Wednesday, July 06, 2005

Apprendi and the Use of Special Verdicts

United States v. Lissett Rivera, No. 02-3238 (June 16, 2005): Section 841 of Title 21, U.S. Code, ties both minimum and maximum mandatory penalties to specified amounts of drugs. The greater the quantity, the higher the penalties.

Lissett Rivera was charged with a conspiracy that had two objectives: distribution of five or more kilograms of cocaine, and distribution of 50 grams or more of cocaine base. Under the statute, these amounts trigger the highest mandatory sentences.

The jury was presented with a special verdict form. If it found the defendants guilty, it had to specify whether the conspiracy involved less than 500 grams of cocaine, more than 500 grams but less than five kilos, or five or more kilos. There was a similar interrogatory regarding cocaine base. These interrogatories dealt with the overall amounts of drugs and said nothing about any one defendant’s agreement to any particular amount of drugs.

The jury convicted and found that the conspiracy involved five or more kilos of cocaine and 50 grams or more of cocaine base.

At sentencing, the district court found that Ms. Rivera had agreed to only three kilos of cocaine, which exposed her to a mandatory minimum of five years in prison. Employing the sentencing guidelines, the district court sentenced her to 97 months in prison. Ms. Rivera appealed the district court’s guidelines calculations (minor role and use of a gun), but did not appeal the finding as to three kilos. With the Supreme Court’s decision in Booker intervening, she asked for a limited remand under the authority of Paladino. The government did not file a cross appeal.

The Seventh Circuit refused a Paladino remand. As it saw the matter, she should have received at least ten years in prison, and a Paladino remand could do her no good. According to the Court, once the jury made its finding that the conspiracy involved five or more kilos of cocaine, Ms. Rivera was subject to a ten-year mandatory minimum. After Apprendi, a district court cannot make findings that conflict with the jury's findings. The Court helpfully offered the observation that Ms. Rivera could have avoided exposure to a ten-year sentence if she had argued to the jury that her agreement was as to a lesser amount of drugs, which "might have led the prosecutor to request a lesser-included-offense instruction. . ."

This analysis sounds reasonable, except for one troubling fact found in the record, but not acknowledged in the Court’s opinion. Ms. Rivera had asked for the district court to pose an additional special interrogatory that would have called for a jury finding as to the amounts of drugs to which she had agreed. This request was rejected, since the district court mistakenly believed that only it could make that finding. So Ms. Rivera had tried to do exactly what the Seventh Circuit had suggested, but, despite her best efforts, the jury had never made a finding that she had agreed to a conspiracy involving five or more kilos.

Putting aside the result as it affected Ms. Rivera, it is clear that in future cases counsel must be keen to obtain jury findings that place limits on their clients’ involvement in a conspiracy. Although the Court’s opinion refers to the possibility of the government’s seeking a lesser included offense instruction, defense counsel may want to seek such an instruction. (Consider the alternative: "Acquit my client and turn her loose, because she agreed to only three kilos, not five kilos, as charged in the indictment." Not very attractive.)