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U.S. v. SCOTT

September 27, 2000

UNITED STATES OF AMERICA, PLAINTIFF,
V.
ROBERT SCOTT, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge.

OPINION

Apprendi is the law of the land and is binding on this Court.

However, Apprendi's holding does not result in the sentence which Defendant seeks.

I. BACKGROUND

On June 11, 1999, a federal grand jury indicted Defendant for conspiring to possess with the intent to distribute and to distribute marijuana and cocaine in violation of 21 U.S.C. § 841 and § 846. Defendant's trial began on November 29, 1999. On December 15, 1999, the jury informed the Court that it was deadlocked and unable to reach a unanimous verdict. Accordingly, the Court declared a mistrial.

Defendant's re-trial began on April 3, 2000. On April 13, 2000, the jury found Defendant guilty of conspiracy as charged in the indictment, and the Court ordered the United States Probation Office to prepare a Presentence Investigation Report ("PSR"). Defendant has now raised the following unresolved objections to his PSR.

II. OBJECTIONS AND FINDINGS

A. APPRENDI*fn1

Defendant objects to the Court making factual findings regarding the type and amount of drugs which were distributed as part of the conspiracy of which he was convicted. Defendant argues that, pursuant to Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court cannot make factual determinations regarding any matter which would increase his statutory penalty. Defendant asserts that, because the jury did not determine the type of drugs and the amount of drugs distributed as part of the conspiracy, the Court should sentence him pursuant to 18 U.S.C. § 371 which is the statutory penalty provision for the crime of conspiracy to defraud the United States and which carries a maximum penalty of five years.

Although the Court followed the well-established law in this circuit at trial, in light of Apprendi, there is little doubt that this Court erred in instructing the jury that it need not decide, beyond a reasonable doubt, what type of narcotic(s) Defendant conspired to possess with the intent to distribute and to distribute and erred in failing to instruct the jury to determine, beyond a reasonable doubt, the amount of drugs which were distributed as part of the conspiracy. Apprendi, ___ U.S. at ___ - ___, 120 S.Ct. at 2362-63. The United States Supreme Court explained in Apprendi that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. The jury in this cause did not determine beyond a reasonable doubt the type and quantity of drugs distributed in Defendant's conspiracy, and the Court erred in failing to instruct the jury to make these determinations.

However, the Court believes that its failure to do so constitutes harmless error. Because Defendant did not object to the Court's failure to instruct the jury to determine the type of drugs distributed as part of the conspiracy nor did he object to the Court's failure to instruct the jury to determine the amount of drugs distributed, he is only entitled to relief if the Court's error was "plain." Fed.R.Crim.Pro. 52(b); see United States v. Garcia-Guizar, 227 F.3d 1125, 1129 (9th Cir. 2000) (holding that "we may not grant him relief unless the Apprendi error was `plain.'"); see also United States v. Jenkins, 2000 WL 1359666, * 1 (4th Cir. Sept. 21, 2000) (same); see also United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 2000) (same); see also United States v. Meshack, 225 F.3d 556, 575-78 (5th Cir. 2000) (same); see also United States v. Sheppard, 219 F.3d 766, 768-69 (8th Cir. 2000) (same); see also United States v. Mojica-Baez, 229 F.3d 292, 306-07 (1st Cir. 2000) (same); see also United States v. Smith, 223 F.3d 554 (7th Cir. 2000) (same). In order to overcome harmless error, Defendant must prove that: "(1) there was `error'; (2) the error was `plain'; and (3) the error affected `substantial rights.'" Garcia-Guizar, 227 F.3d at 1129, citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see Mojica-Baez, 229 F.3d at 306 (noting that "[p]lain error review requires four showings: that there was error; that it was plain; that the error affected substantial rights; and that the error seriously affected the fairness, integrity or public reputation of judicial proceedings."). Defendant "bears the burden of showing prejudice under the plain error test." Id.

In the instant case, the Court has already conceded that it erred in instructing the jury. Moreover, the Court acknowledges that this error is now, in the subsequent light of Apprendi, "plain."*fn3 However, the Court does not believe that this error affected Defendant's substantial rights. The United States Court of Appeals for the Seventh Circuit recently explained the law on this issue as it relates to improper jury instructions:

Lanier predictably insists that the district court failure to provide the unanimity instruction was a "structural" constitutional error within the meaning of Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), which would require us to reverse Lanier's conviction without evaluating the prejudicial effect of the error. Such structural errors are so intrinsically harmful that they require automatic reversal of conviction. See id. at 310, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302. The government disagrees and insists that the absence of a unanimity instruction is subject to harmless error analysis. Fortunately, the Supreme Court's decision last term in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), is helpful here.
In Neder, 119 S.Ct. at 1836, the Court held that omission of an element from the district court charge to the jury is not a structural constitutional error exempt from harmless error analysis. The Court explained that structural errors "infect the entire trial process," id. at 1833 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353, (1993)), and "necessarily render a trial fundamentally unfair." Neder, 119 S.Ct. at 1833 (quoting Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The Court recognized that trial errors escape harmless error review only in a "very limited class of cases" and cited the example of "the complete deprivation of counsel or trial before a biased judge" because such a defect necessarily renders the trial fundamentally unfair and vitiates all the jury's findings of guilt. Neder, 119 S.Ct. at 1833. In contrast, omission of an element of a crime is not a structural defect, nor is an error involving improper instruction on a single element of an offense. See id. at 183334 (citing California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (omission of an "intent or purpose" element of crime); Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (erroneous mandatory rebuttable presumption); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (erroneous ...

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