[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 00-10729 FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT 09/27/00 D. C. Docket No. 99-00062-CR-RH-4 THOMAS K. KAHN CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY SWATZIE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________ (September 27, 2000)
Before COX, WILSON and GIBSON*, Circuit Judges.
COX, Circuit Judge:
* Honorable John R. Gibson, U. S. Circuit Judge for the Eighth Circuit, sitting by designation. Anthony Swatzie appeals his conviction and sentence for possession of cocaine
base and cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a). His
appeal presents the issue whether, in light of Apprendi v. New Jersey, 120 S. Ct. 2348,
2362-63 (2000), it was plain error for the district court to sentence Swatzie according
to its finding, by a preponderance of the evidence, that Swatzie possessed the right
kind and sufficient amount of drugs to subject him to an heightened statutory
maximum sentence. We affirm.
I. Facts and Procedural History
According to the trial evidence — which was uncontradicted, because the
defense offered no evidence — Swatzie, who served as a confidential informant to the
Florida Department of Law Enforcement, was also selling powder and crack cocaine
on a regular basis from at least Thanksgiving 1998 to the time of his arrest in July
1999. Swatzie came to the authorities’ attention by selling powder cocaine to another
confidential informant, David Lowe. Upon Swatzie’s arrest at his home, Swatzie
permitted law enforcement officers to search his house. Swatzie offered to cooperate,
directed officers to drugs and currency in his bedroom, and denied that his wife (the
other resident of the house) was involved in drug dealing. Among the drugs found in
the bedroom were 21.1 gm of cocaine base and 135.9 gm of cocaine powder. Swatzie
2 confessed to buying powder cocaine from South Florida and then cooking some of it
into crack cookies for a regular customer.
The indictment charged that Swatzie “did knowingly and intentionally possess
with intent to distribute cocaine base, commonly known as ‘crack cocaine,’ and
cocaine hydrochloride, controlled substances, in violation of Title 21, United States
Code, Sections 841(a) and (b)(1)(B).” (R.1-1 at 1.) The jury was instructed that it
could find Swatzie guilty of the charged offense if “the Defendant knowingly and
willfully possessed cocaine base or cocaine hydrochloride as charged” and “the
Defendant possessed the substance with the intent to distribute it.” (R.1-17 at 10.)
The jury was not told what 21 U.S.C. § 841(b)(1)(B) was (it is the section imposing
enhanced statutory sentencing ranges for certain kinds and quantities of drugs
possessed), and the court did not ask the jury to find either what kind of cocaine
Swatzie possessed or how much. Swatzie did not object to the indictment or the jury
charge, agreeing with the Government that the jury charge was (except in respects not
relevant here) “fine.” (R.3 at 4.) Nor did Swatzie ask for a special verdict of any
kind.
Swatzie did, however, put the amount of and form of cocaine at issue by
objecting to the presentence report’s findings as to these two facts. But at sentencing
Swatzie’s counsel characterized this objection only “as a matter of preserving that
3 issue, if Mr. Swatzie takes an appeal,” and offered no evidence or argument except to
say that “Mr. Swatzie has always maintained that he didn’t make those statements,”
probably referring to Swatzie’s statement to authorities that he had cooked up the
crack found in his house for a habitual customer. (R.4 at 3.) The district court
overruled Swatzie’s objection and found, by a preponderance of the evidence offered
at trial and in reliance on the presentence investigation report, that Swatzie was
responsible for 1330 gm of cocaine powder and 136 gm of crack. This amount
included estimates of amounts involved in prior deals described by witnesses, as well
as the amounts found in Swatzie’s house.
The district court adopted the presentence report’s calculation of Swatzie’s
sentence, which was as follows: Swatzie—who has many prior felony drug
convictions—is a “career offender,” and as such his offense level is based on the
statutory maximum sentence for his offense. U.S.S.G. § 4B1.1. The crack amount
found by the district court alone largely exceeds the floor necessary under 21 U.S.C.
§ 841(b)(1)(B) to make Swatzie eligible for a statutory maximum sentence of life in
prison. Because the statutory maximum here is life, the career-offender guideline
gives Swatzie an offense level of 37. See id. § 4B1.1(A). An offense level of 37 and
Swatzie’s criminal history category of VI yield a sentencing range of 360 months to
4 life. The district court sentenced Swatzie to life in prison. Swatzie appeals his
conviction and sentence.
II. Issues and Standard of Review
Swatzie presents two issues that warrant discussion.1 First, he contends that the
district court erred in sentencing him to life when the jury’s verdict was ambiguous
as to what form of cocaine he possessed with intent to distribute. The jury could have
found, Swatzie argues, that he possessed only the cocaine powder that he sold to
David Lowe, and not the crack that authorities found in Swatzie’s residence. Were
that the case, according to Swatzie, his statutory maximum sentence would have been
only 30 years.2 This issue, Swatzie points out, is one flagged in Edwards v. United
States, 118 S. Ct. 1475, 1477 (1998), but not decided. See id. (“Of course, petitioners’
statutory and constitutional claims would make a difference if it were possible to
argue, say, that the sentences imposed exceeded the maximum that the statutes permit
for a cocaine-only conspiracy.”)
1 Swatzie also argues that the district court erred in instructing the jury in an aiding-and-abetting theory though none appeared in the indictment. The district court did not err, plainly or otherwise. See United States v. Muñoz, 681 F.2d 1372, 1375 (11th Cir. 1982) (“There is no requirement that the aiding and abetting statute be cited in the indictment for conviction to be obtained upon a theory of aiding and abetting.”).
2 This is the statutory maximum imposed by 21 U.S.C. § 841(b)(1)(C) on defendants with a prior felony drug conviction who possess less than 500 gm of cocaine powder.
5 Swatzie’s second contention is closely related to the first. He argues that the
quantity of drugs found by the district court permitted the court to impose a sentence
above the lowest statutory maximum for possession with intent to distribute.
According to Swatzie, these facts were therefore elements of the crime, and they
should thus have appeared in the indictment and been addressed by a jury instruction
requiring the jury to find how much of which drugs Swatzie possessed.
Swatzie’s issues are so closely intertwined as to be inseparable. Both are about
the proper procedure for establishing facts that permit the imposition of a sentence
under 21 U.S.C. § 841(b) that exceeds the lowest statutory maximum for possession
of drugs with intent to distribute; the only distinction between the issues is that the
facts — type of drugs and quantity of drugs — are different. We therefore treat
Swatzie’s two issues together as a single issue: Whether the kind of drugs that Swatzie
possessed with intent to distribute, and the quantities of those drugs that he possessed,
may properly be omitted from the indictment and found by the court by a
preponderance of the evidence.
Our resolution of Swatzie’s case, however, has another overlay of analysis.
Swatzie did not timely object to the indictment or the jury instructions, nor did he
request a special verdict. As he admits, Fed. R. Crim. P. 52(b) thus limits our review
6 to one for plain error only. See United Stated v. Pielago, 135 F.3d 703, 708 (11th Cir.
1998).
III. Discussion
“Before an appellate court can correct an error not raised at trial, there must be
(1) error, (2) that is plain, and (3) that affect[s] substantial rights. . . . If all three
conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461,
466-67, 117 S. Ct. 1544, 1548-49 (1997). We consider each element of this test
seriatim and conclude that we must affirm.
A. Was there error, and was it plain?
Swatzie tackles the first elements of the plain-error test mostly in reliance on
the recent case of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), which
issued after the district court had sentenced Swatzie, and which according to Swatzie
plainly makes drug quantity and type elements of the crime that must be alleged in the
indictment, submitted to the jury, and found beyond a reasonable doubt. Apprendi
was convicted in a New Jersey court on a plea of guilty to possession of a firearm for
an unlawful purpose. The statutory sentencing range for that offense is five to ten
7 years, but New Jersey has a separate “hate crime” statute that, upon a finding of a
purpose of discriminatory intimidation in committing the crime, imposes a sentencing
range of ten to twenty years. The New Jersey court held a post-plea evidentiary
hearing and found that Apprendi’s conduct — firing into a black family’s house —
was, by a preponderance of the evidence, for the purpose of racist intimidation. It
accordingly sentenced Apprendi to 12 years in prison. See id. at 2352. The Supreme
Court declared this procedure to be in violation of the Sixth and Fourteenth
Amendments because it removed an element of the enhanced-sentence crime from the
jury’s consideration. The rule that the Sixth and Fourteenth Amendments impose, the
Court held, is 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. at 2362-63. Apprendi did not
argue that his indictment unconstitutionally omitted the sentence-enhancing intent,
and the Supreme Court “thus [did] not address the indictment question separately.”
Id. at 2356 n.3.
The Government’s initial brief merely “[a]ssum[ed] arguendo” that Apprendi’s
rule applied to enhanced drug sentences imposed under 21 U.S.C. § 841(b)(1)(B).
(Gov’t Br. at 7.) But under intervening Department of Justice instructions, the
Government filed a “Notice of Change of Position,” announcing that it conceded that
8 Apprendi applied to sentences imposed under § 841, and acknowledged at oral
argument that “it was hard to get up with a straight face” and argue that Apprendi did
not apply here. The Government did, however, contend that any suggestion in
Apprendi that the indictment needed to refer to the sentence-increasing facts was not
binding because the Court did not directly address the question.
We prefer in this case to take the Government’s first recommended approach
as to issues surrounding both the failure to submit the drug issues to the jury and the
sufficiency of the indictment: we assume arguendo that there was error, and that it was
plain. There are at least two reasons not to answer those questions now. First,
holdings on these questions are not necessary to our affirmance of Swatzie’s
conviction and sentence; for the reasons we discuss below, Swatzie has not satisfied
the other two parts of the plain-error test. Second, we are not fully informed. Because
of the Government’s concession, both sides of the jury-submission issue have not
been addressed. Moreover, because the Government did not consider the sufficiency
of the indictment to be properly raised in Swatzie’s brief — while we construe
Swatzie’s brief liberally and consider the issue raised, Swatzie’s treatment of the issue
was indeed cursory, at best — the Government has not responded to Swatzie’s
contentions in writing. It would not be prudent for us to resolve such important
questions on such briefing, especially when there are other cases pending in which the
9 Government has fully briefed Apprendi’s effect on indictments alleging § 841
offenses, and when agreeing with Swatzie would require us to declare circuit
precedent overruled. See United States v. Hester, 199 F.3d 1287, 1291 (11th Cir.
2000) (amount of drugs not element of offense); United States v. Perez, 960 F.2d
1569, 1574 (11th Cir. 1992) (indictment need not allege drug quantity for enhanced
sentence to apply).
Thus, merely assuming arguendo that Swatzie could show error, and that it
would be plain, we turn to the other two parts of the plain-error test.
B. Did the error affect Swatzie’s substantial rights?
Whether or not error occurred, Swatzie cannot show either that it had an effect
on his substantial rights or sufficient reason for us to exercise our rarely-invoked
power to correct plain error, and he thus cannot satisfy either element three or element
four of the plain-error test. Swatzie was arrested in a sting and, upon leading
authorities to the 100-plus grams of cocaine and twenty-odd grams of cocaine base in
his house, admitted to possession of the cocaine base and cocaine hydrochloride. He
offered no evidence to dispute whether he had admitted to possessing the cocaine,
even when given the opportunity to do so at sentencing, and did not seek to discredit
the sources of the evidence against him.3 We can fairly say in these circumstances
3 At sentencing Swatzie did, in conclusory fashion, challenge the amount and type of drugs attributed to him. In similar circumstances when the omitted element of the offense was
10 that there was no serious dispute that Swatzie possessed at least 5 gm of cocaine base,
enough for the increased statutory maximum, and no evidentiary basis existed for the
jury reasonably to have found that Swatzie possessed drugs with intent to distribute,
but did not possess both cocaine base and powder at least in the amounts the
authorities bagged at Swatzie’s house. And as long as the jury found that Swatzie
possessed 5 gm of cocaine base with intent to distribute, Swatzie’s sentence — both
under § 841 and, incidentally, under the Guidelines — would have been identical.
As to the sufficiency of the indictment, moreover, Swatzie does not even argue
that he did not know before trial that the quantity or type of drugs could affect his
sentence. Indeed, the indictment did cite § 841(b)(1)(B), the quantity-enhancement
subsection under which Swatzie was sentenced. The Government also gave Swatzie
notice two months before trial, and only a week after the indictment was filed, that the
Government believed Swatzie to be subject to “imprisonment from ten years to life”
on count one, the § 841 count. (R.1-4 ¶ 10.)
Thus, the failure to submit the issues of the kind and quantity of drugs to the
jury, or mention them in the indictment, could not have “affected the outcome of the
the materiality of a misrepresentation, the Supreme Court did not consider such a conclusory challenge enough to create a real dispute, and we reach the same conclusion. See Johnson v. United States, 520 U.S. 461, 470 n.2, 117 S. Ct. 1544, 1550 n.1 (1997) (On Rule 50 motion, defendant said, “I would argue that the element of materiality has been insufficiently proven and that the Court ought to grant a judgment of acquittal.”).
11 district court proceedings.” United States v. Olano, 507 U.S. 725, 735, 113 S. Ct.
1770, 1778 (1993). Swatzie counters, though, that when the district court wrongly
takes an issue from the jury, and decides it according to a lower burden of proof, we
must presume prejudice. We disagree. Swatzie’s best case is Sullivan v. Louisiana,
which held that the failure to instruct the jury in a constitutionally sufficient
reasonable-doubt standard can never be harmless beyond a reasonable doubt. 508
U.S. 275, 281, 113 S. Ct. 2078, 2082 (1993). For two reasons, Sullivan does not
govern this case.
First, the Supreme Court has refused to extend Sullivan’s presumption of
prejudice to the omission of an element from the jury instructions. See Neder v.
United States, 119 S. Ct. 1827, 1834-36 (1999) (materiality element of fraud offense
improperly determined by judge rather than jury). The error in Neder is in material
respects indistinguishable from error under Apprendi: A fact issue due to be resolved
by a jury using a reasonable-doubt standard instead went to the judge, who used a less
exacting standard, but because the error is limited to a single element, we have a basis
on which to imagine what a fully instructed jury would have done. See id. at 1833,
1837.
Second, Sullivan was apparently not a plain-error case. The standard for
prejudice in plain-error review, regardless of the error’s constitutional nature, is not
12 whether the error is harmless beyond a reasonable doubt (the harmless-error standard
for preserved constitutional error4), but Fed. R. Crim. P. 52(a)’s ordinary harmless
error standard, which is whether the error actually “had substantial influence” on the
outcome, or leaves us in “grave doubt” that it did (meaning that “the matter is so
evenly balanced that [the judge] feels himself in virtual equipoise”), O’Neal v.
McAninch, 513 U.S. 432, 437-38, 435, 115 S. Ct. 992, 995, 994 (1995) (quoting in
part Kotteakos v. United States, 328 U.S. 750, 764, 66 S. Ct. 1239, 1248 (1946)). See
Olano, 507 U.S. at 734, 113 S. Ct. at 1778. Given our ability to size up a dispute over
drug quantity and type — or rather to note its absence — we can confidently say that
whatever the circumstances in some cases may be, there is not a grave doubt here
about the lack of effect.
C. Should we exercise our discretion to notice the plain error?
Even if Swatzie were right, nonetheless, that we must presume an effect on his
substantial rights in these circumstances, we would still have to ask whether we
should exercise our plain-error discretion to correct an error that “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.” United States v.
Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392 (1936). When the evidence of an
element wrongly taken from the jury is “overwhelming,” “that question must be
4 See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).
13 answered in the negative.” Johnson, 520 U.S. 461, 470, 117 S. Ct. 1544, 1550
(1997). As we explained above, a jury could not in this state of evidence have
concluded that Swatzie possessed a controlled substance with intent to distribute, but
did not possess at least 5 gm of cocaine base. Nor has Swatzie hinted that, for lack of
notice from the indictment, he had difficulty disputing the issues of either the kind of
drugs or the quantity. Reversing the judgment in these circumstances would thus
itself “bestir[] the public to ridicule” the judicial process. Id. at 470, 117 S. Ct. at
1550 (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)). So even were
there plain error here presumptively affecting Swatzie’s substantial rights, we would
decline to notice it.
IV. Conclusion
For the foregoing reasons, Swatzie’s conviction and sentence are affirmed.
AFFIRMED.