holding that a constitutional challenge to a federal sentence, although not available at the time of sentencing because the Supreme Court’s decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) had not yet issued, must be reviewed for plain error
How later courts described this case
- holding that a constitutional challenge to a federal sentence, although not available at the time of sentencing because the Supreme Court’s decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) had not yet issued, must be reviewed for plain error
- finding it "difficult to imagine” that an error meeting the other prongs of the test will not also be deemed to "seriously affect the fairness, integrity, or public reputation of judicial proceedings”
- noting that wiretapping was “particularly appropriate” when “various members of the drug conspiracy facilitated the criminal enterprise through multiple telephone conversations from several locations” and the “government could [not] have uncovered the full scope of the conspiracy, especially not in a relatively safe manner, without the wiretaps” (citation omitted)
- deeming necessity satisfied where affidavit provided “a tremendous amount of information” and included “a statement as to ... specific investigative techniques that had been utilized, including confidential informants and cooperating witnesses, controlled purchases of drugs, consensual recordings, physical surveillance, and telephone records”
Written by the judges who cited it.
The opinion
GILMAN, Circuit Judge, concurring in part and dissenting in part.
I concur in all aspects of the lead opinion other than its decision to vacate the sentence of Rena Benford and to remand the case in order to resentence her within the statutory range provided by 21 U.S.C. § 841 (b)(1)(C). In my opinion, the evidence at trial was overwhelming that Rena Benford conspired to possess at least 5 grams of crack cocaine or 500 grams of cocaine powder. I would therefore affirm the district court’s decision that sentenced Rena Benford under the statutory range set forth in 21 U.S.C. § 841 (b)(1)(B).
The lead opinion compares the evidence that was presented at trial regarding Nathan Benford’s involvement in drug trafficking with the testimony that implicated Rena Benford in this illegal activity. Although I recognize that the quantity of the government’s proof against Nathan Bed-ford was substantially greater than its evidence against Rena Benford, this fact does not, in my opinion, preclude us from concluding that a jury would have found beyond a reasonable doubt that Rena Ben-ford conspired to possess at least 5 grams of crack cocaine or 500 grams of cocaine *333 powder. To put it simply, we need not be concerned with whether the evidence against Rena Benford was “super-overwhelming” or just “barely overwhelming,” so long as it was indeed overwhelming. See Neder v. United States, 527 U.S. 1, 17 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) (explaining that “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless”).
I initially note that the government’s proof against Rena Benford involved some of the very evidence that the lead opinion relies upon to conclude that Nathan Ben-ford “was involved with quantities of drugs well above the requisite amounts needed for sentencing under § 841(b)(1)(A).” (Lead Op. at 41) The trial testimony of Myron Hilt, for example, established that Rena Benford approached Hilt and Nathan Benford when they were counting out $29,000 in cash that they had obtained through the sale of a kilogram of cocaine. Although Rena Benford did not assist them in counting the proceeds, she was the one who placed the money in a safe located at the Uptown Supper Club. Moreover, Rena Benford was instructed by her husband to give the money to Victor Freeman when he arrived at the Supper Club as partial payment for the purchase of two kilograms of cocaine powder. This single transaction involved enough cocaine powder to justify sentencing Rena Benford under § 841(b)(1)(B).
The record also includes testimony regarding Rena Benford’s involvement in possessing and distributing actual drugs, rather than simply handling the proceeds from drug sales. For example, Cleveland Billingsley observed Rena Benford take a quantity of cocaine powder and “cook” it into one ounce of crack cocaine. This incident alone, like Rena Benford’s actions in connection with counting her husband’s drug-sale proceeds, involved a sufficient amount of crack cocaine — 28.35 grams — to warrant sentencing Rena Benford under § 841(b)(1)(B). Although Rena Benford might not have realized the necessity of contesting the quantity of crack cocaine that she allegedly cooked, she surely would have known that any hope for an acquittal would require her to cast doubt upon Bill-ingsley’s testimony. I therefore believe that Rena Benford would have used every means at her disposal to challenge Bill-ingsley’s credibility.
The testimony of Greg Vinson provides still another example of Rena Benford’s involvement in possessing and distributing a quantity of cocaine powder that places her within the sentencing range of § 841(b)(1)(B). Vinson testified that Rena Benford accompanied Nathan Benford to Louisville, Kentucky, where they retrieved about 500 grams of cocaine powder. They then took the cocaine back to Chattanooga, Tennessee. As with Billingsley’s testimony, I believe that Rena Benford would have had every reason to cast doubt upon Vinson’s credibility. Rena Benford’s trial strategy, if she hoped to be acquitted, would have required her to deny any involvement with transporting this quantity of drugs from Louisville to Chattanooga. The absence of a jury determination of drug quantity, therefore, does not negate what Rena Benford had to accomplish at trial in order to avoid being convicted.
Yet another piece of evidence that leads me to believe that a jury would have found beyond a reasonable doubt that Rena Ben-ford conspired to possess or traffic in the quantity of illegal drugs necessary for sentencing under § 841(b)(1)(B) is that the authorities seized $20,000 in cash from her *334 residence. As the lead opinion acknowledges, Rena Benford did not deny that this money was connected to drug activity. Myron Hilt’s testimony established that the Benfords were buying and selling cocaine powder at prices ranging from $20,000 to $29,000 per kilogram. Rena Benford’s acknowledgment that the $20,000 in cash found in her residence was related to drug transactions is therefore sufficient proof by itself to show that she was involved in a conspiracy to possess or traffic in more than 500 grams of cocaine powder.
The lead opinion notes that Rena Ben-ford’s counsel would frequently have no need to cross-examine witnesses for several days because the testimony did not relate to his client. But the relatively few references to Rena Benford in comparison to those involving her husband do not negate the significance of the evidence that did implicate her in the drug-trafficking activities. Any one of the four incidences described above, for example, provides sufficient proof in and of itself to establish that Rena Benford was involved in possessing or trafficking in at least 5 grams of crack cocaine or 500 grams of cocaine powder. This is especially true in light of the fact that Rena Benford presented no evidence to contest the drug quantities attributable to her. When these four incidents are considered cumulatively, I find it difficult to imagine any scenario in which the jury would have returned a guilty verdict against Rena Benford and yet not found that the evidence supporting her involvement in the quantity of drugs was sufficient, beyond a reasonable doubt, to place her within the sentencing range of § 841(b)(1)(B).
I believe that one final matter tangentially related to Rena Benford’s sentence merits a brief comment. The lead opinion relies upon United States v. Ramirez, 242 F.3d 348 (6th Cir.2001), at several points in its discussion of the Apprendi issue. In Ramirez , this court held that where the quantity of drugs increases a defendant’s mandatory minimum sentence, even if it does not increase the potential penalty above the statutory maximum sentence, the quantity must be set forth in 'the indictment, submitted to the jury, and proved beyond a reasonable doubt. Id. at 351-52 . But in Harris v. United States, - U.S. -, 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002), the Supreme Court held that Apprendi does not apply to mandatory minimum sentences, so long as the required minimum sentence remains below the statutory maximum penalty for the offense committed. Harris , — U.S. at -, -, 122 S.Ct. at 2418, 2420 (holding that Apprendi did not apply to the two-year increase in the defendant’s mandatory minimum sentence for brandishing a firearm during a drug-trafficking crime because “the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt”). This apparent conflict between Harris and Ramirez does not affect the lead opinion’s disposition of the Apprendi issue, nor is it necessary for us to resolve the question of whether Ramirez remains good law. Nevertheless, in my view, continued reliance upon Ramirez is questionable at best.
Returning to the main point of this separate opinion, I believe that the evidence is overwhelming that Rena Benford conspired to possess at least 5 grams of crack cocaine or 500 grams of cocaine powder. I therefore believe that a reasonable jury would have found her guilty beyond a reasonable doubt of being involved with at least one of these minimum quantities of cocaine. For this reason, I would affirm *335 the district court’s sentence of Rena Ben-ford under § 841(b)(1)(B).