United States v. Royal, Quintus , 244 F. App'x 50 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 9, 2007
Decided August 1, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2541
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 04 CR 863
QUINTUS ROYAL,
Defendant-Appellant. Joan B. Gottschall,
Judge.
ORDER
The jury convicted Quintus Royal of two counts of distributing a controlled
substance and completed special verdict forms which indicated that at least fifty grams
of crack cocaine were involved in each count. Relying on the jury’s special findings, the
district court sentenced Royal to the statutory mandatory minimum of 240 months’
imprisonment. Royal now appeals his convictions and sentence. Because the district
court properly relied on the jury’s special verdict findings in sentencing Royal to the
enhanced penalties for crack cocaine, we affirm the judgment of the district court.
No. 06-2541 Page 2
I. BACKGROUND
Royal’s convictions arose from his sale of crack cocaine on two occasions in the
spring of 2004. Both transactions were arranged and audio recorded by Frederick
Watkins, a confidential informant for the Drug Enforcement Administration. On
March 23, 2004, Watkins told Royal, “[m]y man want to buy a couple ounces.” Watkins
explained that his supplier was charging $800 per ounce, to which Royal replied, “I can
give it to you for 750 an ounce.” Later in the conversation, Watkins clarified that he
“want[ed] it rocked up,” and Royal agreed, “[i]t gonna be rocked.”
A week later, Watkins met Royal to complete the first transaction. Watkins paid
Royal $1500 for two ounces of cocaine, which Royal said he had “cooked . . . up” the
night before. The second transaction occurred on April 9, 2004. This time Officer
Daniel Allen, an undercover officer with the Chicago Police Department, accompanied
Watkins to the meeting point, where Watkins paid Royal $1500 and Royal handed two
ounces of cocaine to the officer. For his acts, Royal was charged with two counts of
knowingly and intentionally distributing controlled substances, namely, mixtures
containing crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
At trial, the major issue was whether Royal distributed crack cocaine or some
other controlled substance. To establish the identity of the substances, the government
offered evidence regarding the substances’ chemical properties. Robert Krefft, a DEA
senior forensic chemist, detailed the battery of chemical tests that he conducted on the
drugs. Krefft testified that two of the tests he performed, the “ether solution sample”
and infrared-spectrum tests, showed the presence of cocaine base. He also testified
that the weights of the controlled substances recovered during the first and second
transactions were 54.7 and 52.2 grams.
The government also played recordings of conversations between Watkins and
Royal and offered witness testimony to explain the terms used during those
conversations. Specifically, Watkins testified that on March 23, 2004, when he told
Royal that an acquaintance wanted to “buy a couple ounces,” he was referring to crack
cocaine. He also testified that when he asked that the cocaine be “rocked up,” he
meant that he wanted “no powder fashion,” but “one solid rock.” Sergeant George
Karuntzos of the Chicago Police Department’s Narcotics Section, the lead agent on the
case, testified that he had never heard the term “rock” used to describe drugs other
than crack cocaine. During Sergeant Karuntzos’s testimony, the government played
several audio recordings of conversations between Watkins and Royal, in which the two
used terms such as “rocked up,” “all hard,” and “cooked . . . up.” Narcotics expert
Lieutenant Robert Coleman confirmed that the price paid to Royal for the drugs was
within the range of prices for crack cocaine. In addition, witnesses with substantial
knowledge of crack cocaine--Watkins, Officer Allen, Chicago Police Department Officer
Laurence Coleman, and narcotics expert Robert Coleman--all testified that the drugs
appeared to be crack cocaine. Royal did not introduce any evidence, but countered the
government’s case by cross-examining the government about the differences between
No. 06-2541 Page 3
powder cocaine, crack cocaine, and other forms of cocaine base, and alluding to the
possibility that the drugs were a non-crack form of cocaine.
At the close of trial, the district court instructed the jury that the defendant had
been charged in the indictment with “the crime of knowingly and intentionally
distributing a controlled substance.” The court explained that “[t]o sustain the charge
of distributing a controlled substance as charged in Count One and Count Two of the
indictment,” the government had to prove, beyond a reasonable doubt, that “the
defendant distributed mixtures containing a controlled substance . . . [and] knew the
substance was a controlled substance.” The instructions noted that “mixtures
containing crack cocaine, cocaine base, and cocaine” were controlled substances.
The judge supplied the jury with general and special verdict forms for each
count. The general verdict form asked the jury to decide whether Royal was guilty on
Counts One and Two. The court directed the jury that it should only complete the
special verdict form pertaining to a particular count if it found the defendant guilty as
to that count. The special verdict forms then asked the jury to determine the type and
amount of controlled substance involved in each count and included four options. One
option permitted the jury to find that the defendant distributed “[n]o amount” of crack
cocaine. Before sending the jury to deliberate, the court reviewed the special verdict
form, reiterating that the jury was free to determine that the defendant had
distributed “no amount” of crack cocaine.
During their deliberations, the jury asked the judge: “Is it important to
determine that it is a controlled substance or that it is crack cocaine? (as said in the
indictment versus judge instructions).” After obtaining defense counsel’s approval, the
court instructed the jury that “[t]he law you must follow is set out in the instructions,
not in the indictment.” The jury found Royal guilty on both counts, and indicated on
the special verdict forms that “the amount and type of the controlled substance that
. . . [Royal] distributed has been proved beyond a reasonable doubt to be [a]t least 50
grams or more of . . . crack cocaine” for both counts. Royal, who had been previously
convicted of possessing a narcotic with intent to distribute, objected to the application
of the mandatory minimum sentence associated with crack cocaine convictions. The
court rejected Royal’s arguments, adopted the jury’s findings as to drug type and
amount, and sentenced Royal to the statutory minimum of 240 months’ incarceration
on each count, with the two sentences to run concurrently. Royal appeals his
convictions and sentence.
II. ANALYSIS
A. Interplay Between the Indictment, Jury Instructions, and Special Verdict Form
Royal first argues that the district court erred in relying on the jury’s special
findings as to drug type and amount in sentencing him to the enhanced penalties for
crack cocaine set forth at 21 U.S.C. § 841(b). Specifically, he contends that the jury’s
special verdict findings were the result of a confusing interplay between the
No. 06-2541 Page 4
indictment, jury instructions, special verdict form, and the judge’s response to a
question during deliberations, and were therefore unreliable. Royal constructs this
argument based on the fact that the indictment and special verdict form refer to “crack
cocaine,” while the judge’s oral instructions directed the jury to determine whether
Royal had distributed a controlled substance. This incongruity, he believes, may have
led the jury to assume its obligations were solely to determine whether Royal possessed
a controlled substance, and if so, to insert the weight of the controlled substance on the
special verdict form.
To the extent that Royal argues, as he did at trial, that the district court’s
instructions misstated the elements of a § 841(a)(1) offense, we review that legal
argument de novo. See United States v. Murphy, 469 F.3d 1130, 1137 (7th Cir. 2006).
However, Royal has waived his right to challenge the special verdict form and the
judge’s reply because he stated that he had no objection to the special verdict form and
agreed with the court’s decision to respond to the jury’s question and with the content
of that response. See United States v. Gonzalez, 319 F.3d 291, 298 (7th Cir. 2003)
(holding that the defendant waived his objections to the jury instructions by stating
that he had “no objection” to them); see United States v. Parker, 469 F.3d 1074, 1079
(7th Cir. 2006) (“Waiver is the intentional relinquishment and abandonment of a
known right, which precludes appellate review.”). Finally, we review for plain error
Royal’s argument that the interplay between the indictment, jury instructions, special
verdict form, and the judge’s response to the jury’s inquiry might create confusion,
because he did not raise this issue in the district court. See United States v. Davis, 471
F.3d 783, 786 (7th Cir. 2006) (“Generally, issues raised for the first time on appeal are
reviewed for plain error.”).
We begin with Royal’s argument that the district court erred in instructing the
jury to return a conviction if it found that the defendant had distributed a “controlled
substance.” Although the defendant would have liked the court to instruct the jury
that, in order to convict, it had to find that he distributed crack cocaine, no such
obligation exists. The government charged Royal with violating 21 U.S.C. § 841(a)(1),
which makes it unlawful for a person to knowingly or intentionally distribute a
“controlled substance” unless authorized by the statute. Although the indictment
identified crack cocaine as the particular controlled substance distributed, the precise
identity of the controlled substance is not an element of a § 841(a)(1) offense. See
United States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003). As such, the district court’s
instructions clearly conveyed to the jury that to find Royal guilty of the crime charged
in the indictment, it needed only to conclude that he had distributed a controlled
substance.
We are not convinced by Royal’s additional contention that the indictment,
instructions, special verdict form, and the judge’s response to the jury’s question
combined to hopelessly confuse the jury. Royal claims that when the jury asked the
judge “[i]s it important to determine that it is a controlled substance or that it is crack
No. 06-2541 Page 5
cocaine? (as said in the indictment versus the jury instructions),” the jury was
expressing confusion as to its obligations in completing the special verdict form.
According to Royal, when the court responded by telling the jury to follow the jury
instruction--which told the jury that in assessing guilt, it needed only to determine
whether Royal distributed a controlled substance--the jury reached the mistaken
impression that it did not need to make a determination of drug type on the special
verdict form. This argument is speculative. On its face, the special verdict form
expressly asked the jury to determine the “amount and type of the controlled substance
that the defendant distributed . . . .” (Emphasis added). If the jury believed that the
defendant distributed a substance other than crack cocaine, they would have checked
the line indicating that they found that Royal had distributed “[n]o amount of a
mixture containing cocaine base in the form of crack cocaine.” Furthermore, when
polled by the district court, each juror affirmed the special findings. Therefore, we
reject Royal’s contention that the special findings were the product of confusion.
B. Sufficiency of the Evidence
Royal also claims that the jury’s finding of drug type is unreliable because the
evidence was insufficient to show that he distributed crack cocaine. When faced with
a sufficiency of the evidence challenge, this court considers the evidence in the light
most favorable to the verdict, reversing only if the record is devoid of evidence from
which a jury could have found guilt beyond a reasonable doubt. United States v. Craft,
484 F.3d 922, 925 (7th Cir. 2007).
In an argument that borders on frivolous, Royal contends that the government
failed to provide any credible evidence that the substance he distributed was crack
cocaine. Because the enhanced penalties set forth in § 841(b) only apply to crack
cocaine, and not other forms of cocaine, United States v. Booker, 70 F.3d 488, 494 (7th
Cir. 1995), Royal argues for a reduced sentence. However, this argument fails because
the government offered ample evidence that Royal distributed crack cocaine, not
another form of cocaine.
First, the government’s evidence established that the substance distributed was
a form of cocaine base. Specifically, DEA senior forensic chemist Robert Krefft testified
that the “ether solution sample” and infrared spectrum tests indicated that Royal’s
drugs were cocaine base. Royal did not contest those results, and those results
eliminate the possibility that the cocaine distributed by Royal was cocaine salt--a
substance that, like crack cocaine, can take a rock-like form. See U.S. Sentencing
Comm’n, Special Report to the Congress: Cocaine and Federal Sentencing Policy 7-30
(Feb. 1995) (detailing the differences between powder cocaine and forms of cocaine
base).
Second, the government proved that Royal distributed crack cocaine rather than
another form of cocaine base by “offering testimony from people familiar with the drug,
including those who sell or use crack, since they are the real experts.” United States
v. Anderson, 450 F.3d 294, 301 (7th Cir. 2006). Watkins, Officer Allen, Officer
No. 06-2541 Page 6
Laurence Coleman, and narcotics expert Robert Coleman, all individuals with
substantial knowledge of crack cocaine, testified that the drugs involved in both
transactions appeared to be crack cocaine. In particular, Lieutenant Robert Coleman
testified that the drugs had the color, hardness, rock-like conformation, and odor of
crack cocaine.
Finally, the circumstances surrounding the drug transactions provide additional
compelling evidence of the drugs’ identity. Recordings played at trial revealed that
during their conversations, Watkins and Royal used common references to crack
cocaine. At their first meeting, Watkins asked that the cocaine be “rocked up” and
Royal agreed by saying that “[i]t gonna be rocked.” During the first drug deal, Royal
told Watkins that he had “cooked . . . up” the cocaine. Narcotics expert Robert
Coleman testified that “rock” is a common code word used by drug dealers to refer to
crack cocaine and that “cooking up, or rocking up, or cooking” identifies the process of
making crack cocaine. Sergeant Karuntzos affirmed that “rock” refers to crack cocaine,
and Watkins explained that “rocked-up” cocaine is cocaine that has been cooked into
a rock fashion, known as “crack.” Taken as a whole, the trial evidence was more than
sufficient to support the jury’s finding that Royal distributed crack cocaine.1
C. Void-for-Vagueness Challenge
Royal’s final argument, that the meaning of “cocaine base” in § 841(b) is
unconstitutionally vague, need not detain us long. According to Royal, our decade-old
conclusion that “cocaine base” as used in § 841(b) means “crack cocaine,” Booker, 70
F.3d at 494, does not cure 841(b)’s ambiguity, because the meaning of “crack” is itself
ambiguous. In making this argument, Royal attacks the various methods by which
courts distinguish crack cocaine from other forms of cocaine.
To survive a vagueness challenge, “a penal statute [must] define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983); United States v. Collins,
272 F.3d 984, 988 (7th Cir. 2001). Unless a vagueness argument implicates First
Amendment interests, the vagueness challenge is “examined in light of the facts of the
case at hand; the statute is judged on an as-applied basis.” Collins, 272 F.3d at 988.
Because this case does not invoke First Amendment rights, we assess only whether the
definition of “cocaine base” in § 841(b) is vague as applied in the defendant’s case.
1
In light of our conclusions that the jury’s finding of drug type was not the product of confusion
and was supported by sufficient evidence, we reject Royal’s argument that the court had an
independent obligation to make a finding as to drug type at sentencing. See United States v.
Rivera, 411 F.3d 864, 866 (7th Cir. 2005) (“Once the jury has spoken, its verdict controls unless
the evidence is insufficient or some procedural error occurred; it is both unnecessary and
inappropriate for the judge to reexamine, and resolve in the defendant’s favor, a factual issue that
the jury has resolved in the prosecutor’s favor beyond a reasonable doubt.”).
No. 06-2541 Page 7
We find no vagueness problem on these facts. Although Royal identifies some
weaknesses in the methodologies used to identify crack cocaine, those imperfections
did not taint the identification of the drugs in this case. For instance, even if crack
cocaine cannot be visually distinguished from the rock form of cocaine salt, the
government did not identify the drugs by sight alone. Rather, chemical tests
established conclusively that Royal distributed cocaine base, not salt. And, we think
it entirely proper that the government relied on Royal’s words--his use of words like
“rocked” and “cooked”--to determine that he possessed crack cocaine rather than some
other form of cocaine base. So, we reject Royal’s vagueness claim because the methods
used to identify crack cocaine were adequate in this case. The fact that the
identification techniques might prove insufficient under different circumstances is
immaterial.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.