UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-7257
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY ANN DEISCH,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Mississippi
______________________________________________
(April 25, 1994)
Before REAVLEY, GARWOOD and HIGGINBOTHAM, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Terry Ann Deisch (Deisch) appeals her
conviction and five year sentence for simple possession of cocaine
base in violation of 21 U.S.C. § 844. Deisch asserts that the
district court erred in (1) submitting the section 844 violation
as a lesser included offense at all; (2) the wording of the charge
on the section 844 offense; and (3) allowing the government to
introduce in evidence an untimely disclosed statement. We reverse
in part, affirm in part, and remand for resentencing.
Facts and Proceedings Below
On August 15, 1992, Lambert, Mississippi, Police Sergeant Leon
Williams (Williams) received information from a confidential
informant that David Dawson (Dawson) had been in town selling drugs
and planned to return for the same purpose later that evening. The
informant stated that Dawson would return to Lambert at
approximately 11:00 p.m. and would be driving a 1985 black Cadillac
bearing Arkansas license plate WAB-185.
Williams contacted Sergeant Roy Sandefer (Sandefer) of the
Mississippi Bureau of Narcotics and told him about the informant's
tip. The two officers met at approximately 10:00 p.m. and began
driving an unmarked car through Lambert. As the officers were
driving north of Lambert, on Route 3, they passed a car that
matched the informant's description of the Cadillac. The officers
turned around and followed the Cadillac. Upon seeing that the
Cadillac's license plate matched the informant's description, the
officers turned on their car's flashing lights. The police car
followed the Cadillac into an apartment complex parking lot and
pulled up behind it to block its means of exiting.
Driving the Cadillac was Deisch and in the passenger seat was
her boyfriend Dawson. Both Deisch and Dawson were residents of
West Helena, Arkansas. Before the officers reached the car, Dawson
took plastic baggies of cocaine base, commonly known as crack
cocaine, from inside his pants and threw them at Deisch, ordering
her to hide them. Deisch, who was seven months pregnant at the
time, hid the baggies inside her bra and panties.
Williams and Sandefer instructed the couple to exit to the
rear of the Cadillac. At the rear of the vehicle, Sandefer
explained to the couple why they had been stopped. Sandefer then
2
shined a flashlight through the driver-side window and saw what
appeared to be cocaine on the seat. Deisch and Dawson were read
their rights, arrested for possession of cocaine, and taken to
jail. At that point, Dawson stated "If you find any dope . . .
I'm going to claim it. It's mine."
A later strip search of Deisch revealed she was carrying 3 or
4 baggies of crack cocaine weighing a total of 64.98 grams in her
bra, and 3 round rocks of crack cocaine weighing in all about 1.34
grams in her panties. An inventory search of the car also
uncovered a few more small rocks of crack cocaine together weighing
approximately .35 grams, and, among other things, an electronic
scale, rolling papers, a scanner, a pager, and another license
plate.
On October 2, 1992, a grand jury indictment was returned
charging Deisch1 with one count of conspiracy to possess with
intent to distribute "approximately 66 grams of cocaine base,
commonly known as 'crack,' a Schedule II narcotic controlled
substance," in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and
846 (count one), and one count of possession with intent to
distribute of "approximately 66 grams of cocaine base commonly
known as 'crack,' a Schedule II narcotic controlled substance," in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. §
2 (count two).2 At trial Deisch took the position that she was not
1
Dawson was also indicted by the grand jury. On the day of
trial, Dawson pleaded guilty pursuant to a plea agreement with
the government.
2
Section 841(a)(1) prohibits the manufacture, distribution,
or dispensing, or the possession with the intent to manufacture,
3
guilty due to duress. Deisch testified that she did not know drugs
were in the car until after the police began following them and
Dawson threw the plastic bags at her. Deisch said that she hid the
drugs because she was scared to disobey Dawson since, in the past,
he had threatened her with guns and hit her.
At the close of the evidence, the district court, over
Deisch's objection, gave an instruction on simple possession of "a
controlled substance, cocaine base, crack" in violation of 21
U.S.C. § 844(a) as a lesser included offense under count two.3
Thereafter, the jury acquitted Deisch of both counts of the
indictment, but found her guilty of the lesser included offense.
Deisch, who had no prior convictions, was sentenced to sixty months
in prison followed by three years of supervised release.
On appeal, Deisch argues that the trial court erred by
submitting any instruction on section 844 as a lesser included
offense. We first address whether or to what extent simple
possession of cocaine or cocaine base under section 844(a) may ever
dispense, or distribute, of "a controlled substance." Section
841(b)(1) assigns the penalties for violation of 841(a)(1).
Section 846 prohibits attempts or conspiracies to commit a crime
within subchapter I of Title 21, which includes section 841(a).
In addition, 18 U.S.C. § 2 defines when a person is punishable as
a principal.
The term "controlled substance" is defined in 21 U.S.C. §
802(6) as "a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V of part B of this
subchapter." The referenced schedules are contained in 21 U.S.C.
§ 812(c), and provision for amendment of the schedules is made in
21 U.S.C. § 811.
3
This instruction did require the jury to find that the
controlled substance Deisch possessed was "cocaine base, crack";
it did not require any finding as to quantity.
The district court did instruct on Deisch's duress defense.
4
be a lesser included offense of possession of cocaine or cocaine
base with intent to distribute it contrary to section 841(a)(1).
We then turn to Deisch's contentions that in this case any such
lesser included offense instruction was improper because duress was
a complete defense to both the greater and lesser offenses and
because the quantity of crack cocaine involved is not consistent
with personal use, so that a finding of guilty of the lesser
offense was not a rational alternative to acquittal of the greater.
Deisch also complains that the district court erred in the wording
of its charge on the lesser included offense, and improperly
allowed the government to put in evidence an untimely disclosed
statement.
Discussion
I. Lesser Included Offense
Federal Rule of Criminal Procedure 31(c) provides that a
"defendant may be found guilty of an offense necessarily included
in the offense charged." The district court may give a lesser
included offense instruction if, but only if, (1) the elements of
the offense are a subset of the elements of the charged offense and
(2) the evidence at trial permits a jury to rationally find the
defendant guilty of the lesser offense yet acquit him of the
greater. United States v. Browner, 889 F.2d 549, 550-51 (5th Cir.
1989) (Browner I). We address these prerequisites in turn.
A. Elements Test
The statutory elements test is the proper method for
"determining when a federal criminal defendant is entitled to a
lesser included offense instruction." United States v. Buchner, 7
5
F.3d 1149, 1152 (5th Cir. 1993), cert. denied, ___ S.Ct. ___
(1994). See also United States v. Browner, 937 F.2d 165, 169 (5th
Cir. 1991) (Browner II) (concluding that the Supreme Court in
Schmuck v. United States, 109 S.Ct 1443 (1989), adopted the
statutory elements test). Pursuant to the statutory elements test
"an offense is not lesser included unless each statutory element of
the lesser offense is also present in the greater offense."
Browner II, 937 F.2d at 168. In contrast to the "indictment test,"
under the statutory elements test the mere fact that the particular
indictment in charging the greater offense includes allegations
embracing all statutory elements of the putative lesser offense
does not suffice to render the latter an included offense, for the
statutory elements test looks only to the statutory elements of
both offenses. Id.4 Thus, the district court should have given a
lesser included offense instruction only if all of the elements of
simple possession pursuant to section 844 were also elements of
possession with intent to distribute pursuant to section 841(a)(1).
1. Elements under section 844SQcocaine base
Section 844(a) provides in part:
"[1] It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance unless
4
In Browner II, this Court ruled, under the statutory
elements approach, that assault with a dangerous weapon (18
U.S.C. § 113(c)) was not a lesser included offense of voluntary
manslaughter (18 U.SC. § 1112) since use of a dangerous weapon is
not a statutory element of the offense of voluntary manslaughter.
Id. This result obtained even though we assumed, arguendo, that
the allegation in the indictment's voluntary manslaughter count
concerning the defendant's having killed the victim "by stabbing"
him "with a knife" would have sufficiently alleged the "dangerous
weapon" element of assault with a dangerous weapon as denounced
by section 1113(c). Id. at 168.
6
such substance was obtained directly, or pursuant to a
valid prescription or order . . . . [2] Any person who
violates this subsection may be sentenced to a term of
imprisonment of not more than 1 year . . . except that if
he commits such offense after a prior conviction . . .
for any drug or narcotic offense . . . he shall be
sentenced to a term of imprisonment for not less than 15
days but not more than 2 years . . . except, further,
that if he commits such offense after two or more prior
convictions . . . for any drug or narcotic offense . . .
he shall be sentenced to a term of imprisonment for not
less than 90 days but not more than 3 years . . . . [3]
Notwithstanding the preceding sentence, a person
convicted under this subsection for the possession of a
mixture or substance which contains cocaine base shall be
imprisoned not less than 5 years and not more than 20
years, and fined a minimum of $1,000, if the conviction
is a first conviction under this subsection and the
amount of the mixture or substance exceeds 5 grams, if
the conviction is after a prior conviction for the
possession of such a mixture or substance under this
subsection becomes final and the amount of the mixture or
substance exceeds 3 grams, or if the conviction is after
2 or more prior convictions for the possession of such a
mixture or substance under this subsection becomes final
and the amount of the mixture or substance exceeds 1
gram." 21 U.S.C. § 844(a) (West Supp. 1993) (bracketed
numbering added).
Pursuant to the first and second sentences of section 844(a),
a person can be convicted and sentenced for simple possession of
any quantity of "a controlled substance"; the maximum confinement
varies from one to three years depending on whether the offense was
committed after one or two prior drug convictions.5 In accordance
with the third sentence of section 844(a), a person can be
convicted of simple possession of "a mixture or substance which
5
The maximum term of imprisonment under the first sentence of
section 844(a) is "not more than 1 year" unless the defendant
"commits such offense after a prior conviction . . . for any drug
or narcotic offense," in which event the maximum is "not more
than 2 years," if committed after a single such prior conviction,
and "not more than 3 years," if committed after 2 or more such
prior convictions. As Deisch had no prior convictions, the
maximum for her under these provisions would not exceed one year.
7
contains cocaine base" if the amount thereof so possessed exceeds
the statutory defined quantity;6 the sentencing range in each
instance is the same, namely, not less than five nor more than
twenty years' imprisonment.
Deisch's five year sentence was necessarily under the third
sentence of section 844(a), as she had no prior conviction. The
question thus arises whether the identity of the knowingly
possessed substance as being "a mixture or substance which contains
cocaine base" is, on the one hand, an element of the section 844(a)
offense, or, on the other hand, a mere sentencing factor. We
conclude that it is an element of the offense.
In United States v. Michael, 10 F.3d 838, 839 (D.C. Cir.
1993), the D.C. Circuit concluded that "the third sentence of §
844(a) . . . creates an independent crime of possession of cocaine
base." The Michael court further clearly, albeit inferentially,
held that the identity of the substance possessed as being cocaine
base was an element of this independent crime.7 The opinion relies
6
The quantity of cocaine base required for the second
sentence of section 844(a) varies based on whether "the
conviction is after a prior conviction for the possession of such
a mixture or substance under this subsection." The statutory
required quantity is less for repeat offenders. The minimum
quantity is one that "exceeds 1 gram" (applicable to one whose
"conviction is after 2 or more prior convictions for the
possession of such a mixture or substance under this
subsection"). For Deisch, who had no prior convictions, the
minimum quantity of the "mixture or substance which contains
cocaine base" would be a quantity thereof that "exceeds 5 grams."
7
Indeed, it is obvious that this conclusion necessarily
follows from the holding that the third sentence creates a
separate offense, because the third sentence deals only with
possession of cocaine base. Further, it is plain that the
Michael holding that a violation of the third sentence of section
844(a) was not a lesser included offense of section 841(a)(1)
8
in part on the structure of section 844(a), noting that its third
sentence "is buried in one great paragraph, in contrast to the
penalty section of § 841, which is clearly set off in subsection
'(b)' and labeled 'Penalties.'" Id. at 840. It also relies on the
third sentence's "person convicted . . . for the possession of . .
. cocaine base" language, which it characterizes as "suggesting
that the conviction itself must encompass cocaine base." Id.
Michael also attaches significance to the fact that the third
sentence was a completely new provision added in 1988, and that the
remainder of section 844(a) did not, and does not, mention cocaine
base. Id.8 We are generally in agreement with the reasoning of
Michael in these respects.
There is, however, an additional consideration that is
particularly influential in our conclusion that the identity of the
substance knowingly possessed as being cocaine base is an element
of the offense denounced by the third sentence of section 844(a)
instead of being merely a sentencing factor for a violation of the
first sentence of section 844(a).9 This consideration arises from
rested on its determination that the identity of the item
possessed as cocaine base was an element of the former offense
but not the latter. See id. at 839, 842.
8
The third sentence of section 844(a) was added by Subtitle L
(consisting only of section 6371) of the Anti-Drug Abuse Act of
1988, P.L. 100-690, 102 Stat. 4181, 4370, November 18, 1988.
Subtitle L addressed no other portion of section 844, and did
nothing but add the third sentence. The only other change in
section 844 made by the Anti-Drug Abuse Act of 1988 was in its
section 6480, a part of its Subtitle N, which removed the
maximum, but not the minimum, fines provided for in the second
sentence of section 844(a). 102 Stat. 4382.
9
If the substance's identity as "cocaine base" is an offense
element rather than merely a sentencing factor under section
9
the indictment clause of the Fifth Amendment,10 which requires a
grand jury indictment for any federal offense that is a felony or
is punishable by confinement in a penitentiary or at hard labor.11
It has become clear that any federal offense punishable by
844(a), then it necessarily follows that the third sentence of
section 844(a) creates a separate offense, because it is the only
portion of section 844(a) that in terms deals with "cocaine
base," and the identity of the substance possessed as being
cocaine base is clearly not required in order to establish a
violation of the first sentence of section 844(a), which merely
denounces the knowing or intentional possession of "a controlled
substance." This is not to say, of course, that knowing or
intentional possession of cocaine base would not also violate the
first sentence of section 844(a).
10
"No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War
or public danger; . . . ."
11
"The fifth amendment had in view the rule of the common law
governing the mode of prosecuting those accused of crime, by
which an information by the attorney general, without the
intervention of a grand jury, was not allowed for a capital
crime, nor for any felony, . . . ." Mackin v. United States, 6
S.Ct. 777, 778 (1886). The indictment clause's words "'or
otherwise infamous crime'" must, by elementary rule of
construction, include crimes subject to any infamous punishment,
even if they should be held to include also crimes infamous in
their nature, independently of the punishment affixed to them."
Ex parte Wilson, 5 S.Ct. 935, 938 (1885). It is not necessary
that a crime be declared infamous by Congress and "the
constitution protecting every one from being prosecuted, without
the intervention of a grand jury, for any crime which is subject
by law to an infamous punishment, no declaration of congress is
needed to secure or competent to defeat the constitutional
safeguard." Id. at 939-40.
"[I]mprisonment in a . . . penitentiary, with or without
hard labor, is an infamous punishment" for purposes of the
indictment clause. Mackin at 779. See also In re Claasen, 11
S.Ct. 735, 737 (1891) (same). Confinement at hard labor, even
though not in a penitentiary, is likewise an infamous punishment
for these purposes. United States v. Moreland, 42 S.Ct. 368
(1922).
The Fifth Amendment's indictment clause is not, however,
applicable to state prosecutions. Hurtado v. California, 4 S.Ct.
111 (1884).
10
imprisonment for more than one year is an offense for which the
Fifth Amendment requires a grand jury indictment.12
For anyone, such as Deisch, not previously convicted, exposure
to more than one year's confinement for a violation of section
844(a) would be possible if the substance possessed was "a mixture
or substance which contains cocaine base," but not otherwise. If
the nature of the substance as cocaine base is an element of the
offense, then Deisch will be afforded the protection of the
indictment clause in this respect because the indictment must
allege every element of the offense. United States v. Carll, 105
U.S. [15 Otto] 611, 26 L.Ed. 1135 (1882); Russell v. United States,
82 S.Ct. 1038, 1047 (1962); Honea v. United States, 344 F.2d 798,
803-04 (1965). As the above authorities reflect, it is not enough
that the grand jury concludes that the defendant should be
prosecuted for violating a particular statute; rather, the
12
Under 18 U.S.C. § 3559(a), any offense having a "maximum
term of imprisonment authorized" which is "more than one year" is
a "felony." Under 18 U.S.C. § 4083, those convicted of federal
offenses "punishable by imprisonment for more than one year may
be confined in any United States penitentiary," while "[a]
sentence for an offense punishable by imprisonment for one year
or less shall not be served in a penitentiary without the consent
of the defendant." See United States v. Kahl, 583 F.2d 1351,
1355 (5th Cir. 1978) (under section 4083 an offense carrying a
one year maximum potential sentence was not an "infamous crime"
for which the Fifth Amendment required indictment because
confinement in a penitentiary was possible only with defendant's
consent). See also Branzburg v. Hayes, 92 S.Ct. 2646, 2659-60
n.24 (1972): "It has been held that 'infamous' punishments
include confinement at hard labor, . . . ; incarceration in a
penitentiary, . . . ; and imprisonment for more than a year, . .
. . Fed. Rule Crim. Proc. 7(a) has codified these holdings: ' .
. . An offense which may be punished by imprisonment for a term
exceeding one year or at hard labor shall be prosecuted by
indictment, or, if indictment is waived, it may be prosecuted by
information . . . .'"
11
indictment must also allege every element of the offense.13 Only
in this way is any assurance furnished that the grand jury found
probable cause to believe that the defendant in fact committed acts
constituting the offense in question. This clearly appears from
the reason so often given for the rules that the failure of the
indictment to allege all elements of the offense may not be cured
by evidence or instructions at trial,14 nor by a bill of
particulars,15 and that the indictment may not be actually or
constructively amended by adding material allegations as to the
offense charged or of another offense,16 namely, that absent such
13
The grand jury is charged with "the duty of inquiring
whether there be probable cause to believe the defendant guilty
of the offense charged" and "'ought to be thoroughly persuaded of
the truth of an indictment, so far as their evidence goes; and
not to rest satisfied merely with remote probabilities.'"
Beavers v. Henkel, 24 S.Ct. 605, 607 (1904). See also Hale v.
Henkel, 26 S.Ct. 370 (1906) (grand jury is "to stand between the
prosecutor and the accused, and to determine whether the charge
was founded upon credible testimony," id. at 373, and "may not
indict upon current rumors or unverified reports," id. at 375).
14
Honea at 804: "We could not say with any assurance that the
Grand Jury would have returned a true bill had this vital element
been brought home to them."
15
Russell, 82 S.Ct. at 1050:
"To allow the prosecutor, or the court, to make a
subsequent guess as to what was in the minds of the
grand jury at the time they returned the indictment
would deprive the defendant of a basic protection which
the guaranty of the intervention of a grand jury was
designed to secure. For a defendant could then be
convicted on the basis of facts not found by, and
perhaps not even presented to, the grand jury which
indicted him."
See also, e.g., Van Liew v. United States, 321 F.2d 664, 672 (5th
Cir. 1963).
16
Stirone v. United States, 80 S.Ct. 270, 273-74 (1960):
12
rules there is lacking the necessary assurance the grand jury found
probable cause to believe the defendant committed acts constituting
all elements of the offense of conviction as proved at trial.
On the other hand, an indictment need not allege mere
sentencing facts. United States v. Vasquez-Olvera, 999 F.2d 943,
944-45 (5th Cir. 1993); United States v. Pico, 2 F.3d 472, 474-5
(2nd Cir. 1993) (indictment charging conspiracy to import cocaine
need not allege quantity, even though mandatory minimum sentence is
based on quantity, because quantity is relevant only to the
sentence and is not an element of the offense). See also United
"The grand jury which found this indictment was
satisfied to charge that Stirone's conduct interfered
with interstate importation of sand. But neither this
nor any other court can know that the grand jury would
have been willing to charge that Stirone's conduct
would interfere with interstate exportation of steel
from a mill later to be built with Rider's concrete. .
. .
The very purpose of the requirement that a man be
indicted by grand jury is to limit his jeopardy to
offenses charged by a group of his fellow citizens
acting independently of either prosecuting attorney or
judge. Thus the basic protection the grand jury was
designed to afford is defeated by a device or method
which subjects the defendant to prosecution for
interference with interstate commerce which the grand
jury did not charge.
. . . .
The right to have the grand jury make the charge on its
own judgment is a substantial right which cannot be
taken away with or without court amendment. Here . . .
we cannot know whether the grand jury would have
included in its indictment a charge that commerce in
steel from a nonexistent steel mill had been interfered
with." (Footnote omitted).
This rationale of Stirone was reaffirmed in United States v.
Miller, 105 S.Ct. 1811, 1818-19 (1985). See also United States
v. Adams, 778 F.2d 1117, 1122-1125 (5th Cir. 1985).
13
States v. Affleck, 861 F.2d 97, 99 (5th Cir. 1988) ("Traditional
sentencing factors need not be pleaded . . . ."); Buckley v.
Butler, 825 F.2d 895, 903 (" . . . there is no Fifth Amendment
right to grand jury indictment on the sentencing facts . . . .").
Accordingly, if the third sentence of section 844(a) does not
create a separate offense and the only offense established by
section 844(a) is the knowing possession of any controlled
substance as denounced in the first sentence thereof, so that the
identity of the substance possessed as cocaine base is not an
element of any section 844(a) offense but is only a sentencing
factor, then, even if an indictment were required,17 nevertheless
it would not have to allege that the controlled substance possessed
was cocaine base. However, were that the rule, then any defendant
without a prior conviction, such as Deisch, would be exposed to "an
infamous punishment" without a grand jury ever having considered
whether there was probable cause to believe that the defendant did
that which the law requires she have done before she can be exposed
to any infamous punishment. Such a ruleSQwhich is the necessary
consequence of holding that under section 844(a) the identity of
the substance as cocaine base is merely a sentencing factorSQwould
17
Arguably, an indictment would always be required because the
potential punishment under section 844(a) would, albeit only in
certain instances, include "infamous punishment," i.e.,
confinement for longer than one year that may be in a
penitentiary. See Ex parte Wilson, 5 S.Ct. 935, 939 (1885):
"The question is whether the crime is one for which the statutes
authorize the court to award an infamous punishment, not whether
the punishment ultimately awarded is an infamous one. When the
accused is in danger of being subjected to an infamous punishment
if convicted, he has the right to insist that he shall not be put
upon his trial, except on the accusation of a grand jury."
14
emasculate the protection intended by the Fifth Amendment's
indictment clause. If no indictment were required, then obviously
such a section 844(a) defendant could be exposed to "infamous
punishment" without the protection of a grand jury. But if an
indictment is required because the punishment may be infamous if
(and only if) cocaine base is what is possessed, then it is wholly
illogical to authorize a punishment of that character even though
the indictment does not allege cocaine base. That which requires
the grand jury must likewise require allegation in the indictment,
else the presence of the grand jury does nothing to subserve the
purpose of requiring it.
Surely the indictment clause must be understood to mean that
the defendant may not be exposed to an "infamous punishment" unless
the grand jury finds probable cause to believe that he did that
which the law requires him to have done before any character of
infamous punishment whatever may be imposed on him.18
Our conclusion in this regard is supported by several
decisions holding that where an offense that is otherwise a
misdemeanor becomes a felony if committed in a certain way or with
certain consequences, the particular attribute that makes it a
18
Theoretically, one could say that in such a situation a mere
sentencing factor must be alleged in the indictment, even though
not an element of the offense. But, as indicated in the text,
the rule is that the indictment need not allege mere sentencing
factors that are not elements of the offense. Moreover, it
settled that mere sentencing factors need not be submitted to the
petit jury or proved beyond a reasonable doubt. McMillen v.
Pennsylvania, 106 S.Ct. 2411 (1986); Affleck at 99; Buckley at
902-3. It would indeed be anomalous to hold that sentencing
factors must be alleged in the indictment even though they are
not elements of the offense, but need not be submitted to the
trial jury or proved beyond a reasonable doubt.
15
felony is an element of the offense, which must be alleged in the
indictment and proved at trial. We have applied this rule to 18
U.S.C. §§ 659 (theft of shipments in commerce) and 641 (theft of
property of the United States) in each of which the offense is a
misdemeanor if the value of what is taken does not exceed $100, and
is otherwise a felony, holding that a value of $100 or more is an
element of the felony that must be alleged and proved, Packnett v.
United States, 503 F.2d 949, 950 (5th Cir. 1974) (section 659);
Theriault v. United States, 434 F.2d 212, 214 (5th Cir. 1970)
(section 641), cert. denied, 92 S.Ct. 124 (1971); Cartwright v.
United States, 146 F.2d 133, 135 (5th Cir. 1944) (former section
82, predecessor to section 641). Other courts have reached similar
results. See United States v. Scanzello, 832 F.2d 18, 23 (3d Cir.
1987) (sections 649 and 641); United States v. Alberico, 604 F.2d
1315, 1321 (10th Cir.) (section 641), cert. denied, 100 S.Ct. 524
(1979).
For purposes of deciding if a particular factor is merely a
sentencing consideration or is an offense element under section
844(a), two other circuits have also given significance to whether
the presence or absence of the factor determines whether the
defendant is guilty of a misdemeanor only or of a felony. In
United States v. Puryear, 940 F.2d 602, 603-4 (10th Cir. 1991), the
Tenth Circuit, relying in part on Theriault, Alberico, and
Scanzello, held that the amount of cocaine base possessed by a
defendant was "an essential element of simple possession under
section 844(a)" and that "[a]bsent a jury finding as to the amount
of cocaine, the trial court may not decide of its own accord to
16
enter a felony conviction and sentence, instead of a misdemeanor
conviction and sentence, by resolving the crucial element of the
amount of cocaine against the defendant." Similarly, in United
States v. Sharp, 12 F.3d 605 (6th Cir. 1993), the Sixth Circuit
held that for section 844(a) possession of cocaine base to be
sentenced as a felony, the trial jury must have found the requisite
quantity because the quantity "does not merely affect the length of
the defendant's sentence but determines whether he is guilty of a
felony or a misdemeanor," and that for a sentencing judge to make
"factual findings that convert what would otherwise be a
misdemeanor into a felony seems to us an impermissible usurpation
of the historic rule of the jury." Id. at 608. Sharp
distinguished cases holding that under section 841 quantity was
merely a sentencing factor and not an element of the offense,
because in those cases "the offense would have been a felony
regardless of the quantity" and "the felony/misdemeanor dichotomy"
was not "implicated." Id. at 608 & n.1.
Accordingly, we hold, consistent with Michael, that the third
sentence of section 844(a) creates a separate offense, an element
of which is that the substance possessed contains cocaine base.19
19
We realize that to the extent our conclusion rests on the
indictment clause and felony/misdemeanor dichotomy, its logic
would likewise require the quantity of cocaine base possessedSQat
least five grams where there are no other convictions, but more
than one gram in any eventSQto be an element of the offense
denounced by the third sentence of section 844(a). In Michael
the court expressly refused to address this issue. Id. at 842.
In United States v. Monk, 15 F.3d 25 (2nd Cir. 1994), the
defendant was indicted under section 841(a)(1) for possession
with intent to distribute "'50 grams and more of a mixture and
substance containing cocaine base,'" and the district court
instructed the jury on that offense and, at the defendant's
17
2. Elements under section 841(a)(1)SQcocaine base
Section 841(a)(1) makes it unlawful to knowingly or
intentionally manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, "a controlled
substance."20 The term "controlled substance" is defined in 21
U.S.C. § 802(6) as "a drug or other substance, or immediate
request, also on simple possession in violation of section
844(a), as a lesser included offense. Id. at 26-7. The jury
acquitted under section 841(a)(1) and convicted under section
844, and the defendant (Monk) was sentenced to 133 months'
imprisonment. He contended on appeal "that, while the judge did
charge the question of quantity in connection with the § 841
count . . . he did not mention anything about quantity in the
charge . . . under § 844." Id. at 27. The Second Circuit
rejected this contention, stating that quantity was not an
element of the offense under section 844(a), but also observing
that "[t]here is . . . no serious dispute that the substance Monk
carried . . . was crack cocaine and it vastly exceeded 5 grams,"
id. at 26, that "evidence of quantity was never contested" and
"Monk's basic defense was that the quantity seized from him was
consistent with personal use," and that the section 844 verdict
form required the jury to find possession of drugs "as alleged in
the indictment." The Monk court expressly declined to address
whether the third sentence of section 844(a) created a separate
offense, an element of which was possession of cocaine base, and
was thus not a lesser included offense under section 841, as held
in Michael, "since it was the defendant himself who asked the
trial judge for the lesser included offense charge." Monk at 27.
Cf. United States v. Baytank (Houston) Inc., 934 F.2d 599 at 606
(5th Cir. 1991) (invited error cannot be taken advantage of on
appeal). Thus, Monk is not inconsistent with Michael. Moreover,
Monk's decision on quantitySQbesides possibly being influenced by
the lack of prejudice thereSQis apparently made on the assumption
(at least in that particular case) that the third sentence of
section 844(a) does not create a separate offense, an assumption
we do not accept here. If the third sentence is a separate
offense, it seems inevitable that at least a quantity in excess
of one gram is an element of the offense, as no lesser quantity
is spoken to.
20
Similarly, under section 841(a)(2) it is unlawful to
knowingly or intentionally create, distribute, or dispense, or
possess with intent to distribute or dispense, "a counterfeit
substance." The term "counterfeit substance" is defined in 21
U.S.C. § 802(7). Section 841(a)(2) is not involved in this case.
18
precursor, included in schedule I, II, III, IV, or V of part B of
this subchapter." The referenced schedules are set forth in 21
U.S.C. § 812(c). Provision for amendments to the schedules by the
Attorney General is made in 21 U.S.C. § 811. See also section
812(a) & (b). The current schedules are set forth in 21 C.F.R. §§
1308.11SQ1308.15.
The schedules list a vast number of controlled substances,
among the more commonly known of which are heroin, Lysergic acid
diethylamide, marihuana, opium, and several others.
Cocaine is, and has been ever since well prior to the offense
in question, included in schedule II as set forth in section 812(c)
in the following language:
"Schedule II
(a) Unless specifically excepted or unless listed in
another schedule, any of the following substances whether
produced directly or indirectly by extraction from
substances of vegetable origin, or independently by means
of chemical synthesis, or by a combination of extraction
and chemical synthesis:
. . .
(4) Coca leaves except coca leaves and
extracts of coca leaves from which cocaine,
ecgonine, and derivatives of ecgonine or their
salts have been removed; cocaine, its salts,
optical and geometric isomers, and salts of
isomers, ecgonine, its derivatives, their salts,
isomers, and salts of isomers; or any compound,
mixture, or preparation which contains any quantity
of any of the substances referred to in this
paragraph." (Emphasis added).21
21
The corresponding language in 21 C.F.R. § 1308.12 (which
likewise sets forth schedule II) is as follows:
"(4) Coca leaves (9040) and any salt, compound,
derivative or preparation of coca leaves (including
cocaine (9041) and ecgonine (9180) and their salts,
19
Section 841(b) sets out a series of penalties, introduced by
the language "any person who violates subsection (a) of this
section shall be sentenced as follows." Various different
penalties are set out in the subsequent paragraphs of section
841(b), generally depending on which particular controlled
substance is involved in the offense, the quantity thereof, and
whether the defendant committed the offense after a prior drug
offense conviction. For any violation of section 841(a) involving
cocaine or any other of the controlled substances listed in any of
schedules I, II, III or IV, the authorized sentence always includes
confinement in excess of one year, and the offense is hence always
a felony regardless of the drug quantity or of which particular one
of the various controlled substances listed in the schedules is
involved (and regardless also of the presence or absence of prior
convictions or other factors).22 More particularly, any violation
isomers, derivatives and salts of isomers and
derivatives), and any salt, compound, derivative, or
preparation thereof which is chemically equivalent or
identical with any of these substances, except that the
substances shall not include decocainized coca leaves
or extractions of coca leaves, which extractions do not
contain cocaine or ecgonine." (Emphasis added).
Section 1308.12(a) explains the numbers in parentheses, stating
that "[e]ach drug or substance has been assigned the Controlled
Substances Code Number set forth opposite it."
22
The sole exception to this is the provision in section
841(b)(1)(D)(4) that "distributing a small amount of marihuana
for no remuneration shall be treated as provided in section 844
of this title and section 3607 of Title 18 [relating to special
probation]."
For schedule V drugs, the maximum punishment does not exceed
one year, except that if the offense is committed after a prior
drug conviction the authorized imprisonment is not to exceed two
years. § 841(b)(1)(D)(3).
The numbering of the schedules, as reflected in section
20
of section 841(a) where the controlled substance is cocaine is
always a felony, regardless of whether or not the cocaine is
cocaine base and regardless of the quantity involved or the
presence or absence of prior convictions.
Neither "cocaine base" nor "crack cocaine" nor any equivalent
term is mentioned in section 841(a) or in any of the controlled
substance schedules; nor is there anything in any of the controlled
substance schedules which can be said to describe "cocaine base"
(or "crack cocaine") but not "cocaine," or to describe "cocaine
base" (or "crack cocaine") as a discrete variety or type of
cocaine. Until 1986, all this was also true of section 841(b).
However, in the Anti-Drug Abuse Act of 1986, Pub. L. 99-570,
October 27, 1986, 100 Stat. 3207, Congress amended section
841(b)(1)(A) and (B) so as, inter alia, to insert the special
sentencing provisions for cocaine base which now appear at section
841(b)(1)(A)(iii) and (B) (iii). Id. 100 Stat. 3207-2, 3207-3.
These amendments in effect provided for the same sentence range for
a given amount of "cocaine base" as for an amount of cocaine 100
times as large.23 It will be observed that the descriptions of the
812(b), is such that the most serious or dangerous substances are
listed in schedule I, the next most in schedule II and so on,
with the least serious being listed in schedule V. Schedule V
drugs are to be those with "a low potential for abuse" which have
"a currently accepted medical use in treatment in the United
States" and potential for only comparatively "limited"
"dependence" in case of abuse.
23
As so enacted and as presently in effect, section
841(b)(1)(A)(ii) & (iii) read as follows:
"(ii) 5 kilograms or more of a mixture or substance
containing a detectable amount ofSQ
(I) coca leaves, except coca leaves and extracts
21
covered substances given in section 841(b)(1)(A)(ii) and (B)(ii)
(see note 23 supra) are essentially in the very same wording as
that used in paragraph (4) of section (a) of schedule II appearing
in section 812(c), hereinabove quoted, which schedules cocaine.
The inference from this is that "cocaine base," as something
distinct from cocaine or as some discrete variety or type of
cocaine, is not listed or described in the controlled substance
schedules. Apart from the noted provisions of section
841(b)(1)(A)(iii) and (B)(iii), neither "cocaine base" nor "crack
cocaine" is mentioned in section 841(b). Further, when Congress in
1986 added the references to "cocaine base" by enacting section
841(b)(1)(A)(iii) and (B)(iii) as above described, no change was
made in section 841(a)(1) or in the wording by which cocaine was
listed in schedule II.
There is no statutory definition of "cocaine base." While
there may be some relatively minor differences in judicial
of coca leaves from which cocaine, ecgonine, and
derivatives of ecgonine or their salts have been
removed;
(II) cocaine, its salts, optical and geometric
isomers, and salts of isomers;
(III) ecgonine, its derivatives, their salts,
isomers, and salts of isomers; or
(IV) any compound, mixture, or preparation which
contains any quantity of any of the substances
referred to in subclauses (I) through (III);
(iii) 50 grams or more of a mixture or substance
described in clause (ii) which contains cocaine base."
(emphasis added)
Section 841(b)(1)(B)(ii) & (iii) read exactly the same as their
counterparts in section 841(b)(1)(A)(ii) & (iii) except that in
(B)(ii) the specified quantity is "500 grams" instead of "5
kilograms" as in (A)(ii), and in (B)(iii) the specified quantity
is "5 grams" rather than "50 grams" as in (A)(iii).
22
definitions, all concur that cocaine base is a form of cocaine.
See United States v. Metcalf, 898 F.2d 43, 46 (5th Cir. 1990)
("'Cocaine base or "crack" is any form of cocaine with [a] hydroxyl
radical' in the chemical compound," (quoting United States v.
Buckner, 894 F.2d 975, 976 n.1 (8th Cir. 1990)); United States v.
Brown, 859 F.2d 974, 975-6 (D.C. Cir. 1988) ("'Cocaine base' . . .
is any form of cocaine with the hydroxyl radical; 'cocaine base'
excludes, for example, salt forms of cocaine").24
We have generally held that the quantity listings in section
841(b)(1) are merely sentencing factors, not elements of the
section 841(a) offense. See United States v. Valencia, 957 F.2d
1189, 1197 (5th Cir.), cert. denied, 113 S.Ct. 254 (1992) (no need
to charge jury on quantity of heroin as "[q]uantity is not an
element of the crimes proscribed by 21 U.S.C. § 841(a)(1) . . . ").
Most other circuits are in accord. See United States v. Campuzano,
905 F.2d 677, 678 (2nd Cir.), cert. denied, 111 S.Ct. 363 (1990)
(cocaine; citing cases). Contra: United States v. Alvarez, 735
F.2d 461, 467-68 (11th Cir. 1984).
Just as section 841(a)(1) does not speak to quantity, so also
it says nothing about the identity of the substance involved other
than that it must be "a controlled substance." Arguably,
therefore, the identity of the particular controlled substance
involved is not an element of the section 841(a)(1) offense, the
24
The disagreement seems to focus on whether as used in
section 841(b)(1)(A)(iii) and (B)(iii), and in the sentencing
guidelines, "cocaine base" is restricted to that which is in
smokable or rock form, commonly known as "crack." See, e.g.,
United States v. Jackson, 968 F.2d 158, 161-63 (2nd Cir. 1992)
(citing cases).
23
only requirement being that the substance involved is "a controlled
substance." Cf. United States v. Cartwright, 6 F.3d 294, 303 (5th
Cir. 1993) (not necessary in section 841(a)(1) prosecution to show
that the defendant knew the substance was cocaine, "only that the
defendant knew that the substance was a controlled substance");
United States v. Collado-Gomez, 834 F.2d 280 (2nd Cir. 1987), cert.
denied, 108 S.Ct. 1244 (1988) ("the government does not have to
prove that the defendant knew the specific nature and amount of the
controlled substance . . ."). On the other hand, it is also
arguable that unless the jury, petit or grand, knows what the
controlled substance is it cannot know that it is a controlled
substance. No such concern, however, is implicated respecting
cocaine base, for all cocaine base is cocaine, the controlled
substance schedules do not mention cocaine base or describe some
discrete substance which is cocaine base as distinguished and
different from cocaine, and cocaine base is a controlled substance
only because it is or contains cocaine. This is likewise clear
from the fact that cocaine base, as a form of cocaine, was a
controlled substance before the term "cocaine base" was ever
introduced into Title 21, from the fact that section 841
(b)(1)(A)(ii) and (B)(ii) (see note 23, supra) in substance
replicate the listing for cocaine in schedule II, and from the fact
that when section 841(b)(1)(A)(iii) and (B)(iii) respecting cocaine
base were added in 1986 there was no corresponding change in the
schedule II listing embracing cocaine.
Accordingly, we conclude that the identity of the involved
controlled substance as being "cocaine base" rather than simply
24
"cocaine" is not an element of any section 841(a)(1) offense. For
a section 841(a)(1) offense involving cocaine base the indictment
need only allege, and the jury need only find, that the substance
was cocaine, and whether or not it was the "cocaine base" form of
cocaine is purely a sentencing factor.25 We are aware of no court
which has held otherwise, and implicit in numerous decisions is the
conclusion that for purposes of section 841(a)(1), whether or not
the cocaine involved is cocaine base is merely a sentencing factor.
That, of course, is the implicit holding of Michael.
In United States v. Barnes, 890 F.2d 545 (1st Cir. 1989), in
affirming a section 841(a)(1) conviction for possession of cocaine
with intent to distribute, and a sentence therefore under section
841(b)(1)(A)(iii) because the substance was cocaine base, the First
Circuit observed:
"It is important to note that the court, not the
jury, determines the quantity and type of controlled
substance appropriate under 21 U.S.C. § 841(b). . . .
Section 841(b) describes the penalty provisions for
violations of section 841(a), in this case possession of
a controlled substance with intent to distribute.
Therefore, as a penalty provision, the district court
judge determines the facts at the sentencing . . . .
. . .
" . . . questions as to whether the mixture found was
cocaine base and its specific weight were factual
findings for the judge at sentencing. The jury need only
have found that the three chunks seized contained some
mixture of cocaine as defined in schedule II. See 21
U.S.C. § 812." Id. at 551 n.6.26
25
This is not to say that the defendant might not be entitled
at some point to some character of notice that the government
claimed the substance was cocaine base; but only that such notice
need not be afforded by the indictment.
26
See also id. at 552 n.7:
25
See also United States v. Easter, 981 F.2d 1549, 1557 (10th Cir.
1992) (with respect to cocaine base, "[s]ection 841(b)(1) is merely
a penalty provision and as such does not change the elements of
cocaine trafficking offenses, rather it lengthens the penalties
that Congress has already imposed for those offenses"); United
States v. Lopez-Gil, 965 F.2d 1124 (1st Cir. 1992) (conviction
following jury trial for possession of cocaine with intent to
distribute and importation of cocaine affirmed, but sentence
remanded to trial court for it to determine whether the cocaine was
cocaine base); United States v. Pinto, 905 F.2d 47, 50 (4th Cir.
1990) (as to alleged vagueness of "cocaine base," "section 841(b)
is a sentencing provision. As such, the notice required to satisfy
due process is less rigorous than that applied to substantive
provisions"); United States v. Levy, 904 F.2d 1026, 1033, 1034 (6th
Cir. 1990), cert. denied, 111 S.Ct. 974 (1991);27 Collado-Gomez
" At the outset, we note that the use of the term
'cocaine base' in this statute does not present a
question of giving adequate notice to possible
defendants. The challenged term appears in the penalty
provisions of 21 U.S.C. § 841(b). As such, the term
'cocaine base' is only relevant to enhanced penalties
facing a defendant, and Congress added these penalties
without altering the substantive elements of 21 U.S.C.
§ 841(a). . . . Thus, Congress did not criminalize any
conduct which was not already illegal, and there is no
problem of giving adequate notice of enhanced penalties
to possible defendants."
27
Rejecting a vagueness attack on section 841(b)(1)(B)(iii)
("cocaine base"), the Sixth Circuit states:
"Section 841(b)(1)(B), however, is a penalty
provision. As such, it did not change the substantial
elements of the offense of the possession of cocaine
with the intent to distribute. Rather, it lengthened
the penalties the federal law already imposed for
cocaine trafficking." Id. at 1033.
26
("The 1986 amendments [adding § 841(b)(1)(A)(iii) & (B)(iii)
concerning cocaine base] did not alter the elements of the
substantive offense, which require the government to prove that a
defendant knowingly and intentionally possessed a controlled
substance").
3. What may be lesser included under section 841(a)(1)
All cocaine base is cocaine, and all is a controlled
substance; all cocaine is a controlled substance; but not all
cocaine is cocaine base. That the controlled substance possessed
is cocaine base is an element of the offense denounced by the third
sentence of section 844(a), but is not an element of any offense
denounced by section 841(a)(1). Therefore, under the "statutory
elements test" a violation of the third sentence of section 844(a)
can not be a lesser included offense under an indictment charging
possession with intent to distribute in violation of section
841(a)(1), even if, as here, the indictment alleges that the
controlled substance is cocaine base. See Browner II at 168.
However, the offense denounced by the first sentence of section
844(a) is knowing or intentional possession of simply "a controlled
substance," the very same words as are used in section 841(a)(1).
Just as the identity of the controlled substance as cocaine base is
not an element of the section 841(a)(1) offense, so also it is not
. . .
"Levy's interpretation of the statute is misguided
because, as we explained above, it is a penalty
provision. Under section 841(b)(1)(B), the district
court determines the quantity and type of controlled
substance for the purpose of sentencing." Id. at 1034.
27
an element of the offense denounced by the first sentence of
section 844(a). Therefore, simple possession of cocaine, contrary
to the first sentence of section 844(a), may be a lesser included
offense under a charge of possessing cocaine with intent to
distribute it contrary to section 841(a)(1). Michael at 842;
United States v. Chase, 838 F.2d 743, 747 (5th Cir.), cert. denied,
108 S.Ct. 2022 (1988).
Accordingly, Deisch's sentence under the third sentence of
section 844(a) may not stand. This, however, does not require that
we set aside the jury's verdict which necessarily found her guilty
of a violation of the first sentence of section 844(a), and
assuming no other bar to sustaining her conviction for violating
the first sentence of section 844(a), she will only be entitled to
a remand for resentencing on that basis. Michael at 842. See also
Theriault at 215; Sharp at 609; Puryear at 604; Scanzello at 23.
We now turn to the remaining issues presented by Deisch's
appeal.
B. Was Simple Possession a Rational Alternative
1. Duress defense
Deisch argues that any simple possession lesser included
offense instruction under section 844(a) was improper because she
relied upon duress, a complete and totally exculpatory defense. We
have held that "'[e]ven where the defendant presents a totally
exculpatory defense, the [lesser included offense] instruction
should nevertheless be given if the prosecution's evidence provides
a "rational basis" for the jury's finding the defendant guilty of
a lesser offense.'" Chase, 838 F.2d at 747 (quoting United States
28
v. Payne, 805 F.2d 1062, 1067 (D.C. Cir. 1986) (citations omitted).
Nothing suggests that the jury accepted Deisch's defense of
duress. Indeed, a rational jury could have found that while Deisch
did not have the requisite intent to distribute the drugs, she was
not under duress when Dawson asked her to hide them for him. The
jury found that Deisch knowingly or intentionally took possession
of drugs. This verdict is not inconsistent with the evidence
produced at trial. Thus, Deisch's argument on this issue is
without merit.
2. Magnitude of amount possessed
Deisch contends that the jury lacked a rational basis for
finding her guilty of simple possession, because sixty-six grams of
cocaine base is not consistent with personal consumption. Deisch
maintains that under these facts the jury's acquittal for the
greater offense of possession with intent to distribute is
logically inconsistent with its finding of guilt for the offense of
simple possession.
Under the present circumstances, whether possession of sixty-
six grams of cocaine base is consistent with personal use is not
determinative of this issue.28 The offense of simple possession
requires only knowing or intentional possession of a controlled
substance. Under the facts presented, the jury could rationally
believe, for example, that Deisch took possession of the drugs in
a split second decision in which no intention was ever formed to do
28
It is certainly arguable that the quantity of cocaine base
possessed, i.e. 66 grams, is not consistent with personal use.
The government presented evidence that 66 grams of crack would
produce approximately 280 rocks.
29
anything but immediately hide the drugs to protect her boyfriend
from arrest and that in the rapidly evolving events she never
formed an intention to distribute the drugs to anyone.29 Moreover,
the jury may have believed that Deisch's intent accompanying her
possession was merely to avoid physical harm by Dawson, but that
her fear of immediate, serious and otherwise unavoidable physical
harm was unreasonable and hence did not make out a duress defense
under the district court's instructions thereon requiring
reasonableness in those respects. At least the jury may well have
entertained on such a basis a reasonable doubt as to whether Deisch
had the requisite intent to distribute. Under this scenario, while
Deisch would not be guilty of possession with intent to distribute,
she would be guilty of simple possession. The lesser offense was
hence a rational alternative.30
II. Court's Charge to The Jury
Deisch complains that the court's explanation of the verdict
form to the jury concerning the lesser included offense of simple
possession prejudicially described the lesser included offense as
29
We also note that Deisch testified that she had previously
left Dawson when she suspected him of selling drugs.
30
This case is distinguishable from United States v. White,
972 F.2d 590, 596 (5th Cir. 1992), cert. denied, 113 S.Ct 1651
(1993), in which we ruled that no rational jury could find that
defendants possessing twenty-one kilograms of cocaine did not
intend to distribute the cocaine. The White court concluded that
"the sheer quantity of the drugs involved negate[d] an inference
of personal use." Id. Unlike the defendants in White, neither
Deisch nor the government asserted that Deisch possessed the
drugs for the purpose of personal consumption. The instant case
is distinguishable from White because the evidence here supports
simple possession as a rational alternative to possession with
intent to distribute for reasons other than personal use.
30
"simply possession . . . without intent to distribute" and
"[p]ossession, what we refer to as simple possession"; thus
improperly implying that the lesser included offense was
insignificant. Nothing in this instruction reflects that the court
misrepresented the law or implied that the lesser included offense
was insignificant. The lesser included offense instruction
concerned a violation of section 844(a), offenses under which are
entitled "simple possession." The court's characterization was
proper and Deisch's argument is completely without merit.31
III. Government's Undisclosed Statement
Deisch finally contends that the government violated Federal
Rule of Criminal Procedure 16(a)(1)(A) because it did not produce
the substance of a statement she made on the night of her arrest.
Deisch alleges that she did not learn until the morning of the
trial that Sandefer planned to testify that Deisch declared,
subsequent to her arrest, that she knew cocaine was in the car when
she left Arkansas. Prior to trial, Deisch informed the court of
the newly discovered information, but the district court did not
rule on its admissibility. During direct examination of Sandefer,
the government did not question him about Deisch's alleged
statement. However, during cross-examination Deisch's counsel
asked Sandefer if Deisch's position had ever changed concerning
31
Deisch also complains that the section 844(a) charge failed
to require the jury to find that more than five grams were
possessed. Because of our holding that the third sentence of
section 844(a) is not a lesser included offense, and because
quantity is plainly irrelevant to the simple possession offense
of the first sentence of section 844(a), Deisch's complaint in
this respect is moot.
31
whether she knew she possessed cocaine on August 15, 1992.
Sandefer responded "no." On re-direct, the government sought to
clarify the ambiguity which under the circumstances was inherent in
the referenced cross-examination question and answer, by asking
Sandefer what Deisch's position was about her knowledge of the
cocaine. Sandefer then testified that Deisch had said, just after
her arrest, that she knew prior to leaving Arkansas that cocaine
was in the car. Although Deisch's lawyer objected because the
statement had not been timely disclosed, the court overruled the
objection and concluded the challenged testimony had been opened up
by Deisch during cross-examination.
We review discovery rulings for abuse of discretion and will
order a new trial only when a party demonstrates prejudice to his
substantial rights. United States v. Ellender, 947 F.2d 748, 756
(5th Cir. 1991). Moreover, "[a] defendant may not complain on
appeal that he was prejudiced by evidence relating to a subject
which he opened up at trial." United States v. Wilson, 439 F.2d
1081, 1082 (5th Cir.), cert. denied, 92 S.Ct. 122 (1971). The
district court did not abuse its discretion in finding that Deisch,
knowing of the statement allegedly made to Sandefer, nevertheless
opened the door to the testimony of which she now complains. No
reversible error is shown.
Conclusion
For the foregoing reasons, we REVERSE the felony conviction
for possession of cocaine base under the third sentence of section
844(a), we AFFIRM the misdemeanor conviction for possession of a
controlled substance under the first sentence of section 844(a),
32
and we REMAND for resentencing under the second sentence of section
844(a).
AFFIRMED in part; REVERSED in part; REMANDED for resentencing
33