UNITED STATES of America, Appellee, v. Phelix Henry FRAZIER, also known as Towman, also known as Tow, also known as Phe, also known as Daddy, also known as Blue, also known as Reuben Matthews, Appellant. United States of America, Appellee, v. Darren Thomas, also known as DT, Appellant. United States of America, Appellee, v. Joe Robinson, Appellant. United States of America, Appellee, v. Phelix T. Frazier, also known as Little Phe, also known as Phe Phe, Appellant.
Nos. 98-3747, 98-3748, 98-3860, 98-3926
United States Court of Appeals, Eighth Circuit
Filed: Feb. 12, 2002
Submitted: March 12, 2001.
280 F.3d 835
Daniel Mohs, argued, St. Louis, MO, for appellant Phelix H. Frazier.
Stephen E. Rothenberg, argued, St. Louis, MO, for appellant Darren Thomas.
William Gavras, argued, St. Louis, MO, for appellant Joe Robinson.
Benjamin Capshaw, argued, St. Louis, MO, for appellant Phelix T. Frazier.
Before HANSEN and HEANEY, Circuit Judges, and TUNHEIM,1 District Judge.
HANSEN, Circuit Judge.
A federal grand jury returned an indictment alleging that Phelix H. Frazier, Sr., his son, Phelix T. Frazier,2 Darren Thomas, and Joe Robinson, along with 19 other defendants, operated a large-scale heroin distribution operation in St. Louis, Missouri. A federal trial jury found the four guilty of conspiracy to distribute drugs and of other related violations. The defendants argue on appeal that their convic-
I. Background
Frazier, Sr. was arrested in San Diego, California, in March 1990 when he attempted to purchase approximately two kilograms of cocaine. Following his arrest, he pleaded guilty to conspiring to possess with intent to distribute cocaine, and he served over four and a half years in a federal prison in California. While incarcerated there, Frazier, Sr. learned of a large-scale supplier of heroin, Jesse Lewis, who resided in San Francisco. Following Frazier, Sr.’s release from prison, he returned to St. Louis to begin reestablishing himself in the narcotics trafficking business.
Frazier, Sr. made his first trip to San Francisco to meet Lewis shortly after his release from prison. On the first trip, he purchased several ounces of good and affordable black tar heroin, and Lewis proved himself to be a reliable supplier. Frazier, Sr. thereafter traveled to San Francisco once or twice per month. He began purchasing 5-ounce quantities of pure heroin at a time, but as his St. Louis operation’s sales increаsed he later purchased 10-ounce quantities and, ultimately, 20-ounce quantities. Frazier, Sr. personally made the trips to San Francisco to purchase the drug.
Back in St. Louis, Frazier, Sr. and his cohorts developed an organized and complex enterprise to market the heroin and to avoid interference by law enforcement. Over the course of the conspiracy, Frazier, Sr. and the others established several drug-distribution locations throughout St. Louis, but distributed out of only two or three locations at a time, rotating them frequently to avoid detection. In addition, they kept the locations open for business only during specific and limited hours during the day. The organization utilized cell phones, pagers, and call forwarding to insure that users were able to contact the location from which the sales were being made. Frazier, Sr. also established a phony towing company, AM PM Towing, which he used to launder money earned through drug sales. The company’s shop also functioned as a distribution location.
Frazier, Sr. designated someone to operate eаch particular drug-distribution location and that person in turn supervised the drug activities and others employed at the location. Actual sales to users did not occur at the distribution locations. Instead, an individual employed there mixed the heroin with a diluent to attain a street-level purity, or “cut” the heroin, and packaged it into empty, clear capsules (a signature of Frazier Sr.’s operation) to be sold to users. Users then called in their orders to someone employed to answer calls and take orders at the location. The order taker would document the order in writing and arrange a delivery at some designated meeting place, and a runner would deliver the drug. Each capsule sold for $10, and each location sold between $1500 and $6000 worth of heroin per day. DEA agents estimated that the operation supplied over 60% of the heroin being sold in St. Louis. As a service to their customers, Frazier, Sr.’s locations also supplied cocaine in capsule form, but the volume of cocaine sold was much less than the volume of heroin.
Robinson, Thomas, and Frazier, Jr. performed various roles in Frazier, Sr.’s operation. Robinson started as a runner, was promoted to an order taker and later was given the responsibility of mixing the heroin at several locations. Thomas, in contrast, entered the operation in the fall of 1996. Frazier, Sr. knew Thomas from the time they had spent together in a halfway house following their releases from prison,
Around the time Thomas opened the North Grand location, state and federal law enforcement officers began investigating Frazier, Sr.’s activities. As one of the first steps, the officers obtained permission to install a pen register on the phone at Thomas’s location. Over 26,000 calls were logged in a three-month period. Through information gained in the investigation, the officers sought and received permission to install several wiretaps at various drug-distribution locations and on phones used by members of the operation. Investigators installed the first wiretap at the North Grand location in March 1997, sometime after Thomas’s supervised release had been revoked for using heroin. Frazier, Sr.’s niece took over the North Grand operation after Thomas was no longer available.
In late May 1997, agents intercepted a call in which Frazier, Sr. informed Lewis that he would be traveling to San Francisco for more drugs. On his return trip on May 23, officers apprehended Frazier, Sr. at the airport and seized 20 ounces of black tar heroin that had been strapped to his body. The agents released him from custody, and shortly thereafter, Frazier, Sr. called Lewis and ordered 15 more ounces of pure heroin. He also made arrangements to transfer various property from his name into the names of others, and he placed an order for a false identification. On May 30, agents again apprehended Frazier, Sr. as he arrived in Kansas City on a return flight from California. The officers seized 15 ounces of black tar heroin, which was contained in Frazier, Sr.’s companion’s suitcase. The investigation ultimately culminated in the execution of 28 search warrants, yielding the seizure of drugs, drug paraphernalia, weapons, and drug ledgers.
The grand jury returned a superceding indictment charging 24 defendants with various violations of federal law. Twenty of the named defendants pleaded guilty, and the remaining four defendants who appeal here were tried together beginning in late July 1998. Following the dismissal of one juror during deliberations because of a family emergency, the remaining jurors returned a verdict in early August 1998, finding the four defendants guilty of the charge that they conspired to distribute or possess with intent to distribute heroin and cocaine, in violation of
II. Defendants’ Convictions
The defendants raise numerous issues on appeal which they argue require us to
A. Motion to Sever
Under
In short, Thomas claims prejudice because, as he argues, the government’s case against him was strengthened by the substantial and highly incriminating wiretap evidence which implicated others but which did not show that he was involved. Severance, however, is not required merely “because the evidence may have been more damaging against one appellant than the others,” United States v. Pou, 953 F.2d 363, 369 (8th Cir.) (internal quotations omitted), cert. denied, 504 U.S. 926 (1992), or because evidence established that a conspirator was not involved during the entire duration of the charged conspiracy. Any concern that the evidence implicating the other codefendants would spill over and prejudice Thomas was minimized by the district court’s instruction to the jury to view the evidence presеnted against one defendant as applicable to only that defendant. See United States v. Moore, 149 F.3d 773, 778 (8th Cir.), cert. denied, 525 U.S. 1030 (1998).
B. Wiretap Evidence
Frazier, Sr. complains of the wiretap evidence. He argues the district court should have granted his motion to suppress tape-recorded phone conversations and any other evidence obtained as a result of the government’s wiretaps. In a pretrial motion, Frazier, Sr. sought a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), alleging that the government’s affidavits supporting its request for wiretaps and its requests to extend their use contained false statements. He did not identify the alleged falsehoods in his motion, nor did he do so at a pretrial motion hearing when the magistrate judge invited him to present evidence on the issue. As a consequence, the magistrate judge concluded in his report and recommendation that Frazier, Sr.’s Franks claim lacked merit.
In his objections to the report and recommendation, Frazier, Sr. alleged for the first time that suppression was required because the attesting officer made deliberate falsehoods in the affidavits in order to establish the necessity for using wiretaps.4 In support, he identified a
We agree with the government that the Franks issue was not timely raised before the district court. Under
As interesting as the issue is, we decline to join the debate because we find no merit to Frazier, Sr.’s Franks claim under any review. To prevail on a Franks challenge, a defendant must show: “(1) that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit, and (2) that the affidavit’s remaining content is insufficient to establish probable cause.” United States v. Milton, 153 F.3d 891, 896 (8th Cir.1998) (internal quotations omitted), cert. denied, 525 U.S. 1165 (1999). Frazier cannot establish the first required showing.
The attesting officer merely erred in dоcumenting the time frame of the searches identified in the affidavits. Frazier, Sr. was the subject of a search in
C. Evidence of Other Crimes, Wrongs, or Acts
Frazier, Sr. and Thomas both argue for different reasons that the district court erred in admitting evidence of their prior unlawful drug activity under
At best, as we have already discussed, we review Frazier, Sr.’s challenge to the prior bad act evidence for plain error because he failed to file a timely suppression motion. The Supreme Court held in Old Chief that the district court abused its discretion in refusing a defendant’s offer to stipulate to his status as a felon under
Evidence is admissible under
Unlike Frazier, Sr., Thomas properly preserved the
When it has been properly preserved, we review the district court’s
Thomas asserts with respect to the traffic stop that the district court permitted the officer to testify to matters beyond his own conduct, which bore solely on his propensity to commit the crime charged. We respectfully disagree. The testimony surrounding the stop, including the anonymous tip that led to the stop and the seizure of drugs from persons with Thomas, were necessаry for the jury to ascertain whether the prior event actually occurred and to gauge the extent of Thomas’s prior involvement with controlled substances. Moreover, the district court thoroughly instructed the jury on the appropriate purpose of the officers’ testimony, thereby alleviating its prejudicial impact. See United States v. Benitez-Meraz, 161 F.3d 1163, 1166 (8th Cir.1998). We accordingly conclude that the district court did not abuse its discretion in admitting evidence of Thomas’s prior unlawful drug activity.
D. Coconspirator Testimony
Frazier, Sr. argues the district court erred in admitting Andre Jones’s testimony about conversations Jones had with Thomas and Frazier, Sr. The conversations occurred during the course of the conspiracy and related to the organization’s activities. The district court ruled that Jones’s testimony involved nonhearsay statements of a coconspirator and was admissible under
During trial, Officer Jerry Leyshock testified that Jones provided him with the location of one of Frazier, Sr.’s distribution points and told him when sales would be made at that location. Frazier, Sr. argues, therefore, that Jones’s testimony about the statements made to him by Thomas and Frazier, Sr. was inadmissible because Jones was a government informant operating to defeat the object of the conspiracy. Whether Jones was a member of the conspiracy or was acting in furtherance of the conspiracy, however, is irrelevant to whether the out-of-court statements to which he testified are admissible under
Frazier, Sr. also argues that Officer Leyshock’s testimony concerning the information Jones supplied to him was inadmissible under
E. Transcripts’ Identification of Speakers
Frazier, Sr., Frazier, Jr., and Robinson argue the district court erred in permitting the jury to view transcripts of recorded conversations while the recordings were played during trial. They objected at trial to the transcripts’ purported identification of the speakers heard in the recordings. The district court overruled their objection and instructed the jury that the recordings, not the transcripts, constituted evidence and that the transcripts were merely provided for the limited purpose of aiding them in following the conversations and in identifying the speakers. The district court further instructed the jury that if it found any variance between the recordings and the transcript, the recordings controlled.
The decision to permit the use of transcripts to aid the jury in listening to tape-recorded conversations lies within the sound discretion of the district court, United States v. Bentley, 706 F.2d 1498, 1507 (8th Cir.1983), and we review the decision for an abuse of discretion, United States v. Calderin-Rodriguez, 244 F.3d 977, 987 (8th Cir.2001). We find no abuse of discretion in this case because, contrary to the defendants’ arguments, there was a sufficient foundation supporting the identifications of the speakers. The foundation was established through the testimony of DEA Special Agent David Turner, the case agent responsible for the wiretap investigation. Agent Turner testified that he was familiar with the speakers’ voices through his work with the wiretaps. He also explained during his testimony about how he identified the speakers, how he prepared the transcripts, and how he proofread the transcripts by comparing them to the actual tape-recorded conversations. See United States v. McMillan, 508 F.2d 101, 105 (8th Cir.1974) (“If accuracy [of the transcript] remains an issue, a foundation may first be laid by having the person who prepared the transcripts testify that he has listened to the recordings and accurately transcribed their contents.”), cert. denied, 421 U.S. 916 (1975).
The defendants’ assertion that the identifications were unreliable because some of the responsibility for determining the identity of the speakers was delegated to other agents goes to the weight to be given the identifications. Agent Turner testified that he had reviewed all of the transcripts for their accuracy. Moreover, the defendants’ accuracy challenge is hampered by their failure to point to any specific misidentification in the transcripts.
The defendants argue the jury was not properly instructed on the permissible use of the transcripts because the district court did not specifically inform the jury that the jury, not the person or persons who transcribed the recordings, was ultimately responsible for identifying the speakers heard in the recordings. The defendants did not object to the initial instruction given when the transcripts were offered, but even if the district court’s initial instruction was not sufficiently clear to inform the jury that it was obligated to independently determine the speakers’ identities, the instructional error was harmless. Prior to the jury’s deliberations, the district court instructed the jury pursuant to Eighth Circuit Model Criminal Jury Instruction § 2.06 (2000), which unquestionably explains that the jury must determine whether the transcripts correctly identified the speakers heard in the recordings. See United States v. Jacobs, 97 F.3d 275, 278 (10th Cir.1996) (concluding that earlier instructional error was harmless where subsequent instruction properly informed the jury of its obligation). Because the defendants point to no specific error in the identifications, and because a sufficient foundation existed supporting the identifications, we find no abuse of the district court’s discretion in its decision to permit the jurors to view the transcripts.
F. Verdict of Eleven Jurors
Frazier, Sr., Frazier, Jr., and Robinson contend the trial court erred in accepting the verdict of an eleven-person jury. During the jury’s deliberations, a juror received a call notifying him that his father had suffered a sеvere medical emergency and was not expected to live. The district court determined that the circumstances amounted to just cause under
The defendants argue that
The defendants claim alternatively that the district court improperly exercised its discretion in dismissing the juror. They suggest that the court should have suspended deliberations until the dismissed juror could have confirmed with certainty after he had visited the hospital that he would be unable to return.
III. Sentencing Matters
We now turn to the defendants’ arguments that the district court erred in imposing the sentences they received. Thomas argues the district court incorrectly determined his sentence under the Sentencing Guidelines, and all four defendants argue their sentences violate Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury made no specific drug quantity finding. For the reasons that follow, we affirm the defendants’ sentences.
A. Thomas’s Guidelines Sentence
The district court determined аt Thomas’s sentencing hearing that he was accountable for between 10 and 30 kilograms of a substance containing heroin during the period of his involvement in the conspiracy, supporting a base offense level of 36. The court enhanced his sentence three levels for his role as a manager or supervisor and two levels for possessing a dangerous weapon, resulting in an adjusted base offense level of 41. Based on a criminal history category V, the district court sentenced Thomas to 480 months imprisonment (within the 360 months to life range authorized by the Guidelines). Thomas challenges his sentence on the grounds that the district court made an erroneous drug-quantity finding when it determined his offense level and erred in imposing the role and weapon enhancements.
The Guidelines permit a district court to approximate the quantity of drugs for sentencing purposes where, as with Thomas, there has been no direct seizure of drugs directly establishing the relevant amount. See U.S. Sentencing Guidelines Manual § 2D1.1 n.12 (1995)7; see also Brown, 148 F.3d at 1008. When challenged on appeal, we review the district court’s drug-quantity determination for clear error. See United States v. Granados, 202 F.3d 1025, 1028 (8th Cir.2000). “Defendants who challenge the sentencing court’s determination of drug quantity face an uphill battle on appeal because we will reverse [the] determination ... only if the entire record definitely and firmly con-
Thomas’s drug-quantity challenge is twofold. First, he argues the district court’s drug-quantity finding was inflated because the court utilized drug-sales estimates that were excessive in light of the evidence presented at trial. Second, he argues the entire conspiracy’s output was unforeseeable to him, and his quantity finding should have been based solely on sales from the North Grand location that he supervised. We find no merit to either argument. The district court’s quantity estimates were reasonable and supported by the testimony of coconspirator Brian Heard. Heard testified at trial that Thomas ran Frazier, Sr.’s location on North Grand for approximately four or five months. He further testified that each of Frazier, Sr.’s locations distributed between 12 and 15 grams of uncut heroin per day. Assuming Thomas was involved for four months and the heroin was diluted before it was distributed at a ratio of 6 parts filler to 1 part heroin, as Heard testified it was, the operation would have distributed a total of 26.9 to 33.6 kilograms of a substance containing heroin, even if only two locations had been open each day during Thomas’s involvement. On this record, it was not clear error for the district court to find that Thomas was accountable for between 10 and 30 kilograms.
We likewise conclude that the district court did not clearly err in finding that the sales made at the other distribution locations were reasonably foreseeable to Thomas. The evidence showed that Thomas not only established one location but that he recruited others into the conspiracy, that he was present at other distribution locations either to pick up drugs or for other reasons related to the operation’s activities, and that he procured a large volume of empty capsules (approximately 22,000 capsules) to be used in selling heroin. Thus, he was intricately involved in Frazier, Sr.’s operation and was well aware of its scope, justifying the distriсt court’s foreseeability finding. See United States v. Padilla-Pena, 129 F.3d 457, 468 (8th Cir.1997) (affirming attribution of entire conspiracy’s drug distribution activities where defendants were “central figures” in the conspiracy), cert. denied, 524 U.S. 905 (1998). To Thomas’s benefit, the district court’s quantity estimate was conservative in all respects and did not amount to clear error.
The evidence of Thomas’s involvement is also sufficient to support the district court’s decision to enhance his sentence for his role as a manager or supervisor pursuant to USSG § 3B1.1(b). Factors relevant to the enhancement include: “the nature of the defendant’s role in the offense, the recruitment of accomplices, and the degree of participation in planning or organizing the offense.” United States v. Jasper, 169 F.3d 1109, 1110 (8th Cir.1999) (internal quotations omitted). Thomas played a significant role in the offense by establishing the North Grand location and by recruiting others to operate that location. The evidence showed that he and Frazier, Sr. mixed and packaged the heroin at that location and that only he and Frazier, Sr. had access to the supply of heroin stored there. Furthermore, Heard along with two other cocon-
Finally, Thomas contends the district court committed clear error in enhancing his sentence for possession of a weapon under USSG § 2D1.1(b)(1). “At sentencing, the burden is on the government to show by a preponderance of the evidence that a dangerous weapon was present and that it was not clearly improbable that the weapon had a nexus with the criminal activity”; mere presence of a weapon is insufficient to warrant the enhancement. United States v. Betz, 82 F.3d 205, 210 (8th Cir.1996). We review a district court’s factual findings and application of § 2D1.1(b)(1) for clear error. Brown v. United States, 169 F.3d 531, 532 (8th Cir.1999).
Based on the trial testimony of Andre Jones, the presentence investigation report recommended the weapons enhancement. Jones testified at trial that a “raggedy shotgun” was kept in a closet at the North Grand location but that those involved in the conspiracy did not “believe in weapons.” (Trial Tr., Vol. 3B at 226.) The district court overruled Thomas’s objection to the enhancement, concluding that Jones’s testimony was sufficient to support it. Thomas argues Jones’s testimony failed to establish that the weapon was present during his tenure at the North Grand location or that the weapon was loaded or even operational.
While Jones’s testimony is not crystal clear as to the specific time period when the weapon was kept at the North Grand location, we cannot say we are left with the “definite and firm conviction” that the weapon was not present when Thomas operated the location. United States v. Williams, 109 F.3d 502, 509 (8th Cir.) (discussing when a sentencing court’s factual finding amounts to clear error) (internal quotations omitted), cert. denied, 522 U.S. 917 (1997). In fact, there was evidence that a shotgun was seized at two other drug locations and that shotgun shells were seized at a third location, supporting an inference that shotguns were part of the modus operandi of a Frazier, Sr. drug house. As for the condition of the weapon, the government need not prove that a gun was loаded and ready for use to support a weapons enhancement; it must only show a connection between the gun and the drug activity.9 We have said many times that such a connection is established if the weapon was stored in the same location as the drugs. See, e.g., United States v. Payne, 81 F.3d 759, 763 (8th Cir.1996). Here, Thomas concedes in his brief that the weapon and the drugs were stored together in the same closet. Consequently, the district court did not commit clear error in imposing the weapons enhancement.
B. Apprendi
Apprendi requires that any fact (other than a prior conviction) which increases the penalty for a crime beyond the maximum penalty authorized must be submitted to the jury and found beyond a reasonable doubt. 530 U.S. at 490. Because the defendants did not object to the jury’s failure to find drug quantity at trial, our review is limited to a
Frazier, Jr.’s Apprendi argument is quickly disposed of because he is unable to show that the district court committed an error in imposing his sentence. Shortly after Apprendi was decided, our court held, in the context of
We similarly conclude that Frazier, Sr.’s sentence is not invalid under Apprendi. The district court sentenced Frazier, Sr. to life imprisonment on the CCE conviction and imposed a provisional life sentence on the conspiracy conviction, to take effect only if the CCE conviction or sentence is reversed on appeal. Although the district court’s drug quantity finding increased Frazier, Sr.’s Guidelines sentencing range, it had nо effect on the maximum penalty of life imprisonment available under
Robinson’s, and Thomas’s Apprendi arguments are not resolved so easily, nor is Frazier, Sr.’s argument that Apprendi renders invalid the provisional life sentence imposed by the district court on his conspiracy conviction. Because we find no error in Frazier, Sr.’s sentence on the CCE conviction, we need not address the provisional sentence but do so as an alternative basis supporting the district court’s judgment. The district court imposed a sentence on each defendant’s conspiracy convictions that exceeded the maximum sentence authorized under
A panel of our court recently rejected the government’s suggestion that Johnson controls in the context of an Apprendi error, concluding instead that the error seriously affected the fairness, integrity, and public reputation of judicial proceedings. See United States v. Maynie, 257 F.3d 908, 920-21 (8th Cir.2001). The Apprendi error in Maynie, however, involved not only the jury’s failure to find drug quantity, but the government’s failure to charge drug quantity in the indictment. The Maynie court reasoned that the deficient indictment resulted in a far more pervasive effect on the proceedings than the mere failure to submit an element of the offense to the jury because it affected the dеfendants’ notice and grand jury rights under the Fifth and Sixth Amendments. Id. at 920-21. The government in this case charged defendants in the indictment with conspiring to distribute in excess of one kilogram of a mixture or substance containing heroin, an amount sufficient to trigger the highest statutory penalties available under
We are instead faced with a situation much like that in United States v. Anderson, 236 F.3d 427 (8th Cir.), cert. denied, 122 S. Ct. 356 (2001), where drug quantity was properly charged in the indictment. In Anderson, the court affirmed the sentences imposed by the district court despite the jury’s failure to make a specific drug-quantity finding. The court concluded the drug-quantity evidence presented at trial was overwhelming, id. at 429, and that it was inconceivable that any rational jury would have found fewer than five grams of methamphetamine, the quantity of drug necessary to impose a penalty within
To support Thomas’s and Robinson’s sentences, the jury would have to had found them responsible for 100 grams of a mixture or substance containing heroin, see
Robinson’s sentence can also be affirmed on an alternative ground. In addition to Robinson’s 380-month sentence on his conspiracy conviction, the district court imposed a concurrent 20-year sentence on his conviction for distributing heroin. If we reversed Robinson’s sentence on the conspiracy count and remanded for resentencing, the district court would be required by the Guidelines to impose a 240-month sentence on the conspiracy count and an additional 140-month consecutive sentence on the distribution count, thereby resulting in the same total punishment of 380 months. See USSG § 5G1.2(d). Our court has held there is no plain error where, upon remand to correct an Apprendi violation, § 5G1.2(d) would requirе consecutive sentencing resulting in the same total punishment previously imposed. See United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.), cert. denied, 122 S. Ct. 182 (2001); United States v. Caldwell, 255 F.3d 532, 533-34 (8th Cir.2001).13
IV. Conclusion
For the reasons set forth above, we affirm the defendants’ convictions and sentences.
HEANEY, Circuit Judge, concurring.
I join in the majority’s opinion as to Parts I, II, III.A and IV, but I write separately to express my concerns about
Apprendi mandates that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Today’s decision recognizes that the trial court committed plain error by failing to put the issue of drug quantity to the jury, yet upholds Thomas’s sentence because it does not result in a “miscarriage of justice.” Johnson v. United States, 520 U.S. 461, 470 (1997). I believe that the court’s analysis in this case circumvents Apprendi and undermines the Sixth Amendment right to a trial by jury.
I see two central problems with the majority’s analysis. First, as this court did in United States v. Anderson, 236 F.3d 427 (8th Cir.2001), the majority applies the harmless error analysis from Johnson v. United States, 520 U.S. 461 (1997) to uphold Thomas’s sentence. I do not believe, however, that Johnson supports the application of harmless error analysis to the Apprendi error in Thomas’s case.
In Johnson, the Supreme Court decided that despite the jury’s failure to decide the issue of materiality in a perjury case, reversal was not warranted because the error did not seriously affect the “fairness, integrity or public reputation of the judicial proceedings.” 520 U.S. at 470. The Court found the error harmless because evidence of materiality was essentially uncontroverted at trial. The petitioner was found guilty of making false statements while testifying before a grand jury that was investigating her longtime boyfriend’s alleged investment of proceeds from drug trafficking in real estate. The petitioner falsely testified about the source of the tens of thousands of dollars she used to improve her home when, in truth, her long-time boyfriend was involved in financing the purchase of and improvements to her home. Because the grand jury was investigating her boyfriend’s real estate investments, the Court found that there was no plausible argument that petitioner’s false statements were immaterial. Indeed, materiality is evident from this brief recitation of the facts.
The issue of drug quantity, however, can be more difficult to prove than that of materiality. When considering whether the trial court’s еrror under Apprendi is harmless, this court must ask whether there is any reasonable doubt that the evidence before the jury would have led it to convict Thomas of less than the 100 grams of heroin needed to authorize his sentence. United States v. Anderson, 257 F.3d 924, 925 (8th Cir.2001) (M. Arnold, dissenting). While there is ample evidence that would allow a jury to conclude that more than 100 grams of heroin was involved in this conspiracy, it is unclear to me that the evidence proves beyond a reasonable doubt that defendant Thomas “knowingly and intentionally” conspired to distribute a quantity of heroin in excess of 100 grams. See
Next, I do not believe that it is consistent with the Sixth Amendment for our court to sustain Thomas’s sentence merely because we have decided that no jury that convicted Thomas of conspiring to distribute heroin could have found him responsible for less than the 100 grams needed to authorize his sentence. Even though our court applied this analysis in Anderson, I believe the correct question should be whether the evidence proved beyond a reasonable doubt that Thomas conspired with others to distribute more than 100 grams of heroin. The majority’s conclusion, that no jury that found Thomas guilty of the conspiracy could also find less than 100 grams of heroin, requires the reviewing court to look into the thought process of the jury rather than conclude that the evidence, on its face, proves that the conspirаcy involved a certain drug quantity beyond a reasonable doubt. In Johnson, the Supreme Court had overwhelming evidence of materiality — it did not have to look to the jury’s other findings to determine whether materiality had been proven. That is not the case here, and I think it is dangerous precedent for a court of appeals to extrapolate from a jury’s verdict other facts that, in error, the jury was not instructed to decide.
I believe that the failure of the trial court to submit to the jury each factor that could subject Thomas to punishment beyond the maximum sentence authorized by
The petition of the United States for a rehearing by the panel in appeal No. 98-3747 is granted. The panel’s opinion and judgments enterеd November 6, 2001, are vacated.