U.S. v. Harris

Decision Date14 September 1999
Docket NumberNo. CR 99-0002-MWB.,CR 99-0002-MWB.
Citation66 F.Supp.2d 1017
PartiesUNITED STATES of America, Plaintiff, v. Jermaine HARRIS, Defendant.
CourtU.S. District Court — Northern District of Iowa

Patrick J. Reinert, Asst. U.S. Atty., Cedar Rapids, IA, for U.S.

Anne M Laverty, Mullin & Laverty, P.L.C., Cedar Rapids, IA, for Defendant.


BENNETT, District Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION ........................................................ 1018
                II. LEGAL ANALYSIS ..................................................... 1019
                     A. The Jones Decision ............................................. 1019
                           1. The content of the comment ............................... 1019
                2. Clues from the concurrences and dissent .................. 1023
                  B. The Almendarez-Torres Decision, § 841, And § 846 ........ 1024
                  C. Subsequent Decisions .............................................. 1026
                           1. The Fifth Circuit decisions .............................. 1026
                           2. The Fourth Circuit decision .............................. 1028
                           3. The Tenth Circuit decision ............................... 1029
                           4. Federal district court decisions ......................... 1029
                           5. The teachings of subsequent decisions .................... 1034
                III. CONCLUSION ........................................................ 1034

What is the import of precedent? In our judicial system, that is perhaps the fundamental question confronting a judge grappling with any legal issue. In this case, one of the defendant's objections to the court's proposed jury instructions raises the question of the import of a recent Supreme Court decision, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), for pleading and proof of drug quantities in criminal cases. Although the court has responded to other matters raised in the defendant's objections in a letter to counsel, the court deemed the "Jones issue" to be significant enough to require more detailed consideration in a written opinion.


In this criminal case, the United States charges defendant Jermaine Harris with five separate crimes: distribution of crack cocaine in violation of 21 U.S.C. § 841(a); being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(2); possession of an unregistered firearm in violation of 26 U.S.C. § 5861; possession of crack cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a); and conspiracy to commit two separate drug offenses, distribution of crack cocaine and possession of crack cocaine with intent to distribute it in violation of 21 U.S.C. § 846.1 This matter is set for jury trial to begin on September 20, 1999.

Pursuant to the court's usual practice, the court sent the parties a first set of proposed jury instructions, designated the "9/2/99 VERSION," and solicited counsels' proposals for additions or corrections. Among the court's proposed instructions were a preliminary instruction and a final instruction each identifying the elements of the conspiracy charge as follows:

One, between about 1996 and 1997, two or more persons reached an agreement or came to an understanding to commit a drug offense or drug offenses.

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect.

Three, at the time the defendant joined in the agreement or understanding, he knew the essential purpose of the agreement or understanding.

Proposed Preliminary And Final Instructions To The Jury (9/2/99 VERSION), Preliminary Jury Instruction No. 3 & Final Jury Instruction No. 9; and compare MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE EIGHTH CIRCUIT (1997 Ed.), No. 5.06A. On September 9, 1999, the defendant faxed to the court, and subsequently filed with the Clerk of Court, his Objections to Proposed Jury Instructions. The defendant requested the addition of a fourth element to the conspiracy instruction, "that the agreement or understanding to commit a drug offense or drug offenses involved 50 grams or more of a mixture or substance containing cocaine base, commonly known as `crack cocaine.'"2 The defendant cited in support of this request the Supreme Court's recent decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 1228, 143 L.Ed.2d 311 (1999). For the reasons to follow, the court does not believe that Jones requires the addition of the requested element.

A. The Jones Decision

In order to determine the import of the Jones decision, the court has relied on a reading of the Jones decision itself, the concurrences and dissent thereto, the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which came down just the term before Jones and to which the justice on both sides in Jones referred, and the treatment Jones has received from the lower courts in the past few months. The focus of concern has been that part of footnote 6 of the majority opinion in Jones stating the following:

The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution. See post, at 1229, 1235-1236, 1237. The preceding paragraph in the text expresses that principle plainly enough, and we re-state it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.

Jones, 526 U.S. at ____, 119 S.Ct. at 1224 n. 6.

Taken literally, this language would seem to require jury determination of drug quantity, not to mention notice in the indictment of drug quantity, for offenses under 21 U.S.C. § 841 and § 846, because drug quantity sets the statutory range of penalties for these offenses. In the absence of an indictment stating quantities, lowest sentencing ranges might be all that were available. Although the Circuit Courts of Appeals have uniformly concluded that drug quantity is a "sentencing enhancement" factor, not an "element" of the offense, under statutes such as § 841 and § 846, their conclusions are not not necessarily dispositive. The Circuit Courts of Appeals had also uniformly held that the three provisions of 18 U.S.C. § 2119, the car-jacking statute in question in Jones, defined sentencing enhancements, not separate crimes with slightly different elements, yet the Supreme Court in Jones overturned those holdings. See Jones, 526 U.S. at ____, 119 S.Ct. at 1217.

1. The context of the comment

The import of the comment in footnote 6 depends, to a large degree, on the context in which it was made. In Jones, the Court mas not deciding whether treating a factor that increased a sentencing range as a sentencing factor, not an element, was a violation of the Fifth, Sixth, or Fourteenth Amendments. Rather, the Court was determining whether § 2119, the car-jacking statute, "defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict." See Jones, 526 U.S. at ____, 119 S.Ct. at 1217. The specific holding of the Jones majority was that § 2119 "establishe[s] three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." Id. at ____, 119 S.Ct. at 1228.

Although the decision "does not announce any new principle of constitutional law," the decision "interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century." Id. at 1228 n. 11. Therefore, the majority justified its conclusion that the statute defined three distinct offenses at least in part "in light of the rule that any interpretive uncertainty should be resolved to avoid serious questions about the statute's constitutionality." Id. at 1217; see id. at 1228. Whatever the constitutional interest of the decision, its primary goal was statutory interpretation, and the constitutional concerns only came to the fore because the text of the statute itself was uncertain.

In pursuit of its primary goal of interpretation of the car-jacking statute, the majority in Jones first reiterated the significance of a determination of whether a fact specified in the statute defining the offense is an element of an offense rather than a sentencing factor, noting that "elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt." Id. at 1219. Thus, at the outset, the majority adhered to the long-standing principle that only elements of offenses must be treated in this fashion.

Turning specifically to interpretation of the statute to determine which specified facts were elements, and which were merely sentencing factors, the majority relied first on rules of statutory interpretation, not constitutionality, looking to see how much of the statute was required to define a complete offense and its punishment, see id. at ____, 119 S.Ct. at 1219-20; examples of comparable statutes, see id.; and state practice, see id. at 1221. However, the majority rejected subsequent legislative history in the form of the 1996 amendments to the statute, and found contemporaneous legislative history unhelpful. See id. at 1221-22. The majority concluded, on the basis of these considerations, that "the fairest reading of § 2119 treats...

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