Filed: Feb. 01, 1996
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 2-1-1996 United States v. Brothers Precedential or Non-Precedential: Docket 95-1303 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "United States v. Brothers" (1996). 1996 Decisions. Paper 225. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/225 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 2-1-1996 United States v. Brothers Precedential or Non-Precedential: Docket 95-1303 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "United States v. Brothers" (1996). 1996 Decisions. Paper 225. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/225 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
2-1-1996
United States v. Brothers
Precedential or Non-Precedential:
Docket 95-1303
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"United States v. Brothers" (1996). 1996 Decisions. Paper 225.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/225
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-1303
___________
UNITED STATES OF AMERICA
v.
CLAYTON S. BROTHERS a/k/a
CLAYTON COSOM a/k/a
JAKE
Clayton S. Brothers,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 94-360-02)
___________
Submitted Under Third Circuit LAR 34.1(a)
January 12, 1996
Before: SCIRICA, ALITO, SAROKIN, Circuit Judges
(Opinion Filed: February 1, 1996)
Ellen C. Brotman
Elaine DeMasse
Federal Court Division
Defender Ass'n of Philadelphia
437 Chestnut Street
Lafayette Building, Suite 800
Philadelphia, PA 19106
Attorneys for Appellant
Joseph T. Labrum, III
Assistant United States
Attorney
615 Chestnut Street, Suite
1250
1
Philadelphia, PA 19106
Attorney for Appellee
2
________________
OPINION OF THE COURT
________________
SAROKIN, Circuit Judge:
The Federal Sentencing Guidelines are lenient in prescribing
what a court may consider in determining the appropriate
sentence. Although a court may consider information which would
be inadmissible at the guilt phase, such information must have
sufficient indicia of reliability to justify the court's reliance
upon it.
In a drug case, the amount of drugs involved has a
substantial impact upon the severity of the punishment.
Accordingly the need for sufficient indicia of reliability is
particularly manifest when findings regarding the quantity of
drugs are predicated upon evidence which standing alone does not
meet the higher standard of admissibility.
In the instant case, the defendant was convicted of a drug
conspiracy after lending a small sum of money to his cousin for
the purchase of cocaine and driving him to the site of the
transaction. After conviction, the court increased the
defendant's sentence based on the amount of drugs involved. We
conclude that the hearsay evidence upon which the court relied in
this matter, which was in direct conflict with the sworn
testimony of the source, does not meet the test of reliability,
and hold that the government did not meet its burden of
establishing that Mr. Brothers knew the quantity of drugs
involved in the transaction. Accordingly, the judgment of
3
sentence will be vacated and remanded to the district court for
resentencing.
I. Facts and procedural posture
On August 10, 1993, Clayton S. Brothers received a telephone
call from his cousin, Torrance Cosom. Mr. Cosom had been
negotiating a deal to purchase ten kilograms of cocaine for
several days, for the price of $19,000 a kilo, or $190,000
overall. Mr. Cosom was supposed to meet with the alleged seller,
Anthony Resto, and was calling to borrow the balance of the
payment from his cousin. Mr. Cosom contends that he borrowed
$6000 from his cousin; Mr. Brothers maintains that the amount was
$3000.
In either event, Mr. Brothers agreed to Mr. Cosom's request,
and lent him money. At his cousin's request, Mr. Brothers then
drove him to the site where the deal was to be completed. When
they arrived at the location, Mr. Cosom met with Mr. Resto by the
trunk of the car, where the money was kept. They took the money
to the back seat of the car, allegedly to complete the
transaction.
Unfortunately for the two cousins, however, Mr. Resto was a
witness cooperating with the government, and agents of the
Federal Bureau of Investigation were monitoring the exchange.
After an amount of time sufficient to collect the evidence they
needed, the FBI agents descended on the scene and arrested
Messrs. Cosom and Brothers. Mr. Cosom promptly pledged
4
cooperation and asked how he could help himself. Appendix at
100a. An FBI agent interrogated him, and in those conversations
Mr. Cosom gave an account of Mr. Brothers's involvement in the
transaction. Most relevant for our purposes here, Mr. Cosom
claimed that Mr. Brothers was fully aware of the quantity of
drugs at stake.
Messrs. Cosom and Brothers were not arrested at the time,
but were placed under arrest later on and indicted for conspiracy
to possess with intent to distribute cocaine in violation of 21
U.S.C. § 846(a), attempt to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and
aiding and abetting, pursuant to 18 U.S.C. § 2. Mr. Cosom was
also charged with two counts of possession of a firearm by a
previously convicted felon, in violation of 18 U.S.C. §922(g)(1).
Both men pled guilty to one count of violating 21 U.S.C.
§846(a). Mr. Cosom was sentenced to ten years in prison.
However, a dispute arose during Mr. Brothers's sentencing as to
whether Mr. Brothers was aware of the amount of drugs to be
purchased by his cousin. The effect of such knowledge would be
to significantly increase Mr. Brothers's sentence. The
presentence investigation report concluded on the basis of Mr.
Cosom's earlier statement that Mr. Brothers knew of his cousin's
intent to purchase ten kilograms of cocaine. Through counsel,
Mr. Brothers objected to the attribution of the drug weight to
him.
A sentencing hearing ensued in the United States District
Court for the Eastern District of Pennsylvania, at which Mr.
5
Brothers called Mr. Cosom to testify. Under oath, Mr. Cosom
repeatedly asserted that Mr. Brothers never knew the amount of
cocaine involved in the failed transaction. The government
called the FBI agent who had initially interviewed Mr. Cosom. The
agent testified to his interview with Mr. Cosom, and in
particular to Mr. Cosom's statement that Mr. Brothers knew the
amount involved in the transaction.
At the conclusion of the hearing, the court announced its
conclusion that based on the evidence presented a transaction of
over five kilograms was foreseeable to Mr. Brothers. Accordingly,
he sentenced Mr. Brothers to 70 months imprisonment and five
years supervised release.
Mr. Brothers now appeals his sentence on the grounds that
the evidence was insufficient to support the court's conclusion
that the appellant knew or should have known that the transaction
negotiated by his co-conspirator involved more than five
kilograms of cocaine. In particular, Mr. Brothers argues that
Mr. Cosom's statement attributing such knowledge to him, which
Mr. Cosom contradicted in the sentencing hearing, lacked
sufficient indicia of reliability to support the court's
conclusion.
II. Jurisdiction
The district court had jurisdiction over the criminal
prosecution of Mr. Brothers for violations of laws of the United
States pursuant to 18 U.S.C. § 3231.
6
We have jurisdiction over this appeal from the district
court's final judgment pursuant to 28 U.S.C. § 1291.
III. Standard of review
With respect to the district court's findings of fact, the
government bears the burden of proof by a preponderance of the
evidence. Miele, 989 F.2d at 663; United States v. McDowell,
888
F.2d 285, 290 (3d Cir. 1989). We review these findings to
determine whether they are clearly erroneous.
Miele, 989 F.2d at
663;
McDowell, 888 F.2d at 291-92. However, we conduct plenary
review of questions of law, such as the admissibility of hearsay
statements.
IV. The "sufficient indicia of reliability" standard
The use of hearsay in making findings for purposes of
Guidelines sentencing violates neither the Sentencing Reform Act
of 1984 nor the Due Process Clause. United States v. Sciarrino,
884 F.2d 95, 98 (3d Cir.), cert. denied,
493 U.S. 997 (1989);
United States v. Inigo,
925 F.2d 641, 660 (3d Cir. 1991). The
sentencing court can give a high level of credence to hearsay
statements, going so far as to "credit hearsay evidence over
sworn testimony, especially where there is other evidence to
corroborate the inconsistent hearsay statement." U.S. v. Miele,
989 F.2d 659, 664 (3d Cir. 1993). However, in order to avoid
"misinformation of constitutional magnitude," Sciarrino,
884 F.2d
7
at 97, we require that "information used as a basis for
sentencing under the Guidelines . . . have 'sufficient indicia of
reliability to support its probable accuracy.'"
Miele, 989 F.2d
at 663; see also United States v. Torres,
926 F.2d 321, 324 (3d
Cir. 1991) (noting necessity that information upon which
Guidelines sentences are based be reliable). The Sentencing
Guidelines themselves provide:
In resolving any reasonable dispute concerning a factor
important to the sentencing determination, the court
may consider relevant information without regard to its
admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient
indicia of reliability to support its probable
accuracy.
U.S.S.G. § 6A1.3(a) (1995). The commentary to § 6A1.3 further
provides:
In determining the relevant facts, sentencing judges
are not restricted to information that would be
admissible at trial. 18 U.S.C. § 3661. Any
information may be considered, so long as it has
"sufficient indicia of reliability to support its
probable accuracy." Reliable hearsay evidence may be
considered. Out-of-court declarations by an
unidentified informant may be considered "where there
is good cause for the nondisclosure of his identity and
there is sufficient corroboration by other means."
U.S.S.G. § 6A1.3(a), Commentary. We have held that "this
standard ["sufficient indicia of reliability"] should be applied
rigorously." Miele, 989 F.2d at 664.
8
In Miele, we vacated the sentence imposed on the defendant
because the statements used to support the factual findings for
sentencing were found to fall short of the "sufficient indicia of
reliability" standard. The statement at issue, involving the
quantities of drugs transacted by the defendant, was from the
testimony of Frank Habera, an informant and drug addict at the
time of the events in question. We outlined three flaws in the
district court's reliance on Mr. Habera's statement. First, we
found that "[t]he vast disparity between Habera's estimate in the
PSI and the significantly lower estimates he provided at the co-
defendants' trial casts doubt on the reliability of the PSI's
estimate, particularly in view of Habera's status as an addict
informant." Id. at 664. Second, "the district court did not
address the inconsistency between Habera's various estimates, and
did not explain why it apparently followed Habera's hearsay
estimate in the PSI rather than the lower estimates Habera
provided under oath . . . ."
Id. Third, "no other witnesses
testified as to specific drug quantities."
Id. at 65. While
there was ample evidence of Miele's "extensive and continued"
involvement with cocaine, we found that "a determination that
Miele's drug activity was substantial does not translate readily
into a specific drug quantity finding, which is the ultimate
issue for sentencing purposes."
Id. at 668. In light of the
inconsistencies in Mr. Habera's statements, the district court's
failure to explain its adoption of the PSI statement over that
under oath, and "the lack of other corroborating evidence to
9
support Habera's hearsay estimate," id. at 665, we vacated the
sentence and remanded for further factfinding.
Id. at 668.
As the Third Circuit has emphasized in the past, we should
exercise particular scrutiny of factual findings relating to
amounts of drugs involved in illegal operations, since "the
quantity of drugs attributed to the defendant usually will be the
single most important determinant of his or her sentence." United
States v. Collado, 975 F.2d 985, 995 (3d Cir. 1992). This
mandate is only reinforced when the court seeks to attribute the
quantity of drugs to an accomplice.
Accomplice attribution often results in a dramatic
increase in the amount of drugs for which the defendant
is held accountable, which translates directly into a
dramatic increase in the sentence. As we have
explained, whether an individual defendant may be held
accountable for amounts of drugs involved in reasonably
foreseeable transactions conducted by co-conspirators
depends upon the degree of the defendant's involvement
in the conspiracy. In assessing the defendant's
involvement, courts must consider whether the amounts
distributed by the defendant's co-conspirators were
distributed "in furtherance of the . . . jointly-
undertaken . . . activity," were "within the scope of
the defendant's agreement," and were "reasonably
foreseeable in connection with the criminal activity
the defendant agreed to undertake." U.S.S.G. § 1B1.3,
application note 1. We wish to emphasize that in
deciding whether accomplice attribution is appropriate,
it is not enough to merely determine that the
defendant's criminal activity was substantial. Rather,
a searching and individualized inquiry into the
circumstances surrounding each defendant's involvement
in the conspiracy is critical to ensure that the
defendant's sentence accurately reflects his or her
role.
Id. This standard applies in particular when the court seeks to
determine "whether a particular defendant may be held accountable
10
for amounts of drugs involved in transactions conducted by a co-
conspirator." Id. at 992.
V. The district court's analysis
The court relied on certain factual findings in sentencing
Mr. Brothers. One central finding, which is in dispute here, is
that Mr. Brothers had knowledge of the quantities of cocaine
involved in the transaction that was to take place on August 10,
1993. To reach its conclusion, the court relied on hearsay
testimony by FBI Special Agent Bud Warner reporting alleged
statements by Mr. Cosom imputing such knowledge to Mr. Brothers.
As in Miele, Mr. Cosom contradicted his earlier, unsworn
statement when he testified under oath at Mr. Brothers's
sentencing hearing. As in Miele, there was no other witness to
corroborate the facts alleged in Mr. Cosom's earlier statement.
The court, however, found that elements in the record constituted
sufficient corroborating evidence to admit Agent Warner's hearsay
testimony and, on that basis, the court chose to credit Mr.
Cosom's earlier, unsworn statement over his later statements
under oath.
A. The inconsistent statements
During Clayton Brothers's sentencing hearing, the government
called as a witness Special Agent Bud Warner, the FBI agent in
the case. Mr. Warner testified that he took Mr. Cosom into his
custody on the day of the attempted drug sale, Appendix at 60a,
that Mr. Cosom waived his constitutional rights, "stated that he
did not want to be arrested and prosecuted for this crime," and
11
that "he would cooperate fully with the FBI." Id.; see also id.
at 100a (Federal Bureau of Investigation report, Aug. 24, 1993)
("COSOM stated that he did not want to go to jail and inquired as
to how he could help himself."). According to Mr. Warner, Mr.
Cosom told him that day that "Mr. Brothers was fully aware that
they were -- he was to pick up ten kilograms of cocaine that
day." Id. at 61a. Mr. Cosom did not disavow this statement in
subsequent proffer sessions.
Id. at 50a.
However, Mr. Cosom's own testimony during the sentencing
hearing contradicted the statement he allegedly made to Mr.
Warner. When asked if Mr. Brothers knew prior to the deal that
Mr. Cosom intended to purchase ten kilograms of cocaine, Mr.
Cosom replied, "He never knew the amount." Id. at 40a; see also
id. at 49a ("I don't think he knew about the ten. He knew I was
going to meet somebody about the coke, though."); id. at 52a ("He
knew I was going to buy it, but he didn't know, you know, how
many, the amount."); id. at 54a (THE COURT: "Did he know how much
money you had?"; MR. COSOM: "No, I don't believe so.");
id. at
56a (Q: "[I]s it your recollection that [Mr. Brothers] knew or
did not know the amount of drugs you were going to buy on the
date of this incident?"' A: "He didn't know.").1
1
The government suggests that Mr. Cosom admitted at Mr.
Brothers's sentencing hearing that Mr. Brothers knew of the
quantity involved. Appellee's Brief at 4. The government's
claim is based on the following exchange:
THE COURT: And he [Mr. Brothers] knew you were
going down there to buy the ten K, right?
MR. COSOM: Yes.
Appendix at 55a. Taken out of context, this exchange could
indeed support the government's claim. In context, however, it
is clear that Mr. Cosom was commenting not on Mr. Brothers's
12
B. The court's assessment
Near the conclusion of the hearing, the court announced its
decision on the issue, which we cite here verbatim:
All right. I've given a considerable amount of
thought to this case and I think the bottom line is
that I'd be closing my eyes to the obvious if I were to
find that the calculation by the probation officer here
was inaccurate.
It seems to me based on the facts we have before
us that, first of all, the scope of the conspiracy was
to buy a large amount of cocaine, in this case ten
kilograms, and that it was reasonably foreseeable to
Mr. Brothers, who knew the defendant, was a cousin of
the defendant, had had prior dealings with him, it was
reasonably foreseeable for him to suspect that there
was going to be a great deal more than five kilograms
purchased. And part of that is based upon, as I said,
the knowledge he has of Mr. Cosom.
The other part is based upon the obvious
quantities of money that were involved here, that made
it clear that the amount he was contributing was but a
small portion of a large amount that was going to be
used to purchase a substantial amount of drugs. And I
think it's clearly foreseeable that that amount was
over five kilograms.
The other facts which support that are the
testimony of Mr. Cosom and the -- as well as the
statements he's made in the past, which I tend to
believe the statements he made in the past were more
accurate than those he made today in the presence of
his cousin. And therefore I find that the base offense
level of 32 is correct.
Appendix at 78a-79a.
Based on the court's statement, it appears that the court
relied primarily on two factors in crediting Mr. Cosom's hearsay
knowledge of the quantity involved but on his knowledge of the
purpose of the trip. Right after that exchange, Mr. Brothers's
attorney jumped in to ask Mr. Cosom, "So that I'm clear, did --
is it your recollection that my client knew or did not know the
amount of drugs you were going to buy on the date of this
incident,?" id. at 56a, to which Mr. Cosom responded, "He didn't
know."
Id.
13
statements over those he made under oath, at the sentencing
hearing: (a) Mr. Brothers's knowledge of Mr. Cosom through their
family relationship and prior dealings; (b) the quantities of
money involved.
C. The corroborating evidence
The district court relied on two elements as corroborating
evidence for Mr. Cosom's statement attributing to Mr. Brothers
knowledge of the quantities of cocaine involved in the failed
transaction of August 10, 1993: the personal relationship between
the two men, and Mr. Brothers's presence at the site of the deal.
1. Mr. Brothers's knowledge of Mr. Cosom
The first element on which the court allegedly relied was
the existing relationship between Messrs. Brothers and Cosom.
There is simply nothing in the relationship that could constitute
corroborating evidence for the claim that Mr. Brothers knew the
quantities involved in the planned purchase on August 10, 1993.
There is nothing about the fact that the two men are cousins that
would indicate to Mr. Brothers that Mr. Cosom intended to
purchase ten kilograms of cocaine.
As for Mr. Brothers's knowledge of Mr. Cosom's past history
of drug dealing, far from supporting the government's position,
it undermines it. The government points out in its brief that
"Cosom [had] supplied Brothers with 4.5 ounce quantities of
cocaine on three separate occasions." Appellee's Brief at 17;
see also Appendix at 44-45a, 51-52a. If anything, the fact that
Mr. Brothers's past drug transactions with Mr. Cosom involved
relatively small amounts supports the position that it was not
14
reasonably foreseeable for him to expect that the August 10
transaction would involve ten kilograms of cocaine. While it is
true that Mr. Cosom started buying kilogram quantities of cocaine
in the Fall of 1991, Appendix at 49a, there is nothing in the
record to indicate that Mr. Brothers knew of that fact.
2. The sums of money involved
The second piece of corroborating evidence mentioned by the
court is the sums of money involved in the transaction. The
amount involved, in and of itself, indicates nothing about Mr.
Brothers's knowledge of the quantity of drugs involved. A
correlation can only be made if Mr. Brothers knew how much money
was involved, and if from that knowledge he could reasonably
foresee the quantity of cocaine involved. The various elements
from which such knowledge might be imputed include: (1) Mr.
Brothers's loan to Mr. Cosom; (2) the conversation between Mr.
Cosom and the government informer, Anthony Resto, during the
transaction; (3) the presence of the bags containing the money in
the car; and (4) Mr. Brothers's statement supporting his cousin's
representation to the government informant that all the money was
there.
First, no knowledge of the quantity of cocaine involved can
be imputed from the amounts of money that Mr. Brothers lent Mr.
Cosom. The court found that the amount of the loan was $6000,
which according to Agent Warner would suffice for a wholesale
purchase of "probably a quarter kilo of cocaine." Appendix at
69a. There is no reason to conclude that, based on his loan of
$6000 to his cousin, Mr. Brothers could somehow foresee that the
15
total amount of the transaction -- $190,000 -- was more than
thirty times that amount.
Second, the conversation between Messrs. Cosom and Resto, as
it is transcribed in the record, cannot support such a finding
either. The government states that "[i]n the consensual
recording of the August 10 meeting, Cosom, referring to the cash-
laden gym bag, told Resto, in the presence of Brothers, that,
'There's two hundred there.'" Appellee's Brief at 15. The
transcript of the recording indicates that the following exchange
took place:
AR: You got it a lot of bags?
TC: Only in one big bag.
AR: Well, just put it in the car.
TC: What car? Your car?
AR: No, your car.
TC: I ran it.
AR:I know, but I don't want to be reachin in
the trunk, you know what I'm sayin'.
TC: Oh, you want me to put the money in it.
AR:Yeah, just put it in the back seat. Fuck
it. Put it, just put it in the back seat like
this.
TC: You sit in it.
TC: There's two hundred there.
AR: What's up, aye?
CB: I'm Jake, man.
Appendix at 96a-97a. We know that the following sequence of
events occurred: Messrs. Cosom and Resto went to the trunk of
16
Mr. Cosom's car to look at the two bags containing the money, and
they took those bags to the back seat of Mr. Cosom's car. The
whole time, Mr. Brothers was sitting in the driver's seat of Mr.
Cosom's car. What we don't know is how the images fit with the
soundtrack -- i.e., the transcript. That is, we don't know where
the participants were when certain words were said. In
particular, we do not know where Messrs. Cosom and Resto were
when Mr. Cosom told Mr. Resto, "There's two hundred there." They
could have been in the back seat, audible to Mr. Brothers; they
could just as easily have been standing outside the car, having
just put the bags inside, and beyond Mr. Brothers's auditive
reach. (Messrs. Brothers and Resto did not greet each other
until after this exchange.) There is simply no way to favor one
scenario over the other, and no support for the government's
claim that "the transcript of the August 10 meeting, read in
context, establishes that Brothers was present at the time Resto
placed the money in the back seat of the vehicle and Cosmo
advised him that there was $200,000 present there." Appellee's
Brief at 22. Therefore, because there is no way to conclude that
Mr. Brothers did hear the reference to "the two hundred," we find
that the exchange could not constitute an indicia of reliability
for Mr. Warner's hearsay statement. (Furthermore, as Mr.
Brothers rightly argues in his brief, "Cosom could just as easily
have been pointing to a bundle which contained two hundred
dollars." Appellant's Reply Brief at 5.)
17
Messrs. Cosom and Resto had a second conversation regarding
money during the attempted drug purchase, this one clearly in the
presence of Mr. Brothers.
AR: What, what this in staacks [sic] of bill?
TC: Hum?
AR: I'm sayin, I'm sayin. . .
TC: These five, these five.
AR: Oh, alright, man.
AR: Five "G's."
TC: There's two bags. There's another bag under that. See
it? It's a white bag.
CB: Yeah, with the ink stains.
AR: This is what?
TC: That's five. Five grand.
AR: Five.
TC: That's a grand, that's a grand. (unintelligible)
AR: Five.
TC: Five. Five, five, five, five.
Appendix at 97-98a.
Again, with just the sound and no image, it is impossible to
infer from this exchange any knowledge on the part of Mr.
Brothers. We do not know whether he was looking at the other
protagonists as the conversation was taking place; and if he was,
we do not know what he could and could not see, or whether or not
the various stacks were in his line of vision.
The third possible indication that Mr. Brothers had
knowledge of the sum of money involved, and could therefore
18
reasonably foresee the quantity of drugs at stake, is the
presence of the two money-filled bags in the back of the car.
Again, though, there is no evidence that Mr. Brothers had a full
view of the bags, that he could translate what he could see into
an approximate sum of money, and that he could establish a
correlation between the estimated sum of money and the quantity
of drugs it could purchase. The cost of buying just under five
kilograms of cocaine at the time of the failed transaction was
close to $100,000. Even that amount, in small enough
denominations -- say $10, $20 or even $50 bills -- would have
taken up quite a bit of space. The presence of the two bags,
therefore, was not corroborating evidence for Mr. Warner's
hearsay statement. (There is also no evidence that photographs
of the two bags open, with the money clearly visible, correspond
to the state of the bags when they were within Mr. Brothers's
sight.)
Finally, the fourth possible evidence is a statement by Mr.
Brothers during the transaction. An exchange took place during
which Mr. Resto was trying to ensure that all the money he was to
receive for payment was contained in the two bags.
AR: But it ain't short, right?
TC: It ain't short.
CB: He said it's right, man.
Appendix at 98a. This does not necessarily represent evidence of
Mr. Brothers' personal knowledge of the amount involved, but more
likely, as Mr. Brothers contends, a statement that "merely
19
evinces support for Cosom and a desire to conclude a deal."
Appellant's Brief at 16.
D. The more reliable statement
The district court gave one final reason for its finding
regarding Mr. Brothers's knowledge of the quantity of drugs
involved: "I tend to believe the statements [Mr. Cosom] made in
the past were more accurate than those he made today in the
presence of his cousin." Appendix at 79a.
Of course, assessments of credibility by the trial court are
entitled to great deference at the appellate level. However, the
past statement of Mr. Cosom, reported as hearsay by Agent Warner,
lacked "sufficient indicia of reliability to support its probable
accuracy" and therefore could not support the court's conclusion
regarding Mr. Brothers's knowledge of the amount of drugs
involved. There was simply no occasion for the court to compare
the credibility of a hearsay statement that was not properly
admitted with that of another statement made under oath.
We note, however, that both sides have commented on the
issue of the statements' respective credibility. We are not
persuaded by the government's description of Mr. Cosom's earlier
statement as "made at a time when Cosom had no motive to protect
his cousin or to fabricate falsehoods." Appellee's Brief at 11.
Mr. Cosom's earlier statement was made right after he "inquired
as to how he could help himself." Appendix at 100a. There is a
motive right there: in the context of this case, it seems no less
plausible that Mr. Cosom would make up certain facts that could
be of use to the police against an accomplice in order to reduce
20
a certain prison sentence than that he would lie on the stand and
under oath to protect a member of his family.
VI. Conclusion
Because of Mr. Cosom's inconsistent statements and the lack
of "sufficient indicia of credibility" for Mr. Warner's hearsay
testimony, the district court committed clear error under Miele
when it used as a basis for its sentencing of Mr. Brothers the
information contained in Mr. Cosom's earlier statement.
Therefore, we vacate the judgment of sentence and will remand to
the district court for resentencing in accordance with this
opinion.
21
