United States v. Knight, Anthony ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-4219, 01-4264 & 01-4339
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY KNIGHT, WILLIE J. NEWTON JR.,
and TROY C. WILLIAMS,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 242—Rudolph T. Randa, Chief Judge.
____________
ARGUED MAY 22, 2003—DECIDED AUGUST 18, 2003
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Defendants Anthony Knight and
Troy Williams appeal their convictions for possession with
intent to distribute more than five kilograms of cocaine.
Knight, Williams, and defendant Willie J. Newton, Jr.
appeal their convictions for conspiracy to distribute and
to possess with intent to distribute more than five kilo-
grams of cocaine. All three defendants argue that they are
entitled to a new trial because the government improperly
withheld material exculpatory evidence. They also contend
that the district court violated Apprendi v. New Jersey, 530
U.S. 466 (2000), by not requiring the jury to return de-
fendant-specific findings of drug quantity for each offense
2 Nos. 01-4219, 01-4264 & 01-4339
(as opposed to the offense-specific findings that the jury
returned on a special verdict form). Williams raises two
additional challenges to his convictions and one to his
sentence, arguing that the appointment of the prosecuting
Special Assistant United States Attorney was improper and
rendered his indictment invalid, that the prosecution
improperly used its peremptory challenges to strike two
jurors for racial reasons, and that Apprendi required the
evidence of his prior convictions to be pleaded in the
indictment and proven to the jury. We find all of the defen-
dants’ challenges unavailing and affirm each of their
convictions and sentences.
HISTORY
Between 1993 and 1999, the defendants collaborated in a
complex scheme to traffic large quantities of cocaine from
Los Angeles, California, to Milwaukee, Wisconsin. Not sur-
prisingly, their activities required the efforts of a number of
associates, principally as couriers and dealers, many
of whom would eventually testify against the defendants
during their nearly three-week-long trial.
Knight was the organizer and leader of this criminal drug
organization and Williams was his second in command.
Newton and another codefendant, James Durant (who
voluntarily dismissed the appeal of his conviction), were
Knight’s middle-management lieutenants. They recruited
and managed the organization’s couriers and dealers and
performed other functions at Knight’s request.
In 1993, Newton and Durant recruited two female drug
couriers, Margaret Hicks Frampton and Doris Outlaw, to
begin transporting cocaine from Los Angeles to Milwaukee.
The two women packed the drugs in their luggage, used
public transportation to travel between the two cities, and
then checked into local hotels to complete the delivery. In
Nos. 01-4219, 01-4264 & 01-4339 3
July 1995, while en route to Los Angeles, Frampton was ar-
rested at a Phoenix, Arizona airport with over $100,000 in
cash in her suitcase. She was charged with money launder-
ing in an Arizona state court, which brought an end to her
career as a courier. Outlaw, on the other hand, voluntarily
quit her employment with Knight and Williams in 1997.
Shortly thereafter, she was arrested in Arkansas with a
carload of cocaine and marijuana (which she was transport-
ing for someone else). Her arrest led to a federal conviction
for drug trafficking.
With Frampton and Outlaw no longer at their disposal
and with the risks inherent in the use of public transpor-
tation for their criminal purposes apparent, Knight and
Williams bought a number of cars, which they registered in
the name of their coconspirators or under fictitious names,
and outfitted them with secret compartments to conceal
cocaine.
Durant ran the secret-compartment-car operation. He
began driving the cars himself before he recruited William
Wirth to assist him and make additional trips for Knight.
Wirth was paid between $5000 and $6000 per trip, and
made a number of drug runs. Six of these trips were docu-
mented by various Milwaukee hotel records, which included
information about the cars he drove—information that the
investigation later matched to the coconspirators or aliases
that the organization had employed to purchase and reg-
ister the cars.
Knight promoted Wirth to run the secret-compartment-
car operation after Durant was arrested in California while
transporting thirty kilograms of cocaine in one of the cars.
Believing that he was compromised by the arrest, Knight
no longer trusted Durant and began to issue his orders
directly to Wirth. Wirth, however, was arrested in February
1998, while attempting to transport six kilograms of cocaine
in a van he was driving to Memphis, Tennessee, and began
cooperating with federal authorities.
4 Nos. 01-4219, 01-4264 & 01-4339
Despite these periodic courier arrests, Knight and
Williams were still successful in obtaining large amounts of
cocaine from their drug-shipping network. They employed
a number of associates to distribute this supply, including
Laura Collins, Carl McAfee, and Marcus Adams.
Collins introduced Knight and Williams to her boyfriend,
McAfee, in the summer of 1994. McAfee thereafter began to
purchase kilograms of cocaine from Knight. McAfee did one
or two deals per month with Knight for a period of seven to
eight months, purchasing between two and ten kilograms
per deal—for a total of approximately thirty kilograms.
McAfee was arrested in August 1995, while attempting to
purchase four kilograms of cocaine from an undercover po-
lice officer in an unrelated transaction.
After McAfee went to prison, he arranged to have Collins
introduce Knight and Williams to Adams. Adams would go
on to purchase large quantities of cocaine from Knight and
Williams. At a price of $20,000 per kilogram, Adams esti-
mated he purchased over sixty-seven kilograms of cocaine
over the course of his relationship with the organization.
While McAfee and Adams had purchased multiple
kilogram quantities of cocaine from Knight and Williams,
Collins had contented herself with acting as the intermedi-
ary between the sellers and buyers (often allowing them to
use her home to complete the transaction) and had herself
only purchased small, one-ounce quantities of cocaine. But
in October 1996, Collins told Williams she desired a larger
role in the distribution network and wanted to sell larger
quantities. Williams agreed. The decision would prove
fateful, however, causing the fall of Knight and Williams’
drug empire.
On October 22, 1996, Knight and Williams came to
Collins’s house to discuss her intention to sell a kilogram of
cocaine. They returned later that evening, bringing five
kilograms with them, which they set on the living room
Nos. 01-4219, 01-4264 & 01-4339 5
floor. Collins had made arrangements to sell one kilogram
to Orlando Williams (no relation to defendant Williams, but
rather a friend of McAfee’s) for $22,500. Orlando arrived at
the house shortly after Williams and Knight. Collins took
a kilogram from the living room, left the house, and got into
Orlando’s car with him to close the deal. She returned a few
minutes later with a bundle of cash, which she placed on
the dining room table near where Knight was sitting.
Williams then left the house to go to the liquor store.
Within minutes, someone kicked in the door. Thinking it
was the police, both Knight and Collins fled the house
through the back door and into an alleyway. They heard
gunshots. Knight stopped running, telling Collins that it
wasn’t the police after all that had entered the house, but
robbers. Collins continued on alone.
Collins’s neighbors heard the gunshots and, drawn to the
scene after the shots had ceased, observed a heavyset black
man (Knight fits this description) running in and out of the
back door of Collins’s house, carrying items into the alley.
They also saw a second, thinner black male arrive in a
black Ford Bronco (the make and model of the car Knight
was known to drive at the time) and walk up to Collins’s
front porch.
When police officers arrived, they discovered evidence of
a drug-fueled gunfight. They found $2200 in blood-spat-
tered money and six kilograms of cocaine strewn about
Collins’s front yard. Blood was smeared on the front porch,
a knit hat with a bullet hole lay nearby, and a trail of blood
led from the house to the still-breathing body of Frank
McRae. When the police discovered him, McRae was hold-
ing a gun and a $10,600 bundle of blood-stained cash. He
died before telling the officers what had happened. Inside
Collins’s home, police retrieved spent cartridge casings from
two different guns—.45 caliber casings fired from McRae’s
gun and .40 caliber casings fired from an unidentified
6 Nos. 01-4219, 01-4264 & 01-4339
weapon. McRae’s unoccupied truck, doors open and keys
still in the ignition, was parked nearby Collins’s home.
Further down the street, police found Williams’s photo ID
and keys to his car.
Police discovered five kilograms of cocaine and about
$200 cash in Collins’s living room. In the alley behind the
house they found several cardboard boxes full of cocaine.
The first box contained thirteen kilograms; another, ten. An
additional ten kilograms of cocaine were found scattered
about the alley and against the foundation of an adjacent
home. In total, police recovered forty-four kilograms of co-
caine in and around Collins’s home that evening. The
substantial amount of drugs seized prompted local police to
contact federal authorities.
Within a few days, Collins surrendered and agreed to
cooperate. She gave several statements describing her drug
transaction with Orlando, the break in and gunfight, and
her flight from the house. It wasn’t until her third state-
ment, however, that Collins identified Knight and Williams
as her suppliers. Collins was charged with a drug traffick-
ing offense. She pleaded guilty and, in accordance with her
plea agreement, testified against Orlando (who also was
arrested and charged with trafficking). Federal warrants
were issued for Knight and Williams.
Knight was arrested in August 1999, by California
authorities at a stash house, which Durant had rented for
him after the October 22 raid. Knight had attempted to
purchase forty kilograms of cocaine from an informant who
was working with local police. Police recovered drugs, guns,
drug paraphernalia, and nearly a half million dollars in
cash from the house. Five vehicles parked on the property
had secret compartments. One, a Toyota Previa van
purchased by Newton, contained sixty-three kilograms of
cocaine. Two others held fifty-six kilograms between them
in their compartments. Still another, a Toyota sedan that
Nos. 01-4219, 01-4264 & 01-4339 7
Wirth had been known to drive, had empty compartments,
but eight kilograms of cocaine in a gym bag were found in
its trunk. Keys to all five vehicles were found on the key
ring in the truck that Knight was known to drive at the
time. In total, 144 kilogram bricks of cocaine were recovered
from the stash house and the various cars. Williams was
arrested a year later.
On April 23, 2001, a federal grand jury returned a second
superseding indictment against Knight, Williams, Newton,
and Durant. The first count charged Knight and Williams
with possession with intent to distribute five or more kilo-
grams of cocaine in violation of 21 U.S.C. § 841(a)(1),
arising from the events that transpired on October 22 at
Collins’s home. The second count charged all four defen-
dants with violating 21 U.S.C. §§ 841(a)(1) and 846 by con-
spiring to distribute and to possess with intent to distribute
five or more kilograms of cocaine.
The defendants’ trial began on July 23, 2001. The govern-
ment called forty-four witnesses, including couriers
Frampton, Outlaw, and Wirth; dealers McAfee, Adams, and
Collins; and coconspirator and mid-level manager Durant.
In addition, the government produced the testimony of the
various state and federal authorities responsible for the
numerous arrests and continuing investigation. To corrobo-
rate the witnesses’ testimony regarding the events related
above, the government presented, among other things, the
testimony of hotel managers and employees, who provided
hotel records establishing short overlapping local hotel
stays for Knight, Williams, Newton, Durant, and the vari-
ous couriers; photographic evidence of the crime scene at
Collins’s home on October 22; and motor vehicle records
for the numerous secret-compartment cars used by the
organization.
The jury was instructed on the offenses utilizing the
Seventh Circuit pattern jury instructions. The jury verdict
8 Nos. 01-4219, 01-4264 & 01-4339
forms required the jurors to determine each defendant’s
guilt on each count; a special verdict question for each count
then requested the jury to determine, once guilt was
established, whether the offense charged involved five or
more kilograms of cocaine. The jury returned guilty ver-
dicts for all three defendants on all counts charged (Knight
and Williams for conspiracy and possession, Newton for
conspiracy only) and determined that for each offense, the
drug involved was cocaine and the amount met or exceeded
five kilograms. Knight, Williams, and Newton were there-
after sentenced to the statutory maximum—life in prison.
ANALYSIS
Knight, Williams, and Newton all claim that the govern-
ment improperly withheld material exculpatory evidence
and that the government’s untimely disclosure prejudiced
their right to a fair trial. They also all claim that Apprendi
required the jury to return defendant-specific findings of
drug quantity and type instead of the offense-specific find-
ings that the jury returned in this case. In addition,
Williams raises three independent issues to his conviction
and sentence. We address each argument in turn.
A. Discovery Disputes
Williams filed several pretrial discovery demands, re-
questing the government to search for a generalized and
exhaustive list of material favorable to him. (Neither
Knight nor Newton made similar requests.) The district
court noted that the general principles outlined by the
Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963),
Giglio v. United States, 405 U.S. 150 (1972), United States
v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S.
419 (1995), obliged the government to turn over the materi-
als that Williams had requested in his motion. Nonetheless,
Nos. 01-4219, 01-4264 & 01-4339 9
the district court denied Williams’s generalized request,
noting its confidence that the government would voluntar-
ily comply with its discovery obligations under this line of
precedent.
To that end and in accordance with its open-file policy,
the government provided the defendants approximately
4000 pages of discovery materials and made available for
inspection and copying the numerous telephone tapes, logs,
and records that had been collected during the course of the
investigation. In addition, on July 19, 2001, four days before
the start of trial, the prosecutor drafted a letter to the
defendants, addressing the benefits promised to govern-
ment witnesses Frampton, Outlaw, McAfee, and Adams in
exchange for their testimony.
On the first day of trial, the government supplemented
these discovery materials with an updated criminal history
for each of its witnesses. Throughout the trial, as the gov-
ernment continued to receive additional investigatory
materials regarding its arrangements with testifying wit-
nesses, it in turn provided them to the defense. After the
first full week of trial, the government disclosed the results
of a ballistic analysis performed in August 1998 on shell
casings recovered from the shootout at Collins’s home on
October 22, 1996. Those results indicated that some of the
casings had been fired from a firearm that the Milwaukee
police later recovered from Danny Patrick Jones, an indi-
vidual unaffiliated with any of the defendants or witnesses.
Also, the government disclosed after the first week of trial
that Milwaukee police had recovered a latent fingerprint
from one cocaine package recovered from Collins’s home
that did not match either Knight’s or Williams’s prints.
The defendants complained that this rolling disclosure
of impeachment and physical evidence prejudiced the
preparation of their defense. In repeated oral motions for
mistrial and motions to exclude the testimony of witnesses,
10 Nos. 01-4219, 01-4264 & 01-4339
they argued that given the complexity of the case, the gov-
ernment’s untimely disclosures precluded them from mak-
ing effective use of any of the material exculpatory evidence
being continually disclosed. The district court denied these
various motions.
In this appeal of those denials and of the later denial of
the defendant’s motion for a new trial, the defendants con-
test the government’s handling of two categories of discov-
ery materials. First and foremost, they claim that the
government suppressed impeachment information regard-
ing four of its key witnesses—Durant, Wirth, Outlaw, and
McAfee. Second, they challenge the late disclosure of the
fingerprint and ballistic analyses.
To prove a Brady violation, the defendants must show
that (1) the evidence at issue is favorable to them because
it is either exculpatory or could be used for impeachment;
(2) the evidence has been suppressed (i.e., the existence of
the evidence was known, or reasonably should have been
known, to the government, the evidence was not otherwise
available to the defendant through the exercise of reason-
able diligence, and the government either willfully or inad-
vertently withheld the evidence until it was too late for the
defense to make use of it); and (3) the suppression of the
evidence resulted in prejudice (i.e., there is a reasonable
probability that had the evidence been disclosed, the out-
come might have been different, such that confidence in the
actual outcome is undermined). United States v. O’Hara,
301 F.3d 563, 569 (7th Cir. 2002); United States v. Wilson,
237 F.3d 827, 832 (7th Cir. 2001); United States v. Morris,
80 F.3d 1151, 1169 (7th Cir. 1996). The district court
maintains broad discretion to determine Brady violations;
we will review the exercise of that discretion for abuse only.
Wilson, 237 F.3d at 831-32; United States v. Hartman, 958
F.2d 774, 790 (7th Cir. 1992).
Nos. 01-4219, 01-4264 & 01-4339 11
1. Impeachment Evidence
The defendants claim that the government suppressed
impeachment evidence regarding four of the government’s
key witnesses—Durant, Wirth, Outlaw, and McAfee. There
is no dispute among the parties that evidence probative of
the testifying witnesses’ credibility, including the potential
for bias, is evidence favorable to the accused. See Crivens v.
Roth, 172 F.3d 991, 998 (7th Cir. 1999). Instead the govern-
ment and defendants contest whether this evidence was
ever suppressed and, if it was, whether the defense was
prejudiced as a result.
It was no surprise to the defense that many of the mate-
rial witnesses the government produced to testify had been
convicted of or faced pending drug-related charges and that
the witnesses had offered the government their testimony
in exchange for leniency on their own offenses. The defense
received the criminal histories and information regarding
the existence of these arrangements before trial. While it
was far from ideal that additional impeachment evidence
came to light and was disclosed to the defense only during
the course of a fairly complex drug-conspiracy trial, the
defense had an appropriate opportunity to incorporate that
information into their cross-examination of each witness.
Therefore, because the government in fact provided this
material with enough time for the defense to make use of it,
it was never suppressed. Accord O’Hara, 301 F.3d at 569(finding no suppression where evidence pertinent to the
issue of the witness’s credibility was disclosed with “plenty
of time . . . to make use of the information”).
More importantly, even if the government’s rolling dis-
closures regarding impeachment evidence were incomplete
in some respects or were delivered too late for the defense
to make effective use of that particular information, the
suppression of this additional evidence did not prejudice the
defendants. Given the effective cross-examination con-
12 Nos. 01-4219, 01-4264 & 01-4339
ducted on each of these four witnesses, which extensively
covered their motivation to trade their testimony against
Knight, Williams, and Newton in exchange for the promise
of lenient treatment by the government, it is unlikely that
any of the additional information about which the defense
complains would have made a difference to the jury in their
appraisal of the evidence. In as much as this evidence was
cumulative on the issue of motivation and bias, its suppres-
sion does not raise a reasonable probability that the out-
come would have been different, so as to undermine our
confidence in the actual outcome. Accord Pruitt v. McAdory,
No. 02-4100, 2003 U.S. App. LEXIS 14865, at *14 (7th Cir.
July 25, 2003); Wilson, 237 F.3d at 832-33 (finding no Brady
violation where informant-witness had already been so
thoroughly impeached that any additional impeachment
evidence disclosed wouldn’t have made any difference).
For example, the defendants complain that they didn’t
receive codefendant Durant’s complete criminal history or
notice that he had entered into an additional plea agree-
ment for federal drug charges he was facing in the Western
District of Tennessee until the first day of trial on July 23.
Durant, however, didn’t begin testifying until August 1 and
wasn’t cross-examined until August 2. And on cross-exami-
nation, Durant was questioned thoroughly about the plea
agreements he had entered into with the government both
on the charges he faced in the instant case and in Tennes-
see. In addition, he was questioned extensively about the
fact that in exchange for his testimony and for pleading
guilty to lesser-included offenses, he expected the sentences
he faced on these charges to be reduced from a maximum of
life in prison to a maximum of ten years. (Tr. at 1591-93,
1606, 1620-21.)
Similarly, the defendants complain that the government
withheld, until the day Outlaw testified, a copy of her 1999
Arkansas plea agreement, which showed that the federal
prosecutor in Arkansas agreed to recommend a 10% down-
Nos. 01-4219, 01-4264 & 01-4339 13
ward departure in return for her substantial assistance.
They also complain that the criminal history the govern-
ment provided for Outlaw was incomplete and inaccurate.
Nonetheless, the district court reviewed the plea agreement
and questioned Outlaw about it, concluding that its terms
were sufficiently clear to permit the defendants to cross-
examine her about it and her motivation for testifying
in the instant case. (Tr. at 569-73.) On the resulting cross-
examination, Outlaw was interrogated thoroughly regard-
ing her criminal history (she conceded that she had prior
convictions for prostitution, bookmaking, and drug posses-
sion)1; her ability to recall the events at issue; inconsistent
statements she had made to law enforcement officers; and
the terms of her plea agreement, the fact that her sentence
for her Arkansas trafficking conviction was reduced from
ten to six years in accordance with that agreement, and her
hopes for a further sentence reduction in exchange for her
testimony against the defendants. (Tr. at 579-612, 614-17,
620-25.)
The defendants address their complaints about the dis-
closures made regarding witnesses Wirth and McAfee in
similar fashion. For each, the defendants assert that the
government withheld impeachment information—in Wirth’s
case, grand-jury transcripts and information regarding his
bond status; in McAfee’s, tapes and phone records of his
prison calls to Collins and others—that would have enabled
them to present a more effective defense. The defendants
fail to demonstrate with particularity, however, that there
was anything helpful about this information. And even
assuming that it was favorable, they once again have not
shown that it was withheld until they were unable to make
1
We merely note that the defense was successful in putting this
prior-conviction information before the jury. We express no opin-
ion on whether its admission was proper under federal evidentiary
rules.
14 Nos. 01-4219, 01-4264 & 01-4339
effective use of it or that they were prejudiced as a result.
Wirth’s grand-jury testimony was made available to the
defense on the first day of trial, July 23, and he didn’t tes-
tify until August 2; the McAfee tapes were part of the evi-
dence that the government had invited the defendants to
inspect and copy before trial and therefore were previously
available to the defense through a reasonable exercise of
diligence, see Morris, 80 F.3d at 1170. And both witnesses
were thoroughly cross-examined regarding their relevant
criminal histories, plea arrangements, and, in Wirth’s case,
bond status and prior testimony, and, in McAfee’s, tele-
phone conversations. (Tr. at 668-72, 677-89, 695-704, 1715-
23, 1734-44, 1746-48.)
In sum, the defendants have failed to show that favorable
impeachment evidence was suppressed and that its sup-
pression prejudiced their defense.
2. Physical Evidence
Knight and Williams defended the possession charge on
the grounds that they were not present at Collins’s home
the night of October 22 when it was robbed. Given this,
both sides agree that the results of the fingerprint and bal-
listic analyses, which point to the possibility of another
actor’s involvement, were evidence favorable to their de-
fense. The parties instead split over whether the evidence
was withheld beyond a time when the defendants could
make effective use of it or whether, if actually suppressed,
the evidence was so favorable to the defense that there
exists a reasonable probability that if disclosed, the outcome
of the trial would have been different so as to undermine
confidence in the actual verdict.
The results of the ballistic evidence, which showed that
some of the casings recovered from the shootout at Collins’s
home had been fired from a gun that Milwaukee police took
Nos. 01-4219, 01-4264 & 01-4339 15
from Danny Patrick Jones during an unrelated drug arrest
one-and-a-half years after the incident, was only disclosed
to the defense during the trial, nine days before the start of
the defense’s case. The government in response claims it did
not receive this August 1998 report from the Milwaukee
police department until after the trial had started and that
it disclosed it at the earliest opportunity on the next trial
day. Assuming arguendo that the government reasonably
should have known about this evidence earlier and should
have made efforts to retrieve it from the Milwaukee police
department, see United States v. Bhutani, 175 F.3d 572,
577 (7th Cir. 1999) (observing that even if the prosecution
has only consulted with a government agency on a case, the
agency is considered part of the prosecution and informa-
tion within the agency’s knowledge and control will be
imputed to the prosecution), we nonetheless conclude that
the defense had sufficient opportunity to make use of the
evidence once it was disclosed.
The defendants do not effectively counter this point. They
do not assert that they would have attempted to locate
Jones had they had more time to review the report. And the
record reveals that the defense made as effective use of this
evidence as was likely possible under even the best of cir-
cumstances. The ballistics expert told the jury that Jones
had been arrested for a drug-related offense, had been
found in possession of a weapon that matched some of the
casings recovered from Collins’s home, and suggested,
somewhat tenuously, that Jones may have been a partici-
pant in the drug and robbery activity that evening. In the
defendants’ closing argument, counsel used this testimony
to argue that the government had unreasonably focused its
investigative efforts on the defendants, while ignoring the
culpability of others such as Jones—who, in the words of
defense counsel, was “the man whose gun was used to shoot
Frank McRae.” (Tr. at 2206.) As this reference makes clear,
the argument that it was Jones who was involved with the
16 Nos. 01-4219, 01-4264 & 01-4339
aborted drug deal at Collins’s house and not the defendants
was emphasized in the defense’s case before the jury.
Likewise, the defense made effective use of the finger-
print-analysis results despite the government’s late disclo-
sure. Those results indicated that one of the packages of
cocaine had been handled by someone whose fingerprints
did not match those of Knight or Williams. This May 2001
Milwaukee police report was disclosed to the defense upon
its receipt by federal prosecutors on July 31, 2001, eight
days into the trial, eight days before the government rested
its case, and nine days before the start of the defense. The
defendants did not seek to call the fingerprint examiner as
a witness to discuss the substance of his analysis that
excluded Knight, Williams, McRae, Collins, and Orlando as
the source of the print. Nor have they argued that they
tried, but were unable to do so, because nine days was not
enough time. In any event, even without calling the analyst
as a witness, the defense in closing repeatedly called the
jury’s attention to the fact that none of the packages re-
trieved from Collins’s home bore Knight’s or Williams’s
fingerprints.
It was not surprising, however, that the jury did not ac-
cept as persuasive the defense’s theory of the case, sup-
ported by its use of the ballistic analysis and the absence of
Knight’s and Williams’s fingerprints. There was substantial
evidence showing that Knight and Williams delivered the
cocaine to Collins’s home that evening, including, among
other things, Collins’s testimony, her neighbor’s observation
of a man meeting Knight’s description carrying objects out
into the alley after the gunfire stopped, the recovery of
forty-four kilograms of cocaine, much of it from that alley,
the neighbor’s sighting of a car at the scene matching the
description of Knight’s vehicle, the location of Williams’s
identification and car keys, and Adams’s testimony that
Knight had told him that Knight’s drugs had been the
target of the robbery attempt at Collins’s home. The jury
weighed this evidence and concluded that the testimony
Nos. 01-4219, 01-4264 & 01-4339 17
and circumstantial evidence implicating Knight and
Williams was credible and proved, beyond a reasonable
doubt, that they were in possession of the cocaine recovered
from Collins’s home that night. The defendants have not
shown how any additional use of the ballistics or fingerprint
evidence beyond what they were able to place before the
jury would have undermined confidence in that conclu-
sion. They, therefore, have not established that this evi-
dence was suppressed in that they could not make use of it,
nor have they shown that, if suppressed, they were preju-
diced by it.
Our opinion should not be read as a ringing endorsement
of the government’s actions. We believe that the delay in
delivering this material could have been avoided or, at the
least, diminished. And we emphasize that we are aware of
the probability that eve-of-trial disclosures or, as here, in-
trial disclosures may prevent the defense from “divert[ing]
appropriate resources from other initiatives and obligations
that are or may seem more pressing” in order to “assimilate
[this new] information into its case.” Leka v. Portuondo, 257
F.3d 89, 101 (2d Cir. 2001) (citation omitted). That possibil-
ity was raised by the late disclosures here. Nonetheless, the
defendants have not established that the possibility for
prejudice ripened into actual harm on account of their ina-
bility to make effective use of information that reasonably
may have affected the trial’s outcome. That their counsel
was able to incorporate these continuing disclosures into
the defense of a complex drug-conspiracy case is certainly
a testament to their mettle as trial counsel. Regardless, we
must deny the defendants’ Brady claim because they have
not made the requisite showings of suppression or preju-
dice.
B. Drug Quantity
Knight, Williams, and Newton next argue that the dis-
trict court erroneously instructed the jury on the two counts
18 Nos. 01-4219, 01-4264 & 01-4339
of conviction. Reviewing the district court’s instruction, we
“must determine from looking at the charges as a whole,
whether the jury was misled in any way and whether it had
understanding of the issues and its duty to determine those
issues.” United States v. Fawley, 137 F.3d 458, 467 (7th Cir.
1998) (quotation omitted). “So long as the instructions treat
the issues fairly and accurately, they will not be disturbed
on appeal.” United States v. Doerr, 886 F.2d 944, 960 (7th
Cir. 1989) (quotations omitted).
Here, the court gave the Seventh Circuit Pattern Instruc-
tion pertaining to 21 U.S.C. §§ 841(a)(1) and 846, together
with a special verdict question for each count. (Tr. at 2287-
95.) The special verdict question, to be answered only if the
jury found at least one defendant guilty of the charge,
asked the jury to determine if the offense involved five kilo-
grams or more of cocaine. The special verdict question was
prompted by the Supreme Court’s ruling in Apprendi v.
New Jersey, 530 U.S. 466 (2000) and tracked the relevant
language of 21 U.S.C. § 841(b)(1).
The defendants argue, as they did below, that the instruc-
tions were erroneous. They contend that Apprendi requires
a defendant-specific finding regarding drug quantity and
type rather than the offense-specific finding used by the
district court. Accordingly, they argue that this Circuit’s
pattern instruction is facially deficient and that the defect
was not cured by the court’s special verdict question. They
argue that the alternate jury instructions they proposed
more closely approximated the post-Apprendi legal land-
scape and would have better informed the jury.
In Apprendi, the Supreme Court held that “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maxi-
mum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. at 490. Before Apprendi, courts
treated the penalty provision of § 841(b), with its escalating
Nos. 01-4219, 01-4264 & 01-4339 19
drug-quantity triggers, as sentencing factors—to be deter-
mined by judges by a preponderance of the evidence at
sentencing.
After Apprendi, drug type and quantity remain sentenc-
ing issues, but the burden of proof and fact finder have
changed. See Horton v. United States, 244 F.3d 546, 552
(7th Cir. 2001). Apprendi means that the defendants may
be subject to a statutorily enhanced sentence based on drug
type and quantity, as provided in § 841(b), only if those
facts are charged in the indictment and proven to a jury
beyond a reasonable doubt. United States v. Nance, 236
F.3d 820, 824-25 (7th Cir. 2000).
The requisite content of a jury instruction in a multi-
defendant case alleging drug conspiracy and possession
post-Apprendi is an issue of first impression in this circuit.
It has, however, been addressed by other circuits. In
Derman v. United States, 298 F.3d 34, 42 (1st Cir. 2002),
the First Circuit found that Apprendi did not require defen-
dant-specific findings of drug type and quantity to a con-
spiracy charge. The court relied upon Edwards v. United
States, 523 U.S. 511 (1998), in which the Supreme Court
held that “as long as (1) the jury finds beyond a reasonable
doubt that a defendant participated in a conspiracy, and (2)
the Court sentences him within the statutory maximum
applicable to that conspiracy, the court may ‘determine both
the amount and the kind of “controlled substances”
for which [the] defendant should be held accountable—and
then . . . impose a sentence that varies depending upon
amount and kind.’ ” Derman, 298 F.3d at 42 (quoting
Edwards, 523 U.S. at 513-14).
We agree with the First Circuit that Apprendi did not
overrule Edwards and that its holding does not require de-
fendant-specific findings of drug type and quantity in drug-
conspiracy cases. As that court observed,
the two decisions are easily harmonized: in a drug con-
spiracy case, the jury should determine the existence
20 Nos. 01-4219, 01-4264 & 01-4339
vel non of the conspiracy as well as any acts about the
conspiracy that will increase the possible penalty for
the crime of conviction beyond the default statutory
maximum; and the judge should determine, at sentenc-
ing, the particulars regarding the involvement of each
participant in the conspiracy.
This means that once the jury has determined that the
conspiracy involved a type and quantity of drugs suf-
ficient to justify a sentence above the default statutory
maximum and has found a particular defendant guilty
of participation in the conspiracy, the judge may law-
fully determine the drug quantity attributable to that
defendant and sentence him accordingly . . . . The rule,
then, is that the government need only allege and prove
to the jury the bare facts necessary to increase the
statutory sentencing maximum for the conspiracy as a
whole.
Id. at 42-43 (citations and footnote omitted); see also United
States v. Turner, 319 F.3d 716, 722-23 (5th Cir. 2003) (fol-
lowing Derman).
Derman’s analysis remains sound despite the Supreme
Court’s more recent decision in Ring v. Arizona, 536 U.S.
584 (2002), which found that Arizona’s capital-punishment-
sentencing scheme violated the defendant’s Sixth Amend-
ment jury-trial right. Id at 602-09. Arizona’s scheme vested
a single trial judge with the authority to increase a defen-
dant’s sentence from life in prison to the death penalty by
finding the presence of aggravating factors. Without the
determination of those aggravating factors, the maximum
sentence that could be imposed under a jury’s guilty verdict
on a first-degree murder charge was life in prison. Consis-
tent with Apprendi, the Supreme Court ruled that capital
defendants, no less so than noncapital defendants, are enti-
tled under the Sixth Amendment to a jury determination of
any fact upon which the legislature increases their statu-
tory maximum punishment. Since a defendant could face
Nos. 01-4219, 01-4264 & 01-4339 21
the death penalty only upon proof of the aggravating fac-
tors, they must be submitted to a jury and proved beyond a
reasonable doubt. Id. at 609.
Ring, however, is under Derman’s analysis as reconcilable
with Edwards as is Apprendi. Once the jury determines the
existence of the conspiracy, the defendants’ participation in
it, and assigns a type and quantity attributable to the con-
spiracy as a whole, it has established the statutory maxi-
mum sentence that any one participant in that conspiracy
may receive. Derman, 298 F.3d at 42. Once that maximum
sentence has been established (ceiling), the judge may
determine the drug quantity attributable to each defendant
(floor) and sentence him accordingly. Id. at 42-43. The
sentencing judge’s findings do not, because they cannot,
have the effect of increasing an individual defendant’s
exposure beyond the statutory maximum justified by the
jury’s guilty verdict. This arrangement, therefore, does not
compare with Arizona’s capital-sentencing scheme, which
allowed a judge’s subsequent finding of aggravating factors
to raise the ceiling of maximum punishment authorized by
the jury’s verdict. See Ring, 536 U.S. at 603.
Furthermore, a review of our own case law, though not
directly own point, leads us to the same conclusion that the
First Circuit reached in Derman. In United States v. Tren-
nell, for example, we implicitly approved a jury instruction
and special verdict form substantially similar to the one
at issue here. 290 F.3d 881, 889 (7th Cir. 2002). In Trennell,
we addressed an Apprendi challenge where drug quantity
was not pleaded in the indictment but was submitted to the
jury with instructions and special verdict questions that
asked the jury to find the total amount of the drugs distrib-
uted in the conspiracy. Id. at 888-89. Rejecting the defen-
dant’s claim that the jury instructions created a variance
from the indictment and that the failure to allege the drug
quantity in the indictment created constitutional error, we
found that the special verdict form properly instructed the
22 Nos. 01-4219, 01-4264 & 01-4339
jury to return a drug-quantity finding attributable to the
conspiracy. Id. at 889.
And in United States v. Patterson, when reviewing under
the plain-error standard the post-Apprendi sentence of
a defendant whose drug quantity had not been submitted to
the jury, we observed that for purposes of determining
whether the error was harmless “[f]ocus on [the amount
possessed by] the conspiracy is the right perspective.” 241
F.3d 912, 914 (7th Cir. 2001) (per curiam). This was so “be-
cause each of the defendants . . . was convicted of conspiring
with the others to distribute drugs, and as a member of the
conspiracy each is accountable for the acts of all other
conspirators within the scope of that agreement.” Id. at 914.
In sum, then, we find that the district court’s instructions
were legally proper and adequately advised the jury about
the applicable law. Under those instructions and making
use of the special verdict form, the jury determined whether
each defendant was guilty of participating in the conspiracy
and then determined that the conspiracy involved a type
and quantity of drugs sufficient to trigger the statutory
maximum of life in prison. Once the defendant’s partici-
pation in the drug conspiracy was proven, the judge at
sentencing appropriately determined the drug quantity at-
tributable to that particular defendant and sentenced him
accordingly. Derman, 298 F.3d at 42-43.
The defense was therefore not entitled to its proposed
instructions, which were not then, nor are they now, accu-
rate statements of the law. See Fawley, 137 F.3d at 468-69.
The defense’s proposed instructions were based on a broad
interpretation of the Ninth Circuit’s holding in United
States v. Nordby, 225 F.3d 1053 (9th Cir. 2000), a case for
which we reserve comment save to note, as did the First
Circuit in Derman, that Nordby was limited by the Ninth
Circuit’s subsequent decision in United States v. Buckland
Nos. 01-4219, 01-4264 & 01-4339 23
and modified further by its decision in United States v.
Patterson to be consistent with the reasoning we adopt
today. Derman, 298 F.3d at 43 (citing Buckland, 289 F.3d
558, 567-68 (9th Cir. 2002) (en banc), and Patterson, 292
F.3d 615, 623 (9th Cir. 2002)).
Finally, the record in this case contains overwhelming
evidence demonstrating that each of these three defendants
is personally responsible for, and could easily foresee that
the conspiracy involved, five or more kilograms of cocaine.
Accord Patterson, 241 F.3d at 914. At Collins’s house alone,
police recovered forty-four kilograms of cocaine. Couriers
Frampton, Outlaw, and others supervised by Newton made
numerous trips back and forth from California to Milwau-
kee bringing with them multiple kilograms of cocaine.
Wirth made dozens of trips in secret-compartment cars that
could hold dozens of kilograms of cocaine. Williams picked
up each load. McAfee and Adams bought cocaine from
Knight and Williams on multiple occasions in quantities up
to twenty kilograms. And 144 kilograms of cocaine were
recovered from Knight’s California stash house, some of it
already loaded into cars in preparation of the next drug
run. Moreover, the evidence establishes that these defen-
dants were the core members of this conspiracy and not
fringe members; the full weight of drugs involved were
thus foreseeable and attributable to each. Therefore, even
if there was error in not attributing a defendant-specific
finding on the charges in this case, any error would have
been harmless given the evidence. Neder v. United States,
527 U.S. 1, 10-11 (1999) (holding that erroneous jury
instruction that omitted an element of the offense is subject
to harmless-error analysis); Nance, 236 F.3d at 825 (observ-
ing that to satisfy harmless-error analysis the court must
ask whether it is “clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty
absent the error.” (quotation omitted)).
24 Nos. 01-4219, 01-4264 & 01-4339
C. Williams’s Individual Challenges
The remaining three challenges raised solely by Williams
are meritless, and we may dispose of them with minimal
discussion. First, Williams argues that the district court
should have dismissed his indictment. He argues that be-
cause the State of Wisconsin continued to pay the salary of
the Assistant District Attorney Karine O’Byrne during her
service as a Special Assistant U.S. Attorney (SAUSA), her
appointment violated 28 U.S.C. § 548, which provides that
the Attorney General of the United States shall fix the
annual salaries of SAUSAs. He further argues that since
her appointment was not valid, SAUSA O’Byrne was not
an “attorney[ ] for the government,” and her appearance
before his indicting grand jury violated Federal Rule of
Criminal Procedure 6(d). Notwithstanding the potential
for error in this arrangement, any such error is harmless.
The purpose of Rule 6(d) is “to protect the innocent from
being indicted.” United States v. Fountain, 840 F.2d 509,
515 (7th Cir. 1988). Because Williams was found guilty at
trial, he is “not a member of the class of beneficiaries of the
rule” and is not entitled to invoke it to reverse his convic-
tion. Id. Accord United States v. Mechanik, 475 U.S. 66, 67,
71-72 (1986) (explaining that “the petit jury’s verdict of
guilty beyond a reasonable doubt demonstrates a fortiori
that there was probable cause to charge the defendants
with the offenses for which they were convicted”); United
States v. Rosario, 234 F.3d 347, 352 (7th Cir. 2000) (convic-
tion at trial “indicates a proper grand jury proceeding would
have still yielded an indictment”).
Second, Williams argues that his conviction must be re-
versed because the government violated Batson v. Ken-
tucky, 476 U.S. 79 (1986), by striking two jurors for racial
reasons. Under Batson, after the defendant makes a prima
facie showing that a prosecutor exercised a peremptory
strike based on race, the burden shifts to the prosecutor to
Nos. 01-4219, 01-4264 & 01-4339 25
provide a race-neutral explanation for the strike. Mahaffey
v. Page, 162 F.3d 481, 482-83 (7th Cir. 1998). If an explana-
tion is provided, the ultimate burden rests upon the de-
fendant to prove that the explanation was offered as mere
pretext for racial discrimination. Id. at 483.
The district court found that the government’s proffer of
reasons for striking these two jurors—the first juror for the
observation that her difficulty in understanding the prosecu-
tor’s voir dire questions made it likely that she would have
difficulty understanding the wealth of information to be
presented during the three-week trial; the second juror for
his at best inattentiveness during voir dire and at worst
excessive fatigue from working two jobs—was legitimate
and not pretextual. We review the district court’s findings
for clear error, United States v. James, 113 F.3d 721, 728
(7th Cir. 1997), keeping in mind the fact that the district
court is in the best position to determine whether a reason
given for a strike is mere pretext and reversing only if “the
reason given is completely outlandish or there is other evi-
dence which demonstrates its falsity.” Tinner v. United Ins.
Co., 308 F.3d 697, 703 (7th Cir. 2002) (quotation omitted).
Williams cannot satisfy either test. It is not completely
outrageous that the government would be interested in
striking jurors who it felt either could not grasp the com-
plexities of its trial evidence or were too tired to pay atten-
tion. And Williams has presented no independent evidence
demonstrating that these reasons were false: for example,
he identifies no non-African-American jurors who were
similarly situated (i.e., noncomprehending or inattentive
and sleeping) but who were allowed to remain. See Coulter
v. Gilmore, 155 F.3d 912, 921 (7th Cir. 1998) (treatment of
similarly situated jurors relevant to determine discrimina-
tory intent). His Batson challenge thus fails.
Finally, Williams contends that his sentence offends
Apprendi because evidence of his prior convictions, which
Williams argues increased his sentence beyond the statu-
26 Nos. 01-4219, 01-4264 & 01-4339
tory maximum, were not proven to the jury. But Apprendi
expressly reserved prior convictions from the scope of its
holding. 530 U.S. at 490. And as discussed above, based on
the jury’s finding of drug type and quantity, the statutory
maximum that Williams faced on both charges was life
in prison. The sentence he received did not exceed the
statutory maximum; it was the statutory maximum. Thus,
Apprendi does not apply. The prior drug convictions may
have increased his statutory minimum sentence for these
offenses, but this is not prohibited by Apprendi. We have
recognized that the Supreme Court in Apprendi expressly
declined to overrule McMillan v. Pennsylvania, 477 U.S. 79(1986), which upheld a statutory minimum prison term that
was based solely on the sentencing judge’s preponderance-
of-the-evidence findings. United States v. Rodgers, 245 F.3d
961, 966 (7th Cir. 2001); see also Harris v. United States,
536 U.S. 545, 564-65 (2002); Nance, 236 F.3d at 825. In any
event, the life sentence that Williams received was not de-
pendant upon his prior conviction information, but rather
the applicable guideline range, properly determined by the
sentencing court to fall at the statutory maximum.
CONCLUSION
For the foregoing reasons, we AFFIRM the convictions of
Knight, Williams, and Newton and we AFFIRM Williams’s
sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-18-03