In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3232

United States of America,

Plaintiff-Appellee,

v.

Lamilton Briggs,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 00-CR-10099--Michael M. Mihm, Judge.

Argued April 4, 2002--Decided May 29, 2002


  Before Ripple, Kanne, and Evans, Circuit
Judges.

  Kanne, Circuit Judge. A jury convicted
appellant Lamilton Briggs of distributing
crack cocaine, based on a controlled drug
purchase. Because Briggs possessed a
large amount of crack at the time of his
arrest, he was also convicted of
possession of crack with the intent to
distribute. He appeals, arguing (1) there
was insufficient evidence to support his
convictions, (2) the district court erred
in denying his motion for a new trial
based on a juror’s post-trial
questionnaire, and (3) his conviction
violates the rule set forth in Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000). We
affirm.

I.   History

  At trial, the following facts were
adduced: Orlando Davis, a confidential
FBI informant, met with FBI Task Force
Agent Jeff Avery at the Peoria, Illinois
FBI office in order to arrange a
controlled purchase of crack from Briggs.
After Davis arrived at the FBI office, he
was searched for money and for drugs, and
finding neither, law enforcement agents
outfitted Davis with a body-recording
device and a transmitter. Davis then
paged Briggs, who returned the page,
acknowledging himself as "Milton" in a
recorded phone call. During that call,
Davis and Briggs agreed to meet at a pre
arranged location, and Agent Avery
provided Davis with $2,000 in cash.

  Following the phone call with Briggs,
Davis and Agent Avery drove in Davis’ car
to meet Briggs at the Pierson Hills
housing complex in Peoria. After arriving
at the complex, Agent Avery left Davis’
car and joined other law enforcement
agents in establishing visual
surveillance of the complex. Davis then
drove into the complex, located Briggs’
car, and joined Briggs inside of that
car. While in the car, Davis provided
Briggs with $2,000 in cash in exchange
for 54.7 grams of crack./1 Following
this transaction, Davis met with Agent
Avery and provided him with the crack
that he had obtained from Briggs.

  Law enforcement agents obtained a
warrant for Briggs’ arrest based on the
transaction with Davis and conducted
surveillance at the Seven Oaks apartment
complex in Peoria where agents knew
Briggs to reside. After approximately two
weeks of surveillance, law enforcement
agents went to Seven Oaks Apartment 1001
to arrest Briggs. The law enforcement
agents knocked several times and
announced their identity and presence,
and stated that they had a warrant for
Briggs’ arrest. They received no
response, although one agent observed
movement inside of the apartment. After
continuing to announce their presence and
after again receiving no response, agents
forcibly entered the apartment. Once
inside the apartment, the agents saw a
person identified as Harold Washington
sitting on the couch in the living room.
Eventually, Briggs appeared from the back
room of the apartment and was placed
under arrest.

  Following Briggs’ arrest, a law
enforcement agent conducted a protective
sweep of the apartment and discovered a
large amount of money and cocaine. Two
agents testified that Briggs confessed
that the drugs in the apartment belonged
to him and that Washington had nothing to
do with those items. Based on the drugs
seen in plain view during the protective
sweep, law enforcement agents obtained
and lawfully executed a search warrant
for the apartment. During that search,
agents seized numerous plastic bags
containing, in total, 161 grams of crack
cocaine, an additional 175.6 grams of
powder cocaine, two digital scales, a
cutting tray, several cell phones and
pagers, and approximately $6,350 in cash.

  Additionally, Jennifer Jones, a
marketing representative for Seven Oaks,
testified that Apartment 1001 was rented
to a person identified as "James
Pierson." On several occasions, "Pierson"
came to the apartment complex office and
paid his monthly rent with money orders.
Jones identified Briggs as the person she
believed to be "Pierson."

  In his defense, Briggs attempted to
challenge the credibility of the
government’s witnesses as well as to show
that the drugs in the apartment did not
belong to him. For example, the two
agents that testified that Briggs
hadconfessed to the possession of the
drugs admitted on cross-examination that
they had failed to include Briggs’
admission in their police report. Briggs’
mother testified that during the time in
question, he lived with and took care of
her because she had been injured at work.
Finally, Davis admitted writing a letter
to Briggs’ girlfriend, offering not to
testify in exchange for $7,500.

  The jury then convicted Briggs of one
count of distribution of fifty or more
grams of crack, in violation of 21 U.S.C.
sec. 841(a)(1) and (b)(1)(A), and one
count of possession of fifty or more
grams of crack with the intent to
distribute it in violation of 21 U.S.C.
sec. 841(a)(1) and (b)(1)(A)(1). After
the jury convicted Briggs of both counts
but prior to sentencing, the district
court received an exit questionnaire from
one of the jurors. In that questionnaire,
the juror described the deliberative
process and the role she played in that
process. Although the juror had stated
that she had been "intimidated" by other
jurors into finding Briggs guilty, the
juror did not suggest that any extraneous
information or outside influence had been
brought to the jury’s attention. Based on
the juror’s questionnaire, Briggs filed a
motion for a hearing to determine the
validity of the jury’s verdict.

  Before the district court, Briggs’
counsel acknowledged that the juror’s
statements fell within the purview
ofFederal Rule of Evidence 606(b), and
were thus inadmissable./2 Further,
neither exception to Rule 606(b)--
extraneous information nor outside
influence--applied that would allow the
questionnaire to be admitted into
evidence. Initially, the district court
agreed that the juror’s statements did
not raise any issue as to whether any
extraneous information or outside
influence had been brought to the jury’s
attention. Relying on this court’s
decision in United States v. Ford, 840
F.2d 460, 465-66 (7th Cir. 1988), the
district court then denied Briggs’
motion. After the district court had
ruled on the motion and at the suggestion
of the government, the district court
allowed Briggs to contact the juror to
inquire into the statements the juror had
made in her questionnaire because the
court was concerned that "intimidation"
could mean physical intimidation of some
sort.

  Briggs’ counsel contacted the juror and
conducted a recorded interview of her.
During that interview, the juror made
clear that there was no physical
intimidation of any sort. Further, the
juror explained that neither extraneous
information nor outside influence had
been brought to the jury’s attention and
that she was merely unhappy with the
deliberative process. At sentencing, the
district court again considered Briggs’
motion for a hearing to determine the
validity of the jury’s verdict. After
reviewing the transcript of the interview
with the juror, the district court
reaffirmed his denial of the motion for a
hearing and the motion for a new trial.
Subsequently, the district court
sentenced the defendant to a mandatory
term of life imprisonment on each of the
two counts, to run concurrently.

II.   Analysis

  Briggs first challenges his convictions
based on the sufficiency of the evidence.
In weighing the sufficiency of the
evidence, we view the evidence in the
light most favorable to the government
and will reverse a conviction only if no
rational trier of fact could have found
the essential elements of the offense
beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979). To prove
the offense of distribution of a
controlled substance, the government must
prove that a defendant knowingly
distributed a controlled substance and
that the defendant knew that what he
distributed was a controlled substance.
See, e.g., United States v. Hatchett, 245
F.3d 625, 631 (7th Cir. 2001). To
establish that a defendant possessed
crack with the intent to distribute it,
the government must prove that the
defendant: "(1) knowingly or
intentionally possessed cocaine; (2)
possessed it with the intent to
distribute; and (3) knew it was a
controlled substance." United States v.
Stribling, 94 F.3d 321, 324 (7th Cir.
1996).

  As we noted, Briggs cannot prevail on
his sufficiency of the evidence claim
unless he demonstrates that no rational
jury could have found the essential
elements of the offense. See Jackson, 443
U.S. at 319. Instead of making such a
showing, Briggs offers a competing
characterization of the evidence and
challenges the credibility of the
government’s witnesses. For example,
Briggs repeatedly notes that Davis was a
paid informant and that Briggs’ admission
was not included in the initial police
report. However, "questions of
credibility are solely for the trier of
fact, [and] such arguments are wasted on
an appellate court." United States v.
Henderson, 58 F.3d 1145, 1148 (7th Cir.
1995). Indeed, in the present case, the
evidence on the distribution count is
overwhelming, and Briggs’ challenge
borderlines on the frivolous. Davis and
several FBI agents testified that Briggs
participated in a controlled drug
purchase with Davis while under law
enforcement surveillance. Further, an
audio cassette tape of the transaction
was admitted at trial, and Briggs’ voice
was authenticated by Agent Avery. Thus,
the distribution conviction must be
affirmed.

  Similarly, Briggs’ challenge to his
possession with the intent to distribute
conviction also fails. Two FBI agents
testified that Briggs confessed that the
161 grams of crack and the 175.6 grams of
powder cocaine belonged to him. Briggs
was also arrested coming out of the room
that contained the cocaine. Further,
Jones testified that Briggs, under the
name of "Pierson," had paid for the
apartment in which the crack was found.
Finally, the crack was found in
individual packaging, with scales, and a
tray to cut it up along with numerous
phones and pagers. See, e.g., United
States v. Molinaro, 877 F.2d 1341, 1345-
46 (7th Cir. 1989) (holding that scales,
plastic baggies, and cutting agents
support an inference of an intent to
distribute). This evidence is more than
adequate for the jury to convict Briggs
of possession with the intent to
distribute.

  Briggs next contends that the district
court erred in denying his motion for a
hearing to determine the validity of the
jury’s verdict and for a new trial based
on the juror’s questionnaire. We faced a
similar situation in Ford, 840 F.2d at
465. In Ford, the district court received
a letter from a juror eleven days after
the conclusion of the trial, claiming
that the jurors and the jury foreman had
behaved improperly during deliberations.
See id. There were allegations that votes
were taken prior to deliberation and that
they were taken orally, and that there
had been "extreme and excessive pressure
on individuals to change votes." Id. In
spite of these claims, the district court
refused to hold a hearing to determine
whether improper influences on jurors
occurred during deliberations. We
affirmed this ruling stating that under
Fed. R. Evid. 606(b) "a court will not
inquire into the jury’s deliberative
process, including arguments, statements,
discussions, mental and emotional
reactions, and votes, in the absence of a
claim of external influence." Id. Because
the juror’s letter involved only
"intrajury influences on the verdict," we
affirmed the district court’s denial of a
hearing. Id. at 465-66.

  As in Ford, the juror’s questionnaire
answer in the present case did not allege
that any extraneous prejudicial
information was brought to the jury’s
attention or that any outside influence
was brought to bear on any juror.
Further, the district court allowed
Briggs to interview the juror and that
interview confirmed these conclusions. As
we noted in Ford, Rule 606(b) "is
designed not only to protect the jurors
from being pestered by lawyers after the
verdicts are rendered, but also to
protect the judicial process from efforts
to undermine verdicts by scrutinizing the
jurors’ thoughts and deliberations." Id.
at 465. Because both the juror’s
questionnaire and her interview only
allege "intrajury influences on the
verdict during the deliberative process,"
id., we affirm the district court’s
denial of Briggs’ motion./3 See Fed. R.
Evid. 606(b).

  Next, Briggs asserts that reversal is
required because, according to Briggs,
Apprendi, 530 U.S. 466, requires that
prior convictions be charged in the
indictment and submitted to the jury and
proven beyond a reasonable doubt. Briggs,
however, did not raise this claim in the
district court as he specifically agreed
with the jury instructions submitted to
the jury, and accordingly, this argument
is waived on appeal. See United States v.
Cooper, 243 F.3d 411, 415-16 (7th Cir.
2001). Further, even if we were to
conclude that this argument was not
waived, we would still reject it. See
Apprendi, 530 U.S. at 490 ("Other than
the fact of a prior conviction, any fact
that increases the penalty for a crime
beyond the prescribed statutory maximum
must be submitted to a jury, and proved
beyond a reasonable doubt.") (emphasis
added); Almendarez-Torres v. United
States, 523 U.S. 224, 247, 118 S. Ct.
1219, 140 L. Ed. 2d 350 (1998) (holding
that enhancements based on recidivism
need not be established beyond a
reasonable doubt); United States v.
Skidmore, 254 F.3d 635, 642 (7th Cir.
2001) ("Apprendi does not overrule the
holding of Almendarez-Torres that penalty
enhancements based on recidivism need not
be established beyond a reasonable
doubt.").

  Finally, Briggs’ contention that 21
U.S.C. sec. 841 is facially
unconstitutional is meritless. See United
States v. Brough, 243 F.3d 1078, 1080
(7th Cir. 2001) ("[T]here is no
constitutional defect in the design of
sec. 841, and . . . there is no
impediment to convictions under the
statute as written").

III.   Conclusion

  For the forgoing reasons, Briggs’
convictions and sentence are AFFIRMED.

FOOTNOTES
/1 An audio cassette tape of the transaction was
entered into evidence at trial.

/2 Federal Rule of Evidence 606(b) provides:
Upon inquiry into the validity of a verdict or
indictment, a juror may not testify as to any
matter or statement occurring during the course
of the jury’s deliberations or to the effect of
anything upon that or any other juror’s mind or
emotions as influencing the verdict or indictment
or concerning the juror’s mental processes in
connection therewith, except that a juror may
testify on the question of whether extraneous
prejudicial information was improperly brought to
the jury’s attention or whether any outside
influence was improperly brought to bear upon any
juror. Nor may a juror’s affidavit or evidence or
any statement by the juror concerning a matter
about which the juror would be precluded from
testifying be received for these purposes.

/3 Briggs’ attempt to frame this argument as a due
process violation is without merit and does not
warrant discussion.
