Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 561--Rebecca R. Pallmeyer, Judge.
Before Flaum, Chief Judge, and Manion, and Kanne, Circuit Judges.
The opinion of the court was delivered by: Manion, Circuit Judge
In 1998, Calvin Trennell was indicted for conspiring to possess with the intent to distribute cocaine and cocaine base, also known as crack cocaine, in violation of 21 U.S.C. secs. 841 and 846. The indictment did not identify the specific quantity of cocaine and cocaine base involved in the conspiracy, but rather referred to "wholesale quantities." Three days before his trial was scheduled to commence, the Supreme Court announced its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that factors, other than prior convictions, which increase a sentence beyond the statutory maximum must be submitted to the jury and proven beyond a reasonable doubt. At the pretrial hearing, the government suggested the possibility of reconvening the grand jury to obtain a superseding indictment in light of the concerns raised by the holding in Apprendi. However, because of scheduling concerns of both the government and defense counsel, Trennell was tried under the original indictment. At trial, the government's bill of particulars, jury instructions, and verdict form all referred to specific amounts of cocaine and cocaine base. The jury found that Trennell conspired to distribute more than 5 kilograms of cocaine and 50 grams of cocaine base. After trial, Trennell filed a motion for a new trial or for judgment notwithstanding the verdict, arguing that it was an error to allow a verdict form that permitted the jury to find specific amounts of cocaine attributable to him when the indictment was silent as to drug quantities. The district court denied Trennell's motion and sentenced him to 360 months in prison with a five-year period of supervised re lease, a fine of $5,000, and a mandatory special assessment of $100. Trennell appeals. We affirm the conviction and the sentence.
In 1997, the FBI identified Robert Allen, Jr. as a drug dealer and began a wiretap investigation. Through that operation, the government discovered that Calvin Trennell was a participant in a large drug conspiracy as both a cocaine and cocaine base dealer. Trennell, along with Allen and other co-conspirators, purchased cocaine and cooked it into cocaine base which they then re-sold. By cooking the cocaine with a mixture of baking soda, the quantity of drugs could be increased by 100%. Trennell also brokered cocaine and cocaine base transactions between Allen and other conspirators. Robert Allen testified at Trennell's trial that from 1996 through 1998, the conspiracy was involved in trafficking 100 kilograms of cocaine base.
One of the transactions between Allen and Trennell occurred while Trennell was under surveillance by the FBI in 1998. During that transaction, Trennell received $20,000 from Allen to buy cocaine. Police followed Trennell in his car after the transaction and a chase ensued. He attempted to dispose of the cash during the chase by throwing it out of his window but he was eventually arrested and the cash was retrieved. Following his arrest, in November 1998, the government indicted Trennell and twelve others with conspiring to possess with the intent to distribute wholesale quantities of cocaine and cocaine base and using a telephone in the commission of a felony. Each of the twelve co-defendants pleaded guilty to the charges and, in 1999, Trennell also pleaded guilty to the conspiracy count. However, because the government recommended a sentence double that of the other co-defendants, the court allowed Trennell to withdraw his plea and proceed to trial.
On June 26, 2000, three days before his trial was scheduled to commence, Apprendi v. New Jersey, 530 U.S. 466 (2000), was decided, holding that factors, other than prior convictions, which increase a sentence beyond the statutory maximum must be submitted to the jury and proven beyond a reasonable doubt. At a pretrial hearing the government raised a concern that the indictment, as drafted, might not comply with Apprendi because it did not mention specific quantities of cocaine and cocaine base. The government suggested that a superseding indictment including specific quantities of drugs could be obtained, or Trennell could proceed by way of information regarding the drug quantities charged. Trennell's counsel declined to waive Trennell's right to a grand jury and proceed by way of information. However, because of scheduling concerns of both Trennell's counsel and government counsel, the government decided not to obtain a superseding indictment and to proceed under the original indictment. At that time, Trennell's counsel did not object to proceeding without a change in the indictment.*fn1
During trial, the government provided a considerable amount of evidence against Trennell, including the testimony of several of the co-conspirators, testimony from agents about the wiretap investigation on Allen, and recorded telephone conversations involving Trennell. Specifically, this testimony described transactions between Trennell, Allen and other conspirators involving multiple kilograms of cocaine that were cooked into cocaine base as well as additional transactions involving dozens of kilograms of cocaine. Trennell himself testified that he received four and one-half ounces of cocaine from Allen, had it cooked into cocaine base, and then delivered the cocaine base to another conspirator. He defended his actions by testifying that he was recruited into the drug conspiracy by his cousin Jeff Bradley, who was acting as a confidential informant for the Drug Enforcement Agency (DEA). He argued that he relied on the statements by his cousin to arrive at the conclusion that he too was working as a confidential informant of the DEA.
At the trial's conclusion, the government submitted jury instructions that required that in order to sustain a charge of conspiracy, the jury had to find beyond a reasonable doubt that the conspiracy involved a specific amount of a controlled substance. The government also proposed a verdict form which instructed the jury to find beyond a rea sonable doubt a specific amount of drugs attributable to the conspiracy consistent with that instruction. The defendant did not object to the inclusion of specific drug amounts on the proposed verdict form or jury instructions. The jury found Trennell guilty on the conspiracy count of the indictment but did not reach a verdict on the telephone count which was later dismissed. On the verdict form the jury specifically found that the total amount of drugs distributed in the conspiracy was in excess of 5 kilograms of cocaine and 50 grams of cocaine base.
Trennell filed a post-trial motion for a new trial or for a judgment notwithstanding the verdict based on the court's evidentiary rulings concerning his testimony about his role as a secret DEA agent, as well as the language of the verdict form that allowed the jury to find him responsible for specific quantities of cocaine. The court denied his motion.
The government filed its Presentence Report ("PSR") on September 15, 2000. The report concluded that Trennell was responsible for 19.5 kilograms of cocaine and 5.25 kilograms of cocaine base. Over Trennell's legal objections to the PSR, and based largely upon the testimony of Trennell's co-conspirators, the court found that the evidence established that Trennell was accountable for more than 1.5 kilograms of cocaine base. Based on this amount of cocaine base, the court assigned to Trennell a base offense level of 38, pursuant to U.S.S.G. sec. 2D1.1(a)(3). Combined with a two-point sentencing enhancement for the substantial risk of injury related to the car chase and another two-point enhancement for Trennell's false testimony, Trennell was assigned an offense level of 42 which has a sentencing range of 360 months to life imprisonment. The district court then sentenced him to 360 months in prison with a five-year period of supervised release, a fine of $5,000, and a mandatory special assessment of $100. Trennell appeals.
On appeal, Trennell argues that because the indictment failed to specify a drug quantity, but the jury instructions and verdict form included a drug quantity, his indictment was constructively amended in violation of the Fifth Amendment. He also contends that the failure of thegovernment to include the specific drug quantities in the indictment violates Apprendi. Finally, he challenges the sufficiency of the evidence, arguing ...