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March 24, 1993


The opinion of the court was delivered by: LOUIS F. OBERDORFER

 Defendant Derrick Ingram was before me on February 4, 1993, after he pled guilty to maintaining a crack house in violation of 21 U.S.C. § 856(a)(2). For reasons stated from the bench and in a memorandum to be filed, Ingram was sentenced to the four and one-half months he had served between a first and second trial on a related indictment, since dismissed. This is the memorandum anticipated at sentencing.


 On March 18, 1991, Metropolitan Police Department officers executing a search warrant at premises leased to one Vernon Harrison, found Ingram and Maurice Copeland and arrested them. On April 16, 1991, the prosecution filed a one count indictment charging Ingram and Copeland with possession with intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). After pleading not guilty, they were released pending trial.

 For the second trial, Ingram's new counsel, Dale, traveled to South Carolina and located and subpoenaed Harrison. With Harrison as a witness, *fn1" Ingram put on a strong affirmative defense to the p.w.i.d. indictment. The second jury was unable to reach a verdict with respect to either Copeland or Ingram.

 Shortly thereafter the prosecution requested, and I scheduled, a third trial of the two defendants. Additional doubts about the credibility of the prosecution's evidence and the relative roles of Ingram and Copeland, however, and the fact that Copeland was not detained and Harrison was not charged, persuaded me to release Ingram pending the third trial.

 Before the third trial, the parties negotiated an agreement in which the prosecution dismissed the charges against Copeland and Ingram agreed to plead guilty to the new and lesser charge of maintaining a crack house. Ingram entered this agreement in reliance on the prosecution's commitments that it would dismiss its original p.w.i.d. indictment altogether and that the sentencing decision on the new charge could include any enhancement or adjustment mandated by the Guidelines (some of which were listed in the plea agreement). In particular, the agreement committed the prosecution not to "oppose a two-level reduction in the base offense level for acceptance of responsibility." Plea Agreement Filed September 10, 1992 P 2.

 Dale subsequently filed an extensive presentence memorandum, supported by exhibits, which recommended that the base offense level be adjusted for Ingram's acceptance of responsibility through drug rehabilitation, his role in the offense, extraordinary family circumstances, and the prosecution's withholding of Brady information. The prosecution challenged Ingram's request for any downward adjustment (including any adjustment for acceptance of responsibility) in violation of its plea agreement. Indeed, the prosecution recommended enhancement of the base offense level on the theory that Ingram played a key role in the offense.

 The Probation Officer originally recommended a two-level downward adjustment to the base offense level for Ingram's acceptance of responsibility in entering the plea, as provided by the plea agreement. This would have resulted in an offense level of 14 and a sentencing range of 15 to 21 months. In conference with me before the sentencing hearing on February 4, 1993, however, the Probation Officer determined, on reflection, that Ingram was entitled to a three-level reduction for acceptance of responsibility under the new amendment to U.S.S.G. § 3E1.1, effective November 1, 1992, as well as a two-level reduction for Ingram's minor role in the offense. U.S.S.G. § 3B1.2(b). The Probation Officer therefore determined that Ingram's offense level should be reduced to a level 11, resulting in a minimum Guidelines sentence of eight months. Because Ingram already had served four and one half months between his first and second trials, an additional four months of home detention satisfied the Guidelines' eight-month sentencing requirement.

 At sentencing, I approved downward adjustments of three levels for acceptance of responsibility and two levels each for Ingram's minor role in the offense and extraordinary family need. The adjustments yielded an offense level of nine and a Guideline minimum of four months -- an appropriate minimum in light of the unusual trial developments and the presentence information outlined below. Ingram accordingly was sentenced to time served, with three years of stringent supervised release. *fn2"



 The preponderance of the evidence presented at both trials and in presentence proceedings establishes the following for the purposes of sentencing: Between March 9 and March 12, 1991, a confidential police informant purchased drugs at Harrison's apartment at 505 Florida Avenue, N.W. See Affidavit in Support of an Application for Search Warrant dated March 12, 1991. A warrant to search the premises was issued and was executed on the night of March 18, 1991. Evidence developed in the course of presentence proceedings (but not available at either trial) established that a second drug purchase was made at the apartment an hour before the police search. *fn3" At that purchase, the confidential informant exchanged a marked $ 20 bill with Copeland. The bill was recovered in the police search an hour later.

 At trial, officers of the Metropolitan Police testified that as they approached the apartment that night, Copeland was visible through a window in the doorway. Copeland dashed into the apartment interior when the officers knocked and announced their presence. When they entered the apartment, Copeland had returned and threatened the police, wielding a large wooden table leg like a baseball bat. The leg had been whittled into a handle at one end for use as a weapon.

 After subduing Copeland, the officers entered the dimly lit living room where Ingram was standing. The floor was strewn with U.S. currency totaling over $ 1,000 in small bills. A search of Ingram's person produced three rental receipts for the apartment signed by Ingram on behalf of Vernon Harrison, the lessee. In the living room, the officers recovered two bags of ziplocks containing approximately 25 grams of crack cocaine. From a cot in the apartment, the officers also recovered a duffel bag containing drug paraphernalia and a police radio scanner. Identification found on Ingram indicated that he lived at another address. None of Ingram's possessions were found in the apartment, and his fingerprints were not found on any of the objects recovered. No drugs were found on his person.

 The first trial was marred by contradictory testimony by the arresting officers as well as errors by defense counsel. At both the first and second trials, testimony by the prosecution's witnesses produced a disturbing conflict regarding whether or not Ingram was holding money in his hand when the police entered, the amount of that money, if any, and whether or not any money was recovered from Ingram's person. The conflict left doubts as to how the bills came to be strewn on the floor and to whom they belonged.

 At the first trial, Officer Todd Williams testified that he was the first officer to enter the premises on March 18, 1991, together with Officer Jeffery Tolliver. Williams testified that when he first saw Ingram, Ingram was standing in the living room and that Ingram had nothing in his hands, either then or thereafter. Tr. 11-19-91 at 26. Sergeant John Hickey and Tolliver testified that Ingram was holding an unknown amount of money when they first saw him, Tr. 11-19-91 at 59, 174, and Sergeant Hickey testified that when Ingram was placed under arrest, he was told to drop the unknown sum of money to the floor. Tr. 11-19-91 at 174. Tolliver testified that the unknown sum was seized by someone from Ingram, but he did not know who seized it, Tr. 11-19-91 at 63. Tolliver and Sergeant Hickey testified that all the money recovered from Ingram was recovered by Officer Richard Anastasi, Tr. at 177, and Williams confirmed that he thought Anastasi had searched Ingram. Tr. 11-18-91 at 19. Anastasi, however, testified that he did not search Ingram, but spent most of his time with Copeland. He stated, in the face of repeated questioning, that he did not remove any money from Ingram but took the money off of Copeland. Tr. 11-19-91 at 70-72, 75-78.

 At the second trial, Tolliver testified that he believed Ingram was holding money in one hand which fluttered to the floor, but could not identify the amount. Tr. 2-7-92 at 82, 83, 90. Sergeant Hickey, the only officer who testified that he observed Ingram holding money and who could quantify the amount, testified that Ingram was holding only a couple of dollars. Tr. 4-8-92 at 12. Anastasi reversed his testimony, stating that he had searched Ingram, found $ 77 in Ingram's hand and $ 540 in Ingram's pocket, and that no money was found on Copeland. Tr. 4-7-92 at 107.

 Despite the conflicting testimony about the quantity of money, if any, that the evidence tied to Ingram, all the money recovered from the floor of the apartment (which totaled over $ 1,000) was placed into envelopes by the police and marked with the name "Derrick Ingram." Thus marked, the envelopes were received in evidence at the first trial. Sergeant Hickey gave unchallenged testimony at the first trial that the government's exhibit envelopes containing the money and the drugs, government exhibits 38, 39, and 40, were marked with a description of their contents, "and then the name of the defendant whom it was taken from [was] on the envelope." Tr. 11-19-91 at 143 (emphasis added).

 At the first trial, the prosecution introduced a marked $ 20 bill that allegedly had been recovered during the execution of the search warrant. Tr. 11-19-91 at 145. The bill was marked with the date "3/18/91" and was identified as having been used by the police informant to purchase drugs at the address. Despite the fact that Ingram's counsel had made a Brady demand for all exculpatory evidence, however, the prosecution had not produced the bill to Ingram's counsel and she was not aware of the bill's existence until it was introduced during Sergeant Hickey's testimony at trial. *fn4" Defense counsel did not cross-examine Sergeant Hickey regarding the bill. ...

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