Title United States v. Chapple
LEXSEE 985 F2D 729
UNITED STATES OF AMERICA v. CHARLES CHAPPLE, a/k/a Anthony Moore, Mark Clayton, Appellant UNITED STATES OF AMERICA v. DONALD E. SMITH, JR., Appellant
No. 92-3102, No. 92-3107
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
985 F.2d 729; 1993 U.S. App. LEXIS 2150
December 8, 1992, Submitted Under Third Circuit Rule 12(6) February 11, 1993, Filed
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Crim. No. 91-00111--01). (D. C. Crim. No. 91-00111--
PROCEDURAL POSTURE: Defendants sought review of a decision of the United States District Court for the Western District of Pennsylvania, which convicted and sentenced defendants for conspiring to distribute cocaine and to possess cocaine with the intent to distribute it in violation of 21 U.S.C.S. § 846, and for possession of co- caine with the intent to distribute it in violation of 21
U.S.C.S. § 841.
OVERVIEW: Defendants were convicted for conspir- acy to possess and distribute cocaine in violation of 21
U.S.C.S. § 846, and one defendant was also convicted for possession with intent to distribute, in violation of 21
U.S.C.S. § 841. Defendants were sentenced according to a jury finding that the weight of the cocaine involved in their offenses was over five kilograms. The court affirmed the convictions finding their arguments lacked merit but reversed their sentences because the district court failed to make its own determination as to the weight of the co- caine, as required by 21 U.S.C.S. 841(b). The court found that the district court erred in finding that the weight of cocaine was an element of the substantive offense and was therefore a jury question that was entitled to preclusive effect as the law of the case. The court held that the weight of the drugs was a sentencing issue to be decided by the judge rather than the jury and remanded for resentencing with the district court making an explicit factual finding as to the weight of the cocaine.
OUTCOME: The court affirmed the convictions for con-
spiracy and possession of cocaine, but vacated their sen- tences and remanded for the district court to make an ex- plicit factual finding as to the weight of cocaine involved in their offenses and to resentence them accordingly. The court found that the district court erred in basing the sen- tences upon the jury's finding as to the weight of cocaine, without making its own finding.
Criminal Law & Procedure > Sentencing > Imposition
Criminal Law & Procedure > Sentencing > Imposition
HN1 The weight of the drugs involved is a sentencing issue that must be decided by the judge rather than the jury.
Criminal Law & Procedure > Sentencing > Imposition
HN2 21 U.S.C.S. § 841(b), which assigns different sen- tencing ranges to different weights of particular drugs, states that except as otherwise provided any person who violates 21 U.S.C.S. § 841(a) shall be sentenced as fol- lows. Thus, § 841(b) is merely a penalty provision to be used at sentencing, after conviction of the substantive crime.
Criminal Law & Procedure > Sentencing > Imposition
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury
HN3 The district court is not bound by the jury's ver- dict despite the jury's finding as to the quantity of drugs involved in the conspiracy or scheme.
COUNSEL: PAUL R. GETTLEMAN, RD #2 Box 327, Portersville, PA 16051, Attorney for Appellant, Charles. Chapple. THOMAS S. WHITE, Federal Public Defender,
985 F.2d 729, *; 1993 U.S. App. LEXIS 2150, **1
KAREN SIRIANNI GERLACH, Asst. Federal Public Defender, 415 Convention Tower, 960 Penn Avenue, Pittsburgh, PA 15222, Attorneys for Appellant, Donald E. Smith, Jr.
THOMAS W. CORBETT, JR., United States Attorney, PAUL J. BRYSH, Assistant U.S. Attorney, BONNIE R. SCHLUETER, Assistant U.S. Attorney, 633 U.S. P.O. & Courthouse, Pittsburgh, PA 15219, Attorneys for Appellee, United States of America.
JUDGES: Before: SCIRICA, ALITO, and
HIGGINBOTHAM, Circuit Judges
OPINION: *729 OPINION OF THE COURT
ALITO, Circuit Judge:
Following a joint jury trial in the United States District Court for the Western District of Pennsylvania, Charles Chapple and Donald E. Smith, Jr. were convicted of con- spiring to distribute cocaine and to possess cocaine with the intent to distribute it, in violation of 18 U.S.C. § 846. Smith was also convicted of possession of cocaine with the intent to distribute **2 it, in violation of 18 U.S.C.
§ 841. The district court then sentenced Chapple to 170 months of imprisonment, 60 months of supervised re- lease, and a $50.00 special assessment. The court sen- tenced Smith to 120 months of imprisonment, 48 months of supervised release, and $100.00 in special assessments. Each defendant filed a timely notice of appeal. We affirm their convictions, but we vacate their sentences and re- mand for the district court to make an explicit factual finding as to the weight of cocaine involved in their of- fenses and to resentence them accordingly.
On May 7, 1991, Chapple drove from Los Angeles to a United Parcel Service (UPS) office in Baldwin Park, California, apparently unaware that he was under surveil- lance by police investigating his suspected *730 in- volvement in cocaine trafficking. Chapple gave UPS a par- cel addressed for delivery to "Don Smith" in Pittsburgh. The parcel had a fictitious California return address. At the request of the Los Angeles police, UPS employees set the parcel aside until "Ringo," a specially trained police dog, could sniff it. Ringo reacted to the parcel by "alerting," indicating the probable presence **3 of drugs. A war- rant was obtained, and the parcel was opened. It contained five packages of cocaine, each weighing approximately one kilogram. The Los Angeles police set aside four of these packages, repacked the parcel with one of the pack-
ages, and arranged for UPS to ship it to Pittsburgh for a controlled delivery. The next day, Smith went to a Mail Boxes, Etc. location in Pittsburgh and took delivery of the parcel from an Allegheny County detective posing as an employee. After leaving with the parcel, Smith was ar- rested a few blocks away. Chapple, who in the meantime had flown to Pittsburgh, was arrested later the same day. Indictment, trial, conviction, and sentencing followed.
A. On appeal, both defendants advance numerous ar- guments. We hold that all but one of these arguments lack merit or are not properly before us. n1 One issue, however, requires discussion.
n1 Chapple also contends that the district court erred: (1) in admitting evidence of the contents of the parcel that he attempted to ship via UPS and that was opened pursuant to a warrant; (2) in admitting evidence of items discovered during a search of his Los Angeles residence pursuant to a warrant; (3) in admitting evidence of items discovered during a search of his Pittsburgh residence pursuant to a warrant, particularly including false identification documents, firearms, and a bulletproof vest; (4) in admitting evidence of his "lavish lifestyle"; and (5) in refusing to grant his motion for a mistrial and/or severance when Smith's counsel elicited testimony that Chapple had refused to make a statement after being advised of his Miranda rights.
Smith also contends that the district court erred:
(1) in giving the jury a "deliberate ignorance" in- struction on the knowledge element of the offenses and (2) in allowing cross-examination of his mother concerning her knowledge of his earlier state con- viction for possessing a firearm without a license. After careful consideration, we decline to va- cate or reverse either defendant's conviction on any
of these grounds.
Smith further contends that various acts and omissions of his trial counsel and of Chapple's trial counsel (who had formerly been married to Smith's trial counsel) deprived him of his constitutional right to the effective assistance of counsel. Such claims generally cannot be made on direct appeal, and we do not believe any of the exceptions to this rule apply in this case. We therefore affirm Smith's conviction without deciding the merits of his inef- fective assistance claims, which he remains free to raise in subsequent proceedings.
985 F.2d 729, *730; 1993 U.S. App. LEXIS 2150, **4
Both defendants' sentences on the conspiracy count were based on a finding that the conspiracy involved more than five kilograms of cocaine. The district court itself, however, did not make such a finding. The judge had pre- viously decided, with the active encouragement of coun- sel for Chapple and against the contrary argument of the government, that the weight of cocaine involved was an element of the substantive offense and was therefore a jury question. The jurors were charged, over the government's objection, that they should not return a guilty verdict on the conspiracy counts unless they were convinced beyond a reasonable doubt that more than five kilograms of co- caine was involved. n2 The only evidence presented to the jury regarding weight was a stipulation that, if called, two government witnesses would testify that they had between them individually weighed the five packages of cocaine and that the total weight of the cocaine in the five packages was 5003 grams, just over the crucial five- kilogram line. n3 Since the jury returned guilty verdicts, it necessarily found that the weight was over that line.
weight of the cocaine. Although the argument in Smith's appellate brief relating to this issue is couched in terms of ineffective assistance of counsel, we interpret this portion of the brief as also advancing the same argument made by Chapple.
n4 We disagree with the government's argument on appeal that Chapple's counsel abandoned his re- quest to put in evidence regarding the weight of the cocaine. After the district court had stated that it thought that the jury's finding was "preclusive," Chapple's counsel stated (App. 3800):
Your Honor, that being the case, I don't think there's any necessity to call wit- nesses, although I do have witnesses in the courtroom.
We do not interpret this statement as a waiver of the argument.
n2 There appears to have been no instruction on conspiracy to possess with intent to distribute less than five kilograms of cocaine as a lesser included offense.
n3 There appears to be a dispute, which we do not now need to resolve, as to whether the lan- guage of the stipulation unequivocally shows that the weights given excluded the weight of the paper and tape in which the powder was packaged.
The exact weight of cocaine involved is of considerable
relevance to both defendants' sentences. n5
n5 By our calculations, if sentenced within the Guidelines range for the same offense but involv- ing just under five kilolgrams of cocaine rather than just over five kilograms of cocaine, Chapple would receive a sentence of between 121 and 151 months, rather than the 170 months he in fact received. Smith would receive a sentence of between 78 and
*731 By the time of sentencing, counsel for Chapple had changed his position and had adopted the government's earlier view that the weight of cocaine was a sentencing issue to be resolved by the court. Chapple's counsel sought to present evidence at the sentencing hear- ing to show that the actual weight involved was slightly under rather than slightly over five kilograms, and we interpret the record to mean that Smith's counsel joined this application. App. 3800. The district court, however, declined to consider any such new evidence because it
97 months, rather than the 120 months he in fact re- ceived. (Since Chapple's conviction for possession is "closely related" to his conviction for conspir- acy and the possession count involved substantially less cocaine, his total sentence for both counts is governed by the weight of cocaine involved in the conspiracy.)
believed that the jury verdict established that the weight was in excess of five kilograms and that that determina- tion was entitled to preclusive effect as the law of the case. For the same reason, the district judge did not dis- cuss the significance he himself would have assigned as a factfinder to the stipulation that the government's **6 witnesses would have testified that the cocaine weighed
5003 grams. n4 On appeal, Chapple contends that the dis- trict court erred in failing to make a finding regarding the
B. The position originally urged by the government in the district court -- that HN1 the weight of the drugs involved is a sentencing issue that must be decided by the judge rather than the jury -- is correct. See, e.g., United States v. Martinez-Zayas, 857 F.2d 122 (3d Cir. 1988); United States v. Gibbs, 813 F.2d 596 (3d Cir. 1987) (con- struing earlier version of the statute). The language of the relevant statutes draws a clear distinction between the facts necessary to support a conviction (as to which the defendant has a jury-trial right and the government has a
985 F.2d 729, *731; 1993 U.S. App. LEXIS 2150, **7
burden of proof beyond a reasonable doubt) and the facts necessary to support a particular sentence (as to which the judge is the fact-finder and the standard of proof is the pre- ponderance of the evidence). Title 21 U.S.C. § 841(a)(1) criminalizes particular actions involving controlled sub- stances. n6 HN2 Title 21 U.S.C. § 841(b), which assigns different sentencing ranges to different weights of partic- ular drugs, states that "except as otherwise provided . . . any person who violates subsection **8 (a) of this sec- tion shall be sentenced as follows . . . ." Thus, "§ 841(b) is merely a penalty provision to be used at sentencing, after conviction of the substantive crime." Gibbs, 813 F.2d at
n6 Smith was convicted of violating 21 U.S.C.
§ 841(a). Both Chapple and Smith were convicted of violating 21 U.S.C. § 846 which makes unlawful, inter alia, conspiracies to violate § 841(a).
We agree with the Sixth Circuit that HN3 "the dis- trict court is not bound by the jury's verdict . . . despite the jury's finding as to the quantity of drugs involved in the conspiracy or scheme. The district court committed error . . . by considering itself bound at sentencing by the jury's findings." United States v. Moreno, 899 F.2d 465
(6th Cir. 1990). Moreno's case was sent to the jury with the instruction that it could either convict of conspiracy to distribute at least five kilograms of cocaine **9 or con- vict of *732 the lesser included offense of conspiracy to distribute at least 500 grams but less than five kilograms of cocaine. The jury returned a verdict acquitting as to the larger quantity but convicting as to the lesser. On the government's cross-appeal, the Sixth Circuit held that the quantity of cocaine was not an element of the crime itself. The Sixth Circuit therefore remanded the case so that the government could attempt to prove to the judge by the preponderance of the evidence that at least five kilograms
of cocaine were involved in the conspiracy.
In Moreno, the government benefitted from the rule that a jury verdict including a finding as to weight does not preclude a contrary finding by the judge at sentencing. Here, the defendants stand to benefit from the same rule. We are sympathetic to the government's argument that, by changing their legal theories as to the proper fact-finder of the weight, "Chapple and Smith certainly sought to have the best of both worlds." We are also sympathetic to the district judge, who is now attacked by the defendants for erroneously adhering to the view that they themselves first urged upon him. We nonetheless think that a remand
**10 to the district court for a factual finding as to the weight of the cocaine involved in the conspiracy is appropriate. n7
n7 The relevant weight is that at the time of the offense, not, as the defense argued at one point in the district court, the weight at the time of sentenc- ing. See App. 3795-96.
While the defendants did stipulate at trial what the substance of the government's witnesses' testimony con- cerning the weight of the cocaine would have been had those witnesses been called, the defendants did not explic- itly stipulate that that testimony would have been accurate. This distinguishes this case from Martinez-Zayas, where the district court had no need to find facts because the par- ties had stipulated that the cocaine weighed 12 kilograms.
857 F.2d at 131.
For these reasons, we affirm the convictions of both defendants, but we vacate their sentences and remand these cases to the district court for further proceedings and resentencing in accordance with this opinion.