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SPRING 1998 - VOLUME 2, NUMBER 1

Criminal Justice

Supremes Consider Drug Sentencing, Racial Composition of Juries

By Thomas J. Foltz

The Supreme Court’s 1997–98 Term opened with certiorari granted to cases that include sentencing in controlled substance cases and a case of racial discrimination in grand jury selection.

Sentencing in Controlled Substance Cases. In Edwards v. U.S., 105 F.3d 1179 (7th Cir. 1997), cert. granted, No. 96–8732, 118 S. Ct.___, 66 U.S.L.W. 3291, the Supreme Court will consider the role of judicial discretion in sentencing defendants convicted of trafficking in both crack and powder cocaine.

Edwards involves members of the street gang Gangster Disciples who were using Rockford, Illinois, as a distribution hub for cocaine when twenty members were indicted. Five pled guilty; the remaining fifteen were tried in three groups. Two of the three groups unsuccessfully appealed both the convictions and the sentencing. The third group was faced with the court’s decision of whether to base the sentences on trafficking in base cocaine (also called crack) or powder cocaine, which carries a lighter sentence. The defendants insisted that because the indictment charged conspiracy to distribute both powder and crack cocaine, and the jury instructions allowed a conviction for measurable amounts of either drug, the guilty conviction could not be used to conclusively establish that they distributed crack cocaine. The jury, they argued, would have returned the same verdict had all of the drug been powder cocaine. Because the defense failed to object to the jury instructions or the verdict form or ask whether the jury believed the defendants were distributing powder or crack cocaine, the defendants presented their objections under the "plain error doctrine" pursuant to Federal Rule of Criminal Procedure 52. United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).

In accord with the Eleventh Circuit, but opposed to the Second, Eighth, Fifth, Ninth, and Tenth Circuits, the Seventh Circuit held that when a jury finds a conspiracy agreement covered multiple drugs, the defendants can be sentenced as if the group had distributed only the drug that the judge decides the conspiracy distributed. The decision was predicated on the discretion under the United States Sentencing Guidelines’ "relevant conduct" provisions, U.S.S.G. § 1B1.2(d) Application n.5, which allow the judge to consider the kinds and quantities of drugs not considered by the jury.

Thus, as the Seventh Circuit noted "[b]ecause sentencing depends on proof by a preponderance of the evidence, while conviction depends on proof beyond a reasonable doubt, the judge may even base a sentence on events underlying charges for which the jury returned a verdict of acquittal. U.S. v. Watts, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997). "What a jury believes about which drug the conspirators distributed therefore is not conclusive—a verdict that fails to answer a question committed to the judge does not restrict the judge’s sentencing options. . . ."

Most importantly, the court, relying on authority from Brown v. United States, 299 F.2d 438 (D.C. Cir. 1962), reasoned that the only time there could be confusion with regard to a general jury verdict is in the case of an indictment charging a conspiracy to commit two separate crimes. As the court observed, powder and crack cocaine were variations of "the same drugs sold at distinct segments of the retail market; the difference is consequences for sentencing under 21 U.S.C. § 841(b) in the guidelines, but not for the identification of a substantive offense. . . ." The authority cited by the other circuits, the Seventh Circuit noted, was flawed in that it failed to distinguish between indictments against those who had committed two separate crimes and those who had committed one crime in two ways. Under the latter construction, the judge, operating under the sentencing guidelines, has the discretion to sentence and to determine which drugs and what amounts were involved.

The principal underpinning for the court’s determination is that in the case of a conspiracy "whether the conspiracy deals different drugs or different forms of the same drug is not pertinent. A charge that conspirators agreed to distribute marijuana, cocaine, and heroin identified only a single crime for the conspiracy is the agreement and not the distribution, See United States v. Shabani, 513 U.S. 10, 115, S. Ct. 382, 130 L. Ed. 2d 225 (1994)." Edwards, 105 F.3d at 1182.

The question before the Supreme Court is whether the defendant, found guilty on such a general jury verdict, must be given a sentence on the basis of the lesser penalty or granted a new trial.

Race and Grand Jury Selection. In Campbell v. Louisiana, 661 So. 2d 1321 (La. S. Ct. 1995), cert. granted, No. 96–1584, 118 S. Ct. ___, 66 U.S.L.W. 3201, the Supreme Court will consider a case involving racial discrimination in the selection of a grand jury foreman.

Terry Campbell was indicted and convicted of second-degree murder in Evangeline Parish, Louisiana. Before trial, he filed a motion to quash the grand jury indictment, alleging that the foreman selection process in the parish was discriminatory. The trial court denied the motion, but an intermediate state court of appeal found that Campbell, who is white, could pursue the claim of racial exclusion of blacks as grand jury foremen. The intermediate court of appeal remanded to the trial court for further evidence. The state appealed to the Louisiana Supreme Court, which reversed the intermediate court of appeals.

The Louisiana Supreme Court noted that although the U.S. Supreme Court had not addressed the question, an analysis of relevant Court decisions, Hobby v. United States, U.S. 339, 104 S. Ct. 3093, 82 L. Ed. 2d 260 (1984) (holding that the impact of discrimination in choosing a grand jury foreman had only an incidental effect on the criminal justice system) and Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (holding a white defendant had standing to raise the equal protection claims of jurors excluded for race by the prosecution through improper use of preemptory challenges), led the court to hold that the exclusion of blacks from the position of grand jury foreman did not rise to the level of a constitutional infirmity tainting the prosecution.

The Louisiana Supreme Court also relied on the Supreme Court’s decision in Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 737 (1979) regarding an equal protection charge that the defendant claiming the violation must be of the same race or identifiable group as those he or she alleged were excluded from serving as grand jury foremen. Campbell v. Louisiana, 661 So. 2d at 1322.

The case presents two questions. Does Campbell have standing to object: (1) on equal protection grounds even though he is not of the same race as those excluded, or (2) on due process grounds because the selection process for the former and current foremen of the grand jury demonstrated discrimination against blacks? In addition, Campbell will also be able to raise a "fair cross section" claim regarding such exclusion.

Thomas J. Foltz is a solo practitioner in Alexandria, Virginia, a vice chair of the editorial board for Criminal Justice magazine, and a contributing editor.

This article is an abridged and edited version of one that originally appeared on page 42 in Criminal Justice, Winter 1998 (12:4).

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