UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4079

DARRYL GLEN RILEY, a/k/a Kendu,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4101

SANTRA LAVONNE RUCKER,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-98-101)

Argued: March 3, 2000

Decided: May 15, 2000

Before WIDENER and KING, Circuit Judges, and James H.
MICHAEL, Jr., Senior United States District Judge for the Western
District of Virginia, sitting by designation.

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Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

ARGUED: Christopher Ford Cowan, COWAN, NORTH &
LAFRATTA, L.L.P., Richmond, Virginia, for Appellant Riley;
Anthony Joseph Vegh, Cleveland, Ohio, for Appellant Rucker. John
Staige Davis, V, Assistant United States Attorney, Sara Elizabeth
Flannery, Special Assistant United States Attorney, Richmond, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

After a trial involving detailed and extensive evidence, appellants
Darryl Glen Riley and Santra Rucker were convicted by the jury of
several counts in the indictment. Of particular interest here was the
conviction on the first count of the indictment, charging them with
conspiring to possess with intent to distribute crack cocaine and pow-
der cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(ii) & (iii). Jurisdiction in this court is pursuant to 28
U.S.C. § 1291.

On appeal, appellants raise numerous issues, but the principal focus
here is on the contention of appellants that the court should have used
a special verdict form concerning Count 1, so that there could be
some distinction between cocaine base (hereinafter crack or crack
cocaine) and powder cocaine, apparently on the belief, not clearly
expressed in the briefs, that there should have been some findings of
the quantity of both crack cocaine and powder cocaine by the jury.
The court finds that this issue on appeal merits discussion.1 After the
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1 In addition to the issue more fully set forth in the following opinion,
the court was also concerned with the prejudicial effects of the admission

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appropriate post-verdict procedures, both Riley and Rucker were sen-
tenced to life in prison. For the reasons that follow, we affirm the con-
victions of the appellants, but remand the case for re-sentencing.

I.

On this indictment, the prosecution was centered on a "drug part-
nership" of New York drug dealer Darryl "Kendu" Riley and his girl-
friend, Santra Rucker, whose association with Rucker was principally
in Virginia. The evidence was replete with detailed transactions show-
ing that Riley purchased multiple kilos of cocaine from various sup-
pliers in New York City, and that he then sold that cocaine, again in
major quantities, to drug dealers in Virginia. Rucker dealt extensively
in drugs in Virginia and developed an extensive clientele among the
crack dealers in rural Westmoreland and Northumberland Counties,
on Virginia's Northern Neck, utilizing in a number of instances the
brokering service of a Rhonda Washington.

On October 10, 1999, a jury found both appellants guilty of several
of the counts in the superseding indictment, by way of a general ver-
dict form. The appellants allege the district court plainly erred in fail-
ing to utilize a special verdict form as to Count 1 of the superceding
indictment. As noted, Count 1 charged the appellants with conspiracy
to distribute fifty grams or more of a mixture and substance contain-
ing a detectable amount of cocaine base ("crack") and five kilograms
or more of a mixture and substance containing a detectable amount
of cocaine powder ("powder"). The general verdict did not distinguish
the charged crack cocaine and the powder cocaine, thus reasonably
indicating a guilt of a conspiracy to distribute both forms. No objec-
tion was made by either of appellants' counsel at the time of the trial.
The appellants now assert that because of the disparity of punishment
between crack and powder cocaine offenses, they should be re-
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into evidence of the videotape of the appellants attending a known New
York drug dealer's funeral. However, the court determined that it was
within the trial court's discretion to admit the tape as the tape showed the
appellants in close association with New York drug dealers in a social
setting. This evidence was particularly relevant in light of the fact that
Rucker testified that she did not associate with the New York dealers.

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sentenced. It is important to note that the finding of guilt is a finding
of guilt of a conspiracy. The fact that that conspiracy alleged both
crack and powder cocaine does not change the fact that the gravamen
of the charge is conspiracy.

II.

Because trial counsel failed to object to the asserted errors at trial,
the court must review the record for plain error pursuant to Fed. R.
Crim. P. 52(b). See United States v. Brewer, 1 F.3d 1430, 1434-35
(4th Cir. 1993). If the error is plain and affects substantial rights, the
court may then exercise its discretion to notice a forfeited error, but
only if the error seriously affects the fairness, integrity, or public rep-
utation of judicial proceedings. See Johnson v. United States, 520
U.S. 461, 466-67 (1997).

When a general verdict form is utilized in relation to a conspiracy
count charging possession and distribution of two or more illegal sub-
stances, a court may be unable clearly to decipher for which sub-
stance, or substances, the jury is convicting the defendant. In the
present case, the jury found by its general verdict the appellants Riley
and Rucker guilty of conspiring to possess with intent to distribute
both crack cocaine and powder cocaine. There are numerous conclu-
sions that could be inferred regarding which substance the jury actu-
ally convicted each appellant of, because of the use of the general
verdict form. The most likely such conclusion is that the jury con-
cluded that the appellants were engaged in a conspiracy which
involved both crack cocaine and powder cocaine. There are other
such conclusions, but they seem much less likely than that set out.
The jury could have decided that Riley was guilty of dealing with
crack cocaine and Rucker guilty of powder or visa versa. The jury
also could have concluded that both appellants distributed only crack,
or that the appellants distributed only powder. However, because the
distinction between the types of controlled substances, and particu-
larly the amounts of each, are factors pertinent in the punishment
phase, it is appropriate for a jury to find the defendants guilty of the
overarching crime of conspiring to possess and distribute one or more
substances, again emphasizing the fact that the gravamen of this count
in the indictment is conspiracy.

                     4
The Supreme Court upheld a sentence based on quantities of both
powder and crack cocaine following a general verdict of guilty with
respect to a conspiracy count that charged possession and distribution
of both substances. See Edwards v. United States , 523 U.S. 511, 513
(1998). The Court recognized that the "Sentencing Guidelines instruct
the judge in a case like this one to determine both the amount and the
kind of `controlled substances' for which a defendant should be held
accountable--and then to impose a sentence that varies depending
upon amount and kind." Id. at 513-14. 2 Thus, when a general verdict
form is utilized in a conspiracy count charging the possession and dis-
tribution of more than one substance, the sentencing judge must deter-
mine the type of substance and amount attributable to each defendant.
In brief, both the kind of cocaine and the amount of each kind become
of particular importance in the sentencing phase of the trial, where
determination of these questions of type and amount is committed to
the sentencing judge. A finding of guilt to such a conspiracy is not
vitiated by the use of a general verdict form.

Edwards, however, is distinguishable from the present case
because here it is possible that the appellants' sentences may have
exceeded the statutory maximum for the lesser offense of powder
cocaine. In Edwards the sentence did not exceed the lesser maximum
penalty. This court has recently addressed this distinction. See United
States v. Rhynes, Nos. 97-4465, 1999 WL 1426103 (Oct. 26, 1999).
In Rhynes, the court recognized that prior to Edwards it had invali-
dated sentences where a general verdict form was utilized when the
indictment charged two offenses in the same count. The rationale
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2 The analysis herein is undertaken without consideration of what appli-
cation the Guidelines' instruction as to "relevant conduct" might have in
this case. As pointed out in Edwards, the Guidelines tell the sentencing
judge that he may take into account in sentencing the defendant's "rele-
vant conduct." Edwards, 523 U.S. at 513. The sentence may include both
the conduct underlying the conviction and "relevant conduct" that is "part
of the same course of conduct or common scheme or plan as the offense
of conviction." Id. (quoting USSG § 1B1.3(a)(2)). Nonetheless, the sen-
tence imposed here, depending on types and amounts of controlled sub-
stances found by the judge, cannot exceed the maximum sentence
prescribed in the statute. As Judge Breyer noted in Edwards, "a maxi-
mum sentence set by statute trumps a higher sentence set forth in the
Guidelines." Id. at 515.

                    5
behind such practice was that it was improper for a judge to impose
a sentence based on two different substances where the sentence
might exceed the statutory maximum penalty for the lesser substance,
but where the jury may have intended only to find the defendant
guilty of the lesser offense. Id. at *31; United States v. Quicksey, 525
F2d 337 (4th Cir. 1975). This court determined that Edwards did not
overturn this practice, as the Supreme Court noted that the outcome
in Edwards would have been different if the defendants' sentences
exceeded the statutory maximum for the lesser offense: "That is
because a maximum sentence set by statute trumps a higher sentence
set forth in the Guidelines." Id. at *30 (quoting Edwards, 523 U.S. at
515 (citing U.S.S.G. § 5G1.1)). In reconciling the Edwards decision
with this court's common practice, the court held that "no defendant
could be sentenced for more than the statutory maximum for the least-
serious, single-drug conspiracy of which he may have been con-
victed." Id. at *31.

Under the statute, it is possible, depending on the amount of crack
or powder cocaine, or both, possessed and distributed by each appel-
lant, that the maximum penalty under the lesser offense, here assumed
to be the penalty for powder cocaine, may be less than life imprison-
ment. However, it is also possible that the maximum sentence for
powder, depending on the amount, may be life imprisonment.3 From
argument of counsel, it might be inferred that the latter is more likely
the case. However, it is not proper for this court on this record to
determine what the maximum penalty should be, since such a deter-
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3 The permutations involved in determining the answers raised by the
analysis above are numerous, but may be summarized by stating that the
court below must determine the amount of crack cocaine attributable to
each of the defendants, the amount of powder cocaine attributed to each
of the defendants, and from those determinations, based on those
amounts, find the appropriate sentence for each of the defendants. If the
amounts of crack cocaine and powder cocaine attributed to each of the
defendants is sufficient in quantity to invoke the life sentence term, then
that concludes the matter. On the other hand, if one or both of the defen-
dants should be found to have possessed less than that amount of crack
or powder cocaine, then the statutory maximum sentence for the lesser
amount, whether of crack or of powder cocaine, must be imposed as to
each defendant, again depending on the amount of each substance attrib-
utable to each defendant.

                    6
mination would involve a finding of fact as to the amount of crack or
powder cocaine attributable to each appellant. Because at sentencing,
the judge did not attribute a drug weight for the two kinds of cocaine
for each appellant,4 such fact finding should not be undertaken by this
court. Thus, the case is remanded to the sentencing court for the
imposition of a sentence for each appellant in accordance with the
Rhynes decision.

III.

Based on this court's ruling in Rhynes, the court finds that it must
remand the case for re-sentencing of both appellants on this issue
alone. The court has carefully reviewed the many remaining assign-
ments of error, but finds that they have no merit. Accordingly, all
other decisions of the district court are affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
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4 Determination of such drug weight is an essential element in fixing
the sentence in any given drug case -- a matter committed to the sen-
tencing judge for determination.

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