JOHN DIEHL, PETITIONER V. UNITED STATES OF AMERICA No. 89-7676 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 Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 20-25) is not reported, but the judgment is noted at 897 F.2d 530 (Table). JURISDICTION The judgment of the court of appeals was entered on March 6, 1990. The petition for a writ of certiorari was filed on June 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the jury's general verdict on a conspiracy count specified the objectives of the conspiracy for which petitioner was convicted with sufficient clarity to permit application of the Federal Sentencing Guidelines. 2. Whether the Sentencing Guidelines permitted the sentencing court to calculate petitioner's base offense level based on the amount of cocaine that petitioner knew was involved in the conspiracy. STATEMENT After a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted on one count of conspiring to distribute cocaine and marijuana, and to possess cocaine and marijuana with intent to distribute them, in violation of 21 U.S.C. 846, and two counts of using a telephone to facilitate a drug felony offense, in violation of 21 U.S.C. 843(b). He was sentenced to concurrent terms of 70 months' imprisonment on the conspiracy count and 48 months' imprisonment on the communication facility counts, to be followed by a three-year period of supervised release. The evidence at trial showed that petitioner participated in a drug trafficking operation headed by his brother Greg Diehl. Between June 1986 and April 1988, Greg Diehl and his friend Dennis Todd arranged for approximately 28 kilograms of cocaine and 125 pounds of marijuana to be transported from Florida to Michigan for distribution. The evidence also showed that Greg Diehl and Todd had stored approximately two kilograms of cocaine on a boat owned by Todd. Gov't C.A. Br. 4, 6. Testimony and numerous taped phone conversations introduced at trial indicated that petitioner purchased small amounts of cocaine and larger amounts of marijuana from Todd for redistribution to others. Gov't C.A. Br. 6. In one taped conversation between petitioner and Todd, petitioner mentioned "the other key of yellow," apparently referring to a kilogram of cocaine with a yellowish tint in Todd's possession. In that same conversation, petitioner offered to become Todd's new partner because it appeared at that time that Todd and Greg Diehl were having a disagreement. Ibid. A search of petitioner's residence pursuant to a warrant revealed a variety of drug paraphernalia, including two scales, plastic bags, and a bottle of Inositol. Pet. App. 21. The indictment charged that the objects of the conspiracy included the distribution of both cocaine and marijuana. Nonetheless, because of the way the government framed its case at trial, the district court instructed the jury that "(o)n the evidence in this case, however, you may not find a Defendant guilty of (conspiracy) unless you find beyond a reasonable doubt that it was an object of the conspiracy to possess with intent to distribute or to distribute some amount of cocaine * * * ." C.A. App. 307. The court further emphasized that petitioner "cannot be convicted of (conspiracy) unless you find that he was a member of the conspiracy for the purpose of obtaining cocaine for distribution to one or more other persons." Id. at 308. The jury asked the court during its deliberations if "(t)o be considered guilty or not guilty of the conspiracy does the Defendant have to be selling/distributing cocaine? In other words, if a Defendant was guilty only of selling marijuana, * * * is he guilty of the conspiracy? If so, is there some way we should designate between cocaine and marijuana?" Id. at 295. The court responded: The way the language of the conspiracy indictment is drawn, it is, indeed, broad enough to include both marijuana and cocaine. So in a particular case with respect to a particular defendant that might be tried in this case the answer is that it could include the marijuana aspect of it. However, on the evidence in this case and the way the Government presented the evidence, * * * it's the Government's theory of the case * * * that (petitioner) was receiving cocaine for the purpose of distributing it to others * * * . The (first) question would have to be answered yes, they must show a conviction with respect to (conspiracy) and also with respect to the other counts because they refer to cocaine only, there would have to be a conspiracy to possess cocaine or distribute cocaine, and the individual's involvement would have to involve cocaine. Id. at 295-296. Based upon those instructions, the jury returned a guilty verdict against petitioner on the conspiracy count. The district court determined that petitioner knew that the conspiracy involved at least two kilograms of cocaine. Accordingly, the court set petitioner's base offense level at 28 under the Federal Sentencing Guidelines. Id. at 317-318; Pet. App. 24. The court of appeals affirmed. Pet. App. 20-25. ARGUMENT 1. Petitioner contends (Pet. 8-13) that for the purpose of sentencing the district court should have required the jury to issue a special verdict specifying whether the predicate offense for petitioner's conspiracy conviction was the distribution of cocaine and marijuana, or just the distribution of marijuana. The court's determination that a special verdict was not necessary, however, was correct. The court instructed the jury on two occasions that it could return a guilty verdict only if it found that petitioner was a member of the conspiracy for the purpose of distributing cocaine. In light of those instructions, there is no doubt that the verdict represented a finding by the jury that petitioner had conspired to distribute cocaine. That conclusion is further supported by the fact that the jury also returned a guilty verdict on the count of the indictment charging petitioner with using a telephone to facilitate a conspiracy to distribute cocaine. Petitioner's reliance (Pet. 8-10) on United States v. Newman, 817 F.2d 635 (10th Cir. 1987) and United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984), is misplaced. Those cases hold that when it is impossible to ascertain from a general verdict the predicate offenses upon which a conspiracy conviction is based, a defendant may only be sentenced for conspiring to commit the least serious predicate offense. Newman, 817 F.2d at 637-639; Alvarez, 735 F.2d at 446-448. In the present case, however, the trial court's instructions eliminated any potential ambiguity in the jury's general verdict. Thus, the court's decision to sentence petitioner for conspiring to distribute cocaine -- the more serious predicate offense charged in the indictment -- was not contrary to Newman or Alvarez. /1/ Petitioner's suggestion (Pet. 12-13) that the court's failure to require a special verdict is analogous to a failure to give an instruction on a lesser included offense is also off the mark. The objectives of cocaine distribution and marijuana distribution are not greater and lesser offenses. Rather, they are different objectives of a single conspiracy offense. Thus, the court's decision to eliminate distribution of marijuana as a possible objective of the conspiracy count was not like a refusal to give an instruction on a lesser included offense. To the contrary, the court's instruction worked to the petitioner's advantage because it limited the grounds upon which petitioner could have been convicted on the conspiracy count of the indictment. 2. Petitioner's claim (Pet. 14-17) that the trial court erred in determining his base offense level under the Federal Sentencing Guidelines is also without merit. The court set petitioner's offense level at 28 based on a finding that petitioner knew the conspiracy involved at least two kilograms of cocaine. Petitioner claims, however, that his participation in the conspiracy did not involve two kilograms of cocaine. Rather, he contends that his offense level should have been determined by referring to the amount of cocaine that the government proved he had purchased, 1 to 1 1/2 ounces, not on the amount of cocaine purchased or distributed by other members of the conspiracy. Under Section 1B1.3 of the Federal Sentencing Guidelines, a base offense level is determined by referring to "all acts and omissions committed * * * by defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense * * *." Application Note 1 to Section 1B1.3 makes clear that in a conspiracy case the conduct "for which the defendant 'would be otherwise accountable' * * * includes conduct of others in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant." Thus, petitioner's claim that his offense level should be based on his conduct alone is clearly incorrect. Because petitioner was convicted of conspiring to distribute cocaine, the Guidelines required the sentencing court to base petitioner's offense level on the conduct of petitioner's co-conspirators that was reasonably foreseeable by the petitioner. In light of that requirement, the district court properly concluded that petitioner's offense level should be based on his involvement with two kilograms of cocaine. To reach that conclusion, the court relied on a taped telephone conversation between petitioner and Todd, a co-conspirator, in which petitioner referred to "the other key of yellow." The court found that this conversation indicated that petitioner had knowledge that Todd was in possession of at least two kilograms of cocaine -- a quantity of drugs suitable for distribution. Petitioner's knowledge of the two kilograms of cocaine put him on notice that Todd intended to distribute that amount of cocaine. Thus, it was within the authority of the sentencing court to conclude that the conspiracy petitioner joined involved at least those two kilograms and that petitioner could have reasonably foreseen the extent of the conspiracy. In fact, by finding that petitioner had actual knowledge of the two kilograms (C.A. App. 317-318), the court applied an even stricter standard than the one required by Section 1B1.3 of the Guidelines. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General SEAN CONNELLY Attorney JULY 1990 /1/ The other cases cited by petitioner, United States v. Buishas, 791 F.2d 1310, 1317 (7th Cir. 1986) and United States v. Spock, 416 F.2d 165, 182 n.41 (1st Cir. 1969), merely permit the use of special verdicts in certain circumstances. They do not suggest that the use of a special verdict is ever mandatory.