US vs. Hardee Sentencing Transcript 1/8/15

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United States District CourtCamden, New Jersey

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

______________________________

UNITED STATES OF AMERICA,

Plaintiffs

Vs. NO. 1:12-cr-000734-JEI-2

TERRANCE HARDEE,

Defendant. SENTENCING______________________________

UNITED STATES COURTHOUSEONE JOHN F. GERRY PLAZA4TH AND COOPER STREETSCAMDEN, NEW JERSEY 08101JANUARY 8, 2015

B E F O R E: THE HONORABLE JOSEPH E. IRENAS UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S:

OFFICE OF THE U.S. ATTORNEY BY: JACQUELINE CARLE, ESQUIRE

Counsel for the USA

DAVID RUDENSTEIN, ESQUIRE Counsel for the Defendant

Certified as true and correct as required by Title 28, U.S.C., Section 753.

Karen Friedlander, RMR, CRR

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(OPEN COURT, January 8, 2015, 2:52 p.m.)

THE COURT: Is that Mr. Rudenstein?

MR. RUDENSTEIN: It is, Your Honor.

THE COURT: Everyone, be seated.

MR. RUDENSTEIN: Thank you, Your Honor.

THE COURT: I want you to know we just rested in a

six-month trial.

THE DEPUTY CLERK: Six weeks.

THE COURT: No, six weeks. The previous trial was

six months.

MR. RUDENSTEIN: I know a little bit about it because

I've been talking with Mr. Spade. Mr. Spade and I are going

to be trying a homicide in Philly.

THE COURT: Mr. Spade is a very capable lawyer.

MR. RUDENSTEIN: I know. I've known Mr. Spade for

many --

THE COURT: I know he's very active in the Eastern

District.

MR. RUDENSTEIN: Very intelligent man.

THE COURT: Yeah, he's -- and he has a very nice

manner about him. I mean, not only is he obviously bright,

because all the lawyers are bright actually in this group, but

-- doing -- but he has a nice manner. They all have a nice

manner about them.

MR. SPADE: Judge, my ears are burning.

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THE COURT: Are you here?

MS. CAPUANO: We are all here.

THE COURT: I didn't know you were here.

MR. SPADE: Judge, likewise.

THE COURT: Anyway -- see, my eyesight is not so hot.

So I just saw four blurs here.

Okay. Is it true, Mr. Rudenstein, that you've agreed

to serve three-quarters of your client's sentence? Is that

what I read in your papers?

MR. RUDENSTEIN: I hadn't gotten around to that, Your

Honor, but I have offered --

THE COURT: I think that would be fair.

MR. RUDENSTEIN: I've offered to eat half of his

food.

THE COURT: He'll do one quarter of it and you do

three-quarters of it.

MR. RUDENSTEIN: Well, that might be appropriate

after the case that I tried, Your Honor, so we'll have to see.

THE COURT: Okay. This is the day set for the

sentencing of Terrence Hardee. How do you pronounce it, Hardy

or Hardee?

THE DEFENDANT: Hardee.

THE COURT: Hardee. So this is the sentencing of

Mr. Hardee. This is one of those -- they call it the stash

house stings that the DEA has done, I guess all over the

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country, and the -- oh, let's have the appearances of counsel

first, let's at least do that.

MS. CARLE: Thank you, Your Honor. Good afternoon.

Jacqueline Carle, assistant United States Attorney on behalf

of the government.

MR. RUDENSTEIN: And thank you, Your Honor, David

Rudenstein, CJA, on behalf of Mr. Hardee.

MS. CARLE: Your Honor --

THE COURT: I've been blessed with nothing but nice

lawyers. What can I say?

MS. CARLE: That's as good as it gets, right, Judge?

THE COURT: That's as good as it gets.

MS. CARLE: Judge, in preparing for today, I spoke to

Mr. Rudenstein. It's only a couple pages. I just wanted to

bring it to the Court's attention. I don't know that it

affects much of what we'll do here today. I simply bring it

to your attention, I placed a copy on the bench.

THE COURT: I'm sorry, oh, is that what this is?

MS. CARLE: Yes, Your Honor. It is a copy of the

case from the 9th Circuit, simply because Your Honor has

mentioned this line of cases in our past meetings on this

particular case, and I just wanted to point out that in US v

Dunlap and Whitfield v -- the appeals court from the 9th

Circuit did, in fact, reverse and remand that case, and also

ordered reassignment of the case, which I found interesting.

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THE COURT: They do -- Third Circuit has done that,

actually, in some unusual cases. Isn't it Judge Greenaway,

when he was on the District Court, they reversed it and

reassigned it.

MS. CARLE: Yes.

THE COURT: And not because of anything he did wrong,

nothing, but for whatever the reason, they chose to reassign

it on the resentencing, and that happens --

MS. CARLE: From time to time.

THE COURT: Well, here, let me tell you in advance, I

mean, obviously, I'm aware of a variety of cases both at the

Circuit level as well as at the District Court level that have

cast doubt, let me put it this way, on the stash house stings.

They sometimes approach it from different ways. Some

approach it almost from a due process point of view, others

approach it actually from an ethnic point of view that because

so many of the -- let's call it targets, if that's the right

word, are minority or poor or both.

MS. CARLE: That's why I wanted to point out this

case, Your Honor, because --

THE COURT: I think --

MS. CARLE: I'm sorry.

THE COURT: Well, so far, though, the weight of

authority is still not in favor of reversing. But I've got to

tell you, I'll be perfectly honest with you, I would shed no

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tears here if it were reversed at the Circuit.

One of the reasons I appointed Larry Lustberg in one of

the companion cases is I want him to be the lawyer to take it

up and here, of course, I have a first-rate lawyer who could

also -- capable of taking it to the Circuit and, believe me, I

wouldn't shed a tear --

MS. CARLE: I realize that, Your Honor.

THE COURT: -- if the Circuit found -- I don't know

which way they would approach it, they could affirm or

whatever. But I'm going to do my thing here.

MS. CARLE: I understand.

THE COURT: You know, and I appreciate your giving me

this. I think Fletcher, Judge Fletcher is the son of Betty

Fletcher, who was also a 9th Circuit Judge, if I'm not

mistaken.

MS. CARLE: That, I don't know, Your Honor.

THE COURT: Well, I know that Betty Fletcher's son

was appointed to the 9th Circuit. That, I know, unless

there's also another Fletcher. But Betty Fletcher was a very

well-known 9th Circuit Judge and the fact that her son was up

was a big issue, but he got it. He was appointed to the 9th

Circuit. I wonder if he's --

MS. CARLE: He could be.

THE COURT: -- he's the one, he was very liberal, I

know that.

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MS. CARLE: Well, I wanted to bring this to your

attention and really make two points. One, that that case had

been reversed, the 9th Circuit found that the government's

conduct did not violate fundamental fairness or shock the

universal sense of justice mandated by the due process clause

of the 5th Amendment. They reassigned the case. But also, I

think factually what's important here when --

THE COURT: Who was the trial judge?

MS. CARLE: Your Honor, I meant to -- I meant to

confirm that. I meant to confirm that and I did not.

THE COURT: What?

MR. RUDENSTEIN: Wasn't that the case with Judge

Wright?

MS. CARLE: It may have been, but --

MR. RUDENSTEIN: The 9th Circuit case.

MS. CARLE: It was 9th Circuit.

MR. RUDENSTEIN: That had to be Judge Wright's case.

MS. CARLE: Otis Wright?

MR. RUDENSTEIN: Yep.

MS. CARLE: The District Judge, yes.

THE COURT: No, no, there was another one. There's

another trial judge who is a very controversial guy in the 9th

Circuit who also threw out one of these cases. That's why

I --

MR. RUDENSTEIN: Oh, Keen, Kean?

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MS. CARLE: I believe this is -- Judge Wright was the

presiding Judge.

MR. RUDENSTEIN: Hold on just a second.

Oh, no, no, no. It's versus Cornell Whitfield, AKA

Baby Flip, and Whitfield was one of the defendants that I

remember the name in the case that we had been talking about

all along.

THE COURT: Who's the trial judge?

MS. CARLE: That's Judge Wright, Your Honor.

MR. RUDENSTEIN: It says here, Otis D. Wright, the

Second.

THE COURT: But there was another --

MS. CARLE: Yes.

THE COURT: There was another district judge who I

actually know. It's a shame that I can't think of his name

right now, but we were very friendly over the years. We did a

lot of seminars together, and he also threw one out, but I

haven't heard if there's been any appeal of that, I don't

know.

MS. CARLE: Well, I wanted to bring this to your

attention, but also factually just point out in the context of

sentencing Mr. Hardee, what's important to note factually and

how it is distinguishable as I'm sure Your Honor remembers

from trial that Mr. Hardee was not recruited by the

government. In fact, it was his codefendant.

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THE COURT: He was recruited by one of the

codefendants.

MS. CARLE: That is correct. And I think that's

important to note here when we're discussing these concepts

and the concerns that the Court might have. In fact, the

government never had Mr. Hardee on its radar.

THE COURT: But you say -- I mean, that says more

than there really is. The government triggered, let's say,

set in motion the whole thing.

MS. CARLE: But the concerns, though, behind those

lines of cases, Your Honor, are really the dealings that the

government or government agent has with the defendant.

Here, Your Honor, Mr. Hardee was brought in by his

codefendant and had contact with the government or government

-- with the government, rather, on the day of the take-down.

THE COURT: On the day they went to the -- it was

like a self-storage --

MR. RUDENSTEIN: Exactly.

MS. CARLE: Yes.

THE COURT: -- site where they met when they were

going to go to the, quote, stash house, and they were arrested

at that site.

MR. RUDENSTEIN: Right.

MS. CARLE: And I think that's important, Your Honor,

because as many cases have considered, the time spent with the

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government or government agent also is a consideration in

determining some of these concerns that the Court has noted.

So here we have a very brief period of time where, in

fact, the government directly dealt with Mr. Hardee.

Moreover, he was recruited by his codefendant, Mr. Dennis. So

I just bring that up in the context of the sentencing

considerations.

THE COURT: You can argue that when we get to the

appropriate point.

MR. RUDENSTEIN: Can I just briefly respond to that,

Your Honor?

THE COURT: Sure.

MR. RUDENSTEIN: Very briefly. Your Honor, I'm

sitting here listening to that and I understand where

Ms. Carle is coming from, but as you know, Your Honor, there's

a concept in the law called willful blindness and willful

blindness is usually used against defendants where they put

their hands up over their eyes and they will willfully blind

their culpability.

Here, Your Honor, my argument would simply be that the

government shouldn't be able to be willfully blind, and when

they ask one guy to do something that they know is going to

take a crew, they shouldn't be surprised that there's others

being involved, and I don't think they should be allowed to

simply get away with being willfully blind.

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THE COURT: Mr. Spade and counsel, can you all come

up here for a minute, please. Give me a minute. I have to...

(Off the record.)

THE COURT: Okay. I'm sorry, go ahead.

MR. RUDENSTEIN: I'm done, Your Honor. As I was just

saying, I don't think the government should be permitted to

sort of be willfully blind to the concept that when they put

together a scheme that's going to obviously take more than one

man and now there's a crew, how can the government stand there

and say, we had no idea.

So I think that they're recruiting others even if

they're not talking to begin with. And if you look for

further analogies in our law, you can conspire with someone

even if you never met them, if you're part of the conspiracy.

So I'm not trying to --

THE COURT: You don't sound like a defense lawyer

when you say that.

MR. RUDENSTEIN: I'm just not so sure that's the

strongest government argument, Your Honor.

THE COURT: Okay. Well, let's go through the regular

process.

The way we're going to proceed is we're going to first,

on Step 1 of the sentencing, we have to determine what the

criminal history is and the offense level is.

MR. RUDENSTEIN: Yes, sir.

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THE COURT: Stage 2, we deal with a downward -- or

upward departures, I don't think there's going to be much at

that stage, and then three, of course, is the 3553(a)

imposition of sentence in which the guidelines are a factor,

but the -- there are other factors that we have to do.

So I'm going to start with setting the offense level.

MR. RUDENSTEIN: Yes, Your Honor.

THE COURT: Tell me what your position is.

MS. CARLE: Well, Your Honor, I spoke with

Mr. Rudenstein prior to Your Honor coming --

THE COURT: Mr. who?

MS. CARLE: Mr. Rudenstein.

THE COURT: Oh, Rudenstein, yeah.

MS. CARLE: Prior to coming out -- Your Honor coming

out on the bench, and we recalled that Your Honor found that

there was not an enhancement for obstruction. We remembered

that Your Honor --

THE COURT: I do remember.

MS. CARLE: -- made that decision, and I believe

Mr. Hardee brought to the attention --

THE COURT: That's Paragraph 62.

MS. CARLE: Yes.

THE COURT: On Page 14.

MS. CARLE: Yes. I believe that Mr. Hardee brought

to his counsel's attention and again, we had an opportunity to

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discuss, in terms of the drug amount, and I recall the

testimony throughout the course of the trial, ten kilos was

always discussed as the minimum that was promised in this drug

stash house, and so if we -- if we do take that as more of a

set figure, Mr. Hardee, I believe, through counsel, felt as

though he would be at a base offense level of 30 and then with

the enhancement of two points for the dangerous weapon would

result in a 32.

Ultimately, Your Honor, with the imposition of career

offender status in 4(b)1.1, I believe it doesn't make too much

of a difference because ultimately, the defendant ends up as a

37 for an offense level.

THE COURT: So you want to throw him in jail for life

for a crime that was -- never was going to happen and that was

a fairy tale?

MS. CARLE: Unless we're switching roles and I get

Article 3 protection, my job is to follow the law and the

guidelines, and ultimately, that's what the guidelines result

in. And so a 37 --

THE COURT: I haven't gotten through with the

guidelines yet.

MS. CARLE: I'm sure, Your Honor.

THE COURT: All right. What's your position?

MR. RUDENSTEIN: Well, I think that's exactly, Your

Honor, Ms. Carle and I discussed it before Your Honor took the

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bench, and I don't have much to say about that as far as that

goes, there's other things to talk about, though.

THE COURT: Oh, yeah.

MR. RUDENSTEIN: Yeah.

THE COURT: All right. Well, here is the calculation

I'm going to make, and it might help if you followed, starting

on Page 14, Paragraph 58. That's where the calculation

begins, basically.

On Count 1 is the conspiracy to commit robbery, base

offense level is 20. I have no problem with that. A

controlled substance was the object of the offense. That

makes it a 21. Okay? I refuse to -- I crossed out the

obstruction of justice and I also -- I gave him no adjustment

for the role in the offense so I come out with a 21 on that

one. Okay?

The base offense level, I do two things, because I feel

that there was -- and I don't know -- the word "entrapment"

clearly is a funny word, but I think that the -- giving --

making the amount of kilos the amount that the DEA invented is

a form of abuse of the process, if nothing else, and you may

want to call it sentencing entrapment. But I'm going to give

it as 500 grams or more. I'm going to treat the offense level

of 500 grams, and I'm also going to downwardly depart from a

six to a five. In other words, I'm getting rid of his career

criminal status going down to a five. I can only go down one

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under the guidelines, but the result of those two changes

makes it a 24, okay?

The -- well, there's two adjustments but they cancel

each other out, on 65 and 67. So I get a level of 24. So

that means on Count 1, it's a 21 and on Count 2, it's a 24.

That gives one unit for Paragraph 70 and one unit on 71, which

means two units, which means that the 24 goes to a 26, okay?

So I'm going to sentence him at a 26, Criminal

History 5, which is 110 to 137.

MS. CARLE: Your Honor, could I just inquire with the

application of 4(b)1.1?

THE COURT: Yep.

MS. CARLE: My understanding is that his offense

level would still remain and that's triggered by the count of

conviction which is a ten to life.

THE COURT: I'm sorry?

MS. CARLE: His count of conviction, Count 2, is a

ten to life case and so under 4(b)1.1 --

THE COURT: But I changed that to -- to 500 grams.

So it's a five-year minimum. It's five to 40. I changed the

amount. I lowered the amount. Call it a departure if you

want to. I'm changing the amount of drugs that he's

responsible for to 500 grams, and I think that makes it five

to 40.

MR. RUDENSTEIN: I believe so, Your Honor.

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THE COURT: Anyway, I get 110 to 137.

MR. RUDENSTEIN: I just have one question, Your

Honor, respectfully.

THE COURT: Sure, be respectful.

MR. RUDENSTEIN: Paragraph 61, I believe took two

points off the score because --

THE COURT: But -- are you talking about 67?

MR. RUDENSTEIN: No, I'm talking about Paragraph 61

on Page 14, adjustment for role in the defense (sic), he was

found to be a minor role.

THE COURT: I didn't give that.

MR. RUDENSTEIN: You didn't give that.

THE COURT: No.

MR. RUDENSTEIN: Okay.

THE COURT: I gave it -- on the other count, I did

give it.

MR. RUDENSTEIN: Okay.

THE COURT: On the -- so -- well, I didn't think he

had a minor role in the -- in the robbery, but I did feel he

had it in the --

MR. RUDENSTEIN: Conspiracy.

THE COURT: In the -- no. The drug --

MR. RUDENSTEIN: Oh, all right.

THE COURT: The drug part, the second count.

MR. RUDENSTEIN: Okay. I just wanted to make sure I

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was following along.

THE COURT: No, you're following along. Okay?

So the way -- as I say, I come out with a 26, criminal

history of 5, 110 to 137 months, five-year minimum, and so the

way I'm going to proceed is I'm going to ask Mr. Rudenstein to

make his presentation, Phase 3, then his client can address

the Court if he wishes to, and it's his right, his

constitutional right to do so, and then I'll hear from

Ms. Carle.

MR. RUDENSTEIN: Okay. Thank you very much, Your

Honor. I know I've submitted some written things to Your

Honor --

THE COURT: You did, and I've read it this -- just a

few -- just about a half hour ago.

MR. RUDENSTEIN: I want to sort of start fresh,

though, because we are dealing with guidelines that I might

not have been dealing with when I submitted my written

submissions.

Your Honor, if we're starting at a 110 to 137, there's

a lot that we know about the defendant and things that I

summarized in my presentence memo. He certainly did not have

the greatest of upbringings and that's not an excuse for

committing crimes, but I intend to differentiate between

excuses and reasons, and I think that sometimes when you've

had an upbringing that Mr. Hardee has had, there are reasons

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for why people do things.

I can say, Your Honor, that in speaking with Mr. Hardee

and, you know, he's been in for two-and-a-half years now,

we've talked, we've e-mailed, and I have seen an evolution in

him. And what I mean by that, Your Honor, to be quite frank,

when I first became involved in the case, I think he was more

street-oriented, you know, maybe a little more resentful of

being prosecuted and things like that.

THE COURT: Hold on for a second.

(Brief interruption.)

MR. RUDENSTEIN: May I continue, Your Honor?

THE COURT: Yes.

MR. RUDENSTEIN: So what I was saying is when I first

met him, Your Honor, I think he was more resentful of being

prosecuted, a little more street-oriented, but now, Your

Honor, after having sat, I know he's going to speak to the

Court, I think what you're going to hear is that he

understands why he's here, he understands why he's prosecuted

and he doesn't want to come back, Your Honor.

He has not led what any of us would call a righteous

life, perhaps, but as Your Honor well noted when we were here

the last time or the time before last, a lot of the activity

that Mr. Hardee found himself involved in, I don't want to say

was low level, but was maybe something less than major league,

and at this point, Your Honor, I know that after having sat

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for two-and-a-half years in a federal prison facility that he

doesn't want to come back, and I think that quite bluntly,

he's much more respectful of the law right now than he was

when this all started out.

Your Honor, I have to look at everything, and looking

at everything and asking Your Honor to depart from the

guidelines, I really want to focus on a couple of things. And

one thing that I would focus on, Your Honor, is the type of

offense we're looking at. I mean, if it was a real offense,

it would be a serious offense.

I don't want to get into whether this is a good thing

or a bad thing, that's for others other than me to decide, but

I still have to note, Your Honor, that no one was hurt, it

wasn't a real case, and frankly, Your Honor, we have a

situation where Mr. Hardee -- and I said this once before and

I really don't understand this, but Mr. Hardee is brought into

this case by his codefendant and Mr. Hardee seems to be a man

of average intelligence as he comes to the courtroom, but his

lead defendant was not.

I mean, even his own lawyers talked to you about that

and, you know, I think it was Mr. Dennis, if I'm not mistaken,

he had a lot of trouble, educationally and things like that,

and so my client was being led along by absolutely the wrong

person to take advice from. I've also spoken to him about

that. I told him to be his own man, and I think he will

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address that.

So I think what we have here, Your Honor, is somebody

dragging along Mr. Hardee. When I say "dragging along," I'm

not saying he put a gun to his head, but, you know, Mr. Hardee

was given a set of facts which might be tempting to someone

who was living less than a righteous life and he was

influenced and he went along with it.

THE COURT: You know what my mother used to say?

MR. RUDENSTEIN: What was that, Your Honor?

THE COURT: She used to say the absence of temptation

is the greatest of riches.

MR. RUDENSTEIN: And I often say, Your Honor, that's

one of my favorite sayings, walk in S-H-I-T, feet stink.

You know, you got to stay away from that kind of thing

in life.

THE COURT: Or you lay down with dogs, you come up

with fleas.

MR. RUDENSTEIN: Right. Exactly. And maybe

two-and-a-half years ago, Mr. Hardee did not quite get that,

but I think he gets it now. He spent two-and-a-half years

with the other guys at FDC and, you know, most of them aren't

going home real quick, most of them are doing some serious

time, and I think he understands what he's looking at, and

frankly, he's scared.

So I would say, Your Honor, that this is a man who got

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brought into this under maybe dubious circumstances and I

don't think that he will be a threat in the future.

And, look, sometimes the past predicts future and I

know he's had his troubles, but the most recent past for this

man, the most recent past is not doing three to 23 months on

State Road in Philly or getting probation. The most recent

past is doing two-and-a-half years in a federal prison and

looking at guidelines of up to life.

So I think that's what got his attention and I think

that's reformed him. I'd also --

THE COURT: It would get your attention.

MR. RUDENSTEIN: Yes. I would also like to say, Your

Honor, that we -- we shouldn't have unnecessary disparity in

sentencing between people who are similarly situated. I just

don't think that my client and the codefendant are all that

similarly situated.

THE COURT: Well, it's true. One codefendant got 180

but there was -- the gun charge was 60 of it.


THE COURT: So he got 120 and 60. The other

defendant I think got 70 or something.

MS. CARLE: He was a cooperating defendant.

THE RUDENSTEIN: The cooperator, Your Honor.

THE COURT: The cooperator.

MR. RUDENSTEIN: That's a little different.

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THE COURT: Yeah.

MR. RUDENSTEIN: But the defendant who received the

ten years on the one charge and the consecutive five on the

gun charge, my client doesn't stand in that position because

clearly, he wasn't convicted on the gun charge.

So I think we start off comparing apples to apples.

You compare a ten-year sentence to what my client should get,

because I think that the crime is the same, they probably had

very similar criminal backgrounds and a lot of things are

similar.

THE COURT: I mean, similar between whom and whom?

MR. RUDENSTEIN: What's his name, Daniels?

THE COURT: Dennis?

MR. RUDENSTEIN: Dennis. I called him Daniels.

Dennis. Mr. Dennis received basically a ten-year sentence --

THE COURT: And five years on the gun charge.


THE COURT: Which by statute, I think, had to be

consecutive.

MR. RUDENSTEIN: Consecutive. But I'm not counting

that, Your Honor, simply because my client wasn't convicted of

the gun charge.

THE COURT: He was acquitted -- he was actually

acquitted, I think.

MR. RUDENSTEIN: He was acquitted of that, yes. I

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was his trial lawyer. Plug for me.

But in any event, Your Honor, in any event, if you

compare apples to apples in ten years to what Mr. Dennis

received, then is it fair to give my client ten years for

that, which would be 120 months and within the guideline range

of 110 to 137? I would respectfully submit that I don't think

it's fair. I think if we compare apples to apples, my client

should receive significantly less than what Mr. Dennis

received because Mr. Dennis stood in a different position. He

sat down with the government agents, I forget, five, six

times, just time after time, detailed, and if we take some of

the government's argument and extrapolate, what Mr. Dennis did

was to take the government's plot and to make it even worse by

recruiting my client. So they don't stand in the same

position, and then -- this is where I guess Your Honor's

wisdom comes in, and what it comes down to is, well, if

Mr. Dennis got ten, similarly situated in a lot of ways but

dissimilar in key ways, what difference in sentencing would

make that, I guess, what we call fair.

Sometimes we overuse that word and sometimes it's an

appropriate word. Here, Your Honor, I respectfully -- I think

it's an appropriate word, what is fair under all of the

circumstances, and in my written submission, I made certain

suggestions and respectfully, Your Honor, I always hate to

throw out a number because once when I was a very young

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attorney, the Judge said to me later, I was going to give him

less, you tied my hands.

So I tend maybe not to do that, but at the same time,

Your Honor, if the other fellow got ten and my client's half

as culpable, then -- I'm not good at math, but I think it's

clear, if the Court felt that he should get even less than

that, you know, receive, quote, maybe a little bit of mercy

because of the totality of the circumstances, counsel doesn't

object to that either.

But I would submit on that, Your Honor, and ask under

the totality of the circumstances to deliver my client to a

safe place in his further life and hopefully, he can do some

good and rehabilitate and not come back as a criminal offender

but someone who can advise young people not to do this. That

would be my presentation, Your Honor.

THE COURT: Now, your client -- it's your client's

opportunity now to address the Court.

MR. RUDENSTEIN: Yes.

THE DEFENDANT: Your Honor, first, I would like to

apologize for my actions in this case. I'm not going -- not

talk about my upbringing and all that, but before Dennis even

came to me, I was out there working. I can't blame him for my

actions because I chose to do what I did, but since I been in

jail, I was, like, thinking about the future. I was -- when I

get to my jail, I just want to go to a jail where I can take

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up a trade or something, so when I get out, I don't have to go

back and do these type of things, and since I been at FDC, I

was doing, like, taking up little classes and stuff but them

little classes -- FDC don't got nothing to offer. So I just

want to go to a jail where I can get some type of trade or

something.

THE COURT: Yeah, unfortunately, the FDC is not a

place that has good programs. I understand that.

MR. RUDENSTEIN: When somebody is un-sentenced, Your

Honor, I think the availability of things are sometimes less.

THE COURT: Okay. Thank you very much.

THE DEFENDANT: You're welcome.

MS. CARLE: Well, Your Honor, I feel -- it's a little

tough, with all due respect, for me to argue because I'm not

even sure how we got to this position. But in defense of the

government, I have to say, during the course of trial, there

was a great deal of testimony from an expert DEA agent who

talked about how -- it was DEA Agent Eric Brown who testified

at trial, that how we got to this number, there's a great

offense that seems to be taken in the amount of cocaine, and

that amount is different all over the country, based upon what

is seen by the --

THE COURT: But it's usually very large, 10, 15, 20,

even 30, I think in some cases.

MS. CARLE: It depends on the area.

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Here, the testimony of Agent Brown was that, in fact,

they had recovered over ten kilograms of cocaine from a drug

stash house in southern New Jersey.

THE COURT: On the other hand, out of a hundred

seizures or 200 seizures, 198 of them would be relatively

small amounts. So fine, they have one out of several hundred

seizures, they got a large amount.

MS. CARLE: But also, what I think is important to

note is that this same scenario has played out in a host of

cases and investigations, where the person simply walks away,

for whatever reason. That was not the case here.

And I think it's important to note that while there has

been some time between now and the trial, that unlike many

cases that come to trial, here, we had the benefit of the

video and audio recordings of the defendant at the storage

facility, and we had the ability to listen to those, to

witness those.

THE COURT: There's no question he joined the

conspiracy. I mean, that's not an issue.

MS. CARLE: But while we're -- you know, it's not at

issue, but also his understanding of what would be there, of

who would be inside, of what his role was to be, was clearly

discussed during the course of that video recording.

For example, in response to a question from the

undercover officer about whether the defendant knew, quote

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unquote, the deal, the defendant responded, quote, yeah, I

know everything. He also asked specific questions about the

stash house, specifically, the defendant asked about the

actions of the occupants of the stash house, quote, sometimes

they just let you in and, expletive, because you be come in by

yourself. They sittin' by the door? Question. The defendant

confirmed his role in the conspiracy.

To this end, the defendant confirmed that he was,

quote, gonna tie him, meaning the undercover, up, end quote.

The defendant confirmed that he planned the robbery with his

coconspirators. In the beginning of the meeting, the

defendant confirmed that he was, quote, cool with everything

that they discussed, end quote, and that the coconspirators

were, quote, saying everything the undercover officer said,

end quote.

The defendant confirmed that he knew the group was

planning a robbery. The defendant stated, quote, you say all

that, expletive, already be in the bags, and expletive? So we

just grab the bags and roll out? End quote.

The defendant confirmed that the object of the robbery

was to steal cocaine. Referring to the kilograms of cocaine,

the defendant asked the undercover officer, now, I said

kilograms, plural, whether, quote, that expletive pure,

question mark, that that good, expletive, that ain't even been

touched yet, question mark.

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The defendant also commented to the undercover officer

that there is, quote, no good coke in the city, end quote, and

that, quote, there ain't too many people in Philly that got no

coke right now, end quote.

Finally, the defendant committed himself to the

conspiracy. When asked by the undercover officer how he was

feeling in anticipation of the robbery, the defendant stated

that he, quote, don't feel nothing, end quote, and that he

was, quote, just ready, end quote.

It's also important to note, Your Honor, that a pair of

latex gloves was found in a pocket on the defendant's person

at the time of arrest. Also, at the time of arrest, seized

from other individuals he was with, included the stun gun, if

you recall, 13 white plastic zip ties seized from the back of

the SUV, moments after the defendant exited that vehicle.

Also, the firearm that was part of the indictment.

I just bring these points out, Your Honor, to bring to

the attention of the Court so the proofs that played out at

trial. And so that was the basis of the ten or more kilograms

of cocaine, which the defendant was convicted of.

In terms of his career offender status, I accept the

Court's finding, but obviously feel the need out of due

diligence to bring to the Court's attention that the defendant

was a career offender, not due to simply two predicate

offenses but three predicate offenses.

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In addition, the defendant earned 17 criminal history

points over the course of several years which include seven

felony convictions. His other arrests take up an entire page,

namely, Page 20.

THE COURT: I'm sorry?

MS. CARLE: His other arrests take up an entire page.

That would be Page 20.

THE COURT: Oh, right. I'm sorry.

MS. CARLE: In terms of the sentencing entrapment,

Your Honor, I simply wanted to note just for purposes of the

record that the burden of proof is on the defendant to prove

sentencing entrapment by a preponderance of the evidence. And

in the context of a fictional drug stash house robbery, that

might be shown by demonstrating that he lacked the

predisposition, either through a lack of intent or lack of

capability. I would submit that that was not shown here.

Here, the --

THE COURT: Well, the idea of increasing the amount

is to limit -- you know, is to create his desire to join it.

That's why you up the amount.

MS. CARLE: Well, that may be applicable when it

comes to Mr. Dennis, but not so much when it comes to

Mr. Hardee, who was recruited by others.

In the Black case, I will simply note that is --

THE COURT: I'm sorry, the --

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MS. CARLE: The Black case. That's also a 9th

Circuit case and that's at 733 F.3d 294, 2013, again a 9th

Circuit case. There, the defendants were convicted of

conspiracy to possess cocaine with the intent to distribute

and use of a firearm in furtherance of the drug trafficking

offense. There, they -- the defendants failed to show that

they lacked intent or capability of taking 22 to 39 kilograms

of cocaine, which would prove lack of predisposition required

to establish the sentencing entrapment.

They showed no reluctance about participating in the

crime, and there was no -- showed that the government induced

the defendant's participation in the fictitious robbery, but

simply presented them with the opportunity.

Here, we are even one more step removed because again,

Mr. Hardee was recruited by a codefendant, not the government.

So for those reasons, Your Honor, I would argue for a

sentence at the top of the range, given the fact that we

started, I believe, at a 360 to life and now find ourselves at

a guideline range of 110 to 137 months.

Given the prior criminal history, given the proofs that

the government presented at trial, that seems to be an

appropriate sentence. Thank you.

THE COURT: Anything you want to add?

MR. RUDENSTEIN: No, Your Honor, no.

THE COURT: Okay. If I went to a cocktail party and

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spoke to ten relatively intelligent people, not lawyers, just

people out there, and explained to them the stash house sting,

and then said the defendant was facing life imprisonment for

agreeing to participate in a non-existent crime that could

never have happened, all ten of them would think I'm crazy or

that the law was crazy, or is -- was it Dickens who said the

law is an ass? If the law says that, the law is an ass.

To me, it's just bizarre and it's very interesting that

a couple of pretty smart judges, I think the genius of the 9th

Circuit whose name now escapes me, was a professor at Notre

Dame, wrote an opinion, dissent, in which he blasted the

government -- Posner, as written, who is another guy, who is

not only smart, he thinks he's smart and who -- but he's a

very articulate Judge, has blasted it. You're just left with

a very uneasy feeling about this case.

As I say, there were two aspects to it. Because the

crime is really nonexistent, there is no real crime being

planned, there really is not a danger to the public. I mean,

the public -- there's never a point where the public is in

danger, because the crime was never going to occur, and then

there's also, of course, the due process aspect, is that --

and I don't know, there was an article somewhere in which they

listed all the defendants and something like 75 percent of

them were minorities or poor. The way these people get

recruited, is itself very questionable.

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When I look at 3553(a), I start with one being the

nature and circumstances of the offense, and the history and

characteristics of the defendant. Well, the history and

characteristics of the defendant are not his strong points. I

mean, the simple matter is he has an assortment of serious

criminal offenses, accumulated at a relatively young age, you

know, and I have to say, there's no question in my mind that

the best predictor of future conduct is past conduct. That

doesn't mean it's a hundred percent, thank God it's not, but

nevertheless, the extent one has to foretell the future, you

can't ignore 17 criminal history points, you know, and say,

there's no risk that he won't do it again.

By the way, I'm not suggesting that Mr. Hardee is lying

to me. I think he means it when he says he wants to be

through with this, and I have defendants come before me who

say I'm done with this type of lifestyle. When I get out, I'm

going to go straight, and I think they're telling me the truth

in the sense that they're not saying, I'm going to feed this

guy a line.

But in reality, when it happens, and they get out in

the world, you know, whatever mix of psychological or inherent

characteristics, the risk of recidivism is still very great.

As I say, the past is prologued to the future, if you will.

So that's his worst feature.

In the same sentence, A 1, it says the nature and

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circumstances of the offense. Well, that's maybe his

strongest point. There -- there is no offense, really. As I

noted, there are, in my mind, at least some due process

issues. There's issues of targeting the poor and targeting

the uneducated, and I just find it very troubling that the

government dangles for what this man is a fortune, you know,

whatever his share of the 15 kilos would have been, for him,

that was a lot of money. There was nothing in his background

that suggests that he routinely dealt in such sums.

I just have trouble putting somebody away for life or

for, you know, a hugely long sentence for the crime that never

was, never could be and never would be. And as I say, this

matter is going up, I think, on appeal, and as I say, it

wouldn't bother me in the least if the Third Circuit put a

stop to the stash house stings.

In the next -- Section 2 says to reflect a seriousness

of the offense. Well, that's really somewhat like one, the

nature and circumstances of the offense. Again, this was a

little offense that never was, and it's hard to say that the

public was in danger. That, to me, is the big point. To what

extent was members of the public put at risk by this? If it

was real cocaine and he was conspiring to steal real cocaine,

the public is at risk. Distributing five kilos of real

cocaine can be a very dangerous activity and all kinds of

people could be put at risk by doing that. But here, it never

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was going to happen, so there was no risk to the public.

MS. CARLE: Excuse me.

THE COURT: To afford adequate deterrence to criminal

conduct. Well, I think I have to give a sentence. It does

create deterrence. I just don't think life or 20 years or

anything like that is necessary for that purpose. But I

agree, there should be some deterrence.

To provide the defendant with needed educational and/or

vocational training. That one is actually, in a sense,

justifies a sentence of some length, because I think he could

-- I know he doesn't agree with me, but he could -- he could

really benefit. It would take some work on his part to do it,

but, you know, we do get people in the federal prison system,

get college degrees and get training. To some degree, it's

going to be his -- the strength of his character and I can

only pray that he has it.

And then the kind of sentence. Well, that's not

applicable. Then there's the guideline range of 110 to 137.

Now, in putting it all together, primarily because of the

nature of the offense and the characteristics of the offense,

the actual words are, defendant does not have, let me get the

-- the nature and circumstances of the offense and to reflect

the seriousness of the offense.

Since I do not think this offense was as serious as the

government has made it out to be. As I say, I believe there

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really is a form of sentencing entrapment going on here. The

-- I'm going to vary from a 26 to a 24. I'm going to go to 92

to 115, from 110 to 137, based on the fact that I just don't

think this -- this offense was like a practical joke, more

than it was a real offense.

MS. CARLE: Your Honor, I just wanted to make one

brief comment, just --

THE COURT: Yes.

MS. CARLE: There were guns that were brought and so

there was a danger to the public. There were guns.

THE COURT: There was no danger because there was

going to be no crime.

MS. CARLE: Well --

THE COURT: There was going to be no crime. There

couldn't be. There was no stash house. The -- the meeting at

the -- at the self-storage facility, there were cops all over

the place. And as soon as -- as soon as they got him to say

what they wanted him to say, they came crashing in on him.

And -- I just think this is the crime that never was and never

would be, and I don't think there was serious danger to the

public. I think there was sentencing entrapment, I think that

dangling before this guy, you know, five kilos of pure

cocaine, you know, as I said, it was, you know, there's

nothing in his history -- he's got a bad history, real bad,

but he doesn't deal with quantities like that.

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I don't know how he would -- I don't know what he would

have done with this if somebody had given him five kilos,

exactly how he would have gone about distributing it. But he

was the -- he was not a big timer. He was a small timer, and

I don't -- you know, so anyway, I'm going to go down from a 26

to a 24, and in Category 5 of 92 to 115, and I'm going to

sentence him to 92 months, and let me --

Pursuant to the Sentencing Reform Act of 1984, it is

the judgment of the Court that the defendant, Terrance Hardee,

is hereby committed to the custody of the Bureau of Prisons to

be imprisoned for 92 months. Upon release from imprisonment,

the defendant shall be placed on supervised release for a term

of five years. The term consists of three years on Count 1

and term of five years on Count 2, all such terms to run

concurrently.

By the way, on the main sentence, it's 92 months on

each of Counts 1 and 2 to run concurrently.

MR. RUDENSTEIN: Thank you, Your Honor.

THE COURT: Count 1 and Count 2, each 92 months to

run concurrently.

Within 72 hours from release from the custody of the

Bureau of Prisons, the defendant shall report in person to the

probation office in the district to which the defendant is

released. While on supervised release, the defendant shall

not commit another federal, state or local crime, shall be

AdamWHighlight

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prohibited from possessing a firearm or other dangerous

device, shall not possess an illegal controlled substance and

shall comply with the other standard conditions that have been

adopted by this Court.

The defendant must submit to one drug test within 15

days of commencement of supervised release and at least two

tests thereafter as determined by the probation officer.

In addition, the defendant shall comply with the

following special conditions, and it's the alcohol and drug

testing provision. It's in the presentence report, I'm going

to copy that into the judgment. The Court finds the defendant

does not have the ability to pay a fine. The Court will waive

the fine in this case. It is further ordered that the

defendant shall pay to the United States a total special

assessment of $100 -- oh, $200, $100 for each count which

shall be due immediately.

The defendant is remanded to the custody of the U.S.

Marshals Service. The Court recommends that the Bureau of

Prisons designate a facility for service of this sentence as

near as possible to the defendant's home address. I'm

advising defendant of his right to appeal the sentence

pursuant to 18 United States Code Section 3742, subject to any

preexisting waiver that may limit that right. There was none

in the case, so --

MR. RUDENSTEIN: No.

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THE COURT: If the defendant is not able to pay, the

defendant may request the clerk of the court to file a notice

of appeal on his or her behalf.

I'm going to ask Mr. Rudenstein to do a favor for me.


THE COURT: And the favor is, after you consult with

your client, if he wishes to appeal, I want you to file a

notice of appeal on his behalf.

MR. RUDENSTEIN: I would do that, Your Honor. I'm

happy to continue on as appellate counsel.

THE COURT: That, unfortunately -- not unfortunately.

It's the Circuit's decision. Remember, it's not my -- I would

appoint you in a minute, but the defendant -- but I think if

you indicate to the Circuit that you're willing to do it, you

will get it.


THE COURT: But I think there has to be a separate

application to the Circuit.

MR. RUDENSTEIN: Very well.

THE COURT: As I understand it.

MR. RUDENSTEIN: Right. And before we proceed in

that matter, I want to discuss this matter with the

government.

THE COURT: Well, that's up to you.


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THE COURT: I mean, all I know is you've got 14 days

or whatever it is --

MR. RUDENSTEIN: Sure.

THE COURT: -- to file your notice of appeal. I just

want to make sure he doesn't lose -- that if he wants to

appeal, he doesn't lose his right to appeal.

MR. RUDENSTEIN: I will protect his rights, Your

Honor.

THE COURT: And he, you know, look, Mr. Hardee, he

dodged a bullet big time today. I don't know if he

appreciates that, but he did.

MR. RUDENSTEIN: I think he understands it.

THE COURT: But that -- nevertheless, you know, he

has the right to appeal and, you know --

MR. RUDENSTEIN: There's one further point, I don't

know if I have to bring it up or not, but just -- because I

don't want to waive any of his rights.

I know that the federal prison system, Your Honor, has

a drug treatment program, and I think that he would be

eligible for it given his circumstances, and I know if they

participate in that, they can knock some time off the

sentence, but I think I might have to ask Your Honor, do you

have any opposition to him participating in that?

THE COURT: I don't know enough, quite candidly,

here. I'm not making -- I'm not opposing it but I'm not

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making a recommendation either.

MR. RUDENSTEIN: He has to apply for it.

THE DEFENDANT: He has to apply for it. If they ask

-- if somebody asks what does the Judge think, the Judge

things it's the decision of the Bureau of Prisons and has no

problem with it either way.

MR. RUDENSTEIN: Okay. Very good.

THE COURT: So, you know, I'm going to leave that to

the BOP. I think you are right, that -- intensive drug

treatment program they have.

MR. RUDENSTEIN: Right. I've had one other client go

through it.

THE COURT: You can get up to 12 months, I think.

MR. RUDENSTEIN: Yes, I'm aware of it.

THE COURT: Depending on -- depending on

circumstances.

MR. RUDENSTEIN: And I don't know if Your Honor said,

I know I didn't ask, the credit for time served, I would

request.

THE COURT: Well, the answer is I assume he'll get

it. I don't know. It's not my decision. It's the Bureau of

Prisons decision.

MR. RUDENSTEIN: I always ask.

THE COURT: If the Bureau of Prisons were to deny him

credit, because he will get a paper the first -- basically

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within a couple of days, when he gets to wherever he's going

which will show whether he gets credit or not, and if he

thinks that he's denied credit to which he's entitled, then he

can bring on maybe 2241, I don't know, he could bring on --

MR. RUDENSTEIN: Motion to correct sentence.

THE COURT: A motion to correct sentence. But in the

first instance, you would have to, A, take the administrative

appeal within the Bureau of Prisons, and if that were

unsuccessful, then he could bring on, you know -- but I see no

reason here why he wouldn't get the credit, I mean --

MR. RUDENSTEIN: That's what I'm trying to establish

because sometimes BOP might not be aware, there's no special

reason for this Court to deny credit.

THE COURT: No, they will be aware, but it's not my

call in the first instance. It's not that I oppose it. I

don't oppose it.

MR. RUDENSTEIN: Right, I understand that.

THE COURT: But it's their call. They have a right

to administer -- there has to be exhaustion of remedies,

administratively, and then if he's not satisfied with that,

well, fine, then he --

MR. RUDENSTEIN: I understand.

THE COURT: Okay?


MS. CARLE: Thank you, Your Honor.

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THE COURT: Okay. 300th sentence.

MS. CARLE: 300 what?

THE COURT: My 300th sentence.

MS. CARLE: There you go.

(3:47 p.m.)

US vs. Hardee Sentencing Transcript 1/8/15

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Transcript of US vs. Hardee Sentencing Transcript 1/8/15