UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-30483
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PAUL RICHARD GREEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
March 26, 2001
Before JONES and DeMOSS, Circuit Judges, and BARZILAY*, Judge.
DeMOSS, Circuit Judge:
Paul Richard Green seeks vacatur of the sentence imposed by
the District Court for the Western District of Louisiana, Judge
Rebecca Doherty presiding, after he was convicted by a jury on one
count of conspiracy to distribute controlled substances in
violation of 21 U.S.C. § 846, and one count of harboring a fugitive
in violation of 18 U.S.C. § 1071. For the reasons discussed below,
we affirm the sentence imposed.
*
Judge, U.S. Court of International Trade, sitting by
designation.
BACKGROUND
Paul Richard Green was employed as a police officer in
Lafayette, Louisiana, from 1973 until the time of his arrest in
1996. In January of 1981, Green and several other officers
arrested Patrick Ray Colomb, a known drug dealer, at the Lafayette
Regional Airport where Colomb was picking up a package of preludes.
At the time of the arrest, Green searched the inside of Colomb’s
car and found a small paper bag containing $5,000. Green took the
bag with him, and when asked by Colomb what he planned to do with
it, Green responded that Colomb should not worry about it. After
Colomb posted bond and was released, Green returned to Colomb the
$5,000. Colomb returned the favor by giving Green $500. This
transaction was the genesis of a relationship whereby Colomb would
pay Green on a monthly basis in return for information about
narcotics investigations and possible arrests by the police.
Over time, the monthly amount that Colomb paid Green from the
proceeds of his illegal drug activities increased to $10,000. The
two continued this monthly arrangement up until 1988, at which
time, based upon information provided by Green that a grand jury
was investigating Colomb’s activities, Colomb fled from Lafayette.
Green and the fugitive Colomb continued to meet however. Green
began bringing to Colomb’s location, the proceeds of his continued
drug activities which had been delivered by other co-conspirators
to Green. During the time period in which Green served as a
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conduit for the proceeds of fugitive Colomb’s continued drug
activities, Green kept some of the money for himself. And over the
course of their illicit relationship, Green received a total of
over half a million dollars in illegal drug monies from Colomb.
At Green’s trial, Colomb testified in detail about the large
quantities that both he and other members of his organization,
including Alton Miller, sold. In 1987, Miller began hauling
cocaine from Colomb’s suppliers in Miami, and Colomb regularly
discussed various details of these transactions with Green. Cheryl
Wiltz, Miller’s girlfriend, testified that Miller’s relationship
with Colomb began in 1987. She knew that someone was giving Miller
information about police raids, although she could not identify
who. However, she recalled going with Miller to buy a bedroom set
for one of Green’s children which she understood to be repayment to
Green for favors he had done for Miller. Wiltz also testified in
detail about the large quantity of drugs involved in Miller’s
deals.
At the sentencing hearing, Colomb testified that he sold over
50,000 tablets of preludes from 1981 through 1983 and that Green
made money by providing information and protecting him during that
time. As to the subsequent cocaine sales, Colomb testified that he
did not discuss specific quantities with Green, but that Green knew
there had been a switch to cocaine and that, based on the amount of
money that he received, Green knew “a large amount was coming.”
Colomb and others testified about the quantities sold for both
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drugs.
In September of 1996, Green was charged in a superseding
indictment with one count of harboring a fugitive in violation of
18 U.S.C. § 1071 and one count of conspiracy to distribute over
fifty (50) kilograms of cocaine and over fifty thousand (50,000)
tablets of phenmetrazine or “preludes,” in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A) and 841(b)(1)(B), said conspiracy being
in violation of 21 U.S.C. § 846.
Green’s first trial resulted in a mistrial. At his second
trial, with respect to the conspiracy count, the district court
specifically instructed the jury as follows:
For you to find the defendant guilty of this crime,
you must be convinced that the government has
proved each of the following beyond a reasonable
doubt:
First: That two or more persons made an
agreement to commit the crime of distribution of
cocaine, phenmetrazine or preludes as charged in
the indictment; and
Second: That the defendant knew the unlawful
purpose of the agreement and joined in it
willfully, that is, with the intent to further the
unlawful purpose;
To distribute cocaine and phenmetrazine or
preludes means for one person to intentionally
transfer cocaine and phenmetrazine or preludes to
another;
And at the time of the transfer the person
making the transfer knew that cocaine and
phenmetrazine or preludes were controlled
substances.
On September 24, 1997, the jury returned its interrogatory verdict
finding Green guilty on both counts of the indictment. The
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district court denied Green’s post-trial motions for judgment of
acquittal or alternatively for a new trial.
During Green’s initial sentencing, the district court held
that the conspiracy verdict was ambiguous because the jury did not
specify whether Green conspired to distribute preludes or cocaine,
or both. Thus, the district court imposed a five-year sentence,
the statutory maximum for preludes, because it concluded that
United States v. Bounds, 985 F.2d 188 (5th Cir. 1993), requires that
when a jury verdict for conspiracy is ambiguous, the defendant must
be sentenced based on the drug which produces the lowest guidelines
offense level.
A prior panel of this Court affirmed most of the district
court’s original rulings, but it vacated Green’s five-year sentence
on the conspiracy count and remanded for re-sentencing based on its
conclusion that the jury verdict was not ambiguous and that the
jury had in fact found beyond a reasonable doubt that the
conspiracy involved both preludes and cocaine. See United States
v. Green, 180 F.3d 216 (5th Cir. 1999).
On remand, the district court held that 180.4 kilograms of
cocaine and a minimum of 50,000 preludes was reasonably foreseeable
to Green as part of the conspiracy. The district court determined
that the applicable guidelines sentencing range was between 292 and
365 months of imprisonment, and that Green faced a five-year term
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of supervised release. Green was sentenced to twenty-five years of
imprisonment for the conspiracy conviction and five years for the
harboring a fugitive conviction, with the two sentences to run
concurrent with one another. Additionally, the district court
ordered that, upon release, Green serve a five-year term of
supervised release for the conspiracy conviction and a three-year
term of supervised release for the harboring a fugitive conviction,
again with both to run concurrently. The district court denied
Green’s request for a downward departure, and it entered an amended
judgment reflecting Green’s conviction and sentence on April 13,
2000. Green has now timely appealed the sentence imposed by the
district court.
DISCUSSION
In this appeal, Green first argues that his sentence must be
vacated in light of the Supreme Court’s recent decision in Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000), because the jury’s verdict
cannot be construed as a finding beyond a reasonable doubt that
Green conspired to distribute the quantities of drugs which would
yield a sentence of twenty-five years. He contends that the
specific amount of drugs involved in the conspiracy was not
submitted to the jury for its determination beyond a reasonable
doubt and that the jury was not specifically instructed that drug
quantity was an element of the conspiracy offense of which it was
required to make a specific finding. Thus, Green argues that the
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district court’s sentence was based upon its own findings by only
a preponderance of the evidence and was, under Apprendi and its
progeny, an illegal sentence.
Green relies upon this Court’s recent holding in United States
v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), wherein we stated
that where the government seeks to enhance penalties “based on the
amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity
must be stated in the indictment and submitted to a jury for a
finding of proof beyond a reasonable doubt.” Our decision in
Doggett was based upon the Supreme Court’s pronouncement in
Apprendi that any fact, other than a prior conviction, that
increases the penalty for a crime beyond the prescribed statutory
maximum must be alleged in the indictment and proved to the jury
beyond a reasonable doubt. In Doggett, we explicitly concluded
that drug quantity is such a fact when the quantity is used to
enhance a defendant’s sentence. See Doggett, 230 F.3d at 164-65.
We went on to state in Doggett that when, as here, the government
seeks to enhance a defendant’s penalties based upon the amount of
drugs involved under 21 U.S.C. § 841(b)(1)(A) or (B), “the quantity
must be stated in the indictment and submitted to the jury for a
finding of proof beyond a reasonable doubt.” Id. at 165.
We agree with Green that the district court’s failure to
specifically state the specific quantity of drugs when it
instructed the jury as to the essential elements of the offense it
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was to find beyond a reasonable doubt, was error under Doggett and
our prior decision in United States v. Meshack, 225 F.3d 556, 575
(5th Cir. 2000). Recently, we addressed precisely the same issue
as Green presents in this appeal. In United States v. Slaughter,
No. 99-11142, __ F.3d __, 2000 WL 1946670 (5th Cir. Jan. 12, 2001),
a specific quantity of drugs was alleged in the indictment but the
district court failed to instruct the jury that it must find the
specific quantity beyond a reasonable doubt. In Slaughter, we
stated:
In submitting counts 4, 13, and 17 to the
jury, the district judge did not state the
specific quantity of cocaine base as stated in
each count. This was error. Under our
holdings in Meshack, Doggett, and Keith, it is
clear that the drug quantity as alleged in
each count of the indictment . . . is an
essential element of the offense and should be
expressly stated by the district court in its
instructions to the jury as an element which
must be found beyond a reasonable doubt.
Id. at *3.
In Slaughter, we noted that a defendant’s failure to object to
the absence of drug quantity in the jury instructions permits this
Court to grant relief only if the district court’s error in so
failing to include drug quantity “rises to the level of plain
error.” Slaughter, 2000 WL 1946670, at *3 (citing Neder v. United
States, 119 S. Ct. 1827, 1833-34 (1999)). And notwithstanding the
otherwise plainness of such an error, we noted that under explicit
Supreme Court precedent, “a jury instruction that omits an element
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of the offense is subject to harmless error analysis.” Id.
As did the defendant in Slaughter, Green failed to ever object
to the district court’s omission of an instruction to the jury that
it was required to find a specific drug quantity as an element of
the conspiracy offense. Notwithstanding the otherwise plainness of
the district court’s error, pursuant to our recent decision in
Slaughter, we may grant Green relief from his sentence only if the
district court’s failure to more specifically instruct the jury
that it must find a specific drug quantity beyond a reasonable
doubt, was not harmless. See id. And in Neder, the Supreme Court
instructed that the standard for determining harmlessness when a
jury is not instructed as to an element of an offense is “whether
the record contains evidence that could rationally lead to a
contrary finding with respect to the omitted element.” Neder, 119
S. Ct. at 1839. In this case then, we must determine whether the
record contains evidence that could lead the jury to rationally
conclude that Green was not involved in a conspiracy to distribute
at least the specific quantity of drugs properly alleged in the
charges of the indictment for which it found him to be guilty. See
Slaughter, 2000 WL 1946670, at *3.
We have reviewed the record of this case and are convinced
that it contains no evidence that could rationally lead to a
conclusion contrary to the charge that Green was involved in a
conspiracy involving at least the amount of drugs specifically
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charged in the indictment. At trial, there was extensive,
detailed, and uncontroverted testimony regarding the scope of the
alleged conspiracy and the quantities of the various drugs involved
therein.
As was the case in Slaughter, the jury had with it during
deliberations a copy of the indictment setting forth the specific
quantities of drugs which would support the sentence imposed by the
district court. Furthermore, the district court explicitly
instructed as part of the first conspiracy element that the jury
must find that Green agreed to commit the crime of distribution of
the named drugs “as charged in the indictment.” The relevant
conspiracy count in Green’s indictment included the specific
quantities of drugs supporting the district court’s sentence, and
we conclude that implicit in the jury’s finding on the first
element is also a finding of the specific quantities charged in the
indictment.
As we have concluded that there was no evidence that could
rationally lead the jury to a conclusion that the quantity of drugs
stated in the indictment was incorrect, we likewise find that the
district court’s error in failing to instruct the jury to find a
specific amount of drugs beyond a reasonable doubt was harmless.
We also find no merit in the additional issues raised by Green in
this appeal. Accordingly, we conclude that the district court did
not err in sentencing Green based upon quantities of drugs in
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accord with those recited in the applicable count of the indictment
for which the jury found him guilty beyond a reasonable doubt.
For all of the foregoing reasons, we find no merit in Green’s
contentions on appeal, and we affirm the sentence imposed by the
district court.
AFFIRMED.
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