PEOPLE OF MI V JIMMY MASS
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Just ice
Justices
Maura D . Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
O pinion
____________________________________________________________________________________________________________________________
FILED JULY 5, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No.
115820
JIMMY MASS, a/k/a KOOL AID,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
Defendant was convicted, on an aider and abettor theory,
of (1) delivery of 225 grams or more but less than 650 grams
of a mixture containing cocaine1 and with (2) conspiracy to
commit that offense.2
We granted leave to determine
whether knowledge of the amount of the controlled
1
MCL 333.7401(2)(a)(ii).
2
MCL 750.157a.
substance was a necessary element of the delivery
and conspiracy charges, and, if so, whether the
prosecution’s evidence was insufficient to prove
this element and whether the omission of it from
the jury instructions deprived defendant of a fair
trial.3
As explained below, we conclude that the amount of a
controlled substance is an element of a delivery offense, but
that knowledge of the amount is not an element of a delivery
charge.
However, consistent with People v Justice (After
Remand), 454 Mich 334; 562 NW2d 652 (1997),and Apprendi v New
Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), we
also
hold
that
knowledge
of
the
amount
of
a
controlled
substance is an element of a conspiracy to deliver charge.
I. Evidence Presented at Trial
An undercover state police officer testified that in
early 1996 he purchased crack cocaine six times from Monolito
Blackstone. As detailed below, the officer told the jury that
defendant assisted Blackstone in completing a seventh sale.
On March 19, 1996, the officer visited Blackstone’s
apartment and advised that he wished to purchase ten ounces4
of cocaine. Blackstone began making phone calls. Jimmy Mass,
who lived across the hall, then arrived. Blackstone told Mass
he needed “ten ounces” and asked if he knew anyone who they
3
462 Mich 877 (2000).
4
Ten ounces is roughly 280 grams.
2
“could get ten ounces from.”
Mass said “you should have told
me earlier” and began making telephone calls from Blackstone’s
bedroom.
He then returned and advised Blackstone that “his
man was not there.”
On March 25, 1996, the officer again phoned Blackstone
and indicated that he still wanted to purchase ten ounces of
cocaine.
Blackstone told the officer to meet him the next
morning at his apartment.
At that meeting, Blackstone made a
phone call and advised he would have to travel to Detroit to
get the cocaine.
Before the meeting ended the officer gave
Blackstone $3,700, one half of the agreed upon price as a down
payment, and they agreed to meet in the afternoon.
At 2:00
that afternoon the officer was told by Mass that Blackstone
was not coming back, but that he would direct the officer to
a meeting place with Blackstone.
expressing
some
hesitation
The officer responded by
about
that
arrangement,
indicated he wanted to speak with Blackstone.
and
To facilitate
this, Mass took the officer to his own apartment where he
telephoned Blackstone and handed the phone to the officer. In
that conversation, Blackstone told the officer that the police
had followed him to Detroit and that defendant would bring him
to a place where the sale could be completed.
Mass and the
officer then got into the officer’s car, and, under Mass’
direction,
they
drove
to
a
house
3
in
Monroe.
As
they
proceeded, Mass gave the directive to the officer to pull over
because he believed a car had been following them.
Moreover,
when the officer for his part indicated that things did not
seem
right,
Mass
reassured
him
that
Blackstone
had
the
officer’s “stuff” and that “that part of it was straight.”
Mass also confided to the officer that if Blackstone had taken
him with him to Detroit that he would have made sure the
police did not follow.
Upon arrival at the house, Mass got out of the car and
began looking up and down the street in the manner of a
lookout. Meanwhile Blackstone came out from behind the house,
got in the car, and handed the officer a package and said
“here is your ten ounces.”5
The officer then paid Blackstone
the balance of the purchase price, and drove off
leaving
Mass
and
Blackstone
together
in
front
alone
of
the
residence.
At the close of the prosecution’s case, defense counsel
moved for a directed verdict with regard to the delivery and
conspiracy charges. The trial court denied the motion stating
that a question of fact existed for the jury.
not testify or present any evidence.
Defendant did
In his closing argument
defense counsel argued that Mass was a “sad sack, who should
pick better friends” but that he had only been present [when
5
Later testing showed the cocaine weighed 246.4 grams.
4
Blackstone had delivered the drugs] and was not part of any
conspiracy.
Following jury instructions,6 the jury convicted
Mass as charged on both counts.7
II. The Court of Appeals Opinion resolving defendant’s appeal
The Court of Appeals affirmed defendant’s convictions in
a divided opinion.8
The majority rejected defendant’s claim
that the evidence was insufficient because the prosecution had
presented no evidence that he had knowledge of the quantity of
cocaine to be delivered.
It concluded that knowledge of the
amount of cocaine was not an element of either the delivery
charge or the conspiracy charge.
The Court also rejected
defendant’s assertion that People v Justice, supra, required
6
Defense counsel’s sole jury instruction objection
concerned the giving of a circumstantial evidence instruction.
7
The trial court found substantial and compelling reasons
to depart from the presumptive twenty- to thirty-year
sentences and imposed a ten- to twenty-year sentence for each
conviction.
The prosecutor appealed the sentences and the
Court of Appeals reversed and remanded for resentencing.
Unpublished opinion per curiam, issued April 14, 1998 (Docket
No. 203651). The Court of Appeals held that the trial court
had failed to specifically articulate reasons why the factors
it identified provided “substantial and compelling” reasons to
except the sentences from the presumptive sentences. It also
held the trial court had failed to articulate additional
justification for the extent of the departure.
The Court
indicated that it was conceivable that a departure sentence
would be appropriate at resentencing.
The trial court
postponed resentencing defendant until further order of the
Court. It appears the trial court is awaiting resolution of
defendant’s appeal in this Court before going forward with the
resentencing.
8
238 Mich App 333; 605 NW2d 322 (1999).
5
proof of knowledge of the quantity of controlled substances
for a conspiracy conviction. Alternatively, the majority said
that, even if Justice required the prosecutor to prove that
defendant knew the quantity of cocaine involved to support the
conspiracy conviction, the evidence was sufficient to show
that Mass knew the quantity of cocaine to be delivered.
The Court also indicated there was no flaw in the jury
instructions, even though the instructions did not appraise
the jury that the prosecution had to prove that defendant knew
the quantity of cocaine involved in the transaction.
It
concluded that, because knowledge of the quantity of drugs is
not an element of the crimes charged, the jury instructions
did
not
constitute
error.
Alternatively,
the
majority
indicated that if knowledge was an element, any error had been
forfeited
where
instructions
there
and
the
had
been
alleged
no
error
objection
was
not
to
the
outcome
determinative.
Judge Hoekstra dissented with respect to the conspiracy
conviction
because
he
believed
Justice
required
the
prosecution to prove defendant had the specific intent to
deliver the statutory amount of at least 225 grams. He opined
that conspiracy was a different offense than delivery and
that, while knowledge of the quantity of drugs involved is not
an element of a possession charge, it is an element of a
6
conspiracy charge.
was
entitled
conviction
to
Judge Hoekstra concluded that defendant
a
because
new
the
trial
jury
regarding
instructions
his
conspiracy
regarding
this
offense neglected to include one of its elements.
III. Standards of Review
Whether knowledge of the amount of a controlled substance
is a necessary element of a crime is a legal question and we
review legal questions de novo. People v Morey, 461 Mich 325,
329-330; 603 NW2d 250 (1999).
The test for determining whether evidence was sufficient
to establish an element of a crime is found in People v
Hampton, 407 Mich 354, 365-368; 285 NW2d 284 (1979). The test
requires us to view the evidence in a light most favorable to
the prosecution to determine whether a rational trier of fact
could have found the element of the crime was proven beyond a
reasonable doubt.
We
review
Id.9
forfeited
error,
such
as
the
failure
to
instruct a jury regarding one element of an offense, to
determine whether “the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”
People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
We
reverse if it did.
9
This test is more exacting than the former
evidence” standard that Hampton disapproved. Id.
7
“any
IV. This Court’s Opinion in People v Justice10
In Justice the defendant had been charged with conspiring
with another to possess with the intent to deliver more than
650 grams of cocaine and was also charged with conspiring with
yet another person to possess with the intent to deliver more
than 225 grams but less than 650 grams of cocaine.
prosecution
had
examination
of
presented
several
evidence
deliveries
of
at
the
The
preliminary
cocaine
that
were
aggregated to reach the charged amounts.
In the course of determining that the prosecution had
presented sufficient evidence to justify binding over the
defendant for trial, this Court stated: (1) there had to be
probable
cause
to
believe
that
the
defendant
and
the
coconspirator shared the specific intent to accomplish the
substantive offenses charged and (2) that the evidence showed
that the defendant and the coconspirator had a specific intent
to
deliver
the
statutory
amount
as
charged.
Justice,
supra. at 337.
The Court stated its holding as follows:
To be convicted of conspiracy to possess with
intent to deliver a controlled substance, the
people must prove that (1) the defendant possessed
the specific intent to deliver the statutory
minimum
as
charged,
(2)
his
coconspirators
10
The Court’s opinion in Justice was authored by Justice
Riley and joined by Justices Weaver, Boyle, Brickley, and
Chief Justice Mallet.
8
possessed the specific intent to deliver the
statutory minimum as charged, and (3) the defendant
and his coconspirators possessed the specific
intent to combine to deliver the statutory minimum
as charged to a third person.
[Id. at 349
(emphasis added).][11]
V. Whether Knowledge of the Amount of a Controlled Substance
is a Necessary Element of a Delivery Charge?
MCL 333.7401(1) provides:
Except as authorized by this article, a person
shall not manufacture, create, deliver[12], or
possess with intent to manufacture, create, or
deliver a controlled substance, a prescription
form,
an
official
prescription
form,
or
a
counterfeit prescription form.
A practitioner
licensed by the administrator under this article
shall not dispense, prescribe, or administer a
controlled substance for other than legitimate and
professionally recognized therapeutic or scientific
purposes or outside the scope of practice of the
practitioner, licensee, or applicant.
Subsection (2) establishes four ranges: (1) if less than
fifty grams are involved, a defendant faces a sentence of not
less than one year nor more than twenty years or lifetime
probation; (2) if fifty grams or more but less than 225 grams
11
Justice Cavanagh dissented. He indicated that he agreed
with the majority that to bind defendant over for trial the
prosecution had to show defendant and the coconspirator shared
the specific intent to accomplish the substantive offenses,
but he dissented because the majority did not require that
both conspirators possess the specific intent to deliver the
charged amounts from the time of the formation of the
conspiratorial agreement. Id. at 363.
12
The terms “deliver” and “delivery” mean “the actual,
constructive, or attempted transfer from 1 person to another
of a controlled substance, whether or not there is an agency
relationship.” MCL 333.7105(1).
9
are involved, a defendant faces not less than ten years nor
more than twenty years; (3) if 225 grams or more but less than
650 grams are involved, a defendant faces not less than twenty
years nor more than thirty years; and (4) if 650 grams or more
are involved, a defendant faces life or any term of years not
less than twenty years.13
Hence, subsection (2) increases the
applicable
as
prison
term
the
amount
of
the
controlled
substance increases.
A plain reading of MCL 333.7401 makes the amount of a
controlled substance an element of a delivery offense.
The
amount is an element because the level of crime is dependent
upon
application
of
subsection
2.
Indeed,
not
until
subsection (2) does the statute specifically refer to crimes,
“felonies” in this case, that depend on the weight of the
controlled substance involved. Moreover, the MCL 333.7401(2).
phrase “[a] person who violates this section . . .” suggests
the determination whether a crime has been committed involves
application of both subsections (1) and (2).14
13
See, e.g., People v Daniel, 462 Mich 1; 609 NW2d 557
(2000); People v Fields, 448 Mich 58; 528 NW2d 176 (1995).
14
Further support of the conclusion that quantity is an
element of the delivery offense is the related possession
statute, MCL 333.7403, which is similarly structured as MCL
333.7401.
Subsection (2) of MCL 333.7403 differentiates
between misdemeanors and felonies. Thus, under MCL 333.7403,
one cannot determine the level of crime committed (felony or
misdemeanor) unless one examines subsection (2).
10
It is even more evident that subsection (2) of MCL
333.7401 entails the elements of separate offenses because
subsection
(2)
covers
prescription forms.
various
drug
types
as
well
as
For example, within subsection (2)(a),
the elements of the offense are described as they relate to
schedule 1 or 2 drugs, while subsection (2)(b) describes a
separate offense as it relates to schedule 3 drugs, and
subsection (2)(c) describes the offense as it relates to
schedule 4 drugs.
All these textual clues support the
conclusion that the amount and nature of controlled substances
are elements of a delivery offense under MCL 333.7401.15
Having determined that quantity is an element of the
delivery offense, we turn to the question whether knowledge of
15
In contrast, under the federal counterpart, 21 USC 841,
subsection (b) provides “any person who violates subsection
(a) of this section . . . .” (Emphasis added.) This phrase
shows that the crime is articulated in subsection (a), while
subsection (b) specifies how a person who violates subsection
(a) is to be sentenced.
Clearly, MCL 333.7401 is
distinguishable from 21 USC 841 on this structural difference.
Historically, federal courts have construed 21 USC 841 as
providing that “the quantity of drugs involved . . . is not a
substantive element of the crime which must be charged and
proved at trial.” United States v Dorlouis, 107 F3d 248, 252
(CA 4, 1997) (emphasis added). However, as explained in part
VIII of this opinion, Apprendi has changed this.
The
concurrence’s overreliance on federal case law fails to
appreciate the fact that in Michigan, pursuant to our statute,
the amount of a controlled substance is part of a delivery
offense, whereas under the federal statute, apart from
Apprendi, this is not the case. Hence, we disagree that the
instant case is “indistinguishable” from those addressed by
federal conspiracy law. Slip op, p 7.
11
the amount is an element of a delivery offense.
The Court of Appeals held that knowledge of the amount of
cocaine involved is not an element of a charge of delivery of
cocaine, citing People v Cortez, 131 Mich App 316, 331; 346
NW2d 540 (1984),16 and People v Northrup, 213 Mich App 494,
498; 541 NW2d 275 (1995).17
It is also the case that this Court stated as follows in
People v Quinn, 440 Mich 178, 189; 487 NW2d 194 (1992):
[A] defendant need not know the quantity of
narcotics to be found guilty of possession of a
controlled substance under MCL 333.7401; MSA
14.15(7401).
We hold, consistent with the text of the statute, the
Court of Appeals holdings, and our prior statement in Quinn,
that knowledge of the amount of a controlled substance is not
an element of a delivery charge.18 This holding is, of course,
consistent
with
the
fact
that
delivery
substance is a general intent crime.
of
a
controlled
People v Maleski, 220
Mich App 518, 522; 560 NW2d 71 (1996).
VI. Sufficiency of the Evidence Regarding the Delivery
Conviction
16
Remanded on other grounds 423 Mich 855 (1985).
17
Accord People v Hamp, 170 Mich App 24, 35; 428 NW2d 16
(1988), vacated in part 437 Mich 865 (1990).
18
As explained later in this opinion, we are satisfied
that Apprendi is inapplicable to this conclusion so long as
the jury does in fact determine as it did here, the amount of
controlled substances that was actually delivered.
12
Defendant cites the following language from People v
Turner, 213 Mich App 558, 568; 540 NW2d 728 (1995):
To support a finding that a defendant aided
and abetted a crime, the prosecutor must show that
... (3) the defendant intended the commission of
the crime or had knowledge that the principal
intended its commission at the time he gave aid and
encouragement.
Defendant argues from this language that the evidence may
show he intended a cocaine delivery, but that the evidence was
insufficient to show he intended the crime of delivery of at
least
225
grams
of
cocaine
or
had
knowledge
Blackstone
intended to deliver at least 225 grams of cocaine at the time
he aided the delivery.
The aiding and abetting statute, MCL 767.39 provides:
Every person concerned in the commission of an
offense, whether he directly commits the act
constituting the offense or procures, counsels,
aids, or abets in its commission may hereafter be
prosecuted, indicted, tried and on conviction shall
be punished as if he had directly committed such
offense.
The “requisite intent” for conviction of a crime as an
aider and abettor “is that necessary to be convicted of the
crime as a principal.”
NW2d
365
(1985).
People v Kelly, 423 Mich 261, 278; 378
Accordingly,
it
was
enough
for
the
prosecution to show that Mass, as with the principal offender
Blackstone, knowingly delivered or aided in the delivery of
some amount of cocaine, as long as the jury later determined
13
that at least 225 grams of cocaine were in fact delivered.
The prosecution simply did not need to show that defendant
knew that the amount of cocaine involved in the instant
delivery
was
at
least
delivery
conviction
or
225
grams
Mass’
to
secure
conviction
Blackstone’s
for
aiding
and
abetting in the delivery of at least 225 but less than 650
grams of cocaine.
Conviction of a crime as an aider and
abettor does not require a higher level of intent with regard
to
the
commission
of
the
conviction as a principal.
crime
Id.
than
that
required
for
To the extent that the cited
language from Turner may suggest otherwise, it is disapproved.
Because the evidence showed defendant knew he was aiding
and abetting Blackstone in a delivery of cocaine and the
amount of cocaine delivered exceeded 225 grams, the evidence
was sufficient to convict defendant of delivery of 225 grams
or more but less than 650 grams of cocaine.
VII. Whether Knowledge of the Amount of the Controlled
Substance was a Necessary Element of the Conspiracy to
Delivery Charge?
MCL 750.157a provides:
Any person who conspires together with 1 or
more persons to commit an offense prohibited by
law, or to commit a legal act in an illegal manner
is guilty of the crime of conspiracy punishable as
provided herein . . . .
Conspiracy
is
a
specific-intent
crime,
because
it
requires both the intent to combine with others and the intent
14
to accomplish the illegal objective.
People v Carter, 415
Mich 558, 567-568; 330 NW2d 314 (1982).19
As previously indicated, one of the charges defendant
faced was conspiring with Blackstone to deliver 225 grams or
more but less than 650 grams of cocaine.
In Justice this Court held that to be convicted of
conspiracy to possess with intent to deliver a controlled
substance, the prosecution had to prove that (1) the defendant
possessed the specific intent to deliver the statutory minimum
as charged, (2) his coconspirators possessed the specific
intent to deliver the statutory minimum as charged, and (3)
the defendant and his coconspirators possessed the specific
intent to combine to deliver the statutory minimum as charged
to a third person.
Id. at 349.
This Court specifically held that a defendant could not
be guilty of conspiring to possess with the intent to deliver
19
While we do not dispute the concurrence’s point that the
agreement necessary to form a conspiracy does not rise to the
level of the “meeting of the minds” concept from contract law,
the statute does require an agreement to commit a prohibited
offense.
If no such agreement is reached, the conspiracy
statute has not been violated. Thus, although the government
need not prove commission of the substantive offense or even
that the conspirators knew all the details of the conspiracy,
US v Rosa, 17 F3d 1531, 1543 (CA 2, 1994), it must prove that
“the intended future conduct they . . . agreed upon include[s]
all the elements of the substantive crime.” US v Rose, 590
F2d 232, 235 (CA 7, 1978).
Here, the substantive crime
involved at least 225 grams of cocaine. Thus, the prosecution
was required to show the defendant agreed to deliver, not just
any amount, but at least this amount.
15
more than 650 grams of cocaine unless the prosecution was able
to
prove
beyond
a
reasonable
doubt,
not
just
that
the
defendant had conspired to possess with an intent to deliver
some amount of cocaine, but rather, had conspired to possess
with an intent to deliver the statutory minimum of 650 grams.
The Court of Appeals majority stated:
A reasonable interpretation of the phrase,
"the specific intent to deliver the statutory
minimum as charged," is that the defendant must
possess the specific intent to deliver the
controlled substance, and that the quantity of the
substance must then meet the statutory minimum. To
interpret this phrase to require proof that the
defendant knew the exact quantity of the controlled
substance would lead to unreasonable results. For
example, a defendant could be found guilty of a
delivery offense without knowing how much cocaine
was involved, while avoiding all criminal liability
for conspiracy merely because, although he knew
that he was agreeing to deliver cocaine, he did not
know how much cocaine was to be delivered. Or, a
defendant could avoid conspiracy liability because,
although he knew the rough extent of the amount of
cocaine involved in a drug transaction, he did not
know
the
exact
measurement
with
scientific
precision, i.e., whether 224 or 226 grams of
cocaine were involved. [Id. at 337.]
We
are
unable
to
agree
with
the
Court
of
Appeals
interpretation of this Court’s holding in Justice.
This
Court’s holding unambiguously calls for the prosecution to
prove (in a conspiracy to possess with intent to deliver
charge), not just that the defendant conspired to possess with
intent to deliver some or any amount of cocaine, but “the
statutory minimum as charged.”
16
We also disagree with the Court of Appeals that
a defendant could be found guilty of a delivery
offense without knowing how much cocaine was
involved, while avoiding all criminal liability for
conspiracy merely because, although he knew that he
was agreeing to deliver cocaine, he did not know
how much cocaine was to be delivered. Id.
This analysis is in error because it fails to recognize
that if one conspires to deliver an unspecified amount of
cocaine one would, at a minimum, be guilty of conspiring to
deliver less than fifty grams of cocaine.
Thus, a defendant
would not, as stated by the Court of Appeals, “avoid all
criminal liability”; rather, he would be convicted of a felony
and could face a twenty-year term of incarceration.
We further disagree with the Court of Appeals that
a defendant could avoid conspiracy liability
because, although he knew the rough extent of the
amount of cocaine involved in a drug transaction,
he did not know the exact measurement with
scientific precision, i.e., whether 224 or 226
grams of cocaine were involved. Id. at 337.
Once again, this analysis is flawed.
If the prosecution
proved to a jury that a defendant had conspired to deliver a
significant amount of cocaine, but the jury was not sure if
the defendant knew 224 grams or 226 grams were involved, the
jury would properly convict such a defendant of conspiracy to
deliver more than 50 grams but less than 225 grams of cocaine.
Such
a
defendant
would
not
avoid
conspiracy
liability.
Rather, such a defendant would be properly convicted of a
17
felony and would face at least a presumptive ten- to twenty
year term of incarceration.20
Further,
the
Court
of
Appeals
analysis
improperly
suggests that a conspiracy conviction must be tied to the
amount of cocaine that was eventually delivered.
not always be the case.
This will
The gist of a conspiracy is the
unlawful agreement. People v Asta, 337 Mich 590, 611; 60 NW2d
472 (1953). Indeed, the purpose of the conspiracy need not be
accomplished.
Id.
In People v Denio, 454 Mich 691, 712; 564
NW2d 13 (1997), this Court noted that it has “repeatedly held”
that conspiracy is separate and distinct from the substantive
crime that is its object.
The Court of Appeals erroneous
assumption that the amount of cocaine actually delivered is
the amount a defendant conspired to deliver could, in some
instances, improperly work to a drug dealer’s benefit.
For
example, if wiretap evidence showed a drug dealer asked
someone to help him deliver 700 grams of cocaine and the
person agreed (and both parties actually intend to deliver 700
grams), such a person would be guilty of conspiring to deliver
more than 650 grams of cocaine, even if no sale took place or
20
To reiterate, the prosecution is not required to show
the defendant knew the precise or specific amount. However,
if the prosecution charges a defendant with conspiracy to
deliver a controlled substance above the lowest amount of less
than 50 grams, it must submit evidence showing the defendant
agreed to commit the more serious offense.
18
if the amount of cocaine that was actually delivered turned
out to be less than 650 grams.21
The
prosecution
argues
that
Justice
should
not
be
applicable here because (1) the crime charged in Justice was
the
specific
intent
crime
of
possession
with
intent
to
deliver,22 whereas the crime herein was the general intent
crime of delivery, and (2) Justice involved multiple small
transactions that were aggregated, whereas the case at bar
involved only one transaction.23
It has also been suggested
that Justice was wrongly decided and that we should hold that
knowledge of the amount of a controlled substance is not an
element of a conspiracy offense.24
We find unpersuasive these
21
22
While delivery of a controlled substance is a general
intent crime, People v Maleski, supra, possession with intent
to deliver is a specific intent crime. People v Crawford, 458
Mich 376, 417, n 19; 582 NW2d 785 (1998) (Boyle, J.,
dissenting).
23
The prosecutor indicates that the overall objective of
a conspiracy case which involves numerous deals is not as
clear in cases involving one transaction, so the “additional
element of intent in those cases is justified.”
24
We agree that such a holding might be supported by
United States v Feola, 420 US 671; 95 S Ct 1255; 43 L Ed 2d
541 (1975), where the United States Supreme Court held the
crime of conspiracy to assault a federal officer did not
require a criminal intent greater than that necessary to
convict for the substantive offense of assaulting a federal
officer. Feola is neither directly on point nor controlling.
In contrast, People v Justice is on point and controlling,
absent a decision to overrule the case. Indeed, in Feola a
holding that knowledge was an element would have led to
(continued...)
19
criticisms of and efforts to distinguish Justice.
We are
satisfied that Justice properly concluded that knowledge of
the amount of a controlled substance is an element of the
crime of conspiracy to deliver a controlled substance, and
that this holding is consistent with a correct interpretation
of our controlled substance and conspiracy statutes.25
This
is because our conspiracy statute, MCL 750.157a, makes it a
crime to conspire with another to commit “an offense.”
And,
as previously explained, there are four separate delivery
offenses depending on the amount of contraband involved.
The
fact that Justice required the prosecution to establish the
24
(...continued)
dismissal of the federal charges.
We do not face such a
situation in that the prosecution will always be able to argue
for a conspiracy to deliver less than 50 grams of cocaine
charge if there is no evidence regarding the amount of cocaine
the conspirators agreed to deliver. It is also the case that
Feola is not without its critics. See, e.g., US v Cordoba-
Hincapie, 825 F Supp 485, 510-511 (ED NY, 1993).
In any
event, notwithstanding Feola, we believe Justice and
Apprendi preclude us from determining that knowledge of the
amount is not an element of a conspiracy to deliver a
controlled substance charge.
25
The concurrence indicates that Justice correctly
required the prosecution to show the defendant intended to
engage in the prohibited conduct, slip op, p 14, but then
“inexplicably” concluded the defendant had to possess the
specific intent to deliver the statutory minimum charged.
Slip op, p 15. We see nothing inexplicable in the conclusion.
What the concurrence fails to recognize is that “the
prohibited conduct” is not just agreeing to deliver some
amount of cocaine, but agreeing to commit one of four delivery
offenses and those offenses are in four ranges depending on
the amount with which the prosecution charges the defendant.
20
statutory charged amount is fully consistent with requiring
the prosecution to prove which delivery offense a defendant
conspired to violate and with the fact that conspiracy is a
specific intent crime.26 Moreover, as explained below, we find
Apprendi provides independent support for this conclusion.
To make our position clear, if a conspiracy to deliver
and a delivery charge are coupled (and the proofs for the
delivery demonstrate the weight of the substance delivered)
such proofs may suffice to demonstrate defendant’s knowledge
of the amount for the conspiracy charge.
This is because a
prosecutor is free to argue, and the jury would be free to
find, if it was persuaded, given all the circumstances, that
defendant had knowingly conspired to deliver the same amount
that was actually delivered.
VIII. Apprendi v New Jersey
Mr. Apprendi was convicted in state court of possession
of a firearm for an unlawful purpose, an offense punishable by
imprisonment from five to ten years.
However, at sentencing
the trial judge found, by a preponderance of the evidence,
that Apprendi had committed the crime with a purpose to
intimidate individuals because of their race.
26
This finding
Thus, we reject the concurrence’s claim that we have
somehow “add[ed] an element” to a statute. Slip op, p 20.
Rather, we believe it is the concurrence that would refuse to
require the prosecution to prove an element required under our
conspiracy and delivery statutes.
21
served to increase the sentence under New Jersey’s “hate
crime” law to imprisonment from ten to twenty years.
The
United States Supreme Court held as a matter of federal
constitutional law that
[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.
[Apprendi, supra at 490.][27]
The Court explained that it does not matter that a
particular
fact
is
designated
as
a
“sentencing
factor.”
Rather,
the relevant inquiry is one not of form, but of
effect—does the required finding expose the
defendant to a greater punishment than that
authorized by the jury’s guilty verdict? [Id. at
494.]
Before Apprendi, federal courts generally held that the
quantity of drugs was not an element of the federal drug
offenses.
The prevailing approach appeared to be that the
trial court determined by a preponderance of the evidence the
“reasonably foreseeable” quantities of contraband that were
within the scope of the criminal activity that the defendant
jointly undertook.
(CA 7, 1999).
sentencing.
United States v Pagan, 196 F3d 884, 891
Quantity was a matter for the trial court at
United States v Doggett, 230 F3d 160 (CA 5,
27
The four dissenting justices characterized the Court’s
opinion as “a watershed change in constitutional law.”
Apprendi, supra at 524 (O’Connor, J., dissenting).
22
2000).
However, the Federal Courts of Appeals have recently, and
repeatedly, held that, under Apprendi, drug quantity is an
element of a controlled substances offense, and that the
element must be submitted to the jury and proved beyond a
reasonable doubt if the quantity “increases the penalty for a
crime beyond the prescribed statutory maximum.”
supra.
Doggett,
Accord, United States v Fields, 242 F3d 393 (CA DC
2001)28 (drug quantity is an element of the offense where a
factual determination of the amount of drugs at issue may
result
in
a
sentence
that
exceeds
a
maximum
sentence
prescribed in the applicable statute); United States v Aguayo-
Delgado, 220 F3d 926 (CA 8, 2000).
As stated in Doggett, supra at 163:
Notwithstanding
prior
precedent
of
this
circuit and the Supreme Court that Congress did not
intend drug quantity to be an element of the crime
under 21 USC 841 and 846, we are constrained by
Apprendi to find in the opposite.
In United States v Page, 232 F3d 536 (CA 6, 2000), the
defendant was charged in federal court with conspiracy to
distribute cocaine.
There was no mention of the quantity in
the indictment, and the jury made no findings regarding
quantity.
On the basis of a trial court determination at
sentencing that more than 1.5 kilograms were attributable to
28
Clarified on rehearing, 2001 WL 640631 (June 12, 2001).
23
the defendant, the court imposed a thirty-year sentence. This
was ten more years than the prescribed statutory maximum. The
Court stated:
As instructed in Apprendi, a defendant may not
be exposed to a greater punishment than that
authorized by the jury’s guilty verdict. The jury
merely
found
that
defendants
conspired
to
distribute
and
possess
to
distribute
some
undetermined amount of crack cocaine.
As such,
defendants cannot be exposed to the higher
penalties under § 841(b)(1)(A) or (B). Rather, the
maximum sentence that may be imposed on this count
is 20 years pursuant to § 841(b)(1)(C). [Id. at
543.]
Even though the issue had been forfeited, the Court granted
the defendant relief because the error resulted in imposition
of a sentence ten years longer than the sentence could have
been without the error.
The Court said this affected Page’s
substantial rights and the fairness of the proceeding was
undermined
since
the
error
affected
the
outcome
by
substantially increasing the sentence.29
IX. The delivery instructions
As to his delivery conviction, defendant claims the
29
In United States v Flowal, 234 F3d 932, 938 (CA 6,
2000), another Sixth Circuit case addressing Apprendi, the
court stated:
Because
the
amount
of
drugs
at
issue
determined the appropriate statutory punishment, a
jury should have determined the weight of drugs
beyond a reasonable doubt. . . . Accordingly, the
prosecution is only entitled to the punishment
provisions of the crime whose elements it has
proved to a jury beyond a reasonable doubt.
24
United States Supreme Court’s recent opinion in Apprendi,
supra, requires that the jury had to determine whether he knew
Blackstone intended to deliver at least 225 grams of cocaine
before he could properly be convicted of delivery of 225 grams
or more of cocaine.
We disagree.
The trial court instructed the jury on the delivery
offense as follows:
The defendant is charged with the crime of
Illegally Delivering More Than 225 grams But Less
Than 650 grams of a Mixture Containing a Controlled
Substance, Cocaine.
To prove this charge the
prosecutor must prove each of the following
elements, beyond a reasonable doubt. First, that
the defendant delivered a controlled substance.
Second, that the substance delivered was cocaine.
Third, that the defendant knew he was delivering
cocaine.
Fourth, that the substance was in a
mixture that weighed 225 or more grams, but less
than 650 grams. [Emphasis added.]
This instruction complied with our determination that the
amount of a controlled substance is an element of a controlled
substance offense.
Further, this instruction did not violate
Apprendi because the jury was instructed that it could not
find defendant guilty of the delivery charge unless the
prosecution
proved
beyond
a
reasonable
doubt
that
substance delivered weighed 225 grams or more.
the
The jury
necessarily found that at least 225 grams of cocaine were
delivered when it convicted defendant of the delivery charge.
Hence, defendant’s delivery conviction was proper.
25
X. The conspiracy instructions
However, we find that a different conclusion is required
regarding the conspiracy instructions. Because of Justice and
Apprendi, the jury should have been instructed that it could
not find defendant guilty of conspiracy to deliver 225 grams
or more, but less than 650 grams of cocaine unless it found
defendant
conspired
to
deliver,
not
just
any
amount
of
cocaine, but at least 225 grams.
After initially telling the jury it “must take the law as
I
give
it
to
you,”
the
trial
judge
gave
the
following
instruction regarding the conspiracy offense:
The defendant is charged with the crime of
Conspiracy to Commit the Delivery of Cocaine.
Anyone who knowingly agrees with someone else to
commit the Delivery of Cocaine is guilty of
Conspiracy.
To prove the defendant’s guilty the
prosecutor must prove each of the following
elements beyond a reasonable doubt.
First, that
the defendant and someone else knowingly agreed to
commit Delivery of Cocaine. . . .
Notably absent from the conspiracy instruction was the fact
that the jury had to find that defendant had conspired, not
just to deliver some amount of cocaine, but at least 225
grams.
This was a violation of Justice.
This was also an
Apprendi error because one can only be certain that the jury
concluded that the conspiracy involved less than 50 grams.
While the amount eventually delivered may, in a given case, be
circumstantial evidence of the nature of agreement, it is
26
always necessary for the jury to be charged that it must
decide the nature of the agreement.
The statutory maximum
penalty for conspiring to deliver less than fifty grams of
cocaine subjects a defendant to a maximum sentence of twenty
years, MCL 333.7401(2)(a)(iv).
Yet, conviction of conspiring
to deliver at least 225 grams of cocaine exposed defendant to
a greater punishment of thirty years imprisonment.
333.7401(2)(a)(ii).
MCL
Thus, the failure to have the jury
determine that the conspiracy involved at least 225 grams of
cocaine exposed defendant to a thirty-year sentence, which is
in excess of the prescribed maximum twenty-year sentence
applicable for a conspiracy to deliver less than 50 grams of
cocaine.
XI. Forfeited Error
The defendant did not object to the erroneous conspiracy
jury instruction.
Because of this, the error was forfeited.
The standard that must be met to support reversal of a
conviction for nonstructural constitutional error is the same
standard as for forfeited non constitutional error, that is,
the reviewing court “should reverse only when the defendant is
actually
innocent
fairness,
proceedings
or
integrity,
the
or
independent
error
public
of
the
seriously
reputation
defendant’s
affected
of
the
judicial
innocence.”
Carines, supra at 774; People v Duncan, 462 Mich 47, 57; 610
27
NW2d 551 (2000).
Here,
conspiracy
the
30
trial
court
instruction,
omitted
i.e.,
the
an
element
from
its
requirement
that
the
prosecution show that defendant specifically agreed to deliver
at least 225 or more grams of cocaine.
We conclude that this
error seriously affected the fairness, integrity, or public
reputation of defendant’s trial.
Although
conspired
to
defendant
deliver
never
less
than
argued
225
that
grams
he
of
properly instructed jury may have so concluded.
may
have
cocaine,
a
Given the
judge’s instructions, it is clear that the jury effectively,
and only, determined defendant had conspired to deliver less
than 50 grams of cocaine.
We find it would seriously affect
the fairness and integrity of defendant’s trial to allow a
conviction of a more serious offense than the one determined
by the jury to stand.
Accordingly, we reverse defendant’s
conspiracy to deliver 225 grams or more but less than 650
30
In Neder v United States, 527 US 1; 119 S Ct 1827; 144
L Ed 2d 35 (1999), the Supreme Court observed that most
constitutional errors are subject to harmless error analysis
and applied the harmless error rule to a trial court's failure
to instruct on an element of an offense. Apprendi did not
recognize or create a structural error that would require
reversal per se. United States v Swatzie, 228 F3d 1278, 1283
(CA 11, 2000). A constitutional error is harmless if “it is
clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.” Neder,
supra, 119 S Ct 1830. See also Swatzie, at 1283 (“error in
Neder is in material respects indistinguishable from error
under Apprendi”).
28
grams
of
cocaine
and
remand
for
entry
of
a
conviction
consistent with the jury verdict, i.e., conspiracy to deliver
less than 50 grams of cocaine conviction.31
XII.
Response to the concurrence
It is important to point out, before responding to the
differences, where we agree with the concurrence.
We both
agree that a delivery of a controlled substance does not
require, for a conviction, knowledge of the amount delivered.
We also agree that the conspiracy jury instructions were
flawed, requiring defendant be granted a new trial on the
conspiracy
charge.
Our
principle
difference
with
the
concurrence however, is whether a charge of conspiracy to
deliver cocaine in a given amount, standing alone, can be
proven without some evidence that the agreement was for the
delivery of that amount of cocaine.
To
articulate
this
in
the
theoretical
terms
of
the
criminal law, the concurrence would effectively convert the
specific intent crime of conspiracy into a general intent
crime.
Consider the following: if there were a conspiracy to
deliver cocaine, with no evidence suggesting the amount of
31
However, if the prosecuting attorney is persuaded that
the ends of justice would be better served, upon notification
to the trial court before resentencing, defendant may be
required to face a new trial on the original conspiracy charge
with proper jury instructions. People v Jenkins, 395 Mich
440, 443; 236 NW2d 503 (1975).
29
cocaine, under the concurrence view the prosecution could
charge the conspirators with conspiracy to deliver more than
650 grams of cocaine if it later develops that this amount was
in fact delivered.
Such view is in our opinion inconsistent
with the plain language of our conspiracy statute, which makes
conspiracy a specific intent crime.32
Indeed, it is just this
point—that conspiracy is a specific intent crime that animated
the Justice decision.
Moreover, this conclusion is reinforced
by the United States Supreme Court’s decision in Apprendi.
The concurrence accuses the Justice majority, and now us,
of
“imposing”
or
conspiracy charges.
“adding”
a
knowledge
We disagree.
requirement
into
The concurrence fails to
give full consideration to the fact that MCL 750.157a requires
that a conspirator must agree to commit “an offense.”33
This
32
In response to the concurrence’s claim that we are
somehow requiring the law to engage in “mind-reading,” slip
op, p 25, we simply note that we are only requiring the
prosecution to prove the elements of a specific intent crime,
and the law has always required some evidence from which the
jury might determine the defendant’s mens rea in such cases.
33
See, e.g., US v Piper, 35 F3d 611, 615 (CA 1, 1994) (The
government must prove that the defendant possessed both “an
intent to agree and an intent to effectuate the commission of
the substantive offense”) (emphasis added). "Establishing a
conspiracy requires evidence of specific intent to combine
with others to accomplish an illegal objective." People v
Blume, 443 Mich 476, 481; 505 NW2d 843 (1993). In the case at
bar, “the offense” was conspiracy to deliver at least 225
grams of cocaine, not conspiracy to deliver cocaine without
reference to an amount.
Defendant could not conspire to
deliver at least 225 grams of cocaine unless he knew and
(continued...)
30
means
we
must
determine
what
is
“an
offense.”
If
the
underlying offense is a mere act (like forgery), rather
than being one that is graduated to be more severe as the act
is
more
antisocial
(such
as
delivery
of
controlled
substances), then to determine if one of the more severe
offenses has been proved, the element making it more severe
must be shown.
Thus, if the conspiracy is to deliver cocaine,
unless the prosecution wants to settle for the lowest charge
of
conspiracy
to
deliver
less
than
fifty
grams,
the
prosecution must show the conspiracy involved either 50 to 224
grams or 225 to 649 grams or more than 650 grams.
Michigan
a
conspiracy
to
deliver
cocaine
Because in
charge
can
be
established by a mere agreement34 to deliver cocaine that
encompasses all the elements of the crime conspired to be
committed, there need not be an act in furtherance of the
conspiracy for a defendant to be guilty of conspiring to
deliver some amount of cocaine.
Thus, in a mere agreement
33
(...continued)
intended the delivery to be at least 225 grams.
A person
cannot conspire with another to commit the offense of delivery
of at least 225 grams of cocaine unless he knows what he has
agreed to accomplish. Thus, we reject the claim that we have
“added” an element because a knowledge of the amount element
arises out of the language of the conspiracy statute itself.
34
This is in contrast with general federal conspiracy
statute, 18 USC 371, which does require an overt act in
furtherance of the conspiracy. Blume, supra at 507(Boyle, J.,
dissenting).
31
without
an
prosecutor
overt
can
act
show
conspiracy
that
this
scenario,
“thought,
or
unless
plan,
the
crime”
included a knowledge of the amount conspired about, only a
conviction of less than fifty grams can be obtained.
Said
another way, if the amount agreed to is not an element of a
conspiracy to deliver at least fifty grams of cocaine, how
will that element be established and who will make that
necessary fact finding?
The answer to that question in the
federal
historically
system
determination
however.
is
at
that
sentencing.
That
the
ended
judge
with
made
that
Apprendi,
After Apprendi the fact of the amount has to be
decided by the jury.
As we are today determining to continue
the approach that Justice outlined, we are acting in harmony
with Apprendi.
What this all means is that while both the majority and
the concurrence agree with respect to a delivery charge that
the amount delivered may establish, without more, the element
of
the
amount,
conspiracy cases.
this
approach
will
not
always
work
in
The reason is that it is not necessary for
a deliver to take place in order for a conspiracy to delivery
charge to be brought,35 and, even when a delivery follows after
a conspiracy to deliver is formed, the conspiracy may have
35
Conspiracy is separate and distinct from the substantive
crime that is its object. People v Denio, supra at 712.
32
been for more or less than the amount
delivered.36
It
is
just
this
problem
that
is actually
with
which
the
concurrence fails to grapple.
The
concurrence
contends
that
our
reaffirmation
of
Justice will have “serious[] detrimental consequences for
Michigan’s criminal justice jurisprudence,” slip op, p 2, and
that “it is likely that in some unknown, but probably quite
significant, number of drug prosecutions the prosecutor will
be unable to maintain a conviction that is above the statutory
maximum for the lowest level delivery offense.”
30.
Slip op, p
We cannot agree.
First, regardless of the effect, we must comply, as we
have
attempted
to
do,
with
our
conspiracy
and
delivery
statutes (not to mention Apprendi which is a constitutionally
based ruling).
Moreover, regarding the prediction that there
will be unfortunate implications from continuing the rule of
Justice, we are unaware of any drop off in drug conspiracy
prosecutions as a result of Justice.
that
our
reaffirmation
of
Justice
It should also be noted
does
not
impose
any
restraint on a prosecutor’s ability to obtain conspiracy to
deliver less than 50 gram convictions which carry a maximum
twenty year prison term that must be served consecutive to any
36
However, a prosecutor is free to argue that the evidence
proves the conspiracy was for the amount that was actually
delivered.
33
delivery conviction that may be obtained.
MCL 333.7401(3).
This is clearly a significant disincentive to engage in such
conduct and a major tool in the law enforcement arsenal.37
XIII. Conclusion
A defendant may be properly convicted of delivery of 225
grams or more but less than 650 grams of cocaine on an aiding
and abetting theory, even if he does not know the amount of
drugs to be delivered, as long as the jury finds that at least
225 grams of cocaine were delivered.
Pursuant to Justice and Apprendi, a defendant charged
with conspiracy to deliver 225 grams or more but less than 650
grams of cocaine is entitled to have the jury instructed that
the defendant is guilty only if the prosecution has proved
beyond a reasonable doubt that defendant conspired to deliver,
not just some amount of cocaine, but at least 225 grams of
cocaine.
Accordingly, as explained above, defendant’s delivery
conviction
is affirmed and the conspiracy to deliver at least
225 grams of cocaine is reversed.
37
This matter is remanded to
The concurrence says it is for the Legislature and not
this Court to determine what is a significant disincentive for
particular conduct.
Slip op, p 30, n 12.
Surely, the
concurrence does not mean to suggest that it is improper for
this Court to remark the obvious. In any event, we certainly
believe our opinion today respects the Legislature’s
determinations of the increased disincentives for larger scale
drug trafficking.
34
allow the trial court to enter a conspiracy to deliver less
than 50 grams of cocaine conviction and sentencing on this
count (subject to the condition noted in footnote 31), and
also so the Court of Appeals ordered resentencing on the
delivery conviction may occur.
Affirmed in part and reversed
in part.
CAVANAGH , KELLY , and YOUNG , JJ., concurred with TAYLOR , J.
35
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No.
115820
JIMMY MASS, a/k/a KOOL AID,
Defendant-Appellant.
____________________________________
MARKMAN, J. (concurring).
I agree with the majority’s analysis and conclusion that,
while the amount of a controlled substance is an element of a
delivery offense pursuant to MCL 333.7401, a defendant’s
knowledge of such amount is not.
However, with regard to
whether knowledge of the amount of a controlled substance is
an element of a conspiracy to deliver offense, I respectfully
concur in the result only and write separately to express my
concern that the majority’s analysis, which concludes that
defendant’s
knowledge
of
the
amount
is
an
element
of
a
conspiracy to deliver offense, broadens the plain language of
both the delivery statute, MCL 333.7401, and the conspiracy
statute, MCL 750.157a. Further, the majority’s conclusion, in
my
judgment,
has
seriously
detrimental
consequences
for
Michigan’s criminal justice jurisprudence.
I. PEOPLE
V
JUSTICE
In concluding that defendant’s knowledge of the amount is
an element to a conspiracy to deliver charge, the majority
first relies on People v Justice (After Remand), 454 Mich 334;
562 NW2d 652 (1997).
As the majority correctly points out,
the Justice Court held that, in a conspiracy to possess with
intent to deliver charge, the prosecutor has the burden of
proving that “the defendant possessed the specific intent to
deliver the statutory minimum as charged . . . .”
Id. at 349.
In my judgment, this holding misstated the law in that it
impermissibly
broadened
the
plain
language
of
both
the
delivery statute, MCL 333.7401, and the conspiracy statute,
MCL 750.157a, by requiring a higher level of criminal intent
than set forth by those statutes.
Instead, a careful review
of these statutes indicates that, in a conspiracy to deliver
charge, the prosecutor only has the burden to prove that
defendant had the intent to agree, and the specific intent to
commit the substantive offense, in essence, to deliver a
controlled substance.1
The majority correctly concludes that
1
Interestingly, in Justice, supra, this Court also
stated that, in order to bind the defendants over on a
conspiracy to possess with intent to deliver charge, the
prosecutor must show probable cause that the “coconspirators
shared the specific intent to accomplish the substantive
offenses charged.” Id. at 337 (emphasis added). However, as
will be discussed, below at 8, when the Justice Court applied
this general rule to the substantive offense, it somehow
(continued...)
2
knowledge of the amount of a controlled substance is not an
element of a delivery charge.
However, I fail to understand
why it nevertheless concludes that, when a defendant is
charged with conspiracy to deliver, knowledge of the amount
suddenly becomes an element.
If knowledge is not an element
of a delivery charge, how is it properly transformed into an
element of a conspiracy to deliver offense?
In my judgment,
under the facts of this case, it cannot.
A. General Conspiracy Law
At common law, the crime of conspiracy was complete upon
formation of the unlawful agreement.
law—Criminal
conspiracy,
72
Harv
L
Developments in the
R
922,
945
(1959).
Michigan’s approach to conspiracy law mirrors that of the
common law. In Michigan, “[a]ny person who conspires together
with one or more persons to commit an offense prohibited by
law, or to commit a legal act in an illegal manner is guilty
of the crime of conspiracy . . . .”
MCL 750.157a.
This
common-law approach to the crime of conspiracy, however, is
not the approach followed in a majority of jurisdictions.
Today, most state conspiracy statutes, as well as the federal
government general conspiracy statute, 18 USC 371, require the
1
(...continued)
concluded that the “defendant [must] possess[] the specific
intent to deliver the statutory minimum as charged . . . .”
Id. at 349.
3
additional element of an overt act.2
An overt act is defined
as some act taken by one of the conspirators in furtherance of
the conspiracy.
Marcus, Prosecution and Defense of Criminal
Conspiracy Cases, ch 2.08, at 2-71.
The requirement of an
overt act serves two principal purposes.
that
an
overt
act
requirement
is
First, some believe
desirable
so
that
a
conspirator is afforded a reasonable opportunity to change his
mind and to withdraw from the conspiracy.
“The provision of
the statute, that there must be an act done to effect the
object of the conspiracy, merely affords a locus poenitentice,
so that before the act [is] done either one or all of the
parties may abandon their design, and thus avoid the penalty
prescribed by the statute.”
United States v Britton, 108 US
2
Developments in the Law, supra at 945-46. Compare
with the federal government’s subsequent specific-subject
conspiracy statutes that no longer have an overt act
requirement. See, e.g., the RICO conspiracy statute, 18 USC
1962(d), and the drug conspiracy statute, 21 USC 846.
Additionally, even despite the absence of an overt act
requirement in the drug conspiracy statute, federal drug
conspiracy prosecutions do not require that a defendant have
knowledge of the amount of the controlled substance. Instead,
as will be discussed in part III, all that is necessary for a
conviction on the substantive drug offense and the conspiracy
offense is merely proof of the amount of the controlled
substance. See, e.g., United States v Fields, ___ US App DC
___, ___; 242 F3d 393, 396 (2001), clarified on rehearing 2001
WL 640631 (June 12, 2001 (stating that “it is now clear that,
in drug cases under 21 USC 841 & 846, before a defendant can
be sentenced to any of the progressively higher statutory
maximums that are based on progressively higher quantities of
drugs specified in 841(b)(1)(A) or (B), the government must
state the drug type and quantity in the indictment, submit the
required evidence to the jury, and prove the relevant drug
quantity beyond a reasonable doubt”).
4
199, 204-05; 2 S Ct 531; 27 L Ed 698 (1883).
In addition, the
overt act requirement serves to make certain that society does
not intervene prematurely, i.e., at a time when there is not
a sufficiently imminent danger that the object crime will be
attempted or completed. Marcus, supra at 2-74. “The function
of the overt act in a conspiracy prosecution is simply to
manifest that the conspiracy is at work” and is not a project
resting solely in the minds of the conspirators.3
2 LaFave &
Scott, Substantive Criminal Law, § 6.5, at 95.
Thus, the
overt act requirement ensures that the agreement to commit an
unlawful objective has reached a sufficiently advanced stage
to warrant preventative action.
In practice, prosecutors rarely charge individuals with
a conspiracy until a substantial overt act has taken place.
Marcus, supra at 2-76.4
that
the
completed
Indeed, it is frequently the case
substantive
offense
itself
will
be
identified as the overt act for purposes of the conspiracy
charge.
Id. at 2-76, n 18.
This is readily evident in
federal conspiracy cases that rely on the general conspiracy
statute.
See, e.g.,
United States v Feola, 420 US 671; 95 S
3
Such a concern, in particular, appears to animate the
majority opinion and is a concern most relevant to what I will
describe as the “pure” Michigan conspiracy, one in which there
has been no overt act. See note 6.
4
As a practical matter, there is little evidence that
charging practices are any different on the part of Michigan
prosecutors, despite the absence of an overt act requirement.
5
Ct 1255; 43 L Ed 2d 541 (1975).
Indeed, in the case before
us, the substantive offense itself was completed, in effect
constituting the overt act in furtherance of the unlawful
objective.
As explained in the majority opinion, defendant
was convicted, on an aider and abettor theory, of delivery of
225 grams or more, but less than 650 grams, of a mixture
containing cocaine.
Because an overt act was, in fact,
evident in this conspiracy, namely, the completed offense,
this
case
is
indistinguishable
from
the
universe
of
conspiracies that are addressed by federal conspiracy law.
Thus, I believe that the principles applied in these cases are
highly relevant to the resolution of this case.5
5
Although Michigan law allows for the prosecution of
drug conspiracies in which the evidence shows that the
conspirators merely agreed to commit an offense prohibited by
law, MCL 750.157a, even absent an overt act, such a “pure”
Michigan conspiracy is, as we have noted, not before us.
Indeed, such “pure” conspiracies are rarely before us, given
the considerable problems of proof that these conspiracies
must surmount. This concurrence takes no position with regard
to the knowledge requirements of the “pure” conspiracy case,
which, as the majority points out, involves a variety of
unique concerns.
What is before us is the far more
commonplace conspiracy in which there has been some overt act,
therefore rendering the conspiracy, and its elements,
indistinguishable from the typical federal conspiracy.
It
seems altogether relevant, where conspirators in Michigan have
acted in furtherance of a conspiracy by taking overt acts
toward its ends, to look to federal law for whatever guidance
such law might provide in determining whether a conspirator
must have knowledge of the amount of the controlled substance
in which he or she is trafficking.
Here the substantive offense was, in fact, completed.
However, I am unaware of the law of any jurisdiction that
distinguishes between the conspiracy in which an overt act has
(continued...)
6
B.
In
Feola,
supra,
People v Feola
the
United
States
Supreme
Court
considered an issue similar to that presented in this case.
There before the Court was whether the crime of conspiracy to
assault a federal drug officer required a criminal intent
greater than that required to convict for the substantive
offense.
Specifically, the Court sought to determine whether
the defendant had to “know” that the intended victim was, in
fact, a federal officer.
In the years before Feola there had been a split among
the federal circuit courts.
In a majority of the circuits,6
the courts held that, in a conspiracy to commit a federal
substantive offense, a defendant need not have
the
attendant
offense.
circumstances
embodied
in
the
knowledge of
substantive
For example, in United States v LeFaivre, 507 F2d
1288 (CA 4, 1974), the United States Court of Appeals for the
Fourth Circuit was asked to determine whether, in a conspiracy
to violate the travel act, 18 USC 1952, the defendant needed
to have knowledge of the use of interstate facilities in order
to be found guilty on the conspiracy charge.
5
In answering
(...continued)
occurred, and that in which the underlying criminal offense
has been completed. Therefore, in my judgment, the law set
forth in this concurrence properly applies wherever there has
been an overt act in furtherance of a conspiracy, without
regard to whether the substantive offense has been completed.
6
Marcus, supra at 2-110.
7
this question in the negative, the Fourth Circuit reasoned
that
“[w]hether
or
not
certain
conspirators
actually
anticipate the use of facilities in interstate commerce when
they plan their unlawful activity of gambling, bribery, etc.,
add[s] absolutely nothing to the dangerousness of their scheme
to the public weal.”
Id. at 1299; see also United States v
Polesti, 489 F2d 822 (CA 7, 1973); United States v Roselli,
432 F2d 879 (CA 9, 1970).
Conversely, the Court of Appeals
for the Second Circuit rejected the majority view.
In United
States v Cangiano, 491 F2d 906 (CA 2, 1974), the court
analyzed whether the defendant, in a conspiracy to transport
obscene materials in interstate commerce, must have knowledge
that
the
business
would
use
interstate
facilities.
In
answering this question in the affirmative, the court stated
that, because specific intent is required to prove conspiracy,
“the
proper
charge
requires
that
knowledge be found by the jury.”
the
element
Id. at 910.
of
actual
The United
States Supreme Court sought to finally resolve the knowledge
issue in Feola, supra.7
7
The majority asserts that “Feola is neither directly
on point nor controlling.” Although I agree that Feola is not
dispositive, I nevertheless believe, as stated supra at 7,
that the principles applied in general federal conspiracy
cases are highly persuasive in our resolution of this type of
controversy. In particular, Feola is instructive because of
the substantial similarities of the substantive and conspiracy
statutes in these cases. Further, I am aware of no federal or
state case law, before or after Apprendi, which has deviated
from these federal conspiracy principles. See, e.g., State v
(continued...)
8
1.
The Substantive Offense
To resolve the question whether a defendant must know
that his intended victim is a federal officer in a conspiracy
to assault a federal officer, the Court first examined the
elements of the substantive offense, 18 USC 111. In pertinent
part, the substantive offense at issue in Feola stated:
Whoever forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any person
designated in section 1114 of this title while
engaged in or on account of the performance of his
official duties, shall be fined not more than
$5,000 or imprisoned not more than three years, or
both.
* * *
Among the persons “designated in section 1114” of
18 USC is “any officer or employee . . . of the
Bureau of Narcotics and Dangerous Drugs.” [Feola,
supra at 673, n 1.]
7
(...continued)
Aviles-Alvarez, 561 NW2d 523 (Minn App 1997)(holding that
“[w]hile the amount is an essential element of the crime, the
defendant’s knowledge of the amount is not an essential
element”).
The majority also asserts that, if the Feola Court held
that knowledge of the federal officer’s identity was an
element of the substantive offense, this would have led to a
dismissal of the federal charges, and that “[w]e do not face
such a situation” in the instant case. Whether or not the
charges would have been dismissed was of no relevance to the
Feola holding, nor is it of apparent relevance to the instant
holding. Instead, the Court in Feola, as this concurrence
does today, grounded its decision in the plain language of the
substantive and the conspiracy statutes, as well as in the
purposes underlying criminal conspiracy law.
9
After
analyzing
the
language
of
the
statute,
the
Court
concluded that § 111 “cannot be construed as embodying an
unexpressed requirement that an assailant be aware that his
victim is a federal officer.”
Id. at 684; United States v
Lombardozzi, 335 F2d 414, 416 (CA 2, 1964).
Instead, the
Court found that the statute required an “intent to assault,
not an intent to assault a federal officer.”
Feola, supra at
684. The requirement that the victim be a federal officer was
merely an element of the substantive offense that need not be
specifically known to the defendant.
Thus, to prove the
substantive offense, the government only needed to establish,
among other things, that the victim was a federal officer, not
that the defendant knew that the victim was a federal officer.
In the case before us, MCL 333.7401 provides in pertinent
part:
(1) [A] person shall not manufacture, create,
deliver, or possess with intent to manufacture,
create, or deliver a controlled substance . . . .
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1
or 2 that is a narcotic drug . . . and:
(i) Which is in an amount of 650 grams or more
of any mixture containing that substance is guilty
of a felony and shall be imprisoned for life
. . . .
(ii) Which is in an amount of 225 grams or
more, but less than 650 grams, . . . shall be
imprisoned for not less than 20 years nor more than
30 years.
(iii) Which is in an amount of 50 grams or
10
more, but less than 225 grams, . . . shall be
imprisoned for not less than 10 years nor more than
20 years.
(iv) Which is an amount less than 50 grams
. . . shall be imprisoned for not less than 1 year
nor more than 20 years . . . .
A review of this statute indicates that a defendant must
have the intent to deliver a controlled substance, not an
intent to deliver an amount that falls within a particular
statutory range. Subsection (1) clearly states that “a person
shall not . . . deliver . . . a controlled substance.”
Such
an interpretation of this language does not mean that the
amount is not an element of the offense.
It is.
Rather, such
an interpretation simply means that a defendant need not
specifically know the amount in order to be convicted of this
offense.
This conclusion, in my judgment, is in accord with
the majority’s determination that, while the amount of a
controlled substance is an element to a delivery charge,
knowledge of the amount is not.
2.
The Conspiracy Statute
The Feola Court then turned to “consider whether the rule
should be different where persons conspire to commit” the
substantive offense at hand.
Id. at 686.
With regard to the
conspiracy offense, the defendant specifically urged the Court
to conclude that
the Government must show a degree of criminal
intent in the conspiracy count greater than is
necessary to convict for the substantive offense;
he urges that even though it is not necessary to
11
show that he was aware of the official identity of
his assaulted victims in order to find him guilty
of assaulting federal officers, . . . the
Government nonetheless must show that he was aware
that his intended victims were undercover agents,
if it is successfully to prosecute him for
conspiracy to assault federal agents. Id. at 686
87.
To resolve whether the defendant was correct in his analysis,
the Court examined the text of the conspiracy statute.
It
explained that, if a knowledge requirement exists, it would
have to be found within the text of the conspiracy statute, 18
USC 371.
The conspiracy statute at issue in Feola made it unlawful
to “conspire . . . to commit any offense against the United
States.”
Feola, at 687.
On the basis of this language, the
Court stated that “[a] natural reading of these words would be
that since one can violate a criminal statute simply by
engaging in the forbidden conduct, a conspiracy to commit that
offense is nothing more than an agreement to engage in the
prohibited conduct.”
Id.
In other words, the Court found
that “there is nothing on the face of the conspiracy statute
that would seem to require that those agreeing to the assault
have a greater degree of knowledge.”
Id. at 687.
Similar to the federal conspiracy statute, Michigan’s
conspiracy statute prohibits an individual from “conspir[ing]
. . . to commit an offense prohibited by law . . . .”
750.157a.
MCL
A review of the language of the conspiracy statute
reveals that a conspiracy to commit an offense prohibited by
12
law requires nothing more than: 1) an intent to agree; and 2)
an intent to engage in the prohibited conduct.
See also
People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974).
In
Justice, this Court apparently agreed with this general rule.
As noted previously, the Justice Court stated that “in order
to bind defendant over on the two counts of conspiracy there
must be probable cause to believe that defendant and the
coconspirators shared the specific intent to accomplish the
substantive
offenses
charged.”
Justice,
(emphasis added); see also id. at 345-347.
supra,
at
337
The Justice Court
accordingly proceeded to set forth the substantive offense at
issue,
MCL
333.7401.
Then,
without
analysis
of
the
substantive offense, Justice inexplicably concluded that the
“defendant [must] possess[] the specific intent to deliver the
statutory minimum as charged . . . .”
Id. at 349.
Such a
conclusion, in my judgment, was erroneous because, as noted
previously, the language of MCL 333.7401, does not require
that a defendant harbor the intent to deliver an amount that
falls within a particular statutory range.8
8
The majority asserts that I “fail[] to appreciate the
fact that in Michigan, pursuant to our statute, the amount of
a controlled substance is part of a delivery offense . . . .”
See slip op at 12. I respectfully disagree. As stated supra
at 12, I believe that the relevant element of the delivery
offense concerns the amount, not knowledge of the amount, of
a controlled substance, and that this former element must be
proved beyond a reasonable doubt by the prosecutor.
13
The majority asserts that, by concluding that a defendant
need not possess the intent to deliver the statutory minimum
as charged, I am “convert[ing]” a specific intent crime into
a general intent crime.
Respectfully, I disagree.
Again,
conspiracy involves: i) an intent to agree, and ii) an intent
to engage in prohibited conduct.
exist without the other.”
“One of these intents may
LaFave, supra at 76.
Clearly, two
or more individuals may intend to agree on some matter without
also having an intent to engage in prohibited conduct.
For
example, A and B agree to burn certain property and A knows
the property belongs to C, but B believes that the property
belongs to A himself.
In this scenario, there is no intent to
engage in prohibited conduct on B’s part because B believes
that the property belongs to A.
In the instant case, however,
the conspirators clearly had the intent to agree and the
additional intent to engage in prohibited conduct—the delivery
of a controlled substance.
Thus, as in Feola, the specific
intent attributes of a conspiracy remain intact.
3.
Rejecting the Second Circuit Approach
Next, the Feola Court turned to its own case law to
determine whether a defendant was ever required to possess
specific
knowledge
of
the
attendant
circumstances
charged with a conspiracy to commit a federal offense.
when
The
Supreme Court identified prior case law that repudiated such
a position.
Citing In re Coy, 127 US 731, 8 S Ct 1263, 32 L
14
Ed 274 (1888), and United States v Freed, 401 US 601, 91 S Ct
1112, 28 L Ed 2d 356 (1971), the Feola Court stated that
historically it has “declined to require a greater degree of
intent
for
conspiratorial
responsibility
than
for
responsibility for the underlying substantive offense.”
Id.
at 688.
The Court then turned to United States v Crimmins, 123
F2d 271 (CA 2, 1971), the first case that set forth the
principle that the government must prove knowledge of the
attendant circumstances embodied in the substantive offense in
order for a defendant to be liable when
conspiracy.
with
charged with a
In Crimmins, supra, the defendant was charged
conspiracy
to
receive
stolen
transported in interstate commerce.
bonds
that
had
been
18 USC 371; 18 USC 415.
The Second Circuit held, that in order to be convicted of
conspiracy to commit the substantive offense, it was necessary
that
the
defendant
interstate lines.
actually
know
that
the
Crimmins, supra at 273-274.
bonds
crossed
To accept the
view that a defendant need not have knowledge of the attendant
circumstances would, according to the Crimmins court, “enlarge
their agreement beyond its terms as they understood them.”
Feola, supra at 689, citing Crimmins, supra.
To emphasize its
conclusion, the Crimmins court set forth what has become the
well-known traffic light analogy.
While one may, for instance, be guilty of
running past a traffic light of whose existence one
15
is ignorant, one cannot be guilty of conspiring to
run past such a light, for one cannot agree to run
past a light unless one supposes that there is a
light to run past. [Id. at 273.]
Although the Feola Court found this analogy “seductive,”
it concluded that it was clearly “bad law.”
Id. at 689-690.
The Court asserted that the traffic light analogy was relevant
only for the category of offenses for which no mental state
was required regarding any of the elements.
also LaFave, supra at 82.
Id. at 690; see
These cases must be distinguished
from offenses, such as 18 USC 111, that “require a certain
mental state as to some elements of the crime but not as to
others.”
LaFave, supra; Feola, supra at 691-92; see also
United States v Franklin, 586 F2d 560 (CA 5, 1978); United
States v Beil, 577 F2d 1313 (CA 5, 1978); State v Brown, 94
Wash App 327; 972 P2d 112 (1999).
Indeed,
like
the
substantive
offense
in
Feola,
MCL
333.7401 is an offense that requires a certain mental state
regarding some elements of the crime, but not others.
A
defendant need only have the intent to deliver a controlled
substance, MCL 333.7401(1), and then the substance must be in
a mixture or in an amount that falls within one of the
enumerated ranges, MCL 333.7401(2).
The majority ascribes significance to the fact that the
instant offense is one that is “graduated to be more severe as
the act is more antisocial . . . .”
In the majority’s view,
the element making the offense more severe must be shown to be
16
known by the defendant.
I do not see the point.
In Feola,
the offense at issue was similarly “graduated.”
See also
Franklin, Beil, and Brown, supra.
The element that did not
require the mental state in Feola was the same element that
increased the severity of the crime.
The defendant did not
need to be aware of the element that ultimately determined the
severity of the crime.
Instead, the prosecutor only needed to
prove the existence of particular facts concerning the federal
officer’s
conspiracy.
identity
and
to
connect
these
facts
to
the
Similarly, in this case, where defendant has
conspired to deliver a controlled substance and where there
has been an act in furtherance of this objective, he need not
have been aware that the amount of the controlled substance
fell within a particular statutory range in order to be
convicted of the more severe crime.
Instead, all that is
necessary is that the prosecutor prove beyond a reasonable
doubt that the amount fell within a particular statutory
range, and connect this amount to the conspiracy.
Because
neither the plain language of MCL 333.7401 nor MCL 750.157a
require that a defendant specifically know the amount of
controlled substance, the majority is impermissibly adding an
element to two otherwise straightforward criminal statutes.
In re MCI, 460 Mich 396, 414-415; 596 NW2d 164 (1999).9
9
Interestingly, the majority uses a similar analysis to
Feola in its discussion concerning the sufficiency of evidence
(continued...)
17
4.
Finally,
The Purposes Underlying Conspiracy Law
the
Feola
Court
emphasized
that
requiring
knowledge of the attendant circumstances would be wholly
inconsistent with the purposes of the conspiracy statute.
at 693.
Id.
The Court, first, opined that conspiracy law serves
as a means to protect society from the dangers incident to
group criminal activity.
Id.; see also LaFave, supra at 68.
Given the level of criminal intent necessary to
sustain conviction for the substantive offense, the
act of agreement to commit the crime is no less
opprobrious and no less dangerous because of the
absence of knowledge of a fact unnecessary to the
formation of criminal intent.
Indeed, unless
imposition of an “antifederal” knowledge requirement
9
(...continued)
necessary for defendant’s aiding and abetting conviction.
Defendant argued that, under the aiding and abetting statute,
the prosecutor must show sufficient evidence that defendant
“intended the crime of delivery of at least 225 grams of
cocaine or had knowledge [that coconspirator] Blackstone
intended to deliver at least 225 grams of cocaine at the time
he aided the delivery,” not merely sufficient evidence that
defendant intended a cocaine delivery. Slip op at 14. After
reviewing the statute, the majority holds that the requisite
intent for a conviction under the aiding and abetting statute
“is that necessary to be convicted of the crime as principle.”
Id. Applying this standard, the majority finds that “it was
enough for the prosecutor to show that Mass, as with the
principal offender Blackstone, knowingly delivered or aided in
the delivery of some amount of cocaine, as long as the jury
later determined that at least 225 grams of cocaine were in
fact delivered. The prosecutor simply did not need to show
that defendant knew that the amount of cocaine involved in the
instant delivery was at least 225 grams to secure . . . Mass’
conviction for aiding and abetting in the delivery of at least
225 but less than 650 grams of cocaine. Conviction of a crime
as an aider and abettor does not require a higher level of
intent with regard to the commission of the crime than that
required for conviction as a principal.” Id. at 14-15. In my
judgment, the same reasoning holds true for conviction on a
conspiracy to deliver offense.
18
serves social purposes external to the law of
conspiracy of which we are unaware, its imposition
here would serve only to make it more difficult to
obtain convictions on charges of conspiracy, a
policy with no apparent purpose. [Feola, at 693
694.]
Similarly, Michigan’s conspiracy statute serves as a
means of addressing the special dangers associated with group
activity.
“[C]ollective criminal agreement-partnership in
crime-presents a greater potential threat to the
public than individual delicts.
Concerted action
both increases the likelihood that the criminal
object will be successfully attained and decreases
the probability that the individuals involved will
depart from their path of criminality.
Group
association for criminal purposes often, if not
normally, makes possible the attainment of ends more
complex than those which one criminal could
accomplish. Nor is the danger of a conspiratorial
group limited to the particular end toward which it
has embarked.
Combination in crime makes more
likely the commission of crimes unrelated to the
original purpose for which the group was formed. In
sum, the danger which a conspiracy generates is not
confined to the substantive offense which is the
immediate aim of the enterprise.” [People v Denio,
454 Mich 691, 704; 564 NW 2d 13 (1997), quoting
People v Carter, 415 Mich 558, 570; 330 NW 2d 314
(1982).]
Because Michigan conspiracy law also seeks to protect society
from the danger of concerted action, it is not relevant
whether each defendant has knowledge that the amount of the
controlled substance fell within a particular statutory range.
The
agreement
to
commit
a
drug
offense,
and
an
act
in
furtherance of that agreement, “is no less opprobrious and no
less dangerous because of the absence of knowledge of a fact
unnecessary to the formation of criminal intent.”
19
Feola,
supra, at 693.
A participant in a conspiracy knows that
delivery of any amount of drugs is unlawful.
knowledge
requirement
would
only
serve,
Imposition of a
without
apparent
rationale, to make it more difficult to obtain conspiracy
convictions that are above the levels of punishment for the
lowest level delivery offense.
Further, the Feola Court observed that conspiracy law
also serves as a means of intervention against individuals who
manifest a disposition to criminality.
see also LaFave, supra at 68.
Feola, supra at 694;
“[A]lthough the law generally
makes criminal only antisocial conduct, at some point in the
continuum between preparation and consummation, the likelihood
of a commission of an act is sufficiently great” to justify
intervention.
intent
has
fulfilled
Feola, supra at 694.
crystallized,
commission
and
warrants
At this point “[c]riminal
the
likelihood
preventive
of
actual,
action.”
Id.
Because of this, the Supreme Court again did not see how the
imposition of a knowledge element would relate rationally to
this purpose.
“Given the level of intent needed to carry out
the substantive offense, we fail to see how the agreement is
any less blameworthy or constitutes less of a danger to
society solely because the participants are unaware which body
of law they intend to violate.”
Id.
Thus, the Court stated
that imposition of a knowledge requirement would render it
more
difficult
to
serve
the
20
purpose
behind
the
law
of
conspiracy without serving any other apparent social policy.
The Court concluded its analysis by expressly rejecting a
result that would, in the context of a conspiracy to commit a
federal offense, require that a defendant have knowledge of
the
attendant
circumstances,
instead
holding
that
“where
knowledge of the facts giving rise to federal jurisdiction is
not
necessary
for
conviction
of
a
substantive
offense
embodying a mens rea requirement, such knowledge is equally
irrelevant to questions of responsibility for conspiracy to
commit that offense.”
Id. at 696.
As in Feola, conspiracy to deliver a controlled substance,
and an act in furtherance of this objective, entail a sufficient
threat to the social order to be sanctionable in the manner
determined by the Legislature.10
The fact that a conspirator is
unaware that the amount of the controlled substance fell within
a particular statutory range does not make the agreement any
less threatening, or the conduct of the conspirator any less
blameworthy.
It is enough that defendant or a coconspirator
acted in furtherance of their agreement to deliver a controlled
substance.
Further, it is important to highlight that the agreement
necessary in a conspiracy is not akin to the “meeting of the
10
Indeed, in this case, the offense was carried out to
completion, although any overt act would have been legally
sufficient to demonstrate the imminence, or the “clear and
present” nature, of the threat to the social order.
21
minds” premises of traditional contract law.
71.
LaFave, supra at
It is not necessary that each conspirator have knowledge
of each of the details of the object offense.
Id.; People v
Cooper, 326 Mich 514, 521; 40 NW2d 708 (1950) (recognizing that
“[i]t is not necessary to a conviction for conspiracy that each
defendant have knowledge of all its ramifications”).
A mere
tacit understanding about the object offense will suffice.
LaFave, supra at 71.
In other words, all that is needed is a
generalized
to
agreement
Marcus, supra at 2-4.
engage
in
an
unlawful
objective.
There need not be a specific agreement
to commit a 200-gram, a 400-gram or a 600-gram conspiracy, nor
will the law engage in mind reading in an effort to determine
the innermost strategic objectives of each of the individual
coconspirators and punish a single conspiracy with multiple
levels of punishment depending upon the outcome of such mind
reading.
The need only for generalized agreement is premised
on the fact that conspiracies are inherently clandestine in
nature.
Because
of
this
secret
nature,
individual
coconspirators may have relatively little knowledge of the
conduct or actions of even their own coconspirators; indeed,
efforts may frequently be undertaken to limit the dissemination
of information concerning strategies and tactics on a “need to
know” basis.
Thus, in a conspiracy to deliver case, such as the instant
one, all that the prosecutor would need to show regarding a
22
defendant’s intent is a generalized agreement to deliver a
controlled substance, i.e., the unlawful objective.
That the
amount falls within a particular statutory range is the sort of
detail that is simply not required to be known by a defendant
who enters into the criminal agreement that constitutes the
conspiracy.
Thus, because the crime of conspiracy focuses on
the formation of criminal intent in pursuit of a substantive
criminal offense, and because a defendant need not know each of
the
attendant
knowledge
language
details
requirement,
of
the
of
a
the
conspiracy,
requirement
conspiracy
(or
not
imposition
within
delivery)
of
a
the
plain
statute,
would
undermine the early intervention premises of conspiracy law.
In conclusion, I believe the Justice Court impermissibly
expanded the plain language of both the delivery statute and the
conspiracy statute to require a higher level of culpability on
the part of a defendant than that embodied in those statutes.
There is nothing within the text of either of these statutes
that would compel a finding that a defendant must have knowledge
of the amount of the controlled substance in a conspiracy to
deliver
charge.
Thus,
I
respectfully
disagree
with
the
majority’s statement that “Justice properly concluded that
knowledge of the amount of a controlled substance is an element
of the crime of conspiracy to deliver a controlled substance and
that this holding is consistent with a correct interpretation
23
of our controlled substance and conspiracy statutes.”
Slip op,
at 20.
III. APPRENDI
V
NEW JERSEY
In concluding that knowledge of the amount is an element
of a conspiracy to deliver charge, the majority also relies on
Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d
435 (2000).
As the majority states, Apprendi holds that
[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt. Id. at
2362-2363.
I respectfully disagree that this holding “provides independent
support for [the majority’s] conclusion.”
clear
Slip op at 22. The
language of the Apprendi holding does not impose a
knowledge requirement.
Instead, Apprendi stands for no more
than what the stated rule declares—it only proscribes the use
of nonjury factual determinations to increase a defendant’s
sentence beyond the statutory maximum for the lowest level
delivery offense enacted for the offense charged. In this case,
the fact or circumstance that would increase the defendant’s
sentence beyond the statutory maximum is the amount of the
controlled substance, not knowledge of the amount.
Thus,
pursuant to Apprendi, the prosecutor in cases of this type must
prove the amount of the substance beyond a reasonable doubt.
Further, the majority cites several federal cases that were
decided after Apprendi to justify its holding that knowledge of
24
the amount is an element to a conspiracy to delivery charge.
However, not one of the cited cases stands for the proposition
that defendant must have knowledge of the amount in order to be
convicted
of
either
the
substantive
narcotics
conspiracy to commit the substantive offense.
is necessary is proof of the amount.
offense
or
Rather, all that
See United States v
Doggett, 230 F3d 160, 164-165 (CA 5, 2000) (holding that “if the
government seeks enhanced penalties based on the amount of drugs
. . . the quantity must be stated in the indictment and
submitted to a jury for a finding of proof beyond a reasonable
doubt”); United States v Page, 232 F3d 536, 543 (CA 6 2000)
(holding that the jury needed to find a specific quantity before
this defendant could be imprisoned to a term exceeding the 20
year statutory maximum); United States v Fields, ___ US App DC
___, ___; 242 F3d 393, 396 (2001), clarified on rehearing 2001
WL 640631 (June 12, 2001) (holding that “the Government must
state the drug type and quantity in the indictment, submit the
required evidence to the jury, and prove the relevant drug
quantity beyond a reasonable doubt” before defendant can be
sentenced to any of the progressively higher maximum penalties).
Additionally, there appears to be no state case law addressing
this issue subsequent to the Apprendi holding.
Thus, the
majority’s opinion is the first apparently to rely on Apprendi
in
order
to
set
forth
this
requirement.
25
“knowledge
of
the
amount”
Also,
the
reaffirming
of
Justice,
will
continue
to
severely affect the manner in which the prosecutors of this
state proceed on these types of offenses.
By holding that
knowledge of the amount of the controlled substance is an
element of a conspiracy to deliver charge, prosecutors are
burdened with the additional hurdle of having to prove a
defendant’s specific knowledge of the amount of a controlled
substance—a hurdle, whatever its substantive merits, that the
Legislature did not prescribe in the text of the applicable
statutes. In light of this additional hurdle, it is likely that
in some unknown, but probably quite significant, number of drug
prosecutions
the
prosecutor
will
be
unable
to
maintain
a
conviction that is above the statutory maximum for the lowest
level delivery offense.
This is because the inherent nature of
these crimes involve agreements between individuals to deliver
“a lot of,”
“some,” or “all that you can get” of a controlled
substance.
Thus, because a defendant’s knowledge that the
amount of the controlled substance fell within a particular
statutory range will be lacking in many instances, prosecutors,
under these circumstances,
will only be able to secure a
conviction on the lowest delivery amount, in essence, for an
amount
less
than
50
grams.11
As a
11
result,
the
sanctions
The majority believes that maintaining convictions for
conspiracy to deliver less than 50 grams of a controlled
substance affords a “significant disincentive” to engage in
drug trafficking involving larger amounts. Slip op at 36.
(continued...)
26
determined to be appropriate for drug crimes by the Legislature
will not be carried out.
In my judgment, the Legislature
intended what it said in MCL 333.7401, namely, that a defendant
is responsible for whatever quantity of drugs he delivers
regardless of whether he knew that the amount fell within a
particular statutory quantity range.
IV. APPLICATION
When applying the plain language of the delivery and
conspiracy statutes, as well as the holding of Apprendi, supra,
to the facts of this case, I believe that error occurred below
because the prosecutor failed to prove the quantity (that the
substance weighed 225 or more grams, but less than 650 grams)
beyond a reasonable doubt in the context of the conspiracy to
deliver charge.
In pertinent part, the jury instructions stated:
The defendant is charged with the crime of
Conspiracy to Commit the Delivery of Cocaine. Anyone
who knowingly agrees with someone else to commit the
Delivery of Cocaine is guilty of Conspiracy.
To
prove the defendant’s guilt the prosecutor must prove
each of the following elements beyond a reasonable
doubt. First, that the defendant and someone else
knowingly agreed to commit Delivery of Cocaine.
Second, that the defendant specifically intended to
commit or help commit the crime. Third, that this
agreement took place, or continued during the period
11
(...continued)
However, it is not this Court’s role to determine what is or
is not a “significant disincentive” for particular conduct;
that is the Legislature’s role.
And the Legislature has
determined in MCL 333.7401 that the appropriate disincentives
for larger-scale drug trafficking are those set forth in that
statute. This Court’s duty is to respect this determination.
27
from March Nineteenth to March Twenty-Seventh,
Nineteen Ninety-Six. . . .
To find the defendant
guilty of conspiracy, you must be satisfied, beyond
a reasonable doubt, that there was an agreement to
deliver–to deliver cocaine.
These instructions clearly omitted any reference to a
particular amount of a controlled substance.
Yet, on the basis
of these instructions, defendant was convicted of conspiracy to
deliver more than 225 grams, but less than 650 grams, of
cocaine.
Conviction on this amount exposed defendant to a term
of imprisonment of twenty to thirty years, significantly above
the one-to-twenty-year term provided for a conviction on an
amount that is less than 50 grams.
MCL 333.7401.
The jury
instructions should have set forth the requisite substance
amount in a fashion similar to that set forth to prove the
substantive offense, in essence, “that the substance was in a
mixture that weighed 225 or more grams, but less than 650
grams.”
Slip op at 27.
Absent an express jury finding on the
substance amount, we cannot be certain that the jury found that
defendant conspired to deliver an amount of drugs greater than
50 grams.
From defendant’s guilty verdict, one can only
conclude with assurance that the jury concluded that defendant
delivered some amount of drugs.
And pursuant to Michigan law
delivery of any amount of drugs is a crime. MCL 333.7401(2)(iv).
Accordingly, as with the majority, I would reverse defendant’s
conspiracy to deliver 225 grams or more, but less than 650
grams,
of
cocaine
and
remand
28
for
entry
of
a
conviction
consistent with the jury verdict, in essence, conspiracy to
deliver less than 50 grams of cocaine.
V. CONCLUSION
In summary, I believe that the majority’s conclusion that
knowledge of the amount is a necessary element in a conspiracy
to deliver charge is inconsistent with the plain language of
both the delivery statute and the conspiracy statute.
Where
there is an agreement to commit the unlawful act of delivery of
a controlled substance and some act in furtherance of that
agreement,12 it is impermissible to require an element of a crime
that goes beyond this language.
Second, the United States
Supreme Court decision in Apprendi, supra, does not provide
support for imposition of the knowledge requirement.
Instead,
the Apprendi holding establishes the amount of the controlled
substance as an element of the offense if the amount operates
to increase the penalty for the crime beyond the prescribed
statutory maximum.
Third, the majority’s holding will severely
affect the manner in which the
prosecutors of this state
proceed on these types of crimes.
By holding that knowledge of
the quantity of a controlled substance is an element to a
12
Again, although Michigan statutory law allows for the
prosecution of drug conspiracies where the evidence shows that
the conspirators have merely agreed to commit an offense
prohibited by law, without an overt act, MCL 750.157a, this is
not the case before us–indeed, it is rarely the case before
us-and this concurrence takes no position with regard to the
need for a conspirator to have knowledge of the specific
amount of drugs in such “pure” Michigan conspiracies.
29
conspiracy to deliver charge, prosecutors, in some uncertain
number of cases, will be unable, for little apparent reason, to
maintain
a
conviction
on
this
offense
that
is
above
the
statutory maximum for the lowest level delivery offense because
evidence concerning a defendant’s knowledge in a great number
of cases will be lacking.
Legislature intended.
This is not, in my judgment, what the
Instead, the Legislature intended what
it said—that a defendant who conspires to deliver is responsible
for whatever quantity of drugs he agrees to deliver regardless
of whether he knew that the amount fell within a particular
statutory quantity range.
CORRIGAN , C.J., and WEAVER , J., concurred with MARKMAN , J.
30
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