U.S. v. Washington

• Decision Date: 04 December 1997
• Docket Number: No. 96-5196,96-5196
• Citation: 127 F.3d 510
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Errol Eugene WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 510

127 F.3d 510

UNITED STATES of America, Plaintiff-Appellee, v. Errol Eugene WASHINGTON, Defendant-Appellant.

No. 96-5196.

United States Court of Appeals, Sixth Circuit.

Argued March 12, 1997.

Decided Oct. 8, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 4, 1997. ^*

Lawrence W. Moon, Jr., Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Nashville, TN, for Plaintiff-Appellee.

Patrick T. McNally (argued and briefed), Hollins, Wagster & Yarbrough, Nashville, TN, for Defendant-Appellant.

Errol Eugene Washington, Manchester, KY, pro se.

Before: JONES, SUHRHEINRICH, and SILER, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined. JONES, J. (pp. 518-19), delivered a separate dissenting opinion.

SUHRHEINRICH, Circuit Judge.

Since their inception in 1987, the United States Sentencing Guidelines ("Sentencing Guidelines") have engendered controversy. A major source of tension has been the 100:1 quantity ratio of powder cocaine to crack cocaine ("100:1 ratio"). The 100:1 ratio treats an individual who traffics in a given quantity of crack cocaine the same as one who traffics in 100 times as much powder cocaine. The United States Sentencing Commission ("Sentencing Commission") and Congress have engaged in an ongoing dialogue regarding the propriety of the 100:1 ratio. In light of this dialogue, defendant Errol Eugene Washington, a convicted crack cocaine dealer, challenges the 100:1 ratio on various constitutional grounds. In this case, we hold that the Sentencing Commission's continuing discussion with Congress does not alter prior Sixth Circuit precedent. Following that precedent, we again uphold the 100:1 ratio and AFFIRM Washington's conviction and sentence against all presented challenges.

I.

On August 20, 1993, Michael Pardue was arrested by the Austin Peay University Police in Clarksville, Tennessee for possession of crack cocaine. The Clarksville Police Department granted him immunity in exchange for Pardue's assistance in apprehending defendant Washington, Pardue's alleged supplier of narcotics. Pardue disclosed his criminal history with Washington to the authorities, including multiple purchases of crack cocaine from the defendant. According to Pardue, those transactions occurred in various cities, including Atlanta, Chattanooga, and Clarksville. The sales were always directly negotiated by Washington, although sometimes Pardue consummated the deal by purchasing the crack cocaine from co-defendant Sylvia Smith.

The Clarksville Police monitored Pardue's subsequent communication with Washington. On August 28, 1993, in the parking lot of a Clarksville hotel under surveillance by the Clarksville Police Department, Pardue approached Washington's vehicle and purchased approximately 650 grams of crack cocaine from the defendant. Clarksville Police pursued Washington following the sale, but he momentarily evaded them. Soon thereafter, he was apprehended outside a nearby hotel room registered to Smith. A subsequent search of the rented automobile driven by Washington revealed the money Pardue used in the purchase, as well as a fully-loaded, semi-automatic pistol in the automobile console.

A federal grand jury indicted Washington and Smith for conspiracy to distribute crack cocaine and possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), respectively. Washington was also indicted for using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). Following a trial by jury, Washington was convicted on all counts. ¹

II.

On appeal, Washington raises five issues, which we address in the order presented at trial. First, Washington claims his Sixth Amendment guarantee of jury unanimity was abridged by the duplicitous nature of Count II of the indictment. Second, he challenges the sufficiency of the evidence supporting his firearm conviction. Third, he asserts that the trial judge erred in enhancing his sentence for playing a leadership role in the drug transactions. Fourth, Washington challenges the Sentencing Guidelines' treatment of crack cocaine violations as unconstitutional. Finally, he contends that the trial judge erred in not issuing a downward departure at sentencing.

A.

Washington first asserts that Count II of the indictment was duplicitous, creating jury confusion resulting in inconsistent verdicts in violation of Washington's Sixth Amendment guarantee to jury unanimity. ² We review the district court's decision not to dismiss Count II of the indictment for abuse of discretion. United States v. Overmyer, 899 F.2d 457, 465 (6th Cir.1990).

A duplicitous indictment charges separate offenses within a single count. United States v. Duncan, 850 F.2d 1104, 1108 n. 4 (6th Cir.1988). "The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both." Id. Furthermore, the jury cannot convict on one offense and acquit on another offense charged in the same count. 1 Charles Alan Wright, Federal Practice and Procedure, § 142 (1982). Duplicity can potentially prejudice the defendant in sentencing, obtaining appellate review, and protecting himself against double jeopardy. Id.

Washington's duplicity argument is based upon the government's presentation of multiple factual scenarios to prove Count II of the indictment. ³ The mere existence, however, of multiple theories of liability or multiple factual predicates for violation of a statute does not render the indictment duplicitous. See United States v. Hixon, 987 F.2d 1261, 1265 (6th Cir.1993) (an indictment under statute which subjects several alternative acts to the same punishment may charge any or all acts conjunctively without duplicity, and government need only prove violation of one of the alleged acts to prove violation of the statute); United States v. Dean, 969 F.2d 187, 195 (6th Cir.1992) (principal liability and liability for aiding and abetting charged in same count does not render count duplicitous; acts proscribed by statute, stated in disjunctive, may be charged in the conjunctive in the indictment). Count II of the indictment charged only one offense, possession with intent to distribute cocaine in violation of 18 U.S.C. § 841(a)(1). The government's presentation of multiple factual scenarios to prove that offense does not render the count duplicitous, and the district court did not abuse its discretion in refusing to dismiss the indictment on that ground.

Washington nevertheless argues that the government's introduction of multiple factual scenarios to prove Count II of the indictment required the trial court to specifically instruct the jury on the requirement of unanimity with respect to Count II. The trial court instead gave only a general instruction on unanimity. Because Washington did not object to the general unanimity instruction at trial, our review of the district court's decision not to give a specific unanimity instruction is limited to plain error. United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992).

A specific unanimity instruction is required only when one of three situations exists: 1) the nature of the evidence is exceptionally complex; 2) there is a variance between indictment and proof at trial; or 3) there is a tangible indication of jury confusion, as when the jury has asked questions of the court. Duncan, 850 F.2d at 1114. Ignoring the first two scenarios, Washington seizes upon the jury's conviction of both Smith and himself on the conspiracy count, combined with his conviction for the substantive offense of possession with intent to distribute and Smith's conviction for simple possession, to assert that the jury's verdict is "inconsistent and cannot be explained other than by a determination that the jury applied the incorrect legal standard." According to Washington, this allegedly inconsistent verdict indicates a tangible level of jury confusion requiring a specific unanimity instruction. ⁴

We do not agree that the jury's verdict in this case was logically inconsistent. The jury could have found that Smith conspired with the defendant to distribute crack cocaine, but did not herself possess with intent to distribute crack cocaine in August, 1993, as Count II charged. Such reasoning would not be logically inconsistent. Because the verdict is not logically inconsistent, the level of jury confusion necessary for a specific unanimity instruction is not present. Accordingly, the district court did not commit plain error in charging the jury with only the general unanimity instruction. Duncan, 850 F.2d at 1113-14 (only general instruction required when two or more factual bases for conviction are contained within a specific count of indictment).

B.

Washington's next claim is that the evidence adduced at trial was insufficient to support his conviction for using or carrying a firearm in furtherance of a drug-trafficking offense under 18 U.S.C. § 924(c)(1). We review Washington's challenge to the sufficiency of the evidence in the light most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We must affirm if "any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt." Id.

Section 924(c)(1) provides that "[w]hoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to imprisonment for five years...." 18 U.S.C. § 924(c)(1). Because the statute is written in the disjunctive, a defendant can be convicted under § 924(c)(1) if he either uses or carries a firearm in relation to a drug-trafficking offense. Bailey v. United States, 516 U.S. 137, ----, ...