The opinion of the court was delivered by: Lewis Kaplan, District Judge
The defendant was convicted on September 23, 2002 and has been awaiting sentencing ever since. The long and regrettable saga of delays and postponements — some attributable to the defendant and a few not — is set forth on the record of the proceedings on the last of several sentencing dates. Tr., June 26, 2003, at 4-8. Sentencing once again is scheduled for today.
Part of the problem has been a long series of changes of course by the defendant as to whether he wanted a Fatico hearing on the issues of drug quantity and role and, if so, whom he wished to call. See id. The role issue finally was resolved by the Court, after submissions by both sides, in an order dated May 16, 2003, as corrected by an order dated June 1, 2003. In part, the Court resolved the issue on the basis of its interpretation of the testimony of Clifford Granston, defendant's uncle and a cooperating witness for the government at both of defendant's trials before the undersigned.
At the June 26, 2003, hearing, weeks after the issue had been resolved, one of Coleman's present counsel advised the Court for the first time that she had spoken to Granston following the Court's ruling and that Granston had indicated that he would be prepared to say that the Court had misunderstood his testimony and that Coleman was not his manager or supervisor. Id. at 12-13. She suggested that the matter be put over for a week because she supposed that the Court would want to see "a sworn statement [by Granston] . . . either refuting or explaining or somehow undercutting [the] decision about role . . ." Id. at 17. Later in the proceedings, her co-counsel asked for leave to "submit something from Granston . . . an affidavit or a letter" on the role issue. Id. at 30. The Court responded as follows:
"This is, as far as I'm concerned, a very
simple proposition. The role issue was brief, I
decided it. The Federal Rules of Criminal Procedure
and whatever other relevant procedural law controls
from here on. You make an application, I will rule
on it." Id. at 32.
Sentencing was scheduled for today.
By letter dispatched on the eve of the Fourth of July holiday, Coleman seeks reconsideration of the Court's June 1 ruling. Alternatively, he asks for a Fatico hearing at which he would call Granston as a witness.
The Court has reconsidered the June 1 ruling. Without unduly burdening the record, Granston testified at the second trial that he learned from Simpson that Coleman company trucks were hauling marihuana, that he decided he wanted to make money by driving such loads, and so he spoke to Carl Coleman about his desire. Tr. 166-67. Carl Coleman "concurred," Id. 167, which the Court construes as indicating some managerial role in the enterprise. While Paul Coleman then explained the logistics to Granston, he discussed with Carl Coleman the plan to do the shipments on weekends, where to store them while they were transported from California, and where to place the drugs on the trailers. Id. 167-69. Both Carl and Paul Coleman told Granston that the shipments were going "[t]o the east coast. Philadelphia, Maryland." Id. 169. Further, Carl Coleman discussed with Granston how to add and remove illegal cargo to and from sealed loads without breaking the seals. Id. 171. The Court has considered also Granston's testimony at the first trial and all of the matters raised in counsel's submissions.
While the Court understands that the defendant puts a different "spin" on Granston's trial testimony, the Court has construed and drawn such inferences from it as seem appropriate. The Court finds that Coleman was knowledgeable about the illegal marijuana shipping activities of the family company and that he behaved in a manner suggestive of a managerial or supervisory role in the operation. It is undisputed that the illegal activity involved five or more participants. The Court therefore reiterates its finding, based on a preponderance of all the evidence, that Coleman was a manager or supervisor of the relevant criminal activity, which involved five or more participants. See U.S.S.G. § 3B1.1.
The request for a Fatico hearing on this issue is denied. This new application adds nothing to what was said on June 26, least of all any sworn or, for that matter, other direct statement by Granston. The most that counsel now say is that they "believe," based on a number of conversations with Granston, "that his testimony will not support the government's request for an enhancement." Letter, Valerie S. Amsterdam and John H. Jacobs, July 3, 2003, at 3-4. The Court declines to conduct a Fatico hearing based on such speculation, especially in circumstances in which counsel's comments at the June 26 proceeding so cleared evidenced awareness of the need for an affidavit or other sworn statement from Granston.
The application for reconsideration is granted. On reconsideration, the Court adheres to its prior ruling. The alternative request for a Fatico hearing for the purpose of taking testimony from Clifford Granston is denied.
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