United States v. McGee (326 F. Supp. 2d 1228, 2002)

Citations

326 F. Supp. 2d 1228

Full opinion text

ORDER

HOLMES, District Judge.

This matter comes before the Court for sentencing of Defendant Malcom Derome McGee in accordance with the opinion of the Tenth Circuit Court of Appeals entered May 29, 2002.

On November 1, '2000, following three days of trial, Mr. McGee was convicted under a three-count Indictment. The sole remaining issue is whether to sentence Mr. McGee for a single violation of 21 U.S.C. § 843(b) pursuant to his conviction under Count Three of that Indictment.

The procedural history of this case has been addressed at length with the parties and is set forth in detail in the Court’s order of October 22, 2002 (the “Order”). A copy of the Order is appended hereto as Attachment 1.

Pursuant to the Order, the Court requested the parties to respond, inter alia, to the following question:

1. Whether the law of the Tenth Circuit is as follows:

i. With respect to a one-count indictment that refers to multiple violations of federal law, a defendant can only be sentenced for a single violation because a “count” in an indictment can, under no circumstances, result in more than a single violation;

ii. this is true even if evidence of multiple violations is adduced at trial without objection, the question is posed to the jury on a verdict form without objection, and the jury returns a verdict of multiple violations without objection; and

iii. an indictment that includes a count of unlawful use of a telephone or other communication device, but that fails to identify the specific telephone call charged, does not give adequate notice of which telephone call forms the basis of the alleged violation at issue.

The Government responded that the answer on behalf of the United States was “yes” to questions (i) and (ii); the answer on behalf of the United States was “no” to question (iii). The United States’ responses to these questions are hereby acknowledged for the record. For the reasons set forth in the Order, the Court disagrees with the United States with respect to questions (i) and (ii).

The Court believes that every attorney has a duty to ensure the integrity of the appellate process. As fully described in the Order, the Court finds that the attorneys failed to meet that duty here. The basis for the Court’s decision, as well as relevant portions of the record, including Court orders, were never presented to the appellate Court. The issue was misstated by Petitioner, and confessed by the United States, and the materials submitted by the parties did not accurately reflect the record in the case. As a result, the Court of Appeals was never given the opportunity to consider this Court’s decision and, more importantly, the question of law embodied in that decision. The parties’ actions caused the system to fail, and the attorneys must consider their respective responsibilities to the legal system to avoid any such failure in the future.

III

The Court further believes that every judicial officer has a duty to ensure the integrity of the appellate process. First, the Court must give all parties a full and fair opportunity to make a record before the trial court, and to frame issues for possible appeal. In addition, the Court has a high burden to fully explain the bases for its decisions. In this regard, the parties and the Court share a mutual obligation to record each matter of disagreement and to expressly identify the legal and factual basis for such disagreement.

A further responsibility of this Court to the appellate process is involved in this case — the responsibility to respect and implement the mandate of the Court of Appeals. In a case in which the parties failed to discharge their duty to the Court of Appeals, the Court should not further dishonor the appellate process by disregarding the mandate. In short, two wrongs do not make a right.

Sentencing in this matter is set for December 4, 2002, at 9:30 a.m., at which time Mr. McGee will be sentenced for a single violation of 21 U.S.C. § 843(b).

IT IS SO ORDERED.

ATTACHMENT 1

(to Order of December 3, 2002)

ORDER

On April 5, 2001, the Court sentenced Defendant Malcom Derome McGee, inter alia, to a term of imprisonment of 56 years pursuant to a jury verdict finding beyond a reasonable doubt that Defendant committed seven (7) separate violations of 21 U.S.C. § 843(b). Judgment was entered in the case on April 19, 2001, and Defendant McGee filed his notice of intent to appeal on April 27, 2001. By judgment filed May 29, 2002, the Court of Appeals for the Tenth Circuit reversed the sentence imposed by the Court and remanded the case for resentencing. A hearing was scheduled for October 4, 2002.

On August 19, 2002, the Court directed the attorneys of record for the October 4 hearing as follows:

... to file, no later than September 27, 2002, a detailed joint statement of the case setting forth all relevant facts, pleadings (including the indictment), excerpts from pleadings, colloquies, instructions, verdicts and motions in this matter pertaining to the issue of the sentencing of defendant McGee for seven (7) separate violations of Title 21 U.S.C. § 843(b). Such statement shall describe all the relevant events and rulings in chronological order. The indictment, all orders entered by the court, and all statements contained in transcripts of Court proceedings shall be quoted in their entirety as they relate to this issue.

(08/19/92 Order.)

On September 27, 2002, the parties filed a document entitled “Joint Statement of the Case.” On September 30, 2002, the Court issued an order explaining that the signatories’ had failed to comply with the Court’s August 19, 2002, order and directed the signatories to cure their failure by submitting a complying document no later than noon on October 3, 2002. On October 3, 2002, the parties filed a “Supplemental Joint Statement of the Case.” At the hearing on October 4, the Court noted that this document also failed to comply with the Court’s August 19 order. On October 15, 2002, pursuant to the Court’s order of October 4, 2002, the signatories filed a “Second Supplemental Joint Statement of the Case.” A copy of that document is attached hereto as Appendix 1.

Based on the record in the case, the Court finds as follows:

1.On August 8, 2000, the Grand Jury in the Northern District of Oklahoma returned a three-count Indictment (the “Indictment”) against Malcom McGee, which provided in applicable part as follows:

Count I

[21 U.S.C. § 846]

Beginning in or around July, 2000,' the exact date being unknown to the Grand Jury, and continuing until July 15, 2000, in the Northern District of Oklahoma, and elsewhere, MALCOM DEROME McGEE, aka “Malik”, aka “Mike McGee”, defendant herein, did knowingly and intentionally conspire, confederate and agree with others, both known and unknown to the Grand Jury, to commit offenses against the United States, in violation of Title 21, United States Code, Section 846, as follows:

* * ■ * * * *

2. To use interstate communication facilities, that is a telephone, in committing and/or causing, or facilitating the commission of acts constituting a felony under Title 21, United States Code, Section 841(a)(1), in violation of Title 21, United States Code, Section 843(b).

******

MEANS AND METHODS OF THE CONSPIRACY

The objects of the conspiracy would be accomplished and were accomplished as follows: ,

ifc # # ;]j *

3. The Defendant MALCOM McGEE, and others known and unknown to the Grand Jury, would and did utilize telephones (cellular and otherwise), and paging devices, in order to communicate with others regarding the possession and delivery of the Phencyclidine (PCP).

O VERT ACTS

To effect the objects of the conspiracy, the defendant and other co-conspirators committed various overt acts within the Northern District of Oklahoma and elsewhere, among which were the following:

10. Between on or about July 14 and 15, 2000, the courier placed a series of telephone calls from Tulsa, Oklahoma to MALCOM McGEE, the defendant herein, via cellular telephone number and pager number that McGEE had provided. MALCOM McGEE, the defendant herein, also placed a series of telephone calls to the courier while located in Tulsa, Oklahoma, within the Northern District of Oklahoma. The purpose of the telephone calls was to discuss the possession and delivery of the Phencycli-dine (PCP). During these calls, the need for money by the courier was discussed. It was further discussed that MALCOM McGEE, the defendant herein, would be traveling to Tulsa, Oklahoma to take possession and delivery of the 2000 milliliters of Phencyclidine (PCP).

* * # * * *

COUNT THREE

[21 U.S.C. § 843(b) ]

On July 14, and 15, 2000, in the Northern District of Oklahoma, MALCOM McGEE, defendant herein, did knowingly, intentionally, and unlawfully use a communication facility, that is a telephone, in committing, causing, and facilitating the commission of an act constituting a felony under Title 21, United States Code, Section 841(a)(1), in that the defendant used the telephone to discuss various matters concerning Schedule III Controlled Substance. All in violation of Title 21, United States Code, Section 843(b).

2. The Indictment did not limit the charge to a single telephone call or a single violation of the statute, but instead plainly referred to multiple telephone calls over a period of two days. The Indictment did not identify any specific telephone call as forming the basis for an alleged violation of 21 U.S.C. § 843(b).

3. Defendant did not object to the Indictment as providing insufficient notice of the crime charged, or otherwise move for a bill of particulars seeking to identify the particular call or calls at issue.

4. At trial, the United States introduced evidence of ten (10) separate telephone calls which were recorded and introduced as Exhibits 9 and 10. The evidence included tape recordings of seven (7) separate telephone calls between Defendant and the United States’ primary witness, Ramona Hampton. Defendant did not object to the introduction of this evidence.

5. In its closing argument, the United States argued that the jury should give great weight to the multiple telephone calls introduced into evidence in the case and, in particular, the taped telephone calls reflected on Exhibits 9 and 10.

6. Neither the United States nor Defendant submitted any proposed instructions to require that the jury unanimously agree on a single specific telephone call in order to form the basis for a violation of 21 U.S.C. § 843(b).

7. Without objection by the parties, the Court’s instructions to the jury did not contain any instruction that required the jury to unanimously agree beyond a reasonable doubt to a single specific telephone call in order to form the basis for a violation of 21 U.S.C. § 843(b).

8. A single Verdict Form was submitted to the jury without objection. With respect to this issue, the Verdict Form provided in its entirety as follows:

VERDICT FORM

We the Jury, duly impaneled and sworn in the above case, find as follows:

# * * * tfs *

COUNT THREE

Use of an interstate communication facility in committing, causing or facilitating a violation of Sections 841(a)(1) and 841(b)(l)(A)(iv) of Title 21 of the United States Code.

NOT GUILTY_ GUILTY_

If you found Defendant “Guilty” on this Count Three, please enter the number of telephone calls you have determined beyond a reasonable doubt that were made in violation of Section 843(b) of Title 21 (use of an interstate communication facility) for the purpose of committing, causing or facilitating a violation of Sections 841(a)(1) and 841(b)(l)(A)(iv) of Title 21.

NUMBER_

9. The jury marked an “X” on the line indicating “guilty,” and placed a “7” on the line specifying the number of telephone calls that the jury determined beyond a reasonable doubt were made in violation of 21 U.S.C. § 843(b).

10. On March 1, 2001, the Court ordered the United States Probation Office (“Probation Office”) to prepare a presen-tence investigation report (“PSI”) consistent with the jury’s verdict that Defendant was guilty of seven (7) separate violations of 21 U.S.C. § 843(b). That order stated in its entirety as follows:

ORDER

The Court hereby continues the sentencing of Defendant Malcom McGee scheduled for March 2, 2001. Sentencing is reset for April 5, 2001, at 9:30 a.m. Sentencing is continued to allow time for the appropriate amendments to be made to Defendant’s Pre-sentence Report, and, if necessary, the filing of objections to the amended Pre-sentence report. The amendments to the Pre-sentence Report shall consist of: (1) the effect of the Court’s arrest of judgment on Count One, entered this date; (2) a computation of the appropriate sentence under Count Three for each of the seven (7) offenses defined in 21 U.S.C. § 843, as found by the jury and noted on the Verdict Form; (3) a notation of the Court’s ability to require consecutive sentences for each of the seven (7) offenses under 21 U.S.C. § 843, each of those sentences to run concurrently with the sentence at Count Two, pursuant to U.S. Sentencing Guidelines Manual § 5G1.2; and (4) an increase in the Special Assessment fee to reflect that Defendant was found guilty of a total of eight (8) offenses against the United States.

11.Thereafter, Defendant objected to the Court’s sentencing Defendant for seven (7) separate violations of 21 U.S.C. § 843(b). The Supplemental Statement of the Case filed by the parties on October 3, 2002, described Mr. McGee’s argument in this regard as follows:

On March 29, 2001, McGee, through Mr. Schisler, filed Objections to the revised PSI, specifically objecting to the Probation Office’s calculation of the sentencing options for Count Three, arguing in effect, that the language of Count Three gave the defendant no notice of the possibility of seven (7) separate convictions springing from one single count. The seven phone calls merely advised the defendant that the prosecutor could have filed separate charges for each phone call, but instead chose to file a single count. McGee’s objection went on to argue that the notion that a special verdict form could substitute for the notice provided by the Bill of Indictment to charge multiple violations of Title 21 United States Code § 843(b) is “at loggerheads with the doctrine of due process as set out in the 5th and 14th Amendments to the Constitution and the notice requirement of the 6th Amendment.”

12. At sentencing on April 5, 2001, the United States joined Defendant’s objection to sentencing Defendant for seven (7) separate violations of 21 U.S.C. § 843(b), arguing as follows:

MR. RALEY: Your Honor, if I may before I address the Court with the next motion, just for purposes of the record with regard to Count three issue, if I might have a brief comment. That the government would concur with the defendant’s argument regarding how the Indictment was charged. And for purposes of the Apprendi issue, I believe as an exercise of caution, we did submit that particular verdict form to the jury and they did come back with a finding of seven particular phone calls, but it would be our argument that we did charge a one count 843 and not the seven particular offenses. And I would like to make that record.

******

THE COURT: Would you find yourself in disagreement with the idea that the jury found beyond a reasonable doubt that there were seven separate violations of that statute.

MR. RALEY: No, Your Honor.

THE COURT: That’s what they found; right?

MR. RALEY: Yes, Your Honor.

THE COURT: All right. And they found it under Count three, right?

MR. RALEY: Yes, Your Honor.

(Sentencing Hr’g Tr. at 14-15.)

13. Pursuant to, and in accordance with, the jury’s verdict, the Court sentenced Defendant to eight (8) years for each of the seven (7) separate violations determined by the jury beyond a reasonable doubt, for a total of 56 years. The parties do not dispute that, in light of the applicable enhancement, eight (8) years is the proper sentence for a single violation of 21 U.S.C. § 843(b). Therefore, if the jury properly returned a verdict for seven (7) separate violations of 21 U.S.C. § 843(b), 56 years would be the proper sentence.

14. Defendant McGee filed his notice of intent to appeal on April 27, 2001.

15. On September 4, 2001, Defendant filed his brief with the Court of Appeals. With respect to this issue, that brief provided in its entirety as follows:

II. THE SENTENCE IMPOSED UNDER COUNT 3 WAS ILLEGAL

A. Standard of Review

An appellate court views the legality of a sentence de novo. United States v. Dunn, 946 F.2d 615 (9th Cir.1991).

B. Discussion

This issue was raised at sentencing when the defendant objected to the imposition of a sentence higher than the statutory maximum. Said objection was overruled. Sent. Tr. 2-16.

The defendant was convicted under Count 3 of the indictment for using a communication facility to facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b). Since the defendant had one or more prior convictions, his punishment could not be more than 8 years pursuant to 21 U.S.C. § 843(d). USSG § 5Gl.l(a) provides that when sentencing on a single count of conviction, where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence. Judicial interpretation of USSG § 5Gl.l(a) confirms its clarity. When the guidelines are higher than the statutory maximum, section 5Gl.l(a) comes into play and reduces the sentence to the statutory maximum. United States v. Cook, 938 F.2d 149 (9th Cir.1991). The statutory maximum displaces any higher guideline sentence, regardless of the status of the offender. United States v. Dunn, supra.

The defendant submits that his sentence under Count 3 should have been the statutory maximum of 8 years and not 56 years as imposed by the trial court.

16. On October 22, 2001, the United States filed its response brief with the Court of Appeals. With respect to this issue, that brief provided in its entirety as follows:

The government asserts that the sentence McGee received was illegal and improper. McGee was convicted after jury trial as to Count Three of the Indictment, which charged him with: knowingly, intentionally and unlawfully using a communication facility, (a telephone), in committing, causing, and facilitating the commission of a felony under Title 21, United States Code, Section 841(a)(1), pursuant to 21 U.S.C. § 843(b); in that he used a telephone to discuss various matters concerning the possession with intent to distribute and distribution of phencyclidine (PCP). (Doc. 7). [Fn. 4 Count Three of the Indictment alleged one (1) count of a violation of Title 21, United States Code, Section 843(b).]

The issue with regard to Appellant’s sentence and objection to the Presen-tence Investigative report (PSI) arose during sentencing on April 5, 2001, specifically a change in the PSI involving the punishment range for the conviction on Count Three. The PSI dated February 26, 2001, treated Count Three as one individual count of conviction, as it was alleged in the Indictment. However, the revised PSI, dated March 1, 2001, treated Count Three as seven individual counts of conviction, by virtue of the verdict form sent to the jury, asking the jurors to determine how many particular telephone calls were made. [Fn. 5 The jury found that seven particular telephone calls were made in violation of Title 21, United States Code, Section 843(b).] See Attachment A, Presen-tence Investigative Report, dated February 26, 2001 and Attachment B, Revised Presentence Investigative Report, dated March 1, 2001, and Sentencing Transcript of April 5, 2001 (Vol. VI, pp. 2-16).

According to the February 26, 2001, PSI, the Appellant could have been sentenced up to 8 years, pursuant to 21 U.S.C. § 843(d), due to Appellant’s prior drug conviction. The Sentencing Court overruled Appellant’s objections to the revised PSI, dated March 1, 2001, and sentenced the Appellant to a term of eight (8) years to be imposed for each of the seven offenses, to run concurrently, for a total of 56 years. (Sentencing Trans., Vol. VI, p. 26).

Count Three of the Indictment charge McGee with one (1) count of a violation of 21 U.S.C. § 843(b), and provided for a statutory maximum sentence of eight (8) years.

A sentence is illegal if it exceeds the statute under which the charge is alleged or, in other words, is one which the judgment of conviction does not authorize. United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954); United States v. Peredo, 884 F.2d 1029, 1031 (7th Cir.1989); see also, Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962).

United States v. Savely, 814 F.Supp. 1519 at 1523.

As applied in this case, McGee was charged in Count Three, with one count of a 21 U.S.C. § 843(b) violation, providing for a statutory maximum sentence of eight (8) years, based upon his previous drug conviction. The Sentencing Court improperly sentenced McGee to fifty-six (56) years, based upon a jury determination that McGee made a total of seven different telephone calls. This sentence is improper, illegal and should be remanded to the district court for resen-tencing consistent with the statutory maximum sentence for the count of conviction, eight (8) years.

17. By judgment dated May 29, 2002, the Court of Appeals entered its opinion regarding Defendant’s appeal. With respect to this issue, that opinion stated in its entirety as follows:

With respect to his sentence, Mr. McGee was indicted and convicted under 21 U.S.C. § 843(b) of only one count of using a telephone to facilitate the commission of the § 841(a)(1) felony. A violation of §' 843(b) has a maximum statutory sentence of eight years. Contrary to the indictment, the revised presen-tence investigation report (PSI) treated Count 3 as having charged one violation for each of the seven telephone calls Mr. McGee made to Ms. Hampton. Relying on the revised PSI, the district court sentenced Mr. McGee for seven convictions, imposing eight-year sentences with respect to each telephone call for a total of fifty-six years.

“We review the district court’s factual findings regarding sentencing for clear error and review its legal interpretation of the Sentencing Guidelines de novo.” United States v. Arevalo, 242 F.3d 925, 927 (10th Cir.2001). Mr. McGee argues, and the government agrees, that the maximum possible sentence on Count 3 is eight years because the indictment charged Mr. McGee with only one violation of § 843(b). The revised PSI incorrectly assessed seven violations of the statute and the district court sentenced Mr. McGee accordingly. Consequently, we reverse the sentence imposed by the district court and remand for resentenc-ing on Count 3.

18. Defendant argues, and the United States agrees, that Defendant’s brief to the Court of Appeals “mirrored” Defendant’s argument made to this Court in connection with Defendant’s sentencing on the seven (7) separate violation of 21 U.S.C. § 843(b).

19. Defendant argues, and the United States agrees, that a full and fair record with respect to this issue was before the Court of Appeals, notwithstanding the fact that the record did not contain either the Verdict Form or the order of March 1 directing the Probation Office to prepare a PSI consistent with the jury verdict reflected on that Verdict Form.

20. Defendant argues, and the United States agrees, that the opinion of the Court of Appeals, therefore, decided in Defendant’s favor the issues raised by Defendant at sentencing in his March 29, 2001, objections to the revised PSI. Those objections stated as follows:

Mr. McGee also objects to probation officer’s calculations in regards to sentencing options for Count Three, as stated in paragraphs 48, 49, 51, 52, 55 and 56. In these paragraphs, the probation officer contends that Count Three consists of seven separate offenses, each of which carries its own set of punishments— prison time, supervised release, Special Monetary Assessments and fines. It is counsel’s understanding that this calculation is reflective of the information provided to the parties in the Court’s order (filed and entered March 1, 2001; Document # 40).

While counsel would agree that 21 U.S.C. § 843 states “... each separate use of a communication facility shall be a separate offense under this subsection ... ”, this statutory language does not compel a finding of seven separate felony convictions. The language simply provides the prosecuting authority the option of filing seven separate charges. The language of Count Three, even read in conjunction with 18 U.S.C. § 843(b), gives the defendant no notice of the possibility of seven separate convictions springing from this single count. It merely advises the defendant that the prosecutor could have filed a separate charge for each provable use of a telephone, but chose instead to file a single count.

The fact that the jury found seven separate incidents of use of a telecommunications facility is also not compelling on this issue. The notion that a special verdict form could substitute for the notice provided by a true bill of indictment charging multiple violations of 18 U.S.C. § 843(b) is at loggerheads with the doctrine of due process as set out in 5th and 14th Amendments to the Constitution and notice requirement of the 6th Amendment.

Further, pursuant to an application of the guidelines, had the government charged each phone call as a separate count, the guideline for a phone count, U.S.S.G. § 2D1.6, refers back to the

guideline for the underlying offense, § 2D1.1, which requires that the related offenses be grouped. In such a scenario, Mr. McGee’s required sentence would be that for one violation of 21 U.S.C. § 843(b).

Conclusion

Mr. McGee’s potential sentence for Count Three should be as it was described in the Presentence Investigation Report of February 26, 2001. A sentence beyond that range would be inappropriate for the reasons stated above.

(Mr! McGee’s Objections to PSI filed March 29, 2001.)

21. Defendant argues, and the United States agrees, that the Court of Appeals sustained these arguments made by Defendant at sentencing by the following language in its opinion:

With respect to his sentence, Mr. McGee was indicted' and convicted under 21 U.S.C. § 843(b) of only one count of using a telephone to facilitate the commission of the Sec. 841(a)(1) felony.

❖ . sR ,5R . & ❖ ❖

Mr. McGee argues, and the government agrees, that the maximum possible sentence on Count Three is eight (8) years because the indictment charged Mr. McGee with only one violation of § 843(b).

22. If the position advanced by Defendant and the United States is correct, the opinion of the Court of Appeals has established the law of the Tenth Circuit as follows: (i) with respect to a one-count indictment that refers to multiple violations of federal law, a defendant can only be sentenced for a single violation because a “count” in an indictment can, under no circumstances, result in more than a single violation; (ii) this is true even if evidence of multiple violations is adduced at trial without objection, the question is posed to the jury on a verdict form without objection, and the jury returns a verdict of multiple violations without objection; and (iii) an indictment that includes a count of unlawful use of a telephone or other communication device, but that fails to identify the specific telephone call charged, does not give adequate notice of which telephone call forms the basis of the alleged violation at issue.

23. Contrary to the position advanced by Defendant and the United States, which each claims was upheld by the opinion of the Court of Appeals, this Court believes as follows:

i. Defendant was charged in the Indictment with making more than one telephone call over a period of two days in violation of 21 U.S.C. § 843(b).

ii.' Defendant was on full and fair notice of defending against multiple telephone calls based on the clear language of the Indictment.

iii. The Indictment did not identify any single telephone call. Thus, the Defendant was not on notice of any particular telephone call in this case.

iv. The United States introduced evidence of multiple telephone calls at trial, without objection. See Exhibits 9,10.

v. Among these telephone calls were seven (7) calls that were recorded by law enforcement officials between Defendant and the United States’ primary witness, Ramona Hampton. These seven (7) calls were played for the jury on two tapes, Exhibits 9, 10. Each such a telephone call, standing alone, would support a separate violation of 21 U.S.C. § 843(b).

vi. The United States argued throughout trial that Defendant was responsible for multiple telephone calls in connection with this drug transaction.

vii. The United States never argued to the jury that Defendant was legally responsible for only a single telephone call.

viii. Neither Defendant nor the United States submitted a proposed jury instruction to the Court that would have required the jury to identify a single telephone call, and thereby make clear that all members of the jury must unanimously agree beyond a reasonable doubt on the same telephone call that formed the basis for a conviction under 21 U.S.C. § 843(b).

ix. The United States, after reviewing the Verdict Form, and stating for the record that it had no objection to that Verdict Form, argued in closing that the jury should give careful consideration to the multiple telephone calls in evidence, and in particular, the telephone calls on the tapes. The United States’ closing argument never suggested that Defendant could be found guilty of only a single telephone call or that the jury should identify beyond a reasonable doubt the single specific telephone call that would form the basis for a conviction under 21 U.S.C. § 843(b).

x. The United States and Defendant each approved the Verdict Form without objection.

xi. By completing the Verdict Form, the jury returned a verdict of seven (7) separate violations of 21 U.S.C. § 843(b) beyond a reasonable doubt, which, under the statute, supports a sentence for eight (8) years for each such violation, for a total of 56 years. Thus, the sentence imposed by the Court in this case, based on the jury’s verdict for seven (7) separate violations of the statute, was authorized by law.

xii. The United States and Defendant communicated with each other prior to filing their respective briefs on this issue to the Tenth Circuit Court of Appeals, and thereafter engaged in concerted action with the intention of overturning the judge’s sentence of 56 years for the seven (7) separate violations of 21 U.S.C. § 843(b).

xiii. In furtherance of their mutual intention, the United States and Defendant selectively designated only portions of the record, in clear violation of the Tenth Circuit Rules, and submitted briefs which contain material omissions (e.g. appellant’s failure to mention the jury’s verdict beyond a reasonable doubt of seven (7) separate violations of 21 U.S.C. § 843(b)) and misrepresentations (e.g. appellee’s representation that Count Three in some way specified a single violation of 21 U.S.C. § 843(b), coupled with appellee’s deletion of the Indictment’s references to telephone calls made over a period of two (2) days) about this issue. Appellant and Appellee were secure in the knowledge that such omissions and misrepresentations would not be challenged by the other side. As a result, the Court of Appeals was mislead about the substance of this issue.

xiv. Having mislead the Court of Appeals regarding the substance of the issue, the United States and Defendant now claim that the Court of Appeals in fact decided this issue in Defendant’s favor as presented by Defendant at sentencing

xv. If, and to the extent that, the opinion of the Court of Appeals, arguendo, decided the issue in the way the United States and Defendant claim, the Court respectfully disagrees.

24. If the jury returned a verdict of guilty for only a single violation of 21 U.S.C. § 843(b) under the opinion of the Court of Appeals in this case, as claimed by Defendant and the United States, such a verdict arguably is infirm. First, the Indictment provided no notice to Defendant of which telephone call was the basis for the charge. According to Defendant’s argument at sentencing, and again at the October 4 hearing, such a failure of notice is “at loggerheads with the doctrine of due process as set out in the 5th and 14th Amendments to the Constitution, and the notice requirement of the 6th Amendment.” Second, the United States argued multiple telephone calls and never specified which telephone call was referenced in the charge. To the contrary, the United States argued throughout, and particularly in closing, that the jury should consider multiple telephone calls. Third, the jury was not instructed to identify a specific telephone call as forming the basis of a guilty verdict for a violation under 21 U.S.C. § 843(b). Finally, in its brief to the Court of Appeals, Defendant did not present in. any way the jury’s verdict beyond a reasonable doubt of seven (7) separate violations of 21 U.S.C. § 843(b), and the United States presented this verdict only as “... asking the jurors to determine how many particular telephone calls were made.” If, arguendo, counsel’s presentations were accurate, then there was no unanimous finding by the jury with respect to a single specific telephone call that forms the basis for a guilty verdict under 21 U.S.C. § 843(b).

25.Defendant argues, and the United States agrees, that in light of the record of this case and the opinion of the Court of Appeals based on that record, the law of this circuit is as stated in Paragraph 22 above.

26. Assuming, arguendo, that the parties are correct, that the law of the Tenth Circuit is as stated in Paragraph 22 above, the United States is nevertheless not relieved of its responsibility to ensure that the jury determines beyond a reasonable doubt which of the multiple telephone calls formed the basis of a ’guilty verdict under 21 U.S.C. § 843(b). The parties agree that no. such determination was made in this case.

27. The United States has represented that officials in the Department of Justice were apprised of the - legal position advanced by the United States in this case.

Based on the above, the Court hereby orders the United States and Defendant to brief the following three issues: (1) whether the law of the Tenth Circuit is as stated in Paragraph 22 above; (2) if so, whether this Court should vacate the jury’s verdict of guilty on Count Three because (i) the United States did not give adequate notice of the specific telephone call that formed the basis for the alleged violation of 21 U.S.C. § 843(b), and (ii) the jury did not unanimously identify beyond a reasonable doubt, pursuant to proper instructions, which specific telephone call formed the basis of the violation under 21 U.S.C. § 843(b); and (3) whether, in light of the misleading presentation of the issue to the Court of Appeals, and the potentially significant effect of that court’s opinion, the integrity of the judicial process has been compromised such that a recall of the mandate in this case is appropriate. The parties are ordered to file simultaneous briefs on these three issues no later than November 12, 2002, and to file simultaneous response briefs no later than November 25, 2002.

Due to the potentially far-reaching impact of this issue on the United States throughout the Tenth Circuit, the Court orders that the United States’ briefs be signed by an official of the Department of Justice in Washington, D.C. certifying that the views contained therein are those of the Attorney General of the United States.

The hearing currently set for October 25, 2002, is hereby stricken. This matter is hereby set for hearing on December 4, 2002, at 9:30 a.m.

IT IS SO ORDERED.

APPENDIX 1

(to Order of October 22, 2002)

SECOND SUPPLEMENTAL JOINT STATEMENT OF THE CASE

COME NOW the parties, in response to this Court’s order of October 4, 2002 and submit the following:

1. On or about August 8, 2000 the U.S. Attorney’s Office submitted to the Court Clerk a criminal cover sheet in accordance with Title 18 U.S.C. § 3170, naming Mal-comí McGee as defendant. In the offense charged section of the form the government stated the date of the offense for Count 3 was “on July 14 and 15, 2000”. The government stated the penalty for Count 3 was “not more than ten years imprisonment and a $30,000 fine.” In the special monetary assessment section the government indicated the amount was “$100.00 each count”.

2. On August 8, 2000, the Grand Jury in and for the Northern District of Oklahoma returned a three (3) count Indictment against Mr. McGee, alleging in Count 1; Title 21, United States Code, Section 846, Conspiracy to Possess one kilogram or more of a mixture or substance containing a detectable amount of Phencyclidine (PCP) with the intent to distribute; Count 2, Title 21, United States Code, Section 841(a)(1). Possession with Intent to Distribute a Controlled Substance with the Intent to Distribute; Causing a Criminal Act under Title 18, United States Code, Section 2(b); and Count 3, Title 21, United States Code, Section 843(b), Use of a communication Facility for distribution of Controlled Substances. The body of the indictment, alleged in pertinent part:

COUNT I

[21 U.S.C. § 846]

Beginning in or around July, 2000, the exact date being unknown to the Grand Jury, and continuing until July 15, 2000, in the Northern District of Oklahoma, and elsewhere, MALCOM DEROME McGEE, aka “Malik”, aka “Mike McGee”, defendant herein, did knowingly and intentionally conspire, confederate and agree with others, both known and unknown to the Grand Jury, to commit offenses against the United States, in violation of Title 21, United States Code, Section 846, as follows:

MEANS AND METHODS OF THE CONSPIRACY

•The objects of the conspiracy would be accomplished ahd were accomplished as follows:

3. The Defendant MALCOM McGEE, and others known and unknown to the Grand Jury, would and did utilize telephones (cellular and otherwise), and paging devices, in order tp communicate with others regarding the possession and delivery of the Phencycli-dine (PCP).

OVERTACTS

To effect the objects of the conspiracy, the defendant and other co-conspirators committed various overt acts within the Northern District of OMahoma and elsewhere, among which were the following:

10. Between on or about July 14 and 15, 2000, the courier placed a series of .telephone calls from Tujsa, Oklahoma to MALCOM McGEE, the defendant herein, via cellular telephone number and pager number that McGEE had provided. MALCOM McGEE, the defendant herein, also placed a series of telephone calls to the courier while located in Tulsa, Oklahoma, within the Northern District of Oklahoma. The purpose of the telephone calls was to 'discuss the possession and delivery of the Phencycli-dine (PCP). During these calls, the need for money by the courier was discussed. It was further discussed that MALCOM McGEE, the defendant herein, would be traveling to Tulsa. Oklahoma to take possession and delivery of the 2000 milliliters of Phencyclidine (PCP).

COUNT THREE

[21 U.S.C. § 843(b) ]

On July 14 and 15, 2000, in the Northern District of Oklahoma, MALCOM McGEE, defendant herein, did knowingly, intentionally, and unlawfully use' a communication facility, that is a telephone, in committing, causing, and facilitating the commission of an act constituting a felony under Title 21, United States Code, Section 841(a)(1), in that the defendant used the telephone to discuss various matters concerning the possession with intent to distribute and the distribution of phencyclidine (PCP), a Schedule III Controlled Substance. All in violation of Title 21, United States Code, Section 843(b).

3. On October 30, 2000, Jury Trial commenced and on November 1, 2000 the Jury returned a verdict of Guilty as to all three counts. Trial Counsel and the District Court discussed matters relating to the Instructions and Verdict Form for Count 3 prior to the time the case was submitted to the jury:

The Court: Please be seated. All right. We have the copies of the instructions. And after we break up, before we send back all of the exhibits, if you-all could approach with Ms. Holland and determine with certainty that we have the exhibits that you want to send back.

Also, let’s talk about the verdict form if we could. Ms. Murdy, do you have the verdict copy, current draft of the verdict form, please?

All right. Mr. Schisler, you are recognized, sir.

MR. SCHISLER: Your Honor, I don’t know if the sort of special interrogatory here on the bottom of Count three asking the jury to find the number of phone calls is appropriate. The statute does talk about each individual phone call or communication can be charged as a separate offense, but I think we’re limited to the count as it was charged. You could possibly infer that there were — I mean, it’s Count Number three involving use of a telecommunication device over a period of two days.

THE COURT: But how does that affect punishment that’s what — actually this is being driven by the presentation by Mr. Snoke this morning and it caused us to begin some further consideration as to whether — is it not in the statute that it provides that there can be additional punishment enhancements for each number?

Mr. SCHISLER: Your Honor, the way the statute reads, I think the critical language is each separate use of a communication facility shall be a separate offense under this subsection.

THE COURT: Okay.

MR. SCHISLER: That doesn’t, in my mind, does not mandate a finding by the jury of how many phone calls were made. I think that was a charging decision that the Government could have, if they’d wanted to break it down into five separate charges, each involving a separate felony conviction possibly, and a separate $100 special monetary assessment, they could have done it. But they charged it in one count.

THE COURT: Well, let the ask you this. If you had, let’s say pre-Ap-prendi, if there was a determination thereafter that there were, I mean, clearly even established by the transcripts themselves, if the Court had made some determination that there were five calls say, just to make the math easier, we won’t get up to 11 million. But if you had five calls under pre-Apprendi, does that mean that we could give 20 years imprisonment?

MR. SCHISLER: Your Honor, I think that it goes back to, I mean, I don’t know if the number of — Apprendi would have to — if the number of calls was found to raise the punishment level above the statutory maximum sentence, if the number of calls were able to do that, then you would have an Apprendi issue, and I think that based on when we get down to sentencing, should there be a conviction on that, we’d be taking about a statutory maximum of eight years and a fine of $60,000 because of a prior conviction, rather than 4 and 30.

THE COURT: Per offense, right?

MR. SCHISLER: Well, I don’t know, Your Honor. I think that that just, I think the way the statute reads, that’s just — that’s an instruction in terms of how it’s to be charged. In other words, they are saying you cannot—

THE COURT: So you’re saying, if I understand you correctly, is that the indictment should have read that on or about July 14th, he picked up the ' phone and made a call in furtherance of a drug conspiracy under 843?

MR. SCHISLER: And later that day made another call.

THE COURT: And then later, also on the same day he made a second call.

MR. SCHISLER: As a separate count.

THE COURT: As a separate count?

MR. SCHISLER: Yes.

THE COURT: And suppose, hypothetically, they had done that, and we are where we are, and we were going only by transcript say, I mean again, hypothetically. And suppose—

MR. SCHISLER: Multiple convictions were had.

THE COURT: Right. Then what?

MR. SCHISLER: Then I’ve identified—

THE COURT: Is that five separate, eight year sentences?

MR. SCHISLER: I think that would have to be — I think we would have to then go to the guidelines and determine whether or not these offenses group for purposes of punishment and whether or not they are mandated to run consecutively or concurrently in terms of punishment. If you got five, eight year sentences and they all can concurrently you essentially have one—

THE COURT: But if it’s a freestanding stand-alone call; right?

MR. SCHISLER: Right.

THE COURT: I mean, does that group it with a free standing stand-alone call?

MR. SCHISLER: Well, there are of- . fenses, Your Honor, say for example in the case of possession of child pornography, if you’ve got several individual counts dealing with possession of child pornography — I may not have the, I may be using a bad example, but for purposes of punishment those would all group together, glom into essentially for purposes of punishment, other than the special monetary assessment—

THE COURT: But let’s suppose they don’t group them. Can I hold him—

MR. SCHISLER: If they don’L-

THE COURT: If there is, hypothetically, a guilty verdict here and there were no grouping.

MR. SCHISLER: Then you would have to go to 3D1.1 which is the section in the guidelines that deals with the grouping rules and you would determine each count, the offense level on each count and then determine whether, based on specific offense characteristics, how far apart each individual count was for each other in terms of special offense characteristics—

THE COURT: But my point—

MR. SCHISLER: —and then the units would be assigned and then you would get an additional—

THE COURT: Right, but my point would be, you’re talking about a whole mess of judge stuff, right?

MR. SCHISLER: Well, I’m talking about under the sense of— ■

THE COURT: I mean, the ink is not even dry on your Apprendi brief on . your way to Denver, right? You’re not going to believe what he did down there, right? He made up all of these calls, right?

MR. SCHISLER: I’m not saying, Your Honor, that there weren’t, there’s not evidence in the, you know, there’s not evidence presented that there was more than one phone call.

THE COURT: No, I understand that. But I’m just saying that if we’re going — if there’s a possibility that exists that he would be sentenced for more than one call separately and distinct form the others, that is in a non-grouped nonconcurrent way. I don’t know that it is or isn’t—

MR. SCHISLER: Right.

THE COURT: —but sitting here, if there is that possibility, isn’t it compelled by Apprendi at least that I can’t make that finding, that has to be done beyond a reasonable doubt?

MR. SCHISLER: I would like to do a little research on this. I think that Apprendi requires—

THE COURT: You’re saying he gets the eight, the jury gives him the first eight years but I get to start — I get the next 40 years.

MR. SCHISLER: I’m not certain about that. I’m not sure that Apprendi — I don’t think Apprendi applies.

THE COURT: I’m in the group that doesn’t think the reach of Apprendi is quite as significant as people do, but I do know this: If they get the first eight years, that doesn’t give me the next 40 years up year here. Right?

MR. SCHISLER: I think that this is— for lack of a better term, this may be quast Apprendi. I’m not sure Ap-prendi applies here because — first of all, I haven’t really thought about it.

THE COURT: Well, let me ask you this. Let me do it the other direction because I took very seriously what Mr. Snoke said and how it might relate to where we were, and you can advise him he can hill for this morning here based on this colloquy but—

MR. SCHISLER: In regard to his reference to a special finding on the what the object of the conspiracy is—

THE COURT: Right. I mean, he was talking about the notion that we were dealing with the communication facilities and so forth, but it certainly caused us to reconsider where we were as far as the communication facility issue, because that raised the point that there are separate sentencing capabilities for each call and there’s something about each call.

Let me ask you this: What problem does this occasion? I mean, it seems to me that we can, if there is, hypothetically, a guilty verdict entered—

MR. SCHISLER: I would—

THE COURT: We can raise this question, you can say, well, this was all very interesting but irrelevant because of grouping, because of concurrent sentences and so forth later on down the line—

MR. SCHISLER: I think now that it’s kind of — a light has kind on gone in my head. I wouldn’t, I don’t think it would harm anything, and I certainly, based on my argument here, wouldn’t — I’m not trying to set up an Apprendi issue.

THE COURT: No, I understand you’re not—

MR. SCHISLER: I’m not that sharp.

THE COURT: I think as among the three of us, which I always try to explain to appellate judges, that we work in panels as well, but it just happens that only one is a judge and the other two are the lawyers for the competing parties, but this panel of three, we’re all trying to navigate our way—

MR. RALEY: Through it.

THE COURT: through Apprendi and make sure that we have at least settled on the law and nobody’s trying to sandbag anybody. That’s why I’m just—

MR. SCHISLER: And I could anticipate a scenario where an attorney would come in and say, well, there was not a finding by the jury of how many phone calls were made, therefore you’ve got of consider it as one phone call and—

THE COURT: But if you reach that at sentencing, if we end up at sentencing here and it turns out that these are not grouped and it turns out that this is the only guilty count that there is reached in this case, and there is several calls and the United States argues they shouldn’t be grouped and they shouldn’t be concurrent and they should be free stand alone, the logical response is wait a minute, they found one, we’ll give you the eight years, but we’re not taken taking the other 40, that’s judge made 40. Right?

MR. SCHISLER: Right.

THE COURT: And that’s the reason,

■ that’s what caused us to rethink it and to see whether or not there’s something could be done right now so at least then there wouldn’t be any question—

MR. SCHISLER: It would eliminate—

THE COURT: —either of substance or of finding beyond a reasonable doubt by a jury. That’s the only reason for raising it.

MR. SCHISLER: Based on that, I don’t have any objection to it.

THE COURT: All right. So is this satisfactory then?

MR. RALEY: Yes, Your Honor.

THE COURT: Okay. Is that without objection?

MR. SCHISLER: Yes.

THE COURT: Then we will enter that verdict form. Without objection, Mr. Raley, this verdict form?

MR. RALEY: Yes, Your Honor. Thank you.

THE COURT: All right. We’ll use the verdict form. All right. And we have the instructions and we have, you-all have gone over the exhibits already or are you going to go over those?

(Tr. Vol. Ill, pp. 323 — 331).

4. The verdict form returned by the jury as to Count 3 was as follows:

COUNT THREE

Use of an interstate communication facility in committing, causing or facilitating a violation of Sections 841(a)(1) and 841(b)(l)(A)(iv) of Title 21 of the United States Code:

Not Guilty_ Guilty X

If you found the Defendant “Guilty” on this Count Three, please enter the number of telephone calls you have determined beyond a reasonable doubt that were made in violation of Section 843(b) of Title 21 (use of an interstate communication facility) for the purpose of committing, causing or facilitating violation of Sections 841(a)(1) and 841(b)(l)(A)(iv) of Title 21.

Number 7

5. On February 2, 2001, the original Presentence Investigation Report (PSI) was prepared by the Probation Office, establishing a sentencing range as follows:

On Count Three, 8 years (based upon his prior felony drug convictions which doubles the maximum punishment from 4 years to 8 years). (Original Presentence Report).

6. On March 1, 2001, the Court entered an Order that stated in its entirety as follows:

The Court hereby continues the sentencing of Defendant Malcom McGee scheduled for March 2, 2001. Sentencing is reset for April 5, 2001 at 9:30 a.m.

Sentencing is continued to allow time for the appropriate amendments to be made to Defendant’s Pre-sentence Report, and, if necessary, the filing of objections to the amended Pre-sentence report. The amendments to the Pre-sentence Report shall consist of: (1) the effect of the Court’s arrest of judgment on Count One, entered this date; (2) a computation of the appropriate sentence under Count Three for each of the seven (7) offenses defined in 21 U.S.C. § 843, as found by the jury and noted on the Verdict Form; (3) a notation of the Court’s ability to require consecutive sentences for each of the seven (7) offenses under 21 U.S.C. § 843, each of those sentences to run concurrently with the sentence at Count Two, pursuant to U.S. Sentencing Guidelines Manual § 5G1.2; and (4) an increase in the Special Assessment fee to reflect that Defendant was found guilty of a total of eight (8) offenses against the United States.

7. The Court’s March 1, 2001 order was not designated by either party as part of the record for the Court of Appeals.

8. On March 1, 2001, a Revised PSI was prepared by the Probation Office establishing a Sentencing Range as follows: Count One, “arrested” and not addressed in PSI; Count Two, Mandatory Life; Count Three, a total of 56 years. (Revised PSI dated March 1, 2001).

9.On March 29, 2001, Mr. McGee, through Mr. Schisler, filed Objections to the revised PSI, specifically objecting to the Probation Office’s calculation of the sentencing options for Count Three:

Mr. McGee also objects to probation officer’s calculations in regards to sentencing options for Count Three, as stated in paragraphs 48, 49, 51, 52, 55 and 56. In these paragraphs, the probation officer contends that Count Three consists of seven separate offenses, each of which carries its own set of punishments — prison time, supervised release, Special Monetary Assessments and fines. It is counsel’s understanding that this calculation is reflective of the information provided to the parties in the Court’s order (filed and entered March 1, 2001; Document # 40).

While counsel would agree that 21 U.S.C. § 843 states “... each separate use of a communication facility shall be a separate offense under this subsection...”, this statutory language does not compel a finding of seven separate felony convictions. The language simply provides the prosecuting authority the option of filing seven separate charges. The language of Count Three, even read in conjunction with 18 U.S.C. § 843(b), gives the defendant no notice of the possibility of seven separate convictions springing from this single count. It merely advises the defendant that the prosecutor could have filed a separate charge for each provable use of a telephone, but chose instead to file a single count.

Further, pursuant to an application of the guidelines, had the government charged each phone call as a separate count, the guideline for a phone count, U.S.S.G. § 2D1.6, refers back to the guideline for the underlying offense, § 2D1.1, which requires that related offenses be grouped. In such a scenario, Mr. McGee’s required sentence would be that for one violation of 21 U.S.C. § 843(b).

Conclusion

(Mr. McGee’s Objections to PSI filed March 29, 2001).

10. On April 2, 2002, the government filed its Response to Mr. McGee’s Objections to the Revised PSI. In the government’s Response to Mr. McGee’s Objections to the revised PSI, the government stated:

2. However, pursuant to Court Order, the February 26, 2001 Presentence Investigative Report was revised on March 1, 2001; specifically providing in paragraphs; 48, 49, 51, 52, 55 and 56, for increased penalties for Count Three of the Indictment, a single allegation of a Title 21 U.S.C. § 843(b) offense. The government only alleged a single violation of Title 21, U.S.C. § 843(b) in Count Three of the Indictment, which would carry a maximum sentence of eight (8) years and a special assessment of $100.00, as set forth in paragraph 48 of the February 26, 2001, Presentence Investigation Report.

3. In response to defendant’s objections filed March 29, 2001, regarding the Presentence Investigative Report as revised March 1, 2001, the government would concur and join in objection to paragraphs- 48, 49, 51, 52, 55 and 56, in reference to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

11. On April 5, 2001, a sentencing Hearing was held before the District Court regarding the issue related to Count 3:

THE COURT: All right. We’re here to impose sentence in this matter but before we proceed to that there are certain preliminary motions dealing with the Presentence Investigation Report. On behalf of the United States, Mr. Ra-ley, how best we proceed in your judgment, sir?

MR. RALEY: That’s correct, Your Honor, there are a couple of objections. I believe Mr. Schisler filed some objections and I responded to his objections, specifically with reference to Count three, Your Honor. And in my responses also, Your Honor, I reference a motion to reconsider the Court’s previous order arresting the judgment as to Count one of the indictment. And I don’t know what—

THE COURT: Shall we start with the Count three issue or where do you want to start?

MR. RALEY: That would be fine, Your Honor. And in that regard, the Government has stated in its response to the defendant’s objections to the PSI, stated basically that we concur with the allegations — I’m sorry, Your Honor, we concur with the defendant’s objection that the Government charged one count of an 843(b), Title 21 using the communication facility in carrying out a drug-related crime. It would be our—

THE COURT: You mean the indictment included those words once.

MR. RALEY: Pardon me, Your Hon- or?

THE COURT: The indictment included those words once, right?

MR. RALEY: I believe so. I would have to find the indictment to get the specific language of Count three.

THE COURT: But it’s not — well, why don’t we — this is Mr. Sehisler’s motion, why don’t we hear from him first.

Mr. SCHISLER: Your Honor, what I’m making reference to here is a pleading that was first filed on March 29th, Objections to Revised Presentence Investigative Report.

THE COURT: Right.

MR. SCHISLER: In that objection we realleged objections made to the original PSI which were not changed in our original objections.

THE COURT: Right.

MR. SCHISLER: Just so that they would stay on the record. The new objection does involve the issue surrounding Count three which is 21, 843, the phone counts.

THE COURT: Right. What is the nature of that objection?

MR. SCHISLER: Your Honor, the revised PSI in its sentencing section, potential sentence stated that Count three should be treated as if it was seven individual counts of conviction of 21, 843 as opposed to one individual count of conviction.

THE COURT: And this is news by virtue of the fact that you’ve j