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UNITED STATES v. ADONIS

August 2, 1990

UNITED STATES of America
v.
Wayne ADONIS a/k/a Mark Payne


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE.

 This case is here for resentencing and for a determination whether a departure from the Sentencing Commission guidelines is warranted.

 Defendant Wayne Adonis and his co-defendant Garfield Scott were indicted on September 15, 1988, for drug conspiracy in violation of 21 U.S.C. § 846 and for possession with intent to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). The latter offense carries a statutory minimum sentence of ten years, and the guidelines issued by the Sentencing Commission require a sentence of at least twelve and one-half years. *fn1" Subsequently, the government filed a superseding information, charging the defendants instead with conspiracy pursuant to 18 U.S.C. § 371, which carries a maximum penalty of five years, without a mandatory minimum, and both defendants ultimately pleaded guilty.

 When Scott came up for sentencing, the Court found that, based upon his offense conduct, the guidelines prescribed a sentence of between 121 and 151 months. *fn2" In view of the five-year maximum prescribed by section 371 of the Code, Scott was sentenced to that term of imprisonment. *fn3"

 On February 9, 1989, Adonis appeared before the Court for sentencing. It became quickly apparent that, as between the two defendants, he was by far the less culpable, on several bases. By Scott's own admission, the cocaine found in the house belonged to him rather than to Adonis. Cocaine in Adonis' possession (in his lap) was actually thrown at him by Scott at the very time of the police raid. *fn4" Adonis' persistent claim that prior to Scott's arrival at the house where the cocaine was found, he was unaware of any illegal drug scheme is corroborated not only by Scott's unequivocal assumption of responsibility for the drugs, but also by the fact that Adonis resides in New York and had apparently just arrived in Washington, D.C., for a visit. Further, Adonis, unlike Scott, *fn5" does not have a criminal record involving drugs. *fn6"

 At the time of sentencing, the Court deemed that it was unfair and inconsistent with the principle of individualized treatment that, when confronted with two co-defendants, they be given identical sentences, if one was patently far less involved with the offense than the other, had a far less active role, and had not been involved in drug trafficking in the past. Accordingly, the Court concluded that, in view of the differences between Scott and Adonis with respect to guilt, knowledge, limited intelligence, background, and participation in the offense, Adonis should receive a three-year sentence where Scott had been sentenced to five years. The prosecution insisted that, in obedience to section 5G1.1(a) of the guidelines (see note 3, supra), the Court was required to impose a five-year sentence on Adonis irrespective of the difference in culpability and the other differences between the two defendants. *fn7"

 The government appealed, and the Court of Appeals reversed, noting that this Court's reasons for its departure from the guideline sentence were not clear from the transcript of the sentencing hearing, and it returned the case to this Court for resentencing. *fn9" 282 U.S. App. D.C. 1, 891 F.2d 300 (D.C.Cir. 1989).

 II

 On May 17, 1990, in compliance with the mandate of the Court of Appeals, this Court held a new sentencing hearing. In the course of that hearing, defendant, inter alia, requested a departure from the guideline sentence pursuant to section 5K2.13 on grounds of diminished mental capacity, *fn10" and his counsel stated that he would obtain an evaluation by a psychologist with respect thereto. There then occurred a series of events characterized by a determination by the prosecution to proceed with its evaluation of defendant exactly how and when it wished, irrespective of any other considerations.

 On May 24, 1990, the prosecution moved for an order directing the defendant to submit to a government-sponsored psychiatric and psychological examination in addition to the psychological examination arranged for by the defense, and it requested that defendant be transported for that purpose to the Federal Correctional Institution at Butner, North Carolina, and committed to the psychiatric ward there for a period of forty-five days. On June 15, 1990, the Court granted the government's motion for such examinations, but it denied the request that they be conducted at the Butner penitentiary, explaining that, contrary to the government's assumption that the examination had to be "of the type utilized in determinations of guilt or innocence," a less comprehensive examination was indicated since the results were to be used in the context of a sentencing hearing, rather than in a trial. *fn11" On June 28, 1990, the government moved for reconsideration, insisting once again that defendant be committed to Butner for forty-five days, *fn12" but since this motion offered nothing new, it was denied.

 On July 10, 1990, the very date scheduled for the sentencing hearing, *fn13" the prosecution asked for a continuance on the sole ground that the Assistant U.S. Attorney William O'Malley, Chief of the Narcotics Section of the U.S. Attorney's Office, who had assigned the resentencing proceeding of Adonis to himself, had only just then realized that the hearing was scheduled for that very date. *fn14" Notwithstanding this failure to show good cause, the Court continued the hearing to the following day in order to provide the prosecution with an ...


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