# Appendix — Zidell v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1727%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 824

## Text

APPENDIX-1

Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 99-20231—Julia S. Gibbons, District Judge.
Argued: August 7, 2002
Decided and Filed: March 21, 2003

Before: MOORE and GILMAN, Circuit Judges; ROSEN,
District Judge.(*)

COUNSEL

ARGUED: Thomas Edwards Hansom, LAW OFFICES OF THOMAS
E. HANSOM, Memphis, Tennessee, for Appellant.

Thomas L. Parker, ASSISTANT UNITED STATES ATFORNEY,
Memphis, Tennessee, for Appellee. ON BRIEF: Thomas

Edwards Hansom, LAW OFFICES OF THOMAS E. HANSOM,
Memphis, Tennessee, for Appellant. Thomas L. Parker,

ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee,
for Appellee.

ROSEN, D. J., announced the judgment of the court and delivered
an opinion, in which MOORE and GILMAN, JJ., concurred except as
to Part III.C.2. As to Part III.C.2., MOORE and GILMAN, JJ.,
concurred in the result and reasoning of that Part only to the extent
that it relies on the doctrine of harmless error to uphold the
defendant’s conviction and sentence. MOORE, J. (p. 35), delivered a
separate concurring opinion, in which GILMAN, J., joined.

OPINION

ROSEN, District Judge.

I. INTRODUCTION

Defendant/ Appellant Bobby Marshall Zidell appeals his
conviction and sentence for conspiracy to possess with intent to
distribute methamphetamine and attempt to possess with intent to
distribute methamphetamine, both in violation of 21 U.S.C. § 846.
Following a trial, the jury returned guilty verdicts against Defendant
on both of these charges. On December 8, 2000, Defendant was
sentenced to a 292-month term of imprisonment and 5 years of
supervised release. This timely appeal followed.

Defendant has identified four issues on appeal. First, he argues
that venue was improperly placed in the Western District of
Tennessee on the attempt charge set forth in Count Two of the
indictment because, in Defendant’s view, the Government’s
evidence showed that all of the criminal conduct relating to this
charge occurred in Texas. Next, Defendant complains that the
Government lacked any evidentiary basis for questioning him
during cross-examination at trial regarding his alleged attempt to
encourage a witness to lie on his behalf.

Defendant’s remaining two challenges arise from the Supreme
Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000), a decision handed down just days before Defendant’s trial.
First, Defendant contends that the District Court~s instructions to
the jury regarding drug quantities failed to comport with Apprendi,
where the jury was asked to make drug quantity findings, but was
told that these quantities were not “elements” of the charged drug
offenses, and where the instructions as to Count Two referenced a
quantity different from (and lower than) the drug amount set forth

in the indictment. Finally, Defendant argues that the District Court
erred in calculating and imposing a 292-month sentence based upon
an amount of methamphetamine in excess of the quantities charged
in the indictment and established through the jury’s verdict.

For the reasons stated below, we affirm Defendant’s conviction
and sentence.

Il. FACTUAL AND PROCEDURAL BACKG}.OUND

For purposes of this appeal, only a limited portion of the facts and
evidence presented at trial need be recounted here. Count One of the
superseding indictment in this case charged Defendant Bobby
Marshall Zidell and two co-defendants, Bobby Smith and Kevin
Cranford, with conspiring in the period from March, 1998 to April 8,
1999 to possess with intent to distribute “an amount in excess of 1
kilogram of a mixture and substance containing a detectable amount
of methamphetamine.” (J.A. at 24.) Count Two charged that, from
April 1 to April 8, 1999, Defendant and Cranford attempted to
possess “ith intent to distribute “approximately 1 pound of a
mixture or substance containing a detectable amount of
methamphetamine.” (J.A. at 25.) Co-defendants Sznith and Cranford
both entered guilty pleas as to Count One, and then testified at
Defendant's trial.

A. The Government’s Proofs at Trial

The Government's case rested principally upon the testimony of
co-defendants Smith and Cranford and a third individual, Robert
Rook, who was identified as a co-conspirator in the indictment but
not charged in exchange for his cooperation. Through these
witnesses, the Government sought to establish that Defendant, a
resident of Dallas, Texas, had supplied methamphetamine to Smith,
a native of Memphis, Tennessee who had moved to Dallas, and
Cranford and Rook, who still lived in Memphis. Smith testified that
he began to supply methamphetamine to Cranford in March of 1998,
and that his sources of supply in Dallas were Defendant and “a
couple of different Mexicans.” (J.A. at 227-30.) Smith estimated that
he served as the middleman between Defendant and Cranford

“about three or four times,” and that each transaction with
Defendant involved “2 to 4 pounds” of methamphetamine. (J.A. at
230.)

Smith testified that he began to fall behind in his payments to
Defendant, and that, as a solution to this problem, he proposed in
October of 1998 that Defendant and Cranford deal directly with each
other. Smith introduced Defendant to Cranford at a casino in Tunica,
Mississippi, and Cranford testified that Defendant supplied him
with four pounds of methamphetamine on that occasion in the fall of
1998. Cranford further testified that he paid Defendant a few
thousand dollars at the time of their meeting, and that he sent the
balance of the $60,000 payment afterward via Federal Express.

Following this initial meeting, Cranford stated that he had several
telephone conversations with Defendant over the next few weeks
regarding the payment still owed by Cranford and arrangements for
the next shipment. According to Cranford and Robert Rook, this _
next transaction occurred in late October or early November of 1998,
when Defendant met with the two men at a Waffle House in
Memphis. Cranford and Rook both testified that, upon arriving at
the restaurant, Defendant instructed Rook to retrieve some packages
from his car and place them into Cranford’s vehicle. Upon returning
to Cranford’s apartment, Cranford and Rook discovered that
Defendant had provided only nine pounds of methamphetamine,
and not the twelve pounds that Cranford had anticipated. Cranford
also testified that he was dissatisfied with the quality of the drugs
supplied by Defendant.

Because of this latter problem, Cranford stated that he was only
able to sell about two of the nine pounds of methamphetamine
provided by Defendant. As for the remaining seven pounds,
Cranford and Rook delivered them to Smith in Little Rock, Arkansas
in December of 1998, with the understanding that Smith would
return these drugs to Defendant, and that Cranford would then
settle up with Defendant as to any amounts owed for the two
pounds he had retained. Smith, however, never returned the seven
pounds of methamphetamine to Defendant. Rather, Smith testified
that he became nervous and threw the drugs in a dumpster.
Cranford, on the other hand, stated his belief that Smith repackaged
these drugs and included them in a larger shipment that Smith

delivered to Cranford a week or so later.

Cranford testified that he next heard from Defendant at the end of
January, 1999, when Defendant called to demand his money for the
Waffle House transaction. Cranford explained to Defendant what
had happened, and the two men purportedly agreed, over the
course of several subsequent telephone conversations, to resume
their direct relationship without Smith's involvement. According to
Cranford, Defendant sent him a quarter ounce of “good quality”
methamphetamine via Federal Express as a “sample of what
[Defendant] could do,” (J.A. at 177-78), and Cranford and Rook then
flew to Dallas on April 2, 1999 to obtain additional
methamphetamine from Defendant. Cranford stated that Defendant
was only able to provide four ounces of drugs on this trip, which
Cranford quickly sold upon his return to Memphis.

A few days later, on April 7, 1999, Cranford and Rook again flew
down to Dallas to obtain additional methamphetamine from
Defendant. Rook and Cranford both testified that they drove directly
to Defendant’s home upon their arrival in Dallas that evening, and
that they were given approximately a pound of methamphetamine.
They placed these drugs in a rental car, and began driving back to
Memphis. Cranford and Rook were stopped by the police in
Hopkins County, Texas, as they traveled along Interstate 30 between
Dallas and Little Rock. Upon discovering a gun in the back of the
car, the officers placed Rook and Cranford under arrest, and
apparently discovered the package of methamphetamine during a
subsequent inventory search of the vehicle.

Following his arrest, Cranford initially denied any knowledge of
the methamphetamine found in the car. He subsequently agreed to
cooperate with law enforcement authorities, however, by
participating in two recorded telephone conversations with
Defendant. These tapes were played at trial, and Cranford also was
asked to explain their contents. Cranford testified that he and
Defendant discussec: the debt he still owed for the two pounds of
methamphetamine he had retained from the Waffle House
transaction, and that Defendant indicated a willingness to arrange
some additional purchases upon receiving at least some payment
toward this debt. _

-

B. The Defense at Trial

Defendant called two witnesses at trial, and also testified on his
own behalf. In his testimony, Defendant flatly denied that he had
ever conspired with Cranford, Smith, or Rook to buy or sell
methamphetamine. Although Defendant conceded that he had met
with Cranford on the evening of April 7, 1999, he stated that the two
had discussed the “mortgage brokerage business” on this occasion,
and not any transactions involving methamphetamine. (J.A. at 270.)

One of the issues on appeal concerns a portion of the
Government’s cross-examination of Defendant at trial. The
Government first established that a woman named Dita Ghaemi was
a friend of Defendant’s, and that Ms. Ghaemi, in turn, was friends
with Chandra Smith, the wife of co-defendant Bobby Smith. (See ].A.
at 272.) The Government then inquired whether Defendant had
“asked Dita Ghaemi to contact Chandra to see if Chandra Smith
would lie for you and testify that you had nothing to do with the
sale of narcotics.” (J.A. at 272.) Defendant emphatically denied this
charge. He acknowledged that Ms. Ghaemi had offered to talk to
Ms. Smith, but he testified that he responded to this offer by stating
that this “would be an obstruction of justice,” and by instructing Ms.
Ghaemi not to proceed “in my behalf in arvy way, shape, form or
fashion.” (J.A. at 273.) Defense counsel made no objection to this line
of inquiry, but did object to a subsequent question in which the
Government apparently was about to ask why Ms. Ghaemi had not
‘been called as a witness. (See J.A. at 273.)

C. Procedural Background

The trial in this case commenced on July 10, 2000, just a few days
after the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466,
120 5. Ct. 2348 (2000). Accordingly, the District Court was left with
the unenviable task of determining how the jury should be
instructed as to drug quantities in the wake of Apprendi, without the
benefit of any subsequent case law addressing the proper
interpretation of this Supreme Court ruling.

At the close of proofs, the District Court heard the arguments of
counsel on this matter, and then arrived at a solution somewhat
different from that proposed by either party. As to Count One, the

— ————--——-

Court read a traditional drug conspiracy instruction to the jury, and
then addressed the issue of drug quantity as follows:

You will recall that the indictment alleges that a particular
quantity of controlled substance was involved in the
conspiracy. While the government does not have to prove
this exact quantity as an element of the offense, it does have
to establish the quantity beyond a reasonable doubt for other
purposes. For this reason, if you find defendant guilty of the
conspiracy offense, you will need to make a separate finding
concerning the quantity of controlled substance. Specifically,
you must determine whether the government has proved
beyond a reasonable doubt that 1 kilogram or more of a
mixture or substance containing a detectable amount of
methamphetamine was the amount of controlled substance
that defendant conspired to possess with intent to distribute
or to distribute.

(J.A. at 62-63.)

The Court’s instructions to the jury as to Count Two were similar,
with one distinction. As noted earlier, the indictment charged that
this offense involved “approximately 1 pound of a mixture or
substance containing a detectable amount of methamphetamine.”
(J.A. at 25.) This one-pound figure would translate into
approximately 440 grams. The Court, however, instructed the jury
that the relevant quantity was “100 grams or more,” and that it was
this amount, and not a pound, that the jury should address in its
deliberations, provided that it first determined that Defendant was
guilty of the attempt offense charged in the indictment. (J.A. at 67.)

| In explaining these instructions on Count Two, the District Court
| reasoned that “[t]he impact of Apprendi is that the jury has to find

: the statutory [sentencing] factor beyond a reasonable doubt.” (J.A. at
282.) Because the 440-gram amount charged in the indictment
exceeded the 100-gram quantity that triggered an enhanced
statutory sentencing range under 21 U.S.C. § 841(b)(1)(B), but was
less than the 1-kilogram amount that would trigger the maximum

; sentencing range under § 841(b)(1) (A),(1.) the Court concluded that

) Apprendi would be satisfied, and that an enhanced statutory

: sentencing range could be applied, so long as the jury determined

beyond a reasonable doubt that the attempt offense charged in
Count Two involved at least 100 grams of methamphetamine.
Accordingly, even though the indictment specified a greater
quantity, the District Court found that this was not an element of the
offense, and it elected to “use what’s in the statute, not what’s
charged in the indictment,” (J.A. at 281), in its instructions to the

jury.(2)

The jury then was presented with a verdict form in which it was
first asked to determine whether Defendant was guilty or not guilty
as to Count One. If Defendant was found guilty on this count, the
jury was asked to decide whether “the government [had] proved
beyond a reasonable doubt that 1 kilogram or more of a mixture or
substance containing a detectable amount of methamphetamine”
was involved in the conspiracy. (J.A. at 44.) Similarly, as to Count
Two, the jury was asked to determine whether Defendant was guilty
of the charged attempt offense and, if so, whether the Government
had proved beyond a reasonable doubt that this offense involved 100
grams or more of methamphetamine. (See J.A. at 44.) In a verdict
returned on July 27, 2000, the jury found Defendant guilty on
Counts One and Two, and answered affirmatively that the charged
offenses had involved, respectively, at least 1 kilogram and at least
100 grams of methamphetamine.

A presentence report prepared after these convictions
recommended a sentencing range of 360 months to life
imprisonment, based on a determination that the Count One
conspiracy had involved 5 to 15 kilograms of methamphetamine,
plus a four-level enhancement for Defendant’s purported role as an
organizer or leader of the conspiracy. In his objections to the
presentence report, Defendant again asserted that the District
Court’s jury instructions violated Apprendi, and he further argued
that the probation officer’s determination of drug quantity rested
upon the unreliable testimony of cooperating witnesses Smith and
Cranford, and that a leader or organizer enhancement likewise was
not supported in the record at trial.

The District Court addressed these objections at a sentencing
hearing held on December 8, 2000. The Court adhered to its prior
view of Apprendi, and opined that the characterization of drug

quantity as an element or sentencing factor was “completely
immaterial,” where “the jury in this case was told [that] the fact [of
drug amount] had to be proved beyond a reasonable doubt.” (J.A. at
329-30.) The Court noted that the jury’s determination on this point
triggered a statutory sentencing range of 10 years to life
imprisonment, and it found that the trial record supported the
higher 5-to-15-kilogram drug quantity determination set forth in the
presentence report. The Court agreed with Defendant, however, that
an organizer or leader enhancement was unwarranted, resulting in a
modified Sentencing Guideline range of 292 to 365 months.
Defendant then was sentenced at the bottom of this range, a 292-
month term of imprisonment, followed by a five-year j eriod of
supervised release.

A judgment embodying this sentence was entered on December
15, 2000. Defendant now appeals his conviction and sentence.

Ill. ANALYSIS

A. Venue Was Proper in the Western District of Tennessee as to
Count Two of the Indictment.

As his first issue on appeal, Defendant argues that venue was not
properly placed in the Western District of Tennessee as to Count
Two of the indictment, and that the District Court erred in failing to
grant his motion for judgment of acquittal on this ground. We
review de novo the trial court’s denial of a motion for judgment of
acquittal. See United States v. Wall, 130 F.3d 739,742 (6th Cir. 1997).
In conducting this review, we view the evidence in the light most
favorable to the prosecution, and inquire whether a rational trier of
fact could find that venue is proper. See Wall, 130 F.3d at 742. The
Government’s showing on this point need only be supported by a
preponderance of the evidence. See United States v. Thomas, 74 F.3d
701, 709 (6th Cir.), cert. denied, 519 U.S. 820 (1996).

Before reaching the merits of this issue, we first address the
Government’s contention that Defendant waived any objection to
improper venue by failing to timely raise this issue in the court
below. As the Government points out, Defendant did not specifically
identify venue as an issue in his initial motion for judgment of

acquittal at the close of the Government’s proofs. Instead, his
counsel generally stated:

Very briefly, Your Honor, I make a motion for judgment of
acquittal on both counts of the indictment due to the failure
of the government to make out each and every element of a
prima facie case of each and every charge. 3

(J.A. at 258.) Nor did defense counsel mention venue after the close
of all the evidence, stating simply that “I need to renew my motion.”
(J.A. at 284.) Rather, the first explicit reference to venue is found ina
memorandum in support of Defendant’s post-trial renewal of his _
motion for judgment of acquittal. (See J.A. at 73.) The Government
argues that this post-trial objection came too late to preserve this
issue On appeal.

The law of this Circuit indicates otherwise, though not
definitively. To be sure, while Defendant challenged the
Government’s purported failure to “make out each and every
element” of the charged offenses, (J.A. at 258), this cannot be viewed
as a direct challenge to venue, because venue is not properly
considered a true “element” of a criminal offense. See United States v.
Scaife, 749 F.2d 338, 346 (6th Cir. 1984); United States v. Branan, 457
F.2d 1062, 1065-66 (6th Cir. 1972). Nevertheless, this Court has
indicated, albeit only in dicta, that a general challenge to the
Government’s proofs in a Rule 29 motion for judgment of acquittal
suffices to preserve the issue of venue, and that only a more specific
Rule 29 motion operates to waive all grounds not specified. See
United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir. 1993), cert.
denied, 510 U.S. 1163 (1994). In stating this view, we quoted with
approval from United States v. Rivera, 388 F.2d 545, 548 (2d Cir.), cert.
denied, 392 U.S. 937 (1968), which distinguished between general and
specific motions to acquit, and found that the former type of motion
“might [be] assume[d]” to encompass venue. See Dandy, 998 F.2d at
1357. In this case, Defendant’s initial motion is readily characterized
as general — indeed, it is hard to see how it could be more so — and
thus does not preclude us from considering his challenge to venue.

Turning to the merits of this issue, however, we find that the
record amply supports the Government’s determination to
prosecute Defendant in the Western District of Tennessee. Count

Two of the indictment charged that Defendant and Kevin Cranford,
“each being aided and abetted by the other and by Robert Rook, did
attempt to possess with the intent to distribute and attempt to cause
the possession with intent to distribute approximately 1 pound of a
mixture or substance containing a detectable amount of
methamphetamine.” (J.A. at 25.) From the Government’s proofs at
trial, and from the reference in the indictment to the time period
between April 1 and April 8, 1999, it is evident that the offense
charged in Count Two arose from the April 7, 1999 transaction in
which Cranford and Rook traveled to Defendant’s home in Dallas,
Texas and were given approximately a pound of methamphetamine,
whereupon they began driving back to their point of origin in
Memphis, Tennessee. This conduct gave rise to an attempt charge, as
opposed to a charge of a completed drug distribution offense, when
Rook and Cranford were stopped by the police before they reached
their intended destination.

In arguing that venue was improperly placed in the Western
District of Tennessee as to this charge, Defendant notes that the
Government's proofs established that he supplied the drugs in
question solely in Texas, and without traveling to Memphis. Be that
as it may, the events of relevance to this attempted drug distribution
offense are not so narrowly circumscribed. This Court and others
have observed that “[p]ossession with intent to distribute a
controlled substance is a continuing offense.” United States v. Medina,
992 F.2d 573, 587 (6th Cir. 1993), cert. denied, 510 U.S. 1109 (1994); see
also United States v. Uribe, 890 F.2d 554, 559 (1st Cir. 1989); United
States v. Baskin, 886 F.2d 383, 388 (D.C. Cir. 1989), cert. denied, 494
U.S. 1089 (1990); United States v. Stitzer, 785 F.2d 1506, 1519 (11th
Cir.), cert. denied, 479 U.S. 823 (1986). See generally United States v.
Co/on, 268 F.3d 367, 377 (6th Cir. 2001) (holding that “distribution” of
a controlled substance under federal drug law “includes other acts
perpetrated in furtherance of a transfer or sale, such as arranging or
supervising the delivery, or negotiating for or receiving the purchase
price”). Accordingly, the determination of venue is governed by the
“continuing offense” statute, which provides that “any offense
against the United States begun in one district and completed in
another, or committed in more thaii one district, may be.. .
prosecuted in any district in which such offense was begun,
continued, or completed.” 18 U.S.C. § 3237(a); see also Medina, 992
F.2d at 587; United States v. Turner, 936 F.2d 221, 226 (6th Cir. 1991)

‘(stating that drug trafficking offenses “are not completed until the
drugs reach their final destination, and [that] venue is proper in any
district along the way” (internal quotations and citation omitted)).
To satisfy the terms of this statute, it is not essential that the
defendant ever have been physically present in the district in
question, so long as “the offense continued into” this district.
Medina, 992 F.2d at 587.

The trial record, viewed most favorably to the prosecution, leaves
no room for doubt that the Western District of Tennessee was among
the districts in which the offense charged in Count Two was “begun,
continued, or completed.” According to the Government’s
witnesses, Defendant traveled to Memphis in the latter part of 1998,
providing methamphetamine to Rook and Cranford during a
meeting at a Waffle House. This transaction apparently strained the
relationship between the parties, with Cranford expressing
dissatisfaction with the quantity and quality of the drugs, while
Defendant reportedly complained that he had not been paid.
Defendant eventually reestablished the relationship with Cranford
through a series of telephone calls between Dallas and Memphis
beginning in January of 1999, and through a trial shipment of a
quarter ounce of methamphetamine from Dallas to Memphis via
Federal Express. Cranford testified that these dealings essentially
defined the terms of the parties’ subsequent transactions in early
April of 1999 — namely, that Defendant would provide “good
quality” methamphetamine, and that Cranford would sell these
drugs in Memphis as a means of repaying his outstanding debt to
Defendant. (See J.A. at 176-79.) Based on this understanding,
Cranford and Rook traveled from Memphis to Dallas on two
occasions in close succession, on April 2 and April 7, 1999, in order
to obtain additional supplies of methamphetamine from Defendant
for distribution in Memphis.

From this evidence, a factfinder reasonably could have concluded
that the attempted distribution offense charged in Count Two had its
beginnings in Defendant’s trip to the Waffle House in Memphis, as
well as the principals’ subsequent negotiations between Dallas and
Memphis as they aired their respective complaints about the Waffle
House transaction. The trial record also would support the
conclusion that the offense continued in Memphis, at least in part, as
this was the point of departure for Cranford and Rook on April 2

“a

Bd

and 7. The two men indicated at trial that they were induced to
travel to Dallas by Defendant’s offer to supply them with
methamphetamine — and, indeed, Defendant apparently made
good on this promise during both of these trips. Finally, although
the plans of Cranford and Rook were thwarted by their arrests, their
testimony plainly evidences their aim to return to Memphis to
complete the intended offense — i.e., the distribution of the
methamphetamine received from Defendant — and Defendant surely
would have been aware of this plan from his past dealings with
Cranford. In short, the record establishes venue in the Western
District of Tennessee under any of the “begun, continued, or
completed” prongs of 18 U.S.C. § 323 7(a).

More generally, we have evaluated challenges to venue under a
“substantial contacts” test, which calls for consideration of “the site
of the defendant’s acts, the elements and nature of the crime, the
locus of the effect of the criminal conduct, and the suitability of each
district for accurate fact finding.” United States v. Williams, 274 F.3d
1079, 1084 (6th Cir. 2001) (internal quotations and citations omitted).
Even assuming that Defendant could be viewed as acting solely in
Dallas — a supposition that would ignore the several occasions on
which he reached out or even traveled to Memphis, including the
Waffle House transaction, his telephone negotiations with Cranford,
and the Federal Express shipment — this factor would be
counterbalanced by consideration of the nature of the charged
offense, which entails both possession and intent to distribute. The
effects of the attempted distribution, if successful, would have been
felt in Memphis, and this factor has sufficient weight in this case to
satisfy our “substantial contacts” inquiry.

The D.C. Circuit’s decision in United States v. Kwong-Wah, 924 F.2d
298, 301-02 (D.C. Cir. 1991), is instructive for both its similarities to
and its distinctions from the present case. In that case, as here, the -
defendant was charged with one count of conspiring to distribute a
controlled substance, and also a substantive count of attempted
distribution of a controlled substance. The defendant challenged
venue in the District of Columbia as to the attempted distribution
charge, where the attempted transaction took place in New Jersey
and “all of [the defendant’s] conduct in connection with the attempt
occurred either there or in New York,” but where co-defendants had
“negotiated about the transaction... in D.C.” 924 F.2d at 301. The

defendant conceded that venue was proper as to the conspiracy
charge, but argued that “a similar standard should not apply to
venue for an attempt and that the absence of any act in D.C. by [the
defendant] himself [was] fatal to the government’s assertion of
venue there.” 924 F.2d at 301.

Although the D.C. Circuit agreed that venue was improper, its
reasoning would support a contrary conclusion here. First, the Court
found sufficient evidence that “the attempted distribution was
‘begun’ in D.C. when [the defendant’s] coconspirators negotiated
the terms of the deal and [provided]. . . samples of the heroin they
intended to distribute.” 924 F.2d at 301. This, in the Court’s view,
“was sufficient to constitute a ‘substantial step’ toward the
attempted distribution.” 924 F.2d at 301. Yet, in that case, these acts
in the District of Columbia were performed by accomplices rather
than the defendant himself, and so did not necessarily suffice to
establish proper venue as to the defendant. Here, in contrast, _
Defendant was a direct participant in the equivalen‘. “substantial
steps” toward the attempted distribution, through the Waffle House
transaction, his Federal Express shipment to Memphis of a sample
quantity of methamphetamine, and his telephone negotiations with
Cranford in Memphis.

The D.C. Circuit next addressed the possible application of the
established rule that the defendant, as an aider and abettor, could be
tried in the district where the principal committed the offense. The
Court found this principle unavailing, where “the government, in
fact, failed to specify, either in the indictment or at trial, that it was
prosecuting [the defendant] on the theory that he was an aider and
abettor as opposed to a principal,” and where “the jury was not
instructed on the issue.” 924 F.2d at 302. Under this record, the
Court was “unable to infer that a defendant. . . accused only of
attempt, aided or abetted the prior actions of other persons in other
judicial districts.” 924 F.2d at 302. “If the government wishes to
establish venue for an attempt in a district where the defendant did
nothing but where the defendant’s confederates committed criminal
acts, it is required to argue and prove that the defendant specifically
aided and abetted those acts and to request that the jury be
instructed on the issue.” 924 F.2d at 302.

Again, the situation is different here, even if it is assumed that

Defendant “did nothing” in the Western District of Tennessee with
regard to the offense charged in Count Two. First, the indictment in
this case charged that Defendant and Cranford “each [were] aided
and abetted by the other and by Robert Rook,” (J.A. at 25), and this
language was incorporated into the jury instructions, (see J.A. at 63).
Arguably, then, this could bring Defendant within the rule that
permits venue for an aiding and abetting offense to be determined
by reference to the acts of the principal. On the other hand, we note
that the “aiding and abetting” aspect of Count Two was not further
amplified in the remainder of the jury instructions, and the
Government's proofs cannot readily be viewed as casting Defendant
in the role of aider and abettor rather than principal.

More importantly, the indictment in this case charged that
Defendant both “attempt[ed] to possess with the intent to distribute”
and “attempted to-cause the possession with intent to distribute”
methamphetamine. (J.A. at 25 (emphasis added).) This “cause”
language derives from a second subsection in the federal aider and
abettor statute, 18 U.S.C. § 2,(3) which provides that “[w]hoever
willfully causes an act to be done which if directly performed by him
or ancther would be an offense against the United States, is
punishable as a principal.” 18 U.S.C. § 2(b). This provision was
designed, in the words of one court, to “remove[] all doubt that one
who sets an illegal course in motion but intentionally refrains from
the direct act constituting the completed offense shall not escape
punishment.” United States v. Sabatino, 943 F.2d 94, 99 (1st Cir. 1991)
(internal quotations and citation omitted).

The jury in this case was expressly and separately instructed on
this “cause the possession” theory of criminal culpability. (See J.A. at
63, 65-66.) In addition, the Government’s proofs were wholly
consistent with the theory that Defendant, though he might not have
planned to personally distribute methamphetamine on the occasion
in question, surely set this “illegal course in motion” by supplying
methamphetamine to Cranford and Rook with full knowledge of
what they intended to do with it — and, more importantly, where
they intended to take it for the purpose of unlawful distribution.

This aspect of the record, then, provides an additional basis for
upholding venue in the Western District of Tennessee on the basis of
the acts of others, and particularly co-defendant Kevin Cranford,
even assuming that Defendant himself did nothing that might

independently warrant the placement cf venue in that district.
Consequently, we affirm the District Court’s disposition of
Defendant’s challenge to venue.

B. There Was No Plain Error in the Government's Cross-
. Examination of Defendant.

As his next assignment of error, Defendant asserts that he was
deprived of a fair trial when the Government inquired during his
cross-examination, allegedly without any factual basis, whether he
had attempted to secure a witness’s false testimony on his behalf.
Defendant concedes that his counsel did not object to this line of
questioning at trial. Consequently, our review on this issue is
governed by the “plain error” standard. See Fed. R. Crim. P. 52(b);
United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992). An error is
“plain” if it is “clear under current law” and “affected the outcome
of the district court proceedings.” United States v. Olano, 507 U.S. 725,
734, 113 S. Ct. 1770, 1777-78 (1993). In addition, our authority to
correct a plain error is discretionary, and should be employed only if
the error “seriously affect[s] the fairness, integrity or public

.teputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S. Ct.
at 1779 (internal quotations and citation omitted).

Defendant’s present challenge arises from the following exchange
during his cross-examination at trial:

Q: Mr. Zidell, do you know Dita Ghaemi?
A: Yes, sir, I do.

Q: She’s a friend of yours?

A: Yes, sir, she is.

Q: She’s someone that you brought with you to
Memphis when we had the jury selection portion of this trial?

A: She accompanied me, yes, sir.

Q: She sat right there on the front row during the jury

selection?
A: Yes, sir.

Q: She’s also a friend of Chandra Smith's [i.e., the wife of
co-defendant Bobby Smith], isn’t she?

A: Yes, sir.

Q: Mr. Zidell, you asked Dita Ghaemi to contact
Chandra to see if Chandra Smith would lie for you and
testify that you had nothing to do with the sale of narcotics,
didn’t you do that, sir?

A: Quite the contrary, sir.

Q: You had Dita call Chandra —

A: No, sir.

Q: Is it your testimony that Dita did not call Chandra?

A: No, sir, that’s not what I said. I said I did not ask her
to call, change any testimony or anything else. I explained to
her, she asked me what was going on. I began to explain it to
her. She said, “Would you like me to talk to Chandra?” I told
her that would be an obstruction ofjustice, not in my behalf in
any way, shape, form or fashion. -

(J.A. at 272-73.) As noted, defense counsel did not interpose any
objection to this line of questioning.(4)

On its face, the Government's inquiry was wholly permissible
under Fed. R. Evid. 608(b), which authorizes, “in the discretion of
the court,” cross-examination of a witness “concerning the witness’
character for truthfulness or untruthtuiness.” The Government
asserts, without contradiction by Defendant, that an attempt to
secure perjured testimony would bear upon Defendant's character
for truthfulness or untruthfulness. See United States v. Hurst, 951 F.2d
1490, 1501 (6th Cir. 1991) (upholding the cross~examination of a
defendant regarding conduct amounting to suvornation of perjury),

cert. denied, 504 U.S. 915 (1992). Although the courts have required
that there be a “good faith basis” for cross-examination under Rule
608 (b), Defendant's lack of objection at trial deprived the District
Court of any opportunity to determine whether such a basis existed,
and hence precludes any meaningful consideration of this question
by this Court. See United States v. Simonelli, 237 F.3d 19, 23 (1st Cir.),
cert. denied, 122 5. Ct. 54 (2001). Likewise, we are hindered in our
effort to determine whether the District Court abused its discretion
in permitting this line of inquiry, where Defendant never called
upon the trial court to exercise its discretion in this matter.

In any event, Defendant has failed to demonstrate that the
Government's questioning rose to the level of “plain error” that
prejudiced the fairness of his trial. The Government explored the
topic of witness tampering only briefly, and, in accordance with Rule
608(b), accepted Defendant's flat denial on its face, without seeking
to introduce extrinsic evidence that might contradict his testimony.
In order to find prejudice in this exchange between the
Government’s counsel and Defendant, we would have to conclude
that the jury necessarily credited the Government’s questions over
Defendant’s responses, and that a mere inquiry about witness
tampering, though promptly denied, was enough to affect the
outcome of the lower court proceedings. Nothing in the record
supports either of these propositions. To the contrary, given the trial
court’s instruction that “the statements and questions of the lawyers
are not evidence,” (J.A. at 46), we presume that the jury did not
draw any inappropriate conclusions from the Government's brief

inquiry on this point.

Next, to the extent that Defendant challenges his counsel's failure
to object to this line of questioning, tae Government correctly notes
that we typically decline to consider ineffective assistance of counsel
claims on direct appeal, because the record usually is not sufficiently
developed to permit proper assessment of such claims. See United
States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997). Such is clearly the
case here, where no record exists as to whether, for example, the
Government had a good faith basis for believing that Defendant
might have engaged in witness tampering. Because the resolution of
Defendant's challenge turns upon facts and considerations outside
the present record, we adhere to our usual practice, leaving
Defendant to reassert this argument if he wishes in a post-conviction

proceeding under 28 U.S.C. § 2255.

C. Any Errors in the District Court’s Application of Apprendi Were
Harmless.

Defendant's final two arguments on appeal both involve the
impact of the Supreme Court’s decision in Apprendi v. New Jersey,
530 U.S. 466, 120 5. Ct. 2348 (2000), upon his conviction and
sentence. In particular, Defendant contends that the jury instructions
bearing upon drug quantity failed to comport with Apprendi, and
that the District Court erred in sentencing him by reference to a
quantity of drugs in excess of that determined by the jury beyond a
reasonable doubt. The e issues are related, and will be addressed
together.

As noted, Apprendi was decided shortly before Defendant's trial,
and the District Court and counsel expressly addressed this ruling’s
effect upon the jury instructions and sentencing. Accordingly, we
review de novo the lower court’s resolution of the Apprendi-related
issues at trial and sentencing. See United States v. Stewart, 306 F.3d
295, 312 (6th Cir. 2002).(5) Regarding the specific matter of jury
instructions, this review entails consideration ‘~whether the charge,
taken as a whole, fairly and adequately submits the issues and
applicable law to the july.” United States v. Alvarez, 266 F.3d 587, 594
(6th Cir. 2001) (internal quotations and citations omitted), cert.
denied, 122 S. Ct. 2298 (2002).

1. Defendant's Sentence Does Not Exceed the Maximum
Authorized by the Jury Verdict Alone.

In cases like this one, involving drug trafficking offenses tried
before a jury, we have interpreted Apprendi as requiring that a
defendant be sentenced within the default range set forth at 21
U.S.C. § 841(b)(1)(C) — i.e., not more than 20 years’ imprisonment,
increased to a 30-year maximum if the defendant has a prior felony
drug conviction — unless the jury determines beyond a reasonable
doubt that the offense involved a quantity of drugs that triggers an
enhanced statutory maximum under §~ 841(b)(1)(A) or (B). See e.g.,
United States v. Lawrence, 308 F.3d 623, 634 (6th Cir. 2002); United
States v. Page, 232 F.3d 536, 543 (6th Cir. 2000).(6) In the present case,
the District Court imposed a 292-month term of imprisonment, a

sentence which exceeds the 20-year default statutory maximum for a
drug offense involving an indeterminate amount of
methamphetamine. See 21 U.S.C. § 841(b)(1)(C).

Under these circumstances, Apprendi demands that we ask
whether this sentence can be achieved solely through the findings of
the jury beyond a reasonable doubt. There is no doubt that it can.
Count One of the indictment charged that Defendant conspired to
possess with the intent to distribute “an amount in excess of 1
kilogram of a mixture and substance containing a detectable amount
of methamphetamine.” (J.A. at 24.) This one-kilogram amount
triggered an enhanced 10-years-to-life statutory sentencing range, see
21 U.S.C. § 841(b)(1)(A),(7) and Defendant’s senteace lies within this
range. Moreover, the jury was instructed to determine, in a
“separate finding,” whether the Government had “proved beyond a
reasonable doubt that 1 kilogram or more of a mixture or substance
containing a detectable amount of methamphetamine was the
amount of controlled substance that defendant conspired to possess
with intent to distribute or to distribute.” (J.A. at 62-63.) The verdict
form reflects the jury’s affirmative response to this query. (See J.A. at
44.)

Given this jury finding beyond a reasonable doubt that the Count
One conspiracy involved a drug quantity in excess of one kilogram,
Defendant’s sentence properly rests upon this portion of the verdict
alone, even without consideration of the jury’s guilty verdict as to
Count Two. Beyond this, it does not matter whether, as Defendant
argues in his fourth issue on appeal, the term of imprisonment
imposed by the District Court reflects further drug quantity findings
at sentencing by a preponderance of the evidence — specifically, 5 to
15 kilograms of methamphetamine, (see J.A. at 340) — that triggered
an enhanced Sentencing Guideline range of 292 to 365 months.
Rather, we have repeatedly held that Apprendi permits such a
procedure at sentencing, so long as the resulting sentence does not
exceed the statutory maximum established through the jury verdict
alone. See Lawrence, 308 F.3d at 634-35; Copeland, 304 F.3d at 555;
United States v. Garcia, 252 F.3d 838, 843 (6th Cir. 2001). Such is the
case here, where the findings at sentencing operated solely to
narrow the 10-years-to-life statutory sentencing range previously
triggered by the jury’s drug quantity findings. Accordingly, we
reject this aspect of Defendant’s appeal to Apprendi.

For similar reasons, we find no merit in the contention, arguably
raised in Defendant’s brief on appeal, that the District Court erred in
failing to instruct the jury to determine the precise quantities of
methamphetamine involved in the charged offenses, and instead
allowing the jury to return a verdict based on threshold amounts of
drugs — namely, “1 kilogram or more,” as to Count One, and “100
grams or more,” as to Count Two. (See J.A. at 44.) This Court has
held, albeit without discussion, that sentences based upon a jury’s
finding of “at least” a threshold drug quantity do not violate
Apprendi. See United States v. Hough, 276 F.3d 884, 890-91 (6th Cir.),
cert denied, 122 S. Ct. 1986 (2002); United States v. Alvarez, 266 F.3d
587, 598 (6th Cir. 2001), cert. denied, 122 S. Ct. 2298 (2002). We
explained in Hough that Apprendi does not require “that the precise
amount of drugs must always be submitted to the jury;” rather, it
suffices that the jury finds beyond a reasonable doubt “the minimum
amount of drugs specified in the indictment,” and that the ultimate
sentence does not exceed the statutory maximum for this amount.
Hough, 276 F.3d at 890.

Indeed, a demand for greater specificity in drug quantity
determinations would be impossible to square with our decisions
rejecting Apprendi-based challenges where the jury found only a
detectable or unspecified amount of a controlled substance, or was
not even asked to make a drug quantity finding, but where the
resulting sentence fell below the default maximum set forth at §
841(b)(1)(C). See, e.g., Copeland, 304 F.3d at 554-55; United States v.
Burns, 298 F.3d 523, 543-44 (6th Cir. 2002); Hough, 276 F.3d at 891.
These cases involve, in essence, a “zero or more” determination by
the jury, which is legally indistinguishable from the “one kilogram
or more” and “100 grams or more” findings in the present case. We
note, finally, that two of our sister Circuits and a District Court in
this Circuit have expressly held that ajury need not determine an
exact quantity of drugs in order to satisfy Apprendi, and that a less
precise finding that falls within one of the ranges specified at §~
841(b)(1)(A) or (B) is sufficient to sustain a sentence at or below the
relevant subsection’s statutory maximum. See United States v. Simms,
285 F.3d 1098, 1100 (8th Cir. 2002); United States v. Moreci, 283 F.3d
293, 297-99 (Sth Cir. 2002); United States v. Brown, 154 F. Supp.2d
1055, 1064-65 (E.D. Mich. 2001). Thus, we conclude that the “specific
quantity or more” findings made by the jury in this case did not

trigger a violation of Apprendi, where these determinations served to
fix the statutory sentencing range faced by Defendant, and no
additional findings at sentencing expanded this range in any way.

2. Any Error in the District Court’s Characterization of
Drug Quantity Had No Effect upon Defendant’s Conviction
or Sentence.

Nevertheless, two other aspects of the jury instructions in this case
warrant further discussion. First, upon determining in light of
Apprendi that the issue of drug quantity should be submitted to the
jury, the District Court instructed that drug quantity was not an
“element” of the charged offenses, but instead had to be established
“for other purposes.” (J.A. at 62, 67.) Defendant maintains that the
District Court erred in failing to designate drug quantity as an
“element.” We, however, are considerably more hesitant to
pronounce this an “error.” In any event, we readily conclude that the
District Court's handling of this matter provides no basis for
upsetting Defendant’s conviction or sentence.

Our hesitation on this point derives from the somewhat elusive
and context-driven distinction between “elements” and “sentencing
factors.” In Apprendi and subsequent decisions, thie Supreme Court
adopted a functional approach to this inquiry, at least for purposes
of Sixth Amendment analysis. Apprendi explains:

The term [“sentencing factor’] appropriately describes a
circumstance, which may be either aggravating or mitigating
in character, that supports a specific sentence within the range
authorized by the jury’s finding that the defendant is guilty
of a particular offense. On the other hand, when the term
“sentence enhancement” is used to describe an increase
beyond the maximum authorized statutory sentence, it is the
functional equivalent of an element of a greater offense than
the one covered by the jury’s guilty verdict.

Apprendi, 530 U.S. at 494 n.19, 120 S. Ct. at 2365 n.19.
The Court’s more recent decision in Harris both confirms and

clarifies this principle. There, the Supreme Court explained that
“[t]he Constitution permits legislatures to make the distinction

between elements and sentencing factors, but it imposes some
limitations as well.” Harris, 122 S. Ct. at 2410. The Court viewed
Apprendi as stating one such limitation: “Other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum,’ whether the statute calls _
it an element or a sentencing factor, ‘must be submitted to a jury,
and proved beyond a reasonable doubt.” Harris, 1225. Ct. at 2410
(quoting Apprendi, 530 U.S. at 490, 120 5. Ct. at 2362-63). Likewise, in
Ring v. Arizona, 122 S. Ct. 2428, 2441 (2002), the Court again
emphasized that any characterization of a fact as an element or a
sentencing factor must yield to the constitutional command that a
jury decide any such facts that “increas[e] punishment beyond the
maximum authorized by a guilty verdict standing alone.”

Under this standard, regardless of whether Congress
denominated drug quantity as an “element” or a “sentencing factor”
under the federal drug statutes, it is evident that the drug quantity
set forth in Count One of the indictment here was the “functional
equivalent” of an element of Defendant’s actual offense of
conviction: conspiracy to possess with intent to distribute over one
kilogram of methamphetamine. Absent a jury finding of this
quantity beyond a reasonable doubt, Defendant could have been
sentenced only within the 20-year statutory maximum for drug
conspiracy offenses involving an indeterminate amount of
methamphetamine. Because his sentence exceeds this maximum,
drug quantity was a necessary “element” of the Count One offense,
in the sense that it had to be submitted to the jury in order to sustain
an enhanced sentence.

Yet, this fact was submitted to the jury, and found to be proven
beyond a reasonable doubt. The only sense in which drug quantity
was not treated as an element in this case, then, was in the District
Court’s failure to label it as such in the jury instructions. We need
not (and do not) decide whether this was error,(8) because it is clear
that Defendant suffered no adverse consequences whatsoever as a
result of the District Court’s determination that drug quantity was
something other than an element of the charged offenses.
Notwithstanding this characterization, the District Court accorded
full “elemental” treatment to the drug quantity charged in Count
One of the indictment, in the only senses required by Apprendi and
its progeny: the jury, and not the court, was assigned the duty of

determining whether the Government had proven the relevant
quantity, and the jury was instructed that this determination must
be made beyond a reasonable doubt.(9) We have searched in vain,
then, for any constitutional infirmity in the District Court’s
statement to the jury that drug quantity was not an element of the
crimes charged in the indictment. Rather, we conclude that the jury
instructions, “taken as a whole, fairly and adequately submit [ted]
the issues and applicable law to the jury,” Alvarez, 266 F.3d at 594,
and this is all that is required under our precedents.

3. The District Court Erred in Altering the Drug Quantity
Set Forth in Count Two of the, Indictment, But This Error
Was Harmless.

The District Court’s instructions on the Count Two offense,
however, add another wrinkle to our inquiry. Having determined
that the drug quantities set forth in the indictment were not elements
of the charged offenses, the District Court apparently believed itself
free to alter these quantities in its instructions to the jury, so long as
these adjustments did not affect the statutory sentencing ranges
faced by Defendant. In particular, the trial court reasoned that the
jury’s findings should be calibrated to the drug-quantity ranges set
forth in §~ 841(b)(1)(A) and (B), rather than the amounts stated in the
indictment. As to Count One, this course of action made no
difference — the threshold quantity ofmethamphetamine necessary
to trigger the § 841(b)(1)(A) 10-years-to-life sentencing range
happened to be one kilogram (as of 1998; it is now 500 grams), the
same amount actually set forth in the indictment. The same cannot
be said, however, for Count Two — the indictment stated that this
attempt offense involved “approximately 1 pound” of
methamphetamine, (J.A. at 25), or roughly 440 grams, but the jury
was instructed to determine whether the offense involved “100
grams or more” of methamphetamine, (J.A. at 67), as this was (as of
1998) the lower bound of the quantity range found at § 841(b)(1)(B).

In contrast to the District Court’s element/ sentencing factor
determination, this modification of the Count Two quantity is more
readily characterized as erroneous. There is no apparent source from
which a District Court could derive the authority to, in essence,
“reverse engineer” jury instructions tailored to the statutory drug-
quantity ranges, even where the indictment itself fails to mirror

7

these ranges. Certainly, Apprendi would be a poor place to look for
any such authority. While that decision and its progeny might be
read as imposing additional requirements upon the Government as
to matters which must be set forth in an indictment, see United States
v. Cotton, 122 S. Ct. 1781, 1785 (2002) (noting the Government's
concession in that case that “the indictment’s failure to allege a fact,
drug quantity, that increased the statutory maximum sentence
rendered [the defendants’] enhanced sentences erroneous under the
reasoning of Apprendi”), Apprendi surely does not relieve the
Government of its fundamental, pre-existing obligation to prove the
material allegations actually contained in the indictment.

It remains only to characterize this error and determine its
consequences. The first of these questions leads us right back to the
element/ sentencing factor quandary, because the modification of an
element of an offense is problematic under our precedents. We
recently explained:

The Fifth Amendment guarantees that an accused be tried
only on those offenses presented in an indictment and
returned by a grand jury. The constitutional rights of an
accused are violated when a -
modification at trial acts to broaden the charge contained in
an indictment. A variance [to the indictment] occurs when the
charging terms [of the indictment] are unchanged, but the
evidence at trial proves facts materially different from those
alleged in the indictment. In contrast, an amendment involves
a change, whether literal or in effect, in the terms of the
indictment. This Circuit has held that a variance rises to the
level of a constructive amendment when the terms of an
indictment are in effect altered by the presentation of
evidence and jury instructions which so modify essential
elements of the offense charged that there is a substantial
likelihood that the defendant may have been convicted of an
offense other than that charged in the indictment.

United States v. Chilingirian, 280 F.3d 704, 711-12 (6th Cir. 2002)
(internal quotations and citations omitted). _

Once again, we find it unnecessary to decide precisely where the
District Court’s modification of the Count Two drug quantity might

fall on this continuum, because it makes no difference to the
outcome here. First, while we have recognized that drug quantity
was the “functional equivalent” of an element of Count One in light
of its sentencing consequences, the same cannot be said for Count
Two. Rather, the jury’s determination of the amount of drugs
involved in the Count Two offense had no impact whatsoever upon
Defendant’s sentence, because his 292-month term of imprisonment
rests solely upon the Count One conspiracy conviction, including
that count’s drug quantity as charged in the indictment, determined
by the jury beyond a reasonable doubt, and further refined by the
District Count in its application of the Sentencing Guidelines. Under
these circumstances, Apprendi and its progeny do not require that
drug quantity be treated as an element of the Count Two offense.
See, e.g., Cotton, 122 S. Ct. at 1785 (characterizing the error in that
case as “the indictment’s failure to allege a fact, drug quantity, that
increased the statutory maximum sentence”); United States v.
Martinez, 253 F.3d 251, 256 n.6 (6th Cir. 2001) (“Apprendi only
requires those sentencing factors that increase the penalty beyond the
statutory maximum to be submitted for proof beyond a reasonable
doubt.”); Strayhorn, 250 F.3d at 468 (indicating that drug quantity
must be treated as an element of a § 841 offense, as opposed to a
sentencing factor, only where “it subjects the defendant to an
enhanced sentence”).

Viewed in this way, the District Court’s reduction in drug
quantity in its Count Two jury instructions amounted to a mere
variance from the indictment. In an analogous case involving a
firearm offense, we held that the distinction between a .357
Magnum, as specified in the indictment, and a shotgun, as
established through the evidence at trial, constituted “a variance, not
a constructive amendment, because the specific type of firearm . . . is
not an essential element of the crime.” United States v. Robison, 904
F.2d 365, 369 (6th Cir.), cert. denied, 498 U.S. 946 (1990). To obtain
relief, Defendant would have to establish that this variance affected
his “substantial rights.” See Chilingirian, 280 F.3d at 712; Robison, 904
F.2d at 369. He cannot make such a showing here, given the lack of
any impact upon his sentence. See, e.g., Burns, 298 F.3d at 545; United
States v. Stafford, 258 F.3d 465, 478-79 (6th Cir. 2001), cert. denied, 122
5. Ct. 1581 (2002).

Even if the drug quantities in Counts One and Two alike were

entitled to treatment as the “functional equivalent” of elements, we
still would find no basis for overturning Defendant’s conviction or
sentence. This conclusion is dictated by our decisions upholding
drug trafficking convictions and sentences despite a District Court’s
outright failure to instruct the jury as to drug quantities. In Burns,
for example, the indictment listed the quantities allegedly involved
in the various charged drug offenses, but the trial court did not
instruct the jury to determine these amounts beyond a ? 2asonable
doubt, and instead made these findings at sentencing by a
preponderance of the evidence. See Burns, 298 F.3d at 531, 543. We
reviewed the defendants’ Apprendi challenges under a “harmless
error’ standard, and concluded that they were not entitled to relief.
298 F.3d at 544-45. Similarly, in Stewart, we applied harmless-error
analysis to an Apprendi-based claim that drug quantities were neither
specified in the indictment nor submitted for the jury’s
determination, and again found that the defendants were not
entitled to relief under this standard. See Stewart, 306 F.3d at 318-23, .
332-35.

Consequently, if the District Court here had altogether removed
any reference to drug quantities from its jury instructions, or if the
indictment itself had failed to specify such quantities, we would
have asked whether this error was harmless and, if so, would have
affirmed Defendant’s conviction and sentence. It necessarily follows
that this same standard governs the analogous but arguably less
severe “reduction-in-quantity” error actually committed by the court
below — this error can hardly be deemed more “structural” or less
amenable to harmless-error review than if the District Court had
simply ignored Apprendi and applied this Circuit’s then-existing rule
that drug quantities need not be submitted to the jury. See Stewart,
306 F.3d at 321-23. Under this standard, an error is deemed harmless
only if “it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Neder v.
United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 1837 (1999); see also
Stewart, 306 F.3d at 323.

We readily conclude that the District Court’s change from one
pound to 100 grams in its Count Two jury instructions played no
role whatsoever in the jury’s guilty verdict on this count. The
testimony at trial was wholly uniform and consistent as to the
amount of methamphetamine purportedly supplied by Defendant

during the April 7, 1999 transaction that formed the basis for the
Count Two offense. In particular, Cranford and Rook both testified
that they received about a pound of methamphetamine from
Defendant, and no evidence at trial contradicted this testimony as to
drug quantity. Similarly, at sentencing, Defendant challenged the
presentence report’s assertion that the Count One conspiracy
involved 5 to 15 kilograms of methamphetamine, and he more
generally continued to deny that he had engaged in any drug
trafficking offenses, but he offered nothing to suggest that the
offense charged in Count Two might have involved a quantity of
drugs different from the one pound charged in the indictment.

Under this record, then, the jury might have credited Defendant’s
testimony proclaiming his innocence, or it might instead have
accepted — and evidently did accept — the accounts offered by
Cranford and Rook. No reasonable juror, however, could have found
Defendant guilty of an attempt to possess with intent to distribute
something less than one pound of methamphetamine. Stated
differently, ajury could not reasonably have voted to acquit as to the
one-pound attempt offense charged in the indictment, yet still
elected to convict as to the 100-gram offense stated in the jury
instructions. Accordingly, the District Court’s modification of the
Count Two drug quantity cannot be viewed as amending the
indictment, because it raises no concern, under the facts of this case,
that Defendant might have been convicted of an offense different
from the one charged in the indictment. See Chilingirian, 280 F.3d at
712; United States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989), cert
denied, 495 U.S. 918 (1990). Rather, the District Court’s error was
harmless, and does not warrant reversal of Defendant’s Count Two
conviction or his overall sentence.

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the conviction and
sentence of Defendant Bobby Marshall Zidell.

CONCURRENCE

KAREN NELSON MOORE, Circuit Judge, concurring. I concur in
the result and the reasoning of all parts of the lead opinion other
than Part III.C2. As to Part III-C.2., I concur in the result and in the
reasoning to the extent that it relies on the doctrine of harmless error
to uphold the defendant's conviction and sentence. Indeed, that
section of the opinion simply holds that if there were error, “[i]t is
clear that Defendant suffered no adverse consequence whatsoever as
a result of the District Court’s determination that drug quantity was
something other than an element of the charged offenses.” (Lead Po.
33-34) I refrain from joining in the remaining discussion within Part
IlI.C.2. because it is unnecessary to the result reached, and because I
do not share the lead opinion’s musings regarding whether drug
quantity is an element of the defense.

ee ee ee

*The Honorable Gerald E. Rosen, United States District Judge for
the Eastern District of Michigan, sitting by designation.

1 These 100-gram and 1-kilogram cutoff amounts are derived
from the statute as it read in early 1998, at the time of the
commencement of the drug conspiracy charged in Count One of the
indictment. The statute was amended in October of 1998 to lower
these cutoff amounts to 50 grams and 500 grams, respectively. See 21
U.S.C. §§ 841(b)(1)(A) (viii), 841(b)(1)(B) (viii).

2 The Court also expressed surprise that the Government would -
propose to charge the jury as to the specific drug quantities set forth
in the indictment, as “that means if you’ve not proved the quantity
that you set out to prove, you don’t have a conviction.” (J.A. at 281.)

3 This statute was expressly cited in Count Two of the indictment.

4 Counsel did object, however, to a subsequent question in which
the Government apparently was about to inquire why Defendant
had not called Ms. Ghaemi as a witness. (See J.A. at 273.) The District
Court expressed some skepticism about this objection, both because
the Government had not yet commented on the failure to call this
witness, but had only “asked half a question,” and because, in the
Court’s view, the Government had the “right to argue about the
quality of th{e] proof” put forward by Defendant. (J.A. at 273-74.)
The District Court was not called upon to resolve this issue,
however, since the Government agreed to abandon this line of

inquiry.

It is not clear from his brief on appeal whether Defendant means
to challenge the trial court’s handling of this matter. Any such
challenge would lack merit, however, in light of defense counsel’s
prompt objection before the Government could even finish its
question, and in light of the Government’s agreement not to proceed
with this inquiry.

5 It is true, as the Government points out, that defense counsel
was somewhat vague in objecting to the District Court’s proposed
treatment of the Apprendi decision. At the close of proofs, defense
counsel professed that “I’m still unclear as to [Apprendi 's] impact,
and perhaps I’m unclear as to its meaning,” and then “object[ed]
generally to the court’s proposed instruction,” without identifying
any specific defects. (J.A. at 283.) Nevertheless, the issue undeniably
was raised during the trial proceedings — and, of course, defense
counsel is hardly to be faulted for some degree of uncertainty as to
the meaning of Apprendi. Cf Apprendi, 530 US. at 540, 120 S. Ct. at
2389 (O’Connor, J., dissenting) (opining that “there appear to be
several plausible interpretations of the constitutional principle on
which the Court’s decision rests”). In any event, Defendant again
raised the issue at sentencing, (see J.A. at 328-29), thereby providing
a separate basis for our de novo review. See United States v. Copeland,
304 F.3d 533, 554-555 (6th Cir. 2002).

6 Until recently, this Court had read Apprendi as applying to
statutory minimum as well as maximum sentences, so that a
defendant could not be sentenced to a mandatory minimum term of
imprisonment, even one which was at or below a permissible

statutory maximum, if this sentence was triggered by the trial
court’s drug quantity findings by a preponderance of the evidence.
See, e.g., United States v. Humphrey, 287 F.3d 422, 447 (6th Cir. 2002);
United States v. Strayhorn, 250 F.3d 462, 469-70 (6th Cir. 2001). We
have since concluded, however, that this more expansive reading of
Apprendi did not survive the Supreme Court’s recent ruling in Harris
v. United States, 122 S. Ct. 2406 (2002). See, e.g., United States v.
Leachman, 309 F.3d 377, 383 (6th Cir. 2002); Lawrence, 308 F.3d at 635;
Copeland, 304 F.3d at 553.

7 Currently, amounts in excess of 500 grams trigger the statutory
maximum of life imprisonment under § 841(b)(1)(A). However, the
District Court used the one-kilogram amount set forth in the statute
prior to October of 1998, and the Government does not contest this
ruling.

8 My own view is that it was not. Harris, after all, acknowledges
the legislature’s prerogative to assign the labels of “element” and
“sentencing factor,” while reserving to the judiciary the
determination whether a fact designated a “sentencing factor” by the
legislature nonetheless must be treated as an “element” for Sixth
Amendment purposes. See Harris, 122 5. Ct. at 2410, 24 17-19. Thus,
it is first and foremost a matter of statutory construction to ascertain
whether Congress made drug quantity an element or a sentencing
factor under 21 U.S.C. § 841. Upon undertaking this analysis, we
have held that § 84 1(b) “sets forth penalty provisions only and not
separate ‘lesser included’ offenses.” United States v. Moreno, 899 F.2d
465, 473 (6th Cir. 1990). The District Court properly could have relied
on this precedent in instructing the jury that drug quantity was not
an element of the charged offenses.

I do not read Apprendi as having any impact upon this issue of
statutory interpretation. Rather, as Harris explains, Apprendi
recognizes only a specific constitutional check upon the legislature’s
power to designate facts as sentencing factors rather than elements —
the legislative prerogative is overridden where the fact in question
“increases the penalty for a crime beyond the prescribed statutory
maximum.” Harris, 122 5. Ct. at 2410 (quoting Apprendi, 530 U.S. at
490, 120 5. Ct. at 2362-63). In this event, a sentencing factor must be
treated like an element — that is, submitted to the jury for
determination beyond a reasonable doubt. This, of course, is

precisely what the District Court did here.

Indeed, I view our own post-Apprendi decisions as recognizing
this point, albeit only implicitly. On one occasion, for example, we
stated that the three subsections of 21 U.S.C. § 841(b)(1) set forth
“three different crimes, with three differing elements (weight of
drugs).” United States v. Flowal, 234 F.3d 932, 938 (6th Cir. 2000),
overruled on other grounds by Leachman, 309 F.3d at 383. Yet, in that
same case, we indicated our approval of the practice employed by
the lower court here — namely, instructing the jury to “make a
special finding as to the weight of the drugs.” Flowal, 234 F.3d at 937
n.3. Flowal arguably used the term “element,” then, as descriptive of
the proper treatment of drug quantity — that is, it must be ,
submitted to the jury in order to trigger an elevated statutory
maximum under § 841(b)(1).

I emphasize that this is merely my own view on this subject, and
that my colleagues on the panel do not join in it. Accordingly, we do
not decide whether drug quantity is an “element” of the offenses
charged in the indictment, but ask only whether the District Court
sufficiently treated drug quantity as the “functional equivalent” of
an element of the Count One conspiracy offense to warrant the use
of this fact in sentencing Defendant beyond the default 20-year
statutory maximum.

9 Moreover, to the extent that Apprendi, Harris, or other Supreme
Court or Sixth Circuit precedent might require it, we note that the
indictment in this case specified the amounts of drugs allegedly
involved in the charged offenses.

APPENDIX-2

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
MEMPHIS DIVISION FLED 6Y Av — 06.

OODEC IS PM 3:38

UNITED STATES OF AMERICA ,
ROBERT R. DI TROLIO
US. DIST: CT.
WD. OF TN, MEMPHIS
-v- 99-20231-001-G
BOBBY MARSHALL ZIDELL

April R. Ferguson, FPD
Defense Attorney

JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)

The defendant was found guilty on Counts 1 and 2 of the
Superseding Indictment on July 27, 2000 after trial by jury.
Accordingly, the defendant is adjudged guilty of such count(s)
which involves the following offense(s):

TITLE/SECTION NATURE OF DATE OFFENSE COUNT

NUMBER OFFENSE CONCLUDED
21 U.S.C. § 846 Conspiracy to April 8, 1999 1
- Possess with
intent to Distribute
Methamphetamine.
21 U.S.C. § 846 Possession with April 8, 1999 2

and 18 U.S.C.§2 Intent to
Distribute

Methamphetamine.

The defendant is sentenced as provided in the following pages of
this judgment. The sentence is imposed pursuant to the-
Sentencing Reform Act of 1984 and the Mandatory Victims
Restitution Act of 1996.

IT IS FURTHER ORDERED that the defendant shall notify the
United States attorney for this district within 30 days of any
change of name, residence, or mailing address until all fines,
restitution, costs and special assessments imposed by this
judgment are fully paid.

Defendant’s Soc. Sec. No. 450-72-1597 Date of Imposition of

; Sentence:
Defendant’s Date of Birth: 10/07/1949 December 8, 2000
Deft’s U.S. Marshal No.: 16228-076

Defendant’s Mailing Address:
15642 Kingscrest Cr.
Dallas, TX 75248

“* JULIA S. GIBBONS —
CHIEF UNITED STATES DISTRICT JUDGE

Re December _/F# 2000

IMPRISONMENT

The defendant is hereby committed to the custody of the
United States Bureau of Prisons to be imprisoned for a term of
292 Months.

The Court recommends to the Bureau of Prisons:

A facility close to home and family as possible.

The defendant is remanded to the custody of the United
States Marshal.

RETURN

I have executed this judgment as follows:

Defendant delivered on to
at

with a certified copy of this judgement.

UNITED STATES MARSHAL

Deputy U.S. Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be
on supervised release for a term of 5 years.

The defendant shall report to the probation office in the
district to which the defendant is released within 72 hours of
release from custody of the Bureau of Prisons.

While on supervised release, the defendant shall not
commit another federal, state or local crime and shall not possess
a firearm, ammunition, or destructive device as defined in 18
U.S.C.§ 921. |

The defendant shall refrain from any unlawful use of a
controlled substance. The defendant shall submit to one drug test
within 15 days of release from imprisonment and at least two
periodic drug tests thereafter, as directed by the probation
officer.

The defendant shall comply with the following standard
conditions that have been adopted by this court.

STANDARD CONDITIONS OF SUPERVISION

1. the defendant shall not leave the judicial district without
the permission of the court or probation officer;

2. the defendant shall report to the probation officer as
directed by the court or probation officer and shall submit
a truthful and complete written report within the first five
days of each month;

3. the defendant shall answer truthfully all inquiries by the
probation officer and follow the instructions of the
probation officer;

4. the defendant shall support his or her dependents and
meet other family responsibilities;

10.

11.

12.

13.

the defendant shall work regularly at a lawful occupation
unless excused by the probation officer for schooling,
training, or other acceptable reasons;

the defendant shall notify the probation officer ten (10)
days prior to any change in residence or employment;

the defendant shall refrain from the excessive use of
alcohol and shall not purchase, possess, use, distribute, or
administer any narcotic or other controlled substance, or
any paraphernalia related to such substances, except as
prescribed by a physician, and shall submit to periodic
urinalysis tests as directed by the probation officer to
determine the use of any controlled substance;

the defendant shall not frequent places where controlled
substances are illegally sold, used, distributed, or
administered;

the defendant shall not associate with any persons
engaged in criminal activity, and shall not associate with
any person convicted of a felony unless granted
permission to do so by the probation officer;

the defendant shall permit a probation officer to visit him
or her at any time at home or elsewhere and shall permit
confiscation of any contraband neereet | in plain view by
the probation officer;

the defendant shall notify the probation officer within 72
hours of being arrested or questioned by a law
enforcement officer;

the defendant shall not enter into any agreement to act as
an informer or a special agent of a law enforcement
agency without the permission of the court;

as directed by the probation officer, the defendant shall
notify third parties of risks that may be occasioned by the
defendant’s criminal record or personal history or

characteristics, and shall permit the probation officer to
make such notifications and to confirm the defendant’s
compliance with such notification requirement.

14. __ if this judgment imposes a fine or a restitution obligation,
it shall be a condition of supervised release that the
defendant pay any such fine or restitution in accordance
with the Schedule of Payments set forth in the Criminal
Monetary Penalties sheet of this judgment.

ADDITIONAL CONDITIONS OF SUPERVISED RELEASE

The defendant shall also comply with the following
additional conditions of supervised release:

1. The defendant shall participate in substance abuse
treatment/testing as deemed necessary by the probation office.

2. The defendant shall make full financial disclosure as
directed by the probation office.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal
monetary penalties in accordance with the schedule of payments
set forth in the Schedule of Payments. The defendant shall pay
interest on any fine or restitution of more than $2,500, unless the
fine or restitution is paid in full before the fifteenth day after the
date of judgment, pursuant to 18 U.S.C. § 3612(f). All of the
payment options in the Schedule of Payments may be subject to
penalties for default and delinquency pursuant to 18 U.S.C. § 361

2(g).

Total Assessment Total Fine Total Restitution
$200.00

The Special Assessment shall be due immediately.

DENIAL OF FEDERAL BENEFITS

IT IS ORDERED that the defendant is subject to Federal
Benefits Denial for a period of 10 years.

APPENDIX-3

UNITED STATES DISTRICT COURT

FOR THE __WESTERN___ DISTRICT OF TENNESSEE

UNITED STATES OF AMERICA

RENN

Docket Number 99-20231-G

HONORABLE JULIA S. GIBBONS
(District Court Judge)

BOBBY MARSHALL ZIDELL

NOTICE OF APPEAL

Notice is hereby given that__ BOBBY ZIDELL appeals

to the United States Court of Appeals for the Sixth Circuit from the
(XX) Judgment (__) Order (__) Other (Specify)

entered in this action on

(Date)

APRIL R. FERGUSON
(Counsel for Appellant)

Address

200 RSON AVENUE, STE 200
MEMPHIS, TN 38103

Phone: 901-544-3895

Date 12-12-00

APPENDIX-4

AMENDMENT VI-JURY TRIAL FOR CRIMES,
AND
PROCEDURAL RIGHTS

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 ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his Favor, and to have the Assistance of Counsel for his
defence.

APPENDIX-5

Section 2, Clause 3. Criminal Trial by Jury

The Trial of all Crimes, except in Cases of impeachment, shall be
by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when nor committed within
any State, the Trial shall be at such Place or Places as the Congress
may by Law have directed.

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APPENDIX-6

Rule 18. Place of Prosecution and Trial

Except as otherwise permitted by statute or by these rules, the
prosecution shall le had in a district in which the offense was
committed. The court shall fix the place of trial within the district
with due regard to the convenience of the defendant and the
witnesses and the prompt administration of justice. (As amended
Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug. 1, 1979)

APPENDIX-7

No. _99-20231-TU
a

UNITED STATES DISTRICT COURT

WESTERN District of Tennessee

WESTERN Division

THE UNITED STATES OF AMERICA

Vs.

_BOBBY MARSHALL ZIDELL
BOBBY SMITH, and
KEVIN CRANFORD

SS

INDICTMENT

2 COUNT SUPERSEDING INDICTMENT

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION
UNITED STATES OF AMERICA, _)
SUPERSEDING INDICTMENT
)
Plaintiff, ) CR. NO. _99-20231-TU
)
vs. ) 210U.S.C. § 846
) 18U.S.C.§2
BOBBY MARSHALL ZIDELL, )
BOBBY SMITH, and )
KEVIN CRANFORD, )
)
Defendants. )
INDICTMENT
THE GRAND JURY CHARGES:
COUNT ONE

Beginning on a date unknown to the grand jury, but at least
during the period from on or about March, 1998 and continuing up
to and including April 8, 1999, in the Western District of Tennessee,
and elsewhere, the defendants,

BOBBY MARSHALL ZIDELL
BOBBY SMITH
and
KEVIN CRANFORD

did unlawfully, knowingly and intentionally combine, conspire,
confederate and agree with each other, and with persons both
known and unknown to the grand jury, including but not limited to:
Robert Rook and Robert O’Neal, to unlawfully, knowingly and

>

intentionally possess with the intent to distribute; to cause the
Possession with intent to distribute and distribute an amount in
excess of 1 kilogram of a mixture and substance containing a
detectable amount of methamphetamine, a controlled substances as
classified by Title 21, U.S.C. § 812 and Title 21 Code of Federal
Regulations, § 1308.12 as a Schedule II controlled substance in
violation of Title 21 U.S.C. § 846.

COUNT TWO
From on or about April 1, 1999 until on or about April 8, 1999
in Western District of Tennessee, and elsewhere, the defendants,

BOBBY MARSHALL ZIDELL
and
KEVIN CRANFORD

each being aided and abetted by the other and Robert Rook, did
attempt to possess with the intent to distribute and attempt to cause

the possession with intent to distribute approximately 1 pound of a
mixture or substance containing a detectable amount of
methamphetamine, a controlled substance as classified by Title 21,
United States Code, § 812, Title 21, Code of Federal Regulations, §
1308.12 as Schedule II controlled substance, in violation of Title 21,
United States Code, § 846 and Title 18, United States Code, § 2.

A TRUE BILL:

“s/ BS
4

FOREMAN

DATED: | A/%e2

rae

ITED STATES ATTORNEY

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1727%3A2. Public record. Not legal advice.