U.S. v. Dotson

• Decision Date: 12 April 1989
• Docket Number: No. 87-6155,87-6155
• Citation: 871 F.2d 1318
• Parties: 27 Fed. R. Evid. Serv. 1210 UNITED STATES of America, Plaintiff-Appellee, v. Billie Jo DOTSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1318

871 F.2d 1318

27 Fed. R. Evid. Serv. 1210

UNITED STATES of America, Plaintiff-Appellee, v. Billie Jo DOTSON, Defendant-Appellant.

No. 87-6155.

United States Court of Appeals Sixth Circuit.

Argued Aug. 26, 1988.

Decided April 12, 1989.

Rosemarie L. Beverly (argued), Witt, Gaither and Whitaker, Chattanooga, Tenn., for defendant-appellant.

John W. Gill, U.S. Atty. and Steven Cook (argued), Chattanooga, Tenn., for plaintiff-appellee.

Before JONES and GUY, Circuit Judges, and HILLMAN, Chief District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

The defendant-appellant, Billie Jo Dotson, appeals her jury conviction for aiding and abetting the possession of a controlled substance in violation of 21 U.S.C Sec. 841(a)(1) (1982), and 18 U.S.C. Sec. 2 (1982), and for using a communication device to facilitate the distribution of, and possession with intent to distribute, a controlled substance in violation of 21 U.S.C. Sec. 843(b) (1982). For the reasons which follow, we affirm the jury verdict as to the aiding and abetting charge and vacate the judgment as to the remaining charges.

I.

In February of 1984, the government sought and obtained a court order authorizing it to intercept telephone communications at Dotson's residence. After intercepting several telephone conversations between Dotson and various third parties in which drug transactions were discussed, agents of the Federal Bureau of Investigation ("FBI") obtained a search warrant for Dotson's residence. On March 19, 1984, FBI agents, accompanied by agents of the Drug Enforcement Administration and the Tennessee Bureau of Investigation, executed the search warrant. Inside Dotson's house, the agents found weapons, scales, small plastic "ziplock" bags, and "bug detectors" designed to discover electronic telephone surveillance. A short distance from the house, the agents also discovered two large garbage bags containing over twenty-four pounds of marijuana, and eight smaller bags of marijuana cumulatively weighing less than one pound.

On February 11, 1987, a federal grand jury for the Eastern District of Tennessee returned a ten-count indictment against Dotson and a co-defendant who is not a party to this appeal. Count One of the indictment charged that both defendants, aided and abetted by each other, possessed approximately twenty-five pounds of marijuana with the intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Counts Two through Ten charged Dotson with using a telephone on nine separate occasions to facilitate the distribution of cocaine, and possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 843(b).

Dotson's trial began on September 1, 1987. On the first day of her trial, and again at a formal charge conference before closing arguments, Dotson presented her proposed jury instructions to the trial court. One of her proposed instructions stated that the jury must find, by a preponderance of the evidence, that she distributed cocaine or possessed cocaine with the intent to distribute it, in order to find her guilty of Counts Two through Ten ("the telephone facilitation counts"). The district judge, however, refused to give this instruction, concluding that the jury would confuse the "reasonable doubt" and "preponderance" standards. Instead, the court gave the following instruction:

Section 843(b) ... makes it a Federal crime or offense for anyone to knowingly use a communication facility in the process of committing or facilitating the commission of unlawful acts, in this case, the unlawful distribution of and the possession with intent to distribute cocaine hydrochloride, a Schedule 2 controlled substance, in violation of Section 841(a)(1) of Title 21 of the United States Code.

The defendant can be found guilty of the offense of unlawful use of a communication facility as charged in Counts 2 through 10 only if all of the following elements are proved beyond a reasonable doubt:

One, That the defendant used a communication facility as charged;

Two, That the defendant used the communication facility while in the process of committing, or to facilitate the commission of, the offense of unlawful distribution of and possession with intent to distribute cocaine hydrochloride, a Schedule 2 controlled substance; and

Three, That the defendant acted knowingly and willfully.

J.App. at 223 (emphasis added).

On September 23, 1987, the jury returned its verdict convicting Dotson on all charges. On October 5, 1987, the district court sentenced her to imprisonment for two years on Count One, and a total of twelve years on Counts Two through Ten. This appeal followed.

II.

The first issue that we address concerns the adequacy of the trial court's jury instruction regarding the government's burden of proof on the underlying drug offenses in Counts Two through Ten. Dotson argues that the government was required to prove the underlying drug charges, by a preponderance of the evidence, in order to sustain a conviction under section 843(b). She further contends that the instruction given by the trial court was inadequate because it failed to apprise the jury that the government possessed any burden of proof with respect to the underlying drug offenses. The government counters that since the only standard mentioned in the jury instructions was the "reasonable doubt" standard, the jury charge actually overstated the government's burden of proof. Since Dotson is challenging both the substance of the jury charge and the trial court's formulation of the charge, we review these challenges separately.

A.

The telephone facilitation statute, 21 U.S.C. Sec. 843(b), states in pertinent part that "[i]t shall be unlawful for any person knowingly or intentionally to use any communication facility [i.e., telephone] in committing or in causing or facilitating the commission of any act or acts constituting a felony under ... this subchapter...." ¹ In order to sustain a conviction under section 843(b), the government thus must prove three formal elements: (1) a knowing or intentional (2) use of a communication facility (3) to facilitate the commission of a drug offense. United States v. McGhee, 854 F.2d 905, 908 (6th Cir.1988). This third element, however, contains the further requirement that the government prove the commission of the underlying substantive drug offense. In United States v. Rey, 641 F.2d 222 (5th Cir.), cert. denied, 454 U.S. 861, 102 S.Ct. 318, 70 L.Ed.2d 160 (1981), the Fifth Circuit explained that:

When the underlying offense is an inchoate one such as attempt or conspiracy, then the attempt or conspiracy is all that must be shown to establish the underlying offense, and it is not necessary to show completion of the offense, and it is not necessary to show completion of the objective of that inchoate crime. When the Government charges as the underlying offense the substantive object of the inchoate crime rather than the attempt or conspiracy itself, then by definition the Government must prove the completed object when establishing the underlying offense.

Id. at 224 n. 6 (citations omitted). The Rey court also stated that "[w]hatever underlying offense is charged must be proved by a preponderance of the evidence, even though it is not separately charged." Id. (emphasis added). Although in United States v. McGhee, supra, this court approved of that part of the Rey decision which states that the government must prove the commission of the underlying drug offense, we did not reach the separate issue of the weight of the government's burden. See McGhee, 854 F.2d at 908.

In United States v. Mims, 812 F.2d 1068, 1077 (8th Cir.1987), and United States v. Jefferson, 714 F.2d 689, 699 (7th Cir.1983), the Seventh and Eighth Circuits have adopted the Fifth Circuit's position that the government must prove the commission of the predicate offense by a preponderance of the evidence to sustain a conviction under section 843(b). However, the Third Circuit has held in United States v. Johnstone, 856 F.2d 539, 542-45 (3rd Cir.1988), that the government must prove the commission of the predicate offense beyond a reasonable doubt. The Johnstone court noted that " 'the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged....' " Id. at 543 (quoting In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970)) (emphasis added). Since "[t]he occurrence of the underlying drug felony is a fact necessary to finding a violation of Sec. 843(b)," the court concluded that the government was required to prove that fact beyond a reasonable doubt. Id. In so holding, the Johnstone court expressly rejected the position adopted by the Fifth, Seventh and Eighth Circuits.

The position taken by the Third Circuit in Johnstone is consistent with a line of federal cases addressing the separate problem of inconsistent jury verdicts under section 843(b). Despite the long-standing rule that inconsistent jury verdicts in criminal cases need not be set aside, but instead may be viewed as a demonstration of the jury's leniency, see Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), several courts have refused to uphold section 843(b) convictions when the jury has acquitted the defendant of the separately charged drug offense. For example, in United States v. Brooks, 703 F.2d 1273, 1278-79 (11th Cir.1983), the court stated that "[w]here an indictment charges a specific conspiracy in one count and in a separate count charges a Sec. 843(b) violation in furtherance of that same conspiracy, the permissible inconsistent verdict rule ... cannot operate to sustain a conviction for a Sec. 843(b) violation if the defendant is acquitted of the underlying conspiracy." (citation omitted). Accord United States v. Bailey, 607 F.2d 237, 245 (9th Cir.1979), cert. denied, 445 U.S. 934, ...