Edwards v. United States

PETITIONER:Edwards
RESPONDENT:United States
LOCATION:The White House

DOCKET NO.: 96-8732
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 523 US 511 (1998)
ARGUED: Feb 23, 1998
DECIDED: Apr 28, 1998

ADVOCATES:
Edward C. DuMont – Department of Justice, argued the cause for the respondent
Steven Shobat – Argued the cause for the petitioners

Facts of the case

At Vincent Edwards, Reynolds A. Wintersmith, Horace Joiner, Karl V. Fort, and Joseph Tidwell’s trial for “conspiring” to “possess with intent to…distribute [mixtures containing two] controlled substances,” the jury was instructed that the Government must prove that the conspiracy involved measurable amounts of “cocaine or cocaine base (crack).” After the jury returned guilty verdicts, the District Judge imposed sentences based on his finding that each petitioners’ illegal conduct involved both cocaine and crack. On appeal, the petitioners argued that their sentences were unlawful insofar as they were based upon crack, because the word “or” in the jury instruction meant that the judge must assume that the conspiracy involved only cocaine. The United States Sentencing Guidelines treats cocaine more leniently than crack. The Court of Appeals concluded that the Guidelines require the sentencing judge, not the jury, to determine both the kind and the amount of the drugs at issue in a drug conspiracy.

Question

May federal judges sentence someone convicted of taking part in a drug conspiracy based on a finding that two illegal drugs were involved, even if the jury might have convicted based on one drug?

William H. Rehnquist:

We’ll hear argument this afternoon in Number 96-8732, Vincent Edwards, et al., v. United States.

Mr. Shobat.

Am I pronouncing your name correctly?

Steven Shobat:

Yes.

William H. Rehnquist:

Thank you.

Steven Shobat:

Mr. Chief Justice and may it please the Court:

The ambiguous general verdicts returned in this case cannot support the sentencing court’s finding that the conspiracy embraced both objectives charged in this dual object conspiracy, the two objectives being the distribution of powder cocaine and the distribution of crack cocaine, and they cannot be for four reasons.

First, Congress required the jury to determine the type of drug involved in the drug conspiracy before sentence could be imposed upon that object.

Second, the Fifth and Sixth Amendment rights to a jury determination of all the essential elements of a conspiracy requires the jury to determine what the object of the offense was, and particular to the type of drug.

Third, the Due Process Clause of the Fifth Amendment does not permit punishment to be imposed in excess of the statutory maximum provided by Congress and, finally, nothing in the Sentencing Guidelines, to the extent that they ever could, undermines these principles.

With respect to what Congress intended, it’s clear that in enacting section 846 Congress wanted to fix the maximum punishment available to a person convicted of that section to the offense, the object of which the conspiracy was intending to accomplish.

Sandra Day O’Connor:

Mr. Shobat, does your argument depend on finding that both the type and the quantity of drugs are elements of the section 846 conspiracy?

Steven Shobat:

No, Your Honor, it does not.

It’s clear that Congress, in listing the various different factors in section 841(b), intended that some of them be elements of the offense and some of them not be.

Congress made it explicitly clear in enacting section 851 that the existence of a prior conviction was one of the factors listed in 841(b) that should not be considered by the jury, and it did so by removing it from the jury’s consideration, placing it in a separate statutory provision, and saying that the judge should make that determination.

It is also clear that, in considering whether or not–

Where is that?

Steven Shobat:

–Section 851, Your Honor?

Section 851–

David H. Souter:

You say by placing it in 851 rather than as one of the subsections of 841, you say?

Steven Shobat:

–Yes.

By removing it from the subsection of 841(b) and placing it in a separate statutory provision, and then having the judge, not the jury, determine… and interestingly, beyond a reasonable doubt, whether the–

David H. Souter:

Do you have 851 in your appendix?

I don’t think you do, do you?

Steven Shobat:

–I’m… I don’t… I’m not sure that it is in the appendix, Your Honor.

David H. Souter:

Okay.

Steven Shobat:

But it did remove that consideration from the jury.

What it did not remove were the type of drugs and the quantity, but it is not necessary that those be treated identically for purposes of an 846 conspiracy, and there are several reasons for that.

First, Congress could well have intended that a conspiracy to commit a specific objective, which is an inchoate offense which does not require the completion of the object of the conspiracy and has separate elements from an 841(a) conspiracy to embrace a more specific object than would, say, an ordinary 841(a)(1) violation of possession, or a distribution.

In addition–

David H. Souter:

I don’t understand what you just said.

Do you want to say it again?

Steven Shobat:

–Yes, Your Honor.

A conspiracy offense under 846 is an inchoate offense and therefore the only two elements that the Government need satisfy beyond a reasonable doubt for an 846 offense is that a conspiracy with a particular objective exists and that a particular defendant that was being considered by the jury be a member of that conspiracy.

In many conspiracies there are no actual drugs involved, very typically, in the case in which the agents pose as the sellers of drugs and they engage in negotiations and discussions with respective buyers and then a seizure or a bust takes place, an arrest at a planned exchange of drugs for money, and there is, in fact no actual controlled substance.

In that case–

Antonin Scalia:

Well, surely there’s an attempt to buy a particular… I mean, are these drug dealers that stupid that they don’t contract to buy a particular substance?

Steven Shobat:

–Not at all.

Not at all, Your Honor.

Antonin Scalia:

Well, that would be the conspiracy then, wouldn’t it, in substance?

Steven Shobat:

Absolutely, it would be a conspiracy conviction, but now the question becomes, what maximum penalty did Congress provide for that conspiracy, and the answer to that question is, what was their conspiratorial objective.

That’s what Congress expressly says in section 846, punish persons who agree to commit a very specific object as if they had committed that object, and in the case of the type of drug, that specific… excuse me.

In the case of a distribution offense, that specific offense is only knowable by reference to the specific type of drug.

Ruth Bader Ginsburg:

But why not an amount as well, since there’s such a–

–Right.

So much turns on amount.

Why does it turn on the type of drug more or less than the amount of the drug?

Steven Shobat:

Your Honor, it can be and, in fact, it’s not squarely raised in this case, but we would submit that quantity could be considered an element by Congress.

Congress could have intended it to be an element, but it isn’t necessarily the case.

That question isn’t squarely presented, we believe–

Stephen G. Breyer:

You’re saying, type of drug is an element of the offense, but amount of drug is not an element of the offense?

Steven Shobat:

–Justice Breyer, we’re not saying definitively that it is not an element of the offense.

Stephen G. Breyer:

Are you… well, what is the argument?

Is the argument–

Steven Shobat:

The argument is that it might be an element of the offence.

Stephen G. Breyer:

–Well, I–

Steven Shobat:

We believe that it is.

However–

Stephen G. Breyer:

–You believe that amount is as well?

So in other words, we have a big list in 841(b) of penalties, and the penalties vary, sometimes dramatically, depending upon the amount of the drug and depending upon what kind of drug and, as you said recidivism, which is treated specially.

Stephen G. Breyer:

All right.

Now, your point is that jury has to find type and probably amount.

Steven Shobat:

–Yes.

Yes.

Stephen G. Breyer:

The difficulty with doing that is, why does it have to find it, because Congress intended it?

Steven Shobat:

Because Congress intended it.

Stephen G. Breyer:

Why would Congress have intended the following: a person is accused, for example, of possessing with intent to distribute more than one… more than… between 5 and 10 kilograms of heroin, let’s say, and the person’s defense is, I wasn’t there.

I was in Chicago.

Is he supposed to make the alternative defense, oh, by the way, if I was there, it was only 1/2 a kilo?

I mean, why would we ask a jury to decide that kind of thing?

Why would we want to put a defendant in that kind of position?

Steven Shobat:

Your Honor, I suppose there are two answers to that question.

The first is, the question becomes, what is the appropriate punishment for an individual like that who had that agreement?

Stephen G. Breyer:

And that’s why I would think that 841(b) includes punishment factors, and if it is supposed to be punishment factors there’s no problem for the defendant, and if it’s supposed to be punishment factors in respect to amounts, I don’t see how you could distinguish why it shouldn’t be punishment factors in respect to type.

Steven Shobat:

One of the ways that we attempt to distinguish it, Justice Breyer, is to note that as part of the 841(a)(1) elements the jury is asked to conclude that the substance being agreed to be distributed or manufactured under an 841(a)(1) and 846 offense, the jury is going down the road of determining and must determine that the agreement impacted a controlled substance.

Now, not every substance is a controlled substance, so the jury must make a decision, a finding, that the particular substance contemplated in 846 was one of the substances listed in section (a)(12).

William H. Rehnquist:

When you say finding you’re not talking about a special verdict, you’re just talking about a finding in its deliberative process that results in a verdict of guilty.

Steven Shobat:

That’s correct, Mr. Chief Justice.

They are asking themselves, was there an agreement to distribute a controlled substance?

To know that, that this is not salt or sugar, they must come to the view that it’s one of those substances under (a)(12), at least that that was contemplated in this conspiracy.

That means that the jury is already going down that road in determining what the substance is.

We think that’s distinguishable–

Sandra Day O’Connor:

All the jury perhaps has to determine is that it was a controlled substance, but not a specific type or amount.

I mean, that’s possible under the structure of the statutes, it seems to me.

Steven Shobat:

–That’s possible Justice O’Connor, but in concluding that it is a controlled substance, they are concluding that it is one of the substances identified in section (a)(12), which lists all the controlled substances there can be, and so they’re making that finding.

They may not come out and say, we find it was cocaine, or we find it was heroin, but they are saying we find it was a controlled substance, and therefore–

Sandra Day O’Connor:

It means that there’s been a violation of the statute, and then perhaps the punishment is up to the sentencing authority, the judge.

Steven Shobat:

–We submit, Your Honor, that the jury going down that road to make that finding, Congress made clear that that’s the kind of finding that the jury should make, and that the jury must make, and not leave it solely to the sentencing–

William H. Rehnquist:

But ordinarily a finding in terms of the statute is perfectly sufficient, isn’t it?

Here 841 says, it shall be unlawful for any person knowingly or intentionally to manufacture, dispute or… distribute or possess a controlled substance.

William H. Rehnquist:

So isn’t it… one would think that a verdict that says, guilty of 841, or guilty of possessing or conspiring to distribute a controlled substance, would be sufficient for the guilt element.

Steven Shobat:

–Mr. Chief Justice, we don’t believe that that is sufficient, that particularly in a case such as this, where the Government charges not just any controlled substance but a very specific controlled substance, that–

William H. Rehnquist:

You think it would have been okay if the Government just charged a controlled substance generally and left itself free to prove any number of other things?

Steven Shobat:

–I think that it would be permissible for the Government to have charged simply a controlled substance, but I think it would have additional problems of its own.

That is to say, I think there might be a case in which it’s not exactly clear whether which of the controlled substances a particular defendant conspired to, and in that case the Government might not want to commit that it was particularly heroin, or a jury might be able to conclude, well, I think it was heroin, or I believe beyond a reasonable doubt it was heroin, I believe beyond a reasonable doubt it was cocaine, I’m not sure whether it was marijuana.

Under the instructions that the judge gives me, I must find this individual guilty.

So that in this case, the jurors could have decided that these individuals conspired to distribute crack cocaine, or they might have decided that they distributed powder cocaine.

Sandra Day O’Connor:

Well, regardless, wouldn’t evidence, if there was such, showing there was some involvement with cocaine base, be factored in as relevant conduct under the guidelines?

I don’t see how the sentences would change in any event.

Steven Shobat:

Justice O’Connor, they would change in the… for a number of significant reasons.

First of all, the statutory penalty is not based on a consideration of the guidelines or relevant conduct, but it’s based on what was the agreement, what was the offense of conviction, so that if the offense of conviction were–

Sandra Day O’Connor:

Well, the offense was a conspiracy to possess and/or distribute a controlled substance.

Steven Shobat:

–That’s not the offense that was charged in this case, and we would submit that to know what the statutory maximum penalty is, that there needs to be a determination as to the type of drug.

After all, the differential in the punishment between the two objects was 100 to 1.

100 grams of powder cocaine is treated equivalently under the guidelines… excuse me, under the statutory penalty as the same as 1 gram of crack cocaine, and that was why the particular problem that arises in this case is especially important, depending on which objective–

Antonin Scalia:

What was the difference in the maximum sentence that could be imposed under the one or under the other?

Steven Shobat:

–That’s a very difficult question to answer, Justice Scalia, because the indictment in this case charged no specific threshold quantity in terms of giving us notice as to the particular drug.

Under the indictment… the Government suggests in its brief that we should just simply look at the indictment and look at the statute, and that’s how we know our maximum penalty.

If that’s in fact the standard, looking at this indictment, in which there’s no specific quantity or threshold quantity even alleged, no reference to any subsection under 841(b), the maximum penalty is 20 years for that type of offense and when there’s a schedule 1 or schedule 2 narcotic involved, so the maximum penalty would be 20 years.

But what happened in this case is that at sentencing the judge made some findings with regard to a different sort of conspiracy, that is, one which embraced both the crack cocaine and the powder cocaine, made specific findings about exact amounts, of type of drug, and quantity, and determined that with respect to some of the petitioners the maximum was life imprisonment, but with respect to other petitioners the maximum was 40 years.

Antonin Scalia:

So what you’re saying is, if it was powder cocaine it was… the maximum was 20, and if it was crack, the maximum was 100?

Steven Shobat:

Well, if it was crack the maximum would also be 20 if the sole basis for determining the maximum punishment is to look at the indictment and to read the statute.

That’s what the Government says you should do, but in reality, what the district court did was not simply look at the indictment.

What the district court said is, quantity determinations are mine to make, and so once I make these quantity determinations, that alters the maximum penalties.

Anthony M. Kennedy:

Well, of course, I guess conspiracy is a completed offense even before the drugs are actually purchased.

Suppose the conspiracy is… the conspirators are apprehended before they effected the buy.

How does the judge determine the sentence in that case?

Steven Shobat:

What the judge must do in that case is first determine what the statutory penalty is.

It first must say to itself, what was the offense of conviction, and once it determines that… let’s say there were negotiations, recorded conversations, and it appeared that the person was trying to acquire 5 kilograms of crack.

Anthony M. Kennedy:

My hypothetical is, they’re not sure.

Anthony M. Kennedy:

They want to just acquire some… how much do you have +/?

and then they’re apprehended.

Steven Shobat:

In that case, the only way that a sentencing judge could determine what the maximum penalty would be, first under the statute is to make a finding as to what the amount was, or at least what the threshold amount was.

That is, was it more than 50–

Antonin Scalia:

He can’t.

Steven Shobat:

–was it more than 5 kilos–

Antonin Scalia:

He can’t.

They haven’t gone far enough in the negotiations.

I assume then he would have to use whatever the minimum is.

Steven Shobat:

–In the event the–

Antonin Scalia:

The most he can say is that there was some transaction, but I can’t say that there’s enough to kick it over into any punishment higher than the minimum.

Isn’t that your position?

Steven Shobat:

–In–

Antonin Scalia:

If you don’t know, the minimum is what governs.

Steven Shobat:

–Exactly, and it also depends, then, on the type of drug, and if he doesn’t know the type of drug, then there is absolutely–

Antonin Scalia:

The same thing.

If you don’t know, you assume it’s the one that’s punished the least severely.

Is your argument… it can’t be about… the indictment says these particular people conspired to distribute, to possess with intent to distribute cocaine, and they also conspired with intent… possessed with intent to distribute cocaine base… crack.

There’s 26 very specific paragraphs, and it says that violated 846 and 841.

So the person, to get the penalty, would look up 846 and look up 841, and he’ll see the big list, and there’s a big list of maximums.

There’s nothing wrong with that, is there?

Steven Shobat:

–Well, there’s nothing wrong with that if he knows what the threshold quantity is.

Stephen G. Breyer:

No.

That’s true of every instance of guideline sentencing, and it’s true of every instance in which Congress has passed a statute that increases maximum penalties for what is called a sentencing factor.

Am I right that you must be complaining about one or about the other?

Steven Shobat:

I don’t believe–

Stephen G. Breyer:

All right.

Then I’m not sure what your argument–

Steven Shobat:

–that you’re exactly correct, because in this statute, under this specific statute the statutory maximum changes based on not only the type of drug but the threshold quantity of drugs involved in the offense.

Stephen G. Breyer:

–That’s true of every instance in which Congress increases a penalty for what they call a sentencing factor.

Stephen G. Breyer:

Am I right?

Steven Shobat:

That the possible… generally most of them fall within a statutory maximum.

Stephen G. Breyer:

But sometimes Congress passes a statute… drugs, immigration… you know, where they say, if you’ve done X in committing the crime, the maximum goes from 2 years to 20 years, or from… so you’re complaining about all those, is that right, or is there something special here?

Steven Shobat:

We’re complaining about that, but we’re also complaining about the particular charge in this case and the way the jury was instructed, because what we don’t know is what the offense of conviction was.

We don’t know whether this jury determined… because the jury was instructed that it could find either powder cocaine or crack cocaine as an objective and, given that instruction, we don’t know whether the jury found that this was a powder cocaine conspiracy, a crack cocaine conspiracy, or perhaps both.

David H. Souter:

And of course, it made no finding whatsoever on quantity, so you don’t know that, either–

Steven Shobat:

We don’t know that.

David H. Souter:

–as far as the jury is concerned.

Steven Shobat:

We don’t know that.

All the findings that happened that fixed the sentencing occurred right on the eve of sentencing, during the sentencing process.

David H. Souter:

I didn’t do the math, but I… is it correct that if you draw this distinction between type of drug and quantity of drug, and you win your argument, and the Court says yes, the jury must make the determination on type of drug, is it necessarily the case that all of these sentences would, in fact, have to be… have to be vacated, given the fact that you let the judge make the quantity determination?

I guess my question is, did the judge make a quantity determination even with respect to the lesser of the two drugs that would support the sentences, or the ranges within which he’s sentenced?

Steven Shobat:

I think that the answer to that question is yes, that it would necessarily affect some of the petitioners.

Each of the five petitioners–

David H. Souter:

Some but not all?

Steven Shobat:

–Some but not all, and it would necessarily affect all of them in determining first what the statutory maximum penalty is.

Remember that the sentencing judge utilized the Sentencing Guidelines and said, here’s what I conclude everybody is held accountable for.

Considering that the offensive conviction embraced both objectives, his findings as to what was relevant conduct or what amounts should be attributable would be vastly different if he were to analyze this from the question of what… if the conviction was merely a powder cocaine conspiracy.

William H. Rehnquist:

Did you request an instruction that the jury be required to specify amounts or choose as between cocaine and cocaine base?

Steven Shobat:

No, Your Honor.

The jury was instructed that it could find the defendants guilty if they found either cocaine or powdered–

William H. Rehnquist:

And you didn’t object to that instruction?

Steven Shobat:

–There was no objection to that.

It’s our position, however, Your Honor, that since the Government brought the dual object conspiracy, and since the Government wanted to seek punishment on the higher objective… that is, the objective carrying the higher penalty… that it was incumbent upon them to seek such… either a special–

Antonin Scalia:

You’re not complaining about the jury’s finding your clients guilty.

You’re saying you’re willing to accept that verdict, but you’re saying the way it went to the jury, all you can punish them for is the least of what was charged.

Steven Shobat:

–That’s correct, and the only way we would complain about what the jury determine… excuse me, about what happened at trial is if the Government tried to take what resulted and say, but we… the judge concludes that what you were convicted of was a crack conspiracy conviction.

That, we say, is completely impermissible, particularly when the statutory penalties for powder cocaine are significantly less than those for crack cocaine.

William H. Rehnquist:

But you agree, don’t you, Mr. Shobat, that if there had not been this ambiguity in the jury verdict, nonetheless a sentencing judge could have taken into consideration a wide number of things in deciding what to sentence your clients to, a prior offense, prior indictment, prior conduct?

Steven Shobat:

Under the Sentencing Guidelines that’s absolutely correct.

Steven Shobat:

That is… that… it would not be true, however, in fixing the statutory penalty, but we acknowledge that under this Court’s decision in Witte and Watts, that the juge is free to consider a wide range and not just simply say, well, I thought about it, but actually to make the findings required under the Sentencing Guidelines… but that is, again, a guideline determination.

In this case, there were no statutory maximum penalty determinations made.

What the judge did is just do the guideline analysis and then say, based on these guideline results, I’m now determining what the statutory maximum was.

Stephen G. Breyer:

If that changes… in another case we’ve been involved in this, but the… if that changes, because it’s not just guideline but also statutory addons… let’s call them sentencing factors.

If you think that changes the fact that it’s a statutory sentencing factor that increases a penalty, if you think that makes a difference in your favor here, what do you do with the earlier Supreme Court cases, McMillian and so forth, that we’ve been looking into, which say that where you have a sentencing factor such as possession of a gun, which increases the maximum penalty, that can be a determination to be made by a judge.

It needn’t be charged in the indictment, and it needn’t… in fact, in McMillian I think we found beyond a reasonable doubt.

So how do you deal with those cases and also win your case?

Steven Shobat:

McMillan supports our position, Your Honor because–

Stephen G. Breyer:

Because?

Steven Shobat:

–in McMillan there was no increase in the statutory maximum penalty.

The only increase was in a mandatory minimum so that the visible possession of a firearm in McMillan caused there to be a minimum of 5 years imposed but did not in any way increase the statutory maximum.

Stephen G. Breyer:

Why isn’t that worse?

Why aren’t mandatory minimum penalties from a defendant’s point of view actually a lot worse than an increase in the maximum?

Steven Shobat:

We think that they’re bad, but the reason they’re not worse in part, I think, lies in the power of a sentencing judge to grant an upward departure.

The statutory maximum provides protection to a defendant to prevent a sentencing court from going beyond the statutory maximum.

In this case, had there been a reason to grant an upward departure, for example, with respect to petitioners Joiner or Edwards, who received a 10-year sentence, they might have gotten a 20-year sentence if that were the statutory maximum for them.

If they had been considered to have the same statutory maximum as petitioner Fort, who had a life maximum, then it would be very significant to know that, even if there was an upward departure granted in this case, it would not exceed 20 years and risk, you know, possibly a life sentence.

And so under McMillan, the reason… one of the reasons we say that this is an essential element of the offense is because it not only alters the range, but it alters the statutory maximum penalty.

Mr. Chief Justice–

Ruth Bader Ginsburg:

Are you saying that a special verdict would have been compatible with your view of this case?

That is, the judge says, jury, the Government has charged both powdered cocaine and crack cocaine, and so I want you to find specially as to each.

That would be all right.

Steven Shobat:

–Yes, Your Honor.

The jury–

Ruth Bader Ginsburg:

Even though defendants don’t ordinarily like special verdicts.

Steven Shobat:

–The jury could have been instructed as it was that you could find either or, but then, in addition, the jury should have been asked which do you find, either powder, crack, or perhaps both.

Ruth Bader Ginsburg:

And ask that in a special verdict?

Steven Shobat:

Yes, and then there would be a jury determination as to what the object of the conspiracy was.

Ruth Bader Ginsburg:

Yes.

Does it follow from what you’ve been telling us that it would be perfectly proper under your theory for the Government to charge two separate conspiracies, one for powdered cocaine, the other for crack, and then for the punishments to be consecutive?

Steven Shobat:

It… yes, Your Honor.

It is the logic of our position that the Government is free to do that and, in fact, they are doing that every day with respect to distributions.

In fact, the Government in response to defense arguments that you can’t do that, that violates double jeopardy, crack and cocaine are the same thing, the Government has said no, crack cocaine and powered cocaine are different substances.

They can’t be punished consecutively, or cumulatively, and now in this case the Government is saying, oh, no, it’s really just a controlled substance.

And so we think that’s a significantly inconsistent position that the Government is taking, We acknowledge that that is possible to be done.

Mr. Chief Justice, I would like to reserve whatever time I have.

William H. Rehnquist:

Yes, Mr. Shobat.

Mr. DuMont, we’ll hear from you.

Edward C. DuMont:

Thank you, Mr. Chief Justice, and may it please the Court:

There is one issue that’s rather straightforward that is genuinely presented on the facts of this case and, if I may, I’d like to address that just for a moment first.

Some of the courts of appeals have held that when a drug conspiracy verdict does not reveal exactly what drug the jury may have concluded was involved, or more than one drug, that under the guidelines the court is limited to sentencing only on the basis of the drug that will produce the lower penalty.

Antonin Scalia:

Under the guidelines, or under the statute?

Edward C. DuMont:

Under the guidelines.

There are at least three–

Antonin Scalia:

How can the guidelines control what statutory maximum is available?

I don’t understand that.

Edward C. DuMont:

–In our view they don’t control that at all, but three of the courts of appeals have held that even if you’re talking about a case where the statutory maximum and minimum are clear, that in terms of applying the guidelines the district court at sentencing must apply… must take into account only the drug that will produce the lower guidelines sentence.

Antonin Scalia:

But the statutory maximum and minimum cannot be clear if you don’t know what the substance is, can they?

Edward C. DuMont:

I’m not sure that’s true now, because you could have a couple of possibilities, both of which would put you into, say, the minimum category, the zero to 20 category, but one of which would put you at 19 years under the guidelines, and one of which would put you at 5 years, so it can make quite a difference.

Antonin Scalia:

But they wouldn’t be similarly inconsequential as far as the guidelines are concerned, they’re only inconsequential as to the statutory grades?

Edward C. DuMont:

Well, my only point is–

Antonin Scalia:

I mean, would the guidelines treat differently two substances that are treated the same in the statute?

Edward C. DuMont:

–The guidelines are much more specific about what… how you do the quantity calculations and how you take things into account, but my point is only that even in cases where there is no controversy about what the statutory range is, the guidelines range can differ quite a bit, depending on whether you take into account some crack or don’t take into account some crack.

And some of the courts of appeals have, in fact, held that in a case like this, if you accepted the verdict was ambiguous, the judge would be limited to taking into account only the powdered cocaine that was involved.

Now, we think that those cases are… that issue is presented here on the facts of this case, because it would make a big difference to these petitioners whether they are sentenced for powder or for crack, but we think that those cases that would limit the court to powder under the guidelines are flatly inconsistent with this Court’s sentencing jurisprudence, most recently, obviously, the decision last term in Watts and the Court’s decision in Witte.

We know from Watts that even if they had been charged, as petitioners say they could have been, with two separate conspiracies and the jury had acquitted on the crack conduct, that the crack cocaine could have been taken into account at sentencing by the judge, and it cannot be true that that is permissible but then it’s not permissible to do so here, where–

Stephen G. Breyer:

The commission could deal with that as it wishes, couldn’t it?

I mean, if the commission said, look, what we think you have to do is sentence the person to 10 years if he has 5 grams of crack, and you have to sentence him to 2 years if it’s 5 grams of cocaine, and you, the sentencing judge, are to take as a… an assumption of what the amounts are that which is found by the jury and if there is no jury finding you will assume, blah, blah, blah.

They could write a guideline like that, couldn’t they?

Edward C. DuMont:

–Well–

Stephen G. Breyer:

And if they don’t like the way the judges are doing it, they can write the opposite guideline.

Edward C. DuMont:

–I think there may be some question about whether the commission would have power to do anything that would seem to trench on what this Court said in Watts and required by–

Stephen G. Breyer:

But if the courts that find the way you think is wrong are finding that way because they think the guidelines require them to do so, then the answer would be that the commission could make clear that that isn’t–

Edward C. DuMont:

–Oh–

Stephen G. Breyer:

–what the guidelines require.

Edward C. DuMont:

–Yes, absolutely.

That’s true.

If–

Stephen G. Breyer:

So there’s nothing for us to decide–

Edward C. DuMont:

–If the courts feel they are being bound by the guidelines.

But as we pointed out in our acquiescence in this case, there is no indication… the cases in the courts of appeals that have held that the district judge is limited in sentencing to the lesser drug not only don’t address that issue, they don’t even mention the guidelines.

I mean, it’s one of our quarrels with them.

They seem to be innocent of the developments in the sentencing law under the guidelines.

So we would submit that those cases are flatly wrong, and that’s what this case is really about.

It’s what’s presented on the facts here, and the decision on that issue ought to be clear.

Now, it is true, as petitioners argue, that statutory maxima and minima trump whatever is in the guidelines, and it is therefore relevant to ask what the verdict ambiguity does or should or might have to do with setting the statutory minimum and maximum.

Now, the short answer, as we pointed out in our brief, in this case is no effect, because if you calculate… and we did do the math, and it’s been… petitioners have not demonstrated that there’s anything wrong with our math… that if you calculate the statutory ranges in this case based purely on the district judge’s powder cocaine findings, you will find that the sentences actually imposed in every case fall within permissible statutory range, so our submission would be there’s no issue on the facts of this case under the statute.

But should the Court wish to proceed and consider that issue, we think it’s plain from the structure and language of the relevant statutes here, sections 846 and 841, that the answer to that is that these are sentencing factors for the trial judge.

Now, section 846, which is on pages 1 and 2 of the appendix in the blue brief, says any person who attempts or conspires to commit any offense defined in this sub chapter shall be subject to the same penalties, and so on.

The offenses are defined by the other sections in that portion of the United States Code.

If you then look at 841, which is the object defense here, 841(a) defines the offense, and the offense is either possession or… with the intent to distribute, or distribution–

Antonin Scalia:

–Well, it can’t define the offense if, indeed, as you just read, you are to be punished with the same penalties as those prescribed for the offense.

There are no penalties prescribed for 841(a).

When you read 841(a) you have no idea what the penalties are, so that cannot be the offense–

Edward C. DuMont:

–Well–

Antonin Scalia:

–referred to in 846.

Edward C. DuMont:

–Well, with respect, we would obviously disagree with that.

What you know from 846 is that you’re looking for an object offense.

The object offense is defined in 841(a), which says, unlawful acts, except as authorized and so on you may not distribute, or possess–

Antonin Scalia:

Right.

Edward C. DuMont:

–with intent to distribute controlled substances.

Antonin Scalia:

Right, and if all I had before me was 841, I would agree.

But you have before you 846, which you just read, which says any person who attempts or conspires to commit any offense defined in this chapter shall be subject to the same penalties as those prescribed for the offense.

There are no penalties prescribed for the offense of violating 841(a).

Edward C. DuMont:

Well–

Antonin Scalia:

I can read you 841(a) and you can’t tell me what penalty is prescribed for that.

Edward C. DuMont:

–Well, with respect–

Antonin Scalia:

You have to go down to (b) to figure it out.

Edward C. DuMont:

–With respect, I can, because what I’ll say is, you look down to (b), which prescribes the penalties for the offense defined in (a).

Antonin Scalia:

Fine.

I’m willing to accept (b).

Then (b) becomes part of the offense.

Edward C. DuMont:

We disagree about that.

Antonin Scalia:

That’s fine.

Edward C. DuMont:

We disagree about that, obviously, and our analysis is that 841(a) defines an offense which is complete once the jury finds that you have distributed or manufactured or possessed with the intent a controlled substance, and it’s true they… in a substantive count, then in the nature of things they will have to find a controlled substance involved.

I would point out, as came out from some of the questions, in a conspiracy offense that’s not at all clear.

There are certainly conspiracies for which you could be charged and which you could be found guilty where you would have no idea what the type of substance involved was.

Now, I grant you, that will give rise, in those cases, if they actually happen, to strange sentencing issues under both 841(b) and under the guidelines, because it’s not clear what you do with something where you really don’t know even what type of drug was involved, but the fact is the conviction would–

Antonin Scalia:

You apply the minimum.

I think that’s an easy answer, isn’t it?

It’s up to the Government to prove whatever is necessary to prove in order to impose a penalty and if you can’t figure out what it was, the most you can impose is the minimum, I would assume.

What’s hard about that?

Edward C. DuMont:

–That’s a potential answer to that question.

Antonin Scalia:

It seems to me it’s the only answer.

The burden’s on the Government to establish what needs to be established to impose the penalty, isn’t it?

Edward C. DuMont:

Well, for present purposes my point would be, we would establish that at sentencing to the judge, and the conviction would be valid.

Even if it were true that we could not impose a term of imprisonment, the conviction, the special assessment and the record and so on would reflect a conviction for a felony, and that felony would be defined by 841(a).

It would have nothing to do with 841(b).

841(b) has to do with prescribing the penalties that are appropriate under particular circumstances for violations of 841(a).

Anthony M. Kennedy:

And if you commit the offense of conspiracy you perhaps under one view would simply be subject to the risk of being sentenced based on what the conspiracy turned up and the judge says, it’s 5 grams, or 10 grams, or whatever.

Edward C. DuMont:

That’s absolutely right, and our point here is, when you move into the realm of conspiracy… now, 846 obviously covers a wide range of different target statutes and so on, and in this particular case we’re dealing with 846, referring to 841 as the object statute.

We think it’s fairly clear that what Congress would have intended here is when you are convicted of conspiracy to violate 841 what happens is the judge at sentencing looks at the complex of offense conduct involved in that conspiracy under very traditional Pinkerton type conspiracy vicarious–

John Paul Stevens:

May I interrupt with just one question to be sure… what if, in this case, instead of a general verdict you have a special verdict and the jury… a whole stream of different alternatives, and the jury found not guilty as to 9 out of the 10, but on one they said he was guilty of conspiring to distribute 5 grams of powder, and that’s all.

Under your view, could the judge nevertheless sentence… the judge has a different view of the evidence.

He thinks he really committed 100 kilograms of crack.

That’s the judge’s view.

The judge could nevertheless sentence on the basis of his view of the evidence even in the conspiracy context.

Edward C. DuMont:

–Well–

John Paul Stevens:

With specific findings.

Edward C. DuMont:

–I would say particularly in the conspiracy context… in the conspiracy context, the answer is clearly yes, because as long as the conviction is valid, everything else is a sentencing factor and, as the court pointed out in Watts, the difference in standard of proof makes a huge difference there, because all the jury has said by declining to convict on the other counts is they weren’t convinced beyond a reasonable doubt, but there’s a big range there between that and preponderance of the evidence where the court can operate.

Now, what I will say is, it’s a harder case if you have a substantive… a set of substantive distribution counts and the jury acquits on several but convicts on only one, because in that case there’s a… I think a substantial statutory interpretation question that arises about what 841(b) means when it says, in the case of a violation of subsection (a), involving.

Now, the circuits are split on that issue and it’s certainly not presented here, but it would not be unreasonable for a court to hold, and several courts of appeals have taken this route, that in a substantive distribution case you are limited in terms of your statutory maximum by the offense conduct that would be dealt with in that one substantive distribution count.

John Paul Stevens:

That’s not the Government’s view, is it?

Edward C. DuMont:

We haven’t taken a position in this Court on that question, and I hesitate to concede it in this case because it’s not presented, but it would certainly be a plausible… a plausible statutory outcome.

The Tenth Circuit has gone the other way on that question and has said that no, all of these things are sentencing factors to be dealt with by the judge, even under the statute.

I think… so we think that… just to refer back to that language that I was just quoting, again, if we’re talking about what is an element here and what is a sentencing factor, we think that the language of 841 is pretty clear on that.

It’s about as clear as you get.

Antonin Scalia:

It’s your position that as with the guidelines those sentencing factors only require judgment by a preponderance of the evidence–

Edward C. DuMont:

That’s right.

Antonin Scalia:

–by the judge, so the judge makes the decision that it’s more likely than not, by a hair, that this was crack rather than powdered, and therefore you get 40 more years, or 20 more years, by a preponderance.

Gee, I–

Edward C. DuMont:

Well, subject to statutory minimum and maximum that might supervene, and–

Antonin Scalia:

–No, I’m talking about the maximum, that the statutory maximum I could have given you if it was one, you know, if it was powdered, is, say, 20, and the statutory maximum I can give you if it was crack is 40, or 60.

There’s a big difference depending on the quantity, I guess.

And all the judge has to say is, well, it’s a close question, but by a hair I think it’s more likely that it was crack than powder and therefore I’m going to give you 60 years instead of 20.

That doesn’t seem to you, something wrong with that?

Edward C. DuMont:

–Well, if we’re talking about the simple distribution offense, and we’re… if the question is, under 841(b), are all of those always just at the decision of the judge, I think that is a difficult question, and we will certainly address it in the cases it arises in–

It doesn’t arise in this case, partly because this is a conspiracy case.

In a conspiracy case we think what happens is what happened here, which is the judge goes through all the evidence very carefully… I commend to you the very, very detailed sentencing findings that the judge made in this case, and he goes through all the evidence, sifts it and decides in this case, not very favorably to the Government, I would add, what the quantities of drugs are, what types of drugs are involved, and what quantities can be properly attributed to any given defendant.

And in this case it makes no difference under the statute because whatever… all of his findings that he made for purposes of the guidelines put these defendants in the right statutory minimum and maximum range, or the same range, depending on how you calculate it.

Sandra Day O’Connor:

Well, what if it did make a difference, that’s the point.

The Government–

Edward C. DuMont:

It did make a difference.

I think in a conspiracy case the result would be the same, because even the courts that have held… even the courts of appeals that have held that you need to be limited by the offense of conviction have said well, of course, in a conspiracy case, when you’re talking about defining what was involved in the offense of conviction for 841(b) purposes you pick up Pinkerton principles, and principles of vicarious liability.

So that ends up being either indistinguishable from or very, very close to the relevant conduct inquiry under the guidelines, so in a conspiracy case we really think there is no substantial issue about that, that your statutory maximum and minimum are going to set by the same process as your guidelines sentence, and there’s really nothing wrong with that.

Sandra Day O’Connor:

–And if it’s not a conspiracy case and it makes a huge difference, you want to say you’re not going to say.

Edward C. DuMont:

Our position for purposes of argument in this case is that the judge has the authority to decide that, but I acknowledge that it’s a very difficult–

Stephen G. Breyer:

There are several… I mean, are you talking… which question?

I mean, there’s a question reserved in Watts, I take it.

The question reserved in Watts is whether a sentencing factor can be decided by a judge by a preponderance of the evidence or whether the judge might decide it beyond a reasonable doubt.

That’s one question which we haven’t decided, I guess.

Is that right?

Edward C. DuMont:

–That’s correct.

Stephen G. Breyer:

A separate question is who has to decide.

Another question might be whether you had to get notice in an indictment, and whether it’s called an element or something.

I mean, there are a bunch of questions there.

Edward C. DuMont:

There are–

Stephen G. Breyer:

What do we have to decide here?

Edward C. DuMont:

–There are any number of questions that you don’t have to decide here, and we would urge the Court to stick generally to the facts of this case, because I think that’s useful and I think the facts of this case are typical.

But in response to Justice O’Connor’s question, I understood that to be about the limited question of, in a simple distribution case where there is a certain amount of… there’s one distribution, for instance, at issue, and the question is then does the judge get to decide what is involved in that distribution.

And I would submit the following intermediate position, which is, there may be circumstances where all that is proved to the jury might be a small amount of one drug, for instance, but that on particular facts the judge might be able to conclude that because of a suppression motion or for some other reason the jury didn’t see all of the conduct that was involved in that particular distribution, and we would say certainly in that case that it is a sentencing decision for the judge to make about what was involved with that particular offense.

But it’s a substantially difficult question.

I can’t honestly tell you what the Government’s position would be in this Court on the question of, when it was perfectly clear what was involved in that distribution, perfectly clear that was the only conviction, and then there was–

John Paul Stevens:

Would you refresh my recollection on–

Edward C. DuMont:

–other conduct that was sought to be taken into account.

John Paul Stevens:

–on one minor point.

Had we decided that the judge in the sentencing proceeding can rely on illegally seized evidence in making this determination?

You just suggested he might know about it through a suppression motion, for example.

Have we said that’s permissible?

Edward C. DuMont:

I don’t think this Court has said–

John Paul Stevens:

But your position is, it’s permissible?

Edward C. DuMont:

–I think that under the statutes–

John Paul Stevens:

Because that’s your example you happened to pick to explain what the judge could see that the jury might not see.

Edward C. DuMont:

–It’s another question that’s not presented, but yes, I think under the statutes that say that anything can come under sentencing–

John Paul Stevens:

So he can… he only has to do it by a preponderance.

He can do it even if the jury finds him not guilty, and even if he relies on illegally seized evidence.

It’s a pretty extreme position.

Well, we decided the issue if it’s a not guilty finding, haven’t we?

Edward C. DuMont:

–In Watts.

William H. Rehnquist:

In Watts.

Yes.

Edward C. DuMont:

Yes, absolutely.

Antonin Scalia:

Mr. DuMont, would you explain again, because I don’t understand it, how it’s possible that you can come out with one response to Justice O’Connor’s question, where it’s a conspiracy charge but a different response where you’re being prosecuted for simple distribution?

I mean, it seems to me, if your answer is in simple distribution we’re not going to let the judge do it, I don’t see why it… why you can let the judge do it in the conspiracy thing, since the conspiracy statute refers to the distribution statute.

Edward C. DuMont:

Well, it’s not a constitutional question.

It’s a statutory question.

Antonin Scalia:

Yes.

Edward C. DuMont:

The point is, the statutory analysis proceeds as follows.

18… 841(a) defines an offense, unlawful acts, then (b) says as to penalties any person who violates subsection (a) shall be sentenced as follows.

Antonin Scalia:

Right.

Edward C. DuMont:

Then the form of the following phrase is, in the case of a violation of subsection (a) involving.

Antonin Scalia:

Right.

Edward C. DuMont:

Now, it’s always been the Government’s position, as my colleague points out, that for distribution, simple distribution, each possession or distribution of each drug is a separate offense, and it is consistent with that to say that if you’re convicted of only one substantive count, then when you get to (b) what you have to look at is, what is involved in that substantive count.

What’s different about conspiracy is that when you come to apply 846 in the 841 context you’re told by 846, okay, if they’ve conspired to commit an 841 offense you need to… they’ll be subject to the same penalties as those for 841.

The same… we interpret that language, as have the courts of appeals that have looked at this, to say, well, what you are liable for in the conspiracy context under Pinkerton and all the vicarious liability cases is your conduct and the conduct of your coconspirators in furtherance of the conspiracy, and so that is the universe of what you’re liable for.

You take all of that, making those findings, and then you come up with a number of drugs and a quantity of drugs, and then you apply the statutory guidelines in effect that Congress has provided in 841(b).

Antonin Scalia:

Well, I guess what I’m saying, I don’t see how that’s rational.

I mean, if it refers to the offense in 841, and if you’re treating 841 as consisting not of one offense in (a) but of each one being a separate offense for purposes of double jeopardy and everything else, I don’t see how you can treat it any differently for purposes of 846, which refers to the offense in 841.

But I understand your position.

Edward C. DuMont:

You understand our position, and I–

Antonin Scalia:

Let’s… yes.

Edward C. DuMont:

–And I would point out that the Court reviewed in Chapman the history of the drug statute.

Antonin Scalia:

Yes.

Edward C. DuMont:

And one thing I would point out about that is, when Congress enacted the current form of 841(b) in 1986, what it had in mind was setting three broad categories, which were king pin distributors, serious street level distributors, and then regular distributors.

And we think it would be odd if what Congress accomplished through all of this was to say that in a conspiracy case, where every normal principle of construction tells us that when you’re found guilty of the conspiracy you are then liable for all the conduct involving the conspiracy, it would be a passing odd result to find that when you apply that under the statutory structure you end up with something different.

So that if you have somebody who has participated in a long term, broad scale wide distribution conspiracy, that suddenly you are limited at sentencing to taking into account something other than that conduct.

I think… I’d just like to clear up two persistent sources of misconception, I think, in this case.

One–

Ruth Bader Ginsburg:

May I ask first if you agree with Judge Easterbrook that it would be sufficient if the indictment simply alleged controlled substance, without any identification?

Edward C. DuMont:

–For the purposes we are centrally controlled with here, yes, it would be sufficient.

Now, it raises another set of questions, and I think the courts have consistently said that.

They’ve said, well, an indictment is sufficient if it charges in terms of the statute, and the statute says–

Ruth Bader Ginsburg:

But the defendant has to know enough about the case to defend–

Edward C. DuMont:

–But… of course.

There are notice principles that come in both under the rules, under practice, and under the Constitution that require the defendant have adequate notice of what he’s being charged with both for purposes of defense at trial and for purposes of pleading and bar, and I would point out that there is a whole body of cases in the courts of appeals about how you distinguish one conspiracy from another for purposes of double jeopardy, and I think that would be, for instance, relevant in that context.

If I might just point out that there’s a lot of talk about dual object conspiracies here, and it’s a source of a lot of confusion in the briefs and I think, with respect, in my colleague’s argument.

The indictment here charged a dual object conspiracy in the sense that it charged both possession with intent and distribution, each of which is a separate offense under 841.

Now, they happen to be in this case offenses that violate the same substantive statute.

It did not charge a dual object conspiracy by charging that there was both cocaine and crack cocaine involved in this conspiracy.

Those are means of satisfying the same element of either the distribution offense or the possession offense.

They are not objects of the conspiracy, and I think it’s quite important, actually, conceptually to keep that in mind.

The offense of conviction–

William H. Rehnquist:

–The object of the conspiracy was either to distribute or to possess with intent to distribute?

Edward C. DuMont:

–That’s correct, and we know from Griffin that if there was sufficient evidence to convict on either one of those, and there clearly was, they conceded there was, the convictions are perfectly valid.

But it is false and misleading to say, oh, well, this is dual objects because one object was crack and one object was powder.

That’s just not the way it works.

The other thing is, the offense of conviction, which we talk about both in terms of 841 as a statute–

Antonin Scalia:

Excuse me.

Just before you go on, that’s quite correct unless you accept your colleague’s view of what 846 requires.

I mean, if you acknowledge that 846 does require you to charge something other than an intent to distribute some controlled substance, and if you acknowledged his view that it requires you to specify a controlled substance, then it would be a dual object, under his view of the world.

Edward C. DuMont:

–Under his view of the world I think that’s right, and there would be… there would be more serious problems than figuring out the sentence, frankly, because I think there would be problems with convictions, although they’ve never stood up to the plate on that one.

Again, in view of the offense of conviction, which is important, is a conspiracy to distribute controlled substances, and I think if we look, as my colleague was suggesting, at the indictment and at the statute, he said, well, if you didn’t specify quantity, the maximum statutory sentence would be 20 years, and we would quite strongly disagree with that.

If you get an indictment that charges you with participating in a drug conspiracy and no quantity is specified, when you look at the statute you ought to be on notice… you are on notice that the maximum penalty is life in prison.

It depends on the quantity, which is something that hasn’t been specified.

Now, you may want to seek clarification of that in one way or another, but it is not–

William H. Rehnquist:

Do they still have bills of particulars?

Edward C. DuMont:

–They absolutely do, Your Honor.

It is not true that you somehow know from that indictment that your exposure is limited to 20 years.

So I might just return to the fact that there is one real and straightforward issue in this case, and the other… and that is the guidelines issue that I was dealing with earlier, and the circuits are in conflict on that issue, and the Court ought to resolve it in the way that we think is plainly correct under Watts and Witte.

The other questions we’ve been considering are very interesting, and they may, in fact, be difficult in some future case that presents them, but this case, when we return to our sheet, is really a very simple one, and the judgment below ought to be affirmed.

Thank you.

William H. Rehnquist:

Thank you, Mr. DuMont.

Mr. Shobat, you have 2 minutes remaining.

Steven Shobat:

Mr. Chief Justice, the issue that is not before the Court is the guideline issue.

Quite frankly, this case doesn’t raise the concerns of the guidelines.

It raises the question of the statutory maximum and the offense of conviction, and that’s the starting point.

Even before the district court could proceed to the question of the Sentencing Guidelines, it had to know what the offense of conviction was, and it had to know what the statutory maximums–

Sandra Day O’Connor:

Well, were all these sentences within the range of the powered cocaine range?

Steven Shobat:

–The answer to that question is no.

Sandra Day O’Connor:

No?

Steven Shobat:

It’s really, we don’t know, but it’s very likely that it is no.

Sandra Day O’Connor:

The Government says it’s calculated them all and the answer is yes.

Steven Shobat:

Well, what the Government has relied upon, Your Honor, is the findings of the Court after having considered the defendants of being… of having been convicted of a conspiracy that we don’t know that they were convicted of, and so now, after the fact, we have a determination by the sentencing court.

If the judge were to look at this anew and say the conspiracy of which they were convicted was powdered cocaine distribution, then the Court might say, well, I think the amount of powdered cocaine is less than I previously attributed to this conspiracy because then I thought the conspiracy embraced both crack cocaine and powder cocaine.

After all, in this conspiracy there were quantities of powder cocaine that were converted into crack cocaine and, for example, with respect to petitioner Wintersmith, he was held accountable for 540 grams of powder cocaine.

If just 40 grams of that substance were attributable to the crack conspiracy… that is, that part of the conspiracy that had to do with converting the powder to crack and selling it out of a drug house… just diminution of that 40 grams would mean that his maximum penalty was 20 years.

Now, he received a sentence of 21 years, less than the 40-year maximum that would have been applied at a 500-gram level, and so we think that the similar analysis applies to each of the petitioners in varying degrees.

Certainly with regard to some of the petitioners there was more evidence, there was a greater involvement in the conspiracy, and that is the central problem with these dual object conspiracies.

The Government could potentially bring a case which has very strong evidence–

William H. Rehnquist:

Thank you, Mr. Shobat.

William H. Rehnquist:

Your time has expired.

The case is submitted.