U.S. v. Caldwell

• Decision Date: 18 May 1999
• Docket Number: No. 98-5213,98-5213
• Citation: 176 F.3d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry CALDWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 898

176 F.3d 898

UNITED STATES of America, Plaintiff-Appellee, v. Larry CALDWELL, Defendant-Appellant.

No. 98-5213.

United States Court of Appeals, Sixth Circuit.

Argued March 17, 1999.

Decided May 18, 1999.

Charles P. Wisdom, Jr. (argued), R. Michael Murphy (briefed), Asst. U.S. Attorneys, Lexington, KY, for Plaintiff-Appellee.

C. Mark Pickrell (argued and briefed), Nashville, TN, Larry Caldwell, London, KY, for Defendant-Appellant.

Before: JONES, CONTIE, and MOORE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

Larry Caldwell was convicted of knowingly and intentionally manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1), and of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Caldwell argues on appeal that the district court impermissibly broadened the indictment by instructing the jury that it did not have to find that Caldwell manufactured the specific quantity of marijuana indicated in the indictment. We disagree and AFFIRM Caldwell's conviction.

I.

Three Kentucky State Police troopers, Smith, Russell, and Griffith, responding to a complaint about a possible abduction, paid a visit to Caldwell at his mobile home in the War Branch area of Leslie County, Kentucky, on June 19, 1995. They had been referred to this residence by Caldwell's sister-in-law. When they arrived, Caldwell was sitting in the doorway of the home. After a brief cordial discussion, Caldwell invited the troopers into the home. One of the troopers remained outside. Once inside, Smith asked Caldwell if he had any firearms present. Caldwell, who was sitting on a bed, replied in the affirmative, and reached under the mattress. Smith told Caldwell to stop and then retrieved a gun from under the mattress where Caldwell had been reaching. It was a .22 caliber Smith & Wesson revolver. The troopers then briefly searched the home.

While waiting outside, Griffith noticed some odd-colored plants nearby. Upon inspection, he determined that they were marijuana plants. He informed Smith and Russell. After finding a few more marijuana plants, they placed Caldwell under arrest and informed him of his rights. Finally, upon departing the area, the troopers noticed a large grouping of plants, which they also identified as marijuana. Trooper Griffith estimated the final count of plants to be in the neighborhood of 1,500.

In August 1995, Caldwell was indicted on three counts. Count One charged Caldwell with growing and producing marijuana in violation of 21 U.S.C. § 841(a)(1). Count Two charged Caldwell with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Count Three, which was later dismissed upon oral motion of the government, see J.A. at 28, charged Caldwell with using and carrying a firearm during and in relation to a drug crime in violation of 18 U.S.C. § 924(c)(1).

A jury convicted Caldwell on Counts One and Two, and the district judge sentenced him to 120 months in prison. Caldwell filed a timely notice of appeal. We have jurisdiction to hear Caldwell's appeal under 28 U.S.C. § 1291.

II.

Caldwell argues that the district court impermissibly broadened the indictment under Count One in its instructions to the jury. Count One charged that Caldwell:

did knowingly and intentionally manufacture, that is, grow and produce, more than 1000 plants of marijuana, a Schedule I non-narcotic controlled substance as listed under Title 21, United States Code, Section 812; all in violation of Title 21, United States Code, Section 841(a)(1).

J.A. at 11 (emphasis added). In the district court's instructions to the jury, however, the court stated:

In the indictment, it is alleged that a particular amount or quantity of marijuana was being manufactured, or grown and produced, by the defendant. In order for you to find the defendant guilty of this charge, the evidence in the case need not establish that the exact amount or quantity of marijuana was as alleged in the indictment, but only that any amount or quantity of marijuana was, in fact, being manufactured, grown or produced by the defendant.

J.A. at 47 (emphasis added). Caldwell argues that after the grand jury returned an indictment with a specified number of marijuana plants, the district court violated his Fifth Amendment right to indictment by grand jury by informing the petit jury that the specific number of marijuana plants stated in the indictment need not be proven beyond a reasonable doubt.

We disagree with Caldwell. Caldwell's argument fails in light of the Supreme Court's opinion in United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). In Miller, a grand jury returned an indictment charging Miller with three counts of mail fraud. The indictment alleged that Miller had defrauded his insurance company both by consenting in advance to the burglary upon which his claim for insurance proceeds was based, and by inflating the value of the loss to the insurer. The evidence at trial, however, concerned only the latter allegation. The Court held that, because proof that Miller lied about the value of the loss was enough to convict Miller under the mail fraud statute, and this charge was included in the indictment, there was no violation of the Fifth Amendment's grand jury guarantee. The Supreme Court wrote:

As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.

Id. at 136, 105 S.Ct. 1811.

Caldwell was charged with violating 21 U.S.C. § 841(a)(1). The elements of a violation of § 841(a)(1) for manufacturing marijuana are (1) the defendant knowingly or intentionally (2) manufactured marijuana. See 21 U.S.C. § 841(a)(1). Section 841(a)(1) does not require that any specific quantity of controlled substance be alleged or proved in order to sustain a conviction. Drug quantity is not an element of the offense. See United States v. Moreno, 899 F.2d 465, 472 (6th Cir.1990). But see United States v. Rigsby, 943 F.2d 631, 640 (6th Cir.1991) (criticizing this conclusion but following court precedent), cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992). Quantity is an issue only in the penalty provisions of § 841(b). See, e.g., 21 U.S.C. § 841(b)(1)(A)(vii) (creating a sentencing range of not less than ten years or more than life for manufacturing "1,000 or more marijuana plants regardless of weight").

A large body of precedent holds that drug quantity is an issue with respect to sentencing only and is to be determined after conviction by the district judge utilizing the preponderance of the evidence standard. See Moreno, 899 F.2d at 472-73. See also United States v. Cisneros, 112 F.3d 1272, 1282 (5th Cir.1997) (holding that the defendant could be convicted under § 841(a) after the government stipulated that only 931 kilograms of marijuana were seized, even though the indictment said over 1,000, because quantity is not an element of the offense); United States v. Buford, 108 F.3d 151, 154 (8th Cir.1997) (holding that quantity is not an element of a § 841(a) offense); United States v. Dorlouis, 107 F.3d 248, 252 (4th Cir.) (holding that quantity goes only to the sentence and not to guilt under § 841(a) and the government need not allege quantity in the indictment to subject defendant to the enhanced penalties of § 841(b)), cert. denied, 521 U.S. 1126, 117 S.Ct. 2525, 138 L.Ed.2d 1025 (1997); United States v. Jinadu, 98 F.3d 239, 248 (6th Cir.1996) (holding that the district court erred by finding the quantity of drugs charged in the indictment controlling for purposes of § 841(b) enhanced penalties because quantity goes only to sentencing), cert. denied sub. nom Lawal v. United States, 520 U.S. 1179, 117 S.Ct. 1455, 137 L.Ed.2d 559 (1997); United States v. Silvers, 84 F.3d 1317, 1320-21 (10th Cir.1996) (holding that because quantity is not an element of the § 841(a) offense, a guilty plea when defendant is charged with possession with intent to distribute over 1,000 plants of marijuana is treated as a plea of guilty to § 841(a)(1) "with an express caveat that [the defendant] did not wish to stipulate to the amount of marijuana attributable to him for sentencing purposes"), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997); United States v. Gibbs, 813 F.2d 596, 601 (3d Cir.) (holding that the indictment need not include a reference to § 841(b) to apply at sentencing the mandatory minimum sentences found in that section), cert. denied, 484 U.S. 822, 108 S.Ct. 83, 98 L.Ed.2d 45 (1987).

An indictment must "set out all of the elements of the charged offense and must give notice to the defendant of the charges he faces." See United States v. Martinez, 981 F.2d 867, 872 (6th Cir.1992), cert. denied sub nom. Escamilla v. United States, 507 U.S. 1041, 113 S.Ct. 1874, 123 L.Ed.2d 493 (1993). An indictment tracking the language of the statute is sufficient "as long as 'those words ... fully, directly, and expressly ... set forth all the elements necessary to constitute the offense intended to be punished.' " See United States v. DeAndino, 958 F.2d 146, 147 (6th Cir.) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)), cert. denied, 505 U.S. 1206, 112 S.Ct. 2997, 120 L.Ed.2d 874 (1992). In this case, the elements of a § 841(a)(1) violation were clearly set out in the indictment. Moreover, with respect to the specific-quantity language in the indictment, Caldwell cannot allege that the indictment did not provide sufficient notice of the charges against which he would have to defend. See Miller, 471 U.S. at 135, 105 S.Ct. 1811. ¹

Caldwell argues instead that once the government decided to include the specified quantity of marijuana plants in the indictment, it was then required to prove that amount. Instructing the jury that it need not...