No. 97-5586 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 ANTHONY LEWIS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General FLORENCE PAN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the district court erred in instructing the jury that it could find petitioner guilty of distributing a controlled substance, in violation of 21 U.S.C. 841(a) (1) , regardless of whether petitioner distributed cocaine base or powder cocaine. 2. Whether the district court's finding that petitioner distributed cocaine baser rather than powder cocaine, was clearly erroneous. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 No. 97-5586 ANTHONY LEWIS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-12a) is published at 113 F.3d 487. JURISDICTION The judgment of the court of appeals was entered on May 14, 1997. The petition for a writ of certiorari was filed on August 13, 1997, and therefore out of time under this Court's Rule 13.1 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) STATEMENT Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioner Anthony ---------------------------------------- Page Break ---------------------------------------- 2 Lewis was convicted-of distributing a controlled substance, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 120 months imprisonment, a $500 fine, eight years of supervised release, and a $50 special assessment. The court of appeals affirmed. 1. On February 17, 1995, petitioner sold 75 bags of cocaine base to Edward Jones, a confidential informant for the Drug Enforcement Administration (DEA). Jones had gone to Bristol Township, Pennsylvania, to make a controlled buy of cocaine base (known as "crack" cocaine) from another individual. While unsuccessfully seeking that other person, Jones met petitioner, Who offered to sell Jones crack. With the DEA's permission, Jones went forward with the purchase. Petitioner first provided Jones with 25 bags of crack that petitioner had on his person The two men then drove to a house, where petitioner obtained 50 more bags of crack and sold them to Jones. Pet. App. 3a-4a. Based on the foregoing events, a grand jury returned a two- count indictment charging petitioner with distribution of cocaine base, in violation of 21 U.S.C. 841(a) (1) , and distribution of cocaine base within 1,000 feet of a public housing project, in violation of 21 U.S.C. 860. In both counts, the indictment specifically charged petitioner with distributing "in excess of five grams of a mixture or substance containing a detectable amount of cocaine base, a Schedule II narcotic controlled substance. " Indictment at 1, 2. At trial, the government presented evidence that Jones ---------------------------------------- Page Break ---------------------------------------- 3 submitted the drugs that he had purchased from petitioner to the DEA for analysis. Petitioner and the government stipulated that the DEA chemist who had analyzed the drugs was a qualified chemist and that, if called as a witness, she would testify that the drugs consisted of 7.5 grams of cocaine base. The parties further stipulated that the chemist's report documenting her findings could be admitted into evidence. The drugs themselves also were admitted into evidence, and were identified as cocaine base by two government witnesses. Gov't C.A. Br. 6-7. Petitioner testified in his own defense. He asserted that he had sold powder cocaine, rather than crack, to Jones. The defense theory was that Jones had switched the powder cocaine that he had bought from petitioner with crack, because Jones's DEA contacts had instructed him to purchase crack. Gov't C.A. Br. 17-19; Pet. 10. The district court barred petitioner from cross-examining Jones about the difference between crack and powder cocaine on the ground that the distinction was irrelevant. In addition, the district court instructed the jury that it could find petitioner guilty regardless of whether the substance he distributed was powder cocaine or cocaine base. Pet. App. 4a.1 1 The district court charged the jury as ,follows: Count 1 charges that there was a violation of Title 21, United States Code, Section 841(a) (1) and that code states that it is unlawful to distribute any controlled substance, any narcotic controlled substance. Here it is claimed that there was distribution of a narcotic controlled substance on February 17, 1995 by the defendant and that he did so knowingly and intentionally with the intent of distributing it. The indictment charges that the ---------------------------------------- Page Break ---------------------------------------- 4 The jury found petitioner guilty of distributing a controlled substance, but acquitted him of distributing a controlled substance within 1,000 feet of a public housing project. Ibid At sentencing, the district court found that the substance distributed by petitioner was cocaine base. Under 21 U.S.C. 841(b) (1) (B), the sentence for distributing at least five grams of cocaine base is not less than five years' imprisonment, and no more than 40 years' imprisonment. The sentence for distributing the same quantity of powder cocaine does not include the five- year mandatory minimum prison term, and it may not exceed 20 ___________________(footnotes) controlled substance was a mixture or substance containing a detectable [sic] amount of cocaine base and that it was in excess of five grams in weight. The Government does not have to prove the weight of the controlled substance. It does not have to prove specifically the kind of controlled substance. It need only prove that there was a distribution of a controlled substance on or about the date alleged in the indictment by the person accused and that that distribution was done knowingly and intentionally by the accused. So, the Government must prove beyond a reasonable doubt that on or about February 17th, 1995, as charged, the defendant knowingly and intentionally distributed a narcotic controlled substance. The Government must prove that there was a detectable [sic] amount of cocaine in the substance that was distributed beyond a reasonable doubt. By detectable [sic] it means any amount that is detectable [sic] by any scientific means. Cocaine--whether it be crack cocaine or powdered cocaine or some other isomer of cocaine - is a controlled substance. Gov't C.A. Br. 7. ---------------------------------------- Page Break ---------------------------------------- 5 years' imprisonment. 21 U.S.C. 841(b) (1) (C). Applying the Guidelines, the district court sentenced petitioner to 120 months' imprisonment. 2. The court of appeals affirmed. Pet. App. la-12a. The court held that petitioner had been properly found guilty by the jury and sentenced by the district court because (1) the identity of the controlled Substance in a prosecution under 21 U.S.C. 841(a) (1) is a sentencing matter to be determined by the district court, not the jury, id. at 4a-10a) and (2) the evidence at trial supported the district court's finding, by a preponderance of-the evidence, that petitioner had distributed cocaine base Id. at 10a. The court also rejected petitioner's argument that there was a fatal variance between the indictment and the proof at trial, reasoning that (1) the alleged variance did not prejudice petitioner, and that (2) in any event, since the identity of the controlled substance is only a sentencing factor, the indictment need not correctly identify that substance as one of the elements of the crime- See id. at 10a-12a. DISCUSSION 1. Petitioner contends that the district court erred in instructing the jury that it could find him guilty of violating 21 U.S.C. 841(a) (1) based on a finding that he distributed a controlled substance, regardless of whether that substance was cocaine base or powder cocaine. Petitioner urges that the instruction was erroneous because (1) it "infringed upon the jury's fact-finding function," Pet. 5, and (2) it allowed the ---------------------------------------- Page Break ---------------------------------------- 6 jury to find him guilty despite a variance between the indictment, which charged him only with distributing cocaine base, and the proof at trial. Ibid The court of appeals correctly rejected these contentions. As the court explained, the identity of the controlled substance involved in a charged offense is not an element of the crime defined by 21 U.S.C. 841(a). Subsection (a) of Section 841 makes it an offense to' distribute any controlled substance. The question of what controlled substance was involved in the offense is then relevant to determining the defendant's sentence under 21 U.S.C. 841(b). Because the type of the controlled substance is not an element of the offense, it need not be submitted for determination by the jury. And, for similar reasons, petitioner cannot claim that there was a prejudicial variance between the indictment and the proof at trial. The indictment alleged that petitioner distributed cocaine base to Jones on or about a particular date. That allegation was sufficient to permit petitioner to frame a defense to the charges against him; the difficulty for petitioner is that "his defense-- that he distributed powder cocaine amounted to a confession in front of the jury, " Pet. App. 11, because distribution of any controlled substance was sufficient to find him guilty. We note that the related question of whether a sentencing court determines which drug was involved in a defendants offense under 21 U.S.C. 846 of a conspiracy to violate Section 841(a) is currently pending before this Court in Edwards v. United States, ---------------------------------------- Page Break ---------------------------------------- 7 No. 96-8732. The government has filed a brief acknowledging a circuit split on the issue and acquiescing in this Court's review of the decision in. Edwards. Because the disposition of the petition in Edwards may affect the appropriate disposition of petitioner's claim of jury instruction error in this case, the Court should hold this case pending its disposition of Edwards. 2 2. Petitioner also contends" that the district court's finding at sentencing that he distributed cocaine base, rather than powder cocaine, was unsupported by the evidence. Pet. 8-9. That factbound claim does not warrant this Court's review. In any event, the court of appeals correctly held that the district court's finding was not clearly erroneous in light of the laboratory analysis, admitted at trial, that established that the controlled substance in evidence was cocaine base. Pet. App. 10a. CONCLUSION With respect to Question 1, the petition for a writ of certiorari should be held pending this Court's disposition of the petition in Edwards v. United States, No. 96-8732, and then disposed of accordingly. With respect to Question 2, the petition for a writ of certiorari should be denied. ___________________(footnotes) 2 We are providing counsel for petitioner with a copy of the government's response-to the petition in Edwards. ---------------------------------------- Page Break ---------------------------------------- 8 Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General FLORENCE PAN Attorney OCTOBER 1997