Conspiracy to distribute cocaine is a lesser included offense of conspiracy to distribute 5 kilos or more of cocaine. Therefore, trial court did not err in refusing to submit the question of weight to the jury until after it had returned a guilty verdict on the conspiracy to distribute.

United States v. Freeman, 09-2166, 10-4224, 2014 WL 4056553 (August 18, 2014)

Defendants Freeman and Mark were charged with a count of conspiracy to distribute 5 kilos or more of cocaine.  Conspiracy to distribute over 5 kilos of coke carries a higher statutory maximum sentence than conspiracy to distribute an unspecified amount of coke.  Therefore, under Apprendi, it is clear that the drug quantity was an element of the conspiracy count that was charged in the indictment. 

However, the trial court refused a defense requested jury instruction that to convict on the conspiracy count, the govt had to prove over five kilos of cocaine were involved in the conspiracy.  Instead, the trial court instructed that the government need only prove that a measurable amount of cocaine was involved in the conspiracy.  After the jury returned a guilty verdict on the conspiracy count, the trial court gave them a post-verdict question on whether the conspiracy involved 5 kilos or more of cocaine.  The jury was unable to reach a unanimous answer on the post-verdict question.

Third Circuit held that conspiracy to distribute under 28 USC § 841(a)(1) was a lesser included offense of conspiracy to district 5 kilos or more of coke under § 841(b)(1)(A)(ii)(III).  Therefore, under Fed.R.Crim.Pro. 31(c) – which allows defendants to be convicted of lesser included offenses of the offenses actually charged – the judge was allowed to charge on the lesser included offense.

Other holdings of interest in this case:

(1)  Judicial fact finding for purposes of calculating guidelines and imposing a sentence within the statutorily prescribed range does not violate Alleyne.  Trial court was allowed to make findings regarding the amount of drugs involved even though the jury was unable to reach a conclusion.  No indication on the record that the trial court believed any mandatory minimum applied and the ultimate sentence was below the statutory max. 

(2)  While the rules of evidence do not apply at sentencing, information used as a basis for sentencing under the guidelines must meet the “sufficient indicia of reliability standard.”  Such indicia of reliability may consist of the level of facts and details, corroboration or consistency with other evidence or testimony, or the opportunity for cross examination.  In the sentencing of one defendant, the trial court sufficiently explained the basis of its finding regarding the amount of drugs involved in the conspiracy.  However, in another defendant's sentencing, the court failed to sufficiently explain its finding regarding the amount of drugs.  Defense had objected to the drug amounts used to calculate the guidelines and remand was necessary for the court to give an adequate explanation of its acceptance or rejection of the defense argument.

(3)  Defendant's sixth Amendment right of confrontation was not violated and trial court did not abuse its discretion in preventing defense counsel from asking a cooperating witness whether he was selling drugs for anyone else “in the entire universe.”  The witness had already admitted that he had disclosed his other illegal affairs to law enforcement and the court would have allowed defense counsel to question about specific acts that he believed the witness failed to disclose.  Thus, defense counsel had adequate opportunity to cross-examine the witness.

(4)  Evidence was sufficient to show one overarching conspiracy (as charged in the indictment) rather than several individual conspiracies.  Therefore, no variance between the indictment and the evidence at trial and the trial court did not err in denying the R. 29.