CASTER BROWN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6859 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. 39) is not reported, but is noted at 918 F.2d 182 (Table), sub nom. United States v. McKnight. JURISDICTION The judgment of the court of appeals was entered on October 17, 1990. Pet. App. 39. The petition for a writ of certiorari was filed on January 14, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court erred in declining to require the jury to return a special verdict on the quantity of cocaine involved in petitioner's offenses. 2. Whether the district court erred in attributing to petitioner for purposes of sentencing the entire 20 kilograms of cocaine that he negotiated to purchase from an undercover DEA agent. 3. Whether there was a prejudicial variance between the allegations of the indictment and the proof at trial, and whether the district court abused its discretion in refusing to grant a petitioner a separate trial. STATEMENT After a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted on one count of distributing cocaine (21 U.S.C. 841(a)(1) and 18 U.S.C. 2) and one count of conspiring to possess cocaine with intent to distribute it (21 U.S.C. 846). He was sentenced to 170 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed by judgment order. Pet. App. 39. 1. The evidence at trial showed that in 1988 petitioner conspired with co-defendants James Carl Manning, Jr., Charles Lee McKnight, Wendell Levere Floyd, Eldon Cain, and Gary Washington to purchase cocaine and marijuana, but the scheme was frustrated when the purported sellers of the drugs turned out to be undercover federal agents. Several of petitioner's co-defendants negotiated with and sold cocaine to the agents on a number of occasions. Pet. 6. On September 9, 1988, petitioner and co-defendant Manning delivered two kilograms of cocaine to Agent Lopez. Pet. 7-8. On October 19, petitioner met with Agent Lopez and said he wanted to purchase 20 kilograms of cocaine. He and Lopez apparently agreed that petitioner would purchase 20 kilograms in allotments of five kilograms each. Pet. 8, Gov't C.A. Brief 8. 2. At trial petitioner asked the trial court to have the jury return a special verdict on the specific quantity of cocaine involved in his offenses, but the trial court refused. The trial court also rejected petitioner's motion for a judgment of acquittal. At sentencing, the court found that petitioner's offense involved 24 kilograms of cocaine. The applicable Guideline range called for imprisonment for between 151 and 188 months; the court sentenced petitioner to 170 months' imprisonment. /1/ Gov't C.A. Br. 53. Petitioner renewed those claims on appeal, but the court of appeals affirmed by judgment order only. Pet. App. 39. ARGUMENT 1. Petitioner first contends that the district court should have required the jury to return a special verdict on the amount of cocaine involved in his crimes. Pet. 12-25. This claim reflects a misunderstanding of the allocation of decisionmaking authority in a criminal trial between the judge and the jury. The Due Process Clause requires that the government prove all elements of a criminal offense beyond a reasonable doubt. E.g., McMillan v. Pennsylvania, 477 U.S. 78, 85 (1986). Because the Sixth Amendment guarantees a right of trial by jury in criminal cases, these determinations are made by a jury if the defendant makes a proper request. By contrast, facts that are not elements of a criminal offense, but are relevant only to sentencing, need not be proved beyond a reasonable doubt, see id. at 91-92, and thus need not be put to the jury, but may be left to the sentencing judge. /2/ E.g., United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990) (per curiam); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989); United States v. Wood, 834 F.2d 1382, 1389-1390 (8th Cir. 1987). Applying these rules to the case at hand, there can be no doubt that the trial court correctly declined to require the jury to find the specific amount of cocaine involved in petitioner's offense. 21 U.S.C. 841(a) criminalizes possession of controlled substances with intent to distribute them. 21 U.S.C. 846 criminalizes conspiracy to violate Section 841(a) (among other things). Section 841(b) goes on to provide a schedule of mandatory minimum sentences for cases in which the defendant possesses specified quantities of the drugs in question. Faced with this scheme, many defendants in drug cases have contended that the description of minimum amounts set forth in Section 841(b) as triggering mandatory minimum sentences creates a new element of the crime that must be proved beyond a reasonable doubt and determined by the jury (or other factfinder). But every circuit court that has decided the question has concluded that the quantity of a particular drug is not an element of an offense under these sections, and thus that no special jury finding is required on this point. E.g., United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.), cert. denied, 111 S. Ct. 363 (1990); United States v. Delario, 912 F.2d 766, 769 (5th Cir. 1990) (per curiam); United States v. Todd, 920 F.2d 399, 407-408 (6th Cir. 1990); United States v. Paiz, 905 F.2d 1014, 1032-1033 (7th Cir. 1990); United States v. Wood, 834 F.2d 1382, 1388-1390 (8th Cir. 1987); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989); United States v. Mieres-Borges, 919 F.2d 652, 661 (11th Cir. 1990). Petitioner's case is particularly weak, because he does not claim that his offense involved a quantity of cocaine insufficient to trigger the mandatory minimum sentence. Thus, unlike the defendants in the cases above, petitioner cannot even point to a statutory provision as the basis for the special verdict he sought; he can rely only on the provisions of the Sentencing Guidelines (in particular, Section 2D1.1) that make his sentence depend on the quantity of cocaine involved in his offense. It is universally established that possession of the triggering amounts set forth in Section 841(b) is not an element of the offense that must be put to the factfinder; a fortiori proof of the amounts set forth in the Sentencing Guidelines cannot be an element of the offense. Rather, those amounts are relevant only to sentencing considerations, and thus may be found by the sentencer by a preponderance of the evidence. None of the cases cited by petitioner undermines this analysis. The bulk of his presentation discusses cases in which appellate courts held that it was permissible to include special issues in the jury charge. He cites only three cases in which he contends appellate courts have overturned sentences because of the failure of a trial judge to submit special issues to the jury. The only one of these that provides any support for his argument is United States v. Owens, 904 F.2d 411, 414-415 (8th Cir. 1990). /3/ In that case, there was conflicting evidence at trial as to whether the drug in question was amphetamine or methamphetamine. The trial judge did not submit a special issue, but concluded that the drug in question was methamphetamine; under the Sentencing Guidelines, this materially increased the defendant's sentence. The court of appeals reversed, concluding that the defendant was entitled to a special verdict on the question of which drug was involved, "(b)ecause the establishment of (the defendant's) base offense level required a determination of which drug the conspiracy involved, and because the Sentencing Guidelines provide disparate sentencing ranges for (the two drugs in question)." Id. at 415. We believe this analysis is incorrect. All of the cases on which the Eighth Circuit relied -- United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir.), cert. denied, 469 U.S. 845 (1984); United States v. Dennis, 786 F.2d 1029, 1038 (11th Cir. 1986), cert. denied, 481 U.S. 1037 (1987); and Newman v. United States, 817 F.2d 635, 637 (10th Cir. 1987) -- involved situations in which an ambiguous verdict resulted in a possibility that the trial court imposed a sentence for a crime of which the jury had not found the defendant guilty. These cases provide no support for the Eighth Circuit's unprecedented conclusion that jury findings are required for every consideration that is relevant to establishment of the base offense level under the Sentencing Guidelines. Application of the analysis of Owens to the facts of this case arguably would cast doubt on the correctness of the procedure followed in the trial court here. Like the trial judge in Owens, the trial judge here refused to submit a special issue on a question that determined the base offense level and affected the sentencing range. But, notwithstanding Owens, the Eighth Circuit, like every other circuit that has addressed the question, has concluded that special jury verdicts are not necessary to establish the quantity of the controlled substance in cases under Sections 841(a) or 846. See United States v. Wood, 834 F.2d 1382, 1388-1390 (8th Cir. 1987). Accordingly, it seems unlikely that the Eighth Circuit would have applied the analysis of Owens in this case to reach a result different from that reached by the courts below. /4/ If there is tension between the analysis in Owens and the result in Wood, that is an intra-circuit problem that can be left to the Eighth Circuit. 2. Petitioner's second claim is that the trial court erred in determining that his crime involved twenty or more kilograms of cocaine. /5/ This is a factual matter with little conceivable relevance beyond the facts of this case. Moreover, despite petitioner's present claims to the contrary, there was evidence that justified the district judge's conclusion that petitioner's offenses involved 20 kilograms of cocaine; indeed, DEA Agent Lopez had agreed to sell petitioner 20 kilograms of cocaine. Gov't C.A. Brief 8; cf. Pet. 8. Petitioner's main argument on this point (Pet. 26-30) is that he did not have the financial wherewithal to purchase this much cocaine, and that the trial judge thus should not have considered most of the proposed 20-kilogram purchase. This argument is not persuasive. First, the Guidelines commentary on which petitioner relies provides for reduction when the court finds that the defendant would not be able to produce the drug, not when the defendant would not be able to raise funds to buy the drug. See Application Note 1 to Sentencing Guideline Section 2D1.4. Moreover, in light of the undisputed testimony that petitioner offered the agent $49,000 of specified property -- a substantial part of the price for the first installment -- the trial judge reasonably could have believed that petitioner could have made the purchase. In any event, petitioner's fact-specific claim presents no legal issue warranting this Court's review. 3. Finally, petitioner asserts two claims regarding the trial court's denial of his motion for acquittal and his request to be tried separately from his co-defendants. Pet. 31-36. Petitioner does not dispute the settled rules applicable to these routine motions, but instead argues that the rules were applied incorrectly in his case. Such claims do not warrant further review by this Court. The conspiracy count on which petitioner was convicted refers to a conspiracy, by eight named individuals, during a specified time period, to possess cocaine and marijuana with the intent to distribute them. See Indictment, Count Two. The proof at trial clearly established that petitioner conspired to commit these crimes, during the relevant time period, with two of these individuals (Manning and Washington). Also, the specific overt actions proved at trial were among the specific acts alleged in the indictment. Thus petitioner could not have been surprised by the proof at trial, and he does not suggest that the indictment was inadequate to protect him against subsequent prosecutions. See United States v. Miller, 471 U.S. 130, 134-135 (1985). There is similarly no basis for a claim that petitioner was charged with a crime beyond the scope of the indictment. See id. at 138-140 (discussing Stirone v. United States, 361 U.S. 212 (1960)). Petitioner contends only that the individuals described in the indictment were involved in two separate conspiracies, and that his involvement was limited to one of these, which thus had a smaller scope than the conspiracy described in the indictment. In substance, this case is like the conviction upheld in Miller, where the proof at trial supported a "narrower and more limited, though included . . . scheme," 471 U.S. at 131. See also Berger v. United States, 295 U.S. 78 (1935) (upholding a conviction where the proof at trial established two separate conspiracies rather than a single conspiracy). This case is a far cry from Kotteakos v. United States, 328 U.S. 750 (1946), in which the Court reversed a conviction where the proof at trial showed not the single conspiracy alleged in the indictment but at least eight separate conspiracies with little commonality of motive. In any event, further review of the point would involve only application of the Court's settled principles to this particular situation. /6/ Because petitioner has made no substantial showing that the court of appeals misapprehended those principles, the question does not warrant this Court's review. Finally, petitioner contends that the trial court erred by refusing to sever his trial from that of Arthur Johnson, largely because of the obnoxious behavior of Johnson's lawyer. Pet. 34-36. Again, this presents no legal issue meriting this Court's consideration. The case meets the standard for joinder described in Fed. R. Crim. P. 8(b): all of the defendants were "charged in the same indictment" and "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Id. Moreover, in light of the jury's acquittal of Johnson, petitioner's claims as to the behavior of Johnson's counsel are particularly unpersuasive. Because the behavior did not prejudice Johnson (who was acquitted), it is unlikely that it materially prejudiced petitioner. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General LOUIS M. FISCHER Attorney APRIL 1991 /1/ The presentence investigation recommended that the court find that petitioner's offenses involved 22 kilograms of cocaine. Though the trial court found that 24 kilograms were involved, the two-kilogram difference did not result in an increase in petitioner's offense level under the Sentencing Guidelines. See Sentencing Guideline Section 2D1.1(c)(5); Gov't C.A. Brief 53. /2/ The Sixth Amendment right to a jury trial does not extend to criminal sentencing. See, e.g., Spaziano v. Florida, 468 U.S. 447, 459 (1984). /3/ The other two cases he cites that overturned verdicts because of failure to submit special issues to the factfinder are United States v. Amend, 791 F.2d 1120 (4th Cir.), cert. denied, 479 U.S. 930 (1986), and United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir.), cert. denied, 469 U.S. 845 (1984). In Amend the defendant had requested a special verdict regarding a forfeiture. Because Fed. R. Crim. P. 31(e) specifically requires special verdicts in such cases, and because there is no similar rule for cases like petitioner's, Amend does not advance petitioner's cause. In Orozco-Prada, it was unclear from the general verdict whether the jury had found the defendant guilty of conspiracy to possess cocaine (which carried a maximum sentence of fifteen years) or of conspiracy to possess marijuana (which carried a maximum sentence of five years). Because the trial court had sentenced the defendant to a term of eight years, the ambiguous verdict left open the possibility that the sentence exceeded the maximum lawful term for the crime of which the jury had found him guilty. See id. at 1083. No such claim can be made in this case. There is no doubt that the jury found petitioner guilty of all of the elements of the crime of conspiracy to possess cocaine and that his sentence was within the statutory maximum for that offense. Petitioner's reliance on United States v. Campuzano, 905 F.2d 677 (2d Cir.), cert. denied, 111 S. Ct. 363 (1990), is unpersuasive. In that case, the trial judge did submit a special issue as to the amount of the drug involved. The issue on appeal was whether the special issue prejudiced the defendant. The court held that it did not. See id. at 678 n. 1. /4/ The Eighth Circuit has followed Woods both before and after its decision in Owens. E.g., United States v. Padilla, 869 F.2d 372, 381, cert. denied, 109 S. Ct. 3223 (1989); United States v. Gohagen, 886 F.2d 1041, 1043 (1989) (per curiam); United States v. Peters, 912 F.2d 208, 212 (1990). By contrast, we are aware of no decision -- in the Eighth Circuit or elsewhere -- that has cited or followed Owens. /5/ Under the applicable Sentencing Guidelines (see note 1, supra), only the difference between five and 20 kilograms affected petitioner's sentence. /6/ None of the three cases cited by petitioner (Pet. 32) undermines this analysis. First, they all predate this Court's careful review of this field in Miller, which may deprive them of any continuing force. Moreover, even assuming their continued validity, none of them is controlling here. In United States v. Snider, 720 F.2d 985 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984), the court reversed conspiracy convictions because it was clear that prejudicial testimony had been admitted at the trial with respect to a conspiracy that did not involve any of the defendants. See id. at 987. Petitioner has not made any allegations of prejudicial evidence like that in Snider. In United States v. Jackson, 696 F.2d 578 (8th Cir. 1982), cert. denied, 460 U.S. 1073 (1983), the trial judge failed to give appropriate jury instructions. Id. at 585-586. Petitioner does not complain of the court's instructions. Finally, in United States v. Sutherland, 656 F.2d 1181, 1189-1190 (5th Cir. 1981), cert. denied, 455 U.S. 949, 991 (1982), the court upheld the convictions, observing that a variance justifies reversal only "if substantial rights are affected." Id. at 1190 n. 6.