The opinion of the court was delivered by: Richard Mills, District Judge.
Apprendi is the law of the land and is binding on this
However, Apprendi's holding does not result in the sentence
which Defendant seeks.
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
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."
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
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 ...