Opinion
Criminal No. 05-0206-WS.
March 3, 2006
ORDER
This matter comes before the Court on overlapping Motions in Limine filed by defendants Willie Earl Carter, Jr. (doc. 406), Cynthia Denice Young (doc. 427), and Kingston Bodacious Osborne (doc. 431). The Motions have been briefed and are ripe for disposition.
The Motions submitted by defendants Young and Osborne were filed outside the pretrial motions deadline established by the Pretrial Scheduling Order (doc. 393). Nonetheless, for the reasons stated in the undersigned's Order (doc. 448) dated March 1, 2006, all three Motions in Limine will be considered on the merits, notwithstanding the untimely filing of two of them.
I. Background.
Willie Earl Carter, Jr. ("Carter"), Cynthia Denice Young ("Young") and Kingston Bodacious Osborne ("Osborne") are among 11 defendants named in a 35-count Second Superseding Indictment (doc. 433). Defendants are charged with conspiring to possess with intent to distribute Schedule I, II and III controlled substances between March 1998 and June 2005, in violation of 21 U.S.C. § 846; and possessing with intent to distribute such substances on 33 discrete occasions between October 2002 and June 2005, in violation of 21 U.S.C. § 841. With respect to the conspiracy count, the Indictment charges that defendants are subject to the following enhanced penalty provisions: (a) the so-called "death enhancement" provisions of 21 U.S.C. § 841(b)(1)(A) because an individual named Jasen Johns died on November 27, 2001, allegedly as a result of his use of controlled substances distributed in the conspiracy; and (b) the "school enhancement" provisions of 21 U.S.C. § 860, inasmuch as the offense allegedly occurred within 1,000 feet of Florence Howard Elementary School, a public school. As for the remaining counts, the Indictment charges that the 33 enumerated instances of possession with intent to distribute controlled substances violate both 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 860, with all of those offenses allegedly occurring either within 1,000 feet of Florence Howard Elementary School (Counts 2-9, 13-34) or within 1,000 feet of a public housing facility, namely R.V. Taylor Public Housing and Frank Boykin Tower (Counts 10-12).
The Motions in Limine filed by Carter, Young and Osborne request that the trial be bifurcated into a guilt proceeding (during which no evidence of the death, school or public housing enhancements would be admitted) and, if guilty verdicts are returned, a separate proceeding at which the jury would hear evidence relating to sentence enhancements. Defendant Carter also requests that, in the event he is found guilty of the conspiracy charge (Count 1), the jury make findings as to the precise amount of crack cocaine attributable to him.
In the parties' briefing of these Motions, there has been no suggestion that these sentence enhancement issues are properly submitted to the Court, rather than to the jury. To the contrary, the parties are in agreement that the jury must decide the death and school enhancement issues. The only question is when. There being no dispute that a jury must decide whether the death and school enhancements apply, the Court will not sua sponte explore that question under § 841(b)(1)(A) and § 860 in the aftermath of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
II. Analysis.
A. Bifurcation Issue.
In requesting decoupling of the sentencing enhancement proceedings from the guilt proceedings, defendants do not identify a single case or statutory authority that they maintain bolsters their position. Rather, they simply offer blanket statements, with no elaboration, that presentation of evidence concerning Jones' death or the proximity of defendants' alleged unlawful activities to schools or public housing facilities would "create undue prejudice . . . without being of any probative value" (doc. 406, at 2) and would create a "possibility of extreme, almost indescribable, prejudice" (doc. 427, at 3; doc. 431, at 2). To alleviate this purported prejudice, defendants propose that the sentencing enhancement issues (and the evidence relating to same) not be submitted to the jury contemporaneously with the issues of guilt or innocence of the underlying §§ 841 and 846 offenses. Instead, defendants envision a bifurcated proceeding at which the jury first hears and decides the guilt/innocence issue. Should a guilty verdict be returned on the initial phase, then defendants would have the jury separately hear and decide the death and school zone enhancement questions at that time.
1. Legal Standard.
The decision of whether to bifurcate a trial rests in the sound discretion of the district court. See, e.g., Contee v. United States, 410 F.2d 249, 250 (D.C. Cir. 1969) ("Bifurcation lies in the first instance within the `sound discretion' of the trial court."); Holmes v. United States, 363 F.2d 281, 283 (D.C. Cir. 1966) (explaining district court's broad discretion in considering whether to bifurcate and, if so, prescribing its procedure, form of jury charge and verdict, and admissibility of evidence in each stage). But this discretion is not unbounded, as bifurcation is proper in criminal cases only in narrowly circumscribed, finite circumstances. Indeed, "absent an agreement by the parties, bifurcation is available in only two circumstances in criminal proceedings. A court may bifurcate a trial with respect to the issue of insanity, and a court may also divide a trial between a determination of guilt or innocence and imposition of penalty." United States v. Collamore, 868 F.2d 24, 27 (1st Cir. 1989); see also United States v. Nickl, 427 F.3d 1286, 1296 (10th Cir. 2005) (affirming district court's decision to bifurcate trial into guilt and penalty phases for purposes of sentencing enhancements).
The cases draw a distinction between bifurcating a trial into guilt and penalty phases, on the one hand, and dividing a trial to split apart the presentation of evidence of different elements of the same offense into different phases. Bifurcation is rarely, if ever, appropriate in the latter scenario. See United States v. Birdsong, 982 F.2d 481, 482 (11th Cir. 1993) ("[a] request to bifurcate the presentation of evidence on different elements of a single offense is extremely rare"); Collamore, 868 F.2d at 27 (noting dearth of authority "allowing, much less mandating, bifurcation of a trial by dividing it along the lines of the elements of the crime charged"). By way of explanation for this dichotomy, the Birdsong court reasoned that bifurcation of trial proceedings such that different elements of an offense are presented to a jury in compartmentalized phases of trial creates two insuperable defects. First, "when a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime. . . . Doubt as to the criminality of the defendant's conduct may influence the jury. . . ." Id. Second, bifurcation of elements of a single offense gives rise to "the need to use special interrogatories which can unduly hinder jury deliberations by allowing the trial judge to carefully guide the jury to its conclusion." Id.; see also Collamore, 868 F.2d at 28 ("the use of special interrogatories is disfavored in criminal cases").
For example, defendants often seek to bifurcate trials on charges of possession of a firearm by a convicted felon, such that the possession issue would be decided by a jury separately and in advance of the jury receiving evidence or argument concerning the defendant's criminal history. These attempts have universally been rebuffed. See, e.g., United States v. Amante, 418 F.3d 220, 224 (2nd Cir. 2005) (bifurcation of elements of a felon-in-possession trial without government consent is generally error); United States v. Clark, 184 F.3d 858, 867-68 (D.C. Cir. 1999) (rejecting bifurcation of ex-felon element from other elements of felon in possession offense, inasmuch as doubt as to criminality of conduct may influence jury in considering possession element); United States v. Nguyen, 88 F.3d 812, 818 (9th Cir. 1996) (finding no abuse of discretion in denial of defendant's motion to bifurcate trial on elements of felon in possession count, where bifurcation would preclude government from proving an essential element of charged offense, confuse the jury, and strain judicial economy by requiring duplicative proceedings); United States v. Dean, 76 F.3d 329, 332 (10th Cir. 1996) (similar); United States v. Jacobs, 44 F.3d 1219, 1223 (3rd Cir. 1995) (district court properly denied bifurcation request relating to elements of single offense); United States v. Barker, 1 F.3d 957, 959 (9th Cir. 1993) ("We hold that the district court may not bifurcate the single offense of being a felon in possession of a firearm into multiple proceedings.").
2. Death Enhancement.
The question, then, is whether the "if death or serious bodily injury results" provision of 21 U.S.C. § 841(b)(1)(A) is properly viewed as an element of the substantive offenses charged in the Indictment or as a mere sentencing enhancement. Carter alleges in conclusory fashion that the death enhancement is not an element of the charged conspiracy offense ( see doc. 451, at 1); however, he offers no authorities or legal reasoning to support his position. The case law reviewed by the undersigned is to the contrary. Although the Eleventh Circuit does not appear to have addressed this precise issue, another appeals court recently held that "[t]he `if death results' provision of 21 U.S.C. § 841(b)(1)(C) is an element that must be proven beyond a reasonable doubt; it is not a sentencing factor. . . ." United States v. Rebmann, 321 F.3d 540, 542 (6th Cir. 2003); see also United States v. Martinez, 268 F. Supp.2d 70, 72 (D. Mass. 2003) ("If Apprendi is to retain any meaning, it must be the case that the fact of "death or serious bodily injury" is qualitatively and historically different from a fact such as drug quantity, and therefore must be treated as an "element" of an aggravated crime under § 841(b).").
Furthermore, "[i]f a given statute is unclear about treating such a fact as element or penalty aggravator, it makes sense to look at what other statutes have done, on the fair assumption that Congress is unlikely to intend any radical departures from past practice without making a point of saying so." Jones v. United States, 526 U.S. 227, 234, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In other contexts, federal appellate courts have found that death enhancements akin to those in § 841(b)(1)(A) are in fact elements of the offense, and not mere sentencing factors. For example, in Jones, the Supreme Court considered the federal carjacking statute, 18 U.S.C. § 2119, which created steeply higher penalties if death or serious injury results. In that context, the Court determined that the death issue is not a mere sentencing consideration, but is instead an element of the offense that must be charged in the indictment, submitted to the jury and proven beyond a reasonable doubt. See 526 U.S. at 232-33; see also United States v. Rezaq, 134 F.3d 1121, 1134-37 (D.C. Cir. 1998) (affirming district court's refusal to bifurcate trial under federal air piracy statute, 49 U.S.C. app. § 1472(n)(1), into guilt and "death results" enhancement phases, reasoning that "death results" provision was an element of the substantive offense defined by the air piracy statute). The Jones and Rezaq decisions provide helpful analogies to the case at bar, reinforcing the propriety of the Rebmann and Martinez classification of the death provisions of § 841.
The validity of this approach is further buttressed by post- Apprendi decisions explaining that even drug quantity is an element of the offense under § 841, at least where it serves as a basis for imposing sentence in excess of the 20-year default statutory maximum. See, e.g., United States v. Clay, 376 F.3d 1296, 1301 (11th Cir. 2004) (recognizing that drug quantity becomes element of offense under § 841 where it is used to impose sentence above default statutory maximum sentence); United States v. Gonzalez, 420 F.3d 111, 131 (2nd Cir. 2005) ("drug quantity is an element that must always be pleaded and proved to a jury or admitted by a defendant to support conviction or sentence on an aggravated offense under § 841(b)(1)(A)").
In light of the foregoing decisions, and in the absence of any countervailing citation of authorities or principled legal argument by defendants, the Court concludes that the "death or serious bodily injury results" provision of § 841(b)(1)(A) must be construed as an element of the offense, to be proven to a jury beyond a reasonable doubt, and not as a mere sentencing enhancement. Accordingly, it would be improper to bifurcate the trial such that the Government was obligated to prove different elements of the offense in different phases of trial, with the unacceptable risk of inefficiency, redundancy and juror confusion in the ensuing disjointed trial proceedings. The Motions to Bifurcate are denied as to the "death or serious bodily injury results" allegations of the Second Superseding Indictment.
3. School/Public Housing Enhancement.
Defendants also seek to segregate the presentation of evidence concerning the public school/public housing enhancement of § 860 from the evidence concerning their guilt of the underlying §§ 841 and 846 offenses. However, the Eleventh Circuit has held in the clearest of terms that "section 860 is a substantive criminal statute, not a mere sentence enhancer for section 841(a)." United States v. Anderson, 200 F.3d 1344, 1347 (11th Cir. 2000) (quoting United States v. Saavedra, 148 F.3d 1311, 1316 (11th Cir. 1998)). The Second Superseding Indictment specifically alleges that the 33 possession offenses violate both § 860 and § 841(a). The operative indictment having charged defendants with violating § 860, that section does not serve as a mere sentence enhancement that might warrant bifurcation. Additionally, the Anderson court pointed out that "section 841(a)(1) is a lesser included offense of section 860." 200 F.3d at 1347. To bifurcate the § 860 offenses from the lesser included § 841(a)(1) offenses would be to invite unnecessary redundancy and confusion, with no countervailing benefit to defendants. Again, defendants have proffered no legal basis under which bifurcation might be appropriate for these charges. The Motions to Bifurcate are therefore denied as to the § 860 issues presented in the Second Superseding Indictment.
B. Drug Quantity Issue.
Finally, defendant Carter makes the following request: "Since the extent of involvement in a conspiracy can vary among defendants, the Defendant requests the jury be required to make a finding as to the amount of crack cocaine attributable individually to the Defendant. Furthermore, . . . the Defendant requests the jury be directed to make a finding of the specific amount," rather than simply ascertaining whether the § 841 aggravating thresholds are met. (Doc. 406, at 1-2.) No authority is presented in support of either of these remarkable propositions.
The first part of Carter's request conflicts with bedrock notions of conspiracy, under which each co-conspirator may be held responsible for the object of the conspiracy in its entirety, rather than any smaller portion which he personally carried out. The relevant drug quantity for Count One is the amount of controlled substances that was the object of the conspiracy, not merely the subset of controlled substances that a single conspirator may have personally handled or sold. See generally United States v. Alas, 196 F.3d 1250, 1251 (11th Cir. 1999) ("Under well established Eleventh Circuit precedent conspirators are liable for all of the acts and foreseeable consequences of the conspiracy."); United States v. Rosenthal, 793 F.2d 1214, 1228 (11th Cir. 1986) ("As a co-conspirator, he is responsible for the substantive acts committed within the scope of the conspiracy."). By asking that the jury make a finding as to the amount of drugs attributable individually to him, rather than the amount attributable to the conspiracy as a whole, Carter disregards the legal premise and effect of the conspiracy charge. If the jury finds Carter guilty of the § 846 charge and fixes the appropriate statutory maximum, then the Court will determine at sentencing the specific drug quantity for which he is responsible.
He also disregards applicable caselaw. See, e.g., United States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003) (opining that Supreme Court precedent "does not require defendant-specific findings of drug type and quantity in drug-conspiracy cases"); United States v. Turner, 319 F.3d 716, 722-23 n. 7 (5th Cir. 2003) (rejecting notion that jury should decide individualized question of drug quantity attributable to co-conspirator); Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 2002) (similar).
Meanwhile, the second aspect of Carter's request misapprehends the Apprendi-based reasons for asking the jury to make drug quantity determinations. Neither Apprendi nor any ensuing authority has held that a defendant has a right to having a jury determine the exact quantity of drugs for which he is responsible; rather, the Apprendi rule is confined to jury determination of facts giving rise to a heightened statutory maximum penalty. See, e.g., Spero v. United States, 375 F.3d 1285, 1286 (11th Cir. 2004) ("The Supreme Court held in Apprendi 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.'") (citing Apprendi, 530 U.S. at 490). As such, the relevant determination for Apprendi purposes is whether Carter was involved with a sufficiently great quantity of controlled substances to trigger the aggravated statutory penalties authorized by § 841(b)(1)(A) and (B). Once an elevated maximum is in play, Apprendi says nothing about the ultimate determination of the exact amount by which that threshold was exceeded for sentencing purposes. This Court will not expand and extend Apprendi principles in the drastic fashion requested by Carter, particularly where he offers neither the faintest whiff of authority nor any reasoning (persuasive or otherwise) to support it.
As the First Circuit explained: "This does not mean that a jury need return a special verdict describing the precise amount of drugs involved in the conspiracy. It is enough that the jury supportably determines, beyond a reasonable doubt, that the conspiracy involves a drug quantity that surpasses the threshold amount needed to trigger the relevant (higher) statutory maximum." Derman, 298 F.3d at 43 n. 4.
III. Conclusion.
For all of the foregoing reasons, defendant Carter's Motion in Limine in Regard to Sentencing Factors (doc. 406), defendant Young's Motion in Limine and Motion to Bifurcate Trial (doc. 427), and defendant Osborne's Motion in Limine and Motion to Bifurcate Trial (doc. 431) are all denied.