United States v. Duvall, Duane A. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3977
United States of America,
Plaintiff-Appellee,
v.
Duane A. Duvall,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 99 CR 35--Richard L. Young, Judge.
Argued April 6, 2001--Decided November 14, 2001
Before Flaum, Chief Judge, and Posner and
Williams, Circuit Judges.
Williams, Circuit Judge. Duane Duvall
was convicted of possession with intent
to distribute a substance or mixture
containing methamphetamine. His primary
argument on appeal is that the
government’s pretrial notice of its
expert testimony was inadequate under
Federal Rule of Criminal Procedure
16(a)(1)(E). We agree that the
government’s notice was inadequate, but
find that any error in admitting the
testimony was harmless. We also find no
error in the district court’s exclusion
of testimony regarding the purity of the
mixtures found. Finally, we reject
Duvall’s argument that his conviction
must be overturned because the jury was
not required to find the quantity of the
methamphetamine mixture that he
possessed, and therefore affirm the judg
ment of the district court.
I. BACKGROUND
When Duvall was arrested, police found
in his car several small plastic bags
containing mixtures of controlled
substances; some of the mixtures
contained methamphetamine, and some
contained amphetamine. Before trial, the
government filed two informations
pursuant to 21 U.S.C. sec. 851
identifying Duvall’s four prior
convictions for felony drug offenses. The
government also provided pretrial notice
of its intent to call Detective Donald
Erk to testify as an expert "concerning
violations of controlled substances
laws," and two DEA chemists to testify
regarding tests performed on samples of
the drugs seized, including their
conclusions about the amount of
methamphetamine contained in those
substances. Duvall moved to take the
deposition of these and other government
witnesses, complaining that the
government’s notices were inadequate
under Federal Rule of Criminal Procedure
16(a)(1)(E). The district court denied
that motion and also denied Duvall’s
pretrial motion to exclude Erk’s
testimony.
At trial, Duvall took the stand and
admitted that he possessed the drugs
found by the police and intended "to give
those drugs to someone else." His defense
was that he was working as a government
informant at the time. The jury rejected
that defense and convicted Duvall of
possession with intent to distribute more
than 50 grams of a mixture containing
methamphetamine, and possession with
intent to distribute more than 50 grams
of a mixture containing amphetamine. The
judge sentenced Duvall to 360 months’
imprisonment on each count, to be served
concurrently. Duvall appeals his
conviction on the methamphetamine charge.
II. ANALYSIS
A. Expert Disclosure Statements
Duvall first argues that Detective Erk’s
testimony should have been excluded
because the government’s pretrial
disclosure of Erk’s testimony was
inadequate. We review the district
court’s denial of the defendant’s motion
to exclude for abuse of discretion.
United States v. Jackson, 51 F.3d 646,
651 (7th Cir. 1995).
Federal Rule of Criminal Procedure
16(a)(1)(E) requires the government to
provide, at defendant’s request, a
written summary of the expert testimony
that it intends to use during its case-
in-chief. That summary must "describe the
witnesses’ opinions, the bases and the
reasons for those opinions, and the
witnesses’ qualifications." Fed. R. Crim.
P. 16(a)(1)(E). The government’s pretrial
notice disclosed Erk’s testimony as
follows:
Detective Erk will identify code
language, the manner in which
methamphetamine is distributed, tools of
the trade in the distribution of
methamphetamine, street prices of
methamphetamine and the manner in which
"cut" is added to methamphetamine to
increase the amount of profit in the
methamphetamine business. Detective Erk
will also testify concerning amounts of
methamphetamine an individual might have
for distribution, as opposed to personal
use./1
At trial, Detective Erk testified that
methamphetamine users typically possess
an eighth of an ounce or less, that
possession of more than that is
consistent with distribution rather than
personal use, that methamphetamine is
typically divided into small packages for
distribution, and that possession of
multiple small packages is inconsistent
with personal use.
We believe that the government’s notice
did not adequately summarize or describe
Erk’s trial testimony. The Rule requires
a summary of the expected testimony, not
a list of topics. The government’s notice
provided a list of the general subject
matters to be covered, but did not
identify what opinion the expert would
offer on those subjects. For example, the
statement that Erk would testify
concerning "the manner in which
methamphetamine is distributed" does not
in any way identify the particular
opinion that Erk offered at trial--for
example, that methamphetamine is
typically divided into small packages for
distribution. Similarly, the statement
that Erk would testify "concerning
amounts of methamphetamine an individual
might have for distribution, as opposed
to personal use," does not identify what
amount, according to Erk, would point to
intended sales rather than use. The
government responds that, for this sort
of expert testimony about typical
practices in drug sales, its notice was
adequate, relying on our opinion in
United States v. Jackson, 51 F.3d 646. In
Jackson, we held that a similarly brief
notice was "barely" adequate under Rule
16(a)(1)(E), but the notice there,
although brief, at least identified the
expert’s actual opinion (that narcotics
traffickers often secure locations such
as houses or apartments to serve as a
base for dealing narcotics) and the
notice here did not even do that
much./2
Nevertheless, exclusion of the testimony
is not the only remedy available to the
district court for a violation of Rule
16(a)(1)(E). See Fed. R. Crim. P.
16(d)(2); Jackson, 51 F.3d at 652. Duvall
did not identify (to the district court
or to this court) any prejudice that
could have been avoided by a more
detailed notice, and therefore we believe
the court was within its discretion in
denying Duvall’s motion to exclude Erk’s
testimony. See United States v. Koopmans,
757 F.2d 901, 906 (7th Cir. 1985).
Furthermore, even if it was error to
admit the evidence, it was harmless. The
point of Erk’s testimony was to help the
jury evaluate the government’s claim that
the amount of drugs seized, and the way
they were packaged, indicated that the
drugs were intended not for personal use
but for distribution. But Duvall admitted
that he intended to distribute the drugs,
so Erk’s testimony could not have made
any difference. The court’s failure to
exclude Erk’s testimony therefore cannot
serve as the basis for reversal of
Duvall’s conviction. See Fed. R. Crim. P.
52(a); United States v. Barrett, 703 F.2d
1076, 1082 (9th Cir. 1982)./3
B. Testimony Regarding the Purity of the
Substance
Duvall next claims that the district
court erred in limiting his cross-
examination of DEA chemist Dal Cason, who
testified that some of the substances
seized from Duvall contained
methamphetamine. On cross-examination,
Cason said that some of the samples had
"low percentages" of methamphetamine, but
the government objected to additional
questions about the relative purity of
the drugs. We agree with the district
court that in this case the relative
purity of the substances seized was
irrelevant, because Duvall was charged
with possessing with intent to distribute
a mixture of methamphetamine, and not any
quantity of pure methamphetamine. See 21
U.S.C. sec. 841(b) (1)(B)(viii)./4
But Duvall claims that the court later
made purity an issue because the jury was
instructed that "in determining a
person’s ’intent to distribute’
controlled substances, the jury may
consider, among other things, the purity
of the controlled substance. . . ." The
government concedes that this instruction
was probably unwise, because, as we have
noted, Duvall admitted that he intended
to distribute the substances. However,
for the same reason, the instruction was
also harmless: given Duvall’s admission,
any inference of intent that the jury
might have drawn from the relative purity
of the substance could not have mattered,
and therefore reversal is not warranted.
C. Apprendi Issues
Finally, Duvall claims that his
conviction for possession with intent to
distribute methamphetamine under 21
U.S.C. sec. 841 cannot stand because the
jury was instructed that they need not
find the actual quantity of the mixture
containing methamphetamine, which, he
claims, is an element of the offense
under Apprendi v. New Jersey, 530 U.S.
466 (2000). We have held that Apprendi
requires that facts (other than prior
convictions) that determine the maximum
sentence under 21 U.S.C. sec. 841 must be
charged in the indictment and proved
beyond a reasonable doubt. United States
v. Brough, 243 F.3d 1078, 1080 (7th Cir.
2001); United States v. Nance, 236 F.3d
820, 825 (7th Cir. 2000). However, as we
explained in Brough, although the failure
to establish these facts beyond a
reasonable doubt limits the choice of
maximum sentence under sec. 841, it does
not jeopardize the conviction. Brough,
243 F.3d at 1080. Here, the jury found
beyond a reasonable doubt that Duvall
possessed with intent to distribute some
quantity of methamphetamine, so his
conviction is secure. Id.; see also
United States v. Bjorkman, ___ F.3d ___,
No. 99-3302, 2001 WL 1329244, at *3-5
(7th Cir. Oct. 30, 2001).
As for his sentence, because the jury
did not find quantity, the maximum for
possession with intent to distribute
methamphetamine is determined by sec.
841(b)(1)(C). United States v.
Westmoreland, 240 F.3d 618, 632 (7th Cir.
2001); Talbot v. Indiana, 226 F.3d 866,
869 (7th Cir. 2000). The maximum sentence
under sec. 841(b)(1)(C) is ordinarily 20
years, but if the defendant has a prior
felony drug conviction, the maximum is
increased to 30 years. See 21 U.S.C. sec.
841(b)(1)(C). The district court, rather
than the jury, found that Duvall
committed the prior drug felonies alleged
in the government’s informations, but
Apprendi does not require that these
prior convictions be submitted to the
jury or found beyond a reasonable doubt.
United States v. Martinez-Garcia, ___
F.3d ___, No. 00-2396, 2001 WL 1158985,
at *2 (7th Cir. Sept. 28, 2001); Edwards
v. United States, 266 F.3d 756, 759 (7th
Cir. 2001). Duvall’s 30-year sentence
does not exceed the maximum allowed under
sec. 851(b)(1)(C) when there is a prior
felony drug conviction, so there is no
violation of Apprendi. See Edwards, 266
F.3d at 759.
III. CONCLUSION
We have examined all arguments raised by
the defendant and, finding no error
warranting reversal, we Affirm the
judgment of the district court.
FOOTNOTES
/1 The notice disclosed the basis for Erk’s opinions
as follows: "Detective Erk’s opinion will be
based on his education, training and experience
with the Evansville Police Department and Drug
Enforcement Administration," and his qualifica-
tions were disclosed by way of a resume attached
to the notice. This disclosure conforms to the
minimum that we have found adequate for this sort
of testimony. See Jackson, 51 F.3d at 651.
/2 Duvall also complains about the notice’s refer-
ence to "code language" and "tools of the trade,"
because no code language or tools of the trade
were at issue in this case. But because Erk did
not testify on these topics, we do not understand
why Duvall claims that Erk’s testimony should
have been excluded on this basis.
/3 Duvall claims that the government’s pretrial
notice of its chemists’ testimony was also inade-
quate because it was difficult to identify from
the disclosures the particular weight and purity
of the mixtures in each of the separate bags
seized, which, he argues, was relevant to Du-
vall’s intent to distribute. Again, given Du-
vall’s admission of his intent to distribute the
substances, any error in this regard was harm-
less.
/4 The concentration of methamphetamine in the
mixture could have been relevant to sentencing
because under the statute and sentencing guide-
lines the length of the sentence may be calculat-
ed by reference to the quantity of the total
mixture possessed or the quantity of pure metham-
phetamine contained in that mixture. See 21
U.S.C. 841(b)(1)(B)(viii); U.S.S.G. sec. 2D1.1(c)
note (B); United States v. Turner, 93 F.3d 276,
287 (7th Cir. 1996). But because the district
court must impose the longer of the two possible
sentences, Turner, 93 F.3d at 287, the govern-
ment’s decision to not offer proof on the actual
amount of methamphetamine in the mixture could
not have harmed Duvall.