                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA      )
                              )
              v.              ) Criminal Action No. 13-200 (RWR)
                              )
SIDNEY WOODRUFF, SR., and     )
CALVIN STODDARD,              )
                              )
               Defendants.    )
______________________________)


                          MEMORANDUM ORDER

     Defendants Sidney Woodruff, Sr. and Calvin Stoddard move

for a new trial, arguing that the verdict form submitted to the

jury failed to ask the jury to find “beyond a reasonable doubt

the amount of drugs attributable to each defendant.”   Mot. for

New Trial, ECF No. 377.   The government opposes, arguing that

while the jury form was erroneous, the appropriate remedy is to

make the appropriate adjustments at sentencing, instead of

granting the defendants’ motion for a new trial.   Gov’t Opp’n to

Defs. Woodruff and Stoddard’s Mot. for a New Trial, ECF No. 389

(“Gov’t Opp’n”).   Because the D.C. Circuit has not so far

required that a jury find that the amount of heroin that

triggers the statutory mandatory minimum penalty in a narcotics

conspiracy be attributable to the conduct of an individual
                                 -2-


convicted conspirator - - or be reasonably foreseeable by him or

her as the amount involved in the conspiracy - - before that

amount’s penalties are triggered for that conspirator, the

defendants’ motion for a new trial will be denied.

     After a jury trial, Woodruff and Stoddard were found guilty

of participating in a conspiracy to distribute or possess with

intent to distribute 100 grams or more of heroin, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i), and 846.    See

Verdict Form, ECF No. 371.    Before submitting the case to the

jury, the government objected to the verdict form, arguing that

the verdict form failed to “reflect the jury’s determination as

to the amount of drugs attributable to each individual

defendant.”    Gov’t Opp’n at 6 n.6; 6/5/15 Unofficial Trial Tr.

at 5:7-14.    The objection was overruled and the case was

submitted to the jury. 1   Now, Woodruff and Stoddard move for a

new trial, claiming that the verdict form was erroneous.

     Federal Rule of Criminal Procedure 33 provides that “[u]pon

the defendant’s motion, the court may vacate any judgment and




     1 The government states that “without the benefit of the
full record at trial, the government believes that the
defendants did not object to the verdict form during trial and
the jury instructions related to it,” and therefore argues that
plain error review would be applicable. Gov’t Opp’n at 3 n.5.
While there is no need to reach the standard of review question
here because the verdict form was not erroneous, the Court will
not assume that the defendants failed to preserve an objection
to the verdict form.
                                 -3-


grant a new trial if the interest of justice so requires.”    Fed.

R. Crim. P. 33(a).   The defendant must carry the burden in

demonstrating that a new trial is “in the interest of justice.”

United States v. Machado-Erazo, 986 F. Supp. 2d 39, 44 (D.D.C.

2013) (citing United States v. Mangieri, 694 F.2d 1270, 1285

(D.C. Cir. 1982)).   The decision to grant a new trial is

“committed to the sound discretion of the trial judge, and is

subject to reversal only for abuse of discretion or

misapplication of the law.”   Machado-Erazo, 986 F. Supp. 2d at

44 (quoting United States v. Reese, 561 F.2d 894, 902 (D.C. Cir.

1977)) (internal quotation marks and alterations omitted).

     Here, the alleged error is that the verdict form did not

require the jury to find that 100 grams or more of heroin was

attributable to Woodruff and Stoddard individually, or

reasonably foreseeable to them as the amount involved in the

conspiracy.   Both the government and the defendants point to

Apprendi v. New Jersey, 530 U.S. 466 (2000), Alleyne v. United

States, 133 S. Ct. 2151 (2013), and their progeny for support.

Neither Apprendi, nor Alleyne, nor D.C. Circuit case law compels

the conclusion for which the parties argue.

     In Apprendi, the defendant pled guilty to a shooting in

violation of a state weapons statute carrying a sentence of

imprisonment of 5 to 10 years.   The state’s separate hate crime

statute enhanced the imprisonment term to 10 to 20 years if the
                                 -4-


sentencing judge were to find by a preponderance of the evidence

that a defendant committed such a shooting because of the

victim’s race.    The judge made such a finding after a hearing

and enhanced the sentence to 12 years.    The Supreme Court found

that the enhancement procedure violated the Sixth Amendment, and

held that “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.”    530 U.S. at 490.

     Woodruff and Stoddard were charged in an indictment under

21 U.S.C. § 846 with knowingly participating in a conspiracy to

distribute or possess with intent to distribute 100 grams or

more of heroin.    A conspiracy involving under 100 grams of

heroin subjects offenders to imprisonment from zero to 20 years;

a conspiracy involving 100 grams or more but less than 1,000

grams of heroin subjects offenders to imprisonment from 5 to 40

years. 2   The fact that subjects the defendants to the enhanced

statutory maximum of 40 years is that the conspiracy involved




     2  The conspiracy statute, 21 U.S.C. § 846, subjects
offenders to the same penalties as those prescribed for the
substantive offense that was the object of the conspiracy.
Distribution and possession with intent to distribute over 100
grams of heroin is punishable under § 841(b)(1)(B)(i) and
subject to these terms of imprisonment.
                                       -5-


100 grams or more of heroin.          That fact was submitted to the

jury 3 and found by the jury beyond a reasonable doubt. 4




     3 The copy of the jury instructions provided to the
jury said “[i]f you find a defendant guilty of the offense
of conspiracy to distribute or possess with intent to
distribute a controlled substance as charged in the
Indictment, you must then ask yourselves whether the
government proved that a subject of that conspiracy was a
mixture or substance containing the controlled substance
heroin. If your answer is yes, then you must ask
yourselves whether the government proved that the amount of
the mixture or substance containing heroin that was a
subject of the conspiracy was 100 grams or more. An
affirmative answer to either question must be unanimous.
The verdict form will present these questions and a place
for your answers in a logical order.” Final Jury
Instructions at 23.
     4 The Verdict Form returned by the jury read as to Count
One: “With respect to the offense of conspiracy to distribute
or possess with the intent to distribute a controlled substance
between in or about June 2011 and March 2013, we the jury
unanimously find the defendant

Sidney Woodruff, Sr.:       _____ Not Guilty       __X__ Guilty

Calvin Stoddard:       _____ Not Guilty       __X__   Guilty

     If the jury finds any defendant guilty of the conspiracy
charged in Count One, answer the following questions:

     A. Does the jury unanimously find that a mixture or
        substance containing the controlled substance heroin was
        a subject of the conspiracy to distribute or possess with
        intent to distribute?

         __X__   Yes     _____   No

     If your answer to question A is No, proceed to Count Two
below. If your answer to question A is Yes, proceed to question
B.
                                   -6-




     In Alleyne, a jury convicted the defendant of using or

carrying a firearm in relation to a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A).     That offense carries a

mandatory minimum term of imprisonment of 5 years, but the

mandatory minimum term is enhanced to 7 years if the firearm is

brandished.    The question of whether the firearm was brandished

was not submitted to the jury.     However, the sentencing court

found that fact by a preponderance of the evidence and, invoking

the enhanced mandatory minimum term, sentenced the defendant to

7 years.   The Supreme Court, extending its reasoning in

Apprendi, held “that facts that increase mandatory minimum

sentences must be submitted to the jury.”     Alleyne, 133 S. Ct.

at 2163.   Here, again, the fact that subjects Woodward and

Stoddard in the first place to a mandatory minimum sentence of 5

years - - that the conspiracy involved 100 grams or more of

heroin - - was submitted to the jury and found beyond a

reasonable doubt.

     Apprendi and Alleyne did not address whether a jury must

find that the amount of drugs that triggers a statutory




     B. Does the jury unanimously find that the amount of the
        mixture or substance containing heroin was 100 grams or
        more?

       __X__    Yes   _____   No
                                -7-


mandatory minimum penalty in a narcotics conspiracy is

attributable to the conduct of a convicted conspirator - - or is

reasonably foreseeable by him or her as the amount involved in

the conspiracy - - before that amount’s penalties are triggered

for that conspirator.   The circuits have split on how under

Apprendi and Alleyne to properly resolve this question.   See,

e.g., United States v. Stiger, 413 F.3d 1185, 1192-93 (10th Cir.

2005) (holding that Apprendi is satisfied when the jury finds

the drug amounts for the conspiracy as a whole, rejecting the

argument that the jury must find the drug amounts attributable

to an individual conspirator); United States v. Phillips, 349

F.3d 138, 141-43 (3rd Cir. 2003) (same) judgment vacated on

other grounds sub nom. Barbour v. United States, 125 S. Ct. 992

(2005); United States v. Knight, 342 F.3d 697, 709-10 (7th Cir.

2003) (same); and see United States v. Jimenez, 586 Fed. Appx.

50, 56 (2d Cir. 2014) (holding that a jury finding that the

conspiracy involved a quantity of narcotics that under the

statute subjects a conspirator to a mandatory minimum prison

term complies with Alleyne).   But see, e.g., United States v.

Foster, 507 F.3d 233, 250-251 (4th Cir. 2007) (finding that

Apprendi requires a jury to “determine that the threshold drug

amount was reasonably foreseeable to the individual defendant”

before the statutory sentencing maxima and mandatory minima of

§ 841(b) can apply in a drug conspiracy case);   United States v.
                               -8-


Banuelos, 322 F.3d 700, 705-707 (9th Cir. 2003) (holding that

Apprendi requires a district court, as the factfinder after a

guilty plea, to find beyond a reasonable doubt the amount of

drugs attributable to a defendant convicted of participating in

a drug conspiracy, when the drug quantity admittedly

attributable to the conspiracy increases the statutory maximum

penalty); and see United States v. Pizzaro, 772 F.3d 284, 292-94

(1st Cir. 2014) (finding that Alleyne forbids applying a

mandatory minimum sentence to an individual coconspirator

without an individualized finding by a jury “that the triggering

amount was attributable to, or foreseeable by, him”) (internal

quotation omitted)).

     The D.C. Circuit has not resolved this question either.

See, e.g., United States v. Garcia, 757 F.3d 315, 320-21 (D.C.

Cir. 2014) (observing that the view of the majority of circuits

is that “once the jury finds the defendant guilty of joining the

conspiracy, his statutory penalty range is established by the

jury’s determination of the type and quantity of drugs

attributable to the entire conspiracy, regardless of whether the

individual defendant should have foreseen the amount used[,]”

but declining to resolve the issue); United States v.

Lopesierra-Gutierrez, 708 F.3d 193, 208 (D.C. Cir. 2013)

(declining to resolve the question of whether “Apprendi required

the jury to find the quantity of drugs attributable to [the
                                  -9-


defendant] individually - - as opposed to the quantity

attributable to the conspiracy as a whole.”).     But see United

States v. Law, 528 F.3d 888, 906 (D.C. Cir. 2008) (holding that

“a defendant convicted of conspiracy to deal drugs, in violation

of § 846, must be sentenced, under § 841(b), for the quantity of

drugs the jury attributes to him as a reasonably foreseeable

part of the conspiracy.”). 5   The instructions provided to the

jury here and the corresponding verdict form are consistent with

the view that the jury need determine only the amount of drugs

attributable to the entire conspiracy, but not to the individual

defendants.

     While the verdict form did not ask the jury to find the

drug quantities attributable to each defendant, it did require

the jury to make a finding of a drug quantity attributable to

the conspiracy as a whole.     Both the mandatory minimum exposure

and the enhanced maximum exposure were triggered by that

unanimous finding beyond a reasonable doubt by the jury

reflected on the verdict form.    The verdict form complied with

what Apprendi and Alleyne require.      Should this issue reach and

be taken up by the D.C. Circuit, this Opinion attempts to make




     5 Garcia distinguished this holding by noting that “Law did
not directly confront the Apprendi argument Garcia raise[d].
And in the most recent case where this issue was squarely
raised, we did not reach the matter.” 757 F.3d at 321 (citing
Lopesierra-Gutierrez, 708 F.3d at 208).
                              -10-


clear which path was taken at this trial.    Accordingly, it is

hereby

     ORDERED that the defendants’ motion for new trial [377] be,

and hereby is, DENIED.

     SIGNED this 28th day of August, 2015.




                                                  /s/
                                        ________________________
                                        RICHARD W. ROBERTS
                                        Chief Judge
