U.S. v. Edwards
| Decision Date | 30 January 1997 |
| Docket Number | 94-3953,94-3833,95-1358,94-3952,Nos. 94-3805,s. 94-3805 |
| Citation | 105 F.3d 1179 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Vincent EDWARDS, Reynolds A. Wintersmith, Horace Joiner, Karl V. Fort, and Joseph Tidwell, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, Elizabeth Collery (argued), Department of Justice, Criminal Division, Washington, DC, for U.S. in Nos. 94-3805 and 94-3833.
J. Michael McGuinness (argued), Chicago, IL, for Vincent Edwards.
Mark D. DeBofsky, Steven Shobat (argued), Mark D. DeBofsky, Richard Q. Holloway, Debofsky & Debofsky, Chicago, IL, for Reynolds A. Wintersmith.
James T. Zuba, Keith C. Syfert, Office of the United States Attorney, Rockford, IL, Elizabeth Collery (argued), Department of Justice, Criminal Division, Washington, DC, for U.S. in No. 94-3952.
Donald P. Sullivan (argued), Canfield, Canfield & Sullivan, Rockford, IL, for Horace Joiner.
Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, John G. McKenzie, Office of the United States Attorney, Rockford, IL, Elizabeth Collery (argued), Department of Justice, Criminal Division, Washington, DC, for U.S. in No. 94-3953.
Steven Shobat (argued), Chicago, IL, for Karl V. Fort.
Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, John G. McKenzie, Keith C. Syfert, Office of the United States Attorney, Rockford, IL, Elizabeth Collery (argued), Department of Justice, Criminal Division, Washington, DC, for U.S. in No. 95-1358.
Robert A. Handelsman (argued), Chicago, IL, for Joseph Tidwell.
Before CUMMINGS, EASTERBROOK, and ROVNER, Circuit Judges.
An indictment charged that 20 persons, affiliated with the Gangster Disciples street gang, distributed cocaine in and near Rockford, Illinois. The leaders of this ring called themselves "The Mob". Five pleaded guilty; the remaining 15 were tried in three groups. Other panels of this court have affirmed the convictions and sentences resulting from two of these trials. United States v. Evans, 92 F.3d 540 (7th Cir.1996); United States v. Russell, Nos. 94-4000 et al., (7th Cir. Aug. 30, 1996) (unpublished order). After their convictions in the remaining trial, Karl V. Fort and Reynolds Wintersmith were sentenced to life in prison, Joseph Tidwell to 312 months, Horace Joiner to 126 months, and Vincent Edwards to 120 months. Arguments that are variations on contentions made to the panels in Evans and Russell we reject without additional verbiage. Many others we bypass because they do not affect the sentences. Precise calculations of drug quantity do not matter when the amounts are as large as they are here. Only one contention requires discussion: defendants' joint argument that the judge must sentence them as if all of the cocaine were cocaine hydrochloride (powder), because the jury's verdict does not unambiguously establish that they peddled any cocaine base (crack).
Count I of the indictment charged the defendants with conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The instructions told the jury that it could convict the defendants under Count I if it concluded that the conspiracy "involved measurable amounts of cocaine or cocaine base." The jury returned a verdict of guilty--which means, appellants insist, that the verdict does not establish that they distributed any crack, for the jury would have returned the same verdict had all of the drug been powder cocaine. Because, on this understanding, "there is simply no way of determining from the general verdict which of the conspiratorial objectives the jury found beyond a reasonable doubt" (Appellants' Joint Br. 33), appellants ask us to require the prosecutor to elect between a new trial and resentencing on the assumption that all of the cocaine was powder. Defendants did not object to this part of the instructions or the verdict form, and they did not ask the court to elicit from the jury the information they now say is missing, so they argue now that the district court committed plain error. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Five courts of appeals have held that, when the jury returns a general verdict to a charge that a conspiratorial agreement covered multiple drugs, the defendants must be sentenced as if the organization distributed only the drug carrying the lower penalty. United States v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir.1984); Newman v. United States, 817 F.2d 635 (10th Cir.1987); United States v. Owens, 904 F.2d 411, 414-15 (8th Cir.1990); United States v. Bounds, 985 F.2d 188, 194-95 (5th Cir.1993); United States v. Garcia, 37 F.3d 1359, 1369-71 (9th Cir.1994). Newman held that the shortcoming it identified is "plain error." 817 F.2d at 637 n. 3; see also United States v. Pace, 981 F.2d 1123, 1128 (10th Cir.1992). We believe that all of these decisions are wrong. There was no error, and hence no plain error, in this case.
Our reason is simple: under the Sentencing Guidelines, the judge alone determines which drug was distributed, and in what quantity. Witte v. United States, --- U.S. ----, ---- - ----, 115 S.Ct. 2199, 2207-08, 132 L.Ed.2d 351 (1995); United States v. Cooper, 39 F.3d 167, 172 (7th Cir.1994); United States v. Levy, 955 F.2d 1098, 1106 (7th Cir.1992); U.S.S.G. § 1B1.2(d) & Application Note 5. The "relevant conduct" rule requires the judge to consider drugs that were part of the same plan or course of conduct, whether or not they were specified in the indictment. U.S.S.G. § 1B1.3; United States v. Watts, --- U.S. ----, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); United States v. White, 888 F.2d 490 (7th Cir.1989); Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 8-12, 25-28 (1988). A judge therefore may base a sentence on kinds and quantities of drugs that were not considered by the jury. United States v. Garcia, 69 F.3d 810, 818-19 (7th Cir.1995); United States v. Montgomery, 14 F.3d 1189, 1196-98 (7th Cir.1994); United States v. Villarreal, 977 F.2d 1077, 1080 (7th Cir.1992). Because sentencing depends on proof by a preponderance of the evidence, while conviction depends on proof beyond a reasonable doubt, the judge may even base a sentence on events underlying charges for which the jury returned a verdict of acquittal. Watts, supra. What a jury believes about which drug the conspirators distributed therefore is not conclusive--and a verdict that fails to answer a question committed to the judge does not restrict the judge's sentencing options.
Orozco-Prada, first in the line of contrary decisions, relied on a series of cases that address a different problem. Suppose the indictment charges that the defendants conspired to commit two crimes--say, bank robbery and money laundering--that have different maximum punishments. Because the punishment for conspiracy depends on the punishment for the substantive offense, 18 U.S.C. § 371; 21 U.S.C. § 846, a disjunctive verdict form (or a disjunctively phrased indictment) leaves unresolved the question whether the conspirators pursued both objectives and, if only one, which. The judge does not have authority to sentence the defendants to 20 years (the bank robbery maximum) if they conspired only to launder the proceeds of someone else's robbery. So unless the prosecutor consents to a sentence based on the lower maximum punishment, there must be a new trial. See Brown v. United States, 299 F.2d 438 (D.C.Cir.1962) (Burger, J.), among the several similar cases cited by Orozco-Prada, 732 F.2d at 1083-84. Brown and its successors reach an entirely sensible result but have nothing to do with an indictment that charges the defendants with agreeing to commit one crime in two ways. Powder and crack cocaine are variations of the same drug sold to distinct segments of the retail market; the difference has consequences for sentencing under 21 U.S.C. § 841(b) and the Guidelines, but not for the identification of the substantive offense. Cf. Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); Neal v. United States, --- U.S. ----, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996). Section 841(a)(1) makes it unlawful "to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute or dispense, a controlled substance". That is the crime these five defendants conspired to commit. Application of the disparate sentencing rules for different types and quantities of controlled substances is for the judge rather than the jury. This is why it is unnecessary for the indictment to charge how much of a drug was...
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