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May 23, 1995


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

 Jack B. Weinstein Senior United States District Judge


 I. Introduction

 II. Facts

 III. Procedural History

A. Aborted plea bargain
B. Trial
C. Sentencing
D. Appeal
E. Proceedings on remand utilizing Rule 706 of the Federal Rules of Evidence
F. Summary of arguments on remand
G. Statement of the issue before the court

 IV. Sentencing Law

A. Burden of proof
1. Generally
2. Burden of proof at sentencing
B. Operation of the Guidelines
1. Drug cases
2. Non-drug cases
C. Caselaw on estimation and specific evidence
1. Estimation
2. Estimates based on extrapolation
3. Specific evidence

 V. Available Sources of Information

A. Background knowledge
B. Knowledge of the drug trade
C. Demeanor
1. How judges use demeanor
2. Demeanor and appellate review
D. Assumptions about criminal behavior

 VI. How Decision-Makers Learn and Decide

A. Inferences based on prior information and training
B. Methods of reaching conclusions
1. Classical step-by-step analysis
2. Bayesian and statistical analysis
3. Biases
4. Storytelling

 VII. Application of Law to Facts on Original Sentence

A. Evidence from trial
B. Demeanor and character
C. Knowledge of the drug trade: the trip effect
D. Storytelling analysis

 VIII. Desirability of Further Analysis

 IX. The General Federal Rule Favoring Admissibility Of and Reliance on All Helpful Evidence

A. Mechanistic rules versus flexible general principles
B. Development of twentieth century conceptions of evidence codes
C. Model Code of Evidence
D. Federal Rules of Evidence
E. Recent developments

 X. Additional Material Available to Sentencing Judge On Remand

A. Experts' reports
1. Government expert
2. Defense expert
3. Rule 706 Panel
a. Use of fictions
b. Problems with government's assumptions
c. Comments on defendant's report
d. Non-statistical analysis
e. Statistical analysis
f. Simulations accounting for trip effect
g. Conclusion
B. Survey of the Eastern District bench
C. Testimony on economics of heroin smuggling

 XI. Law Applicable to Statistical and Other Information Supplied After Remand

A. Admissibility of probabilistic evidence
B. Use of bare statistics
1. Generally
2. Criminal cases

 XII. Application of Law to Facts After Remand

A. Conclusions about experts' reports
B. Random versus non-random sampling
C. Use of statistics to illustrate non-statistical decision-making
D. Conclusions on proper role of statistics in this case
E. Cross-checking
F. Conclusion in light of statistics and other information provided on remand

 XIII. Obstruction of Justice Enhancement

A. Purposes of sentencing and of § 3C1.1
B. Double-counting
C. Discretion to enhance under Dunnigan
D. Unconstitutionality of automatic enhancement
E. Particularized finding of perjury
F. Conclusion

 XIV. Additional Sentencing Considerations

A. "Penalty" for going to trial
B. Sentencing within prescribed Guidelines range
C. Added time in prison required by Guidelines system

 XV. Conclusion

 The defendant was caught entering the country with 427.4 grams of heroin in his digestive tract. It is believed that he made seven prior drug smuggling trips, but not how much he carried on those trips. The court is required, under the Sentencing Guidelines, to estimate the total quantity of heroin imported.

 At the original sentence, the court multiplied 427.4 by eight, arriving at a total of 3419.2 grams. The sentence was 151 months in prison, the low end of the Guidelines range for importation of 3,000 grams of heroin or more. See United States v. Shonubi, 802 F. Supp. 859 (E.D.N.Y. 1992) [Shonubi I], conviction affirmed, sentence reversed, 998 F.2d 84 (2d Cir. 1993) [Shonubi II].

  The court of appeals rejected this solution and remanded. On reconsideration, the trial court now concludes that the defendant should be sentenced for importing between 1,000 and 3,000 grams of heroin. For reasons indicated in Parts XIII, XIV, and XV, infra, the term of imprisonment is unchanged.

  This memorandum is largely devoted to explaining how a sentencing judge -- and a trier of fact generally -- reaches a decision. The case presents an opportunity to observe, explain, and discuss forensic decision-making. The absence of exclusionary rules of evidence at sentencing, the availability of statistics against which to "check" non-statistical proof, and the assistance of skilled experts have permitted the court to examine the decision-making process more fully than circumstances usually permit.

  Because the sentencing judge found the problems raised by this case difficult, he issued a draft memorandum before resentencing and circulated it for comment. The parties and a number of scholars responded. These responses are on file with the court. The sentencing judge also posed questions to his colleagues on the court; their responses are described below. The final memorandum benefits from all of this assistance. While it generally follows the earlier draft, it includes a number of revisions.

  The memorandum is written with great diffidence since those of us involved in the daily quest for the truth in the courtroom are out of close touch with those academics endeavoring to understand and explain decisionmaking. See, e.g., Ronald J. Allen, David J. Balding, Peter Donnelly, Richard Friedman, David H. Kaye, Lewis Henry LaRue, Roger C. Park, Bernard Robertson & Alexander Stein, Probability and Proof in State v. Skipper: An Internet Exchange, 35 Jurimetrics Journal 277 (1995) [hereinafter, Ronald J. Allen et al., An Internet Exchange]. The separation between courts on the one hand and scientists, including statisticians and students of the human mind and emotions, on the other needs to be reduced by such projects as those of the Carnegie Foundation and the Federal Judicial Center described below. How to make available to triers, in a way they can understand, the work of scientists remains a central task of science and the law.

  II. Facts

  Charles O. Shonubi, a 34-year-old Nigerian citizen, lived in New Jersey while studying architecture and working as a toll collector at the George Washington Bridge. His salary was $ 12,000 a year. On December 10, 1991, Shonubi flew from Lagos, Nigeria, to Amsterdam, and then on to New York.

  A customs service officer at John F. Kennedy Airport noticed Shonubi near a baggage carousel; he was "turning rapidly" and "scanning the customs area" rather than looking for his luggage. The officer examined Shonubi's passport and then questioned him about the frequent trips to Nigeria indicated on the passport. The defendant's answers were contradictory and confusing. For example, Shonubi said the purpose of his last trip was to get married. Minutes later, he said the object was to visit his ailing mother. Reminded of his previous statement, he told the officer that he had forgotten that he had just said that he had gone to Nigeria to get married. Shonubi was "visibly nervous, avoided eye contact, and was wringing his hands"; he was "trembling and sweating." (The interesting question of what "avoiding eye contact" means in different cultures is not at this stage of the case a matter of concern.)

  In response to the agent's request, Shonubi consented to an X-ray. Taken to a "search room," he was patted down, read his Miranda rights, and handcuffed. A search of his person turned up a slip of paper bearing the name of a Nigerian customs official. An X-ray revealed a number of foreign bodies in his intestine.

  Shonubi was escorted to a trailer designed for the observation of passengers suspected of carrying drugs internally. The trailer has two levels. Material expelled into a toilet on the upper level drops into a holding tank, where agents on the lower level can observe it. Shonubi passed a total of 103 balloons over two days.

  A forensic chemist found that four of the balloons, selected at random, contained a heroin mixture. The mixture represented 60.49 percent of the gross weight of the four balloons. Cf. United States v. Esieke, 940 F.2d 29, 32 (2d Cir. 1991) (weight of heroin mixture "is usually several hundred grams lower than the gross weight [of heroin plus balloons]").

  Multiplying the average weight of the heroin mixture in the four tested balloons by 103, the chemist arrived at an aggregate weight of 427.4 grams. Chemical testing established that the purity of the heroin mixture in the four balloons was 53 percent.

  A customs service agent interviewed Shonubi while he was in the trailer. When she asked him where he had obtained the narcotics, Shonubi answered that he had bought them from "an ordinary man on the street." She asked him what he was supposed to do with the drugs, and he answered that they were his, and that he "wasn't giving them to anyone else."

  III. Procedural History

  A. Aborted plea bargain

  The defendant attempted to plea bargain. However, during a plea allocution before the chief magistrate judge, he alternately admitted and denied knowledge of the drugs found in his system. The allocution was aborted. Had Shonubi accepted the plea agreement, it is likely -- given the disposition of similar cases in this district -- that he would have been sentenced to a maximum of thirty-six months in prison. Instead, he elected to go to trial.

  B. Trial

  At trial, two customs agents described Shonubi's behavior at Kennedy Airport. Another customs agent testified that 427.4 grams of heroin, at 53 percent purity, would have a wholesale value of $ 44,000 and, if cut following the normal procedures of heroin distributors in New York, would produce 20,000 "hits." That the heroin had to be diluted was, according to the agent, certain: ingestion of 53 percent heroin can be fatal. The heroin, he concluded, could not have been for Shonubi's personal use. Cf. United States v. Martinez, 54 F.3d 1040, slip op. 3891, 3897-98 (2d Cir. 1995) (jury properly inferred, "viewing the evidence in its totality," that cocaine found on defendant was not for defendant's own use).

  The date stamps on Shonubi's passport conflicted with his accounts of when he had traveled, as well as with employment records at the George Washington Bridge. Those records showed eight absences from work. Entries on Shonubi's passport strongly supported the inference that eight trips had, in fact, been made, but that Shonubi had made some legs of the trips using a second passport.

  Warned by his attorney not to testify, Shonubi -- after visibly remonstrating with his attorney -- chose to take the stand. He proved an effective witness for the prosecution.

  Confronted with his passport and work records proving that he had made at least eight trips to Nigeria in the previous fifteen months, Shonubi nonetheless denied making more than four trips to Nigeria. He also denied traveling abroad except to see his family. He was unable to explain how he could afford eight round-trip tickets, costing a minimum of $ 900 each, while earning $ 12,000 a year and paying college expenses. He also denied defecating in the medical van.

  Shonubi was convicted by the jury of heroin importation, 21 U.S.C. §§ 952(a) and 960(b)(2)(A), and possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(b)(1)(B).

  C. Sentencing

  At his sentencing hearing, Shonubi reiterated, under oath, that he had made only four trips to Nigeria and had not imported heroin on any of those trips. The sentencing judge found that Shonubi had lied throughout the trial and was lying at the sentencing proceeding. His fabrications included his statements about the number of trips he had made, about the purposes of those trips, about his employment history, about his use of multiple passports, and about events inside the customs service trailer.

  Based on evidence at the trial and at sentencing, the judge found that the defendant had made a total of eight smuggling trips to Nigeria between September 1, 1990 and December 10, 1991. Multiplying the amount of heroin found on Shonubi by eight produced a total of 3,419.2 grams. Under the Sentencing Guidelines, possession of at least 3,000 but less than 10,000 grams of heroin is a "level 34" offense. See U.S.S.G. § 2D1.1 (1994) (drug quantity table).

  The sentencing court rejected the defendant's argument that he deserved a reduction for his "minor" role in the offense. See U.S.S.G. § 3B1.2. It held that a

  Shonubi I, 802 F. Supp. at 864.

  The government contended that the defendant's perjury at trial and sentencing constituted per se obstruction of justice, requiring enhancement under § 3C1.1 of the Sentencing Guidelines. The sentencing court held the enhancement provision should not be imposed whenever a defendant lies in court, but only in furtherance of the goals of sentencing enumerated by Congress at 18 U.S.C. § 3551 et seq. In this case, the defendant's lies had led to the discovery of seven previously unknown smuggling trips. The sentencing judge observed:

The Guidelines' predilection for incarceration should be satisfied by adding ten years for defendant's exercising his right to a trial and to testify. Penalizing defendant additionally for what amounts to the same conduct (the maintenance of his own defense) would be inappropriate and cruel.

  802 F. Supp. at 863.

  The sentencing range for a level 34 offense, for an offender in defendant's criminal history category -- "I" -- is 151-188 months. Shonubi was sentenced to 151 months, plus five years' supervised release and a $ 100 assessment.

  D. Appeal

  Shonubi appealed from his sentence on two grounds. First, he argued that the government had failed to prove how much, if any, heroin he had imported on trips prior to the offense of conviction. Second, he contended that the court should have reduced his offense level by four points for his "minimal role in the offense." U.S.S.G. § 3B1.2.

  The government cross-appealed. It argued that the court was obligated, in light of Shonubi's perjury, to impose a two-point obstruction of justice enhancement under § 3C1.1.

  The court of appeals found that the record amply supported the trial court's determination that Shonubi had made a total of eight related smuggling trips in 1990 and 1991.

The conflicting accounts in Shonubi's passport and his work attendance records amply prove that he made eight trips to Nigeria on more than one passport. It may also be inferred that appellant imported heroin during each of these journeys because he used two passports, traveled frequently, avoided using direct ...

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