In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3932 & 99-3951

United States of America,

Plaintiff-Appellee,

v.

Nathan L. Hill and Cordell James,

Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 730--Charles P. Kocoras, Judge.

Argued May 10, 2001--Decided June 5, 2001


  Before Posner, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Easterbrook, Circuit Judge. Cordell James
and Nathan Hill have been sentenced to
life imprisonment. James, who was
convicted of a single count of conspiring
to distribute drugs, see 21 U.S.C.
sec.846, drew his sentence because of a
combination of his criminal record, the
scale of the operation (more than a ton
of cocaine), and his participation in the
murder of Robert Franklin. Hill received
a life sentence (and a fine exceeding $8
million) for operating a continuing
criminal enterprise, among other crimes.
See 21 U.S.C. sec.848.

  1. Both defendants contend that their
sentences violate the due process clause
because the jury did not conclude that
the evidence establishes beyond a
reasonable doubt the events that led to
the life terms. See Apprendi v. New
Jersey, 

, 

(2000). But Apprendi does not help Hill,
because the maximum sentence for every
person convicted of violating sec.848 is
life. He insists that Apprendi governs
proof of events that determine the
minimum lawful sentence, but we rejected
that contention in United States v.
Smith, 

, 562-66 (7th Cir.
2000). Although United States v. Flowal,

, 936-38 (6th Cir. 2000), is
at odds with Smith (of which the sixth
circuit apparently was unaware), we have
previously declined to reconsider the
holding of Smith and do not find in
Flowal any reason to do so. See United
States v. Hoover, 

, 1058
(7th Cir. 2001); United States v.
Williams, 

, 876-77 (7th Cir.
2001). Flowal does not discuss McMillan
v. Pennsylvania, 

(1986),
which held that judges may find, by a
preponderance, facts that trigger
mandatory minimum penalties. Apprendi did
not overrule McMillan, 

n.13, yet, unless McMillan is to be
discarded, Flowal and its successors, see
United States v. Ramirez, 

(6th Cir. 2001); United States v.
Strayhorn, 2001 U.S. App. Lexis 10513 (6th


Cir. May 22, 2001), cannot be correct.
The sixth circuit is a minority of one,
while Smith has the support of at least
four other circuits--if any support on
top of McMillan were required. See United
States v. Harris, 

(4th Cir.
2001); United States v. Robinson, 

, 122 (1st Cir. 2001); United
States v. Keith, 

, 787 (5th
Cir. 2000); United States v. Aguayo-
Delgado, 

, 934 (8th Cir.
2000).

  James has a stronger claim in principle,
because any sentence over 30 years
depends on finding that a defendant with
a prior drug felony conviction (which
James has) conspired to distribute at
least 5 grams of crack or 500 grams of
cocaine hydrochloride. See 21 U.S.C.
sec.841(b)(1)(B). But James did not ask
at trial that the drug-quantity issue be
submitted to the jury, and he cannot
establish plain error given the volume of
cocaine he and his confederates
distributed. By convicting him, the jury
evinced its finding that James agreed to
distribute more than the statutory
threshold. James’s contention that he
wasn’t lawfully convicted of the
extensive conspiracy charged in the
indictment because, after Apprendi, each
quantity level is a separate offense, was
rejected in United States v. Brough, 

, 1079-80 (7th Cir. 2001). There
is just one drug-distribution offense,
defined by sec.841, and one drug-
conspiracy offense, defined by sec.846.
Quantity affects sentencing but does not
create separate crimes. (Otherwise
someone like James could be convicted of
three conspiracies for the same agreement
and course of conduct, with each
conviction representing the next plateau
of drugs sold--or maybe of six
conspiracies, if the organization
distributed both cocaine and heroin, or
nine conspiracies if it added marijuana
to the inventory.)

  2. The district judge declined to give
Instruction 1.09 from the Federal
Criminal Jury Instructions of the Seventh
Circuit (1999). This instruction reads:

You may find the testimony of one witness
or a few witnesses more persuasive than
the testimony of a larger number. You
need not accept the testimony of the
larger number of witnesses.

Hill called only two witnesses, including
himself, and James called none, so there
was an imbalance in the number of
witnesses presented. (The trial lasted
seven weeks, and the prosecution had
plenty of witnesses.) Defendants seek a
new trial at which this instruction will
be given.

  The premise of defendants’ argument is
that every instruction in Seventh Circuit
Federal Jury Instructions: Criminal must
be given on request. That misunderstands
the function of a pattern book. It offers
model instructions for occasions when
they are appropriate but does not
identify those occasions; the need for an
instruction must be determined
independently. An instruction such as
1.09 might be called for if one side’s
lawyer argued that his client should
prevail because he produced more
witnesses. Then the judge should tell the
jury, perhaps along the lines of
Instruction 1.09, that this is not true,
that quality of evidence counts more than
quantity. No one in this case made a
quantity-over-quality pitch, however, so
there was no need for an antidote.

  Even when a lawyer tries to mislead
jurors about the significance of how many
witnesses have testified, Instruction
1.09 leaves something to be desired:
reasons. It tells jurors that they "may"
do one thing and "need not" do the
opposite, but that just states the
obvious. Of course jurors "may" find the
testimony of a single witness more
persuasive. Any juror who did not think
that to begin with is unfit to serve.
When should jurors find the testimony of
one witness more persuasive? That’s what
matters, and Instruction 1.09 does
nothing to furnish the answer. The
underlying principle is that quality
alone should govern the verdict; ten
weasels are no more persuasive than one.
That’s a thought that district judges
could convey directly--though again the
point is obvious, so usually it is best
left to the jurors’ good sense. Why
insult jurors’ intelligence?

  Jury instructions tend to be long and
full of tedious boilerplate. When the
judge emulates Polonius and recites
gravely what jurors already know, their
attention may wander and they could miss
something that really matters. It is best
to keep the instructions concise, which
is achieved by omitting nostrums and
leaving inferences to arguments of
counsel. United States v. Sblendorio, 

, 1392-94 (7th Cir. 1987).
Unless it is necessary to give an
instruction, it is necessary not to give
it, so that the important instructions
stand out and are remembered.
Instructions that include reasons are
those most likely to make the cut for
utility. See United States v. Cook, 

, 251-52 (7th Cir. 1996); United
States v. Austin, 

, 752 (7th
Cir. 2000). For example, the Federal
Judicial Center’s Pattern Criminal Jury
Instructions (1987) include the advice
not to "make any decisions simply because
there were more witnesses on one side
than on the other" as part of a more
comprehensive instruction (No. 23)
labeled "General Considerations in
Evaluating Witnesses’ Testimony". This
instruction reminds jurors of several
features that make testimony stronger and
treats the quantity advice as a corollary
to the principle that quality matters.
Instruction 1.09 is less useful. Because
nothing hindered the parties from
covering this point in closing arguments
if they deemed it important, the omission
was sensible.

  3. With the aid of standby counsel,
both defendants represented themselves at
trial. James (but not Hill) contends on
appeal that he was deprived of the
assistance of counsel guaranteed by the
sixth amendment. To any person not
steeped in the intricacies of criminal
practice, this contention would be
unintelligible. James made enough money
from his activities to afford a lawyer,
but when he pleaded poverty the court
appointed one for him. Counsel
represented James diligently until
shortly before trial, when James decided
that counsel had not performed to his
(unrealistic) expectations and demanded a
different lawyer. After the district
judge told James that he would not
appoint another counsel at public expense
(especially when a change of lawyers
likely would delay the trial), James
decided to go it alone. The judge threw
cold water on this proposal, but James
persisted, and the judge allowed James to
conduct his own defense. Even then, the
judge insisted that James’s former lawyer
remain in court as standby counsel to
provide assistance on request. How could
someone who had, but then fired, a
competent lawyer--and who enjoyed full
access to the services of that lawyer
throughout the trial, and could have used
them on discovering that the intricacies
of trial were too much for a high school
dropout--contend that he has been
"deprived" of his constitutional right
"to have the Assistance of Counsel for
his defence"?
  No one could doubt that James acted
voluntarily. The judge and prosecutor did
not threaten him with sanctions if he
elected the assistance of counsel, and he
did not choose self-representation as the
only way to be rid of an ineffective
lawyer. What gives some color to James’s
position, however, is the proposition
that, for a right as important as
counsel, voluntariness is not enough. The
decision must meet the standards of
waiver--which means that it must be
knowing and intelligent. See, e.g.,
Faretta v. California, 

, 835
(1975), referring with approval to
Johnson v. Zerbst, 

, 464-65
(1938). Usually the difference between
voluntariness and waiver is demonstrable
knowledge of the right being surrendered
and a formal decision to forego that
right. Compare Schneckloth v. Bustamonte,

(1973) (holding that a
consent to search is voluntary if
uncoerced, even though the suspect has
not been told of a right to say no), with
Miranda v. Arizona, 

(1966)
(holding that during custodial
interrogation waiver of the privilege
against compulsory self-incrimination is
possible only if the suspect is told
explicitly of certain entitlements).

  Waiver does not depend on astute (or
even rudimentary) understanding of how
rights can be employed to best advantage.
Defendants routinely plead guilty,
waiving oodles of constitutional rights,
in proceedings where the rights are named
but not explained. For example, the judge
will tell the defendant that the plea
waives the right to a jury trial but will
not describe how juries work, when they
are apt to find a prosecutor’s case
insufficient, why the process of
formulating and giving jury instructions
creates issues for appeal, and so on.
Judges will mention the right to confront
one’s accusers without describing how
cross-examination can be used to
undermine a witness’s testimony. One
could say that without such details the
defendant’s choice is "unintelligent,"
but that would impose unrealistic demands
on the judicial system (and impute an
unrealistic degree of knowledge to a
monosyllabic answer to the query "Do you
understand all that?"). It is enough that
the judge not mis-inform the parties
about the legal requirements. See Bousley
v. United States, 

(1998).
James does not say that he was
misinformed about his entitlements.
Proceedings where guilty pleas are taken
are subject to the requirement that all
waivers be knowing and intelligent, see
Boykin v. Alabama, 

, 243-44
(1969), so if the right-naming (but not
right-explaining) protocol under Fed. R.
Crim. P. 11 suffices (as it does) for
waiver of jury trial and confrontation,
then a similar approach should suffice
for waiver of the right to counsel.

  The contention that "knowing and
intelligent" means something different
when a defendant elects self-
representation than when the same
defendant elects a bench trial (or waives
another constitutional right) has its
genesis in Faretta, which held that the
Constitution gives defendants a right to
be free of unwanted legal services at
trial. (And only at trial. See Martinez
v. Court of Appeal, 

(2000).)
Faretta constitutionalized, and thus
extended to the states, an entitlement
long recognized in federal courts by
virtue of statute. See 28 U.S.C.
sec.1654. Toward the end of its opinion
in Faretta the Court 

: "Although a defendant need not
himself have the skill and experience of
a lawyer in order competently and
intelligently to choose self-
representation, he should be made aware
of the dangers and disadvantages of self-
representation, so that the record will
establish that ’he knows what he is doing
and his choice is made with eyes open’",
quoting from Adams v. United States ex
rel. McCann, 

, 279 (1942).

  From this statement of preference
("should" is not "must") has grown a
jurisprudence demanding more and more
extensive advice and warnings to impress
on the defendant the drawbacks of
dispensing with counsel. E.g., United
States v. Avery, 

(7th Cir.
2000); United States v. Sandles, 

(7th Cir. 1994); United States v.
Moya-Gomez, 

(7th Cir. 1988).
The Federal Judicial Center’s Benchbook
for U.S. District Court Judges sec.1.02
(4th ed. 1996, with 2000 revisions)
propounds 15 questions. This litany is a
means of discouraging self-
representation, which courts find
inimical to well-functioning trials as
well as hazardous to defendants’ chances
of success. But we doubt that any list
can be mandated. Faretta adopted the
waiver standard of Johnson v. Zerbst,
which noted that the determination
"whether there has been an intelligent
waiver of the right to counsel must
depend, in each case, upon the particular
facts and circumstances surrounding that
case, including the background,
experience, and conduct of the 

. That standard can be met
without a demonstration that the accused
has a deep understanding of how counsel
could assist him. After all, Godinez v.
Moran, 

(1993), holds that
any person competent to stand trial is
able to waive counsel, and the competence
standard is met by persons who are barely
able to understand the proceedings, let
alone recognize how lawyers navigate the
legal shoals.

  Let us inquire, then, whether James knew
"what he [was] doing and [made] his
choice . . . with eyes open." On October
20, 1997, the district court appointed
John Meyer to represent James. Fifteen
months later, at a status conference
devoted to selection of a trial date,
James first expressed dissatisfaction:

James: May I say something?

Court: Yes.

James: I don’t want him [Meyer] working
on my case.

Court: Well--

James: I want him off my case. I don’t
want him working on my case.
Court: I do not--what is the reason for
that?

James: I don’t trust him.

Court: I am here to set the case for
trial. You have been in custody.

James: We don’t agree--

Court: What?

James: We don’t agree on certain things.
That’s all.

Court: Is this--

Mr. Meyer: Judge, this is the first I
have heard of it. I tried to visit Mr.
James last week and he refused a visit.
But I have not had a chance to discuss
this matter with him. But if he wants new
counsel, of course, I have no objection.
Court: Well, I am not going to willy-
nilly grant a request that is presented
for the first time. I mean, if--what I
will let you do is this: I would like you
to discuss it with Mr. Meyer.

James: There is nothing to discuss with
him.

After pending motions had been discussed,
the parties took up the setting of a
trial date, and the conference continued:

Court: I am going to set the case for
March 15th. I think that is both workable
and sufficiently out there for you all to
be ready. And anything anyone wants to
bring to my attention by way of counsel,
I will ask you to do that in writing and
file it with the Court.

Mr. Meyer: Judge, in that regard, I will
visit with Mr. James in the Marshal’s
lockup after our court appearance and if
he directs me to do so, I will file a
motion to withdraw then.

James: You can do that now. I’m not
talking to you about nothin’.

Court: Talk to Mr. Meyer. There is no
reason for you to mistrust him because I
have known him for a long time and he is
a very honorable lawyer. In fact, I used
to work with him in another lifetime. . .
. And I will tell you this, Mr. James: He
is a very effective defense lawyer. I
mean, he fights very hard for his
clients. So, for you to come up with--you
know, there naturally may be differences
between a client and a lawyer on how to
proceed; but, the idea that he would
somehow not be faithful to your case is
absolutely ridiculous, from what I know
of Mr. Meyer. He is a very, very
honorable and able defense lawyer, but
that is my opinion. Okay. March 15th it
is.

  On January 22, 1999, three days after
the status conference, Meyer filed a
motion to withdraw as counsel, stating
that he had conferred with James, who
"reiterated that he did not trust counsel
and further stated that he would refuse
to cooperate with counsel in the defense
of this case." On February 2 the court
postponed the trial for two weeks, until
March 29. On February 17 the district
court held a status conference to take up
once again James’s objections to his
lawyer. The court addressed a letter it
had received from James. Although the
letter has not been made a part of the
record, it is apparent that it concerned
James’s renewed request for a different
lawyer:

Court: Mr. James, I have looked at your
request for new counsel and considered it
and I have also looked at some legal
authorities and considered the whole
state of the case; and, I guess my first
question to you is: In what way are you
claiming that Mr. Meyer has not done
right by you in his representation of
you, since you first mentioned that to
me, I think, perhaps less than a month
ago and it was Mr. Meyer--I recall Mr.
Meyer saying this was the first time he
had ever heard of any dissatisfaction
expressed? So, my question to you is:
What is your complaint about Mr. Meyer?
James: Well, in the letter it says what
my complaint is. That’s why. He talked
about me coming to see you--

Court: About pleading guilty, you
mean?

James: Pleading guilty and talking about
Mr. Hill. He don’t talk about nothing
about my defense.

* * *

Court: And you do not want to follow that
course?

James: Right, I don’t.

Court: Well, he did not say you had to
follow that course.

James: That is true, but I don’t want to
hear that.

Judge Kocoras informed James that it is
appropriate for a defense lawyer to
discuss a plea with a client as a
potential option and that James should
not assume that a lawyer who raises the
possibility of a guilty plea is a poor
advocate. James was unmoved:

James: But I don’t want him on my case.

Court: You don’t want him on your case?

James: No.

Court: Well, this case has been a long
time in the pipeline. He has been
representing you for a long time. He is a
very able lawyer.

James: He hasn’t been coming to see me.

Court: Pardon me?

James: I don’t know what is going on.

Court: What do you mean you do not know
what is going on?

James: He hasn’t been coming to see me
for--I can count on my fingers how many
times he came over to the [prison] to see
me.
Court: Well, I think at some point you
said five times.

James: He’s got too many people he’s
helping out. So, I prefer he helped them
out.

Court: Well, he is appointed in this
case. You do not have a right to have an
attorney appointed that you want, rather
than who is available to represent you. I
know he--Mr. Meyer himself--was rather
surprised that you had taken the
position, and even he requested that--

James: That is the decision I choose.

Court: Pardon me?

James: That is the decision I choose.

Court: That is the decision you choose
and here is the decision I choose: I do
not think you have made out any basis for
me to appoint a different lawyer. This
case has been pending a long time. You
have been in custody a long time. The
other two defendants have been in custody
a long time. We have continued the trial
date regularly for everybody to get ready
for trial. And I do not think it is in
the interests of justice to continue it
any more. And I do not think, quite
frankly, there is a basis to believe that
Mr. Meyer cannot adequately represent
you. And, so, I am going to decline your
request to have a different lawyer
appointed to represent you.

James: I’ll represent myself, then.

Court: Well, that is your choice. I think
that is quite foolish, if I may say so.

James: That is what I’ll do.

Court: I think Mr. Meyer would ably
represent you. But we are too long in the
game to get a new lawyer to review all of
this material. We have had--there is, I
think, material from two different
trials--is that not right--for discovery
purposes.

Government: Yes, Judge.

Court: And to put in a new lawyer now is
to delay this case for probably, who
knows. Six to nine months to a year.

Following that statement, Judge Kocoras
asked James whether he understood the
ramifications of his decision. The judge
stated, among other things, that:
James’s decision to represent himself
was his right,

James’s decision was "foolish,"

the "stakes are very high,"

the court "discouraged that choice,"

"there are disadvantages in a person who
is not a lawyer in representing himself,"

it "is not a wise decision to represent
yourself,"

James "would be better served to have
Mr. Meyer represent [him],"

"just because you are representing
yourself, we are not going to change
[the] rules of evidence or any trial
rules just because you are not skilled or
learned in the law;" and

"the admissibility or inadmissibility of
evidence does not change just because you
are representing yourself."

The prosecutor chimed in with some
additional advice, which the district
judge seconded:

"that choice does not give him any
particular rights or privileges at the
[prison where he was incarcerated]",

"he will be faced with numerous burdens
and roadblocks to defending himself,"

"he will still be bound by the rules of
evidence and procedure and that there
will be no leeway just because he is
representing himself."
When James would not budge from his
position, the judge relieved Meyer but
appointed him as standby counsel to allow
James "to avail himself of Mr. Meyer’s
professional abilities and skills." Meyer
was present and available at trial to
assist James and, in fact, assisted him.
James could have asked Meyer to take over
at any time, but through the end of the
trial James stuck to his decision and
served as his own lawyer. Only now does
he insist that the district judge did not
do enough to enlighten him about the
risks he was assuming.

  James behaved in a pig-headed fashion.
It is hard to imagine that by quoting
from sec.1.02 of the Benchbook or
expatiating about the drawbacks of self-
representation ("a fool for a client. .
.") the district judge could have talked
him out of his decision. The Benchbook
includes questions such as: "Do you
understand that the U.S. Sentencing
Commission has issued sentencing
guidelines that will affect your sentence
if you are found guilty?" and "Do you
understand that the Federal Rules of
Evidence govern what evidence may or may
not be introduced at trial and that, in
representing yourself, you must abide by
those rules?" "Yes" answers to these
questions do not evince understanding of
the complexities that lie ahead. Lists do
not convey knowledge or change minds. It
is hard to imagine any defendant with
even modest resolve responding: "Oh, now
that I know that something called the
’Sentencing Guidelines’ exists, I see the
foolishness of representing myself." No
one supposes that the judge must explain
how the Guidelines work, for the validity
of a waiver does not depend on possession
of a legal education. As Johnson, Adams,
and Faretta show, the question is not
whether the district judge used a check-
off list but whether the defendant
understood his options. All a judge can
do as a practical matter--all a judge
need do as a legal matter--is ensure that
the defendant knows his rights and avoids
hasty decisions. Often asking the
Benchbook questions may ensure that the
defendant has his eyes open, but we do
not read any of this court’s decisions to
hold that the litany is prescribed in
every case or that advice about any
particular disadvantage of self-
representation is essential; such a
reading would put us at odds with the
Supreme Court.

  In or out of the criminal justice
system, people freely assume risks that
they do not fully understand. Anyone who
chooses a profession or a spouse, or
decides to have children, takes chances
subject to more variables than the mind
can juggle. Yet we do not call these
decisions unintelligent; venturing into
the unknown with a sketchy idea of what
lies ahead may be the wisest choice even
when the odds are beyond calculation.
Spelunkers, base jumpers, and investors
likewise brave exposure to unexpected and
unforeseeable events. James was in the
same position--and he knew it, having had
some experience with the legal process
while racking up prior convictions. After
being told that he must comply with all
rules of evidence and procedure, James
was asked whether he understood and
answered: "A little bit." That shows a
sound appreciation of his position (James
did not pretend that he had a legal
education) rather than lack of
intelligent choice. If James was about to
face hazards he could not fully
understand, his election was nonetheless
valid because he knew that he was in
uncharted waters. James could and did
make a knowing and intelligent waiver.
"[T]he competence that is required of a
defendant seeking to waive his right to
counsel is the competence to waive the
right, not the competence to represent


himself." 

(emphasis in original, footnote omitted).

  Even with the aid of counsel on appeal,
and the benefit of hindsight (having
labored through the trial), James does
not contend that there was any missing
bit of knowledge that, if conveyed, would
have led him to change his mind in
February 1999. He really wants another
crack at acquittal, not a more informed
initial decision. Cf. United States v.
Frazier-El, 

, 559 (4th Cir.
2000). Section 1654 and Faretta require
courts to respect a litigant’s demand for
self-determination at the most critical
moment in the criminal process. That
right is not honored if judges must
depict self-representation in such
unremittingly scary terms that any
reasonable person would refuse. (If a
reasonable person would welcome counsel,
then does insisting on self-
representation demonstrate incompetence
to make the decision? To say this,
however, would be to abolish the right of
self-representation.) James knew and
stood on his rights and, having received
his due, cannot complain. A defendant
bullied or frightened into acquiescing in
a lawyer that he would rather do without
would be in a much better position to say
that the choice was not made knowingly or
intelligently.

  4. Defendants present a number of other
arguments. All have been considered, but
none requires discussion.
Affirmed

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In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2432

United States of America,

Plaintiff-Appellant,

v.

Tuan Steward,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-30215--G. Patrick Murphy, Chief Judge.

Argued November 9, 2000--Decided June 5, 2001


  Before Fairchild, Easterbrook, and Manion,
Circuit Judges.

  Fairchild, Circuit Judge. Steward was
charged with possession with intent to
distribute cocaine base, crack, in
violation of 21 U.S.C. sec. 841(a)(1).
The jury acquitted him of that charge,
but found him guilty of the lesser
offense of possession of crack. The court
sentenced him to 21 months’ imprisonment.
The government had sought imprisonment in
the range of 110 to 137 months and
appealed. We affirm.

  A citizen of Alton reported to police
that someone, later identified as Demond
Spruill, had been dealing in drugs all
afternoon, operating a black Ford Escort.
When a customer arrived in the area he
would enter the car with Spruill, the
vehicle would proceed a couple of blocks
while the transaction apparently
occurred, and the passenger would then
exit the vehicle. Later police officers
made a traffic stop of the vehicle.
Spruill was the driver, and Steward the
passenger. Officer Rathgeb approached
from the driver’s side, and Officer Lane
from the front. Lane noticed that Steward
had a piece of yellow paper in his hand
and something else which he moved toward
his mouth. Lane ran to the passenger’s
side of the car, reached inside and
applied pressure to Steward’s throat,
trying to get him to spit out the
substance. Steward dropped the yellow
piece of paper, and Lane saw him drop
something else from his left hand. On
cross-examination Lane testified that in
his experience it is common for people to
carry crack in a folded piece of paper
because they don’t want it to get pushed
into the bottom of their pocket. Officer
Rathgeb testified that he saw Steward
successfully swallow an object and drop a
yellow piece of paper. He saw Steward
drop a clear plastic baggy with his left
hand. It fell on the seat and later onto
the console. He later found that the
baggy contained three other plastic
baggies, each containing a substance he
believed to be crack cocaine. The parties
later stipulated that it contained 8
grams of crack.

  A government witness testified that 8
grams would amount to 40 doses and the
prosecutor argued that Steward had bought
40 doses of crack and that quantity was
evidence that he intended to sell it to
others. The same witness testified on
cross-examination that the three
individual packages contained smaller
rocks, and a purchaser could have picked
out his rock. Defense counsel argued that
Steward got into the car with Spruill,
who handed him the bag. Steward picked
out the rock he wanted and put it in his
little piece of paper. The police appear
and Steward puts the rock in his mouth to
get rid of it, and gives the bag back to
its owner, Spruill.

  The jury convicted of possession on a
verdict form referring to crack, but not
stating a quantity. As Judge Murphy
remarked at sentencing, the defense
theory was that Steward was a mere buyer,
a user, and "the jury thought that was
the case also."

  21 U.S.C. sec. 844(a) contains a number
of authorizations of terms of
imprisonment for simple knowing or
intentional possession of controlled
substances. These are not separated into
paragraphs. We have held that the third
sentence creates a separate crime of
possession of crack, which is not a
lesser included offense of possession
with intent to distribute a controlled
substance. United States v. Hill, 

, 808 (7th Cir. 1999). The
earlier sentences provide terms of
imprisonment for possession of controlled
substances which vary in length according
to prior convictions of drug offenses. If
applied to Steward, with apparently more
than two such convictions, the maximum
imprisonment would be 3 years. We note
that the court’s instruction concerning
the use of the verdict form as to the
lesser offense of possession of crack
appears to have been suggested by
defendant, the point that the form of
verdict should have called for a finding
on possession of a controlled substance,
rather than of crack, has not been argued
here, and it may well be that Steward
waived any such claim. The maximum term
for possession of a controlled substance
would be 3 years.

  Steward did argue at sentencing that
under the third sentence of sec. 844 the
amount of crack possessed should have
been charged and submitted to the jury.
Apprendi v. New Jersey, 

(2000), had not been decided at the time
of trial, but trial counsel relied on
Jones v. United States, 

(1999). Judge Murphy rejected the
argument that the amounts of crack set
forth in sec. 844 were elements of the
offense rather than sentencing factors.
Apprendi was decided before briefs were
filed on appeal, but appellate counsel
did not mention it or the Jones point in
his brief or at oral argument, except on
inquiry by members of the panel. We
consider a claim on the effect of
Apprendi waived.

  In paragraph 22 of the PSR, the
probation officer computed a base offense
level of 26 by assuming, incorrectly,
that Steward had been convicted of
possession of more than 5 grams of
cocaine base, and applying U.S.S.G. sec.
2D1.1. Together with Criminal History
Category V (not in dispute), this leads
to a sentencing range of 110-137 months.
There was clearly an error here in that
the Statutory Index for 21 U.S.C. sec.
844(a) leads to Guideline 2D2.1, which in
(a) provides a base offense level of 8 if
the substance is crack. Subsection
(b)(1), Cross References, provides that
"If the defendant is convicted of
possession of more than 5 grams of
[crack], apply sec. 2D1.1 . . . as if the
defendant had been convicted of
possession . . . with intent to
distribute." Although it is theoretically
possible that one could be convicted of
possessing 8 grams intending only
personal use, the proof and contention in
this case make it very clear, as the
trial judge recognized, that the jury
convicted Steward of possession of only
the small amount he swallowed. The 5-gram
condition for applying U.S.S.G. sec.
2D1.1 was clearly not met.

  In paragraph 17 of the PSR, the
probation officer stated "it appears that
the defendant’s relevant conduct involved
the possession of crack cocaine that he
swallowed (quantity unknown) and the
cocaine base in the form of crack cocaine
(8.0 grams) that he admittedly had in his
possession." Steward objected. The
government argued at sentencing that
Steward exercised control over the
package when he dropped it in an attempt
to hide it, and this was relevant
conduct. Judge Murphy made oral findings
that the defendant’s contact with the
drugs was momentary and that the
government has not shown by a
preponderance of the evidence that he
ever had possession of the entire amount.
He later made written findings that
Steward was merely purchasing the small
amount of crack which he put in his mouth
when the police approached. He noted
evidence that Steward was only one of
Spruill’s customers and found that
Steward possessed less than 1 gram of
crack.

  In this court, the government argued
again that Steward’s holding of the
package in his left hand, however
fleetingly, the resulting control over
it, and dropping it in hope of
concealment established possession of it.
Steward had cited United States v.
Kitchen, 

(7th Cir. 1995),
dealing with possession in the sense of
criminal culpability, and reversing a
conviction. Judge Murphy made several
oral references to comments in Kitchen
concerning lack of evidence "that the
drug transaction was in any sense certain
or complete." The government argues that
Judge Murphy’s finding that Steward did
not possess the 8-gram package was
clearly erroneous because these
references showed his belief that he
could not find possession without finding
ownership. Kitchen surely does not stand
for that proposition, and it is clear to
us that Judge Murphy did not base his
finding on it, but rather on his
conclusion that Steward held the package
only momentarily, and for the purpose of
selecting the crack he desired to
purchase.

  The probation officer included Steward’s
handling and dropping the 8-gram package
as relevant conduct. It is not clear
whether he understood that the jury had
convicted Steward of possession of less
than 5 grams. His reference to an
admission by Steward of possession of the
package could only be based on a highly
ambiguous reference by Steward to "that
dope." Neither the probation officer nor
government counsel explain how, where the
conviction was for possession of 5 grams
or less, the handling, or even
possession, of the 8-gram package would
factor into the computation of the base
offense level. U.S.S.G. sec. 2D2.1
clearly calls for a base offense level of
8 unless the defendant is convicted of
possession of more than 5 grams.
Presumably uncharged possession could
augment the drug quantity under U.S.S.G.
sec. 2D1.1(a)(3), after a conviction of
possession of more than 5 grams, but
nothing in the Guidelines suggests that
where the conviction is for 5 grams or
less, uncharged possession can be used to
make up the difference.

  The judgment is affirmed.