RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Crayton No. 02-5738 ELECTRONIC CITATION: 2004 FED App. 0038P (6th Cir.) File Name: 04a0038p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: W i l l i a m Y e so w i tch, BARBER, FOR THE SIXTH CIRCUIT BANASZYNSKI & GLIDEWELL, Louisville, Kentucky, for _________________ Appellant. Candace G. Hill, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee. UNITED STATES OF AMERICA , X ON BRIEF: William Yesowitch, BARBER, Plaintiff-Appellee, - BANASZYNSKI & GLIDEWELL, Louisville, Kentucky, for - Appellant. Candace G. Hill, Terry M. Cushing, ASSISTANT - No. 02-5738 UNITED STATES ATTORNEYS, Louisville, Kentucky, for v. - Appellee. Lawrence Edward Crayton, Jr., Lompoc, > California, pro se. , LAWRENCE EDWARD - CRAYTON, JR., also known as _________________ - Manny Harris and Alex - OPINION Winters, - _________________ Defendant-Appellant. - - ROGERS, Circuit Judge. Lawrence Crayton, Jr. (a/k/a N Manny Harris, Alex Winters, and Terrell Mason) appeals his Appeal from the United States District Court conviction of attempt, conspiracy, and possession of over five for the Western District of Kentucky at Louisville. kilograms of cocaine with the intent to distribute. After No. 98-00091—John G. Heyburn II, Chief District Judge. receiving a tip from a police department in another state, the Louisville Metro Police searched boxes from an incoming Argued: December 9, 2003 cargo plane for a package addressed to “Alex Winters.” After obtaining a warrant, the police opened the box, replaced the Decided and Filed: February 5, 2004 six kilograms of cocaine contained inside with filler, and delivered the package. Crayton, pretending to be Winters, Before: ROGERS and COOK, Circuit Judges; COHN, signed for the package at the delivery address. Crayton and District Judge.* his cousin, Andre Alexander, sped away in a vehicle with the package. Crayton and Alexander were followed by the police, and at some point during the chase, the box was opened and tossed out of the vehicle. Both men were arrested. During a joint trial, Alexander was acquitted, but the jury could not reach a verdict as to Crayton. A second jury * convicted Crayton of all three charges, and he was sentenced The Honorab le Avern Cohn, United States District Judge for the to three concurrent life terms of imprisonment. Because the Eastern District of Michigan, sitting by designation.
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district court did not violate the “rule of consistency” or err in Suburban and stated that he was Mr. Winters.2 Crayton deciding any of the other issues Crayton raises on appeal, we signed for the package as Alex Winters. At this time, the affirm the judgment of the district court. detective noticed there was another person in Crayton’s vehicle. That person was Andre Alexander, Crayton’s cousin. FACTS Crayton and Alexander left in the Suburban, but the police On April 15, 1998, Los Angeles, California, Police followed the vehicle without lights and sirens. During the Detective George Osborne, with the Narcotics Interdiction pursuit, Crayton and Alexander stopped for five minutes on Unit, received a tip that a box shipped via UPS and bound for the shoulder of a road. The officers described that stop by Louisville was suspicious because the return address was Crayton and Alexander as a countersurveillance move to see false. Osborne then alerted the Louisville Metro Police if anyone was following them. After several minutes, Department to the suspicious box. Crayton asked Alexander to open the box. While opening the box, Alexander found the sample cocaine bag left in the box The Metro Police K-9 unit was waiting at the UPS depot by the police, and he tossed the box and its contents out of the when the suspicious box arrived. The dog alerted on one box car window and into an alley. Crayton’s vehicle then sped up, shipped from California to Louisville, and the police got a the police turned on their lights and sirens, and a chase began. warrant for the package. The brown cardboard box was When Crayton drove into a high traffic area, the police opened from the bottom so as not to damage the label on the stopped the vehicle and arrested Crayton and Alexander. top. Inside, the police found Styrofoam peanuts and two packages wrapped in Christmas paper and cellophane tape. During the arrest, Crayton identified himself as “Manny Each package contained approximately three kilograms of Harris,” and he claimed to have no idea what was in the box. cocaine. The police then put a 4.5 gram sample of cocaine However, the police found the opened box near an alley along into the box along with dummy packages of non-narcotic the route Crayton had taken. filler wrapped to resemble the cocaine packages. A tracking device was added, and the box was resealed. Manny Harris was charged with trafficking in cocaine and tampering with physical evidence. Harris posted bond and Police set up surveillance around 541 North 44th Street, the fled. On July 7, 1998, a federal grand jury issued an destination listed on the label of the box addressed to “Alex indictment against Harris and Alexander. Count 1 of the Winters.” A detective disguised in a UPS uniform delivered indictment charged Harris with conspiring with Alexander the box to the address. The detective got out of the UPS truck and unknown persons to possess cocaine with the intent to and knocked on the door of the house, but no one answered.1 distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At this point, Crayton pulled up to the house in a blue Count 2 charged Harris and Alexander with attempting to possess cocaine with the intent to distribute. Count 3 charged them with actually possessing cocaine with the intent to
1 Police later discovered that the home was owned by Anthony 2 Anderson, an investo r who remodels houses for resale. The house was A “Manny Harris” bought a blue Suburban with cash around this vacant, and And erson did not know or give Crayton or any of his aliases time, although there is some confusion as to the actual date of the perm ission to use the house. purchase. No. 02-5738 United States v. Crayton 5 6 United States v. Crayton No. 02-5738
distribute. Crayton, then going by the name of Terrell Mason, acquitted, the remaining conspirator’s conviction must be and Alexander were arrested on January 2, 1999 in Los reversed for lack of sufficient evidence.” United States v. Angeles. In September 2000, a superseding indictment was Walker, 871 F.2d 1298, 1304 n.5 (6th Cir. 1989) (dictum). issued in which Crayton was named specifically and the However, the rule of consistency did not apply when co- quantity, six kilograms, of cocaine was added to the conspirators were tried separately and all but one were indictment. acquitted. United States v. Roark, 753 F.2d 991, 995-96 (11th Cir. 1985) (cited in United States v. Sachs, 801 F.2d 839, 845 A trial was held in December 2000, and the jury acquitted (6th Cir. 1986)). Likewise, if the charges against all but one Alexander but was unable to reach a verdict as to Crayton. alleged co-conspirator had been dismissed, the rule of Before his second trial, Crayton moved for a bill of consistency was inapplicable. Sachs, 801 F.2d at 845. particulars, but the district court denied the motion. Crayton was convicted on all counts in his second trial. He was The Supreme Court’s decision in United States v. Powell, sentenced to life in prison. 469 U.S. 57 (1984), rendered the so-called “rule of consistency” no longer good law. Before Powell, this court ANALYSIS applied the rule of consistency in United States v. Williams, 503 F.2d 50 (6th Cir. 1974). In Williams, a father and his I. Effect of the Prior Acquittal of Alexander adult son flew into a Cleveland airport, but one of their suitcases was lost. Williams, 503 F.2d at 52. The airline lost Crayton makes a number of arguments based on the prior baggage department found the bag and discovered that it acquittal of his co-conspirator Alexander. None have merit. contained large amounts of cocaine and heroin. Id. The airline gave the bag to the Drug Enforcement Administration, A. Powell’s Effect on the Rule of Consistency who substituted the real narcotics with a non-narcotic The district court properly denied Crayton’s motion to substance and gave the bag to the son. Id. The agents dismiss the superseding indictment based on the rule of followed the son to the motel room and eventually caught the consistency, which would require that one co-conspirator father, son, and another man, Willie Johnson, attempting to could not be convicted when all other co-conspirators are flush the narcotics down the toilet. Id. All three men were acquitted at the same trial, because that “rule” is no longer charged with possession and conspiracy, and the jury found good law. Before his second trial, Crayton moved to dismiss the father guilty of possession but could not reach a verdict as the superseding indictment because the indictment still to the conspiracy of the father or the other two men. Id. Prior contained Alexander’s name, even though Alexander had to the second trial, the possession charges against the son and been acquitted as a co-conspirator at the previous trial. This Johnson were dismissed. Id. At the second trial, all three court reviews de novo a district court’s denial of a motion to men were convicted of conspiracy. Id. dismiss an indictment on legal grounds. United States v. The court held that there was insufficient evidence to Campbell, 279 F.3d 392, 398 (6th Cir. 2002); In re Ford, 987 sustain Johnson and the son’s conspiracy convictions. Id. at F.2d 334, 339 (6th Cir. 1992). 54. The court then announced the “rule of consistency” by The rule of consistency at one time required “that, where all stating “[s]ince we have found that the convictions of Johnson possible co-conspirators are tried together, and all but one are and Williams, Jr. cannot stand, the conviction of Williams, Sr. must also fall. Where all other alleged co-conspirators are No. 02-5738 United States v. Crayton 7 8 United States v. Crayton No. 02-5738
acquitted, the conviction of one person for conspiracy will not allow criminal defendants to challenge inconsistent verdicts be upheld.” Id.; see also United States v. Sachs, 801 F.2d on the ground that in their cases the verdict was a product of 839, 845 (6th Cir. 1986) (stating in dictum, “if coconspirators some factor other than lenity. Id. at 66. Finally, the Court are tried together, an acquittal on conspiracy charges as to all relied on the independent review of the sufficiency of the but one coconspirator mandates acquittal on conspiracy evidence undertaken by the trial and appellate courts to afford charges as to the remaining defendant”). protection against jury irrationality or error. Id. at 67. Since we last applied the rule of consistency in Williams, a Powell does not discuss inconsistent jury verdicts among unanimous Supreme Court has held that inconsistent jury co-conspirators, but as a number of our sister circuits have verdicts are permissible. See Powell, 469 U.S. at 68-69. The held, Powell rendered the rule of consistency no longer good defendant in Powell was convicted of using the telephone to law. Thus, the acquittal of all but one co-conspirator during commit the felony of “conspiracy to possess with the intent to the same trial does not necessarily indicate that the jury found distribute and possession with intent to distribute cocaine,” no agreement to act. See United States v. Bucuvalas, 909 but she was acquitted of knowingly and intentionally F.2d 593, 597 (1st Cir. 1990); United States v. Thomas, 900 possessing cocaine with the intent to distribute. Id. at 60. F.2d 37, 40 (4th Cir. 1990); United States v. Zuniga-Salinas, She argued that the verdicts were inconsistent because she 952 F.2d 876, 877-79 (5th Cir. 1992) (en banc); United States was found guilty of conspiring to do something that she was v. Valles-Valencia, 823 F.2d 381, 381-82 (9th Cir. 1987); acquitted of, namely possession with the intent to distribute United States v. Andrews, 850 F.2d 1557, 1560-62 (11th Cir. cocaine. Id. The Court reaffirmed the holding of Dunn v. 1988) (en banc). Other circuits have recognized that the rule United States, 284 U.S. 390, 393 (1932), that “where truly of consistency does not survive Powell, without actually so inconsistent verdicts have been reached, ‘[t]he most that can holding. United States v. Dakins, 872 F.2d 1061, 1065 (D.C. be said . . . is that the verdict shows that either in the acquittal Cir. 1989) (Powell “cast[s] doubt” upon rule of consistency); or the conviction the jury did not speak their real conclusions, United States v. Mancari, 875 F.2d 103, 104 (7th Cir. 1989) but that does not show that they were not convinced of the (rejection of rule of consistency “makes good sense in light of defendant’s guilt.’” Id. at 64-65. The Court rejected the Powell”); Gov’t of the Virgin Islands v. Hoheb, 777 F.2d 138, argument that courts must assume that an inconsistent 142 n.6 (3d Cir. 1985) (rule of consistency “may be a vestige acquittal is necessarily “the one the jury ‘really meant.”’ Id. of the past”). See also Chad W. Coulter, Comment, The at 68. “It is equally possible that the jury, convinced of guilt, Unnecessary Rule of Consistency in Conspiracy Trials, 135 properly reached its conclusion on the compound offense, and U. PA . L. REV . 223 (1986). then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.” Id. at 65. The only contrary circuit opinion appears to be that of the Tenth Circuit. In United States v. Suntar Roofing, Inc., 897 The Powell Court relied specifically on the rationale that F.2d 469 (10th Cir. 1990), that court, while affirming “inconsistencies” often are the product of jury lenity, convictions based on the existence of unindicted recognizing “the jury’s historic function, in criminal trials, as co-conspirators, suggested that the rule of consistency may a check against arbitrary or oppressive exercises of power by have continuing vitality. The court noted that the trial court’s the Executive Branch,” and, that the Government is unable to conclusion that the rule of consistency was no longer good invoke review of such lenity. Id. at 65-66. The Court law “is substantially undercut by the fact that the Powell rejected as imprudent and unworkable a rule that would opinion does not discuss Hartzel [v. United States, 322 U.S. No. 02-5738 United States v. Crayton 9 10 United States v. Crayton No. 02-5738
680 (1944)] or expressly overturn the traditionally recognized The reasoning of Powell applies to co-conspirator cases exception.” Suntar Roofing, 897 F.2d at 475. As the First even though Powell itself did not involve co-conspirators. As Circuit has reasoned, however, the Tenth Circuit’s concern is the First Circuit reasoned, “an apparent failure to prove an not well founded: essential element of the offense would not distinguish conspiracy from any other case involving an inconsistent [T]he Hartzel decision to which the Tenth Circuit verdict.” Id. at 597. In a co-conspirator case just as much as referred did not involve inconsistent jury verdicts. in Powell, inconsistencies may be the product of jury lenity, Instead, the “only co-conspirators of petitioner named in given the jury’s historic function as a check on arbitrary the indictment” had their convictions set aside by judges exercises of power. In a co-conspirator case just as much as due to insufficient evidence. 322 U.S. at 682 n. 3 . . . . It in Powell, a rule that depended upon whether jury lenity was has been, and remains, the law that where the evidence actually a factor would be “imprudent and unworkable.” And against all of an individual’s alleged co-conspirators is finally, in a co-conspirator case just as in Powell, the deemed legally insufficient, the evidence against that independent review of the sufficiency of the evidence individual is by definition also insufficient. See, e.g., undertaken by the trial and appellate courts affords protection Morrison v. California, 291 U.S. 82, 93 [] (1934); against jury irrationality or error. It is thus clear that the “rule Gebardi v. United States, 287 U.S. 112, 116, 123 [] of consistency” previously recognized in this circuit did not (1932); United States v. Velasquez, 885 F.2d 1076, survive Powell. 1090-1091 and n. 13 (3d Cir. 1989) (expressly noting it was not applying the rule of consistency, court held that B. Unknown Conspirators an earlier appellate finding of insufficient evidence to convict the only alleged co-conspirator required finding Even if the rule of consistency survived Powell, reversal insufficient evidence as to the remaining defendant.); would not be required in the present case. We have held that United States v. Levario, 877 F.2d 1483, 1486 (10th Cir. “an individual’s conviction for conspiracy may stand, despite 1989) (trial court’s granting motion for judgment of acquittal of other alleged coconspirators, when the indictment acquittal as to only alleged co-conspirator precluded refers to unknown or unnamed conspirators and there is conspiracy conviction); United States v. sufficient evidence to show the existence of a conspiracy Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th Cir. between the convicted defendant and these other 1988) (same). A court’s determination that there is conspirators.” United States v. Anderson, 76 F.3d 685, 688- insufficient evidence to convict cannot be equated with 89 (6th Cir. 1996). Like the indictment in Anderson, Count a jury’s determination that a defendant, for whatever 1 of Crayton’s superseding indictment specifically mentions reason, should be acquitted. Accordingly, rather than Alexander and “other persons, known and unknown.” The there being any “conflict between Powell and Hartzel,” record presents ample evidence for a reasonable jury to have Suntar Roofing, 897 F.2d at 475-476, the Court’s concluded that Crayton conspired with unknown people in emphasis in Powell on the sufficiency of the evidence California who sent the package to Crayton, or unknown fully embraces the Hartzel ruling. See Andrews, 850 people in Louisville, to facilitate the delivery and/or F.2d at 1562 n. 15. distribution of the cocaine. Thus, Crayton’s conviction in the second trial would not violate the rule of consistency even if Bucuvalas, 909 F.2d at 596-97. it were still good law. No. 02-5738 United States v. Crayton 11 12 United States v. Crayton No. 02-5738
C. Constructive Amendment of Counts 2 and 3 it clearly mentioned that the burden of proof was on the Government when the court stated “[t]he indictment . . . Contrary to Crayton’s contentions, the Government against the defendant is not evidence of guilt. The defendant moreover did not constructively amend the superseding is presumed innocent by the law, and the presumption of indictment during the trial by not removing Alexander’s name innocence is always there. . . . The defendant need not prove and the aiding and abetting language from Counts 2 and 3 of anything. . . . The United States has the burden of proving the the superseding indictment. See e.g., United States v. defendant guilty beyond a reasonable doubt . . . .” J.A. at Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002). Count 2 of 778-79. The district court therefore did not err by reading the superseding indictment states “. . . Crayton . . . and . . . Alexander’s name in the indictment with the jury instructions. Alexander, each aided and abetted by the other, did attempt to knowingly and intentionally possess with intent to distribute II. The Effect of Beamus’s Testimony . . . cocaine . . . .” Count 3 is identical except “attempt to” is omitted. The case law of this circuit disposes of this claim. Crayton makes two arguments based on the fact that during In Anderson, in language almost identical to that of Count 2 Crayton’s second trial, the Government called Terri Beamus in this case, the indictment stated that the defendant aided and as a rebuttal witness. Beamus testified as to some individuals abetted two individuals who were acquitted at the same trial. who may have aided Crayton with possible drug activity in Anderson, 76 F.3d at 689. In that case we held, Louisville. Beamus had not been called to testify in the first trial against Crayton and Alexander. The rebuttal testimony The indictment gave defendant notice that he was being of Beamus does not require a reversal of Crayton’s conviction charged under count two both with being an aider and because no bill of particulars was required, there was no abettor and with the substantive crime of attempt. unfair surprise in her testimony, and there was no violation of Indeed, the punctuation of the indictment sets off the Brady v. Maryland, 373 U.S. 83 (1963). “aided and abetted” phrase from the crime of attempt to possess cocaine with intent to distribute. The jury was A. Bill of Particulars entitled to find defendant guilty of the substantive crime of attempt even though his codefendants were found not First, the district court did not abuse its discretion in guilty of attempt or aiding or abetting his attempt. denying Crayton’s Motion for a Bill of Particulars because it is unlikely that Crayton would have gleaned anything from a Id. For identical reasons, there was no constructive bill of particulars. This court reviews the district court’s amendment of Crayton’s superseding indictment. denial of Crayton’s motion for a bill of particulars for an abuse of discretion. United States v. Perkins, 994 F.2d 1184, D. Alexander’s name in the Jury Instructions 1190 (6th Cir. 1993). To make a successful challenge to a district court’s denial of a motion for a bill of particulars, “the Finally, the district court did not somehow create a defendant must show not only that the court abused its mandatory presumption that Alexander was a co-conspirator discretion, but that defendant actually suffered surprise or by including Alexander’s name in the jury instructions. other prejudice at trial.” United States v. Salisbury, 983 F.2d Alexander’s name was only mentioned in the jury instructions 1369, 1375 (6th Cir. 1993). when Count 1 of the superseding indictment was read. The district court never mentioned any type of presumption, and No. 02-5738 United States v. Crayton 13 14 United States v. Crayton No. 02-5738
Between the first and second trials, Crayton moved for a B. Alleged Brady Violation bill of particulars to find out more about the conspiracy charge since Alexander had been acquitted. The district court The Government also did not illegally withhold exculpatory denied this motion shortly before trial. Crayton argues that evidence from Crayton. The Sixth Circuit reviews de novo a the district court erred by denying his motion for a bill of district court determination that the prosecution did not particulars and that he suffered prejudice because, he alleges, wrongfully withhold exculpatory evidence. United States v. the Government unexpectedly changed the theory of its case Tarwater, 308 F.3d 494, 515 (6th Cir. 2002). Where, as in in rebuttal by placing into evidence, during rebuttal, names of this case, the defense counsel did not make a motion for a potential co-conspirators without any corroborative evidence. mistrial or raise the question of a possible Brady violation to the district court, we review at most for plain error. See Crayton claims that the second trial was virtually identical United States v. Delgado, 350 F.3d 520, 527 n.10 (6th Cir. to the first trial until Beamus’s testimony, but that her 2003).3 As we explain, the district court did not err, much testimony was an unfair surprise. The function of a bill of less commit plain error. particulars is to “to minimize surprise and assist [the] defendant in obtaining the information needed to prepare a Crayton contends that the prosecution did not provide him defense and to preclude a second prosecution for the same with a prior statement by Beamus, in which she corroborated crimes.” Id. A bill of particulars “is not meant as a tool for Crayton’s story, until shortly before she testified. During her the defense to obtain detailed disclosure of all evidence held testimony, Beamus apparently changed her story and no by the government before trial.” Id. longer corroborated Crayton’s version of events. Thus, since the Government did not give the defense Beamus’s prior The Government was not aware of Beamus’s testimony inconsistent statement until shortly before her testimony, until the day before her rebuttal, and it is thus unlikely that a Crayton’s due process rights are said to have been violated bill of particulars given before trial would have provided under Brady v. Maryland, 373 U.S. 83 (1963). Crayton with helpful information. Further, the Government is not required to furnish the name of all other co-conspirators Beamus’s prior statement was not explicitly exculpatory in in a bill of particulars. United States v. Rey, 923 F.2d 1217, that it did not tend to negate directly the guilt of the 1222 (6th Cir. 1991). Therefore, even if the Government had defendant. Instead, Beamus’s statement was nonexculpatory known of Beamus’s testimony at the beginning of trial, the evidence that could be used to impeach her testimony. identities of the possible co-conspirators she named would not “Impeachment evidence, however, as well as exculpatory need to be revealed in a bill of particulars. Crayton knew that evidence, falls within the Brady rule.” United States v. unnamed persons were referred to in the conspiracy count of Bagley, 473 U.S. 667, 676 (1985). the indictment. Although Beamus’s testimony may have been unexpected, it was not an unfair surprise that the grant of a bill of particulars would have avoided, and the district court did not abuse its discretion in this regard. 3 It could also b e said that defend ant waived his Brady claim, such that even plain error review is not required. See United States v. Scarborough, 43 F.3d 1021, 1025 (6th Cir. 19 94); see also United States v. Reeves, No. 99-1248, 2000 W L 687649, at **2 (6th Cir. May 19, 2000) (applying this concept to a Brady claim). No. 02-5738 United States v. Crayton 15 16 United States v. Crayton No. 02-5738
However, Crayton suffered no prejudice because the “that increases the penalty for a crime beyond the prescribed Government did produce the impeachment material in a statutory maximum must be submitted to a jury, and proved manner consistent with the requirements of Brady. Where a beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. defendant claims a violation of Brady because of the Crayton was sentenced to life imprisonment for each count, Government’s failure to produce impeachment evidence, “so which is within the statutory maximum for possession of over long as the defendant is given impeachment material, even five kilograms of cocaine. See 21 U.S.C. § 841 (b)(1)(A). exculpatory impeachment material, in time for use at trial, we Crayton argues that the district court erred by sentencing him fail to see how the Constitution is violated.” United States v. to the statutory maximum for possessing over five kilograms Presser, 844 F.2d 1275, 1283 (6th Cir. 1988). of cocaine without a specific jury finding as to the quantity he possessed.4 The record indicates that Beamus’s one-page prior inconsistent statement was turned over to the defense soon The district court complied with the requirements of after the Government decided to call Beamus as a witness and Apprendi because the district court instructed the jury that, for before she testified. Any disadvantage that a defendant might Crayton to be convicted, the Government needed to prove suffer because of the tardiness of impeachment material can beyond a reasonable doubt that Crayton “conspired or agreed be cured by asking for a recess. Id. at 1283-84. Crayton’s to commit the crime of possession with the intent to distribute counsel only asked for a moment to look over Beamus’s prior over five kilograms of cocaine.” J.A. at 780 (emphasis statement, and the district court granted this request. Further, added). The district court likewise indicated the same Crayton’s counsel questioned Beamus extensively about the quantity instruction along with counts two and three. prior inconsistent statement, during cross examination. Thus, Crayton’s sentencing, therefore, does not violate Apprendi there appears to have been no Brady violation. Moreover, because the jury found Crayton guilty of conspiracy, attempt, even if there had been a Brady violation, “the proper inquiry and possession of “over five kilograms.” Thus, the jury is whether the Brady violation undermines confidence in the sufficiently determined the quantity of cocaine that Crayton verdict, because there is a reasonable probability that there possessed and it was that quantity that the district court used would have been a different result had the evidence been to sentence Crayton to the statutory maximum for that amount disclosed.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). It of cocaine. is difficult to imagine that the jury would have reached a different result if the defense had Beamus’s prior statement before trial. There was therefore clearly no violation of Crayton’s constitutional rights under Brady. 4 That the defendant make s this argument is rather ironic considering III. Alleged Sentencing Errors that it was the G overnment that raised the possible Appren di issue immediately after the jury instructions were read to the jury. However, A. Apprendi Crayton’s counsel effectively objected to any change to the instructions to take Appren di into account. (More precisely, Crayton’s counsel objected to changing a proposed verdict form to comply with Apprendi, The district court did not violate Apprendi v. New Jersey, and at the same time stated that “the verdict form is consistent with the 530 U.S. 466 (2000), by sentencing Crayton without a jury instruction.”) Thus, since Crayton intentionally relinquished or finding as to the exact quantity of cocaine he possessed. abandoned his known right, the issue could also be deemed waived . See Apprendi held that any fact, other than a prior conviction, United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Shep pard, 149 F.3d 458 , 461 (6th C ir. 199 8). No. 02-5738 United States v. Crayton 17 18 United States v. Crayton No. 02-5738
B. Sentencing Under United States Sentencing Guideline together and used § 2D1.1(c)(4) to determine the base offense § 3D1.1 level. J.A. at 830. Crayton also contends that the district court erred by It is § 5G1.2 that actually governs sentencing on multiple sentencing him to imprisonment for three concurrent life counts. Section 5G1.2(b) provides generally that “the total terms because the district court failed to consider United punishment is to be imposed on each count and the sentences States Sentencing Guideline (“U.S.S.G.”) § 3D1.1.5 on all counts are to be imposed to run concurrently to the According to Crayton’s argument, § 3D1.1 requires the extent allowed by the statutory maximum sentence of district court to group the three counts and only sentence him imprisonment for each count of conviction.” U.S.S.G. to one life term instead of three. § 5G1.2, cmt. n.1. This is precisely what the district court did, and the district court thus did not err in calculating The defendant misreads U.S.S.G. § 3D1.1—which actually Crayton’s sentence. directs the court to determine the combined offense level.6 The Presentence Report clearly indicated a proper application C. Sentencing Under 21 U.S.C. § 851 of §3D1.1. The Presentence Report grouped all three counts Crayton’s sentencing using 21 U.S.C. § 851 was moreover free of constitutional defect. Crayton claims that § 851, which deals with enhanced penalties for prior convictions, 5 was used punitively in his case and represents an improper Section 3D1.1 states: delegation to the executive of legislative power to set criminal a) W hen a defendant has been convicted of more than one count, penalties. Crayton argues that § 851 violates separation of the court shall: powers because the decision to request an enhanced sentence (1) Grou p the coun ts resulting in conviction into distinct lies with the United States Attorney, while the district court Groups of Closely Related Counts (“Groups”) by applying has no leeway.7 As the Eleventh Circuit has held, § 851 is the rules specified in § 3D1.2. not an improper delegation of legislative authority. See United States v. Cespedes, 151 F.3d 1329, 1331-35 (11th Cir. (2) Determine the offense level applicable to each Group by 1998) (“[R]ather than delegating legislative power, § 851 applying the rules specified in § 3D1.3. affords prosecutors a power no greater than that traditionally (3) Determine the combined offense level applicab le to all exercised by the executive branch in the charging decision.”). Groups taken to gether by applying the rules specified in Crayton suggests the lack of case law on the issue since § 3D1.4.
(b) Exclude from the application of §§ 3D1.2-3D1.5 any count for which the statute (1) specifies a term of imprisonment to be imposed; and (2) req uires that such term of imprisonment be imposed to run consecutively to any other term o f impriso nment. Sentences for such counts are governed by the provisions of 7 Crayton in a pro se supplemental brief also argues that his two prior § 5G1 .2(a). California state drug conviction should not have been used to enhan ce his 6 sentence under 21 U.S.C. § 851. H owever, during oral argument, No te that the title of § 3D1.1 is the “Procedure for Determ ining Crayton’s counsel properly conceded that the defendant misapplied case Offen se Level on M ultiple Counts” (emphasis added). law in this regard. No. 02-5738 United States v. Crayton 19 20 United States v. Crayton No. 02-5738
Apprendi may indicate that the courts are currently viewing The Supreme Court, in rejecting an argument that the issue differently.8 prosecutorial discretion under § 851 led to unwarranted disparity in sentencing, has analogized prosecutorial Section 851 provides that increases in sentences based upon discretion under § 851 to the power of the executive to charge prior felony drug convictions may not be imposed unless the defendants. In United States v. LaBonte, 520 U.S. 751 United States Attorney has filed an information stating the (1997), the Supreme Court stated: previous convictions to be relied upon. 21 U.S.C. § 851(a). A defendant may challenge the use of any of the prior Insofar as prosecutors, as a practical matter, may be able convictions that occurred within the previous five years.9 21 to determine whether a particular defendant will be U.S.C. § 851(b)-(c) & (e). At sentencing, the court must then subject to the enhanced statutory maximum, any such impose the enhanced sentence if the defendant does not file a discretion would be similar to the discretion a prosecutor response to the information “or if the court determines, after exercises when he decides what, if any, charges to bring hearing, that the person is subject to increased punishment by against a criminal suspect. Such discretion is an integral reason of prior convictions.” 21 U.S.C. at § 851(d)(1). feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors. Crayton complains that this mandatory obligation of the district court to impose the enhanced sentence that the LaBonte, 520 U.S. at 762 (citations omitted). prosecutor decides to put in the information places the prosecutor in the position to set criminal penalties—a The Fourth Circuit recently considered the issue of § 851 as function of the legislature. Thus, Crayton argues that § 851 an improper delegation of legislative authority. See United improperly delegates legislative power to the executive. States v. Moody, 30 Fed. Appx. 58, 60-61, No. 01-4285, 2002 WL 235595 (4th Cir. Feb. 19, 2002) (per curiam). Relying on the language of LaBonte, quoted above, the Fourth Circuit held that there is not an improper delegation of legislative 8 power to the executive because the prosecutor is simply W e fail to see how the Supreme Court’s decision in Apprendi, relied acting within his prosecutorial discretion. upon by Crayton in this context, would affect the constitutionality of § 851 . Apprendi specifically states that a jury need not decide prior The rationale of LaBonte leads directly to the conclusion convictions for a defendant to receive an enhanced sentence . Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that that § 851 does not violate the principle of separation of increases the penalty for a crime beyond the prescribed statutory powers. The discretion a prosecutor exercises in determining maximum must be submitted to a jury, and proved beyond a reaso nable whether an enhanced statutory maximum applies under § 851 dou bt.” (emp hasis ad ded )). Therefore, the fact that there may be a lack is similar to the initial discretion the prosecutor has in of case law on the possible sep aratio n of powers issue in § 851 after deciding which charges to bring against a defendant, Appren di was decide d is not troublesom e. discretion that is obviously constitutional. Therefore, 9 The five year collateral attack limitation period contained within 21 Crayton’s claim in this regard must fail. U.S.C. § 851 does not vio late due pro cess. See United States v. Reed, 141 F.3d 644, 652-53 (6th Cir. 1998); United States v. Gonzales, 79 F.3d 413, 427 (5th Cir. 1996); United States v. Arango-Montoya, 61 F.3d 1331, 1338 (7th Cir. 1995); United States v. William s, 954 F.2d 668 , 673 (11th Cir. 1992). No. 02-5738 United States v. Crayton 21 22 United States v. Crayton No. 02-5738
IV. Other Issues Raised by Crayton “To warrant a new trial, however, prosecutorial misconduct must be so pronounced and persistent that it permeates the We also find no merit in the remaining issues raised by entire atmosphere of the trial.” United States v. Krebs, 788 Crayton. F.2d 1166, 1177 (6th Cir. 1986) (internal quotes omitted). Crayton’s counsel properly objected to the answer, and his A. Prosecutorial Misconduct objection was sustained. The statement was removed from the record. This one question, made at the end of the trial and The statements made by the prosecutor during his direct removed from the record, hardly permeated the entire trial. It examination of Beamus did not amount to prosecutorial is the only incident Crayton points to of the prosecution’s misconduct. Specifically, Beamus testified that she picked up intentionally misleading the jury. Since the defendant has not several people including Crayton at the airport and took them shown that the prosecution’s question was improper, much to her house because her cousin wanted to talk with Crayton. less that it rose to the level of flagrant misconduct, Crayton contends that the prosecutor then improperly asked prosecutorial misconduct does not warrant reversal in this Beamus if her cousin had “been involved with the distribution case. of cocaine?”, to which Beamus replied, “Yes, sir, I think so.” J.A. at 703. At this point, the defense objected, and Beamus’s B. Sufficiency of the Evidence answer was stricken. Finally, there was sufficient evidence for a reasonable jury In order for a prosecutorial misconduct claim to succeed, to convict Crayton of conspiracy. In his supplemental pro se statements by the prosecutor must first be deemed to have brief, Crayton argues that there was insufficient evidence to been improper. Tarwater, 308 F.3d at 511. If the statements convict him of conspiracy with the intent to distribute. were improper, the court then “look[s] to see if they were “[W]hen the sufficiency of the evidence is challenged on flagrant and warrant reversal.” Id. To determine flagrancy, appeal, the standard of review is ‘whether, after viewing the the court considers evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements 1) whether the statements tended to mislead the jury or of the crime beyond a reasonable doubt.’” United States v. prejudice the defendant; 2) whether the statements were Swidan, 888 F.2d 1076, 1080 (6th Cir. 1989) (quoting isolated or among a series of improper statements; Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in 3) whether the statements were deliberately or original)). accidentally before the jury; and 4) the total strength of the evidence against the accused. Crayton argues that the government failed to prove that he conspired with anyone to possess with intent to distribute Id. The government’s theory of the case was that Crayton cocaine. We have summarized what evidence is needed to came to Louisville to distribute cocaine and not just to visit establish a conspiracy under 21 U.S.C. § 846—the same Louisville for the Kentucky Derby festivities. Thus, the section Crayton was charged under—by stating: question the prosecutor asked was relevant to the theory of the case and not flagrantly improper. To establish a drug conspiracy under 21 U.S.C. § 846, the government must prove “‘that a conspiracy existed, that the accused knew of the conspiracy, and that he No. 02-5738 United States v. Crayton 23 24 United States v. Crayton No. 02-5738
knowingly and voluntarily joined it.’” United States v. countersurveillance technique to see if the car was being Barrett, 933 F.2d 355, 359 (6th Cir. 1991) (quoting followed, (7) the box being thrown out the window when it United States v. Christian, 786 F.2d 203, 211 (6th Cir. was opened, and (8) an ensuing chase. These facts alone 1986)). The essence of conspiracy, of course, is could lead a reasonable jury to conclude that Crayton agreement, but proof of a formal agreement is not conspired with the person who sent the package. In addition, necessary; “a tacit or material understanding among the Beamus’s testimony may have indicated that her cousins were parties” will suffice. United States v. Pearce, 912 F.2d also involved in cocaine distribution. Thus, the jury could 159, 161 (6th Cir. 1990). . . . “‘A conspiracy may be have concluded that the cousins were also co-conspirators. In inferred from circumstantial evidence that can reasonably sum, a rational trier of fact could easily conclude that Crayton be interpreted as participation in the common plan.’” conspired with the intent to distribute cocaine. United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991) (quoting United States v. Bavers, 787 F.2d 1022, CONCLUSION 1026 (6th Cir. 1985)) . . . . The government need not show that a defendant participated in all aspects of the Finding no merit to Crayton’s claims, we AFFIRM the conspiracy; it need only prove that the defendant was a judgment of the district court. party to the general conspiratorial agreement. Further, the connection between the defendant and the conspiracy need only be slight. Id. Untied States v. Ledezma, 26 F.3d 636, 640 (6th Cir. 1994). The essential elements of conspiracy that violate 21 U.S.C. § 846 are “an agreement between two or more individuals, with the intent to commit an offense in violation of the Controlled Substance Act.” United States. v. Sullivan, 903 F.2d 1093, 1098 (7th Cir. 1990). Circumstantial evidence may be the “sole support” of a conviction under § 846. Id. The jury heard testimony from various police officers detailing (1) a tip from the Los Angeles Police Detective, (2) a description of the box addressed to Alex Winters, which had several earmarks of a package containing narcotics, including a phony return address and being sent overnight mail from a source city, (3) the K-9 unit’s indication that the box contained narcotics, (4) the officers’ removal of the cocaine and resealing the package, (5) Crayton’s pretending to be “Alex Winters” to pick up the box at a vacant address at the exact time of delivery, (6) Crayton’s driving away and then stopping the car for five minutes on the side of the highway, in what the police described as a