People v. Mass

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Just ice Justices
Maura D . Corrigan Michael F. Cavanagh

O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 5, 2001

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 115820

JIMMY MASS, a/k/a KOOL AID,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

Defendant was convicted, on an aider and abettor theory,

of (1) delivery of 225 grams or more but less than 650 grams

of a mixture containing cocaine1 and with (2) conspiracy to

commit that offense.2

We granted leave to determine

whether knowledge of the amount of the controlled

1
MCL 333.7401(2)(a)(ii).

2
MCL 750.157a.

 substance was a necessary element of the delivery

and conspiracy charges, and, if so, whether the

prosecution’s evidence was insufficient to prove

this element and whether the omission of it from

the jury instructions deprived defendant of a fair

trial.3

As explained below, we conclude that the amount of a

controlled substance is an element of a delivery offense, but

that knowledge of the amount is not an element of a delivery

charge. However, consistent with People v Justice (After

Remand), 454 Mich 334; 562 NW2d 652 (1997),and Apprendi v New

Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), we

also hold that knowledge of the amount of a controlled

substance is an element of a conspiracy to deliver charge.

I. Evidence Presented at Trial

An undercover state police officer testified that in

early 1996 he purchased crack cocaine six times from Monolito

Blackstone. As detailed below, the officer told the jury that

defendant assisted Blackstone in completing a seventh sale.

On March 19, 1996, the officer visited Blackstone’s

apartment and advised that he wished to purchase ten ounces4

of cocaine. Blackstone began making phone calls. Jimmy Mass,

who lived across the hall, then arrived. Blackstone told Mass

he needed “ten ounces” and asked if he knew anyone who they

3
462 Mich 877 (2000).

4
Ten ounces is roughly 280 grams.

2
“could get ten ounces from.” Mass said “you should have told

me earlier” and began making telephone calls from Blackstone’s

bedroom. He then returned and advised Blackstone that “his

man was not there.”

On March 25, 1996, the officer again phoned Blackstone

and indicated that he still wanted to purchase ten ounces of

cocaine. Blackstone told the officer to meet him the next

morning at his apartment. At that meeting, Blackstone made a

phone call and advised he would have to travel to Detroit to

get the cocaine. Before the meeting ended the officer gave

Blackstone $3,700, one half of the agreed upon price as a down

payment, and they agreed to meet in the afternoon. At 2:00

that afternoon the officer was told by Mass that Blackstone

was not coming back, but that he would direct the officer to

a meeting place with Blackstone. The officer responded by

expressing some hesitation about that arrangement, and

indicated he wanted to speak with Blackstone. To facilitate

this, Mass took the officer to his own apartment where he

telephoned Blackstone and handed the phone to the officer. In

that conversation, Blackstone told the officer that the police

had followed him to Detroit and that defendant would bring him

to a place where the sale could be completed. Mass and the

officer then got into the officer’s car, and, under Mass’

direction, they drove to a house in Monroe. As they

3

proceeded, Mass gave the directive to the officer to pull over

because he believed a car had been following them. Moreover,

when the officer for his part indicated that things did not

seem right, Mass reassured him that Blackstone had the

officer’s “stuff” and that “that part of it was straight.”

Mass also confided to the officer that if Blackstone had taken

him with him to Detroit that he would have made sure the

police did not follow.

Upon arrival at the house, Mass got out of the car and

began looking up and down the street in the manner of a

lookout. Meanwhile Blackstone came out from behind the house,

got in the car, and handed the officer a package and said

“here is your ten ounces.”5 The officer then paid Blackstone

the balance of the purchase price, and drove off alone

leaving Mass and Blackstone together in front of the

residence.

At the close of the prosecution’s case, defense counsel

moved for a directed verdict with regard to the delivery and

conspiracy charges. The trial court denied the motion stating

that a question of fact existed for the jury. Defendant did

not testify or present any evidence. In his closing argument

defense counsel argued that Mass was a “sad sack, who should

pick better friends” but that he had only been present [when

5
Later testing showed the cocaine weighed 246.4 grams.

4
Blackstone had delivered the drugs] and was not part of any

conspiracy. Following jury instructions,6 the jury convicted

Mass as charged on both counts.7

II. The Court of Appeals Opinion resolving defendant’s appeal

The Court of Appeals affirmed defendant’s convictions in

a divided opinion.8 The majority rejected defendant’s claim

that the evidence was insufficient because the prosecution had

presented no evidence that he had knowledge of the quantity of

cocaine to be delivered. It concluded that knowledge of the

amount of cocaine was not an element of either the delivery

charge or the conspiracy charge. The Court also rejected

defendant’s assertion that People v Justice, supra, required

6
Defense counsel’s sole jury instruction objection

concerned the giving of a circumstantial evidence instruction.

7
The trial court found substantial and compelling reasons

to depart from the presumptive twenty- to thirty-year

sentences and imposed a ten- to twenty-year sentence for each

conviction. The prosecutor appealed the sentences and the

Court of Appeals reversed and remanded for resentencing.

Unpublished opinion per curiam, issued April 14, 1998 (Docket

No. 203651). The Court of Appeals held that the trial court

had failed to specifically articulate reasons why the factors

it identified provided “substantial and compelling” reasons to

except the sentences from the presumptive sentences. It also

held the trial court had failed to articulate additional

justification for the extent of the departure. The Court

indicated that it was conceivable that a departure sentence

would be appropriate at resentencing. The trial court

postponed resentencing defendant until further order of the

Court. It appears the trial court is awaiting resolution of

defendant’s appeal in this Court before going forward with the

resentencing.

8
238 Mich App 333; 605 NW2d 322 (1999).

5
proof of knowledge of the quantity of controlled substances

for a conspiracy conviction. Alternatively, the majority said

that, even if Justice required the prosecutor to prove that

defendant knew the quantity of cocaine involved to support the

conspiracy conviction, the evidence was sufficient to show

that Mass knew the quantity of cocaine to be delivered.

The Court also indicated there was no flaw in the jury

instructions, even though the instructions did not appraise

the jury that the prosecution had to prove that defendant knew

the quantity of cocaine involved in the transaction. It

concluded that, because knowledge of the quantity of drugs is

not an element of the crimes charged, the jury instructions

did not constitute error. Alternatively, the majority

indicated that if knowledge was an element, any error had been

forfeited where there had been no objection to the

instructions and the alleged error was not outcome

determinative.

Judge Hoekstra dissented with respect to the conspiracy

conviction because he believed Justice required the

prosecution to prove defendant had the specific intent to

deliver the statutory amount of at least 225 grams. He opined

that conspiracy was a different offense than delivery and

that, while knowledge of the quantity of drugs involved is not

an element of a possession charge, it is an element of a

6

conspiracy charge. Judge Hoekstra concluded that defendant

was entitled to a new trial regarding his conspiracy

conviction because the jury instructions regarding this

offense neglected to include one of its elements.

III. Standards of Review

Whether knowledge of the amount of a controlled substance

is a necessary element of a crime is a legal question and we

review legal questions de novo. People v Morey, 461 Mich 325,

329-330; 603 NW2d 250 (1999).

The test for determining whether evidence was sufficient

to establish an element of a crime is found in People v

Hampton, 407 Mich 354, 365-368; 285 NW2d 284 (1979). The test

requires us to view the evidence in a light most favorable to

the prosecution to determine whether a rational trier of fact

could have found the element of the crime was proven beyond a

reasonable doubt. Id.9

We review forfeited error, such as the failure to

instruct a jury regarding one element of an offense, to

determine whether “the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings.”

People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999). We

reverse if it did.

9
This test is more exacting than the former “any

evidence” standard that Hampton disapproved. Id.

7

 IV. This Court’s Opinion in People v Justice10

In Justice the defendant had been charged with conspiring

with another to possess with the intent to deliver more than

650 grams of cocaine and was also charged with conspiring with

yet another person to possess with the intent to deliver more

than 225 grams but less than 650 grams of cocaine. The

prosecution had presented evidence at the preliminary

examination of several deliveries of cocaine that were

aggregated to reach the charged amounts.

In the course of determining that the prosecution had

presented sufficient evidence to justify binding over the

defendant for trial, this Court stated: (1) there had to be

probable cause to believe that the defendant and the

coconspirator shared the specific intent to accomplish the

substantive offenses charged and (2) that the evidence showed

that the defendant and the coconspirator had a specific intent

to deliver the statutory amount as charged. Justice,

supra. at 337.

The Court stated its holding as follows:

To be convicted of conspiracy to possess with

intent to deliver a controlled substance, the

people must prove that (1) the defendant possessed

the specific intent to deliver the statutory

minimum as charged, (2) his coconspirators

10
The Court’s opinion in Justice was authored by Justice

Riley and joined by Justices Weaver, Boyle, Brickley, and

Chief Justice Mallet.

8

 possessed the specific intent to deliver the

statutory minimum as charged, and (3) the defendant

and his coconspirators possessed the specific

intent to combine to deliver the statutory minimum

as charged to a third person. [Id. at 349

(emphasis added).][11]

V. Whether Knowledge of the Amount of a Controlled Substance

is a Necessary Element of a Delivery Charge?

MCL 333.7401(1) provides:

Except as authorized by this article, a person

shall not manufacture, create, deliver[12], or

possess with intent to manufacture, create, or

deliver a controlled substance, a prescription

form, an official prescription form, or a

counterfeit prescription form. A practitioner

licensed by the administrator under this article

shall not dispense, prescribe, or administer a

controlled substance for other than legitimate and

professionally recognized therapeutic or scientific

purposes or outside the scope of practice of the

practitioner, licensee, or applicant.

Subsection (2) establishes four ranges: (1) if less than

fifty grams are involved, a defendant faces a sentence of not

less than one year nor more than twenty years or lifetime

probation; (2) if fifty grams or more but less than 225 grams

11
Justice Cavanagh dissented. He indicated that he agreed

with the majority that to bind defendant over for trial the

prosecution had to show defendant and the coconspirator shared

the specific intent to accomplish the substantive offenses,

but he dissented because the majority did not require that

both conspirators possess the specific intent to deliver the

charged amounts from the time of the formation of the

conspiratorial agreement. Id. at 363.

12
The terms “deliver” and “delivery” mean “the actual,

constructive, or attempted transfer from 1 person to another

of a controlled substance, whether or not there is an agency

relationship.” MCL 333.7105(1).

9

are involved, a defendant faces not less than ten years nor

more than twenty years; (3) if 225 grams or more but less than

650 grams are involved, a defendant faces not less than twenty

years nor more than thirty years; and (4) if 650 grams or more

are involved, a defendant faces life or any term of years not

less than twenty years.13 Hence, subsection (2) increases the

applicable prison term as the amount of the controlled

substance increases.

A plain reading of MCL 333.7401 makes the amount of a

controlled substance an element of a delivery offense. The

amount is an element because the level of crime is dependent

upon application of subsection 2. Indeed, not until

subsection (2) does the statute specifically refer to crimes,

“felonies” in this case, that depend on the weight of the

controlled substance involved. Moreover, the MCL 333.7401(2).

phrase “[a] person who violates this section . . .” suggests

the determination whether a crime has been committed involves

application of both subsections (1) and (2).14

13
See, e.g., People v Daniel, 462 Mich 1; 609 NW2d 557

(2000); People v Fields, 448 Mich 58; 528 NW2d 176 (1995).

14
Further support of the conclusion that quantity is an

element of the delivery offense is the related possession

statute, MCL 333.7403, which is similarly structured as MCL

333.7401. Subsection (2) of MCL 333.7403 differentiates

between misdemeanors and felonies. Thus, under MCL 333.7403,

one cannot determine the level of crime committed (felony or

misdemeanor) unless one examines subsection (2).

10

 It is even more evident that subsection (2) of MCL

333.7401 entails the elements of separate offenses because

subsection (2) covers various drug types as well as

prescription forms. For example, within subsection (2)(a),

the elements of the offense are described as they relate to

schedule 1 or 2 drugs, while subsection (2)(b) describes a

separate offense as it relates to schedule 3 drugs, and

subsection (2)(c) describes the offense as it relates to

schedule 4 drugs. All these textual clues support the

conclusion that the amount and nature of controlled substances

are elements of a delivery offense under MCL 333.7401.15

Having determined that quantity is an element of the

delivery offense, we turn to the question whether knowledge of

15
In contrast, under the federal counterpart, 21 USC 841,

subsection (b) provides “any person who violates subsection

(a) of this section . . . .” (Emphasis added.) This phrase

shows that the crime is articulated in subsection (a), while

subsection (b) specifies how a person who violates subsection

(a) is to be sentenced. Clearly, MCL 333.7401 is

distinguishable from 21 USC 841 on this structural difference.

Historically, federal courts have construed 21 USC 841 as

providing that “the quantity of drugs involved . . . is not a

substantive element of the crime which must be charged and

proved at trial.” United States v Dorlouis, 107 F3d 248, 252

(CA 4, 1997) (emphasis added). However, as explained in part

VIII of this opinion, Apprendi has changed this. The

concurrence’s overreliance on federal case law fails to

appreciate the fact that in Michigan, pursuant to our statute,

the amount of a controlled substance is part of a delivery

offense, whereas under the federal statute, apart from

Apprendi, this is not the case. Hence, we disagree that the

instant case is “indistinguishable” from those addressed by

federal conspiracy law. Slip op, p 7.

11

the amount is an element of a delivery offense.

The Court of Appeals held that knowledge of the amount of

cocaine involved is not an element of a charge of delivery of

cocaine, citing People v Cortez, 131 Mich App 316, 331; 346

NW2d 540 (1984),16 and People v Northrup, 213 Mich App 494,

498; 541 NW2d 275 (1995).17

It is also the case that this Court stated as follows in

People v Quinn, 440 Mich 178, 189; 487 NW2d 194 (1992):

[A] defendant need not know the quantity of

narcotics to be found guilty of possession of a

controlled substance under MCL 333.7401; MSA

14.15(7401).

We hold, consistent with the text of the statute, the

Court of Appeals holdings, and our prior statement in Quinn,

that knowledge of the amount of a controlled substance is not

an element of a delivery charge.18 This holding is, of course,

consistent with the fact that delivery of a controlled

substance is a general intent crime. People v Maleski, 220

Mich App 518, 522; 560 NW2d 71 (1996).

VI. Sufficiency of the Evidence Regarding the Delivery

Conviction

16
Remanded on other grounds 423 Mich 855 (1985).

17
Accord People v Hamp, 170 Mich App 24, 35; 428 NW2d 16

(1988), vacated in part 437 Mich 865 (1990).

18
As explained later in this opinion, we are satisfied

that Apprendi is inapplicable to this conclusion so long as

the jury does in fact determine as it did here, the amount of

controlled substances that was actually delivered.

12

 Defendant cites the following language from People v

Turner, 213 Mich App 558, 568; 540 NW2d 728 (1995):

To support a finding that a defendant aided

and abetted a crime, the prosecutor must show that

... (3) the defendant intended the commission of

the crime or had knowledge that the principal

intended its commission at the time he gave aid and

encouragement.

Defendant argues from this language that the evidence may

show he intended a cocaine delivery, but that the evidence was

insufficient to show he intended the crime of delivery of at

least 225 grams of cocaine or had knowledge Blackstone

intended to deliver at least 225 grams of cocaine at the time

he aided the delivery.

The aiding and abetting statute, MCL 767.39 provides:

Every person concerned in the commission of an

offense, whether he directly commits the act

constituting the offense or procures, counsels,

aids, or abets in its commission may hereafter be

prosecuted, indicted, tried and on conviction shall

be punished as if he had directly committed such

offense.

The “requisite intent” for conviction of a crime as an

aider and abettor “is that necessary to be convicted of the

crime as a principal.” People v Kelly, 423 Mich 261, 278; 378

NW2d 365 (1985). Accordingly, it was enough for the

prosecution to show that Mass, as with the principal offender

Blackstone, knowingly delivered or aided in the delivery of

some amount of cocaine, as long as the jury later determined

13

that at least 225 grams of cocaine were in fact delivered.

The prosecution simply did not need to show that defendant

knew that the amount of cocaine involved in the instant

delivery was at least 225 grams to secure Blackstone’s

delivery conviction or Mass’ conviction for aiding and

abetting in the delivery of at least 225 but less than 650

grams of cocaine. Conviction of a crime as an aider and

abettor does not require a higher level of intent with regard

to the commission of the crime than that required for

conviction as a principal. Id. To the extent that the cited

language from Turner may suggest otherwise, it is disapproved.

Because the evidence showed defendant knew he was aiding

and abetting Blackstone in a delivery of cocaine and the

amount of cocaine delivered exceeded 225 grams, the evidence

was sufficient to convict defendant of delivery of 225 grams

or more but less than 650 grams of cocaine.

VII. Whether Knowledge of the Amount of the Controlled

Substance was a Necessary Element of the Conspiracy to

Delivery Charge?

MCL 750.157a provides:

Any person who conspires together with 1 or

more persons to commit an offense prohibited by

law, or to commit a legal act in an illegal manner

is guilty of the crime of conspiracy punishable as

provided herein . . . .

Conspiracy is a specific-intent crime, because it

requires both the intent to combine with others and the intent

14

to accomplish the illegal objective. People v Carter, 415

Mich 558, 567-568; 330 NW2d 314 (1982).19

As previously indicated, one of the charges defendant

faced was conspiring with Blackstone to deliver 225 grams or

more but less than 650 grams of cocaine.

In Justice this Court held that to be convicted of

conspiracy to possess with intent to deliver a controlled

substance, the prosecution had to prove that (1) the defendant

possessed the specific intent to deliver the statutory minimum

as charged, (2) his coconspirators possessed the specific

intent to deliver the statutory minimum as charged, and (3)

the defendant and his coconspirators possessed the specific

intent to combine to deliver the statutory minimum as charged

to a third person. Id. at 349.

This Court specifically held that a defendant could not

be guilty of conspiring to possess with the intent to deliver

19
While we do not dispute the concurrence’s point that the

agreement necessary to form a conspiracy does not rise to the

level of the “meeting of the minds” concept from contract law,

the statute does require an agreement to commit a prohibited

offense. If no such agreement is reached, the conspiracy

statute has not been violated. Thus, although the government

need not prove commission of the substantive offense or even

that the conspirators knew all the details of the conspiracy,

US v Rosa, 17 F3d 1531, 1543 (CA 2, 1994), it must prove that

“the intended future conduct they . . . agreed upon include[s]

all the elements of the substantive crime.” US v Rose, 590

F2d 232, 235 (CA 7, 1978). Here, the substantive crime

involved at least 225 grams of cocaine. Thus, the prosecution

was required to show the defendant agreed to deliver, not just

any amount, but at least this amount.

15

more than 650 grams of cocaine unless the prosecution was able

to prove beyond a reasonable doubt, not just that the

defendant had conspired to possess with an intent to deliver

some amount of cocaine, but rather, had conspired to possess

with an intent to deliver the statutory minimum of 650 grams.

The Court of Appeals majority stated:

A reasonable interpretation of the phrase,

"the specific intent to deliver the statutory

minimum as charged," is that the defendant must

possess the specific intent to deliver the

controlled substance, and that the quantity of the

substance must then meet the statutory minimum. To

interpret this phrase to require proof that the

defendant knew the exact quantity of the controlled

substance would lead to unreasonable results. For

example, a defendant could be found guilty of a

delivery offense without knowing how much cocaine

was involved, while avoiding all criminal liability

for conspiracy merely because, although he knew

that he was agreeing to deliver cocaine, he did not

know how much cocaine was to be delivered. Or, a

defendant could avoid conspiracy liability because,

although he knew the rough extent of the amount of

cocaine involved in a drug transaction, he did not

know the exact measurement with scientific

precision, i.e., whether 224 or 226 grams of

cocaine were involved. [Id. at 337.]

We are unable to agree with the Court of Appeals

interpretation of this Court’s holding in Justice. This

Court’s holding unambiguously calls for the prosecution to

prove (in a conspiracy to possess with intent to deliver

charge), not just that the defendant conspired to possess with

intent to deliver some or any amount of cocaine, but “the

statutory minimum as charged.”

16

 We also disagree with the Court of Appeals that

a defendant could be found guilty of a delivery

offense without knowing how much cocaine was

involved, while avoiding all criminal liability for

conspiracy merely because, although he knew that he

was agreeing to deliver cocaine, he did not know

how much cocaine was to be delivered. Id.

This analysis is in error because it fails to recognize

that if one conspires to deliver an unspecified amount of

cocaine one would, at a minimum, be guilty of conspiring to

deliver less than fifty grams of cocaine. Thus, a defendant

would not, as stated by the Court of Appeals, “avoid all

criminal liability”; rather, he would be convicted of a felony

and could face a twenty-year term of incarceration.

We further disagree with the Court of Appeals that

a defendant could avoid conspiracy liability

because, although he knew the rough extent of the

amount of cocaine involved in a drug transaction,

he did not know the exact measurement with

scientific precision, i.e., whether 224 or 226

grams of cocaine were involved. Id. at 337.

Once again, this analysis is flawed. If the prosecution

proved to a jury that a defendant had conspired to deliver a

significant amount of cocaine, but the jury was not sure if

the defendant knew 224 grams or 226 grams were involved, the

jury would properly convict such a defendant of conspiracy to

deliver more than 50 grams but less than 225 grams of cocaine.

Such a defendant would not avoid conspiracy liability.

Rather, such a defendant would be properly convicted of a

17

felony and would face at least a presumptive ten- to twenty­

year term of incarceration.20

Further, the Court of Appeals analysis improperly

suggests that a conspiracy conviction must be tied to the

amount of cocaine that was eventually delivered. This will

not always be the case. The gist of a conspiracy is the

unlawful agreement. People v Asta, 337 Mich 590, 611; 60 NW2d

472 (1953). Indeed, the purpose of the conspiracy need not be

accomplished. Id. In People v Denio, 454 Mich 691, 712; 564

NW2d 13 (1997), this Court noted that it has “repeatedly held”

that conspiracy is separate and distinct from the substantive

crime that is its object. The Court of Appeals erroneous

assumption that the amount of cocaine actually delivered is

the amount a defendant conspired to deliver could, in some

instances, improperly work to a drug dealer’s benefit. For

example, if wiretap evidence showed a drug dealer asked

someone to help him deliver 700 grams of cocaine and the

person agreed (and both parties actually intend to deliver 700

grams), such a person would be guilty of conspiring to deliver

more than 650 grams of cocaine, even if no sale took place or

20
To reiterate, the prosecution is not required to show

the defendant knew the precise or specific amount. However,

if the prosecution charges a defendant with conspiracy to

deliver a controlled substance above the lowest amount of less

than 50 grams, it must submit evidence showing the defendant

agreed to commit the more serious offense.

18

if the amount of cocaine that was actually delivered turned

out to be less than 650 grams.21

The prosecution argues that Justice should not be

applicable here because (1) the crime charged in Justice was

the specific intent crime of possession with intent to

deliver,22 whereas the crime herein was the general intent

crime of delivery, and (2) Justice involved multiple small

transactions that were aggregated, whereas the case at bar

involved only one transaction.23 It has also been suggested

that Justice was wrongly decided and that we should hold that

knowledge of the amount of a controlled substance is not an

element of a conspiracy offense.24 We find unpersuasive these

21

22
While delivery of a controlled substance is a general

intent crime, People v Maleski, supra, possession with intent

to deliver is a specific intent crime. People v Crawford, 458

Mich 376, 417, n 19; 582 NW2d 785 (1998) (Boyle, J.,

dissenting).

23
The prosecutor indicates that the overall objective of

a conspiracy case which involves numerous deals is not as

clear in cases involving one transaction, so the “additional

element of intent in those cases is justified.”

24
We agree that such a holding might be supported by

United States v Feola, 420 US 671; 95 S Ct 1255; 43 L Ed 2d

541 (1975), where the United States Supreme Court held the

crime of conspiracy to assault a federal officer did not

require a criminal intent greater than that necessary to

convict for the substantive offense of assaulting a federal

officer. Feola is neither directly on point nor controlling.

In contrast, People v Justice is on point and controlling,

absent a decision to overrule the case. Indeed, in Feola a

holding that knowledge was an element would have led to

(continued...)

19

criticisms of and efforts to distinguish Justice. We are

satisfied that Justice properly concluded that knowledge of

the amount of a controlled substance is an element of the

crime of conspiracy to deliver a controlled substance, and

that this holding is consistent with a correct interpretation

of our controlled substance and conspiracy statutes.25 This

is because our conspiracy statute, MCL 750.157a, makes it a

crime to conspire with another to commit “an offense.” And,

as previously explained, there are four separate delivery

offenses depending on the amount of contraband involved. The

fact that Justice required the prosecution to establish the

24
(...continued)

dismissal of the federal charges. We do not face such a

situation in that the prosecution will always be able to argue

for a conspiracy to deliver less than 50 grams of cocaine

charge if there is no evidence regarding the amount of cocaine

the conspirators agreed to deliver. It is also the case that

Feola is not without its critics. See, e.g., US v Cordoba-

Hincapie, 825 F Supp 485, 510-511 (ED NY, 1993). In any

event, notwithstanding Feola, we believe Justice and

Apprendi preclude us from determining that knowledge of the

amount is not an element of a conspiracy to deliver a

controlled substance charge.

25
The concurrence indicates that Justice correctly

required the prosecution to show the defendant intended to

engage in the prohibited conduct, slip op, p 14, but then

“inexplicably” concluded the defendant had to possess the

specific intent to deliver the statutory minimum charged.

Slip op, p 15. We see nothing inexplicable in the conclusion.

What the concurrence fails to recognize is that “the

prohibited conduct” is not just agreeing to deliver some

amount of cocaine, but agreeing to commit one of four delivery

offenses and those offenses are in four ranges depending on

the amount with which the prosecution charges the defendant.

20

statutory charged amount is fully consistent with requiring

the prosecution to prove which delivery offense a defendant

conspired to violate and with the fact that conspiracy is a

specific intent crime.26 Moreover, as explained below, we find

Apprendi provides independent support for this conclusion.

To make our position clear, if a conspiracy to deliver

and a delivery charge are coupled (and the proofs for the

delivery demonstrate the weight of the substance delivered)

such proofs may suffice to demonstrate defendant’s knowledge

of the amount for the conspiracy charge. This is because a

prosecutor is free to argue, and the jury would be free to

find, if it was persuaded, given all the circumstances, that

defendant had knowingly conspired to deliver the same amount

that was actually delivered.

VIII. Apprendi v New Jersey

Mr. Apprendi was convicted in state court of possession

of a firearm for an unlawful purpose, an offense punishable by

imprisonment from five to ten years. However, at sentencing

the trial judge found, by a preponderance of the evidence,

that Apprendi had committed the crime with a purpose to

intimidate individuals because of their race. This finding

26
Thus, we reject the concurrence’s claim that we have

somehow “add[ed] an element” to a statute. Slip op, p 20.

Rather, we believe it is the concurrence that would refuse to

require the prosecution to prove an element required under our

conspiracy and delivery statutes.

21

served to increase the sentence under New Jersey’s “hate

crime” law to imprisonment from ten to twenty years. The

United States Supreme Court held as a matter of federal

constitutional law that

[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.

[Apprendi, supra at 490.][27]

The Court explained that it does not matter that a

particular fact is designated as a “sentencing factor.”

Rather,

the relevant inquiry is one not of form, but of

effect—does the required finding expose the

defendant to a greater punishment than that

authorized by the jury’s guilty verdict? [Id. at

494.]

Before Apprendi, federal courts generally held that the

quantity of drugs was not an element of the federal drug

offenses. The prevailing approach appeared to be that the

trial court determined by a preponderance of the evidence the

“reasonably foreseeable” quantities of contraband that were

within the scope of the criminal activity that the defendant

jointly undertook. United States v Pagan, 196 F3d 884, 891

(CA 7, 1999). Quantity was a matter for the trial court at

sentencing. United States v Doggett, 230 F3d 160 (CA 5,

27
The four dissenting justices characterized the Court’s

opinion as “a watershed change in constitutional law.”

Apprendi, supra at 524 (O’Connor, J., dissenting).

22

2000).

However, the Federal Courts of Appeals have recently, and

repeatedly, held that, under Apprendi, drug quantity is an

element of a controlled substances offense, and that the

element must be submitted to the jury and proved beyond a

reasonable doubt if the quantity “increases the penalty for a

crime beyond the prescribed statutory maximum.” Doggett,

supra. Accord, United States v Fields, 242 F3d 393 (CA DC

2001)28 (drug quantity is an element of the offense where a

factual determination of the amount of drugs at issue may

result in a sentence that exceeds a maximum sentence

prescribed in the applicable statute); United States v Aguayo-

Delgado, 220 F3d 926 (CA 8, 2000).

As stated in Doggett, supra at 163:

Notwithstanding prior precedent of this

circuit and the Supreme Court that Congress did not

intend drug quantity to be an element of the crime

under 21 USC 841 and 846, we are constrained by

Apprendi to find in the opposite.

In United States v Page, 232 F3d 536 (CA 6, 2000), the

defendant was charged in federal court with conspiracy to

distribute cocaine. There was no mention of the quantity in

the indictment, and the jury made no findings regarding

quantity. On the basis of a trial court determination at

sentencing that more than 1.5 kilograms were attributable to

28
Clarified on rehearing, 2001 WL 640631 (June 12, 2001).

23
the defendant, the court imposed a thirty-year sentence. This

was ten more years than the prescribed statutory maximum. The

Court stated:

As instructed in Apprendi, a defendant may not

be exposed to a greater punishment than that

authorized by the jury’s guilty verdict. The jury

merely found that defendants conspired to

distribute and possess to distribute some

undetermined amount of crack cocaine. As such,

defendants cannot be exposed to the higher

penalties under § 841(b)(1)(A) or (B). Rather, the

maximum sentence that may be imposed on this count

is 20 years pursuant to § 841(b)(1)(C). [Id. at

543.]

Even though the issue had been forfeited, the Court granted

the defendant relief because the error resulted in imposition

of a sentence ten years longer than the sentence could have

been without the error. The Court said this affected Page’s

substantial rights and the fairness of the proceeding was

undermined since the error affected the outcome by

substantially increasing the sentence.29

IX. The delivery instructions

As to his delivery conviction, defendant claims the

29
In United States v Flowal, 234 F3d 932, 938 (CA 6,

2000), another Sixth Circuit case addressing Apprendi, the

court stated:

Because the amount of drugs at issue

determined the appropriate statutory punishment, a

jury should have determined the weight of drugs

beyond a reasonable doubt. . . . Accordingly, the

prosecution is only entitled to the punishment

provisions of the crime whose elements it has

proved to a jury beyond a reasonable doubt.

24
United States Supreme Court’s recent opinion in Apprendi,

supra, requires that the jury had to determine whether he knew

Blackstone intended to deliver at least 225 grams of cocaine

before he could properly be convicted of delivery of 225 grams

or more of cocaine. We disagree.

The trial court instructed the jury on the delivery

offense as follows:

The defendant is charged with the crime of

Illegally Delivering More Than 225 grams But Less

Than 650 grams of a Mixture Containing a Controlled

Substance, Cocaine. To prove this charge the

prosecutor must prove each of the following

elements, beyond a reasonable doubt. First, that

the defendant delivered a controlled substance.

Second, that the substance delivered was cocaine.

Third, that the defendant knew he was delivering

cocaine. Fourth, that the substance was in a

mixture that weighed 225 or more grams, but less

than 650 grams. [Emphasis added.]

This instruction complied with our determination that the

amount of a controlled substance is an element of a controlled

substance offense. Further, this instruction did not violate

Apprendi because the jury was instructed that it could not

find defendant guilty of the delivery charge unless the

prosecution proved beyond a reasonable doubt that the

substance delivered weighed 225 grams or more. The jury

necessarily found that at least 225 grams of cocaine were

delivered when it convicted defendant of the delivery charge.

Hence, defendant’s delivery conviction was proper.

25

 X. The conspiracy instructions

However, we find that a different conclusion is required

regarding the conspiracy instructions. Because of Justice and

Apprendi, the jury should have been instructed that it could

not find defendant guilty of conspiracy to deliver 225 grams

or more, but less than 650 grams of cocaine unless it found

defendant conspired to deliver, not just any amount of

cocaine, but at least 225 grams.

After initially telling the jury it “must take the law as

I give it to you,” the trial judge gave the following

instruction regarding the conspiracy offense:

The defendant is charged with the crime of

Conspiracy to Commit the Delivery of Cocaine.

Anyone who knowingly agrees with someone else to

commit the Delivery of Cocaine is guilty of

Conspiracy. To prove the defendant’s guilty the

prosecutor must prove each of the following

elements beyond a reasonable doubt. First, that

the defendant and someone else knowingly agreed to

commit Delivery of Cocaine. . . .

Notably absent from the conspiracy instruction was the fact

that the jury had to find that defendant had conspired, not

just to deliver some amount of cocaine, but at least 225

grams. This was a violation of Justice. This was also an

Apprendi error because one can only be certain that the jury

concluded that the conspiracy involved less than 50 grams.

While the amount eventually delivered may, in a given case, be

circumstantial evidence of the nature of agreement, it is

26

always necessary for the jury to be charged that it must

decide the nature of the agreement. The statutory maximum

penalty for conspiring to deliver less than fifty grams of

cocaine subjects a defendant to a maximum sentence of twenty

years, MCL 333.7401(2)(a)(iv). Yet, conviction of conspiring

to deliver at least 225 grams of cocaine exposed defendant to

a greater punishment of thirty years imprisonment. MCL

333.7401(2)(a)(ii). Thus, the failure to have the jury

determine that the conspiracy involved at least 225 grams of

cocaine exposed defendant to a thirty-year sentence, which is

in excess of the prescribed maximum twenty-year sentence

applicable for a conspiracy to deliver less than 50 grams of

cocaine.

XI. Forfeited Error

The defendant did not object to the erroneous conspiracy

jury instruction. Because of this, the error was forfeited.

The standard that must be met to support reversal of a

conviction for nonstructural constitutional error is the same

standard as for forfeited non constitutional error, that is,

the reviewing court “should reverse only when the defendant is

actually innocent or the error seriously affected the

fairness, integrity, or public reputation of judicial

proceedings independent of the defendant’s innocence.”

Carines, supra at 774; People v Duncan, 462 Mich 47, 57; 610

27

 30

NW2d 551 (2000).

Here, the trial court omitted an element from its

conspiracy instruction, i.e., the requirement that the

prosecution show that defendant specifically agreed to deliver

at least 225 or more grams of cocaine. We conclude that this

error seriously affected the fairness, integrity, or public

reputation of defendant’s trial.

Although defendant never argued that he may have

conspired to deliver less than 225 grams of cocaine, a

properly instructed jury may have so concluded. Given the

judge’s instructions, it is clear that the jury effectively,

and only, determined defendant had conspired to deliver less

than 50 grams of cocaine. We find it would seriously affect

the fairness and integrity of defendant’s trial to allow a

conviction of a more serious offense than the one determined

by the jury to stand. Accordingly, we reverse defendant’s

conspiracy to deliver 225 grams or more but less than 650

30
In Neder v United States, 527 US 1; 119 S Ct 1827; 144

L Ed 2d 35 (1999), the Supreme Court observed that most

constitutional errors are subject to harmless error analysis

and applied the harmless error rule to a trial court's failure

to instruct on an element of an offense. Apprendi did not

recognize or create a structural error that would require

reversal per se. United States v Swatzie, 228 F3d 1278, 1283

(CA 11, 2000). A constitutional error is harmless if “it is

clear beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error.” Neder,

supra, 119 S Ct 1830. See also Swatzie, at 1283 (“error in

Neder is in material respects indistinguishable from error

under Apprendi”).

28

grams of cocaine and remand for entry of a conviction

consistent with the jury verdict, i.e., conspiracy to deliver

less than 50 grams of cocaine conviction.31

XII. Response to the concurrence

It is important to point out, before responding to the

differences, where we agree with the concurrence. We both

agree that a delivery of a controlled substance does not

require, for a conviction, knowledge of the amount delivered.

We also agree that the conspiracy jury instructions were

flawed, requiring defendant be granted a new trial on the

conspiracy charge. Our principle difference with the

concurrence however, is whether a charge of conspiracy to

deliver cocaine in a given amount, standing alone, can be

proven without some evidence that the agreement was for the

delivery of that amount of cocaine.

To articulate this in the theoretical terms of the

criminal law, the concurrence would effectively convert the

specific intent crime of conspiracy into a general intent

crime. Consider the following: if there were a conspiracy to

deliver cocaine, with no evidence suggesting the amount of

31
However, if the prosecuting attorney is persuaded that

the ends of justice would be better served, upon notification

to the trial court before resentencing, defendant may be

required to face a new trial on the original conspiracy charge

with proper jury instructions. People v Jenkins, 395 Mich

440, 443; 236 NW2d 503 (1975).

29

cocaine, under the concurrence view the prosecution could

charge the conspirators with conspiracy to deliver more than

650 grams of cocaine if it later develops that this amount was

in fact delivered. Such view is in our opinion inconsistent

with the plain language of our conspiracy statute, which makes

conspiracy a specific intent crime.32 Indeed, it is just this

point—that conspiracy is a specific intent crime that animated

the Justice decision. Moreover, this conclusion is reinforced

by the United States Supreme Court’s decision in Apprendi.

The concurrence accuses the Justice majority, and now us,

of “imposing” or “adding” a knowledge requirement into

conspiracy charges. We disagree. The concurrence fails to

give full consideration to the fact that MCL 750.157a requires

that a conspirator must agree to commit “an offense.”33 This

32
In response to the concurrence’s claim that we are

somehow requiring the law to engage in “mind-reading,” slip

op, p 25, we simply note that we are only requiring the

prosecution to prove the elements of a specific intent crime,

and the law has always required some evidence from which the

jury might determine the defendant’s mens rea in such cases.

33
See, e.g., US v Piper, 35 F3d 611, 615 (CA 1, 1994) (The

government must prove that the defendant possessed both “an

intent to agree and an intent to effectuate the commission of

the substantive offense”) (emphasis added). "Establishing a

conspiracy requires evidence of specific intent to combine

with others to accomplish an illegal objective." People v

Blume, 443 Mich 476, 481; 505 NW2d 843 (1993). In the case at

bar, “the offense” was conspiracy to deliver at least 225

grams of cocaine, not conspiracy to deliver cocaine without

reference to an amount. Defendant could not conspire to

deliver at least 225 grams of cocaine unless he knew and

(continued...)

30

means we must determine what is “an offense.” If the

underlying offense is a mere act (like forgery), rather

than being one that is graduated to be more severe as the act

is more antisocial (such as delivery of controlled

substances), then to determine if one of the more severe

offenses has been proved, the element making it more severe

must be shown. Thus, if the conspiracy is to deliver cocaine,

unless the prosecution wants to settle for the lowest charge

of conspiracy to deliver less than fifty grams, the

prosecution must show the conspiracy involved either 50 to 224

grams or 225 to 649 grams or more than 650 grams. Because in

Michigan a conspiracy to deliver cocaine charge can be

established by a mere agreement34 to deliver cocaine that

encompasses all the elements of the crime conspired to be

committed, there need not be an act in furtherance of the

conspiracy for a defendant to be guilty of conspiring to

deliver some amount of cocaine. Thus, in a mere agreement

33
(...continued)

intended the delivery to be at least 225 grams. A person

cannot conspire with another to commit the offense of delivery

of at least 225 grams of cocaine unless he knows what he has

agreed to accomplish. Thus, we reject the claim that we have

“added” an element because a knowledge of the amount element

arises out of the language of the conspiracy statute itself.

34
This is in contrast with general federal conspiracy

statute, 18 USC 371, which does require an overt act in

furtherance of the conspiracy. Blume, supra at 507(Boyle, J.,

dissenting).

31

without an overt act conspiracy scenario, unless the

prosecutor can show that this “thought, or plan, crime”

included a knowledge of the amount conspired about, only a

conviction of less than fifty grams can be obtained. Said

another way, if the amount agreed to is not an element of a

conspiracy to deliver at least fifty grams of cocaine, how

will that element be established and who will make that

necessary fact finding? The answer to that question in the

federal system is that historically the judge made that

determination at sentencing. That ended with Apprendi,

however. After Apprendi the fact of the amount has to be

decided by the jury. As we are today determining to continue

the approach that Justice outlined, we are acting in harmony

with Apprendi.

What this all means is that while both the majority and

the concurrence agree with respect to a delivery charge that

the amount delivered may establish, without more, the element

of the amount, this approach will not always work in

conspiracy cases. The reason is that it is not necessary for

a deliver to take place in order for a conspiracy to delivery

charge to be brought,35 and, even when a delivery follows after

a conspiracy to deliver is formed, the conspiracy may have

35
Conspiracy is separate and distinct from the substantive

crime that is its object. People v Denio, supra at 712.

32

been for more or less than the amount that is actually

delivered.36 It is just this problem with which the

concurrence fails to grapple.

The concurrence contends that our reaffirmation of

Justice will have “serious[] detrimental consequences for

Michigan’s criminal justice jurisprudence,” slip op, p 2, and

that “it is likely that in some unknown, but probably quite

significant, number of drug prosecutions the prosecutor will

be unable to maintain a conviction that is above the statutory

maximum for the lowest level delivery offense.” Slip op, p

30. We cannot agree.

First, regardless of the effect, we must comply, as we

have attempted to do, with our conspiracy and delivery

statutes (not to mention Apprendi which is a constitutionally

based ruling). Moreover, regarding the prediction that there

will be unfortunate implications from continuing the rule of

Justice, we are unaware of any drop off in drug conspiracy

prosecutions as a result of Justice. It should also be noted

that our reaffirmation of Justice does not impose any

restraint on a prosecutor’s ability to obtain conspiracy to

deliver less than 50 gram convictions which carry a maximum

twenty year prison term that must be served consecutive to any

36
However, a prosecutor is free to argue that the evidence

proves the conspiracy was for the amount that was actually

delivered.

33

delivery conviction that may be obtained. MCL 333.7401(3).

This is clearly a significant disincentive to engage in such

conduct and a major tool in the law enforcement arsenal.37

XIII. Conclusion

A defendant may be properly convicted of delivery of 225

grams or more but less than 650 grams of cocaine on an aiding

and abetting theory, even if he does not know the amount of

drugs to be delivered, as long as the jury finds that at least

225 grams of cocaine were delivered.

Pursuant to Justice and Apprendi, a defendant charged

with conspiracy to deliver 225 grams or more but less than 650

grams of cocaine is entitled to have the jury instructed that

the defendant is guilty only if the prosecution has proved

beyond a reasonable doubt that defendant conspired to deliver,

not just some amount of cocaine, but at least 225 grams of

cocaine.

Accordingly, as explained above, defendant’s delivery

conviction is affirmed and the conspiracy to deliver at least

225 grams of cocaine is reversed. This matter is remanded to

37
The concurrence says it is for the Legislature and not

this Court to determine what is a significant disincentive for

particular conduct. Slip op, p 30, n 12. Surely, the

concurrence does not mean to suggest that it is improper for

this Court to remark the obvious. In any event, we certainly

believe our opinion today respects the Legislature’s

determinations of the increased disincentives for larger scale

drug trafficking.

34

allow the trial court to enter a conspiracy to deliver less

than 50 grams of cocaine conviction and sentencing on this

count (subject to the condition noted in footnote 31), and

also so the Court of Appeals ordered resentencing on the

delivery conviction may occur. Affirmed in part and reversed

in part.

CAVANAGH , KELLY , and YOUNG , JJ., concurred with TAYLOR , J.

35

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 115820

JIMMY MASS, a/k/a KOOL AID,

Defendant-Appellant.

____________________________________

MARKMAN, J. (concurring).

I agree with the majority’s analysis and conclusion that,

while the amount of a controlled substance is an element of a

delivery offense pursuant to MCL 333.7401, a defendant’s

knowledge of such amount is not. However, with regard to

whether knowledge of the amount of a controlled substance is

an element of a conspiracy to deliver offense, I respectfully

concur in the result only and write separately to express my

concern that the majority’s analysis, which concludes that

defendant’s knowledge of the amount is an element of a

conspiracy to deliver offense, broadens the plain language of

both the delivery statute, MCL 333.7401, and the conspiracy

statute, MCL 750.157a. Further, the majority’s conclusion, in

my judgment, has seriously detrimental consequences for

Michigan’s criminal justice jurisprudence.

I. PEOPLE V JUSTICE

In concluding that defendant’s knowledge of the amount is

an element to a conspiracy to deliver charge, the majority

first relies on People v Justice (After Remand), 454 Mich 334;

562 NW2d 652 (1997). As the majority correctly points out,

the Justice Court held that, in a conspiracy to possess with

intent to deliver charge, the prosecutor has the burden of

proving that “the defendant possessed the specific intent to

deliver the statutory minimum as charged . . . .” Id. at 349.

In my judgment, this holding misstated the law in that it

impermissibly broadened the plain language of both the

delivery statute, MCL 333.7401, and the conspiracy statute,

MCL 750.157a, by requiring a higher level of criminal intent

than set forth by those statutes. Instead, a careful review

of these statutes indicates that, in a conspiracy to deliver

charge, the prosecutor only has the burden to prove that

defendant had the intent to agree, and the specific intent to

commit the substantive offense, in essence, to deliver a

controlled substance.1 The majority correctly concludes that

1

Interestingly, in Justice, supra, this Court also

stated that, in order to bind the defendants over on a

conspiracy to possess with intent to deliver charge, the

prosecutor must show probable cause that the “coconspirators

shared the specific intent to accomplish the substantive

offenses charged.” Id. at 337 (emphasis added). However, as

will be discussed, below at 8, when the Justice Court applied

this general rule to the substantive offense, it somehow

(continued...)

2

knowledge of the amount of a controlled substance is not an

element of a delivery charge. However, I fail to understand

why it nevertheless concludes that, when a defendant is

charged with conspiracy to deliver, knowledge of the amount

suddenly becomes an element. If knowledge is not an element

of a delivery charge, how is it properly transformed into an

element of a conspiracy to deliver offense? In my judgment,

under the facts of this case, it cannot.

A. General Conspiracy Law

At common law, the crime of conspiracy was complete upon

formation of the unlawful agreement. Developments in the

law—Criminal conspiracy, 72 Harv L R 922, 945 (1959).

Michigan’s approach to conspiracy law mirrors that of the

common law. In Michigan, “[a]ny person who conspires together

with one or more persons to commit an offense prohibited by

law, or to commit a legal act in an illegal manner is guilty

of the crime of conspiracy . . . .” MCL 750.157a. This

common-law approach to the crime of conspiracy, however, is

not the approach followed in a majority of jurisdictions.

Today, most state conspiracy statutes, as well as the federal

government general conspiracy statute, 18 USC 371, require the

1
(...continued)

concluded that the “defendant [must] possess[] the specific

intent to deliver the statutory minimum as charged . . . .”

Id. at 349.

3

additional element of an overt act.2 An overt act is defined

as some act taken by one of the conspirators in furtherance of

the conspiracy. Marcus, Prosecution and Defense of Criminal

Conspiracy Cases, ch 2.08, at 2-71. The requirement of an

overt act serves two principal purposes. First, some believe

that an overt act requirement is desirable so that a

conspirator is afforded a reasonable opportunity to change his

mind and to withdraw from the conspiracy. “The provision of

the statute, that there must be an act done to effect the

object of the conspiracy, merely affords a locus poenitentice,

so that before the act [is] done either one or all of the

parties may abandon their design, and thus avoid the penalty

prescribed by the statute.” United States v Britton, 108 US

2

Developments in the Law, supra at 945-46. Compare

with the federal government’s subsequent specific-subject

conspiracy statutes that no longer have an overt act

requirement. See, e.g., the RICO conspiracy statute, 18 USC

1962(d), and the drug conspiracy statute, 21 USC 846.

Additionally, even despite the absence of an overt act

requirement in the drug conspiracy statute, federal drug

conspiracy prosecutions do not require that a defendant have

knowledge of the amount of the controlled substance. Instead,

as will be discussed in part III, all that is necessary for a

conviction on the substantive drug offense and the conspiracy

offense is merely proof of the amount of the controlled

substance. See, e.g., United States v Fields, ___ US App DC

___, ___; 242 F3d 393, 396 (2001), clarified on rehearing 2001

WL 640631 (June 12, 2001 (stating that “it is now clear that,

in drug cases under 21 USC 841 & 846, before a defendant can

be sentenced to any of the progressively higher statutory

maximums that are based on progressively higher quantities of

drugs specified in 841(b)(1)(A) or (B), the government must

state the drug type and quantity in the indictment, submit the

required evidence to the jury, and prove the relevant drug

quantity beyond a reasonable doubt”).

4
199, 204-05; 2 S Ct 531; 27 L Ed 698 (1883). In addition, the

overt act requirement serves to make certain that society does

not intervene prematurely, i.e., at a time when there is not

a sufficiently imminent danger that the object crime will be

attempted or completed. Marcus, supra at 2-74. “The function

of the overt act in a conspiracy prosecution is simply to

manifest that the conspiracy is at work” and is not a project

resting solely in the minds of the conspirators.3 2 LaFave &

Scott, Substantive Criminal Law, § 6.5, at 95. Thus, the

overt act requirement ensures that the agreement to commit an

unlawful objective has reached a sufficiently advanced stage

to warrant preventative action.

In practice, prosecutors rarely charge individuals with

a conspiracy until a substantial overt act has taken place.

Marcus, supra at 2-76.4 Indeed, it is frequently the case

that the completed substantive offense itself will be

identified as the overt act for purposes of the conspiracy

charge. Id. at 2-76, n 18. This is readily evident in

federal conspiracy cases that rely on the general conspiracy

statute. See, e.g., United States v Feola, 420 US 671; 95 S

3

Such a concern, in particular, appears to animate the

majority opinion and is a concern most relevant to what I will

describe as the “pure” Michigan conspiracy, one in which there

has been no overt act. See note 6.

4

As a practical matter, there is little evidence that

charging practices are any different on the part of Michigan

prosecutors, despite the absence of an overt act requirement.

5

Ct 1255; 43 L Ed 2d 541 (1975). Indeed, in the case before

us, the substantive offense itself was completed, in effect

constituting the overt act in furtherance of the unlawful

objective. As explained in the majority opinion, defendant

was convicted, on an aider and abettor theory, of delivery of

225 grams or more, but less than 650 grams, of a mixture

containing cocaine. Because an overt act was, in fact,

evident in this conspiracy, namely, the completed offense,

this case is indistinguishable from the universe of

conspiracies that are addressed by federal conspiracy law.

Thus, I believe that the principles applied in these cases are

highly relevant to the resolution of this case.5

5

Although Michigan law allows for the prosecution of

drug conspiracies in which the evidence shows that the

conspirators merely agreed to commit an offense prohibited by

law, MCL 750.157a, even absent an overt act, such a “pure”

Michigan conspiracy is, as we have noted, not before us.

Indeed, such “pure” conspiracies are rarely before us, given

the considerable problems of proof that these conspiracies

must surmount. This concurrence takes no position with regard

to the knowledge requirements of the “pure” conspiracy case,

which, as the majority points out, involves a variety of

unique concerns. What is before us is the far more

commonplace conspiracy in which there has been some overt act,

therefore rendering the conspiracy, and its elements,

indistinguishable from the typical federal conspiracy. It

seems altogether relevant, where conspirators in Michigan have

acted in furtherance of a conspiracy by taking overt acts

toward its ends, to look to federal law for whatever guidance

such law might provide in determining whether a conspirator

must have knowledge of the amount of the controlled substance

in which he or she is trafficking.

Here the substantive offense was, in fact, completed.

However, I am unaware of the law of any jurisdiction that

distinguishes between the conspiracy in which an overt act has

(continued...)

6

 B. People v Feola

In Feola, supra, the United States Supreme Court

considered an issue similar to that presented in this case.

There before the Court was whether the crime of conspiracy to

assault a federal drug officer required a criminal intent

greater than that required to convict for the substantive

offense. Specifically, the Court sought to determine whether

the defendant had to “know” that the intended victim was, in

fact, a federal officer.

In the years before Feola there had been a split among

the federal circuit courts. In a majority of the circuits,6

the courts held that, in a conspiracy to commit a federal

substantive offense, a defendant need not have knowledge of

the attendant circumstances embodied in the substantive

offense. For example, in United States v LeFaivre, 507 F2d

1288 (CA 4, 1974), the United States Court of Appeals for the

Fourth Circuit was asked to determine whether, in a conspiracy

to violate the travel act, 18 USC 1952, the defendant needed

to have knowledge of the use of interstate facilities in order

to be found guilty on the conspiracy charge. In answering

5
(...continued)

occurred, and that in which the underlying criminal offense

has been completed. Therefore, in my judgment, the law set

forth in this concurrence properly applies wherever there has

been an overt act in furtherance of a conspiracy, without

regard to whether the substantive offense has been completed.

6

Marcus, supra at 2-110.

7

this question in the negative, the Fourth Circuit reasoned

that “[w]hether or not certain conspirators actually

anticipate the use of facilities in interstate commerce when

they plan their unlawful activity of gambling, bribery, etc.,

add[s] absolutely nothing to the dangerousness of their scheme

to the public weal.” Id. at 1299; see also United States v

Polesti, 489 F2d 822 (CA 7, 1973); United States v Roselli,

432 F2d 879 (CA 9, 1970). Conversely, the Court of Appeals

for the Second Circuit rejected the majority view. In United

States v Cangiano, 491 F2d 906 (CA 2, 1974), the court

analyzed whether the defendant, in a conspiracy to transport

obscene materials in interstate commerce, must have knowledge

that the business would use interstate facilities. In

answering this question in the affirmative, the court stated

that, because specific intent is required to prove conspiracy,

“the proper charge requires that the element of actual

knowledge be found by the jury.” Id. at 910. The United

States Supreme Court sought to finally resolve the knowledge

issue in Feola, supra.7

7

The majority asserts that “Feola is neither directly

on point nor controlling.” Although I agree that Feola is not

dispositive, I nevertheless believe, as stated supra at 7,

that the principles applied in general federal conspiracy

cases are highly persuasive in our resolution of this type of

controversy. In particular, Feola is instructive because of

the substantial similarities of the substantive and conspiracy

statutes in these cases. Further, I am aware of no federal or

state case law, before or after Apprendi, which has deviated

from these federal conspiracy principles. See, e.g., State v

(continued...)

8

 1. The Substantive Offense

To resolve the question whether a defendant must know

that his intended victim is a federal officer in a conspiracy

to assault a federal officer, the Court first examined the

elements of the substantive offense, 18 USC 111. In pertinent

part, the substantive offense at issue in Feola stated:

Whoever forcibly assaults, resists, opposes,

impedes, intimidates, or interferes with any person

designated in section 1114 of this title while

engaged in or on account of the performance of his

official duties, shall be fined not more than

$5,000 or imprisoned not more than three years, or

both.

* * *

Among the persons “designated in section 1114” of

18 USC is “any officer or employee . . . of the

Bureau of Narcotics and Dangerous Drugs.” [Feola,

supra at 673, n 1.]

7
(...continued)

Aviles-Alvarez, 561 NW2d 523 (Minn App 1997)(holding that

“[w]hile the amount is an essential element of the crime, the

defendant’s knowledge of the amount is not an essential

element”).

The majority also asserts that, if the Feola Court held

that knowledge of the federal officer’s identity was an

element of the substantive offense, this would have led to a

dismissal of the federal charges, and that “[w]e do not face

such a situation” in the instant case. Whether or not the

charges would have been dismissed was of no relevance to the

Feola holding, nor is it of apparent relevance to the instant

holding. Instead, the Court in Feola, as this concurrence

does today, grounded its decision in the plain language of the

substantive and the conspiracy statutes, as well as in the

purposes underlying criminal conspiracy law.

9

After analyzing the language of the statute, the Court

concluded that § 111 “cannot be construed as embodying an

unexpressed requirement that an assailant be aware that his

victim is a federal officer.” Id. at 684; United States v

Lombardozzi, 335 F2d 414, 416 (CA 2, 1964). Instead, the

Court found that the statute required an “intent to assault,

not an intent to assault a federal officer.” Feola, supra at

684. The requirement that the victim be a federal officer was

merely an element of the substantive offense that need not be

specifically known to the defendant. Thus, to prove the

substantive offense, the government only needed to establish,

among other things, that the victim was a federal officer, not

that the defendant knew that the victim was a federal officer.

In the case before us, MCL 333.7401 provides in pertinent

part:

(1) [A] person shall not manufacture, create,

deliver, or possess with intent to manufacture,

create, or deliver a controlled substance . . . .

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1

or 2 that is a narcotic drug . . . and:

(i) Which is in an amount of 650 grams or more

of any mixture containing that substance is guilty

of a felony and shall be imprisoned for life

. . . .

(ii) Which is in an amount of 225 grams or

more, but less than 650 grams, . . . shall be

imprisoned for not less than 20 years nor more than

30 years.

(iii) Which is in an amount of 50 grams or

10
 more, but less than 225 grams, . . . shall be

imprisoned for not less than 10 years nor more than

20 years.

(iv) Which is an amount less than 50 grams

. . . shall be imprisoned for not less than 1 year

nor more than 20 years . . . .

A review of this statute indicates that a defendant must

have the intent to deliver a controlled substance, not an

intent to deliver an amount that falls within a particular

statutory range. Subsection (1) clearly states that “a person

shall not . . . deliver . . . a controlled substance.” Such

an interpretation of this language does not mean that the

amount is not an element of the offense. It is. Rather, such

an interpretation simply means that a defendant need not

specifically know the amount in order to be convicted of this

offense. This conclusion, in my judgment, is in accord with

the majority’s determination that, while the amount of a

controlled substance is an element to a delivery charge,

knowledge of the amount is not.

2. The Conspiracy Statute

The Feola Court then turned to “consider whether the rule

should be different where persons conspire to commit” the

substantive offense at hand. Id. at 686. With regard to the

conspiracy offense, the defendant specifically urged the Court

to conclude that

the Government must show a degree of criminal

intent in the conspiracy count greater than is

necessary to convict for the substantive offense;

he urges that even though it is not necessary to

11

 show that he was aware of the official identity of

his assaulted victims in order to find him guilty

of assaulting federal officers, . . . the

Government nonetheless must show that he was aware

that his intended victims were undercover agents,

if it is successfully to prosecute him for

conspiracy to assault federal agents. Id. at 686­
87.

To resolve whether the defendant was correct in his analysis,

the Court examined the text of the conspiracy statute. It

explained that, if a knowledge requirement exists, it would

have to be found within the text of the conspiracy statute, 18

USC 371.

The conspiracy statute at issue in Feola made it unlawful

to “conspire . . . to commit any offense against the United

States.” Feola, at 687. On the basis of this language, the

Court stated that “[a] natural reading of these words would be

that since one can violate a criminal statute simply by

engaging in the forbidden conduct, a conspiracy to commit that

offense is nothing more than an agreement to engage in the

prohibited conduct.” Id. In other words, the Court found

that “there is nothing on the face of the conspiracy statute

that would seem to require that those agreeing to the assault

have a greater degree of knowledge.” Id. at 687.

Similar to the federal conspiracy statute, Michigan’s

conspiracy statute prohibits an individual from “conspir[ing]

. . . to commit an offense prohibited by law . . . .” MCL

750.157a. A review of the language of the conspiracy statute

reveals that a conspiracy to commit an offense prohibited by

12

law requires nothing more than: 1) an intent to agree; and 2)

an intent to engage in the prohibited conduct. See also

People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974). In

Justice, this Court apparently agreed with this general rule.

As noted previously, the Justice Court stated that “in order

to bind defendant over on the two counts of conspiracy there

must be probable cause to believe that defendant and the

coconspirators shared the specific intent to accomplish the

substantive offenses charged.” Justice, supra, at 337

(emphasis added); see also id. at 345-347. The Justice Court

accordingly proceeded to set forth the substantive offense at

issue, MCL 333.7401. Then, without analysis of the

substantive offense, Justice inexplicably concluded that the

“defendant [must] possess[] the specific intent to deliver the

statutory minimum as charged . . . .” Id. at 349. Such a

conclusion, in my judgment, was erroneous because, as noted

previously, the language of MCL 333.7401, does not require

that a defendant harbor the intent to deliver an amount that

falls within a particular statutory range.8

8

The majority asserts that I “fail[] to appreciate the

fact that in Michigan, pursuant to our statute, the amount of

a controlled substance is part of a delivery offense . . . .”

See slip op at 12. I respectfully disagree. As stated supra

at 12, I believe that the relevant element of the delivery

offense concerns the amount, not knowledge of the amount, of

a controlled substance, and that this former element must be

proved beyond a reasonable doubt by the prosecutor.

13

 The majority asserts that, by concluding that a defendant

need not possess the intent to deliver the statutory minimum

as charged, I am “convert[ing]” a specific intent crime into

a general intent crime. Respectfully, I disagree. Again,

conspiracy involves: i) an intent to agree, and ii) an intent

to engage in prohibited conduct. “One of these intents may

exist without the other.” LaFave, supra at 76. Clearly, two

or more individuals may intend to agree on some matter without

also having an intent to engage in prohibited conduct. For

example, A and B agree to burn certain property and A knows

the property belongs to C, but B believes that the property

belongs to A himself. In this scenario, there is no intent to

engage in prohibited conduct on B’s part because B believes

that the property belongs to A. In the instant case, however,

the conspirators clearly had the intent to agree and the

additional intent to engage in prohibited conduct—the delivery

of a controlled substance. Thus, as in Feola, the specific

intent attributes of a conspiracy remain intact.

3. Rejecting the Second Circuit Approach

Next, the Feola Court turned to its own case law to

determine whether a defendant was ever required to possess

specific knowledge of the attendant circumstances when

charged with a conspiracy to commit a federal offense. The

Supreme Court identified prior case law that repudiated such

a position. Citing In re Coy, 127 US 731, 8 S Ct 1263, 32 L

14

Ed 274 (1888), and United States v Freed, 401 US 601, 91 S Ct

1112, 28 L Ed 2d 356 (1971), the Feola Court stated that

historically it has “declined to require a greater degree of

intent for conspiratorial responsibility than for

responsibility for the underlying substantive offense.” Id.

at 688.

The Court then turned to United States v Crimmins, 123

F2d 271 (CA 2, 1971), the first case that set forth the

principle that the government must prove knowledge of the

attendant circumstances embodied in the substantive offense in

order for a defendant to be liable when charged with a

conspiracy. In Crimmins, supra, the defendant was charged

with conspiracy to receive stolen bonds that had been

transported in interstate commerce. 18 USC 371; 18 USC 415.

The Second Circuit held, that in order to be convicted of

conspiracy to commit the substantive offense, it was necessary

that the defendant actually know that the bonds crossed

interstate lines. Crimmins, supra at 273-274. To accept the

view that a defendant need not have knowledge of the attendant

circumstances would, according to the Crimmins court, “enlarge

their agreement beyond its terms as they understood them.”

Feola, supra at 689, citing Crimmins, supra. To emphasize its

conclusion, the Crimmins court set forth what has become the

well-known traffic light analogy.

While one may, for instance, be guilty of

running past a traffic light of whose existence one

15
 is ignorant, one cannot be guilty of conspiring to

run past such a light, for one cannot agree to run

past a light unless one supposes that there is a

light to run past. [Id. at 273.]

Although the Feola Court found this analogy “seductive,”

it concluded that it was clearly “bad law.” Id. at 689-690.

The Court asserted that the traffic light analogy was relevant

only for the category of offenses for which no mental state

was required regarding any of the elements. Id. at 690; see

also LaFave, supra at 82. These cases must be distinguished

from offenses, such as 18 USC 111, that “require a certain

mental state as to some elements of the crime but not as to

others.” LaFave, supra; Feola, supra at 691-92; see also

United States v Franklin, 586 F2d 560 (CA 5, 1978); United

States v Beil, 577 F2d 1313 (CA 5, 1978); State v Brown, 94

Wash App 327; 972 P2d 112 (1999).

Indeed, like the substantive offense in Feola, MCL

333.7401 is an offense that requires a certain mental state

regarding some elements of the crime, but not others. A

defendant need only have the intent to deliver a controlled

substance, MCL 333.7401(1), and then the substance must be in

a mixture or in an amount that falls within one of the

enumerated ranges, MCL 333.7401(2).

The majority ascribes significance to the fact that the

instant offense is one that is “graduated to be more severe as

the act is more antisocial . . . .” In the majority’s view,

the element making the offense more severe must be shown to be

16

known by the defendant. I do not see the point. In Feola,

the offense at issue was similarly “graduated.” See also

Franklin, Beil, and Brown, supra. The element that did not

require the mental state in Feola was the same element that

increased the severity of the crime. The defendant did not

need to be aware of the element that ultimately determined the

severity of the crime. Instead, the prosecutor only needed to

prove the existence of particular facts concerning the federal

officer’s identity and to connect these facts to the

conspiracy. Similarly, in this case, where defendant has

conspired to deliver a controlled substance and where there

has been an act in furtherance of this objective, he need not

have been aware that the amount of the controlled substance

fell within a particular statutory range in order to be

convicted of the more severe crime. Instead, all that is

necessary is that the prosecutor prove beyond a reasonable

doubt that the amount fell within a particular statutory

range, and connect this amount to the conspiracy. Because

neither the plain language of MCL 333.7401 nor MCL 750.157a

require that a defendant specifically know the amount of

controlled substance, the majority is impermissibly adding an

element to two otherwise straightforward criminal statutes.

In re MCI, 460 Mich 396, 414-415; 596 NW2d 164 (1999).9

9

Interestingly, the majority uses a similar analysis to

Feola in its discussion concerning the sufficiency of evidence

(continued...)

17

 4. The Purposes Underlying Conspiracy Law

Finally, the Feola Court emphasized that requiring

knowledge of the attendant circumstances would be wholly

inconsistent with the purposes of the conspiracy statute. Id.

at 693. The Court, first, opined that conspiracy law serves

as a means to protect society from the dangers incident to

group criminal activity. Id.; see also LaFave, supra at 68.

Given the level of criminal intent necessary to

sustain conviction for the substantive offense, the

act of agreement to commit the crime is no less

opprobrious and no less dangerous because of the

absence of knowledge of a fact unnecessary to the

formation of criminal intent. Indeed, unless

imposition of an “antifederal” knowledge requirement

9
(...continued)

necessary for defendant’s aiding and abetting conviction.

Defendant argued that, under the aiding and abetting statute,

the prosecutor must show sufficient evidence that defendant

“intended the crime of delivery of at least 225 grams of

cocaine or had knowledge [that coconspirator] Blackstone

intended to deliver at least 225 grams of cocaine at the time

he aided the delivery,” not merely sufficient evidence that

defendant intended a cocaine delivery. Slip op at 14. After

reviewing the statute, the majority holds that the requisite

intent for a conviction under the aiding and abetting statute

“is that necessary to be convicted of the crime as principle.”

Id. Applying this standard, the majority finds that “it was

enough for the prosecutor to show that Mass, as with the

principal offender Blackstone, knowingly delivered or aided in

the delivery of some amount of cocaine, as long as the jury

later determined that at least 225 grams of cocaine were in

fact delivered. The prosecutor simply did not need to show

that defendant knew that the amount of cocaine involved in the

instant delivery was at least 225 grams to secure . . . Mass’

conviction for aiding and abetting in the delivery of at least

225 but less than 650 grams of cocaine. Conviction of a crime

as an aider and abettor does not require a higher level of

intent with regard to the commission of the crime than that

required for conviction as a principal.” Id. at 14-15. In my

judgment, the same reasoning holds true for conviction on a

conspiracy to deliver offense.

18

 serves social purposes external to the law of

conspiracy of which we are unaware, its imposition

here would serve only to make it more difficult to

obtain convictions on charges of conspiracy, a

policy with no apparent purpose. [Feola, at 693­
694.]

Similarly, Michigan’s conspiracy statute serves as a

means of addressing the special dangers associated with group

activity.

“[C]ollective criminal agreement-partnership in

crime-presents a greater potential threat to the

public than individual delicts. Concerted action

both increases the likelihood that the criminal

object will be successfully attained and decreases

the probability that the individuals involved will

depart from their path of criminality. Group

association for criminal purposes often, if not

normally, makes possible the attainment of ends more

complex than those which one criminal could

accomplish. Nor is the danger of a conspiratorial

group limited to the particular end toward which it

has embarked. Combination in crime makes more

likely the commission of crimes unrelated to the

original purpose for which the group was formed. In

sum, the danger which a conspiracy generates is not

confined to the substantive offense which is the

immediate aim of the enterprise.” [People v Denio,

454 Mich 691, 704; 564 NW 2d 13 (1997), quoting

People v Carter, 415 Mich 558, 570; 330 NW 2d 314

(1982).]

Because Michigan conspiracy law also seeks to protect society

from the danger of concerted action, it is not relevant

whether each defendant has knowledge that the amount of the

controlled substance fell within a particular statutory range.

The agreement to commit a drug offense, and an act in

furtherance of that agreement, “is no less opprobrious and no

less dangerous because of the absence of knowledge of a fact

unnecessary to the formation of criminal intent.” Feola,

19

supra, at 693. A participant in a conspiracy knows that

delivery of any amount of drugs is unlawful. Imposition of a

knowledge requirement would only serve, without apparent

rationale, to make it more difficult to obtain conspiracy

convictions that are above the levels of punishment for the

lowest level delivery offense.

Further, the Feola Court observed that conspiracy law

also serves as a means of intervention against individuals who

manifest a disposition to criminality. Feola, supra at 694;

see also LaFave, supra at 68. “[A]lthough the law generally

makes criminal only antisocial conduct, at some point in the

continuum between preparation and consummation, the likelihood

of a commission of an act is sufficiently great” to justify

intervention. Feola, supra at 694. At this point “[c]riminal

intent has crystallized, and the likelihood of actual,

fulfilled commission warrants preventive action.” Id.

Because of this, the Supreme Court again did not see how the

imposition of a knowledge element would relate rationally to

this purpose. “Given the level of intent needed to carry out

the substantive offense, we fail to see how the agreement is

any less blameworthy or constitutes less of a danger to

society solely because the participants are unaware which body

of law they intend to violate.” Id. Thus, the Court stated

that imposition of a knowledge requirement would render it

more difficult to serve the purpose behind the law of

20

 conspiracy without serving any other apparent social policy.

The Court concluded its analysis by expressly rejecting a

result that would, in the context of a conspiracy to commit a

federal offense, require that a defendant have knowledge of

the attendant circumstances, instead holding that “where

knowledge of the facts giving rise to federal jurisdiction is

not necessary for conviction of a substantive offense

embodying a mens rea requirement, such knowledge is equally

irrelevant to questions of responsibility for conspiracy to

commit that offense.” Id. at 696.

As in Feola, conspiracy to deliver a controlled substance,

and an act in furtherance of this objective, entail a sufficient

threat to the social order to be sanctionable in the manner

determined by the Legislature.10 The fact that a conspirator is

unaware that the amount of the controlled substance fell within

a particular statutory range does not make the agreement any

less threatening, or the conduct of the conspirator any less

blameworthy. It is enough that defendant or a coconspirator

acted in furtherance of their agreement to deliver a controlled

substance.

Further, it is important to highlight that the agreement

necessary in a conspiracy is not akin to the “meeting of the

10

Indeed, in this case, the offense was carried out to

completion, although any overt act would have been legally

sufficient to demonstrate the imminence, or the “clear and

present” nature, of the threat to the social order.

21
minds” premises of traditional contract law. LaFave, supra at

71. It is not necessary that each conspirator have knowledge

of each of the details of the object offense. Id.; People v

Cooper, 326 Mich 514, 521; 40 NW2d 708 (1950) (recognizing that

“[i]t is not necessary to a conviction for conspiracy that each

defendant have knowledge of all its ramifications”). A mere

tacit understanding about the object offense will suffice.

LaFave, supra at 71. In other words, all that is needed is a

generalized agreement to engage in an unlawful objective.

Marcus, supra at 2-4. There need not be a specific agreement

to commit a 200-gram, a 400-gram or a 600-gram conspiracy, nor

will the law engage in mind reading in an effort to determine

the innermost strategic objectives of each of the individual

coconspirators and punish a single conspiracy with multiple

levels of punishment depending upon the outcome of such mind

reading. The need only for generalized agreement is premised

on the fact that conspiracies are inherently clandestine in

nature. Because of this secret nature, individual

coconspirators may have relatively little knowledge of the

conduct or actions of even their own coconspirators; indeed,

efforts may frequently be undertaken to limit the dissemination

of information concerning strategies and tactics on a “need to

know” basis.

Thus, in a conspiracy to deliver case, such as the instant

one, all that the prosecutor would need to show regarding a

22

defendant’s intent is a generalized agreement to deliver a

controlled substance, i.e., the unlawful objective. That the

amount falls within a particular statutory range is the sort of

detail that is simply not required to be known by a defendant

who enters into the criminal agreement that constitutes the

conspiracy. Thus, because the crime of conspiracy focuses on

the formation of criminal intent in pursuit of a substantive

criminal offense, and because a defendant need not know each of

the attendant details of the conspiracy, imposition of a

knowledge requirement, a requirement not within the plain

language of the conspiracy (or delivery) statute, would

undermine the early intervention premises of conspiracy law.

In conclusion, I believe the Justice Court impermissibly

expanded the plain language of both the delivery statute and the

conspiracy statute to require a higher level of culpability on

the part of a defendant than that embodied in those statutes.

There is nothing within the text of either of these statutes

that would compel a finding that a defendant must have knowledge

of the amount of the controlled substance in a conspiracy to

deliver charge. Thus, I respectfully disagree with the

majority’s statement that “Justice properly concluded that

knowledge of the amount of a controlled substance is an element

of the crime of conspiracy to deliver a controlled substance and

that this holding is consistent with a correct interpretation

23

of our controlled substance and conspiracy statutes.” Slip op,

at 20.

III. APPRENDI V NEW JERSEY

In concluding that knowledge of the amount is an element

of a conspiracy to deliver charge, the majority also relies on

Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d

435 (2000). As the majority states, Apprendi holds that

[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt. Id. at

2362-2363.

I respectfully disagree that this holding “provides independent

support for [the majority’s] conclusion.” Slip op at 22. The

clear language of the Apprendi holding does not impose a

knowledge requirement. Instead, Apprendi stands for no more

than what the stated rule declares—it only proscribes the use

of nonjury factual determinations to increase a defendant’s

sentence beyond the statutory maximum for the lowest level

delivery offense enacted for the offense charged. In this case,

the fact or circumstance that would increase the defendant’s

sentence beyond the statutory maximum is the amount of the

controlled substance, not knowledge of the amount. Thus,

pursuant to Apprendi, the prosecutor in cases of this type must

prove the amount of the substance beyond a reasonable doubt.

Further, the majority cites several federal cases that were

decided after Apprendi to justify its holding that knowledge of

24

the amount is an element to a conspiracy to delivery charge.

However, not one of the cited cases stands for the proposition

that defendant must have knowledge of the amount in order to be

convicted of either the substantive narcotics offense or

conspiracy to commit the substantive offense. Rather, all that

is necessary is proof of the amount. See United States v

Doggett, 230 F3d 160, 164-165 (CA 5, 2000) (holding that “if the

government seeks enhanced penalties based on the amount of drugs

. . . the quantity must be stated in the indictment and

submitted to a jury for a finding of proof beyond a reasonable

doubt”); United States v Page, 232 F3d 536, 543 (CA 6 2000)

(holding that the jury needed to find a specific quantity before

this defendant could be imprisoned to a term exceeding the 20­

year statutory maximum); United States v Fields, ___ US App DC

___, ___; 242 F3d 393, 396 (2001), clarified on rehearing 2001

WL 640631 (June 12, 2001) (holding that “the Government must

state the drug type and quantity in the indictment, submit the

required evidence to the jury, and prove the relevant drug

quantity beyond a reasonable doubt” before defendant can be

sentenced to any of the progressively higher maximum penalties).

Additionally, there appears to be no state case law addressing

this issue subsequent to the Apprendi holding. Thus, the

majority’s opinion is the first apparently to rely on Apprendi

in order to set forth this “knowledge of the amount”

requirement.

25

 Also, the reaffirming of Justice, will continue to

severely affect the manner in which the prosecutors of this

state proceed on these types of offenses. By holding that

knowledge of the amount of the controlled substance is an

element of a conspiracy to deliver charge, prosecutors are

burdened with the additional hurdle of having to prove a

defendant’s specific knowledge of the amount of a controlled

substance—a hurdle, whatever its substantive merits, that the

Legislature did not prescribe in the text of the applicable

statutes. In light of this additional hurdle, it is likely that

in some unknown, but probably quite significant, number of drug

prosecutions the prosecutor will be unable to maintain a

conviction that is above the statutory maximum for the lowest

level delivery offense. This is because the inherent nature of

these crimes involve agreements between individuals to deliver

“a lot of,” “some,” or “all that you can get” of a controlled

substance. Thus, because a defendant’s knowledge that the

amount of the controlled substance fell within a particular

statutory range will be lacking in many instances, prosecutors,

under these circumstances, will only be able to secure a

conviction on the lowest delivery amount, in essence, for an

amount less than 50 grams.11 As a result, the sanctions

11

The majority believes that maintaining convictions for

conspiracy to deliver less than 50 grams of a controlled

substance affords a “significant disincentive” to engage in

drug trafficking involving larger amounts. Slip op at 36.

(continued...)

26
determined to be appropriate for drug crimes by the Legislature

will not be carried out. In my judgment, the Legislature

intended what it said in MCL 333.7401, namely, that a defendant

is responsible for whatever quantity of drugs he delivers

regardless of whether he knew that the amount fell within a

particular statutory quantity range.

IV. APPLICATION

When applying the plain language of the delivery and

conspiracy statutes, as well as the holding of Apprendi, supra,

to the facts of this case, I believe that error occurred below

because the prosecutor failed to prove the quantity (that the

substance weighed 225 or more grams, but less than 650 grams)

beyond a reasonable doubt in the context of the conspiracy to

deliver charge.

In pertinent part, the jury instructions stated:

The defendant is charged with the crime of

Conspiracy to Commit the Delivery of Cocaine. Anyone

who knowingly agrees with someone else to commit the

Delivery of Cocaine is guilty of Conspiracy. To

prove the defendant’s guilt the prosecutor must prove

each of the following elements beyond a reasonable

doubt. First, that the defendant and someone else

knowingly agreed to commit Delivery of Cocaine.

Second, that the defendant specifically intended to

commit or help commit the crime. Third, that this

agreement took place, or continued during the period

11
(...continued)

However, it is not this Court’s role to determine what is or

is not a “significant disincentive” for particular conduct;

that is the Legislature’s role. And the Legislature has

determined in MCL 333.7401 that the appropriate disincentives

for larger-scale drug trafficking are those set forth in that

statute. This Court’s duty is to respect this determination.

27

 from March Nineteenth to March Twenty-Seventh,

Nineteen Ninety-Six. . . . To find the defendant

guilty of conspiracy, you must be satisfied, beyond

a reasonable doubt, that there was an agreement to

deliver–to deliver cocaine.

These instructions clearly omitted any reference to a

particular amount of a controlled substance. Yet, on the basis

of these instructions, defendant was convicted of conspiracy to

deliver more than 225 grams, but less than 650 grams, of

cocaine. Conviction on this amount exposed defendant to a term

of imprisonment of twenty to thirty years, significantly above

the one-to-twenty-year term provided for a conviction on an

amount that is less than 50 grams. MCL 333.7401. The jury

instructions should have set forth the requisite substance

amount in a fashion similar to that set forth to prove the

substantive offense, in essence, “that the substance was in a

mixture that weighed 225 or more grams, but less than 650

grams.” Slip op at 27. Absent an express jury finding on the

substance amount, we cannot be certain that the jury found that

defendant conspired to deliver an amount of drugs greater than

50 grams. From defendant’s guilty verdict, one can only

conclude with assurance that the jury concluded that defendant

delivered some amount of drugs. And pursuant to Michigan law

delivery of any amount of drugs is a crime. MCL 333.7401(2)(iv).

Accordingly, as with the majority, I would reverse defendant’s

conspiracy to deliver 225 grams or more, but less than 650

grams, of cocaine and remand for entry of a conviction

28

consistent with the jury verdict, in essence, conspiracy to

deliver less than 50 grams of cocaine.

V. CONCLUSION

In summary, I believe that the majority’s conclusion that

knowledge of the amount is a necessary element in a conspiracy

to deliver charge is inconsistent with the plain language of

both the delivery statute and the conspiracy statute. Where

there is an agreement to commit the unlawful act of delivery of

a controlled substance and some act in furtherance of that

agreement,12 it is impermissible to require an element of a crime

that goes beyond this language. Second, the United States

Supreme Court decision in Apprendi, supra, does not provide

support for imposition of the knowledge requirement. Instead,

the Apprendi holding establishes the amount of the controlled

substance as an element of the offense if the amount operates

to increase the penalty for the crime beyond the prescribed

statutory maximum. Third, the majority’s holding will severely

affect the manner in which the prosecutors of this state

proceed on these types of crimes. By holding that knowledge of

the quantity of a controlled substance is an element to a

12

Again, although Michigan statutory law allows for the

prosecution of drug conspiracies where the evidence shows that

the conspirators have merely agreed to commit an offense

prohibited by law, without an overt act, MCL 750.157a, this is

not the case before us–indeed, it is rarely the case before

us-and this concurrence takes no position with regard to the

need for a conspirator to have knowledge of the specific

amount of drugs in such “pure” Michigan conspiracies.

29

conspiracy to deliver charge, prosecutors, in some uncertain

number of cases, will be unable, for little apparent reason, to

maintain a conviction on this offense that is above the

statutory maximum for the lowest level delivery offense because

evidence concerning a defendant’s knowledge in a great number

of cases will be lacking. This is not, in my judgment, what the

Legislature intended. Instead, the Legislature intended what

it said—that a defendant who conspires to deliver is responsible

for whatever quantity of drugs he agrees to deliver regardless

of whether he knew that the amount fell within a particular

statutory quantity range.

CORRIGAN , C.J., and WEAVER , J., concurred with MARKMAN , J.

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