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February 23, 1994


The opinion of the court was delivered by: JACK B. WEINSTEIN


 The Court of Appeals has ordered this court to add five years in prison without parole to the five year sentence already imposed on this twenty-eight-year-old female defendant with three children, aged seven, six and five years, for whom she is the sole support and caretaker. See United States v. Ekwunoh, 813 F. Supp. 168 (E.D.N.Y. 1993), rev'd, F.2d , No. 93-1075 (2d Cir. Dec. 17, 1993) (Ekwunoh I). This cruel mandate will burden taxpayers with many thousands of dollars in unwarranted prison expenses. In the view of the district court, it is mistaken on the facts and constitutes a gross departure from traditional principles of criminal law.

 The matter is particularly pertinent at this time. Much of the difficulty with guideline sentencing and minimum sentences lies not so much in the fault of the legislature or even the Sentencing Commission, but in the decisions of our courts and their self-imposed barriers to justice. See, e.g., United States v. Concepcion, 795 F. Supp. 1262, 808 F. Supp. 166, 825 F. Supp. 19 (E.D.N.Y. 1992, 1993) (when statute granting discretion rather than guideline applies). At the moment the Second Circuit is making a valiant effort to avoid sleeping in the procrustean bed it made to greet the Guidelines and minimum sentencing drug statutes. See, e.g., United States v. Anderson, 15 F.3d 278, 1994 U.S. App. LEXIS 1176, Nos. 466, 93-1097 (2d Cir. 1994) (Oakes, J., "Although judicial discretion undoubtedly may result in some sentencing disparities, it is also that which enables our courts to fashion individualized sentences essential to just administration of the criminal law."); John M. Walker, Jr., Loosening the Administrative Handcuffs: Discretion and Responsibility Under the Guidelines, 59 Brook. L. Rev. 551 (1993); Karen R. Smith, United States v. Johnson: The Second Circuit Overcomes the Sentencing Guidelines Myopic View of "Not Ordinarily Relevant" Family Responsibilities of the Criminal Offender, 59 Brook. L. Rev. 573 (1993); John M. Walker, Testimony of the President of the Federal Judges Association before the Subcommittee on Crime and Criminal Justice of the House Judiciary Committee, July 28, 1993, in 6 Federal Sentencing Reporter 72, 73 ("Mandatory minimums are not only ineffective, but also counterproductive, weapons in the war on crime.").

 The Kafkaesque result in the instant case comes from a combination of a lapse of its usual exercise of sound discretion by the United States Attorney to allow a defendant to plead to a five year minimum in a case such as this and from a decision by the Drug Enforcement Agency (the "DEA") to deliver in a suitcase 1,013 grams of heroin instead of the 400 grams swallowed in balloons expected by the defendant. The tendency of the DEA to escalate the size of drug deals by pressing prospective defendants to buy or accept delivery of ever higher quantities of narcotics in what is ironically referred to by it as "reverse buys," is well known. It is usually offset by realistic pleas and sentences by prosecutors and judges. In this instance the system of balances has been ignored to the severe detriment of the defendant, her children and the taxpayers.

 I. Facts

 The defendant was born in Nigeria and came to the United States in 1982 with her husband. Her father was Nigeria's ambassador to England and her mother owns a restaurant. She had a secondary education at St. Anthony's Secondary School and one year of college in Nigeria. She also received extensive training as a member of the Nigerian police force, but policy forced her to withdraw from the force upon her marriage. In this country she bore her three children, fathered by her husband; the children are citizens and she is a "legal alien." She is now separated from her husband and has full custody and responsibility for support and care of their three children. She sells clothes in Brooklyn and has worked as a home attendant for the elderly. Her lifestyle is modest.

 On June 15, 1991, Ms. Ekwunoh was arrested by DEA agents at John F. Kennedy Airport. Pursuant to a telephone request from a male friend in Nigeria, she had met a DEA confidential informant flying in from abroad. The informant was carrying an attache case with 1,013 grams of heroin concealed in the lining. Ms. Ekwunoh and the informant walked to a vehicle parked in the parking lot. She took the attache case from the informant and, without examining it, placed it in the trunk of a vehicle. She was then arrested. At once, she candidly admitted her role. She attempted to cooperate fully to obtain a 5K1.1 letter from the government that would permit a downward departure as well as an agreement to let her plead to a smaller amount of heroin and thus a lower minimum, or no minimum, statutory sentence.

 Ms. Ekwunoh testified at the sentencing hearing that she was told to meet a person at the airport and give him $ 2000 so that he could take the drugs to Atlanta, Georgia. She also testified that she did not know how much heroin the individual would be carrying. She said that she believed it was going to be around 400 grams because she had seen the person who called her weigh out 400 grams of heroin that he had swallowed and smuggled in previously. She also admitted that she had distributed between 50 and 250 grams of heroin twice a month and that she had over the years assisted in counting and handling drug money.

 The government refused a 5K1.1 letter. It was within its right to do so even though defendant's counsel strenuously objected. The government agreed that her "cooperation began auspiciously" and "led to one successful prosecution." Nevertheless, the Assistant United States Attorney and DEA agents noted their "disappointment with her" failure to cooperate fully in making additional cases. Letter from United States Department of Justice to defendant's counsel of Sept. 30, 1992 at 1-2. The court made only a limited inquiry on the issue of cooperation because the government was obviously within its right in refusing a cooperation letter and waiver of minimum sentence statutes.

 The trial court is convinced the defendant is telling the truth when she says she thought she was receiving about 400 grams of heroin. She was at all times a candid and credible witness. The court finds that she did not know that the informant was carrying more than one kilogram of heroin, and that a person in the defendant's position could not reasonably have known or reasonably have foreseen that she would be receiving as much as one kilogram of heroin. The burden on the government to prove otherwise by a preponderance or any other standard of proof has not been met. Her testimony regarding her experience in drug distribution that she had been exclusively exposed to small quantities of heroin ranging from 50 to 400 grams, and that she had no reason to suspect she was possessing a greater amount is consistent with the facts in this and many other cases in the Eastern District of New York.

 The defendant pled guilty to a single count of possessing heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(i). A violation of § 841 subsection (a) involving "1 kilogram or more of a mixture or substance containing detectable amount of heroin" carries a sentence of "a term of imprisonment which may not be less than ten years or more than life." 21 U.S.C. § 841(b)(1)(A)(i). A violation of subsection (a) involving "100 grams or more of a mixture or substance containing a detectable amount of heroin" carries a sentence of "a term of imprisonment which may not be less than 5 years and not more than 40 years." 21 U.S.C. § 841(b)(1)(B)(i).

 It has been the practice of the United States Attorney in this district to charge relatively low-level drug offenders like the defendant who pled guilty with possession of lower quantities of drugs to avoid unnecessarily high minimum sentences. Had that practice been followed, Ms. Ekwunoh would have been sentenced to either 33 months or 60 months, depending on the plea, instead of the 120 months now required. The United States Attorney, for various reasons, did not exercise that normal option in this case. This is but one example of the extraordinary power held by the United States Attorney to determine the sentence served by a defendant. See, e.g., Robert G. Morvillo, More Power to the Prosecutor, 20 Litigation 19 (1993). The refusal of the government to allow the defendant to plead to a five year count is not reviewable. The decision was, counsel agree, designed to permit the government to hold a heavier club over her head while defendant cooperated. Had she merely pleaded, without agreeing to cooperate, it is clear that she would have been permitted to plead to a five year count.

 The statement in the majority opinion of the Court of Appeals, also adopted in the concurring opinion, that a person who "received up to 250 grams twice a month . . . [as] a reasonable distributor of heroin in such quantities could not turn a blind eye to the possibility that someday she would be handed at one time a one-kilogram cache for distribution," F.2d , , slip op. at 569 (emphasis added), is at best a non-sequitur. When drug dealers are working at lower levels of up to 250 grams, it is, based on this court's experience, highly unlikely that, all other considerations being equal, they will be suddenly propelled up the ladder of responsibility and be entrusted with more than a kilogram. See, e.g., Jefferson M. Fish, Discontinuous Change, 2 Behavior and Social Issues 59 (1992). What would ...

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