Edwards v. United States: The Dark Side of Behaviorism?

Author(s): Jeffrey J. Pokorak

Source: Federal Sentencing Reporter, Vol. 10, No. 4, Crack/Cocaine, Appeal Waivers, Dangerous
Offenders (Jan. - Feb., 1998), pp. 204-208
Published by: University of California Press on behalf of the Vera Institute of Justice
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 Edwards v. United States: The Dark Side of Behaviorism?

Barbara Wootton, a criminal law involved measurable amounts of

Lady prominent possession charges
behaviorist, long ago suggested thatcriminal cocaine or cocaine base." With this instruction, the

trials should involveonly the determination of juryfound petitioners guiltyof "the drug conspiracy
act, causation and resultant harm, charge contained in Count One of the indictment."
voluntary thereby

leaving all the refinements of mens rea, justification, By changing the proof requirement from the
JEFFREY J. other defenses, and all other relevant information to indictment's conjunctive "and" to the jury

POKORAK the punishment phase and the determination of just instruction's disjunctive "or," the District Court

desert. The is working toward making created a over the sentence. It

government dispute appropriate

Associate Professor of LadyWootton's procedure reality,thoughwithout treated the jury'sguiltyverdict as a finding that the
basing sentencing on principles of rehabilitationand offense of conviction was the more serious crime,
Law and Director of the
social as she had envisioned. In Edwards conspiracy to distribute cocaine base, which carries
Criminal Justice Clinic at reintegration,
v. United States, a case in which the Supreme Court greater sentences than the lesser crime of
St. Mary's University potential

School of Law, San recently heard oral argument, the government's conspiracy todistribute powder cocaine. All of the
presentation suggests that itwould favora system in District Court's sentencing decisions, including the
Antonio, Texas. Mr.
Pokorak wrote the brief of which a juryfindsone guiltyof "crime," and the rest findings on the amounts of controlled substances
the amici?National is leftto the sentencing judge. Although technicallya invloved and the appropriate mandatory maximum

case, Edwards deter sentences, flowed from this initial decision.

Association ofCriminal dual-object conspiracy may help

Defense Lawyers and mine whether the guilt/innocence phase or the

Families Against punishment phase is the crucial part of a criminal The Appeal. On appeal to the Seventh Circuit,

MandatoryMinimums prosecution. petitioners asserted that the District Court erred in

Foundation?in the concluding that the general verdict of guilty amounted
I. The Case to a finding that the offense of convictionwas the
presentation of the

Edwards case to the Trial and Sentencing. The petitioners in Edwards more serious conspiracy to distribute cocaine base.

Supreme Court.
were involved in an expansive effortto distribute and Relying on theholdings of a majority of other circuits
sell cocaine. The core group of these entrepreneurs,
confrontedwith similar verdicts,petitioners asked for
themselves "the Mob," was well one of two remedies: either (i) that the case be
calling organized:
theyheld weekly business meetings, made important remanded for a new sentencing proceeding inwhich
decisions bymajority vote, and shared profits. Part of the district courtwould be instructed to consider the
?as
the group's business was to obtain
kilogram
amounts lesser conspiratorial object ?cocaine powder the

of powdered cocaine, convert some amounts to base offense of conviction, or (2) in the alternative, if the
or crack cocaine, and sell both the powdered and crack government insisted on
sentencing
on the cocaine

cocaine at various crack houses. base conspiracy, that the conviction be set aside and

The government sought and obtained an indict the case returnedfor a new trialon that specific
ment charging twentyindividualswith various drug conspiratorial object.1
and firearms counts related to this conspiracy. The The Seventh Circuit, JudgeEasterbrookwriting,
critical aspect of the indictmentwas count one, which however, rejected the reasoning of the other courts

charged all defendantswith a violation of 21 U.S.C. and held that "as long as the juryfinds the defendants
? 846 by conspiring "topossess with intenttodistri conspired todistribute any drug proscribed by
bute and to distribute mixtures containing cocaine ...
? 841(a)(1), the judge possesses the power to deter
and cocaine base ... in violation of Title 21, United mine which and how much."2 Ultimately, the
drug,
States Code, Section 841(a)(1)" (emphasis added). Seventh Circuit effectivelydecided that all facts
Five of the original twentydefendants pleaded beyond the conspiracy to distribute something called a
guilty,acting as governmentwitnesses at the trialsof "controlled substance" were not elements of the

the remaining fifteen. The Government tried those crime butwere simply sentencing facts completely
defendants in three groups of five,with the petition within the ambit of the sentencing judge to deter
ers in Edwards being in one such group. The issue mine. In other words, the type, as well as the quantity

now before the Supreme Court began to develop of the drug involved,were sentencing factors that
when, at the end of the guilt/innocencephase of the need not be proved beyond a reasonable doubt to the
trial, theDistrict Court charged the jurythat "the juryat trial,but rathercould be found by a preponder
must prove that the conspiracy and ance of the evidence at the sentencing hearing. On
government

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this theory,the Seventh Circuit concluded that the shall be unlawful forany person knowingly or
District Court had acted properly in finding that intentionally?(i) tomanufacture, distribute, or
powder cocaine and base cocaine were the controlled dispense,
or possess with intent to manufacture,

substances involved in the conspiracy. Therefore, the distribute, or

dispense,
a controlled substance."

maximum possible sentences for the defendants Section 841(b) of the statute,however, prescribes the
could be determined from the crack sentencing terms of punishment forpersons who violate ? 841(a)
provisions, and all powder cocaine involved in the based on
particular types of "controlled substances."

offense could be considered under the relevant Accordingly, the criticaldispute in Edwards is
conduct provisions of the sentencing guidelines. whether the object of a ? 846 conspiracy under ? 841
may be theundefined and general "controlled
II.The Issue Before the Supreme Court substance" referenced in ? 841(a), orwhether
Now before the Supreme Court iswhether, as argued particular typesof controlled substances (as detailed in
by petitioners, the typeof drug thatwas the subject of I 841(b)) must be specificallypleaded and proved.
the conspiracy is an element of the conspiracy offense Also at issue in Edwards is the determination of an
defined by ? 846; or instead, as argued by the govern appropriate remedy if the Supreme Court accepts the
ment, the typeof drug is nothingmore than a factor petitioners' argument that the typeof controlled
to be considered at
sentencing. substancemust be specificallypleaded and proved to
ground their conspiracy conviction.
A. Conspiracy 101

In our common law tradition, the crime of conspiracy C. The Parties' Arguments
has existed as a separate substantive crime since the The two sides in the Edwards case argued for two very
seventeenth century.3 Early English
courts recog different interpretationsof the statutoryschemes at
nized that the crime of conspiracy lay in theunlawful issue. Petitioners and amici urged thatproof of the
agreement itself rather than in its criminal execution. typeof controlled substance is necessary to the
As such, conspiracy
was considered a separate crime charged offense.The government's theory is that the
which was punishable even ifthe agreed actwas not typeof drug has no place in the guilt phase determina
completed. The requirement of an agreement to tion, but rather is strictly a sentencing concern.

either act illegallyor act towards an illegal end? or

both? has been the sine qua non of criminal conspiracy 1. Petitioners' Arguments

law. Courts in the federal and state systemshave long StatutoryAnalysis. As noted above, the statutory
followed the common law understanding of con language of ? 846 indicates that the object of the
spiracy,4 and the common law requirement of a spe conspiracy must be an "offense." Further, the "of
cific agreement as the actus reus element in con fense"must be one towhich specific "penalties" are
spiracyprosecutions has not changed in this century.5 attached as "prescribed" by the statute. Therefore,
the statutemakes the "object" of the conspiracy the
B. The Statutes
specific offensewhich is punishable under a statute.
The criminalized agreement thatunderlies the This construction, contend petitioners, makes plain
conspiracy charge in Edwards is the conspiracy crime that I 846 requires the object of the conspiracy to in
codified in 21 U.S.C. $ 846: corporate entirely the underlying "offense" ?inclu

[A]nyperson who attempts or conspires to ding its elements, punishments, and enhancements.
commit any offense denned in this title shall be In the instant case, the object-offense is that

subject to the same penalties as those prescribed defined in ? 841 which proscribes, interalia, the
for the offense, the commission ofwhich was the distribution of "a controlled substance." Yet, as

object of the attempt or conspiracy. petitioners and amici stressed, ? 841(a) does not
The plain language of this section indicates that define a
punishment for a "controlled substance" qua
the object of the agreement which necessarily forms "controlled substance." That is, without reference to

thebasis of the conspiracy can be defined only bywhat the specific controlled substances set forth in 1841(b),
is punishable under the statute?i.e., the object of the no punishment exists for the crime of possession of a
conspiratorial agreementmust be an "offensedefined controlled substance because, without more, there is
in this title." Put anotherway, a punishable offenseis no statutorilyprescribed penalty. Section 841(b)
the only object about which defendantsmay agree to prescribes specificpenalties forvery specific typesand
conspire in order to violate ? 846. amounts of controlled substances. The absence of any
In Edwards, the defendantswere alleged tohave punishment regimen for a conspiracy regarding a
agreed to engage in specific conduct regarding a controlled substance without reference to a
drug
controlled substance that is deemed punishable specific punishment from ? 841(b) indicates the
pursuant to ? 841. In relevantpart, ? 841(a) states "it structuraland statutorynecessity of pleading and

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 proof on a particular controlled substance, not just a the sentencing court to
impose consecutive

"controlled substance" sentences.

generically.
That distributing a "controlled substance" as such However, stressed petitioners, the government

has no punishment is in part due to the statutory
history of ? 841. Prior to 1987 and Congress's
specific sentencing differentiationof powder and base
cocaine, ? 84i's penalty provisions dividedmaximum
sentences fordrug offenses by schedule and narcotic
properties. After 1987, however,
punishment regimenwent from listing schedule
placements and narcotic qualities to listing the specific
must retain both the power and the duty to charge
and prove such a double conspiracy adequately. This
prosecutorial responsibility to adequately define the
conspiracy and the appropriate range of punishment,
asserted petitioners, should not be shifted to the sen
the statute's tencing judge and loosened from the constitutional
rightsof trialby juryand proof beyond a reasonable
doubt.

drug and the specific amounts involved in the offense.

Thus, in ? 841 cases prior to 1987, a disjunctive jury 2. The Government's Argument

instruction of "powder or base" would pose no to the government, the "offense" under
According

problem ?the two objects were statutorilyidentical as I 846 embraces only the firstpart of ? 841 ?namely
the same drug with the same punishments. Indeed, a
finding of a "controlled substance." The rest,
this statutorylack of differentiationwas what promp argued the government, is irrelevant to the verdict
ted Congress, interested in heightened penalties for and solely for the sentencing judge to determine.
crack offenses, to create the existing 100-to-i crack-to Therefore, the government asserted, the Edwards

scheme. case does not involve a at all,

powder punishment dual-object conspiracy
rather it is a simple guidelines case regarding the
Consecutive Sentencing Implications. As the sentencing judge's power to determine and apply the
petitioners and amici noted, the requirement that a base offense of conviction and relevant conduct to an

particular controlled substance be pleaded and proved appropriately convicted defendant.

for a valid conspiracy prosecution is furthersupported Through this argument in Edwards, the govern

by the Supreme Court's analysis of crime elements ment continues its generally successful campaign of
and their relationship to consecutive sentencing. Ap putting fewer issues before the juryand more before
plying traditionaldouble jeopardyanalysis todeter the sentencing court. The benefit gained by the
mine whether consecutive sentences could be autho government is clear ?a sentencing factor need only
rized, the Supreme Court has held thatCongress is be proved by a preponderance of the evidence at a
empowered
to
permit imposition of consecutive sen
sentencing hearing, while elements of the crime
tences for offenses arising out of a single agreement must be proven beyond a reasonable doubt at trial.
or conspiracy having dual objectives ifeach offense The critical problem with this reasoning ? from
?
requires proof of a factwhich the other does not.6 the government's point of interest that the desired

There is no dispute in Edwards that,under the holding, although helpful in this case, would preclude
of the statute, cocaine and cocaine base are the government from urging in future arguments
language
distinct and controlled substances. When the that consecutive sentencing is appropriate in any
separate

government alleges a ? 846 conspiracy to distribute ? 846 /? 841 case inwhich the conspiracy to distrib
cocaine base, it necessarily must prove that some ute controlled substances encompasses more than

quantity of cocaine base was involved in order to one typeof drug. Although the government in

proceed to the harsher punishments established for Edwardsmight be willing to accept a single guideline
thatdrug. Similarly, absent such specific proof, a punishment considering all drug-type issues as
for cocaine relevant conduct it is not clear whether
conviction may only be sustained powder. issues,
The proof needed at trial, therefore, is differentfor tomorrow the governmentwould be satisfiedwith the
the two controlled substances.7 Thus, if the Govern restriction that only one statutory mandatory maxi
? mum sentence, based on the underlying offense of
ment two conspiracies in separate counts
charged
?
one for cocaine and one for cocaine base conviction and amount, is available for an offender's
powder

findings of guiltwould constitute separate and distinct punishment.

violations of the law since each offensewould require More troubling is the fact that the government's
proof of a factwhich the other does not. theoryfor interpreting ? 846/? 841 provides the
In the Edwards case, as an the scope foundation for a more general assertion that, in the
example,
and plan of the conspiracy,which was to obtain conspiracy context, there need be only a
general

powder and "cook" some intobase and then sell both charge of "criminal purpose" which, ifdetermined to
types, is precisely the typeof dual-object conspiracy in exist beyond a reasonable doubt by a jury,will be
which a juryfinding of guilt on both powder and base punished according to the judge's belief that specific
cocaine as objects of the conspiracywould empower facts as to the
underlying offense have been estab

206 FEDERAL SENTENCING REPORTER VOL. 10, NO. 4- JA N U A R Y / F E B R U A R Y 1998

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 lished by a simple preponderance of the evidence. it assist one in determining the crime forwhich he or
shemay not again be put in jeopardy.
III.Devising an Appropriate Remedy Second, any jurycharge based on such an
If the Supreme Court accepts the government's indictment is defective if itempowers a juryto convict
position in Edwards, then the resolution of the case is even where theGovernment has failed to prove
simple: the convictions and sentences stand. If, beyond a reasonable doubt a critical element of the
however, the Supreme Court accepts the argument conspiracy offense. The Fifth Amendment guaran
that the specific typeof controlled substance is the tees thatno one will be deprived of liberty
without
object of the conspiratorial agreement and thereforea "due process of law"; and the SixthAmendment
necessary element of a ? 846 / ? 841 conspiracy, guarantees that "[i]n all criminal prosecutions, the
threepossible remediesmay be available. The first accused shall enjoy the rightto a speedy and public
andmost radical, and only suggested by amici, is that trial,by an impartial jury."These provisions are
the verdictsmust be overturned and a new trial universally understood to require criminal convictions

ordered. The second position, urged by petitioners, is
that these convictions are valid, but theDistrict Court
must resentence the defendants based
punished object (thepowder cocaine), or, if the
government insists on punishment based on the
harsher-punished object,must retrythe case with
unambiguous instructions or
special verdict
The thirdposition, not argued by any side, is that
absent a specificunambiguous findingabout the type
of drug, the default sentencing provisions of
? 841(b)(1)(C) would apply, statutorilycapping the
to restupon a jurydetermination that the defendant
is guiltyof every element of the crimewith which he
on the lesser is charged, beyond a reasonable doubt.
The petitioners in the instant case were convicted
of being involved in one agreement, the objectives of
which were different: (i) to possess with intent to
forms. distribute and to distribute cocaine and (2) topossess
with intentto distribute and to distribute cocaine base.
Although it is true thata single conspiracy listing two
ormore objects in the conjunctivemay lead to a valid
conviction, the Supreme Court has never allowed

maximum sentence at 20
years' imprisonment. multiple sentencing on such charges combined with
general verdicts. Similarly, if there are two objects of
A. A New Trial a conspiracy charged in thedisjunctive, thevalidityof
The argument fora new trial is based on the assump any conviction, let alone a sentence based on that

tion that the decision concerning the object of the conviction, must be seriously questioned.

conspiratorial agreementmust be leftin the hands of Additionally, in the federal criminal justice
the jury.This view asserts that any other holding system, the essential elements of the crimes charged
would seriously undermine the constitutional pro must be decided by a unanimous juryverdict.
tections afforded individuals chargedwith crimes. Charging a jurythatproof of either of two separate
The government plainly has the power to define elements may stand as the basis for a conviction, as

the scope of any conspiracy through its indictment.8 was done in Edwards, implicates the problem of
?
The shields to this prosecutorial sword are the Fifth equipoise six jurors may have been convinced that

and Sixth Amendments' guarantees of due process, the prosecution had proved that the conspiracy only
the right to be informedof the nature and cause of involved cocaine powder while the other sixmay have
the accusation brought by the government, and the been convinced that the proof supported conviction of
rightto trialby juryof such accusations. The object of a conspiracy
regarding cocaine base alone. Such a
jury
a
conspiratorial agreement must be specifically stated would not have agreed that the government proved
?
in the indictment either in the conjunctive or as se
beyond a reasonable doubt the necessary object of the
parate elements in separate counts. Any disjunctive conspiracy. This possibility leads to theunavoidable
pleading under ? 846, or disjunctive instruction to the suspicion that no unanimous verdict was returned,

jury, which states that there are two or more poten and thereforefatallydiscredits the verdict.
tial objects of the conspiracy simplydoes not comport
with theminimal requirements of the Constitution. B. The Lesser-Sentence Remedy
This conclusion is supported by two equally Although the petitioners consider the typeof drug a
important justifications. First, an indictmentwhich necessary element of a ? 846/^ 841 conspiracy, the
does not give sufficientnotice to the charged person petitioners did not embrace the theorythat this
of the crime (or the potential punishment) against renders the verdict in the Edwards case invalid.
which he or shemust defend is fundamentally Instead, perhaps arguingmore towhat theybelieved
defective. An indictmentwhich charges a dual object the Supreme Court might do rather thanwhat it
conspiracy
to distribute cocaine or cocaine base does ought to do, the petitioners argue that the verdictwas
not sufficientlynotifyan accused of the crime for valid, but only to the object that carries the lesser
?
which he or shemay be potentiallypunished, nor does sentence powder cocaine.

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 This argument is based less on legal reasoning on amount. As the fraction-gramweight differences
than on the remedies fashioned by the several became the differencebetween potential liabilityof
opinions of the courts of appeal thatpreviously twentyyears and fortyyears, the importance ofweight
reviewed this issue, particularly the decision in 1962 has taken on new dimensions. It is hard to under

by then-JudgeBurger for the D.C. Circuit.9 The standwhy thresholdweight ought not be an element
general argument is that the jury,in a sufficiencyof to be determined beyond a reasonable doubt rather
the evidence-type analysis,was empowered to find the than by a preponderance of the evidence when so
defendant guilty of one (orboth) of the disjunctive much turns on that issue.

objects, and therefore, some verdict must be valid. The second question implicates the question
Should this view prevail, the case would be whether there exists any limit on the sentencing
remanded for resentencing only,with the district judge's authority to determine relevant conduct
court instructed to apply the sentencing guidelines as under ? 1B1.3of the sentencing guidelines. As Justice
ifthe offense of convictionwere a conspiracy to traffic Stevenswas reminded by JusticeO'Connor during
in powder cocaine, rather than one to distribute the argument in Edwards, the Supreme Court has
cocaine base. already determined that acquitted behavior may be
considered as relevant conduct a
by sentencing
C. The Elegant Compromise Justice Stevens, however, was interested in
judge.10

Although neither briefed nor argued in Edwards, the
Court could apply an elegant compromise in resolving
this issue. Although the jury'sgeneral verdictmay
reflect indecision regarding the specific object of the
conspiracy, there is no question that the juryunani
mously concluded that the conspiracy embraced
either cocaine or cocaine base.
powder
could be fairlysaid that the juryunanimously found
learning the Solicitor General's position regarding
evidence illegallyseized and suppressed-that is,
whether the Fourth and FifthAmendment exclusion
ary clauses apply to guidelines sentencing. Although
the government declined to answer the quetion, it
cannot be long before this issue will reach the Court.
As such, it
Conclusion

that some sort of $ 841 violation occurred, but that The Edwards case presents complicated yet fundamen
the ambiguity of the general verdict precludes senten tal questions regarding the roles of juryand judge in
cing based on either conspiratorial object and instead federal sentencing. These questions, such as the role

requires sentencing under the default provision of the typeof drug plays in the guilt phase of a conspiracy
? 841(b)(1)(C), which reads in relevant part: "In the crime, are critical to the very structure of criminal
case of a controlled substance in schedule I or II..., and Edwards presents the
prosecutions punishments.
except as provided in subparagraphs (A), (B) and (D), Supreme Court with an opportunity tomake a
such person shall be sentenced to a term of imprison
powerful statement guarding the jury trialprotections
ment of not more than 20 years
. . . ." The court
may of the individual. Should the Court, however,
well find this resultdictated by the plain language of continue to shiftthemajority of critical fact findings
?
the statute that Congress intended all non-specific from the jury to the judge, the behavioristmodel of
to have a maximum of twenty mere acts
verdicts years. condemning through verdicts without
reference to defenses or mens rea distinctions will be
IV.Two Additional Problems become more of a reality.

Two critical and unresolved questions floatedabout

the Edwards case: (1) Is the amount of drug an Notes
element of the offense?; and (2) Can a sentencing 'See United States v.Melvin, 27 F3d 710(lstCir. 1994); United
States v.Orazco-Prada, 732 F2d 1076,1083-84 (2d Cir. 1984);
judge consider, when determining relevant conduct,
United States v.Quicksey, 525 F2d 337, 342 (4th Cir. 1975);
evidence illegallyseized?
United States v.Bounds, 985 F2d 188,193 (5th Cir. 1993); United
As to the firstquestion, the government has Statesv. Owens, 904 F2d411, 414(8th Cir. 1990); UnitedStates

history on its side. In this country's statutoryand v.Garcia, 37 F3d 1359,1369-70 (9th Cir. 1994); Brown v.United
common law tradition,particularly thatdeveloped States, 299 F2d 438, 440 (D.C. Cir. 1962).
2
UnitedStates v.Edwards, 105 F3d 1179,1182 (7th Cir. 1997).
before 1987 and the advent of sentencing guidelines, 3See Poulterers'
Case, 77 Eng. Rep. 813 (1611).
the amount of controlled substance was considered
4SeeDeaconv. UnitedStates, 124F2d 352, 357-58 (1st Cir. 1941)
strictlyan issue of punishment. This factwas, in large (fora discussion of early nineteenth-centurycommon lawdefinitions
part, due to the realitythat sentencingwas an of conspiracy).
5
unregulated process which was bound only by one See, e.g., Salinas v. UnitedStates, 118S. Ct. 469(1997).
6Albernazv. UnitedStates, 450 U.S. 333(1981).
maximum related to the specific type of controlled 7
See, e.g., UnitedStates v. Lewis, 113 F3d 487, 492 (1997),
substance pleaded and proved. However, this general
petition forcert, filed (Aug. 13, 1997).
proposition has been eroded over the last thirtyyears 8
See Garrett v. UnitedStates, 471 U.S. 773, 798(1985).
maximums based 9Brown v.
by the differentiationof statutory UnitedStates, 299 F2d 438 (D.C. Cir. 1962).
10UnitedStates v.
Watts, 117 S. Ct. 633 (1997).

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