unequivocal.
Sciarrino urges that the Sentencing Reform Act of 1984, as implemented by the sentencing guidelines requiring determinations of fact with respect to offense, offender and victim characteristics after a hearing, should be read as precluding use at such a hearing of hearsay to establish those facts. Otherwise, he contends, the sentencing scheme would violate due process of law.
Sciarrino can take no comfort in the Sentencing Reform Act. That statute merely renumbered former section 3577 of Title 18, carrying forward the identical language:
No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider ...