Case vacated and remanded by Supreme
Court opinion filed 5/20/02
Cert granted by Supreme Court
order filed 1/4/02
                                                   Filed:    August 17, 2001

                       UNITED STATES COURT OF APPEALS

                           FOR THE FOURTH CIRCUIT


                                Nos. 99-4162(L)
                                (CR-97-365-CCB)



United States of America,

                                                         Plaintiff - Appellee,

             versus

Leonard Cotton, etc., et al.,

                                                    Defendants - Appellants.


                                     O R D E R



       The   court    amends   its   opinion     filed   August   10,   2001,   as

follows:

       On page 3, section 3, line 2 -- the sentence is corrected to

read “Judge Luttig wrote the opinion, in which Judge Gregory

joined.”

       On page 10, second full paragraph, lines 7-8; and page 12,

footnote 5, lines 5-6 -- the parenthetical is corrected to read

“Wilkins, J., joined by Wilkinson, C.J., and Williams and Traxler,

JJ.”
                                  - 2 -




      On page 11, first full paragraph, line 1 -- the phrase “there

are   cases   when”   is   corrected   to   read   “there   are   cases   in

which ....”

      On page 24, third full paragraph, line 12 -- the quoted

material inside the parenthetical following United States v. Young

is corrected to read “per se approach to plain-error review is

flawed.”

                                            For the Court - By Direction




                                             /s/ Patricia S. Connor
                                                      Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 99-4162

LEONARD COTTON, a/k/a Cooch,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 99-4163

DARLENE GREEN, a/k/a Sprinkles,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 99-4164

MARQUETTE HALL, a/k/a Butt Naked,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                  No. 99-4175

LAMONT THOMAS, a/k/a Tree,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 99-4189

MATILDA HALL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 99-4190

JOVAN POWELL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                No. 99-4191
JESUS HALL, a/k/a Weedy, a/k/a
Jesse Hall,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                              No. 99-4197

STANLEY HALL, JR., a/k/a Boonie,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-97-365-CCB)

                   2
Argued: April 4, 2001

Decided: August 10, 2001

Before WILKINSON, Chief Judge, and LUTTIG and
GREGORY, Circuit Judges.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Luttig wrote the opinion, in which Judge Gregory joined. Chief
Judge Wilkinson wrote an opinion concurring in part and dissenting
in part.

_________________________________________________________________

COUNSEL

ARGUED: Thomas J. Saunders, Baltimore, Maryland; Arthur Sam-
uel Cheslock, Baltimore, Maryland, for Appellants. Christine Man-
uelian, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: John D. Ash, Baltimore, Maryland, for Appel-
lant Jesus Hall; Timothy J. Sullivan, SULLIVAN & SULLIVAN,
College Park, Maryland, for Appellant Thomas; Walter McCord, Bal-
timore, Maryland, for Appellant Green; David R. Solomon, Balti-
more, Maryland, for Appellant Matilda Hall; William H. Klumpp,
Fallston, Maryland, for Appellant Powell; Stanley H. Needleman,
Baltimore, Maryland, for Appellant Stanley Hall. Stephen M. Schen-
ning, United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Stanley Hall, Jr. and seven other members of a drug organization
(collectively "appellants") were convicted of one count of conspiracy
to distribute and possession with intent to distribute cocaine hydro-
chloride and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
846. Appellants raise a number of challenges to their convictions and

                  3
sentences. For the reasons that follow, we affirm the convictions, and
vacate and remand for resentencing.

I.

Stanley Hall, Jr. ("Hall, Jr."), the leader of a vast drug organization,
was the principal supplier of drugs in the 200 block of North Duncan
Street in Baltimore, Maryland. According to testimony adduced at
trial, Hall, Jr., with the assistance of a number of the other appellants,
obtained a supply of cocaine in kilogram quantities from a dealer in
New York City, and then "cooked" the cocaine into crack and
"bagged" it for distribution. Hall, Jr. would then distribute the drugs
to his dealers, including the other appellants, who would, in turn, sell
cocaine and crack to their customers.

In October 1997, federal authorities obtained search warrants for
the residences utilized by the appellants for their drug trade. Follow-
ing the seizure of drugs, drug paraphernalia, currency, and weapons,
appellants were arrested and charged with a single count of conspir-
acy to distribute and possession with intent to distribute cocaine
hydrochloride and cocaine base. J.A. 86.

Appellants were convicted by a jury of the sole count of the indict-
ment.11 The district court sentenced Hall, Jr., Leonard Cotton, Lamont
Thomas, and Marquette and Jesus Hall to life imprisonment upon
finding, by a preponderance of the evidence, that over 1.5 kilograms
of cocaine base was attributable to each from their participation in the
conspiracy. J.A. 822-23 (Hall, Jr.); J.A. 573-74 (Thomas); J.A. 507
(Cotton); J.A. 723 (Jesus Hall); J.A. 505 (Marquette Hall). Based on
the same finding regarding drug quantity, the district court sentenced
Jovan Powell to 30 years imprisonment. J.A. 769-70. Matilda Hall
also received 30 years imprisonment based on the district court's find-
ing, by a preponderance of the evidence, that she was responsible for
more than 500 grams, but less than 1.5 kilograms, of cocaine base
from her participation in the conspiracy. J.A. 667-68. Finally, Darlene
Green was sentenced to 15 years imprisonment based upon the district
court's attribution of more limited quantities of cocaine base to her.
J.A. 541.
_________________________________________________________________

1 The jury acquitted one defendant, Roger Evans.

                  4
Following sentencing, appellants filed a motion for a new trial on
the basis of newly discovered evidence, and this appeal was stayed
pending the district court's resolution of that motion. The district
court subsequently denied the motion.

II.

Appellants argue that the district court erred when it sentenced
them based upon its findings regarding the quantity of a drug --
cocaine base -- carrying a potentially higher statutory penalty,
because the jury's verdict was ambiguous with regard to which drug
was the object of the conspiracy. Thus, they contend that pursuant to
our decision in United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999),
vacated in part on other grounds, 218 F.3d 310 (4th Cir. 2000) (en
banc), the lack of a special jury verdict form requiring the jury to
determine specifically whether the conspiracy involved cocaine
hydrochloride, cocaine base, or both, constrained the district court to
sentence appellants based on the drug carrying the lower statutory
penalty.

In Rhynes, the jury was instructed that it could find defendants
guilty if they distributed or possessed with intent to distribute any of
the drugs charged as part of the conspiracy, which included mari-
juana, cocaine, heroin, or cocaine base. 196 F.3d at 237. Because the
jury returned a general verdict of guilty, we held that the district
court's instruction created ambiguity as to whether the jury found a
conspiracy to distribute all the drugs, a single drug, or some combina-
tion thereof. See id. at 238. As a result of such ambiguity, we held that
the district court could not impose a "sentence in excess of the statu-
tory maximum for the least-punished object on which the conspiracy
conviction could have been based." Id.

In the present case, there is no Rhynes error because the jury was
unambiguously instructed that a conspiracy conviction could be based
only upon a finding -- as charged by the government in the indict-
ment -- that appellants conspired to distribute or possessed with
intent to distribute cocaine hydrochloride and cocaine base.22 S.A. 8
_________________________________________________________________

2 Nor does the jury instruction cited by appellants compel a contrary
conclusion. S.A. 6 ("You are instructed that, as a matter of law, cocaine

                   5
("In order to establish the offense of conspiracy to distribute and pos-
sess with intent to distribute cocaine hydrochloride and cocaine base
as charged in the indictment, the government must prove two ele-
ments, beyond a reasonable doubt.") (emphasis added); S.A. 13 ("If
you find that the materials involved in the charged conspiracy were
cocaine hydrochloride and cocaine base, you need not be concerned
with the quantities, so as [sic] long as you find that a defendant con-
spired to distribute or possessed with intent to distribute these con-
trolled substances, the amounts involved are not important.")
(emphasis added). Furthermore, the evidence was sufficient in this
case -- if not overwhelming -- to support a "construction" of the ver-
dict that the jury found a conspiracy with regard to cocaine base and
cocaine hydrocholoride where, inter alia, approximately 380 grams of
cocaine base and 85 grams of cocaine hydrochloride were actually
seized from the various conspirators and "stash houses." See United
States v. Green, 180 F.3d 216, 226 (5th Cir. 1999) (stating that "even
where there is a conspiracy general verdict, the sentencing court can
still conclude that the jury found, beyond a reasonable doubt, guilt for
more than just one object-offense" when the jury has not been
instructed in the alternative and the evidence "would support such
construction of the verdict actually obtained"); United States v. Watts,
950 F.2d 508, 515 (8th Cir. 1991) (stating that where an indictment
was phrased in the conjunctive and "evidence of all three drugs was
introduced," the court "did not elicit an ambiguous or unclear verdict
from the jury").

Accordingly, we are "more than confident, that the jury was con-
vinced beyond a reasonable doubt that both cocaine[hydrochloride]
and [cocaine base] were involved" and that appellants were convicted
of a single multi-drug conspiracy. Green, 180 F.3d at 226. Because
_________________________________________________________________

hydrochloride and cocaine base are both controlled substances as those
terms are used in these instructions and in the indictment and the statutes
I just read to you. You must, of course, determine whether or not the
materials in question were, in fact, either cocaine hydrochloride, or
cocaine base."). For, in instructing the jury on the definition of "con-
trolled substance," the district court was not charging the jury on what
it must find to convict appellants of conspiracy, but, rather, was instruct-
ing the jury that either cocaine hydrochloride or cocaine base qualify as
"controlled substance[s]," as that term is defined in 21 U.S.C. § 802(6).

                  6
we can discern no ambiguity in this jury verdict, we conclude that the
district court did not err in sentencing appellants based upon the rele-
vant penalty provisions for cocaine base.

III.

Appellants (except Darlene Green, who was sentenced to a term of
less than 20 years imprisonment)33 also contend that their sentences
are invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000),
because a specific threshold drug quantity was neither alleged in the
indictment nor proven to the jury beyond a reasonable doubt. Because
appellants failed to raise this argument before the district court, we
review for plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993).

In United States v. Promise, No. 99-4737, 2001 WL 732389, ___
F.3d ___ (4th Cir. June 29, 2001), this court, sitting en banc, held that
because drug quantity "must be treated as an element of an aggravated
drug trafficking offense" under 21 U.S.C. § 841, Promise, 2001 WL
_________________________________________________________________

3 Darlene Green raises two challenges to her sentence, neither of which
has merit. First, Green argues that the district court erred in failing to
grant a two-level downward adjustment on the ground that she was a
"minor participant" in the conspiracy. See U.S.S.G. § 3B1.2(b). Green
admitted at trial, however, that she was a drug dealer, and, of course, in
convicting her, the jury found that she was a member of the drug conspir-
acy. Thus, as we have previously held, a district court does not clearly
err in declining to grant a dealer a downward adjustment for "minor par-
ticipation" because a "seller" possesses"a central position in a drug dis-
tribution conspiracy." United States v. Brooks, 957 F.2d 1138, 1149 (4th
Cir. 1992).

Second, Green contends that the district court erred in granting her a
two-level upward adjustment for obstruction of justice. We reject
Green's argument because there was ample evidence from which the dis-
trict court concluded that Green provided "materially false information"
to the jury that went far beyond a mere denial of guilt. United States v.
Romulus, 949 F.2d 713, 717 (4th Cir. 1991); see also United States v.
Gormley, 201 F.3d 290, 294 (4th Cir. 2000) (holding that the district
court did not err in imposing an obstruction of justice enhancement
where defendant's false statements went beyond "merely denying his
guilt").

                   7
732389, at *5, the failure to charge a specific threshold drug quantity
in the indictment and to submit the quantity issue to the jury consti-
tutes plain error, see id. at *7. We further concluded that such error
affects defendants' substantial rights where, as here, the defendants
are sentenced to a term of imprisonment greater than that set forth in
section 841(b)(1)(C) for a conviction based on an undetermined quan-
tity of drugs, see id. at *8, and the defendants can demonstrate that
their sentence is "longer than that to which[they] would otherwise be
subject," United States v. Angle, No. 99-4662, 2001 WL 732124, at
*3, ___ F.3d ___ (4th Cir. June 29, 2001) (en banc).

However, the question left open by Promise is whether the failure
to charge drug quantity in the indictment and to submit it to the jury
"`seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings,'" Olano, 507 U.S. at 736 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)), so that we should exercise our
discretion to recognize the error. We now answer that question in the
affirmative.

A.

Our initial task is to define the nature of the error in this case. The
appellants argue that the district court erred not only by failing to
instruct the jury on an essential element -- drug quantity -- of an
aggravated drug offense, but that the district court exceeded its juris-
diction by sentencing them for a crime with which they were never
charged.44 We agree.

In this case, the government indicted the appellants for a violation
of section 841 based upon "a mixture or substance containing a
detectable amount of cocaine base, commonly known as`crack.'" J.A.
86. Yet the district court, in turn, sentenced seven of the appellants
to a term of imprisonment greater than twenty years, the maximum
penalty provided for a violation of section 841(b)(1)(C) based upon
"an identifiable but unspecified quantity" of cocaine base, Promise,
_________________________________________________________________

4 In contrast, the government argues, as it did in Promise, that the error
is merely instructional because drug quantity need not be charged in the
indictment, an argument that a majority of this court rejected in Promise.
See Promise, 2001 WL 732389, at *5.

                   8
2001 WL 732389, at *5. Consequently, by sentencing the appellants
to a term of imprisonment greater than that provided for in section
841(b)(1)(C), the appellants received a sentence for a crime -- an
aggravated drug trafficking offense under section 841(b)(1)(A) --
with which they were neither charged nor convicted.

The Fifth Amendment to the United States Constitution requires
that "[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury." The Supreme Court has explained that "an indictment found by
a grand jury [is] indispensable to the power of the court to try the peti-
tioner for the crime with which he was charged," Ex Parte Bain, 121
U.S. 1, 12-13 (1887), and "that a court cannot permit a defendant to
be tried on charges that are not made in the indictment against him,"
United States v. Stirone, 361 U.S. 212, 217 (1960) (emphasis added).
Thus, when an indictment fails to set forth an "essential element of
a crime," "[t]he court . . . ha[s] no jurisdiction to try [a defendant]
under that count of the indictment." United States v. Hooker, 841 F.2d
1225, 1232-33 (4th Cir. 1988).

And, of course, a district court cannot impose a sentence for a
crime over which it does not even have jurisdiction to try a defendant.
Indeed, the Supreme Court explained just last year in Apprendi v.
New Jersey, 530 U.S. 466 (2000), that the "`indictment must contain
an allegation of every fact which is legally essential to the punish-
ment to be inflicted,'" 530 U.S. at 490 n.15 (emphasis added) (quot-
ing United States v. Reese, 92 U.S. 214, 232-33 (1875)), because
"[t]he judge's role in sentencing is constrained at its outer limits by
the facts alleged in the indictment and found by the jury," id. at 483
n.10. Thus, because an indictment setting forth all the essential ele-
ments of an offense is both mandatory and jurisdictional, and a "de-
fendant cannot be `held to answer' for any offense not charged in an
indictment returned by a grand jury," United States v. Tran, 234 F.3d
798, 808 (2d Cir. 2000), a court is without "jurisdiction to . . . impose
a sentence for an offense not charged in the indictment," id. (empha-
sis added); id. ("[A] prosecutor cannot make [a] jurisdictional end
run, and then urge the court to sentence the defendant for an offense
for which the defendant was neither charged nor convicted.").

To hold otherwise would be to allow the court to impermissibly
broaden the indictment on its own accord during the sentencing

                   9
phase. To be sure, the district court's actions in this case did not tech-
nically result in a constructive amendment of the indictment as the
court did not broaden "the possible bases for conviction beyond those
presented by the grand jury." United States v. Floresca, 38 F.3d 706,
710 (1994) (en banc) (emphasis added). But there is no question that
"the effect of what it did was the same," Stirone, 361 U.S. at 217,
because the district court sentenced the appellants for a crime with
which they were never charged. See Promise, 2001 WL 732389, at
*32 (Motz, J., joined by Widener, Michael, King, JJ., concurring in
part and dissenting in part, and dissenting in the judgment)
("[A]lthough the government presented the grand jury with an indict-
ment containing only the elements necessary to charge [the defen-
dant] with a violation of § 841(b)(1)(C), the district court sentenced
him to the more serious crime defined in § 841(b)(1)(A); the court did
not formally amend the indictment, but its sentence had the same
effect."). In doing so, the district court encroached upon the preroga-
tive of the grand jury, because only the grand jury has the power to
broaden the charges "after an indictment has been returned." Stirone,
361 U.S. at 215-16.

Accordingly, the district court exceeded its jurisdiction in sentenc-
ing the appellants for a crime with which they were never charged,
thus depriving them of the constitutional right to"answer" only for
those crimes presented to the grand jury.

B.

Having identified the nature of the error committed by the district
court, we must resolve the question that plagued an evenly divided
court in Promise -- that is, whether we should exercise our discretion
to correct the error where an indictment fails to charge drug quantity
and the district court sentences a defendant to a term of imprisonment
that exceeds the statutory maximum set forth in section 841(b)(1)(C).
Compare Promise, 2001 WL 732389, at *10 (Wilkins, J., joined by
Wilkinson, C.J., and Williams and Traxler, JJ.) (holding that"[i]t would be a
miscarriage of justice to allow [the defendant] to avoid a sentence for
the aggravated drug trafficking crime that evidence overwhelmingly
demonstrates he committed"), with id. at *33 (Motz, J., joined by
Widener, Michael, and King, JJ.) ("Certainly, sentencing a man for a
crime for which he has been neither charged nor convicted seriously

                   10
affects the fairness, integrity, and public reputation of judicial pro-
ceedings."). Because we believe that the "nature of the error" is "fun-
damental," United States v. David, 83 F.3d 638, 648 (4th Cir. 1996),
that the "plain error was committed in a matter so absolutely vital to
defendants," Wiborg v. United States, 163 U.S. 632, 658 (1896), and,
most importantly, that the error "seriously affect[s] the fairness, integ-
rity or public reputation of judicial proceedings," Olano, 507 U.S. at
736 (quoting Atkinson, 297 U.S. at 160), we "feel ourselves at liberty
to correct it," Wiborg, 163 U.S. at 658.

The Supreme Court has recognized that there are cases in which an
error may seriously affect the fairness, integrity or public reputation
of judicial proceedings even "independent of the defendant's inno-
cence." Olano, 507 U.S. at 736-37. One such case is United States v.
Silber, 370 U.S. 717 (1962) (per curiam), in which the Court consid-
ered whether to notice a defect in an indictment. In its short per
curiam opinion, the Supreme Court concluded that the defect in the
indictment constituted reversible plain error even though the error
was not raised in either the Court of Appeals or the Supreme Court.
Silber, 370 U.S. at 717; see also United States v. Brown, 995 F.2d
1493, 1504 (10th Cir. 1993) (holding that the failure to charge an "es-
sential element" of a crime in the indictment is an error "which should
be noted by an appellate court sua sponte as plain error"); United
States v. Clark, 412 F.2d 885, 887-88 (5th Cir. 1969) (concluding that
the failure of the indictment to state a criminal offense "constitutes
plain error within the meaning of [Fed. R. Crim. P.] 52(b) and war-
rants reversal by a reviewing court"); Chappell v. United States, 270
F.2d 274, 276 (9th Cir. 1959) (deciding that where the indictment did
not state a criminal offense, it "constitute[d] plain error within the
meaning of Rule 52(b)"); cf. Fed. R. Crim. P. 12(b)(2) (stating that
the failure of the indictment to "charge an offense . . . shall be noticed
by the court at any time during the pendency of the proceedings").

To be sure, the error in Silber was that the defendant was convicted
based upon an indictment that did not charge a crime, whereas here
the error is that the defendant was sentenced more harshly based upon
an element that was not charged in the indictment. We do not believe,
however, that this is a substantive distinction. We cannot imagine that
the Supreme Court would believe itself bound to notice the error
when a conviction is based upon a crime with which a defendant was

                   11
not charged on the one hand, but, on the other hand, decline to recog-
nize the error under the equally (or possibly more) egregious circum-
stance where a defendant is sentenced based upon a crime that was
not charged in the indictment nor even presented to the petit jury. See
Tran, 234 F.3d at 809 ("If the district court acts beyond its jurisdic-
tion by trying, accepting a guilty plea from, convicting, or sentencing
a defendant for an offense not charged in the indictment, this Court
must notice such error and act accordingly to correct it, regardless
of whether the defendant has raised the issue." (emphases added)).
Indeed, in both cases, the district court acts without jurisdiction. See
supra at 9.

Our conclusion that the error should be noticed is further reinforced
by United States v. Floresca, 38 F.3d 706 (4th Cir. 1994) (en banc),
in which we corrected plain error when the district court construc-
tively amended the indictment by instructing the jury on a different
subsection of a criminal statute, even though the indictment charged
a federal crime. 38 F.3d at 709, 714. There, we recognized the funda-
mental nature of the error -- namely, that "[the defendant] was held
accountable in a federal court for an `infamous crime' for which he
was never indicted by a grand jury." Id. at 713-14. We did not hesitate
to say "that convicting a defendant of an unindicted crime affects the
fairness, integrity, and public reputation of federal judicial proceed-
ings in a manner most serious." Id. at 714.

Likewise here, we have no trouble concluding that sentencing a
defendant for an unindicted crime also seriously affects the fairness,
integrity or public reputation of judicial proceedings. Indeed, it
appears from the separate opinions in Promise that at least six mem-
bers of this court would also so hold.55 See Promise, 2001 WL
_________________________________________________________________

5 While we do not consider post-indictment notice to be relevant, it
appears that even the four members of the court who declined to recog-
nize the error in Promise would recognize the error here. For, post-
indictment notice, which they found there to be "critical[ ]," is absent in
this case. 2001 WL 732389, at *10 (Wilkins, J., joined by Wilkinson, C.J., and
Williams and Traxler, JJ.); id. at *35 n.3 (Motz, J., joined by Widener,
Michael, and King, JJ.) ("Presumably, even overwhelming and uncontro-
verted evidence of a defendant's guilt, without post-indictment notice, is
insufficient to persuade the court not to notice an error like that at issue
here.") (emphasis in original).

                   12
732389, at *33 (Motz, J., joined by Widener, Michael, and King, JJ.);
id. at *13-*14 (Niemeyer, J., joined by Gregory, J.).

C.

The government argues that we should decline to recognize the
error in this case because the evidence adduced at trial overwhelm-
ingly establishes the threshold drug quantities for an aggravated drug
trafficking offense. While the government may well be correct as a
factual matter, the quantum of evidence is not a relevant consideration
when the error stems from a defect in the indictment.

First, a reviewing court may not speculate about whether a grand
jury would or would not have indicted a defendant for a crime with
which he was never charged. See Promise, 2001 WL 732389, at *34
("A court cannot rely on its own view of what indictment a grand jury
could or would have issued if the grand jury was never presented with
a charge, or what verdict a petit jury could or would have reached if
the petit jury was never presented with an indictment.") (Motz, J.,
joined by Widener, Michael, and King, JJ.). To do so would usurp the
role of the grand jury, which, as the Supreme Court has recognized,
is "`not bound to indict in every case where a conviction can be
obtained.'" Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (quoting
United States v. Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979)
(Friendly, J., dissenting)). For that reason, we explained in Floresca
that "it is `utterly meaningless' to posit that any rational jury could or
would have indicted [the defendant for a different crime], because it
is plain that this grand jury did not, and, absent waiver, a constitu-
tional verdict cannot be had on an unindicted offense." 38 F.3d at 712
(emphasis in original).

Second, to the extent the government argues that we should decline
to notice the error because the petit jury would have convicted appel-
lants of an aggravated drug trafficking offense based on the over-
whelming evidence adduced at trial, we reject that proposition as
well. For the government's position ignores the basic principle that
the grand jury and petit jury are separate and independent. Because
it is well settled that the petit jury cannot usurp the role of the grand
jury, it is no less evident that we cannot place ourselves in the posi-
tion of the petit jury, and then, in turn, assume the role of the grand

                   13
jury. In effect, this would result in nothing less than a constructive
amendment of the indictment, see Promise, 2001 WL 732389, at *13
(Niemeyer, J., joined by Gregory, J.), which itself is reversible plain
error, Floresca, 38 F.3d at 714.

Accordingly, we vacate and remand for resentencing with instruc-
tions to sentence the appellants (except Darlene Green) to a term of
imprisonment not to exceed 20 years.

IV.

After the appellants filed this appeal, they learned that James Gib-
son, one of the government's principal cooperating witnesses, may
have lied on the witness stand. Specifically, Mary Koch, who had
been designated as a Special Assistant United States Attorney to assist
in the federal case against the appellants, admitted in a related state
drug prosecution that she believed that Gibson's testimony at trial was
inconsistent with the information he provided to the government prior
to trial. According to Koch, Gibson had not been truthful in relating
the involvement of his daughter, Matilda Hall, in the conspiracy.

After appellants learned of Koch's testimony, we stayed the appeal
pending the district court's resolution of appellants' motion for a new
trial based upon Gibson's allegedly perjurious testimony. After a full
hearing on the matter, the district court denied appellants' motion,
holding that even if the prosecution knowingly used perjured testi-
mony, the materiality element for a due process violation had not
been established because there was no "`reasonable likelihood that the
false testimony could have affected the judgment of the jury.'" United
States v. White, 238 F.3d 537, 540-41 (4th Cir. 2001) (quoting Kyles
v. Whitley, 514 U.S. 419, 433 n.7 (1995)). In denying the motion, the
district court rendered detailed factual findings with regard to each
appellant, specifically assessing the effect of Gibson's testimony on
the trial, and the additional evidence supporting the verdicts.

Appellants argue that the district court erred in denying the motion
for a new trial. We disagree. As demonstrated by the district court's
findings, the government presented overwhelming evidence -- sepa-
rate and apart from Gibson's testimony -- establishing: (1) that each
of the appellants participated in the conspiracy; (2) their respective

                   14
roles in the conspiracy; and (3) the vast amounts of crack being dis-
tributed by them. Cf. White, 238 F.3d at 540 (holding that though the
government may have failed to disclose exculpatory testimony, "in
light of the overwhelming evidence" of defendant's involvement in
narcotics sales, there was no reasonable probability that a defense
based upon that testimony would have been successful). Conse-
quently, Gibson's testimony was, in large measure, merely cumula-
tive of the testimony provided by numerous other cooperating
witnesses.6
          6

Therefore, after thoroughly reviewing the record and the district
court's findings, we affirm on the district court's reasoning that there
is no "reasonable likelihood that the false testimony could have
affected the judgment of the jury."

V.

Finally, Jovan Powell argues that the district court erred when it
failed to strike the testimony of police officer Michael Fries, who
recounted that when he stopped Powell, Powell was in the possession
of a key to a residence that contained vast quantities of crack cocaine.
First, Powell asserts that Fries and his partner did not possess reason-
able suspicion to perform an investigative stop under Terry v. Ohio,
392 U.S. 1 (1968). Second, Powell contends that even if the officers
had reasonable suspicion, they were not entitled to seize the key. We
reject both of Powell's arguments.

A.

Under Terry, "[t]he police can stop and detain a person for investi-
gative purposes `if the officer has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot.'" Park v. Shiflett,
_________________________________________________________________

6 Alternatively, appellants argue that they were entitled to a new trial
under Fed. R. Crim. P. 33 on the basis of newly discovered evidence.
This argument is without merit, however, because a new trial based upon
newly discovered evidence is unavailable where "evidence . . . is merely
cumulative or impeaching," absent exceptional circumstances which are
not present in this case. See United States v. Custis, 988 F.2d 1355, 1359
(4th Cir. 1993).

                   15
250 F.3d 843, 850 (4th Cir. 2001) (quoting United States v. Sokolow,
490 U.S. 1, 7 (1989)). "While `reasonable suspicion' is a less
demanding standard than probable cause and requires a showing con-
siderably less than preponderance of the evidence, the Fourth Amend-
ment requires at least a minimal level of objective justification for
making the stop." Wardlow v. Illinois, 120 S. Ct. 673, 675-76 (2000).

Here, the evidence establishes that Fries and his partner had rea-
sonable suspicion to perform a Terry stop. Fries, an experienced street
crimes and drug enforcement investigator, testified that he knew,
based on his prior experience patrolling the area on "almost a daily
basis," J.A. 101, that Powell was leaving a residence located in a
"problem[ ]" neighborhood, J.A. 101. See United States v. Lender,
985 F.2d 151, 154 (4th Cir. 1993) ("Courts are not remiss in crediting
the practical experience of officers who observe on a daily basis what
transpires on the street."). Consequently, when he noticed that the
dwelling contained "busted out" windows and a pit bull "looking out
of the front windows upstairs," J.A. 108, Fries and his partner decided
to leave their patrol car and investigate the situation. When they
approached Powell, Fries "questioned him as to what he was doing
inside the house." J.A. 110. Powell then became visibly nervous "and
answered . . . by stating he didn't live there and he wasn't in there."
J.A. 111.

In denying Powell's motion to strike Fries' testimony, the district
court explained that since the officers had actually witnessed Powell
leaving the residence, they "had reason to believe [Powell] was lieing
[sic] to them," and that Powell's dubious response coupled with the
suspicious circumstances of the encounter furnished the officers with
reasonable suspicion to believe that "criminal activity may be afoot."
S.A. 37.

Hence, we agree with the district court that, based upon the offi-
cers' observations, they possessed reasonable suspicion to perform a
Terry stop.

B.

Powell alternatively argues that even if the Terry stop was sup-
ported by reasonable suspicion, the officers did not have the right to

                  16
seize the key. Powell's assertion is without merit because the confis-
cation of the key was lawful under the "plain view" doctrine. See Min-
nesota v. Dickerson, 508 U.S. 366, 374 (1993) (extending the "plain
view" doctrine to items seized pursuant to a lawful Terry stop).

"Under that doctrine, if police are lawfully in a position from which
they view an object, if its incriminating character is immediately
apparent, and if the officers have a lawful right of access to the object,
they may seize it without a warrant." Id. First, the officers were "law-
fully in a position from which they view[ed]" the key, since they were
merely driving by when they viewed the object in question. Indeed,
Fries indicated during his testimony that the officers noticed the key
in Powell's hand as Powell was exiting the residence, prior to when
the officers left the patrol car. J.A. 108, 110.

Second, the object's "incriminating character[was] immediately
apparent" after the officers' lawful encounter with Powell. When the
officers inquired about Powell's presence in the house, his answer
indicated not only that he had no possessory interest in the residence,
but that, contrary to the officer's observations, he had not been pres-
ent in the house either. Thus, it was "immediately apparent" to the
officers that the key was "incriminating evidence" that might have
been related to any number of crimes, United States v. Jackson, 131
F.3d 1105, 1109 (4th Cir. 1997), including, most notably, a burglary
or some other type of property crime, see, e.g., Md. Ann. Code art.
27, § 30 ("A person may not break and enter the storehouse of another
with the intent to commit theft, a crime of violence, or arson in the
second degree."); see also Dorsey v. State, 189 A.2d 623, 624 (Md.
1963) ("`Actual breaking . . . may consist of lifting a latch, drawing
a bolt, raising an unfastened window, turning a key or knob, pushing
open a door kept closed merely by its own weight.'"(emphasis
added)) (quoting L. Hochheimer, Criminal Law § 277, at 310 (2d ed.
1904)).

Third, the officers had a "lawful right of access to the object." As
the Supreme Court has explained, this requirement"is simply a corol-
lary of the familiar principle . . . that no amount of probable cause can
justify a warrantless search or seizure absent `exigent circum-
stances.'" Horton v. California, 496 U.S. 128, 137 n.7 (1990); United
States v. Legg, 18 F.3d 240, 244 (4th Cir. 1994). Here, the officers

                   17
had reasonable suspicion to believe not only that there was criminal
activity, but that the key itself represented evidence of a crime. Thus,
an exigent circumstance was unavoidably created because the key and
any incriminatory evidence contained inside the house could have
been destroyed had the officers not seized the key at that particular
moment. See Schmerber v. California, 384 U.S. 757, 770-71 (1966)
(stating that the destruction of evidence is an exigency that justified
a warrantless search); Taylor, 90 F.3d at 907 (holding that the threat
of "imminent destruction of evidence of [criminal] activity" created
an exigent circumstance).

Accordingly, we hold that neither the Terry stop nor the seizure of
the key violated Powell's rights under the Fourth Amendment.

CONCLUSION

For the reasons stated herein, we affirm the convictions, and vacate
and remand for resentencing with respect to all the appellants except
Darlene Green.

It is so ordered

WILKINSON, Chief Judge, concurring in part and dissenting in part:

I concur in the affirmance of the convictions.11 I respectfully dissent
from the decision in Part III to notice the sentencing error in this case.
In light of the overwhelming evidence presented, the district court
concluded that the defendants were responsible for the distribution of
1.5 kilograms of cocaine base -- thirty times more than the 50 grams
necessary under 21 U.S.C. § 841(b)(1)(A) to merit the sentences they
received. Because it would constitute a manifest injustice to reduce
these defendants' sentences when the evidence undeniably demon-
strates that they committed the greater statutory offense, I would
decline to notice the error.
_________________________________________________________________

1 In doing so, I join in all but Part III of the majority opinion.

                    18
I.

Seven of the eight appellants challenge their sentences with
Apprendi claims. Despite an allegation of drug quantity in the initial
indictment, a drug quantity was not alleged in the superceding indict-
ment nor found by the petit jury beyond a reasonable doubt. All of
the appellants were sentenced to terms of imprisonment that exceed
the twenty-year maximum set forth in 21 U.S.C. § 841(b)(1)(C) for
unspecified drug quantities. Five of the appellants, Stanley Hall Jr.,
Leonard Cotton, Lamont Thomas, Marquette Hall, and Jesus Hall,
were sentenced to life imprisonment. Two others, Jovan Powell and
Matilda Hall, were sentenced to 30 years imprisonment. The appel-
lants did not raise this challenge in the district court because the
Supreme Court had not yet decided Apprendi.

Under United States v. Olano, 507 U.S. 725 (1993), before an
appellate court can correct an error not raised at trial, "there must be
(1) error, (2) that is plain, and (3) that affect[s] substantial rights."
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (alteration in
original) (internal quotations omitted). "If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings." Id. (alteration in origi-
nal) (internal quotations omitted).

Under the reasoning of this court's recent decision in United States
v. Promise, No. 99-4737, 2001 WL 732389, ___ F.3d ___ (4th Cir.
June 29, 2001) (en banc), the district court committed plain error in
sentencing the defendants to more than the twenty-year maximum
permitted by 21 U.S.C. § 841(b)'s catch-all provision. See Promise,
2001 WL 732389, at *7; 21 U.S.C. § 841(b)(1)(C) (maximum sen-
tence of imprisonment of not more than twenty years if drug quantity
has not been determined by a jury beyond a reasonable doubt). Fur-
thermore, Promise makes clear that this error affected the defendants'
substantial rights. See Promise, 2001 WL 732389, at *8.

I do not believe, however, that this court ought to notice the error
in this case. Quite simply, there is no question that the defendants par-
ticipated in a conspiracy to distribute more than 50 grams of cocaine
base. In fact, the evidence is overwhelming that the quantity of drugs

                   19
in question exceeded § 841(b)(1)(A)'s "threshold" amount. The
majority does not dispute this point and in fact acknowledges the
overwhelming nature of the evidence against the defendants. See ante
at 6 (noting that "approximately 380 grams of cocaine base and 85
grams of cocaine hydrochloride were actually seized from the various
conspirators"); ante at 14 (stating that there was "overwhelming evi-
dence" apart from cooperating coconspirator James Gibson's testi-
mony establishing "the vast amounts of crack distributed by [the
defendants]").

Courts may decline to notice a plain error when evidence of defen-
dants' guilt is overwhelming. See, e.g., Johnson, 520 U.S. at 469-70
(refusing to notice plain error when evidence of guilt was "over-
whelming" and largely uncontested); United States v. Bowens, 224
F.3d 302, 314-15 (4th Cir. 2000) (same); United States v. Johnson,
219 F.3d 349, 354 (4th Cir. 2000) (same); United States v. Cedelle,
89 F.3d 181, 186 (4th Cir. 1996) (declining to notice plain error and
stating that "[c]entral" to the question of whether to notice a plain
error affecting substantial rights "is a determination of whether, based
on the record in its entirety, the proceedings against the accused
resulted in a fair and reliable determination of guilt"); United States
v. Nance, 236 F.3d 820, 823, 826 (7th Cir. 2000) (declining to recog-
nize plain error of sentencing defendant to more than the twenty-years
provided by 21 U.S.C. § 841(b)(1)(C) where the indictment did not
state any drug quantity because the evidence against defendant was
overwhelming); United States v. Mojica-Baez, 229 F.3d 292, 307-12
(1st Cir. 2000) (declining to notice error when indictment failed to
charge defendant for using a semiautomatic weapon). See also Prom-
ise, 2001 WL 732389, at *8-10 (Wilkins, J., joined by Wilkinson,
Williams, and Traxler, JJ.).

Here, the government presented, inter alia, testimony from seven
of the defendants' coconspirators22 and thirty-five Baltimore City
police officers and FBI agents about the nature and extent of the
defendants' far-flung narcotics enterprise. Among the most incrimi-
_________________________________________________________________

2 The following coconspirators served as government witnesses: Carla
Malloy, Nicole Baylor, Korey Britton, Timothy Roday, James Gibson,
Kowana Huntley, and Roxanne Kennedy.

                  20
nating evidence regarding the quantity of cocaine base (crack) is the
following:

        - Carla Malloy testified that in the summer of 1996 she
        went to a Marriott hotel in Baltimore with defendants
        Stanley Hall Jr., Leonard Cotton, Lamont Thomas, Jesus
        Hall, and Nicole Baylor. At the hotel, the group bagged
        one kilogram of cocaine base into ziplocks. Baylor con-
        firmed the occurrence of this incident.

        - Malloy testified that she later went to a Super 8 motel
        with Hall Jr. and Jesus Hall to bag one-half of a kilogram
        of crack.

        - Baylor testified that she too bagged crack on a second
        occasion with Thomas at a Super 8 motel. During this
        incident, they bagged one kilogram of crack given to
        them by Hall Jr.

        - Korey Britton testified that from mid-November 1996 to
        December 27, 1996, he sold approximately $10,000 to
        $12,000 of crack per week as a street runner for Hall Jr.

        - Malloy testified that between December 1996 and mid-
        January 1997, Hall Jr. provided crack to Cotton and
        Thomas in quantities of one-eighth of a kilogram (125
        grams).

        - Malloy also testified that after January 1997 she was
        present on four occasions when Hall Jr. cooked cocaine
        powder into crack. Thomas was present on two of these
        occasions.

        - Malloy further testified that during that same time
        period, she and Thomas purchased ounce quantities (28
        grams) of crack from Hall Jr. for distribution.

        - Britton testified that he was with Hall Jr. when Hall Jr.
        cooked one-quarter of a kilogram of cocaine powder into

                  21
crack. Hall Jr. and Britton then delivered the crack to
Cotton.

- Timothy Roday testified that in 1996 and 1997, Matilda
Hall either personally provided him with crack or
directed him to pick up drugs from one of her sons or
their workers. Roday estimated that during this time he
paid Matilda Hall a total of approximately $15,000 for
the crack cocaine he purchased from her and the Hall Jr.
organization.

- Britton and Malloy both testified that they retrieved
crack from the inside of 847 McHenry Street for Matilda
Hall. Malloy stated that she took a pocketbook that con-
tained one-quarter ounce (7 grams) of crack cocaine out
of a linen closet.

- Britton testified that he delivered one-eighth of an ounce
(3.5 grams) of crack to Darlene Green at Matilda Hall's
request. On another occasion, Matilda Hall took an 8-ball
(3.5 grams) of crack out of her bra and asked Britton to
hide it for her in the trash.

- The testimony of the cooperating coconspirators was
corroborated by numerous Baltimore City police offi-
cers. In particular, various state arrests and searches
between February 1996 and April 1997 resulted in the
seizure of a combination of 795 ziplock bags and clear
bags containing approximately 380 grams of cocaine
base.

- Additionally, pursuant to a federal search warrant of
Jovan Powell's residence executed on October 17, 1997,
the government seized 51.3 grams of crack found in a
pair of Powell's sweat pants.

- Finally, during sentencing, the defendants did not argue
that the conspiracy distributed less than 50 grams of
cocaine base. Various defendants disputed the amount of

          22
       crack that should be attributed to them based on their
       role in the conspiracy. They also argued that the cooper-
       ating coconspirators testimony should not be credited.
       However, none of them disputed the amount of crack
       actually seized by the police officers and federal agents.

It is true that the superseding indictment did not specify the amount
of drugs in question. Nor did the government subsequently file an
information contending that defendants were accountable for more
than 50 grams of cocaine base. Still, contrary to the majority's asser-
tion, see ante at 12 n.5, it remains difficult to believe that defendants
lacked notice that they faced 21 U.S.C. § 841(b)'s strictest penalties.
First, all seven of these defendants received actual notice from the ini-
tial indictment, which specified the threshold drug quantity with
which they were charged. Specifically, the initial indictment charged
defendants with conspiring to "distribute and possess with intent to
distribute . . . 50 grams or more of a mixture or substance containing
a detectable amount of cocaine base . . . in violation of Title 21,
United States Code, § 841(a)(1)." Second, because the government
was presenting evidence that the defendants distributed 1.5 kilograms
of cocaine base and 150 kilograms of cocaine, defendants' counsel
clearly were aware that the government could seek the elevated penal-
ties available under 21 U.S.C. § 841(b)(1)(A). Given the overwhelm-
ing evidence and the lack of any unfairness to the defendants, I would
not recognize the error.

There is no injustice in holding these defendants accountable for
participating in a conspiracy to distribute more than 50 grams of
cocaine base. The true injustice comes from this court reducing their
sentences and ignoring the effects that their vast drug distribution ring
had upon the citizens of Baltimore. Ignoring the evidence and the
societal effects of the defendants' actions is what "seriously affects
the fairness, integrity [and] public reputation of judicial proceedings."
Olano, 507 U.S. at 732 (internal quotations omitted).

II.

The majority does not make a case of injustice based on the facts
of this case and does not argue that the defendants are not accountable
for the drug quantity the district court attributed to them. Instead, the

                  23
majority focuses solely on the nature of the error-- the failure of the
superceding indictment to allege a specific drug quantity -- in reach-
ing its conclusion to recognize the plain error. I agree fully with the
majority's statements about the general importance of a defendant's
right to be indicted by a grand jury. However, in the course of its trib-
ute to grand jury indictments, the majority misses two crucial points.

First, the indictment in this case was valid at the time it was filed.
"It is one thing to vacate a conviction or sentence where the prosecu-
tor failed to indict in accordance with the current state of the law. It
is quite another thing to vacate a conviction or sentence based on an
indictment that was entirely proper at the time." United States v.
Mojica-Baez, 229 F.3d 292, 310 (1st Cir. 2000). The government had
no way to predict the about-face that would later be undertaken by the
Supreme Court in Apprendi and by this court in Promise.

There can be no doubt that had the prosecution been aware of the
rule this court would later announce in Promise, it would have made
certain that the superseding indictment mirrored the initial indictment.
Specifically, it would have included the statement from the initial
indictment that defendants conspired to "distribute and possess with
intent to distribute . . . 50 grams or more of a mixture or substance
containing a detectable amount of cocaine base." Nor is there any
question, given the overwhelming evidence, that had the prosecutor
included this language the grand jury would have indicted the defen-
dants and the petit jury would have found the defendants guilty
beyond a reasonable doubt.

Second, the majority inappropriately replaces the discretionary,
case-by-case assessment dictated by the fourth prong of Olano with
an essentially categorical approach when the error consists of an
indictment defect. The Supreme Court has stressed that an appellate
court must exercise discretion under Rule 52(b) when deciding
whether to recognize a plain error that affects a defendant's substan-
tial rights. See Olano, 507 U.S. at 737 (stating that "a plain error
affecting substantial rights does not, without more, satisfy the
[requirement that the error seriously affect the fairness, integrity, or
public reputation of judicial proceedings], for otherwise the discretion
afforded by Rule 52(b) would be illusory"); United States v. Young,
470 U.S. 1, 16 n.14 (1985) (stating that a "per se approach to plain-

                  24
error review is flawed"). See also United States v. David, 83 F.3d 638,
648 (4th Cir. 1996) ("It seems to us, as apparently it did to the Court
in Olano, that only by examining the particulars of each case can the
`careful balancing' reflected in the plain error rule be preserved.");
United States v. Patterson, 241 F.3d 912, 913 (7th Cir. 2001) ("When
the appellate standard is plain error (as opposed to harmless error),
even the clearest of blunders never requires reversal; it just permits
reversal.").

For the majority to select a category of errors a priori that must be
corrected on plain error review is inconsistent with the mandate of
Olano to examine the facts of each case and the proceeding as a
whole. Its approach cannot be squared with that of the Supreme
Court. The Supreme Court knows how to adopt categorical
approaches and has indicated a willingness to do so under the third
prong of Olano. See Johnson, 520 U.S. at 468-69 (recognizing cate-
gorical approach to structural errors that presumptively satisfy the
third prong of Olano and listing classes of cases that present structural
errors). However, the Court has never adopted a categorical approach
under the fourth prong of Olano. Furthermore, the Court did not
include indictment defects in its list of structural errors. See Johnson,
520 U.S. at 468-69 (gathering "very limited class of cases" that
present structural errors). Thus, it is hard to believe that the Supreme
Court would require all indictment defects to be noticed under the
fourth prong of Olano when they do not even qualify as structural
errors that affect a defendant's substantial rights under prong three.

In Johnson, the petitioner argued that Olano did not apply because
the error she complained of was structural. Id. at 466. The Supreme
Court rejected this argument and stated that "the seriousness of the
error claimed does not remove consideration of it from the ambit of
the Federal Rules of Criminal Procedure." Id. The Court went on to
apply Olano based on the specific facts of the case. See id. at 469-70
(holding that even if the error complained of was structural and
affected substantial rights, the fourth prong of Olano was not met
because of the "overwhelming" and "essentially uncontroverted" evi-
dence of petitioner's guilt). Indictment defects will justify recognition
on plain error review in some cases. However, in cases such as this
one, the indictment defect has not affected the fairness of the proceed-
ings and should not be noticed. Moreover, other errors not selectively

                  25
culled by the majority for categorical treatment under the fourth prong
of Olano may potentially have a severe impact on the fairness and
integrity of judicial proceedings in a particular case. This is why the
Olano case-specific inquiry is critical.

The majority stresses that the Supreme Court in Silber v. United
States, 370 U.S. 717 (1962), found reversible plain error when an
indictment did not charge the defendant with a crime. See Silber, 370
U.S. at 717-18. However, the Court did not hold that all grand jury
errors must be recognized on plain error review or that every failure
of an indictment to charge all of the elements required for a defen-
dant's sentence must be noticed by an appellate court. Furthermore,
several of our sister circuits have declined to recognize plain error
when defendants were sentenced more strictly based on elements not
charged in their indictments. The First, Seventh, and Eleventh Cir-
cuits have properly recognized that this type of indictment defect may
have only the most negligible effect on the fairness and integrity of
a judicial proceeding. See Mojica-Baez, 229 F.3d at 310-12 (declining
to notice plain error when indictment failed to charge defendant for
using a semiautomatic weapon during a robbery because there was no
objection at trial, no lack of notice, and "no reason to think the grand
jury would have had any trouble in rendering an indictment specify-
ing the weapons used"); United States v. Nance, 236 F.3d 820, 823,
826 (7th Cir. 2000) (declining to recognize plain error of sentencing
defendant to more than twenty years when indictment did not state
any drug quantity because the evidence against defendant was over-
whelming); United States v. Patterson, 241 F.3d 912, 914 (7th Cir.
2001) (same); United States v. Swatzie, 228 F.3d 1278, 1284 (11th
Cir. 2000) (stating that even if district court's Apprendi error with
regard to defendant's drug conviction satisfied the first three steps of
the Olano analysis, the court would decline to notice the error due to
overwhelming evidence of defendant's guilt).

III.

The injustices of reducing the defendants' terms of imprisonment
from life or thirty years to a twenty-year maximum are manifold. The
majority errs by not weighing these injustices against the gravity of
the indictment defect. The integrity of this country's criminal justice
system depends on the most culpable violators receiving more strin-

                  26
gent punishments than those less-culpable violators. In this case, the
evidence is clear that defendant Stanley Hall Jr. was the kingpin of
a drug conspiracy that distributed over thirty times the statutorily
required amount of crack cocaine to warrant a life sentence. Under
Congress' intended sentencing scheme, Hall Jr. and the conspiracy's
other key players justifiably received more stringent penalties than
those individuals who were less essential to the conspiracy's success.
However, by reducing their sentences under 21 U.S.C. § 841(b), this
court erases the differences in punishment and condemnation between
the conspiracy's kingpin and its underlings.

Moreover, changing the rules of the game after it has already been
fairly played does a profound disservice to the individuals whose lives
have been affected by the drug trade. In one sweeping motion, this
court nullifies the sacrifices made by law enforcement officers, prose-
cutors, and trial courts in enforcing this country's drug laws. Further-
more, the majority overlooks the ultimate sacrifice paid by the victims
of the drug trade. Seen as part of the overall drug problem, the drugs
at issue here may be a mere drop in the bucket. But seen in terms of
individual lives, the consequences of this sort of drug distribution are
incalculable. Though the victims may be unknown and unnamed inso-
far as this record is concerned, as a result of the defendants' crimes,
some individuals somewhere are spending their lives in the service of
a chemical addiction.

Congress has properly expressed its condemnation of drug distribu-
tions and their consequences. And it has calibrated the penalties asso-
ciated with drug distribution so that kingpins are punished more
vigorously than petty dealers. It is unfortunate to disregard Congress'
clear intent when there is no question at all that the defendants here
distributed the requisite drug amounts under 21 U.S.C. § 841(b) to
merit the sentences they received. Under Olano, we are to notice a
plain error only if a miscarriage of justice would result. Here, the true
miscarriage of justice is the court's failure to respect Congress'
attempt to deal with a problem which so compromises the life pros-
pects of America's most vulnerable citizens.

                  27
