OTIS BOBBY MECOM, PETITIONER V. UNITED STATES OF AMERICA No. 90-5823 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A8) is not reported. JURISDICTION The judgment of the court of appeals was entered on March 28, 1990. The petition for a writ of certiorari was not filed until July 26, 1990, and is therefore out of time under this Court's Rule 13.1. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether there was a prejudicial variance between the indictment and the evidence introduced at trial. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of conspiracy to possess methamphetamine with intent to distribute it, in violation of 21 U.S.C. 846, and possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). The district court sentenced him to concurrent terms of 15 years' imprisonment on each count, to be followed by four years of supervised release. The court of appeals affirmed. Pet. App. A1-A8. 1. The evidence at trial showed that petitioner and several others agreed to produce methamphetamine in a drug lab near Rio Hondo, Texas. A substance was produced, and co-conspirator Jimmy Clark, believing it to be methamphetamine, took it to Louisiana to sell. While Clark was in Louisiana, he was arrested and the substance was seized. Pet. App. A2. At petitioner's trial, three government witnesses implicated petitioner in the operation and testified that the co-conspirators' plan was to manufacture and sell methamphetamine. Pet. App. A3. A chemist who analyzed the substance seized from Clark twice testified on direct examination that it was methamphetamine. Id. at A2. As cross-examination by the attorney for one of petitioner's co-defendants began, however, the witness said: "Excuse me. It is not methamphetamine. It is amphetamine." Ibid. Subsequent exchanges between court and counsel during the trial reflected uncertainty as to the chemist's identification of the substance. Ibid. The trial court instructed the jury on several occasions that petitioner was charged with conspiracy to possess and possession of methamphetamine, not amphetamine. Pet. C.A. Br. 10. /1/ The jury returned guilty verdicts against petitioner on both counts. At the time of petitioner's offenses, methamphetamine and amphetamine were classified as Schedule II controlled substances. 21 C.F.R. 1308.12(d)(1) and (2); see pp. 6-8, infra. Under 21 U.S.C. 841(b)(1)(C) (Supp. V 1987), the maximum term of imprisonment for possession of either substance was 20 years for a first offender and 30 years for a repeat offender. /2/ Petitioner was subject to the 30-year maximum, because he had previously been convicted of two federal drug offenses: (1) conspiracy to possess approximately 790 pounds of marijuana with intent to distribute it and (2) on a separate occasion, importation of approximately 907 pounds of marijuana. Petitioner was sentenced to concurrent 15-year terms of imprisonment on each count, to be followed by four years of supervised release. 2. On appeal, petitioner contended that there had been a variance between the indictment, which charged conspiracy to possess and possession of methamphetamine, and evidence introduced at trial suggesting that the substance seized from Clark was amphetamine. That variance, he argued, had prejudiced his defense at trial, necessitating reversal of his conviction. Except for incorporating facial challenges to the Sentencing Guidelines that were pending before this Court in Mistretta v. United States, 488 U.S. 361 (1989), petitioner did not challenge his sentence on appeal. The court of appeals rejected petitioner's variance claim and affirmed the conviction. Pet. App. A1-A8. Relying on United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990), the court noted that it was required to determine "whether the record reveals a variance between the indictment and the government's proof" and, if so, "whether the variance affected the 'substantial rights' of the defendant." Pet. App. A3. A variance could affect a defendant's substantial rights, the court continued, "either (1) by insufficiently informing him of the charges against him such that he is taken by surprise and prevented from presenting a proper defense, or (2) by affording him insufficient protection against reprosecution for the same offense." Ibid. The court found that there had been no variance between the conspiracy count of the indictment and the evidence introduced to prove conspiracy at trial. The court noted that three government witnesses had implicated petitioner in a plan to manufacture and sell methamphetamine. Pet. App. A3. Although one of the witnesses appeared to use the terms amphetamine and methamphetamine interchangeably, the court continued, "the evidence on the whole suggested the existence of a conspiracy to possess and distribute methamphetamine." Ibid. The court concluded that "(a) variance between the indictment and the proof of a conspiracy did not result from the testimony suggesting that the drug ultimately produced may have been amphetamine." Ibid. The court also found no variance between the government's proof and the possession count of the indictment. Pet. App. A4. The court stressed that witnesses who had participated in the conspiracy testified that "the plan was to manufacture methamphetamine and that methamphetamine was the drug that was in fact produced" and that neither party sought to clarify the apparent contradiction in the chemist's testimony. Ibid. The court concluded "that there was simply a conflict in the evidence and that whether the defendants possessed methamphetamine was a question for the jury." Ibid. /3/ Even if there had been a variance, the court of appeals continued, the variance could not have affected petitioner's substantial rights. Pet. App. A4-A5. The court explained that there was substantial evidence not in conflict with the indictment; that petitioner, having been convicted, ran no risk of reprosecution; that any variance did not affect petitioner's defense, which did not turn on the nature of the substance he allegedly possessed; and that the indictment sufficiently informed petitioner of the proof that he would have to confront. Ibid. The court also noted that a DEA chemist had testified as to the similarities between amphetamine and methamphetamine and cited other cases in which similar claims had been held not to require reversal. Id. at A5-A6. /4/ ARGUMENT Petitioner argues that a variance between the allegations of the indictment and the proof at trial denied him due process and resulted in an unlawful sentence. Pet. 5-6. This assertion -- which rests upon a misapprehension of the evidence, the relevant statute, and applicable Sentencing Guidelines -- presents no question warranting this Court's review. 1. In arguing that he was prejudiced by a variance between an indictment charging him with offenses involving methamphetamine and evidence that the substance actually involved was amphetamine, petitioner asserts that methamphetamine is a Schedule II substance carrying substantially more severe penalties than amphetamine, which he claims is a Schedule III substance. Pet. 4-5. /5/ The statutory classifications on which petitioner relies, however, have not been operative since 1974. Congress made clear that the statutory schedules were to be effective only "unless and until amended pursuant to (21 U.S.C. 811)." 21 U.S.C. 812(c). Section 811(a)(1) authorizes the Attorney General to promulgate rules, based upon specified findings, that "add to such a schedule or transfer between such schedules any drug or other substance." The Attorney General has exercised that authority with respect to methamphetamine and amphetamine. Originally, methamphetamine in the form of an injectable liquid was classified as a Schedule II substance, 21 U.S.C. 812(c), Schedule II(c); and methamphetamine in other forms and amphetamine were classified as Schedule III substances, 21 U.S.C. 812(c), Schedule III(a)(1) and (3). In 1974, however, the Attorney General, acting in accordance with the authority conferred on him by 21 U.S.C. 811(a), classified both methamphetamine and amphetamine as Schedule II controlled substances. 39 Fed. Reg. 22,142 (June 20, 1974) (now codified at 21 C.F.R. 1308.12(d)(1) and (2)). See United States v. Schrock, 855 F.2d 327, 331-332 (6th Cir. 1988). /6/ This classification was effective at all times relevant to petitioner's conviction and sentence, and it remains in effect today. There is no merit, therefore, to petitioner's assertion (Pet. 5) that amphetamine is a Schedule III substance. /7/ 2. The court of appeals was correct in its conclusion that there was no variance between either count of the indictment and the proof introduced at trial. With respect to the conspiracy count, petitioner's co-conspirators testified, in substance, that they agreed with petitioner to manufacture and sell methamphetamine. That evidence was sufficient to sustain a conviction on the conspiracy count; it was not necessary for the government to prove, in addition, that the conspirators actually produced the drug that they set out to fabricate. With respect to the possession count, there was sufficient evidence that the substance produced by the conspiracy and seized from co-conspirator Clark was methamphetamine. As the court of appeals noted, petitioner's co-conspirators testified that "the plan was to manufacture methamphetamine and that methamphetamine was the drug that was in fact produced." Pet. App. A4. Cf. United States v. Schrock, 855 F.2d at 334 (government may establish identity of drug through circumstantial evidence). Against this background, the contradictory testimony of the chemist -- who testified on two occasions that the substance was methamphetamine and on one occasion that it was amphetamine (see Pet. App. A2) -- created at best a "conflict in the evidence" (id. at A4) that the jury resolved against petitioner. "The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942). Even if there were a variance between the allegations of the indictment and the evidence, it would not undercut the validity of the conviction. The indictment sufficiently informed petitioner of the times at which he allegedly committed the offenses charged in the indictment and of the persons with whom he committed them; petitioner was not subject to unfair surprise. See Berger v. United States, 295 U.S. 78, 82 (1935); United States v. Ramos, 666 F.2d 469, 477-478 (11th Cir. 1982); United States v. Gonzalez, 661 F.2d 488, 492-493 (5th Cir. 1981). Because petitioner's defense was that there was no conspiracy or, if there was, he had not participated in it (Pet. App. A5), any confusion about the substance seized from Clark could not have affected his trial strategy. The jury was instructed that petitioner was on trial solely for offenses involving methamphetamine; it was not allowed, therefore, to convict petitioner of an offense not charged in the indictment. Petitioner is subject to no risk of reprosecution for the same offense. See Berger v. United States, 295 U.S. at 82; Russell v. United States, 369 U.S. 749, 763-764 (1962). Several cases have held that a variance between an indictment charging an offense involving one drug and proof regarding another similar drug do not prejudice a defendant's substantial rights. See United States v. Worthington, 642 F.2d 150, 152 (5th Cir. 1981); United States v. Pierce, 893 F.2d at 676 (variance between cocaine and cocaine base "plainly harmless"); United States v. Kramer, 711 F.2d 789, 797 (7th Cir.) (variance between "amphetamines" and "methamphetamines" was "plainly harmless"), cert. denied, 464 U.S. 962 (1983). /8/ 3. Petitioner failed to preserve the claim, raised for the first time in the petition, that his sentence was unlawful. In the district court, the presentence report recommended a sentence calculated on the assumption that methamphetamine was the substance that petitioner was convicted of possessing and conspiring to possess. Although petitioner challenged the probation office's calculation of the amount of drugs at issue, he did not argue that his sentence should be calculated on the assumption that the drug involved in his offenses was amphetamine. On appeal, petitioner's attorney filed a one-page reservation of the arguments then pending before this Court in Mistretta v. United States, supra. That was the only challenge to the sentence as such. The brief filed by petitioner's attorney and petitioner's supplemental pro se brief did not advance the contention that the sentence was unlawful under the statute or that the district court had misapplied the Sentencing Guidelines. /9/ The court of appeals did not address the validity of the sentence. Further review of that question is therefore not warranted. E.g., United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). In any event, there is no merit to petitioner's claim. First, contrary to petitioner's contention, the sentence on each count was within the range authorized by the statute for either methamphetamine or amphetamine; as a repeat drug offender, petitioner was subject to a 30-year maximum sentence on each count. 21 U.S.C. 841(b)(1)(C), 846 (Supp. V. 1987). Second, because petitioner was a three-time drug offender subject to the career offender provisions of the Sentencing Guidelines, it was immaterial to the calculation of his sentence whether the drug involved in his offenses was amphetamine or methamphetamine. Whichever drug was involved, the applicable range for his offense was 262 to 327 months -- substantially more than he received. /10/ If petitioner were resentenced in accordance with the Guidelines, therefore, his sentence would be increased. Finally, even if the drug involved were material to petitioner's sentence, it would not have been reversible error for the district court to base petitioner's sentence on Guidelines prescribing penalties for methamphetamine. As we have shown, petitioner was charged with conspiring to possess and possessing that drug; the jury was instructed that it should determine petitioner's guilt with respect to that drug; and there was sufficient evidence to sustain its guilty verdicts. 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 THOMAS M. GANNON Attorney NOVEMBER 1990 /1/ For instance, in connection with testimony that the government had found amphetamine base at the drug laboratory, the court instructed the jury (III Tr. 345-346): Remember reference being made to the fact that the defendants are not on trial for anything else other than methamphetamine. I am going to be telling you basically the same thing I told you, but I want you to be sure that you know exactly how this is dealt with. Be very mindful now that the defendants are not on trial for anything else other than what's alleged in the indictment, in this case methamphetamines. Be very mindful of that. /2/ The penalties now provided by 21 U.S.C. 841(b)(1)(B)(viii) for offenses involving methamphetamine were not effective at the time petitioner committed the offenses at issue here. /3/ Other testimony, from a DEA chemist, showed that two amphetamine-related substances were seized from the house where the drug lab was set up. There was no testimony, however, as to when those substances were produced or whether they were involved in the process that resulted in the production of the substance seized from Clark. The court of appeals concluded that "this testimony provided little, if any, guidance as to whether (petitioner and his co-defendants) possessed methamphetamine or amphetamine." Pet. App. A4 n.2. /4/ The court also rejected petitioner's contentions that the district court should have excluded all evidence related to amphetamine possession; that the evidence was insufficient to support his conviction; and that the district court committed reversible error by admitting evidence of extrinsic offenses. Pet. App. A6-A8. The petition does not seek further review of those issues. /5/ According to testimony in this case, methamphetamine is an amphetamine with one additional methyl group. Pet. App. A5. /6/ The petition asserts, without supporting argument or authorities, that this regulation is ambiguous and subject to misinterpretation, giving rise to a violation of petitioner's rights under the Due Process Clause. See Pet. i, 5. We can discern no basis for such a claim. /7/ As petitioner notes, the indictment described methamphetamine as a Schedule I controlled substance, and the court of appeals referred to methamphetamine and amphetamine as Schedule III controlled substances (Pet. App. A5). These misstatements were immaterial. The jury was not called upon to consider which schedule was involved in this case, and, as we demonstrate below, there can be no dispute as to the sentencing prescribed by the statute and applicable Sentencing Guidelines for this case. /8/ The court of appeals noted (Pet. App. A6) that in State v. McMannis, 12 Kan. App. 2d 464, 747 P.2d 1343 (1987), the court held that under Kansas law proof of methamphetamine possession would not support a conviction under an indictment charging amphetamine possession. In McMannis, however, "there was no evidence identifying the drug defendant possessed as amphetamine." 747 P.2d at 1345. Here, of course, the government presented substantial evidence (see Pet. App. A4) showing that petitioner possessed methamphetamine. /9/ There was one passing reference to the sentence in petitioner's pro se brief. At the end of a point entitled "RULE 901, 402, 403 OF THE FEDERAL RULES OF EVIDENCE WERE VIOLATED IN THIS CASE" in which petitioner argued that evidence relating to amphetamines should have been excluded and that there was insufficient evidence to sustain his conviction, the brief stated, "Upon careful study of this record and every detail of it, the inescapable conclusion can only be that the trial judge and the jury found the evidence of the defendant of innocent (sic) immaterial or irrelevant. The verdict and the sentence was contrary to the law and contrary to the overwhelming weight of the evidence. The Court below erred in denying a directed verdict of not guilty and/or a peremptory instruction." Pet. C.A. Supp. Pro Se Br. 6-7. This argument was clearly directed at the validity of the conviction, not the lawfulness of the sentence under the relevant statute and the Sentencing Guidelines. /10/ Because this case was petitioner's third drug offense and the statutory maximum was 30 years' imprisonment, Sentencing Guideline Section 4B1.1 set petitioner's offense level at 34 and placed him in criminal history category VI regardless of the amount or type of the substance at issue. The range for that combination is 262 months to 327 months, substantially more than the 180 months imposed.