Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. CR 81-00260-03
Before: WEIS, MANSMANN, and ALDISERT, Circuit Judges.
This appeal requires us to consider whether the defendant's indictment for federal narcotics violations under 21 U.S.C. § 846 and § 841(a) provided him with notice to support the imposition of an enhanced penalty provision under § 841(b)(6) for possession with intent to distribute in excess of 1,000 pounds of marijuana. We conclude that 21 U.S.C. § 841(b)(6) is an enhanced penalty provision and not a separate crime. We find that the indictment at issue put the defendant Stephen Gibbs on notice of the possibility that an enhanced sentence might be imposed. Accordingly, we will affirm the judgment of the district court.
In 1981 the defendant Stephen Gibbs and five others were charged with conspiracy (in violation of 21 U.S.C. § 846) to distribute and possess with intent to distribute marijuana (in violation of 21 U.S.C. § 841(a)(1)). Although the indictment contained three counts, Gibbs was charged in only one count of the indictment. Gibbs was subsequently convicted of a conspiracy to violate the federal narcotics laws, namely 21 U.S.C. § 841(a)(1) which provides:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally --
(1) to manufacture, distribute or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; 21 U.S.C. § 841(a)(1).
Pursuant to the Penalties provisions of § 841, Gibbs was sentenced under § 841(b)(6), which provides in relevant part:
(6) In the case of a violation of subsection (a) of this section involving a quantity of marihuana exceeding 1,000 pounds, such person shall be sentenced to a term of imprisonment of not more than 15 years, and in addition, may be fined not more than $125,000 . . . .
21 U.S.C. § 841(b)(6) (1982). Gibbs' sentence was for a period of ten years imprisonment, which is greater than the regular sentence which may be imposed for a marijuana violation.*fn1
Gibbs' initial appeal, which challenged the prerequisites for the admission into evidence of co-conspirator testimony and asserted that the introduction of that testimony violated his sixth amendment right to confront and cross-examine witnesses, was heard by a panel of this court, which reversed his conviction on March 22, 1983. On the government's petition for rehearing in banc, we reinstated Gibbs' conviction. United States v. Gibbs, 739 F.2d 838 (3d Cir. 1984), cert. denied, 469 U.S. 1106, 83 L. Ed. 2d 774, 105 S. Ct. 779 (1985) (" Gibbs I "). Gibbs' petition for rehearing in banc was denied.
Gibbs subsequently filed a Motion to Correct Illegal Sentence and a Motion to Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255. The district court denied the Motion to Correct Illegal Sentence, denied the claims pursuant to 28 U.S.C. § 2255 relating to the sentence, and held in abeyance the claim relating to ineffective assistance of counsel. This appeal followed.
Gibbs now asserts on appeal that imposition of the enhanced penalty violates the ex post facto clause of the Constitution, and that the evidence at trial was insufficient to support his sentence. Gibbs primarily contests, however, the sufficiency of the indictment to support the imposition of the enhanced penalty under § 841(b)(6). We turn first to the issue involving the indictment.
The final paragraphs of Count One of the indictment read:
(e) On or about October 5, 1980, the defendant Joseph Quintiliano had a telephone conversation with the defendant Stephen Gibbs to arrange for Gibbs to purchase the plane-load of marijuana.
(f) In or about the early morning of October 6, 1980, because of a shortage of fuel, the defendant Prentiss C. Breland landed the Beechcraft Queen Air airplane at an airport near Boca Raton, Florida, with 1,487 pounds of marijuana.
Gibbs argues that because the indictment did not specifically charge him with either conspiracy to possess an amount of marijuana in excess of 1,000 pounds, or with a violation of 21 U.S.C. § 841(b)(6), imposition of the enhanced penalty under § 841(b)(6) is impermissible. He contends that the amount of marijuana is an essential element of the offense with which he was charged and that failure to charge him with that element denied him fair notice in preparing and presenting his defenses. In addition, Gibbs argues that the issue of the quantity of the marijuana must be submitted to the jury and must be proved beyond a reasonable doubt.
The government contends that § 841(b)(6) is simply an enhanced penalty provision and not an element of the crime. The prosecution argues, therefore, that the defendant is not entitled to notice in the indictment that a heavier sentence may be imposed. In the alternative, the government contends that because the indictment specified that 1,487 pounds of marijuana were in the plane, the defendant was on notice that he was subject to the heavier penalties of § 841(b)(6).
Our standard of review concerning the adequacy of the indictment to support the enhanced penalty is plenary as this involves an issue of law. See United States v. Adams, 759 F.2d 1099 (3d Cir. 1985), cert. denied, 474 U.S. 971, 106 S. Ct. 336, 88 L. Ed. 2d 321 (1985). As we noted in United States v. Sebetich, 776 F.2d 412 (3d Cir. 1985), an indictment provides satisfactory protection to a defendant if it fairly informs him of the charge and enables him to plead acquittal or conviction in bar of future prosecutions for the same offense.
Our task here is to determine whether sufficient notice for such protection was given in the indictment filed in this case. Although the indictment did not specifically mention § 841(b)(6), we find that the indictment as a whole fairly informed Gibbs of the amount of marijuana with which he was charged pursuant to § 841(a)(1), and which would subject him to the enhanced penalty provision of § 841(b)(6). Because we conclude that Gibbs did receive notice, we need not, and do not, decide whether the enhanced sentence could stand in the absence of notice in the indictment. We do, however, agree with the government's position that § 841(b)(6) is a penalty enhancement provision and not a separate crime. That specific issue had divided the courts of appeals.
In United States v. Normandeau, 800 F.2d 953 (9th Cir. 1986), the appellants contended that knowledge of the amount of marijuana involved is an element of the aggravated offense. In holding that contention invalid and in finding that § 841(b)(6) is merely a penalty provision, the Court of Appeals for the Ninth Circuit concluded that
[P]roof that an accused knew how much marijuana was involved is not an element of a section 841(a) offense. Through their involvement in the illegal transaction, defendants assumed the risk of enhanced penalties if the government could show that their offense involved more than 1,000 pounds of marijuana.
Normandeau, 800 F.2d at 956. The court declined to decide the issue of whether the indictment must allege that more than 1,000 pounds of marijuana is involved before increased penalties could be sought, finding that the indictment before it clearly alleged that more than 1,000 pounds was involved and cited § 841(b)(6).
Similarly, the Court of Appeals for the First Circuit has held that proof of the amount of marijuana is an essential element only under § 841(b)(6). United States v. McHugh, 769 F.2d 860 (1st Cir. 1985). There, the court pointed out that neither § 841(a) nor § 846 (the general conspiracy section) requires any specific quantity for conviction. Section 841(b) merely specifies the penalties for violations of § 841(a), depending on the substance and quantity involved.
That § 841(b)(6) is a penalty which was intended to apply to conspiracies as well as to actual possession was explained in United States v. Wright, 742 F.2d 1215 (9th Cir.), cert. denied, 469 U.S. 827 (1984). The court reasoned that § 841(b)(6) can apply to any § 841(a) offense (involving more than 1,000 pounds of marijuana), and § 846 prohibits attempts or conspiracies to commit the substantive acts prohibited by § 841(a). Since the penalty for conspiracy may not exceed the maximum punishment prescribed for the commission of the offense which was the object of the conspiracy, a person convicted of attempting a conspiracy to violate § 841(a) is subject to the maximum penalty for the offense. That penalty may be the one specified under § 841(b)(6) if the offense involves more than 1,000 pounds of marijuana.
Consistent with McHugh and Wright is the analysis of the Court of Appeals for the Eleventh Circuit in United States v. Simmons, 725 F.2d 641 (11th Cir. 1984). In Simmons, the court differentiated § 841(a) which declares unlawful the possession with intent to distribute a controlled substance, with § 841(b)(6) which authorizes an enhanced penalty if that controlled substance is marijuana in excess of 1,000 pounds. The court theorized that the substantive crime could be proved without any consideration of the amount involved, but if the proof at trial showed possession of more than 1,000 pounds of marijuana, the enhanced penalty provision would come into play. The court held that the 1,000 pound provision was, therefore, only applicable to the sentencing phase. Simmons, 725 F.2d at 643-44.
We recognize that the courts in these cases were not required to answer the question before us (i.e., was notice of the possibility of an enhanced penalty given) because those indictments arguably listed § 841(b)(6). Nonetheless, it is instructive that the courts utilized the premise that § 841(b)(6) is an enhanced penalty provision rather than a separate crime in resolving related and more sophisticated issue. We find persuasive the analyses indicating that § 841(b) is merely a penalty provision to be used at sentencing, after conviction of the substantive crime.
The defendant primarily relies on United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984), to support his contention that the quantity of the substance is an element of a separate crime for which an enhanced penalty may be imposed. In Alvarez, the court held that
[T]he present indictment cannot properly serve as the basis for sentences in excess of the five years specified in 21 U.S.C. § 841(b)(1)(B). Since the quantity of the substance constitutes a critical element of the offense under 21 U.S.C. § 841(b)(6), and no quantity of marijuana was specifically alleged in the ...