Petitioners Brief — Edwards v. United States

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No. 96-8732

In The CLERK

Supreme Court of the United States

October Term, 1997

VINCENT EDWARDS, KARL V. FORT,

REYNOLDS A. WINTERSMITH, HORACE

JOINER & JOSEPH TIDWELL,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari

Ts The United States Court Of Appeals

For The Seventh Circuit

BRIEF FOR PETITIONERS

Of Counsel: STEVEN SHOBAT

(Appointed by this Court)

eee nn Counsel of Record)

C Cie oe 'P M 321 South Plymouth Court,

: Suite 1275

—_ “eg acoman Chicago, Illinois 60604

en — (312) 922-8480

— fere.. Counsel for Petitioner

Suite 800 Karl V. Fort

Washington, D.C. 20004

(202) 639-7000

Proressor Davip ZLOTNICK

Williams University School of Law

Ten Metacom Avenue

Bristol, Rhode Island 02809

(401) 254-4606

(Additional Counsel Listed/Inside Cover)

Mark D. Desorsxy

(Appointed by this Court)

77 W. Washington St., Suite 500

Chicago, Illinois 60602

(312) 372-5718

Counsel for Petitioner Reynolds Wintersmith

Rosert HANDELSMAN

(Appointed by this Court)

Suite 2650

20 N. Clark Street

Chicago, Illinois 60602

(312) 977-1600

Counsel for Petitioner Joseph Tidwell

J. MicHaet McGutness

236 N. Poplar Street

Elizabethtown, NC 28337

(910) 862-7087

Counsel for Petitioner Vincent Edwards

DONALD SULLIVAN

202 W. State Street

Rockford, Illinois 61101

(815) 968-5205

Counsel for Petitioner Horace Joiner

QUESTION PRESENTED

Under 21 U.S.C. §§ 841(b) and 846, conspiracy to

distribute “cocaine base” is punished more harshly than

conspiracy to distribute “cocaine.” When a defendant has

been convicted of a single conspiracy to distribute the

two substances based on a general jury verdict which

does not disclose the object of the conspiracy of which the

jury found the defendant guilty, must he be sentenced on

the basis of the criminal object carrying the lesser penalty

or be provided a new trial?

PARTIES TO THE PROCEEDING

Petitioners, Vincent Edwards, Karl V. Fort, Reynolds

A. Wintersmith, Horace Joiner, and Joseph Tidwell, were

the appellants below. Respondent, the United States of

America, was the appellee below.

TABLE OF CONTENTS

Page

ete Be i

PARTIES TO THE PROCEEDING .................. ii

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PERTINENT CONSTITUTIONAL AND STATUTORY

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D. Appeal to the United States Court of Appeals

for the Seventh Circuit ...................... 6

SUMMARY OF ARGUMENT....................... 7

SEE DbdEacnatecsetesscoccasececeracceevcs: 9

A. The Jury’s Verdicts Failed to Specify the Object

of the Section 846 Conspiracy ............... 9

B. Congress Intended that the Jury Determine the

Object of a Section 846 Conspiracy........... 11

1. The Plain Language and Structure of the

Pah tecbubdaduuewe chacsdecssoecéeves 11

TABLE OF CONTENTS - Continued

Page

3. The Petitioners’ Interpretation of Section

846 Is Consistent with General Conspir-

Petitioners’ Construction Provides a Con-

sistent Role for the Jury in Deciding Sec-

ee Be Ge < oc kodanebdediawotde cs

The Government's and Seventh Circuit's

Interpretation Would Constitute a Con-

structive Amendment of the Indictment

The Government's Position Advanced

Below is Inconsistent with its Position,

and this Court’s Rulings, in Double Jeop-

GG GHEE, vccdvccececvcescenyesscoeves

foroide a Sentendiag Proctes That Would

Violate Defendants’ Sixth Amendment

and Due Process Rights to a Unanimous

Jury Determination on Every Element of

GD Gb vac cicecsvccscvcesssonvecece.

The Seventh Circuit's In tion of

Section 846 Would Lead to tions of

the Due Process Right to Timely Notice

of the Maximum Statutory Penalty for an

Al The Case Must Be Remanded For Resentenc-

TABLE OF AUTHORITIES

Page

Cases

Albernaz v. United States, 450 U.S. 333 (1981)........ 10

Apodaca v. Oregon, 406 U.S. 404 (1972)...........645. 33

Bifulco v. United States, 447 U.S. 381 (1980)....... 18, 39

BMW of North America, Inc. v. Gore, ___ U.S. __,

i eh i anhnos bebe sepessetsoerccee es 39

Bouie v. City of Columbia, 378 U.S. 347 (1964)........ 40

Bourjaily v. United States, 483 U.S. 171 (1987)........ 16

Braverman v. United States, 317 U.S. 49 (1942)........ 20

Brown v. United States, 299 F.2d 438 (D.C. Cir. 1962) ..... 6

Burns v. United States, 501 U.S. 129 (1991)........... 44

Cecil v. United States, 444 U.S. 881 (1979)............ 16

Chapman v. United States, 500 U.S. 453 (1991)........ 19

Custis v. United States, 511 U.S. 485 (1994)........... 16

Giordenello v. United States, 357 U.S. 480 (1958)...... 16

Gore v. United States, 357 U.S. 386 (1958)............ 16

Gozlon-Peretz v. United States, 498 U.S. 395 (1991) .... 16

Griffin v. United States, 502 U.S. 46 (1991) ...10, 36, 37, 38

Harris v. United States, 359 U.S. 19 (1959)............ 16

lannelli v. United States, 420 U.S. 770 (1975) ......... 20

In re Winship, 397 U.S. 358 (1970)........ 30, 33, 40, 41

Johnson v. Louisiana, 406 U.S. 356 (1972)............. 33

TABLE OF AUTHORITIES — Continued

Page

Jones v. United States, 362 U.S. 257 (1960)............ 16

Kinder v. United States, 504 U.S. 946 (1992).......... 16

Ladner v. United States, 358 U.S. 169 (1958).......... 39

Lankford v. Idaho, 500 U.S. 110 (1991)............04.. 41

Lanzetta v. New Jersey, 306 U.S. 451 (1939)........... 46

Leary v. United States, 395 U.S. 6 (1969) ............. 16

Luce v. United States, 469 U.S. 38 (1984)............. 16

McCarthy v. United States, 394 U.S. 459 (1969)....... 42

McMillan v. Pennsylvania, 477 U.S. 79 (1986)...... 40, 41

Miller v. Florida, 482 U.S. 423 (1987)................. 39

Neal v. United States, 516 U.S. 284 (1996)............ 19

Olyer v. Boles, 368 U.S. 448 (1962)...........5600euee 42

Pinkerton v. United States, 328 U.S. 640 (1946)........ 20

Ratzlaf v. United States, 510 U.S. 135, 114 S. Ct. 655

GIES . cccbvacddevcececctcccba~encbadsdesccnssecce 14

Roviaro v. United States, 353 U.S. 53 (1957) .......... 16

Sabbath v. United States, 391 U.S. 585 (1968) ......... 16

Salinas v. -United States, No. 96-738, 1997 WL

Tavern Gah TREB, DB TRGGP cccvcccccsccccccccccesss 20

Sanabria v. United States, 437 U.S. 54 (1978).......... 24

Schad v. Arizona, 501 U.S. 624 (1991)......... 34, 35, 38

Schooner Hoppet & Cargo v. United States, 11 US.

SD GHG onic 0 bbc ccc ctncccnddedbbo chesebivec oe cbse 45

vii

TABLE OF AUTHORITIES —- Continued

Smith v. United States, 508 U.S. 223 (1993).......

Stirone v. United States, 361 U.S. 212 (1960)......

Sullivan v. Louisiana, 508 U.S. 275 (1993).........

Turner v. United States, 396 U.S. 398 (1970)......

United States v. Alvarez, 735 F.2d 461 (11th Cir.

Dititlhs)4 ahd chbhaenenesbaceadGhesheheeecese

United States v. Batchelder, 442 U.S. 114 (1979)...

United States v. Belanger, 970 F.2d 416 (7th Cir.

ss PPOPPPTSTTTT ST TTT TTTILTTTTITTTT TT rTrTreee

FOF Pade cesvccdcvvccocecsoectisvedevcccccacecs

United States v. Bounds, 985 F.2d 188 (5th Cir. 1993)

United States v. Brown, 333 U.S. 18 (1948) .......

United States v. Bush, 70 F.3d 557 (10th Cir. 1995)...

United States v. Carrozza, 4 F.3d 70 (1st Cir. 1993)....

United States v. Chadwick, 433 U.S. 1 (1977)......

United States v. Coscarelli, 105 F.3d 984 (5th Cir.

i i iehs secudhdsbacdedeeghnnsedtaesads cess

United States v. Darmand, 3 F.3d 1578 (2d Cir. 1993) ....

United States v. DeJesus, 806 F.2d 31 (2d Cir. 1986) .

United States v. Dinitz, 424 U.S. 600 (1976) ......

United States v. Eaton, 144 U.S. 677 (1892).......

United States v. Edwards, 105 F.3d 1179 (7th Cir.

TOES P sc deccccceeccccecsctdderseovvddccevevecds

.27, 28

viii

TABLE OF AUTHORITIES - Continued

Page

United States v. Estrada, 42 F.3d 228 (4th Cir. 1994) .... 28

United States v. Evans, 333 U.S. 483 (1948)........ 40, 41

United States v. Felix, 503 U.S. 378 (1992)............ 20

United States v. Garcia, 37 F.3d 1359 (9th Cir. 1994)..... 6

United States v. Garrett, 565 F.2d 1065 (9th Cir.

eed cdedcvvevwisatescnsadeccnsiseerereiiese . 43

United States v. Gaudin, 515 U.S. 506 (1995)....... 30, 31

United States v. Gibbs, 813 F.2d 596 (3d Cir. 1987) .... 44

United States v. Granderson, 511 U.S. 39 (1994)....... 39

United States v. Grandison, 783 F.2d 1152 (4th Cir.

SS 04 e bachwands 6cecteeds Suan eeeanesecaeens aus 27

Linited States v. Jin Fuey Moy, 241 U.S. 394 (1916) .... 16

United States v. Johns, 469 U.S. 478 (1985) ........... 16

United States v. Karo, 468 U.S. 705 (1984)............ 16

United States v. Leichtnam, 948 F.2d 370 (7th Cir.

Gras Cacccenceeucsenedieeeabaca> Wasusavedeavens 25

United States v. Lewis, 110 F.3d 417 (7th Cir. 1997) .... 28

United States v. Mandujano, 425 U.S. 564 (1976)...... 16

United States v. Melvin, 27 F.3d 710 (1st Cir. 1994)..... 6

United States v. Mezzanatto, 513 U.S. 196 (1995)...... 16

United States v. Miller, 471 U.S. 130 (1985)........ 25, 27

United States v. Moore, 423 U.S. 122 (1975)........... 16

United States v. Morrison, 429 U.S. 1 (1976).......... 16

TABLE OF AUTHORITIES - Continued

Page

United States v. Morrison, 449 U.S. 361 (1981)........ 16

United States v. Neapolitan, 791 F.2d 489 (7th Cir.

Dictehe nts Chad cipal buns OAOEUEEEW Ss teseesese 24

United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir.

DCLh dt Gs aden dbadeeheabenntnauteederesdesaseee cd 6

United States v. Owens, 904 F.2d 411 (8th Cir. 1990) ..... 6

United States v. Pace, 981 F.2d 1123 (10th Cir. 1992) .... 10

United States v. Padilla, 508 U.S. 77 (1993)........... 16

United States v. Pearson, 910 F.2d 221 (5th Cir. 1990) .... 42

United States v. Peltier, 422 U.S. 531 (1975) .......... 16

United States v. Perez, 960 F.2d 1569 (11th Cir. 1992) .... 41

United States v. Place, 462 U.S. 696 (1983)............ 16

United States v. Quicksey, 525 F.2d 337 (4th Cir.

PE piradncsdende boaneseba een dd66ntcessadensens « 6

United States v. Reyes, 40 F.3d 422 (10th Cir. 1994) .... 28

United States v. Richardson, 86 F.3d 1537 (10th Cir.

PS ches etAnedeennese sb anencan ican ncads 10, 27, 28

United States v. Rodriguez, 67 F.3d 1312 (7th Cir.

NS GoW bu 0606 e000 vb005 6666 ccddeece tnceceesss 28

United States v. Scanzello, 832 F.2d 18 (3d Cir. 1987) .... 15

United States v. Schoenhut, 576 F.2d 1010 (3d Cir.

elite ata eh id ed oe eee ee ee a eG 45

United States v. Shabani, 513 U.S. 10 (1994) ...14, 20, 30

United States v. Siegel, 102 F.3d 477 (11th Cir. 1996) .... 42

TABLE OF AUTHORITIES - Continued

United States v. Sokolow, 490 U.S. 1 (1989)........... 16

United States v. Steen, 55 F.3d 1022 (5th Cir. 1995) .... 15

United States v. Ursery, __ U.S. ___, 116 S. Ct. 2135

Cds a dovdbotusvessdcededscccabavubussaeeeuasss 16

United States v. Watts, __ U.S. __, 117 S. Ct. 633

Dicnhsanakdurkess6bindubannnesonauwuns 24, 29, 30

United States v. Weissman, 899 F.2d 1111 (11th Cir.

Pha ¢caccebeddbwud daevedeks hataokns ab ésanasa chee 25

United States v. Williams, 107 F.3d 869 (4th Cir.

Rs aes Ree Pe ee > tp a 44

United States v. Winston, 37 F.3d 235 (6th Cir. 1994) .... 28

United States v. Wozniak, 126 F.3d 105 (2d Cir.

Pee cdvudcscuceesenssesvcuuenesentedbendannsus 25, 26

Wade v. United States, 504 U.S. 181 (1992) ........... 16

Walder v. United States, 347 U.S. 62 (1954)........... 16

Williams v. United States, 503 U.S. 193 (1992) ........ 47

Witte v. United States, 515 U.S. 389 (1995) ....28, 29, 30

Wong Sun v. United States, 371 U.S. 471 (1963)....... 16

Yates v. United States, 354 U.S. 298 (1957)......... 36, 37

CONSTITUTION

i Se ee ee 1, 30, 31, 47

fe G0 OS ae ee 1, 30, 31, 32, 33, 47

TABLE OF AUTHORITIES — Continued

STATUTES

18 U.S.C.

U.S.C.

USC.

U.S.C.

Page

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i PP errerrrrrrrr rr errr ree 2

i c-cstnhsevadn cennnndnewaneoun iat 2, 25

PLC Vents Cdenksachousnschashuabins 47

i rrns wennkenesscnnedenhodatennes 47

i Tins p6uenbee seehadntadepensads%es 13

SD Ces taveen does 6¢.006e0tensbanneddunn 14

bb cndérectadenqeeeavtceséxsenness passim

¢ésn0ocaSenécedsncakiunecavans passim

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DC iccciscehesseesestecene 13, 22, 41, 43

i atintvidecureisentvecetskhokaseess 13

nib enk eu adive cndes dass kil 13, 44

EE 23

es oie sud nu0debsbceseues 26

ED i vncucesnsictscsectous 26

coin tubedecseeeneth ont 13, 44

ES hate knAghnatesen ed tenbones 23

ids kchwnsebe.ciaenditsnndéss eens 13

ssc cchbearasecnhunssnudas seuwes 13

ct ntackcangencdsathevnnsvens 13

DC Aecbbawtsies ¢iddobbueddecevesuvesdes 13

xii

TABLE OF AUTHORITIES — Continued

Page

BE ee SD 6 eae hwdcdvacwecvedcatdvcndsouswent 13

Pe ee EE Cais hncNeua cecaddaeteesncnak 12, 13, 22

Oe ie Rand 60ni056 bow esas cds iunatiweuns passim

iG rnd Le tacen vines tage eescantawenne 43

ee IE 56 6 Kdn0040 Seu ee snens cue Gekes ues 15

ee ee ED ccnaccbd neues sacsedunsude caneckens 1

Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,

SP HE G06 hoot creseydecdecdexeeucnsaneess 19

Comprehensive Drug Abuse Prevention and Con-

trol Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 17, 18

Harrison Narcotic Drug Act, Ch. 1, 38 Stat. 785

RE er rneet rene ry Or ree ee Lt eee Pe 19

Marijuana Tax Act of 1937, Ch. 533, 50 Stat. 551.... 19

Narcotic Drugs Import and Export Acts of 1922,

Gs Gey Ge A, MU cc ccciecvecescaccacccsenictes 19

CONGRESSIONAL MATER:ALS

SG Gite, TRS. GES CO ao vnc cc cectenscccccecces 17

MISCELLANEOUS

Federal Rules of Criminal Procedure 3l(a) .......... 33

Federal Rules of Criminal Procedure 7(f)............ 43

U.S. Sentencing Guidelines Manual................ 4, 48

Kathleen F. Brickey, The Federalization of American

Criminal Law, 46 Hastings L.J. 1135 (1995)......... 19

xiii

TABLE OF AUTHORITIES - Continued

Page

1 W. LaFave & A. Scott, Jr., Substantive Criminal

Ee. CET TTT TTT PETE TeTee 45

David F. Musto, The American Disease: Origins of

RE ne 18

William Spade, Jr., Beyond the 100:1 Ratio: Towards

a Rational Cocaine Sentencing Policy, 38 Ariz. L.

NS voc bien odin sO0b5> eeteccccsvecssceus 19

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit, entitled United States v. Edwards, is

reported at 105 F.3d 1179 (7th Cir. 1997), and is included

in the Joint Appendix at section A-5. (J.A. 179-86).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). On January 30, 1997, the United States

Court of Appeals for the Seventh Circuit affirmed the

judgments of the District Court in the case of United

States v. Edwards, 105 F.3d 1179 (7th Cir. 1997). A Petition

for Certiorari on behalf of all Petitioners was filed on

April 21, 1997. This Court granted certiorari on October

20, 1997. (J.A. 187).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The following constitutional and statutory provisions

are set forth in full in Appendix A to this brief: the Fifth

and Sixth Amendments of the Constitution of the United

States; 21 U.S.C. § 846; and 21 U.S.C. § 841.

STATEMENT OF THE CASE

A. The Indictment

The indictment in this case (No. 93 CR 20024) was

returned by the Grand Jury sitting in the United States

District Court for the Northern District of Illinois, West-

ern Division, on July 27, 1993. (R. at 1).' A superseding

indictment was filed on November 23, 1993, extending

the time period referred to in Count One by one day and

adding 11 additional counts. (R. at 357). The superseding

* Citation to the record below is noted by the abbreviation

“(R. at__)” followed by the docket entry of the item referenced.

indictment named 20 defendants in 26 counts charging

these individuals with various narcotics and firearms

offenses in violation of 21 U.S.C. §§ 846 and 841(a)(1) and

18 U.S.C. §§ 924(c) and 922(g). (R. at 357; J.A. 4-12).

Count One of the superseding indictment charged all

five Petitioners, as well as 15 others, with conspiracy to

possess with intent to distribute, and conspiracy to dis-

tribute, cocaine and cocaine base from a period beginning

in 1989 and continuing until July 28, 1993. (J.A. 4-10). The

indictment alleged that the Petitioners had agreed with

the other named defendants and others unknown, to

participate in the street sale of quantities of cocaine and

cocaine base in the Rockford, Illinois area through the

operation of several drug houses.?

Count Four alleged that on or about April 22, 1993,

Petitioners Vincent Edwards and Reynolds Wintersmith

possessed with the intent to distribute approximately 5.32

grams of mixtures containing cocaine base in violation of

21 U.S.C. § 841(a)(1). (J.A. 11). Count Five alleged that on

or about April 30, 1993, Petitioner Joseph Tidwell pos-

sessed with the intent to distribute approximately 0.7

grams of a mixture containing cocaine base in violation of

21 U.S.C. § 841(a)(1). (J.A. 12). Finally, Count Six alleged

that on or about April 30, 1993, Petitioner Joseph Tidwell

used and carried a firearm during and in relation to a

drug trafficking crime, namely, the offenses described in

Counts One and Five of the indictment, in violation of 18

U.S.C. § 924(c).> (J.A. 12).

2 Count Two alleged that on or about January 15, 1993,

Petitioner Karl Vincent Fort knowingly and intentionally

distributed approximately 0.30 grams of a mixture containing

cocaine base in violation of 21 U.S.C. § 841(a)(1). (J.A. 11). On

June 27, 1994, the Court dismissed this count with prejudice. (R.

at 956, 958).

3 The remaining counts of the superseding indictment

(Counts 3 and 7-26) charged offenses only against parties who

are not involved in this appeal.

B. The Trial and Verdict

Several defendants charged in the indictment entered

guilty pleas prior to trial. (R. at 436, 449, 495, 654). After

initially denying various severance motions, the court

granted the defendants’ motion for severance and

divided them into three groups for trial. (R. at 711, 712).

The five Petitioners were tried together in the second of

the three trials. The trial in this matter commenced on

June 27, 1994, in the U.S. District Court for the Northern

District of Illinois, Western Division, before the Honor-

able Philip G. Reinhard. (R. at 958).

Various government witnesses testified at trial that

Petitioners played differing roles in a retail drug opera-

tion in Rockford, Illinois. (See, e.g., Tr. at 912-13, 982-87).4

Government witnesses testified that the retail operation

consisted of a number of drug houses at which individual

dosages of powder cocaine were sold to customers who

came to the houses. (Tr. at 838). These drugs were pack-

aged at the houses and sold in small “dime bags,” or $10

bags. (Tr. at 839-40). Some cooperating witnesses testified

that the drug houses later also began to sell cocaine base,

or “crack,” which certain members of the conspiracy

manufactured. Apart from the testimony of these wit-

nesses, the government introduced evidence obtained

during searches conducted in July 1993, toward the end

of the alleged conspiracy. (See, e.g., Tr. at 1646-67,

2089-2159, 2179-2231, 2302-25). Law enforcement officers

also seized small quantities of drugs. (See, e.g., Tr. at

484-546, 616-43, 698-717, 2020-32). In addition, an under-

cover purchase of powder cocaine from one of the drug

houses occurred. (Tr. at 742, 1698-1718).

* The transcript of the trial proceedings is numbered

sequentially from jury selection to the return of the verdict. It is

cited throughout this brief as “(Tr. at__)” followed by the page

number of the transcript at which the cited assertion appears.

No special verdicts with respect to the different

objects of the conspiracy were requested. On July 18,

1994, the jury found all Petitioners guilty of Count One of

the indictment, Petitioners Edwards and Wintersmith

guilty of Count Four of the indictment, and Petitioner

Joseph Tidwell guilty of Counts Five and Six of the indict-

ment. (J.A. 18-23).

C. The Sentencing

On November 21, 1994, Judge Reinhard held a sen-

tencing hearing for Petitioner Karl Vincent Fort. The

court held Fort liable for 24 kilograms of cocaine and held

that half of that amount was powder cocaine, half was

cocaine base. (J.A. 64-86). That quantity of drugs resulted

in a base offense level of 38. See U.S. Sentencing Guide-

lines Manual § 2D1.1(c). With the two-level and four-level

enhancements for use of weapon and his role in the

offense respectively, id. § 2D1.1(b)(1) and § 3B1.2, the

court set Fort’s offense level at 44, resulting in a manda-

tory life sentence under the Sentencing Guidelines.

On November 23, 1994, Judge Reinhard held a sen-

tencing hearing for Petitioner Reynolds Wintersmith. On

Count One, the court held that the core group of which

Wintersmith was a member was liable for 8 kilograms of

cocaine. The court allocated 50 percent of this amount to

powder, the remainder to cocaine base. With regard to

Count Four, the court found that Wintersmith possessed

5.32 grams of cocaine base. The court thus set the base

offense level at 38. (J.A. 97-113). Including leadership and

gun possession enhancements, the court set Win-

tersmith’s total offense level at 44. The court imposed a

mandatory life sentence on Count One, along with a

concurrent sentence of 40 years of incarceration on Count

Four. (J.A. 96).

On November 22, 1994, Judge Reinhard held a sen-

tencing hearing for Petitioner Horace Joiner. On Count

One, the court found Joiner liable for 14 grams of cocaine

base and 7 grams of powder cocaine, resulting in a base

——

offense level of 26. With a two-point enhancement for

firearm possession, the court placed Joiner’s offense level

at 28; considering Joiner’s criminal history, this resulted

in a guideline range of 110-137 months of incarceration.

The court imposed a sentence of 126 months. (J.A.

114-42).

On November 22, 1994, Judge Reinhard held a sen-

tencing hearing for Petitioner Vincent Edwards. The court

found Edwards liable for 201 grams of powder cocaine

and 5.32 grams of cocaine base with respect to Count One

and 5.32 grams of cocaine base with respect to Count

Four, resulting in a base offense level according to the

Sentencing Guidelines of 26. With a two-level enhance-

ment for firearm possession, the court assigned to

Edwards a total offense level of 29. In light of his criminal

history, this offense level placed Edwards in the Guide-

lines range of 97 to 121 months. (J.A. 26-36). The court

imposed a sentence of 120 months of incarceration.

On January 18, 1995, Judge Reinhard held a sentenc-

ing hearing for Petitioner Joseph Tidwell. On Count One,

the court found Tidwell liable for 448 grams of cocaine

base and 971.6 grams of cocaine powder. On Count Five,

the court found that Tidwell distributed 0.7 grams of

cocaine base. The court thus found a base offense level of

34. With a two-point enhancement for obstruction of jus-

tice, the court placed Tidwell’s offense level at 36. In light

of Tidwell’s criminal history, a guideline range of 210-262

months resulted. The court imposed a sentence of 252

months, plus a five-year consecutive sentence on Count

Six. (J.A. 143-52). For all Petitioners, the attribution of

cocaine base as the drug agreed to be distributed in

Count One was determinative in substantially raising the

offense level, and thus greatly increasing the length of the

sentence.

D. Appeal to the United States Court of Appeals for

the Seventh Circuit

The Petitioners appealed their convictions and sen-

tences to the United States Court of Appeals for the

Seventh Circuit. The Petitioners argued that their sen-

tences were improperly imposed because the indictment

presented a multi-object conspiracy and the general ver- __

dict of guilty did not disclose the object that the jury

found each of the Petitioners to have agreed to commit.

Relying on the rule developed in eight different courts of

appeals confronted with similarly ambiguous verdicts,

United States v. Melvin, 27 F.3d 710 (1st Cir. 1994), appeal

after remand, 70 F.3d 679 (1995), cert. denied sub nom. Joyce

v. United States, US. __, 116 S. Ct. 1556 (1996); United

States v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir.),

cert. denied, 469 U.S. 845 (1984); United States v. Quicksey,

525 F.2d 337, 342 (4th Cir. 1975), cert. denied, 423 U.S. 1087

(1976); United States v. Bounds, 985 F.2d 188, 193 (5th Cir.),

rehearing denied, 990 F.2d 628, cert. denied, 510 U.S. 845

(1993); United States v. Owens, 904 F.2d 411, 414 (8th Cir.

1990); United States v. Garcia, 37 F.3d 1359, 1369-70 (9th

Cir. 1994), cert. denied, 514 U.S. 1067 (1995); Brown ov.

United States, 299 F.2d 438, 440 (D.C. Cir.), cert. denied sub

nom. Thornton v. United States, 370 U.S. 946 (1962), the

Petitioners asked that their convictions be set aside and

that they be granted a new trial or that their sentences be

based on the object carrying the lesser punishment.

The Seventh Circuit rejected Petitioners’ argument.

Edwards, 105 F.3d at 1180-81. The Seventh Circuit held

that under the Sentencing Guidelines, the judge deter-

mines the type and quantity of controlled substances

involved in an offense and may consider relevant conduct

to include drugs not charged or considered by the jury

and that the jury’s findings “about which drug the con-

spirators distributed therefore is not conclusive.” Id. at

1181. The Seventh Circuit also held that the indictment

presented to the jury charged the Petitioners with com-

mitting a single crime in two ways and “as long as the

jury finds that the defendants conspired to distribute any

drug proscribed by § 841(a)(1), the judge possesses the

power to determine which drug, and how much.” Id. at

1182 (emphasis in original). Thus, the Seventh Circuit

disagreed with the majority of courts of appeals, and

affirmed the Petitioners’ convictions and sentences.

SUMMARY OF ARGUMENT

The general verdicts in this multi-object conspiracy

case are fundamentally ambiguous because they fail to

specify the statutory object of the conspiracy under 21

U.S.C. § 846 (“Section 846”). It is impossible to tell, there-

fore, whether the jury found the Petitioners each guilty of

conspiracy to distribute powder cocaine only, cocaine

base only, or both powder cocaine and cocaine base — or

whether the jury simply never addressed the question of

which object each juror found each Petitioner to have

conspired to achieve. Even though the jury verdict did

not establish that Petitioners were found guilty of con-

spiring to distribute cocaine base, the District Court sen-

tenced Petitioners on the assumption that the offense of

conviction on Count One was conspiracy to distribute

both cocaine powder and cocaine base. The Seventh Cir-

cuit held that this sentencing procedure is permissible

because it found that a Section 846 conspiracy to distrib-

ute drugs constitutes a single conspiracy to violate a

single object offense - namely, 21 U.S.C. § 841(a) (“Section

841(a)”) — regardless of the number and variety of drugs

involved or the vastly different statutory maximum pen-

alties for each. That decision is in error.

The correct construction of Section 846 demonstrates

that, in the case of a conspiracy to violate Section 841(a),

the offense of conviction must be defined to include the

identity of the drug involved. The sentencing court,

therefore, may not assume the offense of conviction is

conspiracy to distribute cocaine base unless the jury's

verdict specifies the offense of conviction specifically to

include cocaine base. Where, as in this case, the verdict

does not specify the drug, the District Court may not base

sentencing on the most severe interpretation of the ver-

dict, carrying the highest range of statutory penalties, but

must either assume the penalty carrying the lowest statu-

tory sentencing range applies or grant a new trial with a

special verdict that will identify the drug or drugs which

the jury finds were the object of the conspiracy.

This result is compelled by the express language,

statutory structure, and history of Section 846, which

demonstrate that Congress intended a jury verdict to

specify the object of a Section 846 conspiracy, including

the identity of the drug or drugs which was the object of

the conspiracy. Recent statutory amendments to Section

846 confirm the conclusion that the type of controlled

substance is encompassed in the object of a Section 846

conspiracy.

In addition, this Court’s cases discussing the mean-

ing and requirements of conspiratorial agreements, Dou-

ble Jeopardy principles in narcotics cases, and the Sixth

Amendment and Due Process violations which the gov-

ernment’s construction would entail, all compel the con-

clusion that Congress intended the jury to determine the

object of the Section 846 offense, including the type of

narcotics which were the subject of the alleged agree-

ment. Not only is the government's and Seventh Circuit's

construction of Section 846 contrary to the statute’s plain

meaning, but it would lead to bizarre and unfair results,

to unavoidable conflicts with precedents of this Court

and the lower courts in related contexts, and to constitu-

tional infirmities. In contrast, Petitioners’ construction

provides a coherent, consistent and just interpretation of

the language and Congressional purpose of Section 846.

ARGUMENT

A. The Jury’s Verdicts Failed to Specify the Object of

the Section 846 Conspiracy

The verdicts in this case are fundamentally ambig-

uous because they fail to specify the statutory object of

the conspiracy under Section 846. It is impossible to tell,

therefore, whether the jury found the Petitioners each

guilty of conspiracy to distribute powder cocaine only,

cocaine base only, or both powder cocaine and cocaine

base — or whether the jury ever addressed the question of

which object each juror found each Petitioner to have

conspired to achieve.

The indictment charged the Petitioners with conspir-

ing “knowingly and intentionally to possess with intent

to distribute and to distribute mixtures containing

cocaine, a Schedule II Narcotic Drug Controlled Sub-

stance, and cocaine base, a Schedule II Narcotic Drug

Controlled Substance, in violation of Title 21, United

States Code Section 841(a)(1).” (J.A. 6-7). The conspiracy

count did not specify any quantity or range of quantities

of cocaine or cocaine base as the sole object of the con-

spiracy. (J.A. 6-7). The jury was instructed that the indict-

ment charged the Petitioners with “conspiring to possess

with intent to distribute and to distribute cocaine and

cocaine base,” (J.A. 13), and the conspiracy count was so

characterized throughout the instructions to the jury. (J.A.

15, 16). However, the jury was further instructed that the

Petitioners could be found guilty of Count One if the

government proved the conspiracy “involved measurable

amounts of cocaine or cocaine base.” (J.A. 16) (emphasis

added).5

> The government conceded before the Seventh Circuit that

the charge to the jury presented it with a disjunctive choice of

finding measurable quantities of cocaine or cocaine base and

thus, the jury verdict could rest on either basis to the exclusion

of the other. Government’s Court of Appeals Brief at 31. The

The indictment as presented to the jury during its

deliberations thus presented in a single count of the

indictment a conspiracy with multiple possible objects: an

agreement to distribute cocaine, an agreement to distrib-

ute cocaine base, or an agreement to do both. A conspir-

acy which has multiple separate objects, even if the two

objects violate the same statute in the same general way,

is a multiple object conspiracy. See Griffin v. United States,

502 U.S. 46, 57 (1991) (conspiracy to impair and impede

two separate law enforcement agencies under single gen-

eral conspiracy statute, 18 U.S.C. § 371, is an example of a

“multiple object” conspiracy); see also United States v.

Bush, 70 F.3d 557, 562 (10th Cir. 1995), cert. denied, __ US.

__, 116 S. Ct. 795 (1996); United States v. Pace, 981 F.2d

1123, 1128-30 (10th Cir. 1992) (conspiracy to distribute

amphetamines and methamphetamines was a multiple

object conspiracy), cert. denied sub nom. Leonard v. United

States, 507 U.S. 966 (1993). The government could have

sought in this case, and the grand jury could have

returned, an indictment charging the conspiracy to dis-

tribute cocaine and the conspiracy to distribute cocaine

base in separate counts charging separate offenses. Cf.

Albernaz v. United States, 450 U.S. 333 (1981) (conspiracy

to import marijuana and conspiracy to distribute same

marijuana are separate offenses); see also United States v.

Richardson, 86 F.3d 1537, 1551 (10th Cir.) (“simultaneous

possession of different controlled substances may qualify

as separate offenses”) (citing decisions in five circuit

Seventh Circuit’s ruling acknowledged the government's

concession and encompassed within its holding the disjunctive

nature of the conspiracy charge. United States v. Edwards, 105

F.3d 1179, 1182 (7th Cir. 1997) (“In [a previous decision], we held

[ ] that there is no problem when the instructions are phrased in

the conjunctive, for then the jury necessarily finds that the

defendants distributed all of the drugs identified in the

indictment. Now we add that there is no problem when the

instructions are phrased in the disjunctive . . . ”).

courts of appeals), cert. denied, __ U.S. __, 117 S. Ct. 588

(1996). Instead, the prosecutor presented to the grand

jury, and the grand jury voted probable cause on, an

indictment setting forth both alleged objects in a single

count.

The verdict forms presented to the jury requested

general verdicts and simply asked whether the jury found

each of the defendants “guilty of the drug conspiracy

charge contained in Count One of the indictment.” (J.A.

18-23). No special interrogatory or special verdict form

was provided to the jury during deliberations seeking

this information. Thus, based on the general verdict of

guilty to the charge in Count One, no basis exists for

determining precisely what the offense of conviction was:

a conspiracy to distribute cocaine, a conspiracy to distrib-

ute cocaine base, or both.

B. Congress Intended that the Jury Determine the

Object of a Section 846 Conspiracy

1. The Plain Language and Structure of the Statute

The plain language and structure of Section 846 indi-

cate that Congress intended and assumed the jury would

determine the type of narcotics in a Section 846 conspir-

acy. Section 846 provides:

Any person who attempts or conspires to com-

mit any offense defined in this subchapter shall

be subject to the same penalties as those pre-

scribed for the offense, the commission of which

was the object of the attempt or conspiracy.

This language provides that the definition of the Section

846 conspiracy in each case is tied to potential penalties

for the substantive offense, the commission of which was

the object of the conspiracy. The term “offense” is used to

identify a particular offense for which specific penalties

are “prescribed” by statute. Thus, Section 846 expressly

identifies “the object” of the attempt or conspiracy

charged as the underlying “offense.”® In the case of con-

spiracies to distribute drugs, for example, Section 841 sets

out different penalties for the different possible objects of

such a conspiracy, and these different objects depend on

the identity of the narcotics in question. A Section 846

conspiracy, therefore, is in each case defined by “the

offense” (a) for which penalties are “prescribed” by stat-

ute and (b) “the commission of which was the object of

the attempt or conspiracy.” The “object of the attempt or

conspiracy” refers to and expressly incorporates the

entirety of any provision setting forth an “offense defined

in this subchapter,” including its description, its penalty,

and its special enhancements.

Thus, for example, a conspiracy to use the telephone

to distribute narcotics, 21 U.S.C. § 843(b) (“Section

843(b)”), subjects a defendant to a maximum penalty of

four years imprisonment, because Section 843(b) sets

forth, in a single paragraph, a description of an offense

and only a single maximum penalty of four years. 21

U.S.C. § 843(b). In contrast to Section 843(b), distribution

of narcotics under 21 U.S.C. § 841(a) (“Section 841(a)”)

does not define a single range or maximum penalty, as the

penalties vary widely depending on, among other things,

the identity of the narcotics involved. Congress provided

no penalty provision for a generic violation of Section

841(a), but only for specific kinds of violations of Section

841(a). Under Section 841(a), only violations involving

specified narcotics prescribe penalties. For this reason, a

6 Grammatically speaking, the clause “the commission of

which was the object of the conspiracy” modifies the term

“offense” that immediately precedes it in the statute. The term

“offense” is used twice in the single sentence of Section 846, and

“offense” must have the same meaning in both instances. In

Section 846, therefore, the term “offense” must refer to the

specific “object” for which the specific “penalties” are

“prescribed” in the statute the defendant has conspired to

violate.

Section 846 conspiracy premised on a Section 841(a) dis-

tribution must incorporate the particular subdivision of

Section 841(b) setting forth the penalty and any of its

statutory maximum enhancements. Only in that way can

Congress’ explicit directive that the penalty of a conspir-

acy or attempt “to commit any offense” be subject to “the

same penalties as those prescribed for the offense” be

carried out. Section 846’s use of the term “offense” must

include the identification of the controlled substance in

question because Section 846 uses the term “offense” to

identify an act for which specific penalties are prescribed,

either in Section 841(a) or in another section of the Con-

trol and Enforcement subchapter, or in a specific subsec-

tion of such other section of the subchapter.

The structure of other provisions of Title 21 confirm

that a Section 846 conspiracy to distribute must be read to

include identification of the narcotics involved. The

potential offenses for Section 846 include, for example,

the crimes defined in Section 843. As with Section 841(a),

Section 843(a) is labelled “Unlawful Acts” but, despite its

misleading title, sets forth only one of several distinct

crimes encompassed by Section 843. Section 843(a) gov-

erns only a person “who is a registrant to distribute

controlled substances,” while 843(b) defines a separate

offense prohibiting all persons from using a communica-

tions facility to commit any crime within Title 21. Like

Section 841, many other provisions within the reach of

Section 846 set forth the definitions and requirements for

distinct criminal offenses with different maximum penal-

ties in different subsections. E.g., 21 U.S.C. § 843(b); 21

U.S.C. § 841(b)(1), (2) & (3); 21 U.S.C. § 841(b)(7)(A).

Several of these subsections carry mandatory minimum

sentences as well. E.g., 21 U.S.C. § 841(b)(1)(A) & (B).

Moreover, all of these offenses require a reference to

Section 812, which sets forth the criteria and identifica-

tion of the five schedules of controlled substances which

are regulated under the Drug Abuse Prevention and Con-

trol Act. 21 U.S.C. § 812(a). The Seventh Circuit erro-

neously assumes that Section 846 conspiracies to

distribute narcotics are fully defined by Section 841(a)

and require no reference to the particular drugs involved.

To commit a Section 846 offense, two or more individuals

must agree to commit some offense in the subchapter

which has a prescribed penalty.”

The plain meaning of Section 846 is confirmed by

examining the language of the general conspiracy statute,

because the general conspiracy statute also uses the term

“the offense, the commission of which is the object of the

conspiracy” to include a sufficient definition of the

offense sufficient to determine which of the two statutory

maximums apply. 18 U.S.C. § 371. See, e.g., Ratzlaf v.

United States, 510 U.S. 135, __, 114 S. Ct. 655, 660 (1994)

(“A term appearing in several places in a statutory text is

generally read the same way each time it appears.”). In

Section 371, Congress distinguished between conspiracies

which have as their object an offense which is a felony

and conspiracies which have as their object an offense

which is a misdemeanor: If the offense is a felony, the

maximum sentence is five years. “If, however, the

offense, the commission of which is the object of the

conspiracy, is a misdemeanor only, the punishment for

such conspiracy shall not exceed the maximum punish-

ment provided for such misdemeanor.” 18 U.S.C. § 371. In

Section 371 cases, when an object offense could be a

felony or a misdemeanor depending on a particular

threshold fact, the Courts of Appeal have long required

7 The elements of the offense of Section 846 include an

agreement to commit a criminal object or purpose and

membership in that agreement; the statute does not require an

overt act. United States v. Shabani, 513 U.S. 10, 16 (1994). This

Court has expressly held that the act of agreeing to the

commission of a particular offense itself provides the “actus

reus” of the crime of narcotics conspiracy. Id.

—_—

that particular fact to be treated as an element of the

offense which the jury must determine. See, e.g., United

States v. Scanzello, 832 F.2d 18, 23 (3d Cir. 1987). The same

construction should apply to Section 846: as in Section

371, the definition of the offense “the commission of

which is the object of the conspiracy” must include suffi-

cient facts, such as the identity of the narcotics, to deter-

mine the range of statutory penalties applicable to the

conspiracy. Because Section 371 had existed in its present

form for over twenty years when Congress chose to use

that same language in Section 846, it is reasonable to

conclude that Congress intended the jury to play the

same role in Section 846 cases that it plays in Section 371

cases in deciding the threshold facts which determined

the nature of the criminal agreement and the range of

penalties Congress provided for that agreement.

This understanding of Section 846 also explains why

Congress deemed it necessary for the government to give

defendants notice of a prior drug conviction via a sepa-

rate information, before relying on such a conviction to

enhance a defendant's sentence, but did not require such

a special procedure for other sentencing-determining fac-

tors, such as the type of drugs. 21 U.S.C. § 851(a) (“No

person convicted of an offense under this part shall be

sentenced to increased punishment by reason of one or

more prior convictions, unless before trial, or before entry

of a plea of guilty, the United States attorney files an

information with the court . . . stating in writing the

previous convictions to be relied upon.”); see also United

States v. Steen, 55 F.3d 1022, 1025-28 (5th Cir.) (holding

that because “repeat offenders face significantly harsher

sentences than do first offenders, Congress intended that

defendants receive notice of the prior convictions on

which the court is relying.”) (citations omitted), rehearing

and suggestion for rehearing en banc denied by 66 F.3d 324

(5th Cir. 1995), and, cert. denied, _§. U.S. __, 116 S. Ct. 577

(1995). Congress assumed, as remains the prevailing prac-

tice, that the indictment identifying the substantive

offense which was the object of the conspiracy would also

identify the type of narcotics at issue in the conspiracy

charge.* Therefore, Congress understood Section 846 to

incorporate the object offense with sufficient specificity to

® For cases in this Court under Section 841 and its

predecessors in which the terms of the indictment were

discussed or quoted, and in which the indictment named the

drug in question, see, e.g., United States v. Ursury, _. U.S. __

116 S: Ct. 2135 (1996) (Marijuana); United States v. Mezzanatto,

513 U.S. 196 (1995) (Methamphetamine); Custis v. United States,

511 U.S. 485 (1994) (Cocaine); Smith v. United States, 508 U.S. 223

(1993) (Cocaine); United States v. Padilla, 508 U.S. 77 (1993)

(Cocaine); Kinder v. United States, 504 U.S. 946, White, J.,

dissenting (1992) (Methamphetamine); Wade v. United States, 504

U.S. 181 (1992) (Cocaine); Gozlon-Peretz v. United States, 498 U.S.

395 (1991) (Heroin); United States v. Sokolow, 490 U.S. 1 (1989)

(Cocaine); Bourjaily v. United States, 483 U.S. 171 (1987)

(Cocaine); United States v. Johns, 469 U.S. 478 (1985) (Marijuana);

Luce v. United States, 469 U.S. 38 (1984) (Cocaine); United States v.

Karo, 468 U.S. 705 (1984) (Cocaine); United States v. Place, 462

U.S. 696 (1983) (Cocaine); United States v. Morrison, 449 U.S. 361

(1981) (Heroin); Cecil v. United States, 444 U.S. 881, Brennan, J.,

dissenting (1979) (Cocaine); United States v. Morrison, 429 U.S. 1

(1976) (Marijuana); United States v. Chadwick, 433 U.S. 1 (1977)

(Marijuana); United States v. Mandujano, 425 U.S. 564 (1976)

(Heroin); United States v. Peltier, 422 U.S. 531 (1975) (Marijuana);

United States v. Dinitz, 424 U.S. 600 (1976) (LSD); United States v.

Moore, 423 U.S. 122 (1975) (Methadone); Turner v. United States,

396 U.S. 398 (1970) (Cocaine and Heroin named in separate

counts); Leary v. United States, 395 U.S. 6 (1969) (Marijuana);

Sabbath v. United States, 391 U.S. 585 (1968) (Cocaine); Wong Sun

v. United States, 371 U.S. 471 (1963) (Heroin); Jones v. United

States, 362 U.S. 257 (1960) (Heroin); Harris v. United States, 359

U.S. 19 (1959) (Heroin); Gore v. United States, 357 U.S. 386 (1958)

(Heroin and Cocaine); Giordenello v. United States, 357 U.S. 480

(1958) (Heroin); Roviaro v. United States, 353 U.S. 53 (1957)

(Heroin); Walder v. United States, 347 U.S. 62 (1954) (Heroin);

United States v. Jin Fuey Moy, 241 U.S. 394 (1916) (“Opium and

salts thereof, to wit, one dram of morphine sulfate.”)

—a —

identify its specific penalty provision, defendants would

have constitutionally adequate notice of the maximum

penalty a defendant faced from the face of the indictment

itself.

2. Legislative History of Section 846

The recent statutory amendments to Section 846 sup-

port the Petitioners’ interpretation. The immediate prede-

cessor to this provision was also a single sentence and

read as follows:

Any person who attempts or conspires to com-

mit any offense defined in this title is punish-

able by imprisonment or fine or both which may

not exceed the maximum punishment pre-

scribed for the offense, the commission of which

was the object of the attempt or conspiracy.

Section 406 of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, Pub. L. No. 91-513, 84 Stat.

1236. Congress amended this provision in 1988 and

adopted the present language of Section 846 in order to

accomplish two objectives: Congress’ first objective was

to ensure that mandatory minimum sentences for Section

841(a) violations, which were first adopted in 1986,

would apply to those Section 846 conspiracies whose

objectives were to distribute quantities and types of

drugs which carried mandatory minimums. 134 Cong.

Rec. 13,781-13,782 (1988).°

If the phrase “object of the offense” in Section 846

were meant only to apply to the broadest, generic

description of the offense in Section 841(a)(1), then no

legislative amendment would have been necessary to

* Congress’ second objective was to ensure that, other than

the term of imprisonment, potential punishments such as

special parole (now abolished), would apply equally to

substantive offenses and to attempts and conspiracies which

had as their objectives the commission of the substantive

offense.

ensure application of the mandatory terms of imprison-

ment. Under the language of either the old or new ver-

sion of Section 846, a defendant would be subject to the

same imprisonment and fine up to the maximum penal-

ties as provided in the substantive offense. Bifulco v.

United States, 447 U.S. 381, 398 (1980) (relying on lan-

guage of predecessor statute to conclude that Section 846

“authorizes two types of sanctions — fines and imprison-

ment — and fixes the maximum amount of each that may

be imposed by reference to the penalty provisions of the

target offense.”). Likewise, given Congress’ intention to

have the mandatory minimums apply to Section 846 con-

spiracies, Congress must have intended to incorporate

the type of controlled substance in its use of the phrase

“object of the offense,” because the minimums only apply

to certain specific offenses of Section 841(a) — those

involving Schedule I, Il, and certain Schedule III sub-

stances — not to all Section 841 violations. A conspiracy or

attempt to distribute certain Schedule III, IV or V con-

trolled substances has no mandatory minimum sentence,

and thus would not be affected by the amendment to

Section 846. Congress’ intent in changing the language of

Section 846 was to ensure statutory penalties applied to

attempts and conspiracies with objects to distribute a

particular controlled substance, i.e., Schedule I, Il, and

certain Schedule III offenses, and not any controlled sub-

stance. If the phrase “object of the attempt or conspiracy”

meant any violation involving any controlled substance,

no legislative amendment would have been necessary to

accomplish that purpose.

The broader context from which Section 846 arose

further confirms Petitioners’ construction of the statutory

language. Congress intended the Comprehensive Drug

Abuse Prevention and Control Act of 1970 to combine the

various earlier drug laws already in existence at that

time. See David F. Musto, The American Disease: Origins of

Narcotic Control 261 (1987). These earlier laws addressed

particular drugs or groups of drugs, and convictions

under these laws required the identification of the drugs

at issue. For example, the Harrison Narcotic Drug Act,

Ch. 1, 38 Stat. 785 (1914), regulated the production and

use of opium and coca leaves; the Narcotic Drugs Import

and Export Act of 1922, Ch. 202, 42 Stat. 596, controlled

the production and use of cocaine; the Marijuana Tax Act

of 1937, Ch. 553, 50 Stat. 551, regulated the use and

production of marijuana. Other statutes regulated the use

and production of synthetic opiates, hallucinogens, bar-

biturates, and tranquilizers. See Kathleen F. Brickey, The

Federalization of American Criminal Law, 46 Hastings L.J.

1135, 1148-50 (1995). Thus, Congress has long recognized

that different substances cause different levels of harm to

society, and sought to address these different problems

through discrete laws with proportionate punishments.

While the 1970 Act reorganized the various laws into a

more comprehensive scheme, it took this long-held recog-

nition into account, placing drugs into different schedules

corresponding to the degree of harm caused by each

drug. See Chapman v. United States, 500 U.S. 453, 460

(1991); Neal v. United States, 516 U.S. 284 (1996). Subse-

quent amendments to the 1970 Act have continued to

treat the mishandling of different drugs as different

offenses. Through the 1980’s, Congress enacted manda-

tory minimum sentences triggered by the quantity and

type of drug involved. See William Spade, Jr., Beyond the

100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38

Ariz. L. Rev. 1233, 1249 (1996). This historical trend con-

tinued with the Anti-Drug Abuse Act of 1986, Pub. L. No.

99-570, 100 Stat. 3207, which created the federal law

distinction between powder cocaine and cocaine base and

set mandatory minimums. Nothing in the legislative his-

tory or express provisions of the 1970 Act suggest that, in

recodifying and clarifying the narcotics statutes, Con-

gress intended to change the jury’s historical role in

determining the threshold facts, including the type of

drugs involved, which have distinguished one drug

crime, and its penalties, from another.

3. The Petitioners’ Interpretation of Section 846 Is

Consistent with General Conspiracy Principles

The Petitioners’ interpretation of Section 846 is fully

consistent with and supported by this Court's cases clari-

fying the law of conspiracy. The agreement to commit the

crime that is the object of the conspiracy is the essence of

a conspiracy violation. lannelli v. United States, 420 U.S.

770, 777 (1975) (“Conspiracy is an inchoate offense, the

essence of which is an agreement to commit an unlawful

act.”). The conspiracy statute punishes the mere agree-

ment to commit the object offense. Salinas v. United States,

No. 96-738, 1997 WL 737692, *9 (U.S. Dec. 2, 1997) (“It is

elementary that a conspiracy may exist and be punished

whether or not the substantive crime ensues, for the

conspiracy is a distinct evil, dangerous to the public, and

so punishable in itself.”), cert. denied sub nom. Marmolejo v.

United States, No. 96-7960, 1997 WL 82138 (U.S. Dec. 8,

1997). Conspiracy is itself a distinct offense and may be

punished separately and consecutively with the object

offense without offending the double jeopardy clause.

United States v. Felix, 503 U.S. 378, 388-92 (1992); Pinkerton

v. United States, 328 U.S. 640, 646-47 (1946).

This Court has ruled that the agreement in a Section

846 narcotics conspiracy is an “indisputably essential ele-

ment of the offense.” Shabani, 513 U.S. 10, 16 (1994).

Moreover, “[t]he precise nature and extent of the conspir-

acy must be determined by reference to the agreement

which embraces and defines its objects. Whether the

object of a single agreement is to commit one or many

crimes, it is in either case that agreement which consti-

tutes the conspiracy which the statute punishes.” Braver-

man v. United States, 317 U.S. 49, v2 (1942). In finding a

defendant guilty of a conspiracy, a jury must determine

what unlawful objective a particular defendant actually

agreed to commit.

In the case of a narcotics conspiracy, the identity of

the drug is a central feature of the agreement. Congress

has recognized this fact by providing vastly different

penalties for different drugs. As Congress has

announced, a powder cocaine conspiracy is generally not

the same as a crack cocaine conspiracy. A defendant

charged with agreeing to distribute particular narcotics

has thus agreed to commit that unlawful objective, and

not just any drug conspiracy.

The government's position leads to results that can-

not be squared with the principle that the essence of a

conspiracy charge is the particular illegal agreement each

defendant has made or entered. If the government's posi-

tion were correct — that Congress only intended to require

that the jury find an agreement to distribute just any

controlled substance - the government could charge and

prosecute a bare Section 846 violation without in any

manner specifying the object offense or the identity of the

drug in question. At trial, the government could present

evidence of any of several drugs as it liked, and never

have to present the jury with any particular, specific or

definitive theory of the case. The jury would be

instructed that it must convict if the jurors accepted any

of the evidence, and the jury may not determine whether

the defendants agreed on any particular object among the

possibilities presented. Similarly, if the government's

position were correct, the government could submit the

identity of the controlled substance in a special interroga-

tory, then ignore the result if, for example, it turned out

the verdict could not rest on the particular controlled

substance found by the jury. For example, a defendant

might show on appeal that he was lawfully permitted to

distribute one of two narcotics charged in a conspiracy

count on which the jury rendered a general verdict.

Under the government's interpretation of Section 846,

such a legal defect in the ambiguous verdict would be

irrelevant and the verdict should stand. Such results con-

travene the basic requirements set forth in this Court's

cases defining conspiracies as agreements which embrace

specific illegal objectives.

4. Petitioners’ Construction Provides a Consistent

Role for the Jury in Deciding Section 846 Cases

The government concedes, as did the Seventh Circuit

below, that Congress intended the jury to determine

whether the defendant violated Section 846 by, for exam-

ple, conspiring to commit a Section 841 crime versus

some other object offense, such as a Section 843(b) viola-

tion. See Edwards, 105 F.3d at 1181 (agreeing that the court

may not sentence on the more serious object of a multi-

object conspiracy where the different objects appear in

separate statutory provisions of the criminal code). There

is simply no basis to believe, however, that Congress

intended the jury to specify the object of a Section 846

offense where the charge identifies two different statu-

tory provisions carrying different penalties (such as Sec-

tions 841(a) and 843(b)) as the object of the conspiracy,

but not where the Section 846 charge identifies two differ-

ent controlled substances carrying two vastly different

penalties specified in different subsections of Section

841(b). Congress expressly incorporated the object of the

conspiracy into the definition of the Section 846 violation.

In the case of a Section 841(a) object, the Section 846

violation necessarily must specify the threshold facts to

identify the statutory penalty range under Section 841, in

exactly the same way it necessarily must incorporate the

threshold facts to satisfy any distinct section of the Crimi-

nal Code, such as Section 843(b), as the object offense in

the Section 846 conspiracy.

Petitioners’ interpretation of Section 846 provides a

consistent role for the jury in both kinds of Section 846

cases: those charging multiple sections of the Criminal

Code as objects and those charging multiple drugs under

Section 841. In contrast, the government's interpretation

rests on drawing an insupportable distinction between

Section 846 cases which have object offenses and penal-

ties described in one section or subsection of the criminal

code, and Section 846 cases which have object offenses

and penalties divided in multiple subsections of the

Criminal Code. Nothing in the language or purpose of

Section 846 indicates Congress’ intent to distinguish the

role of the jury in determining a defendant’s guilt in

conspiracies to violate Section 846.

5. The Government's and Seventh Circuit's Inter-

pretation Would Constitute a Constructive

Amendment of the Indictment in this Case

The Seventh Circuit agreed with the government's

position below that the indictment and general verdict in

this case established that Petitioners were convicted of

conspiracy to commit the “one crime” of distributing

narcotics. See Edwards, 105 F.3d at 1181 (majority of dual

object conspiracy cases “have nothing to do with an

indictment that charges the defendants with agreeing to

commit one crime in two ways.”) (emphasis in original).

The Seventh Circuit’s interpretation of the offense of

conviction in this case as a single conspiracy to violate

one statute, however, diverges from, and would consti-

tute an amendment to, the offense that was actually

charged to the jury.!°

10 The Seventh Circuit’s explanation that “[wJhat a jury

believes about which drug the conspirators distributed

therefore is not conclusive — and a verdict that fails to answer a

question committed to the judge does not restrict the judge’s

sentencing options” is demonstrably incorrect. Edwards, 105

F.3d at 1181. A defendant convicted of a conspiracy to sell 1

gram of crack cocaine is subject to a maximum penalty of not

more than 20 years. 21 U.S.C. § 841(b)(1)(C). A defendant

convicted of conspiracy to sell 50 grams of crack cocaine is

subject to a maximum penalty of not more than life

imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). If a defendant were

charged with two counts of conspiring to sell 1 gram and 50

grams respectively, but was acquitted of the 50 grams count, the

maximum penalty the defendant could receive would be 20

years, the offense of conviction, no matter what the district

court determined was relevant conduct and even if the court

The nature of the conspiracy alleged is determined

from an examination of the four corners of the charging

instrument. “The precise manner in which an indictment

is drawn cannot be ignored, because an important func-

tion of the indictment is to ensure that, in case any other

proceedings are taken against [the defendant] for a simi-

lar offense, . . . the record [will] sho[w] with accuracy to

what extent he may plead a former acquittal or convic-

tion.” Sanabria v. United States, 437 U.S. 54, 65-66 (1978)

(ellipsis and alterations in original, internal quotations

omitted). Another Constitutional reason for requiring

that the jury find only what is charged in the indictment

is to enforce the Grand Jury Clause of the Fifth Amend-

ment. In this case the government chose to seek a grand

jury indictment naming two specific controlled sub-

stances in a single indictment. (J.A. 4-7). The government

cannot now defend the conviction and sentences imposed

on the grounds that the jury found a broader, different

conspiracy to distribute controlled substances generally.

Stirone v. United States, 361 U.S. 212 (1960); see also United

States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.) (“[T]he

government through its ability to craft indictments, is

master of the scope of the charged RICO conspiracy. .. .

having set the stage, the government must be satisfied

with the limits of its creation”), cert. denied sub nom.

Messino v. United States, 479 U.S. 939 (1986).

In Stirone, the defendant was charged with a Hobbs

Act interference with commerce by means of threats

relied upon the acquitted conduct. Cf. United States v. Watts, __

U.S. __, 117 S. Ct. 633 (1997); see United States v. Carrozza, 4 F.3d

70, 81 (1st Cir. 1993) (statutory maximum sentence for RICO

offense must be determined by conduct alleged in the

indictment), cert. denied sub nom. Patriarca v. United States, 511

U.S. 1069 (1994). The jury’s determination is thus critical in

setting forth the maximum punishment allowed under the

statute and the sentencing court would be restricted in its

sentencing options.

affecting the importation of sand and other materials

used in ready-mix concrete. 361 U.S. at 214. The trial

judge admitted evidence of interference with shipment in

interstate commerce of prospective steel products and

charged the jury that its finding of guilt could rest on

either the interference with sand importation or prospec-

tive steel product. Id. This Court concluded that the jury

charge improperly permitted the defendant to be con-

victed on an offense not presented to the grand jury and

therefore constituted a constructive amendment to the

indictment. Id. “[W]hen only one particular kind of com-

merce is charged to have been burdened a conviction

must rest on that charge and not another, even though it

be assumed that under an indictment drawn in general

terms a conviction might rest upon a showing that com-

merce of one kind or another had been burdened.” See

also United States v. Miller, 471 U.S. 130, 145 (1985) (a

broadening of the indictment through removal of allega-

tions “essential to the offense on which the jury con-

victed” constitutes an impermissible constructive

amendment).?!

A recent decision of the United States Court of

Appeals for the Second Circuit reaches the same result. In

United States v. Wozniak, 126 F.3d 105, 108-09 (2d Cir.

1997), the Second Circuit held that instructing the jury

that it could find the defendant guilty of a conspiracy to

possess with intent to distribute “a controlled substance

containing cocaine and methamphetamine” if it found

11 See also United States v. Leichtnam, 948 F.2d 370, 379-80

(7th Cir. 1991) (conviction for violating 18 U.S.C. § 924(c)

premised on an indictment which identified the use and

carrying of a specific identified firearm, cannot be supported on

the possession of a different firearm without violating Stirone);

United States v. Weissman, 899 F.2d 1111, 1115 (11th Cir. 1990)

(RICO conspiracy indictment identifying the RICO enterprise as

the “DeCavalcante Family” required the government to prove

that enterprise and not just any enterprise).

“some controlled substance” constituted a constructive

amendment of the indictment. In Wozniak, the evidence of

the defendant's participation in a motorcycle gang drug

ring exclusively involved marijuana, although the gang’s

drug activities involved cocaine, methamphetamine, and

marijuana. Id. at 107-08. The government argued that

Wozniak’s participation with any kind of controlled sub-

stance would suffice because the type of controlled sub-

stance is not an element of the offense of narcotics

conspiracy. Id. The trial court agreed and so instructed

the jury. The Second Circuit reversed, concluding that the

jury instructions constituted an “impermissible construc-

tive amendment to the indictment.” Id. The Wozniak court

focused on the lack of notice to the defendant of the

marijuana charges and emphasized that the conspiracy

was wide-ranging, spanning one and a half years based

on a large set of “operative facts.”!? Id. at 111.

The nature of the agreement between the Petitioners

is not mere surplusage but is the core essential element

the government had to prove beyond a reasonable doubt.

To accept the Seventh Circuit’s understanding of the

agreement which constituted the offense of conviction in

12 The facts of the Wozniak case highlight perfectly the

hidden dangers in multiple object conspiracies. Although

defendant Wozniak was associated with members of the

motorcycle gang, some of whom had extensive dealings in

cocaine and methamphetamine, Wozniak’s involvement was

exclusively related to providing marijuana to these associates.

Wozniak, 126 F.3d at 110-11. Had the government charged him in

a multi-object conspiracy with marijuana, cocaine, and

methamphetamine as its objects, a general verdict of guilty,

under the government's view, would have exposed Wozniak to

the mandatory minimums and maximums of those drugs,

increasing his penalties based on a quantity ratio of 1000 to 1.

Compare 21 U.S.C § 841(b)(1)(A)(vii) (requiring 1000 kilograms

of a mixture containing marijuana) with 21 U.S.C.

§ 841(b)(1)(A)(viii) (requiring 1 kilogram of a mixture

containing methamphetamines).

this case as simply an agreement to distribute controlled

substances would constitute a constructive amendment

and an impermissible broadening of the indictment in

violation of this Court’s decisions in Stirone and Miller.

Thus, the government cannot avoid the ambiguity created

by the general verdict in this case, by assuming the

conviction rested on a ground not charged in the indict-

ment or presented to the jury.

6. The Government’s Position Advanced

Below is Inconsistent with its Position,

and this Court’s Rulings, in Double Jeop-

ardy Cases

The government argued in this case that a Section 846

count alleging multiple controlled substances constitutes

a charge of conspiracy to commit a single offense, the

distribution of any controlled substance under Section

841(a). The government’s position in this case contradicts

the position it has advocated, and the courts have gener-

ally accepted, that a defendant can be charged, found

guilty, and cumulatively punished for multiple Section

841(a) offenses based on simultaneous possession with

intent to distribute multiple types of controlled sub-

stances. See, e.g., Richardson, 86 F.3d at 1551; United States

v. Bonilla Romero, 836 F.2d 39, 46-47 (1st Cir. 1987), cert.

denied, 488 U.S. 817 (1988); United States v. DeJesus, 806

F.2d 31, 35-37 (2d Cir. 1986), cert. denied, 479 U.S. 1090

(1987); United States v. Grandison, 783 F.2d 1152, 1155-56

(4th Cir. 1981).

In these prior cases, the government claimed that

Congress intended multiple punishments be imposed for

the simultaneous possession of multiple drugs because

possession of each drug constitutes a distinct crime under

Section 841(a)(1). The government has argued that Con-

gress intended the identity of the specific controlled sub-

stance to define separate criminal offenses under Section

841(a). The Courts of Appeal have accepted this argu-

ment and have held that such charges do not violate the

defendant’s Double Jeopardy rights, because Congress

provided that different drugs-constitute different offenses

under Section 841(a) even when the underlying facts

supporting the conviction, such as time, place, partici-

pants, and mental state are identical. Richardson, supra;

DeJesus, supra. Under these established principles and

cases, then, a conspiracy to violate Section 841(a) by

possessing with intent to distribute multiple drugs is not

a conspiracy to commit “one crime in two ways,” Edwards,

105 F.3d at 1181. In determining the statutory range of

punishment, the District Court may consider only the

offense of conviction. See, e.g., United States v. Estrada, 42

F.3d 228, 232 & n.4 (4th Cir. 1994); United States v. Win-

ston, 37 F.3d 235, 240-41 (6th Cir. 1994); United States v.

Darmand, 3 F.3d 1578, 1581 (2d Cir. 1993). The jury’s

verdict, therefore, must establish the offense of conviction

on which the District Court will impose sentence, includ-

ing the distinct statutory objects defined with respect to

different drugs.'>

This Court’s recent decision in Witte v. United States,

515 U.S. 389 (1995), supports the Petitioners’ construction

of Section 846. In Witte, the defendant was charged with

conspiring and attempting to possess 1000 pounds of

marijuana with intent to distribute it in violation of 21

U.S.C. §§ 846 and 841(a)(1). Witte pleaded guilty to the

attempted possession charge, but pursuant to the relevant

13 In other cases, the Seventh Circuit has observed the

distinction between the offense of conviction and relevant

conduct. United States v. Lewis, 110 F.3d 417 (7th Cir.) (statutory

penalty looks to drugs involved in offense of conviction), cert.

denied, ___ U.S. __, 118 S. Ct. 149 (1997); United States v.

Rodriguez, 67 F.3d 1312, 1324 (7th Cir. 1995), cert. denied, __ U.S.

__, 116 S. Ct. 1582 (1996). But see United States v. Reyes, 40 F.3d

422, 427 (10th Cir. 1994) (Tenth Circuit rule requires court to

consider all relevant conduct in fixing the statutory penalties

and not merely drugs identified in offense of conviction).

conduct provisions of the Sentencing Guidelines, his sen-

tence also took account of the importation of 1000 kilo-

grams of cocaine and an additional marijuana shipment.

Witte, 515 U.S. at 394. Witte was subsequently charged

with the cocaine importation conspiracy based on the

same facts of the relevant conduct as had given rise to the

increase in his prior Guideline sentence. In concluding

that the second prosecution did not constitute a second

punishment in violation of the double jeopardy clause,

this Court distinguished the offense of conviction from rele-

vant conduct under the Sentencing Guidelines and held

that the Double Jeopardy clause prohibits multiple pun-

ishment “only for the offense of which the defendant is

convicted.” Id. at 397. The drug transactions charged in

the second trial merely constituted “evidence of related

criminal conduct to enhance a defendant's sentence for a

separate crime” charged in the first trial, even though by

definition they arose out of the same common course of

dealing as the offense charged in the first trial. Id. at 399.

The two acts with two separate drugs constituted separate

crimes, even though they were part of a single course of

conduct. Similarly, in United States v. Watts, _. U.S. ___

117 S. Ct. 633 (1997) (per curiam), the Court held that a

sentencing court may consider at a sentencing hearing

evidence of acquitted conduct to enhance a defendant's

sentence under the Sentencing Guidelines, because, as in

Witte, the two courses of conduct (possession with intent

‘o distribute cocaine and using a firearm in relation to

that same drug offense) constituted distinct crimes, even

though they were carried out simultaneously, in the same

place, and as part of the same course of conduct.

This Court’s decisions in Witte and Watts, and the

lower courts’ decisions in the Double Jeopardy cases

cited above, collectively demonstrate that the offense of

conviction under Section 846 is identifiable by the partic-

ular drug distributed or possessed. In these decisions, the

courts have identified the count of conviction in a drug

case as not involving simply “any controlled substance”

(vchich would have included related acquitted conduct or

relevant conduct), but only the drugs and quantities iden-

tified in the indictment. In all other cases, the government

seeks to exclude from its definition of the offense of con-

viction other related drug activities, so it can justify mul-

tiple prosecutions ar¢ punishments. In the present case,

the government takes the opposite course in order to

achieve a different result on the same facts. Here, the

government seeks to include in its definition of the offense

of conviction conduct related to any controlled substance

(including amount and types of drugs) by defining the

offense as simply a conspiracy to distribute any con-

trolled substance. The government's current definition of

the offense of conviction directly conflicts with its posi-

tion in Witte, Watts, and other Double Jeopardy cases and

should be rejected. The Seventh Circuit’s decision in

Edwards failed to recognize this fundamental divergence

between its construction and the Double Jeopardy cases.

7. Petitioners’ Interpretation of Section 846

Avoids a Sentencing Process That Would

Violate Defendants’ Sixth Amendment and

Due Process Rights to a Jury Determina-

tion on Every Element of the Crime

The agreement reached among and between co-con-

spirators is an essential element of the offense of a Sec-

tion 846 conspiracy. Shabani, 513 U.S. at 16. What the

Petitioners agreed to do in violation of the law is a fact-

based determination the government has a fundamental

constitutional obligation to prove beyond a reasonable

doubt. In re Winship, 397 U.S. 358, 364 (1970). Moreover,

the Fifth Amendment Due Process clause and the Sixth

Amendment right to a jury trial “require criminal convic-

tions to rest upon a jury determination that the defendant

is guilty of every element of the crime with which he is

charged, beyond a reasonable doubt.” United States v.

Gaudin, 515 U.S. 506, 510 (1995); Sullivan v. Louisiana, 508

U.S. 275, 278 (1993). Thus, the Petitioners are entitled to

have the jury determine what illegal agreement the Peti-

tioners formed and agreed to participate in. Sullivan, 508

U.S. at 277 (Sixth Amendment right “includes, of course,

as its most important element, the right to have the jury,

rather than the judge, reach the requisite finding of

‘guilty.’ ”).

The Petitioners’ Fifth and Sixth Amendment rights to

a jury determination of all the essential elements of the

offense is defeated in this case unless the Petitioners are

sentenced on the agreement carrying the lesser punish-

ment. If the government had charged the agreement to

distribute cocaine in Count One and the agreement to

distribute cocaine base in Count Two, a jury would con-

sider and determine what the agreement between and

among Petitioners was and whether each Petitioner

joined which conspiracy. A jury finding of guilty on both

counts as to each Petitioner would mean that the jury had

determined each of the two essential elements - agree-

ment and membership - as to each charged conspiracy

and each Petitioner. A finding of guilty as to one count

(cocaine conspiracy) but not guilty as to the other

(cocaine base conspiracy) would mean that the jury con-

sicered the essential elements - agreement and member-

ship - as to each count. A sentencing court could not,

consistently with this Court’s decisions in Gaudin and

Sullivan, find one of the Petitioners guilty, even if con-

vinced based on the evidence introduced at trial beyond a

reasonable doubt, of the conspiracy charge of which the

jury found the Petitioners not guilty. To do so would

invade the province of the jury in violation of the Peti-

tioners’ Fifth and Sixth Amendment rights.’

4 The same result would be true even if the jury could not

decide whether a particular defendant was a member of one

conspiracy but found the defendant guilty of the other

conspiracy. A sentencing judge could not permissibly conclude

the defendant was guilty of the second count.

In this case, the jury’s determination of guilt as to

Count One could mean that the jury found that each of

the Petitioners was a member of a cocaine base conspir-

acy, or each was a member of a cocaine conspiracy, or

each was a member of a conspiracy with both objec-

tives.'5 The general verdict means that the jury found

each of the Petitioners guilty of some aspect of the con-

spiracy charged in Count One. The government's deci-

sion to charge the conspiracy in the manner it did

deprives the Petitioners of a jury determination on which

agreement the jury found existed and of which agreement

the individual Petitioners were members. The sentencing

court may not make the determination either of what the

nature of the agreement was or what its essential object

was as a matter of guilt even if it could consider evidence

of the other conspiracy in deciding what sentence to

impose.

8. Petitioners’ Interpretation of Section 846

Avoids a Sentencing Process That Would

Violate Defendants’ Sixth Amendment and

Due Process Rights to a Unanimous Jury

Determination on Every Element of the

Crime

The government's construction of Section 846, and

the lower courts’ decisions, would violate Petitioners’

Sixth Amendment and Due Process rights to a unanimous

jury verdict on the offense of conviction. As explained

above, the general verdicts on the conspiracy count as to

each Petitioner do not necessarily reflect a unanimous

jury verdict that each Petitioner conspired to distribute

powder cocaine, cocaine base, or both. Indeed, in light of

1S Of course, the jury might have concluded as well that

some of the defendants were members of one conspiracy but not

the other and thus were guilty of Count One, while the

remaining defendants were members of the other conspiracy,

but not the former and thus guilty of Count One.

eae

the District Court's instructions, the jury may well have

believed that it did not even have to consider whether all

jurors agreed on the identity of the controlled substance

in question and, therefore, may never have addressed the

identity of the controlled substance in its deliberations.

The sentences, however, assumed that the offense of con-

viction was conspiracy to distribute cocaine base. The

interpretation of Section 846 adopted below, which per-

mitted the District Court to assume that the offense of

conviction included conspiracy to distribute cocaine base,

would violate Petitioners’ Sixth Amendment and Due

Process rights, because the identity of the controlled sub-

stance must be treated as an element of a Section 846

conspiracy charge on which the defendant has the right

to a unanimous verdict. Petitioners’ construction of Sec-

tion 846 would avoid these constitutional defects.

Federal criminal defendants indisputably have the

right to a unanimous jury verdict under the Sixth Amend-

ment and Rule 31(a) of the Federal Rules of Criminal

Procedure. See Johnson v. Louisiana, 406 U.S. 356 (1972);

Apodaca v. Oregon, 406 U.S. 404 (1972). As Justice Powell

explained, “[a]t the time the Bill of Rights was adopted,

unanimity had long been established as one of the attrib-

utes of a jury conviction at common law. It therefore

seems to me, in accord both with history and precedent,

that the Sixth Amendment requires a unanimous jury

verdict to convict in a federal criminal trial.” See 406 U.S.

at 371 (footnotes omitted) (Powell, J., concurring in John-

son and concurring in the judgment in Apodaca). It is

equally well-established that a criminal defendant is enti-

tled to a determination of every element of a charged

offense. In re Winship, 397 U.S. at 364 (“[W]e explicitly

hold that the Due Process Clause protects the accused

against conviction except upon proof beyond a reason-

able doubt of every fact necessary to constitute the crime

with which he is charged.”) It follows, then, that the Sixth

Amendment entitles a federal criminal defendant to be

sentenced on the basis that the offense of conviction is a

crime as to which the jury has unanimously determined

all elements of that offense. A defendant’s sentence based

on an offense as to which the verdict does not establish

the jury unanimously found all elements of the offense is

unconstitutional. Since the verdict in the present case

does not establish the jury unanimously found the object

of the Count One conspiracy included cocaine base, the

sentences are unconstitutional if the identity of the con-

trolled substance in this case was an element of the

Section 846 offense.

The identity of the controlled substance must be

treated as an element of the Section 846 conspiracy charge

for three reasons: (a) Congress intended that the jury

determine the identity of the controlled substance in a

Section 846 prosecution, (b) historical precedent supports

treating the identity of the controlled substance as an

element of the offense, and (c) the vastly different penal-

ties associated with different drugs supports construing

the identity of the narcotics as an element of the offense.

Moreover, even if Congressional intent were only ambig-

uous, the rule of lenity would require the Court to treat

the crime carrying the lesser penalty as the offense of

conviction in the presence of an ambiguous Section 846

verdict.

In Schad v. Arizona, 501 U.S. 624 (1991), a plurality of

this Court held that the question whether a particular

issue must be decided unanimously by the jury is in the

first instance a matter of legislative intent. Where the

legislature intended the offense to include the specifica-

tion of a given set of facts — in this case, the identity of

the controlled substance - then the defendant has a con-

stitutional right to have that fact decided unanimously by

the jury. Id. at 630-31. Put another way, where the legisla-

ture intended two or more alternative sets of facts to

establish multiple crimes, rather than just different ways

to commit the same crime, then the defendant has the

right to a unanimous jury verdict on the facts necessary

to define the crime. In Schad, this Court addressed an

Arizona statute which defined first degree murder as

either premeditated murder or felony murder. At trial in

the case, the state had presented theories both of premed-

itated and of felony murder, and the jury’s general ver-

dict did not specify the theory on which it convicted; nor

did the verdict demonstrate that the jury was unanimous

in accepting either one theory or the other. This Court

held that the ambiguous verdict did not violate the defen-

dant’s constitutional right to a unanimous jury verdict.

The Court held first that the state legislature had the

power to define the crime of first degree murder as a

single crime, which could be committed in either of two

different ways, in order not to require the jury to specify

the manner in which the crime was committed. 501 U.S.

at 628-29. The Court then relied upon the fact that the

Arizona Supreme Court had already conclusively con-

strued the first degree murder statute and had held that

the statute was intended to define a single crime on

which the jury need not reach a unanimous verdict on the

specific means by which it was committed. Id. at 629. In

Schad, therefore, the Court’s holding rested upon the

premise that the legislature had written the statute in

question in order to define a single crime encompassing

murder either by premeditation or in the course of a

felony.

Here, in contrast to Schad, there is no legislative

statement, either in the terms of Section 846 or in any

legislative history, that Congress intended to define a

Section 846 conspiracy to distribute controlled substances

as a conspiracy to commit a single crime on which the

jury would not determine the identity of the controlled

substance in reaching its verdict. Here - unlike in Schad -

there is no legislative mandate that the issue be taken

from the jury. In addition, Schad addressed only the val-

idity of the conviction, not the imposition of penalties,

and the Arizona first degree murder statute did not pro-

vide different penalties for premeditated and felony mur-

der — much less the vastly different penalties possible for

a Section 846 conspiracy.

The government's position here, moreover, conflicts

with this Court’s reasoning in Griffin v. United States, 502

U.S. 46 (1991). The government rests its argument on the

premise that the Section 846 count in this case was a

conspiracy to commit a “single crime” — a violation of

Section 841(a). This premise cannot be squared with the

Court’s analysis in Griffin.

In Griffin, the Court upheld a Section 371 conspiracy

to defraud an agency of the federal government by

impairing the efforts of the Internal Revenue Service and

the Drug Enforcement Agency (“DEA”). The conspiracy

to defraud charge under Section 371 does not specify the

identity of the federal agency which was the object of the

fraud, and sentences imposed for violations of Section

371 do not vary depending on which agency was

defrauded. The Grijfin jury returned a general verdict. On

appeal, the defendant showed that there was insufficient

evidence to convict him of conspiring to defraud the

DEA. 502 U.S. at 47-48. The Court ruled that the verdict

could stand, because the insufficiency in the charge of

conspiracy to defraud the DEA was merely factual, not

legal. Id. at 55-58. The court contrasted the case before it

with the line of decisions represented by Yates v. United

States, 354 U.S. 298 (1957), where the Court held that

where one of the objects of a multi-object conspiracy on

which a defendant is convicted by a general verdict is

legally insufficient (either on constitutional or statutory

grounds), the conviction cannot stand. Id. at 51-58. In

Griffin, the Court explained that the difference between

decisions like Yates and decisions like Griffin is that in the

case of factual insufficiency the courts can assume the

jury reached its verdict on the basis of the object for

which there was sufficient evidence, whereas in the case

of legal insufficiency the courts cannot assume the jurors

unanimously picked the legally sufficient object as the

basis of conviction. Id. at 59. In Griffin, therefore, had the

defect in the charged conspiracy to defraud the DEA been

legal, rather than factual, the conspiracy charge would

have been constitutionally infirm, because the court

could not determine that the jury reached a unanimous

verdict.

On the government's view of Section 846 in this case,

however, the entire decision in Griffin should have been

unnecessary and irrelevant, because the Griffin defen-

dants were found guilty of conspiring to commit a single

unlawful objective (to defraud a federal agency) in two

ways. On the government’s view the defendant should

have had no right to a unanimous jury verdict specifying

the object of the offense. On the government's view, the

Court in Griffin need merely have pointed out that the

defect in one possible object of the conspiracy — regard-

less of whether the defect was legal or factual — simply

had no bearing on the validity of the verdict. Contrary to

the government's position here, Griffin stands for the

proposition that the conspiracy defendant does have the

right to a unanimous jury determination that he commit-

ted at least one of the object offenses in a multi-object

conspiracy. For this purpose, Sections 371 and 846 are

indistinguishable. The government's position here, there-

fore, contradicts the very basis or foundation of the

Court’s decision in Griffin.

Applying the principles set forth in Griffin to the

sentencing determination, the present case is analogous

to the legal infirmity cases represented by Yates, rather

than the factual infirmity cases represented by Griffin. As

in the legal infirmity cases, there is no basis here to infer

that the jury could rationally have rested its verdict only

on either cocaine base or powder cocaine. There was

sufficient evidence to support either basis for the verdict.

Here, as in the legal infirmity cases, no inference can be

drawn from the verdict as to the object or objects — if any

- on which the jury unanimously agreed in reaching its

verdict. In addition, Congress in Sections 841 (and in

other sections which can be the basis for a Section 846

conspiracy) drew numerous legal distinctions among dif-

ferent kinds of narcotics, whereas in Griffin there was no

legal distinction between conspiracy to defraud the DEA

and conspiracy to defraud the IRS.

Finally, even if the Court finds that the legislative

intent regarding the definition of a Section 846 offense is

itself unclear or ambiguous from the language and his-

tory of the statute, the Court should still conclude that

the identity of the controlled substance must be decided

by a unanimous jury. In analyzing the right to a unani-

mous jury verdict where the legislative intent is unclear,

courts should look to background considerations of (a)

history, (b) the existence of highly disparate penalties,

and (c) the rule of lenity. See Schad, 501 U.S. at 637. All

these considerations argue that the identity of the nar-

cotics in a Section 846 conspiracy case be decided by

unanimous jury verdict.

The history of federal drug offense laws is especially

telling. Prior to enactment of Section 841, the federal

controlled substances laws were scattered throughout the

code and, in most instances, separate substances were

targeted and sentenced separately. As discussed above,

Section 841 was the result of Congress’ effort to organize

the various existing substance laws into one section. In

doing so, Congress retained the distinctions between dif-

ferent drugs and did nothing to suggest it intended to

change the role of the jury when it changed the organiza-

tion or groupings of the offenses into the various sections

and subsections in the Criminal Code that exists today.

In addition, the penalties imposed under Section 841

vary according to the identity of the drugs involved. The

vast differences in sanctions, in the absence of any legis-

lative mandate to the contrary, strongly suggest Congress

intended to have the jury determine the identity of the

drugs in a Section 846 case.

ee —

Finally, the rule of lenity, which requires the con-

struction of an ambiguous criminal statute in favor of the

defendant, should operate to require jury unanimity on

the identification of the narcotics to support sentencing in

a multi-object conspiracy like the present case. This Court

has applied the rule of lenity to the penalties imposed for

criminal acts. United States v. Granderson, 511 U.S. 39

(1994); accord Bifulco v. United States, 447 U.S. at 400;

Ladner v. United States, 358 U.S. 169, 178 (1958). Therefore,

assuming Congressional intent is found to be unclear, the

rule should be applied here to construe Section 846 to

require the district court to sentence in multi-count con-

spiracy cases on the offense of conviction which carries

the lesser penalty range.

9. The Seventh Circuit’s Interpretation of

Section 846 Would Lead to Violations of

the Due Process Right to Timely Notice of

the Maximum Statutory Penalty for an

Offense

The government’s and the Seventh Circuit's inter-

pretation of Section 846 raises serious Due Process notice

concerns. In its decision, the Seventh Circuit claims that a

Section 846 indictment can charge conspiracy to distrib-

ute controlled substances “without identifying either the

substances or the quantities.” Edwards, 105 F.3d at 1181.

This view of Section 846, however, deprives defendants of

timely and effective notice of the maximum statutory

penalties they face in violation of this Court’s Due Pro-

cess decisions.

“Elementary notions of fairness enshrined in our con-

stitutional jurisprudence dictate that a person receive fair

notice not only of the conduct that will subject him to

punishment but also of the severity of the penalty that a

State may impose.” BMW of North America, Inc. v. Gore,

__._ U.S. __, 116 S. Ct. 1589, 1598 (1996); see also Miller v.

Florida, 482 U.S. 423 (1987) (Ex Post Facto Clause violated

by retroactive imposition of revised sentencing guidelines

that provided longer sentence for defendant’s crime);

Bouie v. City of Columbia, 378 U.S. 347 (1964). Therefore,

“vague sentencing provisions may post constitutional

questions if they do not state with sufficient clarity the

consequences of violating a given criminal statute.”

United States v. Batchelder, 442 U.S. 114, 123 (1979); see also

United States v. Brown, 333 U.S. 18 (1948).

Specifically, this principle entitles a defendant to

actual notice of the maximum penalty for the specific

conduct charged. Therefore, one species of the Due Pro-

cess notice problem arises where a statute includes multi-

ple prohibited acts, each with different maximum

penalties. Such statutes, and indictments under these

statutes, must clearly specify which penalty provision

goes with which each criminal act to avoid a Due Process

infirmity. For example, in United States v. Evans, 333 U.S.

483 (1948), a federal statute clearly criminalized the act of

“concealing and harboring aliens” but it also contained a

variety of other prohibited acts and penalty clauses.

Because the statute did not clearly indicate which penalty

was intended for “concealing and harboring,” the Court

dismissed the indictment. In so holding, the Court stated

that determining the correct maximum punishment for

particular acts within a single statute was “a task outside

the bounds of judiciai interpretation.” Id. at 495.

This Due Process right to notice of the maximum

statutory penalty has not been altered by McMillan v.

Pennsylvania, 477 U.S. 79 (1986). In McMillan, a state

statute provided that anyone convicted of certain felonies

was subject to a mandatory minimum sentence of five

years if the court found at sentencing that the defendant

had visible possession of a firearm during the offense.

The Court rejected a challenge that this sentencing factor

had to be considered an element of the offense which

required proof beyond a reasonable doubt under In re

Winship, 397 U.S. 358. Critical to the Court’s reasoning,

however, was the fact that the firearm statute did not

alter the statutory maximum penalty for each enumerated

offense committed. 477 U.S. at 87. In fact, the Court noted

that the “maximum penalties for those offenses were

established long before [the firearm statute] was passed.”

Id. at 86. Thus, whether or not a judge found that a

firearm was involved in the offense, the statutory maxi-

mum for the underlying enumerated offense did not

change. While not explicitly raised in McMillan, the Penn-

sylvania statute was also constitutional because the

defendant had notice before trial of the statutory maxi-

mum for the underlying offense of conviction. A post-

trial judicial determination of the statutory maximum,

which this Court in McMillan noted might present a

Winship issue, would also have presented a Due Process

notice issue.

In this case, the Seventh Circuit’s interpretation of

Section 846 creates both notice and Winship problems.

Allowing the government to indict without any reference

to the threshold facts needed to determine which statu-

tory maxima in Section 841(b) will apply deprives the

defendant of meaningful notice of the maxima in his case.

Under Evans, resort to the greatest statutory maximum

for any act in the statute is simply insufficient to inform

the defendant of the acts for which he was indicted and

the statutory maximum he faces.!°

Furthermore, actual notice of the maximum is futile

unless the notice is also timely. In a variety of contexts,

that means that the defendant is entitled to actual notice

of the maximum penalty he may suffer before the pro-

ceeding that can impose that punishment begins. See

Lankford v. Idaho, 500 U.S. 110 (1991) (reversing death

'© Some lower courts have misunderstood McMillan’s

distinction between statutory maxima and mandatory minima.

For example, the Eleventh Circuit had held prior to the

McMillan decision that in a dual object conspiracy a court must

sentence on the object that carries the lesser statutory penalty.

See United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984); but see

United States v. Perez, 960 F.2d 1569, 1574-75 (11th Cir. 1992).

penalty case where judge imposed death penalty at sen-

tencing without notice to defendant and in disregard of

the prosecutor's stated intention not to seek the death

penalty). For example, a plea is invalid unless the defen-

dant is made aware of the statutory maximum to which

he is exposed before the plea is taken. McCarthy v. United

States, 394 U.S. 459, 467 (1969); United States v. Coscarelli,

105 F.3d 984 (5th Cir. 1997) (trial court must advise defen-

dant at plea hearing of maximum sentence for each object

of conspiracy when defendant pled guilty to multi-object

conspiracy); United States v. Pearson, 910 F.2d 221, 223 (5th

Cir. 1990) (prior to guilty plea, defendant entitled to

notice of applicability of recidivism statutes that increase

maximum penalty), cert. denied, 498 U.S. 1093 (1991);

accord United States v. Siegel, 102 F.3d 477 (11th Cir.

1996).'!7 Similarly, a defendant who invokes his right to

trial by jury has a right to receive notice before trial of the

statutory maximum he faces for that offense.'® Just as a

17 Even in the context of the Sentencing Guidelines where

sentencing takes place entirely within a statutory maximum, the

Court has held that a defendant was entitled to notice of the

judge’s intent to depart upwards from the Guidelines before the

sentencing proceeding began. Burns v. United States, 501 U.S.

129 (1991) (failure to so interpret Rule 32 would raise a “serious

question whether notice in this setting is required by the Due

Process Clause”).

18 Olyer v. Boles, 368 U.S. 448 (1962) does not suggest

otherwise. In Olyer, a state statute permitted a recidivist

information to be filed after conviction on a substantive offense

and that filing could increase the statutory maximum. However,

the defendant was required to separately plead to that

information and the statute required the state to prove the prior

convictions beyond a reasonable doubt. In absence of these

special procedures that made the recidivist filing the virtual

equivalent of a separate offense, the statutory scheme would

have offended the due process notice issue raised herein. Thus,

Petitioners do not argue that a legislature cannot choose to

devise a mechanism other than the indictment for providing

defendant cannot knowingly plead guilty without know-

ing the statutory maximum he faces, he cannot chose to

proceed to trial without that information.

Within Title 21 itself, Congress has shown that it is

well aware of this timely notice obligation. In creating

new enhancement penalties for prior narcotics offenses in

21 U.S.C. § 851, Congress required the government to file

an information setting forth the prior convictions it con-

tends would enhance the statutory maximum sentence.

Failure to file this notice before trial bars an enhancement

of the maximum sentence as a recidivist. Interpreting

Section 851, the lower courts have recognized that Con-

gress enacted Section 851 to fulfill the Due Process

requirement that “a defendant receive reasonable notice

and an opportunity to be heard regarding the possibility

of an enhanced sentence for recidivism.” United States v.

Belanger, 970 F.2d 416, 418 (7th Cir. 1992); United States v.

Garrett, 565 F.2d 1065, 1072 (9th Cir. 1977), cert. denied, 435

U.S. 974 (1978) (“[Flailure to comply with Section 851(b)

renders the sentence illegal.”)."? However, for Section 846

timely notice of an enhanced statutory maximum. Rather, we

argue only that Congress did not do so for Section 846

conspiracies. Therefore, the indictment must serve as the means

for providing such notice. A bill of particulars will not suffice

because under Federal Rule of Criminal Procedure 7(f), the

court has discretion to deny a defense request for a bill.

’ As argued elsewhere, Petitioners contend that the

explicit reference in Section 846 to the differing penalties

provisions of Title 21 also shows that Congress intended the

government to give the defendant notice of the statutory

maximum in the indictment by requiring the specific object of

the conspiracy to be named, whether it be the specific controlled

substance in Section 841(b) or a separate provision of Title 21.

Nor can the government argue any inferences from the absence

of notice provisions similar to Section 851 in Section 846. The

long-standing practice of the government has been to specify

the controlled substance at issue in the indictment, see n.8 infra

conspiracies, Congress assumed that the government

would continue to provide timely notice to defendants by

including in the indictment sufficient information to

determine the maximum sentence faced by a defendant.

See United States v. Gibbs, 813 F.2d 596 (3d Cir. 1987) (in

conspiracy count, listed overt acts in indictment served

notice of maximum penalties; specification of threshold

quantity of marijuana not required.), cert. denied, 484 U.S.

822 (1987); United States v. Williams, 107 F.3d 869 (4th Cir.

1997). Indeed, without identification of the drugs and

quantity thresholds, the purpose of the notification

requirement is defeated and the notice is ineffective,

because the defendant will not know the specific penalty

range that is being enhanced. Compare Section

841(b)(1)(A) with 841(b)(1)(B).

Thus, the Seventh Circuit’s holding that such thresh-

old information is not required would create a host of the

Due Process notice problems that the foregoing cases

prohibit. Without question, Congress acted within its

power to create a statutory scheme that includes different

statutory maximums for different types and quantities of

narcotics in Section 841. An indictment for “conspiracy to

distribute controlled substances” that the Seventh Circuit

would permit, however, simply fails to provide timely

and meaningful notice to the defendant of the true maxi-

mum penalty he faces.2° An indictment only provides

at 16. Congress is presumed to have been aware of this practice,

obviating the need for a special provision here. Lastly, the

meaning the government might attribute to Congressional

silence runs counter to many other cases in which a deprivation

of notice has been held to raise due process concerns. See Burns,

501 U.S. at 137-38.

20 Taken to its logical end, the Seventh Circuit’s opinion

would permit a legislature to write an entire criminal code as

one statutory section. All existing crimes could be included as

subsections with separate penalty clauses. Thus, an indictment

under this code could read, “violation of the criminal code, § 1.”

satisfactory due process protection to the defendant if it

fairly informs him of the crime with which he is charged

and enables him to plead acquittal or conviction in bar of

future prosecutions for the same offense. Schooner Hoppet

& Cargo v. United States, 11 U.S. 389 (1813) (an indictment

must contain “a substantial statement of the offence upon

which prosecution is founded” and “cannot be satisfied

by a general reference to the provisions of a statute”);

United States v. Schoenhut, 576 F.2d 1010, 1021-22 (3d Cir.

1978), cert. denied, 439 U.S. 964 (1978). To be informed of

the crime charged necessarily includes notice of both the

conduct forbidden and the penalty prescribed. See 1 W.

LaFave & A. Scott, Jr., Substantive Criminal Law 1.2 (1986);

see also United States v. Evans, 333 U.S. at 485-95; United

States v. Eaton, 144 U.S. 677, 686 (1892). Thus, in its effort

to assist the government in avoiding the sentencing

conundrum created by its own charging decisions, the

lower court has sanctioned a form of indictment that

deprives the defendant of his Due Process rights.

Nor can the government overcome the Due Process

implications of its position by contending that the defen-

dant is always on notice that the maximum penalty under

a Section 846 conspiracy is life because that is the maxi-

mum penalty under some subsections of the penalty pro-

visions of Section 841. A defendant can have a legitimate

need to know the true statutory maximum he faces before

trial. For example, if a defendant is charged with two

separate counts of conspiracy, one carrying a possible life

sentence and another carrying less than life, his trial

strategy might well be to attack the evidence on the life

count more strenuously. In this case, if the government

had chosen to charge the powder and crack conspiracies

separately, the defendant might have been better able to

expose the weaknesses of the crack conspiracy which

A defendant would not know if he faced the maximum

subsection penalty for jaywalking or for murder until

sentencing.

carried the more severe penalty. In other words, if the

government is permitted to co-mingle sub-provisions of

Section 841 that carry different statutory maximums in a

single count of Section 846, yet the court can sentence on

the greater offense, the government can more easily

obtain the more severe penalty than if the conspiracies

were charged separately. Furthermore, because the Sev-

enth Circuit holds that the defendant is not necessarily

entitled to special verdicts on dual object conspiracies,

there is no way to prevent the government from using

this tactic to its advantage. Thus, condoning the Seventh

Circuit’s interpretation of how Section 846 may be

charged and sentenced actually encourages the govern-

ment to charge drug conspiracies in a manner that

increases the risk of a variance between the jury’s verdict

and the correct statutory punishment. The Seventh Cir-

cuit opinion violates both the spirit and the letter of this

Court’s Due Process decisions. See Lanzetta v. New Jersey,

306 U.S. 451 (1939) (Due Process should not require one

to “speculate as to the meaning of penal statutes”).?'

21 The government cannot argue that the due process notice

issue is moot in this case because these defendants were put on

notice that the maximum penalty in this case was life because

Count One included crack cocaine as an object of the conspiracy

for two reasons. First, this argument undercuts the foundation

of the Seventh Circuit’s reasoning - that the wording of the

indictment is irrelevant because all Section 846 and Section 841

indictments charge a single crime of conspiracy to distribute

controlled substances. Second, these defendants were still faced

with the strategic dilemmas identified above - they did not

know before trial began, exactly how the jury would vote on the

statutory maximums they faced. For example, a mid-trial ruling

that there would be special jury interrogatories on the

conspiracy count would dramatically have changed the nature

of the trial.

C. The Case Must Be Remanded For Resentencing

As Petitioners’ sentences were imposed in violation

of law and as a result of an incorrect application of the

Guidelines, this case should be remanded to the District

Court for resentencing. 18 U.S.C. § 3742(f)(1) provides

that “if the court of appeals determines that the sentence

was imposed in violation of law or as a result of an

incorrect application of the Sentencing Guidelines, the

court shall remand the case for further sentencing pro-

ceedings with such instructions as the court considers

appropriate.” In Williams v. United States, 503 U.S. 193

(1992), this Court interpreted Section 3742(f) as obliging

reviewing courts to determine whether “the sentence

[was] imposed either in violation of law or as a result of

an incorrect application of Guidelines[.] If so, a remand is

required under § 3742(f)(1).” Id. at 202.

As the sentences imposed upon Petitioners either

violated Petitioners’ Fifth and Sixth Amendment rights or

were in excess of the statutory maximum for an

unspecified powder cocaine conspiracy, these sentences

were imposed in violation of law. Section 3742(f)(1), as

interpreted in Williams, requires no further analysis at

this point; it requires only that the case be remanded for

further sentencing proceedings.??

This Court held in Williams that not all errors under

the Sentencing Guidelines will result in a remand; if the

party defending the sentence can persuade the appellate

court that the error was harmless, that is, “that the dis-

trict court would have imposed the same sentence absent

the erroneous factor, then a remand is not required.” Id.

22 In Williams, the petitioner challenged a departure from

the Guidelines. The Court of Appeals found two of the grounds

stated for the departure valid and the other invalid, and

affirmed the sentence. This Court vacated and remanded to the

District Court for a determination of whether the sentence was

imposed as a result of the invalid ground for departure.

Williams, 503 U.S. at 206.

at 203. In this case, the error made by the district court

judge was clearly not harmless. In developing and draft-

ing the Sentencing Guidelines, the United States Sentenc-

ing Commission (hereinafter “Commission”) recognized

two differing approaches to sentencing - “real offense”

sentencing, which bases sentences on the actual conduct

undertaken by a defendant, regardless of the charges for

which the defendant was indicted or convicted, or

“charge offense” sentencing, which bases sentences upon

the conduct that constitutes the elements of the offense

for which the defendant was charged and convicted. Fed-

eral Sentencing Guidelines Manual (“Guidelines”)

§ 1.A.4(a). The Guidelines embody a modified charge

offense system, in which the offense of conviction plays

an essential role in sentencing and is consistently distin-

guished from other, “real offense” elements.

The Guidelines provide a multiple-step sentencing

process. The Guidelines direct the sentencing judge first

to “[djetermine the offense guideline section in Chapter

Two (Offense Conduct) most applicable to the offense of

conviction (i.e., the offense conduct charged in the count

of the indictment or information of which the defendant

was convicted)” and, following the determination of what

offense guideline section is applicable, then to consider

other relevant conduct in determining the appropriate

sentence. Jd. § 1B1.2. Hence, the Guidelines draw a clear

distinction between “offense of conviction” and “relevant

conduct.” This distinction is carried throughout the

Guidelines. See, e.g., id. § 3B, Introductory Commentary;

§ 3E1.1, n. 1(a); § 3D1.1; § 4B1.1; § 5B1.1(b); 5D1.2(a). Each

of these determinations is governed by the sentencing

judge’s determination of the offense of conviction.

Given that the sentencing levels for cocaine base are

far greater than for the same amount of powder cocaine,

and the different relevance that evidence of base cocaine

would have in sentencing for a powder-only conspiracy

as opposed to a conspiracy that includes cocaine base,

this case must be remanded for resentencing or a new

trial. Law enforcement officers seized only small amounts

of controlled substances in this case. Thus, the District

Court, in making its determination of the amount and

kind of controlled substance for which each Petitioner

would be held responsible, considered primarily the testi-

mony of various witnesses, and ascribed to Petitioners

amounts that they could reasonably foresee as being in

furtherance of the conspiracy. These witnesses described

the movement of larger quantities of powder cocaine, and

ascribed certain percentages of the cocaine to powder and

certain percentages to base. The court then modified both

the amount of the cocaine and the proportion of base to

powder based on the credibility of the various witnesses.

For example, the court sentenced Petitioner Fort on the

conspiracy count based on his responsibility for 24 kilo-

grams of cocaine, of which the court found half to be

base. That amount and proportion, however, differed

from the amount and proportion given by witnesses, who

testified to greater amounts of cocaine, and that the pro-

portion of base to powder was three to one. The judge,

however, found that the witnesses so testifying were not

entirely credible, and thus discounted their testimony by

a certain percentage. Had the jury unambiguously found

a powder cocaine conspiracy, the court may have found,

for example, that any amount of crack cocaine would not

be reasonably foreseeable by one who had entered into a

powder conspiracy. Thus, in Fort’s case, had the judge

found the same amount of cocaine to be involved, but did

not ascribe any of it to cocaine base, Fort’s sentence

would have been substantially less than the mandatory

life sentence he received.

50 App. 1

CONCLUSION

For all the foregoing reasons, Petitioners respectfully

request that the Court remand this case for resentencing

or a new trial.

Dated: December 1997

Appendix

Relevant Statutory and Constitutional Provisions

The Fifth Amendment of the Constitution of the United

States of America provides:

Respectfully Submitted

STEVEN SHOBAT

321 South Plymouth Court, Suite 1275

Chicago, Illinois 60604

(312) 922-8480

Counsel for Petitioner Karl V. Fort

Mark D. Desorsky

77 W. Washington St., Suite 500

Chicago, Illinois 60602

(312) 372-5718

Counsel for Petitioner

Reynolds Wintersmith

Rosert HANDELSMAN

Suite 2650

20 N. Clark Street

Chicago, Illinois 60602

(312) 977-1600

Counsel for Petitioner

Joseph Tidwell

J. MicHaet McGutness

236 N. Poplar Street

Elizabethtown, NC 28337

(910) 862-7087

Counsel for Petitioner Vincent Edwards

DONALD SULLIVAN

202 W. State Street

Rockford, Illinois 61101

(815) 968-5205

Counsel for Petitioner Horace Joiner

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

The Sixth Amendment of the Constitution of the United

States of America provides:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defence.

Title 18 U.S.C. § 846, “Attempt and conspiracy” provides:

Any person who attempts or conspires to

commit any offense defined in this subchapter

App. 2

shall be subject to the same penalties as those

__—_— prescribed for the offense, the commission of

which was the object of the attempt or conspir-

acy.

Title 18 U.S.C. § 841, “Prohibited acts” provides:

(a) Unlawful acts

Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or inten-

tionally -

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distrib-

ute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess

with intent to distribute or dispense, a

counterfeit substance.

(b) Penalties

Except as otherwise provided in section 859,

860, or 861 of this title, any person who violates

subsection (a) of this section shall be sentenced

as follows:

(1A) In the case of a violation of subsection

(a) of this section involving -

(i) 1 kilogram or more of a mixture or sub-

stance containing a detectable amount

of heroin;

(ii) 5 kilograms or more of a mixture or

substance containing a detectable

amount of -

(I) coca leaves, except coca leaves

and extracts of coca leaves from

which cocaine, ecgonine, and

(iii)

(iv)

(v)

(vi)

(vii)

App. 3

derivatives of ecgonine or their

salts have been removed;

(II) cocaine, its salts, optical and geo-

metric isomers, and salts of iso-

mers;

(III) ecgonine, its derivatives, their

salts, isomers, and salts of iso-

mers; or

(IV) any compound, mixture, or prepa-

ration which contains any quan-

tity of any of the substances

referred to in subclauses (I)

through (III);

50 grams or more of a mixture or sub-

stance described in clause (ii) which

contains cocaine base;

100 grams or more of phencyclidine

(PCP) or 1 kilogram or more of a mix-

ture or substance containing a detect-

able amount of phencyclidine (PCP);

10 grams or more of a mixture or sub-

stance containing a detectable amount

of lysergic acid diethylamide (LSD);

400 grams or more of a mixture or sub-

stance containing a detectable amount of

N-phenyl-N-[1-(2-phenylethy]l)-4-

piperidinyl] propanamide or 100 grams

or more of a mixture or substance con-

taining a detectable amount of any ana-

logue of N-phenyl-N-!1-(2-

phenylethyl)-4-piperidinyl] pro-

panamide;

1000 kilograms or more of a mixture or

substance containing a detectable

App. 4

amount of marijuana, or 1,000 or more

marijuana plants regardless of weight;

(viii) 100 grams or more of meth-

amphetamine, its salts, isomers, and

salts of its isomers or 1 kilogram or

more of a mixture or substance contain-

ing a detectable amount of meth-

amphetamine, its salts, isomers, or salts

of its isomers;

such person shall be sentenced to a term of

imprisonment which may not be less than 10

years or more than life and if death or serious

bodily injury results from the use of such sub-

stance shall be not less than 20 years or more

than life, a fine not to exceed the greater of that

authorized in accordance with the provisions of

Title 18, or $4,000,000 if the defendant is an

individual or $10,000,000 if the defendant is

other than an individual, or both. If any person

commits such a violation after a prior conviction

for a felony drug offense has become final, such

person shall be sentenced to a term of imprison-

ment which may not be less than 20 years and

not more than life imprisonment and if death or

serious bodily injury results from the use of

such substance shall be sentenced to life

imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the

provisions of Title 18, or $8,000,000 if the defen-

dant is an individual or $20,000,000 if the defen-

dant is other than an individual, or both. If any

person commits a violation of this subparagraph

or of section 849, 859, 860, or 861 of this title

after two or more prior convictions for a felony

drug offense have become final, such person

App. 5

shall be sentenced to a mandatory term of life

imprisonment without release and fined in

accordance with the preceding sentence. Any

sentence under this subparagraph shall, in the

absence of such a prior conviction, impose a

term of supervised release of at least 5 years in

addition to such term of imprisonment and

shall, if there was such a prior conviction,

impose a term of supervised release of at least

10 years in addition to such term of imprison-

ment. Notwithstanding any other provision of

law, the court shall not place on probation or

suspend the sentence of any person sentenced

under this subparagraph. No persor sentenced

under this subparagraph shall be eligible for

parole during the term of imprisonment

imposed therein.

(B) In the case of a violation of subsection (a)

of this section involving -

(i) 100 grams or more of a mixture or sub-

stance containing a detectable amount

of heroin;

(ii) 500 grams or more of a mixture or sub-

stance containing a detectable amount

of -

(I) coca leaves, except coca leaves

and extracts of coca leaves from

which cocaine, ecgonine, and

derivatives of ecgonine or their

salts have been removed;

(II) cocaine, its salts, optical and geo-

metric isomers, and salts of iso-

mers;

(iii)

(iv)

(v)

(vi)

(vii)

(viii)

App. 6

(III) ecgonine, its derivatives, their

salts, isomers, and salts of iso-

mers; or

(IV) any compound, mixture, or prepa-

ration which contains any quan-

tity of any of the substances

referred to in subclauses (lI)

through (III);

5 grams or more of a mixture or sub-

stance described in clause (ii) which

contains cocaine base;

10 grams or more of phencyclidine

(PCP) or 100 grams or more of a mixture

or substance containing a detectable

amount of phencyclidine (PCP);

1 gram or more of a mixture or sub-

stance containing a detectable amount

of lysergic acid diethylamide (LSD);

40 grams or more of a mixture or sub-

stance containing a detectable amount of

N-phenyl-N-[1-(2-phenylethyl)-4-

piperidinyl] propanamide or 10 grams or

more of a mixture or substance contain-

ing a detectable amount of any analogue

of N-phenyl-N-[1-(2-phenylethy])-4-

piperidinyl] propanamide;

100 kilograms or more of a mixture or

substance containing a detectable

amount of marijuana, or 100 or more

marijuana plants regardless of weight;

10 grams or more of methamphetamine,

its salts, isomers, and salts of its isomers

or 100 grams or more of a mixture or

App. 7

substance containing a detectable

amount of methamphetamine, its salts,

isomers, or salts of its isomers;

such person shall be sentenced to a term of

imprisonment which may not be less than 5

years and not more than 40 years and if death or

serious bodily injury results from the use of

such substance shall be not less than 20 years or

more than life, a fine not to exceed the greater of

that authorized in accordance with the provi-

sions of Title 18, or $2,000,000 if the defendant is

an individual or $5,000,000 if the defendant is

other than an individual, or both. If any person

commits such a violation after a prior conviction

for a felony drug offense has become final, such

person shall be sentenced to a term of imprison-

ment which may not be less than 10 years and

not more than life imprisonment and if death or

serious bodily injury results from the use of

such substance shall be sentenced to life

imprisonment, a fine not to exceed the greater of

twice that authorized in accordance with the

provisions of Title 18, or $4,000,000 if the defen-

dant is an individual or $10,000,000 if the defen-

dant is other than an individual, or both. Any

sentence imposed under this subparagraph

shall, in the absence of such a prior conviction,

include a term of supervised release of at least 4

years in addition to such term of imprisonment

and shall, if there was such a prior conviction,

include a term of supervised release of at least 8

years in addition to such term of imprisonment.

Notwithstanding any other provision of law, the

court shall not place on probation or suspend

the sentence of any person sentenced under this

subparagraph. No person sentenced under this

App. 8

subparagraph shall be eligible for parole during

the term of imprisonment imposed therein.

schedule I or Il, or 1 gram of flunitrazepam,

except as provided in subparagraphs (A), (B),

and (D), such person shall be sentenced to a

term of imprisonment of not more than 20 years

and if death or serious bodily injury results

from the use of such substance shall be sen-

tenced to a term of imprisonment of not less

than twenty years or more than life, a fine not to

exceed the greater of that authorized in accor-

dance with the provisions of Title 18, or

$1,000,000 if the defendant is an individual or

$5,000,000 if the defendant is other than an indi-

vidual, or both. If any person commits such a

violation after a prior conviction for a felony

drug offense has become final, such person shall

be sentenced to a term of imprisonment of not

more than 30 years and if death or serious

bodily injury results from the use of such sub-

stance shall be sentenced to life imprisonment, a

fine not to exceed the greater of twice that

authorized in accordance with the provisions of

Title 18, or $2,000,000 if the defendant is an

individual or $10,000,000 if the defendant is

other than an individual, or both. Any sentence

imposing a term of imprisonment under this

paragraph shall, in the absence of such a prior

conviction, impose a term of supervised release

of at least 3 years in addition to such term of

imprisonment and shall, if there was such a

prior conviction, impose a term of supervised

release of at least 6 years in addition to such

term of imprisonment. Notwithstanding any

other provision of law, the court shall not place

on probation or suspend the sentence of any

App. 9

person sentenced under the provisions of this

subparagraph which provide for a mandatory

term of imprisonment if death or serious bodily

injury results, nor shall a person so sentenced be

eligible for parole during the term of such a

sentence.

(D) In the case of less than 50 kilograms of

marihuana, except in the case of 50 or more

marihuana plants regardless of weight, 10 kilo-

grams of hashish, or one kilogram of hashish oil

or in the case of any controlled substance in

schedule III, or 30 milligrams of flunitrazepam,

such person shall, except as provided in para-

graphs (4) and (5) of this subsection, be sen-

tenced to a term of imprisonment of not more

than 5 years, a fine not to exceed the greater of

that authorized in accordance with the provi-

sions of Title 18, or $250,000 if the defendant is

an individual or $1,000,000 if the defendant is

other than an individual, or both. If any person

commits such a violation after a prior conviction

for a felony drug offense has become final, such

person shall be sentenced to a term of imprison-

ment of not more than 10 years, a fine not to

exceed the greater of twice that authorized in

accordance with the provisions of Title 18, or

$500,000 if the defendant is an individual or

$2,000,000 if the defendant is other than an indi-

vidual, or both. Any sentence imposing a term

of imprisonment under this paragraph shall, in

the absence of such a prior conviction, impose a

term of supervised release of at least 2 years in

addition to such term of imprisonment and

shall, if there was such a prior conviction,

impose a term of supervised release of at least 4

years in addition to such term of imprisonment.

App. 10

(2) In the case of a controlled substance in

schedule IV, such person shall be sentenced to a

term of imprisonment of not more than 3 years,

a fine not to exceed the greater of that autho-

rized in accordance with the provisions of Title

18, or $250,000 if the defendant is an individual

or $1,000,000 if the defendant is other than an

individual, or both. If any person commits such

a violation after one or more prior convictions of

him for an offense punishable under this para-

graph, or for a felony under any other provision

of this subchapter or subchapter II of this chap-

ter or other law of a State, the United States, or a

foreign country relating to narcotic drugs, mar-

ihuana, or depressant or stimulant substances,

have become final, such person shall be sen-

tenced to a term of imprisonment of not more

than 6 years, a fine not to exceed the greater of

twice that authorized in accordance with the

provisions of Title 18, or $500,000 if the defen-

dant is an individual or $2,000,000 if the defen-

dant is other than an individual, or both. Any

sentence imposing a term of imprisonment

under this paragraph shall, in the absence of

such a prior conviction, impose a term of super-

vised release of at least one year in addition to

such term of imprisonment and shall, if there

was such a prior conviction, impose a term of

supervised release of at least 2 years in addition

to such term of imprisonment.

(3) In the case of a controlled substance in

schedule V, such person shall be sentenced to a

term of imprisonment of not more than one

year, a fine not to exceed the greater of that

authorized in accordance with the provisions of

Title 18, or $100,000 if the defendant is an indi-

vidual or $250,000 if the defendant is other than

App. 11

an individual, or both. If any person commits

such a violation after one or more convictions of

him for an offense punishable under this para-

graph, or for a crime under any other provision

of this subchapter or subchapter II of this chap-

ter or other law of a State, the United States, or a

foreign country relating to narcotic drugs, mar-

ihuana, or depressant or stimulant substances,

have become final, such persons shall be sen-

tenced to a term of imprisonment of not more

than 2 years, a fine not to exceed the greater of

twice that authorized in accordance with the

provisions of Title 18, or $200,000 if the defen-

dant is an individual or $500,000 if the defen-

dant is other than an individual, or both.

(4) Notwithstanding paragraph (1)(D) of

this subsection, any person who violates subsec-

tion (a) of this section by distributing a small

amount of marihuana for no remuneration shall

be treated as provided in section 844 of this title

and section 3607 of Title 18.

(5) Any person who violates subsection (a)

of this section by cultivating a controlled sub-

stance on Federal property shall be imprisoned

as provided in this subsection and shall be fined

any amount not to exceed -

(A) the amount authorized in accordance

with this section;

(B) the amount authorized in accordance

with the provisions of Title 18;

ual; or

(D) $1,000,000 if the defendant is other

than an individual; or both.

App. 12

(6) Any person who violates subsection

(a), or attempts to do so, and knowingly or

intentionally uses a poison, chemical, or other

hazardous substance on Federal land, and, by

such use -

(A) creates a serious hazard to humans,

wildlife, or domestic animals,

(B) degrades or harms the environment or

natural resources, or

river, or body of water,

shall be fined in accordance with title 18, United

States Code, or imprisoned not more than five

years, or both.

(7) Penalties for distribution

(A) In general

Whoever, with intent to commit a crime

of violence, as defined in > section 16 of

Title 18 (including rape), against an individ-

ual, violates subsection (a) of this section by

distributing a controlled substance to that

individual without that individual’s know]l-

edge, shall be imprisoned not more than 20

years and fined in accordance with > Title

18.

(B) Definition

For purposes of this paragraph, the

term “without that individual’s knowledge”

means that the individual is unaware that a

substance with the ability to alter that indi-

vidual’s ability to appraise conduct or to

decline participation in or communicate

App. 13

unwillingness to participate in conduct is

administered to the individual.

formerly § 224(a)(6), Oct. 12, 1984, 98 Stat. 2030,

as renumbered by Pub.L. 99-570, Title I,

§ 1005(a)(2), Oct. 27, 1986, 100 Stat. 3207-6

(d) Offenses involving listed chemicals

Any person who knowingly or intentionally -

(1) possesses a listed chemical with intent

to manufacture a controlled substance

except as authorized by this subchap-

ter;

(2) possesses or distributes a listed chemi-

cal knowing, or having reasonable

cause to believe, that the listed chemi-

cal will be used to manufacture a con-

trolled substance except as authorized

by this title; or

(3) with the intent of causing the evasion

of the recordkeeping or reporting

requirements of section 830 of this title,

or the regulations issued under that

section, receives or distributes a report-

able amount of any listed chemical in

units small enough so that the making

of records or filing of reports under

that section is not required;

shall be fined in accordance with > Title 18, or

imprisoned not more than 20 years in the case of

a violation of paragraph (1) or (2) involving a

list I chemical or not more than 10 years in the

case of a violation of this subsection other than a

violation of paragraph (1) or (2) involving a list I

chemical, or both.

App. 14

(e) Boobytraps on Federal property; penalties;

“boobytrap” defined

(1) Any person who assembles, maintains,

places, or causes to be placed a booby-

trap on Federal property where a con-

trolled substance is being

manufactured, distributed, or dis-

pensed shall be sentenced to a term of

imprisonment for not more than 10

years and shall be fined not more than

$10,000.

(2) If any person commits such a violation

after 1 or more prior convictions for an

offense punishable under this subsec-

tion, such person shall be sentenced to

a term of imprisonment of not more

than 20 years and shall be fined not

more than $20,000.

(3) For the purposes of this subsection, the

term “boobytrap” means any concealed

or camouflaged device designed to

cause bodily injury when triggered by

any action of any unsuspecting person

making contact with the device. Such

term includes guns, ammunition, or

explosive devices attached to trip wires

or other triggering mechanisms, sharp-

ened stakes, and lines or wires with

hooks attached.

(f) Ten-year injunction as additional penalty

In addition to any other applicable penalty,

any person convicted of a felony violation of

this section relating to the receipt, distribution,

manufacture, exportation, or importation of a

listed chemical may be enjoined from engaging

App. 15

in any transaction involving a listed chemical

for not more than ten years.

(g) Wrongful distribution or possession of lis-

ted chemicals

(1) Whoever knowingly distributes a listed

chemical in violation of this subchapter (other

than in violation of a recordkeeping or reporting

requirement of section 830 of this title) shall be

fined under > Title 18, or imprisoned not more

than 5 years, or both.

(2) Whoever possesses any listed chemical,

with knowledge that the recordkeeping or

reporting requirements of section 830 of this

title have not been adhered to, if, after such

knowledge is acquired, such person does not

take immediate steps to remedy the violation

shall be fined under > Title 18, or imprisoned

not more than one year, or both.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.