UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50521
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BILLY RAY FITZGERALD,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
July 12, 1996
Before JOLLY, DUHÉ, and STEWART, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant, Billy Ray Fitzgerald, was convicted and sentenced
for possession of over five grams of cocaine base in violation of
21 U.S.C. § 844(a). On appeal, Fitzgerald challenges both the
district court’s refusal to give a jury instruction on the lesser
included offense of possession of a controlled substance, and the
sufficiency of the indictment. Alternatively, Fitzgerald
challenges the calculation of his sentence. We affirm.
Police officers responded to a report of an assault that
culminated in the chase and ultimate arrest of Fitzgerald. One of
the police officers chasing Fitzgerald saw him drop a light colored
object that turned out to be a medicine bottle containing 63
yellowish rocks. Tests performed on a five rock random sample
identified the rocks as cocaine base or crack. Fitzgerald denied
possessing the bottle and its contents. A jury found him guilty.
Fitzgerald argues that the district court erroneously denied
his requested jury instruction on the lesser included offense of
simple possession of a controlled substance in violation of 21
U.S.C. § 844(a). A defendant is entitled to a jury instruction on
a lesser included offense if (1) the elements of the lesser offense
are a subset of the elements of the charged offense (statutory
elements test), and (2) the evidence at trial permits a rational
jury to find the defendant guilty of the lesser offense yet acquit
him of the greater. Fed. R. Crim. P. 31(c); United States v.
Lucien, 61 F.3d 366, 372 (5th Cir. 1995); United States v. Browner,
889 F.2d 549, 550-551 (5th Cir. 1989). The Government concedes
that the statutory elements test is satisfied under the reasoning
and analysis of United States v. Deisch, 20 F.3d 139 (5th Cir.
1994).
We must decide whether the district court abused its
discretion in determining that a rational jury could not convict on
the lesser offense and acquit on the greater offense. Fitzgerald
argues that the testimony of John Mills, a chemist employed by the
Department of Public Safety who tested some rocks contained in the
bottle, was equivocal and that a rational jury could have found
that the substance was cocaine hydrochloride, the powder form or
salt of cocaine, as opposed to cocaine base. A complete reading of
Mr. Mills testimony convinces us that no rational jury could
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conclude that the substance tested was cocaine hydrochloride
instead of cocaine base. The district court did not abuse its
discretion.
Fitzgerald next challenges, for the first time on appeal, the
sufficiency of the indictment arguing that it did not allege every
element of the offense of conviction. To be sufficient, an
indictment must allege every element of the crime charged. United
States v. Alford, 999 F.2d 818, 823 (5th Cir. 1993). We review the
sufficiency of an indictment de novo. Id.; United States v. West,
22 F.3d 586 (5th Cir.), cert denied, 115 S.Ct. 584 (1994). An
objection to the indictment based on failure to charge an offense
can be made at any time. Fed. R. Crim. P. 12(b)(2). But, if
raised for the first time on appeal and the appellant does not
assert prejudice, that is, if he had notice of the crime of which
he stood accused, the indictment is to be read with maximum
liberality finding it sufficient unless it is so defective that by
any reasonable construction, it fails to charge the offense for
which the defendant is convicted.1 Alford, 999 F.2d at 823; United
States v. Chaney, 964 F.2d 437 (5th Cir. 1992); United States v.
1
Questions regarding the applicability of the plain error
standard to the sufficiency challenge were raised at oral argument.
While several other circuits have applied the plain error standard
to first-time, appellate challenges to the sufficiency of the
indictment for failure to charge all elements of a crime, we have
found no Fifth Circuit cases that do so. See United States v.
Perez, 67 F.3d 1371 (9th Cir. 1995), reh’g en banc granted, 77 F.3d
1210 (1996) and United States v. Murphy, 762 F.2d 1151 (1st Cir.
1985). We conclude that the application of the plain error
standard is inappropriate when the aggrieved party may object to
the error at any time. Plain error applies only to forfeited
errors. United States v. Olano, 507 U.S. 725 (1993).
3
Wilson, 884 F.2d 174 (5th Cir. 1989). Practical, not technical,
considerations govern our inquiry. Chaney, 964 F.2d at 446.
Fitzgerald was tried on a one-count, superseding indictment
which charged:
COUNT ONE
(21 U.S.C. § 844)2
On or about December 4, 1994, in Bastrop County, in
the Western District of Texas, the Defendant,
BILLY RAY FITZGERALD
knowingly and intentionally did possess cocaine base, a
Schedule II Controlled Substance in violation of Title
21, United States Code, Section 844.
The caption of the indictment states “Violation: 21 U.S.C. § 844 -
Possession of over 5 grams cocaine base.” The jury found
Fitzgerald guilty of Count One of the indictment. The Judgment
described the offense as “POSSESSION OF OVER 5 GRAMS COCAINE BASE”
and accordingly, imposed a sentence of 210 months imprisonment.
Possession of a controlled substance under § 844(a) is a
misdemeanor unless the controlled substance is cocaine base and
over five grams is possessed, in which case the offense is a
2
Section 844 states in part:
It shall be unlawful for any person knowingly or intentionally to
possess a controlled substance . . . Any person who violates this
subsection may be sentenced to a term of imprisonment of not more
than 1 year . . . Notwithstanding the preceding sentence, a person
convicted under this subsection for the possession of a mixture or
substance which contains cocaine base shall be imprisoned not less
than five years and not more than 20 years, and fined a minimum of
$1,000, if the conviction is a first conviction under this
subsection and the amount of the mixture or substance exceeds five
grams. . .
4
felony.3 Fitzgerald argues that he was convicted and sentenced for
the felony offense, possession of over five grams of cocaine base,
but was not indicted for that offense because the indictment does
not specify the quantity of cocaine base. Appellant reasons that
the quantity is an essential element of felony possession and must
be charged by indictment. Whether the quantity of cocaine base is
an essential element of felony possession of cocaine base is a
question of first impression in this circuit. However, we are
provided strong guidance by United States v. Deisch, 20 F.3d 139
(5th Cir. 1994) and hold that quantity is an essential element of
felony possession of cocaine base under the third sentence of §
844(a).4
In Deisch, a panel of this Court decided whether possession of
cocaine base under 21 U.S.C. § 844(a) was a lesser included offense
of possession with intent to distribute cocaine base under 21
U.S.C. § 841(a)(1). Before reaching the final result, the Court
concluded that the identity of the substance is an element of the
offense based on the protections of the Indictment Clause of the
Fifth Amendment. Deisch, 20 F.3d at 144-145. Any federal offense
punishable by imprisonment for more than one year is an offense for
which the Fifth Amendment requires a grand jury indictment. Id.
3
The statute also prescribes other circumstances not at issue
here which result in felony sentences as well.
4
Deisch also holds that the third sentence of § 844(a)
regarding possession of over five grams of cocaine base is a
separate offense from the offense of possession of a controlled
substance in the first sentence of § 844(a). Deisch, 20 F.3d at
148.
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While an indictment need not allege mere sentencing facts, any
attribute that makes an otherwise misdemeanor offense a felony must
be alleged in the indictment. Id. at 146-147. Because a quantity
of cocaine base in excess of five grams makes misdemeanor
possession of cocaine base a felony, the quantity of cocaine base
is an essential element of felony possession of cocaine base
proscribed in the third sentence of § 844(a). See Deisch, 20 F.3d
at 148 n.19; accord, United States v. Sharp, 12 F.3d 605 (6th Cir.
1993).
We must therefore decide in this case whether the indictment
is so defective that by any reasonable construction, it fails to
charge the quantity of cocaine base. The test of the validity of
the indictment is not whether the indictment could have been framed
in a more satisfactory manner, but whether it conforms to minimal
constitutional standards. Chaney, 964 F.2d at 446. An
indictment’s most basic purpose is to fairly inform a defendant of
the charge against him. Id.
The quantity of cocaine base is mentioned only in the caption
of the indictment. Appellant argues that the caption is mere
surplusage and should be ignored relying on United States v.
Kennington, 650 F.2d 544 (5th Cir. 1981), United States v. Ebolum,
72 F.3d 35 (6th Cir. 1995), and United States v. Pazsint, 703 F.2d
420 (9th Cir. 1983). Kennington and Ebolum are distinguishable
because the captions in those cases were erroneous or incomplete
and the courts held that the captions would not invalidate the
indictment. In Pazsint, the sufficiency issue was not raised for
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the first time on appeal and thus, a different standard of review
was applied. The issue we decide is whether a caption can cure a
defect in the body of the indictment reading the indictment with
maximum liberality. We hold that it can.
In United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir.),
cert. denied, 429 U.S. 920 (1976), we instructed that “[w]hile the
counts of an indictment must stand independently for the purpose of
being judged as to sufficiency, they need not be read apart from
the caption and heading of the indictment.” 529 F.2d at 1188.
Arteaga-Limones involved a defendant’s right to stand trial in the
district in which the offense took place. The defendant argued
that the indictment was fatally defective because one of the counts
did not state the location in which the offense was committed, a
requirement for jurisdiction. The court assumed without ruling
that the failure to allege the location of the offense could be a
fatal defect but held that because the caption indicated the
district in which the trial was to be held, the indictment was
sufficient. Id.
We are also persuaded by United States v. Hernandez, 980 F.2d
868 (2d Cir. 1992). In Hernandez, the caption defined the offense
being charged as conspiracy to possess a controlled substance with
intent to distribute. The body of the count, however, did not
refer to intent to distribute although it cited that statute. The
court read the indictment in its entirety and found that the
precise language used in the caption, the statutory citation
contained in the body of the count and the quantity of heroin
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alleged were sufficient to advise the defendant that he was subject
to charges on possession with intent to distribute. Id. at 871-
872. In this case, the quantity of cocaine base was likewise
sufficiently charged. The caption stated the quantity, the body of
the count referenced the statute, 844(a), and Fitzgerald did not
dispute the quantity of the substance in the medicine bottle.5
Appellant briefly argues that since Fitzgerald was not charged
with possessing over five grams, the jury could not find beyond a
reasonable doubt that he possessed over five grams.6 In light of
our finding that the indictment did specify the quantity of cocaine
base, Appellant’s argument lacks merit.
Appellant also argues that his sentence was based on an
erroneously determined quantity of cocaine base. Fitzgerald had
$3,515 in cash the night of his arrest. The district court found
that the cash was proceeds of unlawful cocaine base distribution,
calculated the amount of cocaine base that could be purchased by
$3,515 and added that amount, 39.69 grams, to the amount of cocaine
5
Appellant argues that the evidence does not prove that over
five grams of cocaine base were possessed because the chemist
tested only 5 of the 63 rocks. Random sampling is generally
accepted as a method of identifying the entire substance whose
quantity has been measured. See e.g., United States v. Roach, 28
F.3d 729 (8th Cir. 1994), United States v. Scalia, 993 F.2d 984
(1st Cir. 1993), and United States v. Madkour, 930 F.2d 234 (2d
Cir.), cert. denied, 502 U.S. 911 (1991).
6
Appellant cites United States v. Gaudin, 115 S.Ct. 2310
(1995) which holds that a criminal defendant is entitled a jury
determination on every element of the offense of conviction. In
Gaudin, the court decided one of the elements of the offense and
instructed the jury accordingly. Gaudin is not determinative in
this case because Appellant’s claim is not based on erroneous jury
instructions but instead on the sufficiency of the indictment.
8
base recovered from the bottle. See, U.S.S.G. § 2D1.1 Application
note 12. Appellant argues that the court’s finding that the money
was drug proceeds was clearly erroneous because it was based on
unreliable information from a confidential informant. Appellant
also argues that the district court erred by finding the entire
amount was proceeds because he earned $850 the month prior to his
arrest.
The accuracy of the district court’s factual findings,
including the quantity of drugs attributable to the defendant, is
reviewed under the clearly erroneous standard. United States v.
Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994); United States v.
Mergerson, 4 F.3d 337, 345 (5th Cir. 1993), cert. denied, ___ U.S.
___, 114 S.Ct. 1310 (1994). While the sentencing court may
consider relevant information without regard to its admissibility
as trial evidence, the information must have sufficient indicia of
reliability to support its probable accuracy. U.S.S.G. § 6A1.3(a);
United States v. Angulo, 927 F.2d 202 (5th Cir. 1991). A
presentencing report generally bears sufficient indicia of
reliability to be considered as evidence by the sentencing judge in
making factual determinations required by the sentencing
guidelines. United States v. Jobe, 77 F.3d 1461, 1476 (5th Cir.
1996). If information is presented to the sentencing judge with
which the defendant would take issue, the defendant bears the
burden of demonstrating that the information cannot be relied upon
because it is materially untrue, inaccurate or unreliable. Angulo,
927 F.2d at 205.
9
Fitzgerald argues that the information from the confidential
informant is unreliable because it is triple hearsay and the
informant was not identified. First, the PSR’s conclusion that the
seized funds were distribution proceeds was based on Fitzgerald’s
unemployment, not on the statement of the confidential informant.
Second, even disregarding the information from the confidential
informant, sufficient evidence supports the district court’s
finding that the seized funds were distribution proceeds. The
denominations of the seized bills were consistent with crack
cocaine sales. Fitzgerald’s explanation for the large sum of
money--that he was Christmas shopping for his children at 9:30
p.m., distrusted banks, and some of the money belonged to
relatives--lacked credibility. Fitzgerald was unemployed and
identified no other source of income other $850 worth of contract
work the month before his arrest. We find no clear error.
AFFIRMED.
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