                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-2720
                                  ___________

United States of America,              *
                                       *
            Appellee,                  * Appeal from the United States
                                       * District Court for the Western
      v.                               * District of Missouri.
                                       *
Ronnie Blade,                          *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 15, 2003

                                 Filed: July 18, 2003
                                  ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
                         ___________

BEAM, Circuit Judge.

      Ronnie Blade appeals his conviction for conspiracy and distribution of crack
cocaine. We affirm.

I.    BACKGROUND

      With the help of a confidential informant (CI), Officer Mario Cathy of the
Kansas City police department made four controlled buys of crack cocaine from
Blade in late 2000 and early 2001. Cathy first purchased cocaine from Blade on
November 30, 2000. He conducted field tests on and weighed this purchase, which
tested positive for cocaine base and weighed 14.9 grams. On December 5, 2000,
Cathy again purchased cocaine from Blade. Field tests revealed the substance to be
cocaine base weighing 14.3 grams. On December 28, 2000, Cathy purchased more
cocaine from Blade. This substance field tested positive for cocaine base and
weighed 14.3 grams. Finally, on January 4, 2001, Cathy purchased a fourth quantity
of cocaine from Blade. This purchase field tested positive for cocaine and weighed
13.7 grams. Following this fourth purchase, Blade was arrested. He was charged
with one count of conspiracy to distribute cocaine base under 21 U.S.C. § 841(a)(1)
and 846 and under the enhanced statutory penalties of 21 U.S.C. § 841(b)(1)(A), and
four counts of distributing crack cocaine under 21 U.S.C. § 841(a)(1) and under the
enhanced statutory penalties of 21 U.S.C. § 841(b)(1)(B).

       Danielle Jansen, a government criminalist employed by the Kansas City police
department in the crime lab, testified at trial regarding further testing on the cocaine
that Cathy purchased from Blade. Jansen performed two types of tests on the
substances, both of which indicated that the substances in question were crack
cocaine. Jansen also weighed the substances, finding a total weight of 51.78 grams.
Jansen explained that the difference between her weight results and Officer Cathy's
was likely explained by the fact that Cathy would have weighed the plastic bag in
addition to the drugs inside of it, while Jansen took the substances out of the bags to
weigh them.

      Prior to trial, Blade discharged the public defender appointed to represent him
and undertook to represent himself, with standby counsel. During trial preparation,
through Rule 17(b) of the Federal Rules of Criminal Procedure, Blade attempted to
subpoena a chemist from an independent laboratory.1 Blade included this with


      1
      Blade's initial public defender had sent the drug sample to an independent
chemistry lab for analysis.

                                          -2-
requests for thirty-two other Rule 17(b) subpoenas, stating only that the witnesses
would give relevant testimony. The magistrate judge declined to issue any of the
thirty-three subpoenas requested by Blade.

       A jury returned guilty verdicts on all five counts, with special verdict findings
that in Count One, Blade conspired to distribute fifty grams or more of cocaine base
and that in Counts Two through Five, Blade distributed, on each occasion, five grams
or more of cocaine base. These findings made Blade eligible for the enhanced
statutory penalties of 21 U.S.C. §§ 841(b)(1)(A) & (B). Pursuant to these enhanced
penalty statutory provisions and because of his criminal history, Blade was sentenced
on each count to life imprisonment without possibility of release, with the five life
sentences to be served concurrently.

      Following trial, Blade's standby counsel realized that the minimum drug
amounts had not been alleged in any of the five counts of Blade's indictment, and
Blade moved for a new trial. The government admitted the error and that the amounts
should have been alleged in the indictment. This, and eleven other grounds
(including the arguments that he advances on appeal) formed the bases for Blade's
motion for new trial, which the district court denied. At sentencing, the district court
found that the government's intent to seek enhanced statutory penalties was
adequately set forth in the indictment. Further, because the enhanced penalties and
drug amounts were submitted to the jury in special verdict form, Blade was not
prejudiced by the indictment's failure to allege drug quantities.

       On appeal, Blade argues that the failure of the government to allege specific
drug amounts is reversible error under Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the government should have been required to produce the CI for Sixth
Amendment cross-examination purposes, and that he should have been allowed to
subpoena the independent lab chemist to prove that the amount from Count One was
less than fifty grams.

                                          -3-
II.   DISCUSSION

       A trial court's denial of a motion for a new trial is reviewed for an abuse of
discretion. United States v. Munoz, 324 F.3d 987, 991 (8th Cir. 2003). The district
court should grant a new trial only if the evidence weighs heavily against the verdict,
indicating that a miscarriage of justice may have occurred. Id.

       The government concedes that under Apprendi, any fact, other than a prior
conviction, which increases the penalty for a crime beyond the prescribed statutory
maximum must be charged in the federal indictment. United States v. Cotton, 535
U.S. 625, 627 (2002). The amount of drugs Blade was charged with was not included
in the indictment, in violation of Apprendi. However, Blade did not bring the issue
to the district court's attention until after trial, and therefore the issue is subject to
plain error review. See United States v. McBride, 862 F.2d 1316, 1319 (8th Cir.
1988) (holding that defendant's failure to object at trial generally precluded him from
asserting the error in a motion for new trial absent plain error).

        In Cotton, the Supreme Court analyzed a similar claim. The defendant in
Cotton was charged in the original indictment with conspiring to distribute and
possession with intent to distribute five kilograms or more of cocaine and fifty grams
or more of cocaine base. Five months later, the government filed a superceding
indictment which extended the time periods of the conspiracy and added defendants,
but did not allege any of the threshold levels of drug quantity for enhanced penalties
under 21 U.S.C. § 841(b). The defendant did not object to the indictment at trial, and
the Court therefore analyzed his defective indictment claim for plain error under the
test set forth in Federal Rule of Criminal Procedure 52(b) and United States v. Olano,
507 U.S. 725, 732 (1993). Under this test, a plain error must affect the substantial
rights of the complaining party before he can obtain relief, but even then, the court
should reverse only if the error "seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings." Cotton, 535 U.S. at 631-32 (internal quotations

                                           -4-
omitted, alteration in original). The Cotton Court skipped immediately to the latter
part of this test and determined that the indictment error in that case did not "seriously
affect the fairness, integrity, or public reputation of judicial proceedings," because the
evidence that the conspiracy involved at least fifty grams was overwhelming.
Cotton, 535 U.S. at 632-33.

       Here, the evidence presented at trial also overwhelmingly shows that Blade was
subject to the enhanced penalties in Counts One through Five. The evidence is
undisputed with respect to Counts Two through Five–Blade clearly distributed more
than five grams to Officer Cathy on each of the four controlled buys. Blade does not
even argue otherwise. However, Blade does dispute the veracity of the fifty gram
calculation for the total conspiracy, an argument that we address later in this opinion.
Even so, the evidence with regard to this count is strong. The evidence shows that
two Kansas City police employees separately weighed the substances and found the
combined weight of the substances to be more than fifty grams. Furthermore, Blade
was subject to, and received, sentences of life without parole on Counts Two through
Five. Therefore, even if we were to accept his argument relating to the fifty gram
amount in Count One, his life without parole sentence would remain unchanged. In
light of the foregoing, like the Cotton Court, we believe that the error did not affect
the fairness, integrity, or public reputation of the judicial proceedings. Blade's first
contention is without merit.

       Blade next argues that he was unable to confront his accusers in violation of
the Sixth Amendment because the government did not produce the CI who introduced
Officer Cathy to Blade. The government responds that it attempted to produce the CI,
but he disappeared and they were unable to locate him prior to or during trial.
Furthermore, it argues that the CI is not Blade's "accuser" within the meaning of the
Sixth Amendment because Cathy alone purchased the drugs from Blade and he is the
only "accuser" Blade has the constitutional right to confront. We agree. We have
reviewed the record, and the CI was only mentioned at trial in the context of

                                           -5-
peripherally accompanying Officer Cathy on two of the controlled buys. After being
introduced to Blade during the first two buys, Cathy alone contacted Blade regarding
the final two drug sales, and Cathy is the person who purchased the drugs during all
four transactions. Furthermore, the district court agreed that the government
attempted to secure this witness, but was unable to, due to actions beyond its control.
The district court did not abuse its discretion in this regard. This ground for relief is
also without merit.2

       Finally, Blade contends that he was prejudiced by the magistrate judge's refusal
to issue a subpoena to the independent laboratory chemist under Rule 17(b) of the
Rules of Criminal Procedure.3 Blade argues that the independent laboratory
calculated the total weight of the cocaine base to be less than fifty grams, which
would render him ineligible for the enhanced statutory penalties of section
841(b)(1)(A). The government argues that the magistrate judge was not required to
issue an unsubstantiated subpoena under Rule 17. Furthermore, the government avers
that any error is harmless because the chemist's report only affects Count One, and
Blade was also sentenced to life without parole on Counts Two through Five.

       Blade, proceeding pro se despite numerous warnings to the contrary, moved
prior to trial for the issuance of thirty-three subpoenas pursuant to 28 U.S.C. §
1915(c) and Federal Rule of Criminal Procedure 17. However, his motion merely


      2
       Blade asserts various other arguments relating to pretrial discovery and the
alleged failure of the government to disclose Brady v. Maryland, 373 U.S. 83 (1963),
materials. We have reviewed the record with regard to these allegations and agree
with the reasoning of the district court in its order denying a new trial. See 8th Cir.
R. 47B.
      3
        This rule provides in part: "Upon a defendant's ex parte application, the court
must order that a subpoena be issued for a named witness if the defendant shows an
inability to pay the witness's fees and the necessity of the witness's presence for an
adequate defense." Fed. R. Crim. P. 17(b).

                                          -6-
stated that the requested witnesses would give relevant testimony. The magistrate
judge found that this was not a satisfactory showing that the proposed witnesses were
necessary for Blade's defense pursuant to Rule 17(b). We review a court's decision
whether to grant the request for a Rule 17(b) subpoena for an abuse of discretion, and
reversal is appropriate only if "the exceptional circumstances of the case indicate that
the defendant's right to a complete, adequate and fair trial is jeopardized." United
States v. Hang, 75 F.3d 1275, 1282-83 (8th Cir. 1996) (internal quotations omitted).

       No such exceptional circumstances exist in this case. The magistrate judge did
not abuse its discretion in refusing to issue the subpoena because Blade did not
provide adequate information to the magistrate judge regarding how the proposed
thirty-three witnesses were necessary to his defense. See id., 75 F.3d at 1283
(holding that the "burden is on the requesting party to show that the desired witnesses
are necessary to an adequate defense"). In hindsight, there certainly is an argument
that the independent chemist was necessary to Blade's defense, but Blade did not
provide this information to the magistrate judge. Perhaps if the chemist's subpoena
had been the only one requested, the magistrate judge may have been more likely to
authorize issuance. But the magistrate judge can hardly be faulted for failing to root
out the request for the chemist, buried in subpoena requests for thirty-three mostly
irrelevant witnesses.

       Furthermore, even if the magistrate judge should have issued the subpoena for
the chemist, we find that it did not prejudice Blade's ultimate sentence because it is
clear that the chemist would not have testified that Blade sold less than five grams
during each of the four transactions. Thus, leaving aside the issue of the total weight
of the crack cocaine charged in Count One, as we have noted, Blade was subject to,
and received, life sentences without parole for Counts Two through Five. We find
that because the magistrate judge did not err in declining to issue the subpoenas, the
district court did not abuse its discretion in denying the motion for a new trial on this
basis.

                                          -7-
III.   CONCLUSION

      We have examined Blade's various arguments and find them to be without
merit. We affirm the district court.

MELLOY, Circuit Judge, concurring.

       I agree that the defendant’s Apprendi claim fails under the plain error analysis
utilized by the United States Supreme Court in United States v. Cotton, 535 U.S. 625
(2002), because the error did not seriously affect the fairness, integrity, or public
reputation of the judicial proceedings. There was never any doubt in this case that
the government was alleging that the drug quantity was in excess of fifty grams for
purposes of Count 1, and that the defendant had two prior drug felony convictions,
subjecting him to a mandatory life sentence. Likewise, the quantity issue was
submitted without objection to the jury, which found, beyond a reasonable doubt, that
the quantity of drugs under Count 1 was in excess of fifty grams. Under these
circumstances, I agree that the failure to allege the drug quantity in the indictment
does not warrant relief under plain error review.

       Where I part company with the majority is its use of the imposition of life
sentences on Counts 2-5 to support its conclusion on the Apprendi issue, as well as
to demonstrate that the magistrate judge’s refusal to issue a subpoena for the chemist
did not prejudice the defendant. As the majority notes, the evidence is undisputed
with respect to Counts 2-5 that the quantity in each count was in excess of five grams.
The same cannot be said with regard to Count 1, however, given the conflicting
laboratory report at issue in this appeal. If the jury had found, as a factual matter, that
the drug quantity in Count 1 was less than fifty grams, the defendant would not have
been subject to a mandatory life sentence. My review of the presentence report in this
case shows that the defendant would then have been sentenced on Count 1 as a career
offender with a sentencing guideline range of 360 months to life. Although the life

                                           -8-
sentences imposed on Counts 2-5 are clearly within that sentencing guideline range,
the record is silent as to what sentence the district judge would have actually imposed
on each count had he not been obligated to impose a mandatory life sentence on
Count 1. Although Mr. Blade has an extremely serious criminal history, it is very
possible that the district court would have determined that a thirty year sentence was
adequate for a forty-six year old individual. Consequently, I am reluctant to rely upon
the sentences imposed on Counts 2-5 to support the affirmance in this case.

       I do believe, however, that the majority is correct that the magistrate judge did
not err when he refused to issue the subpoena for the chemist in this case. Not only
was the request for the chemist subpoena buried within the request for thirty-two
other, largely irrelevant, subpoenas, but the motion was itself part of a larger group
of pro se motions, most of which have little or no merit. The magistrate judge is not
required under these circumstances to parse each section of each motion to find the
kernel of merit that may exist. Under Rule 17 of the Federal Rules of Criminal
Procedure, the defendant has the burden of showing the necessity of the presence of
the witness for an adequate defense before a subpoena is issued at government
expense. In this case, the defendant could simply have attached a copy of the
chemist's report to the motion to alert the magistrate judge to the necessity for the
chemist's presence. His failure to do so, or to in some other way alert the magistrate
judge to the reason for the chemist's testimony, is the sole responsibility of the
defendant. Given that the district court did not err in refusing the subpoena request,
there is no need to conduct a harmless error analysis on this issue.

       The result in this case is very unfortunate and demonstrates all too well the
perils of a defendant electing to proceed pro se. The defendant's prior public defender
sent the drugs to be analyzed by an independent laboratory, which found the total




                                          -9-
weight of the drugs to be just under forty-seven grams.4 The defendant not only was
unable to make an adequate motion to secure the attendance of the chemist, but it is
clear the defendant did not even consider drug quantity to be a critical issue at trial.
He failed to cross-examine the government chemist about the independent lab results,
or even mention to the trial judge that there had been an independent analysis. If a
defense counsel or trial judge ever needs a concrete example of the dangers of pro se
representation, this case certainly provides one.

       In sum, I concur with the majority that the failure to subpoena the chemist was
not the fault of the magistrate judge who refused to issue the subpoena, but rather the
defendant who failed to adequately explain to the magistrate judge the necessity for
the chemist's attendance at trial. As to the Apprendi claim, I concur with the majority
that the defendant is not entitled to relief because he has not shown that the error
seriously affected the fairness, integrity or public reputation of the judicial
proceedings.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      4
        It is interesting to note that the lab report was not even made part of the
appellate record in this case. When the issue was discussed extensively at oral
argument, appellant's counsel was granted leave to supplement the record with the lab
report. The lab report was then received from appellant's counsel showing the results
of the independent laboratory analysis.

                                         -10-
