In the

United States Court of Appeals

For the Seventh Circuit

No. 01-3232

United States of America,

Plaintiff-Appellee,

v.

Lamilton Briggs,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 00-CR-10099--Michael M. Mihm, Judge.

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

 Before Ripple, Kanne, and Evans, Circuit

Judges.

 Kanne, Circuit Judge. A jury convicted

appellant Lamilton Briggs of distributing

crack cocaine, based on a controlled drug

purchase. Because Briggs possessed a

large amount of crack at the time of his

arrest, he was also convicted of

possession of crack with the intent to

distribute. He appeals, arguing (1) there

was insufficient evidence to support his

convictions, (2) the district court erred

in denying his motion for a new trial

based on a juror’s post-trial

questionnaire, and (3) his conviction

violates the rule set forth in Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000). We

affirm.

I. History

 At trial, the following facts were

adduced: Orlando Davis, a confidential

FBI informant, met with FBI Task Force

Agent Jeff Avery at the Peoria, Illinois

FBI office in order to arrange a

controlled purchase of crack from Briggs.

After Davis arrived at the FBI office, he

was searched for money and for drugs, and

finding neither, law enforcement agents

outfitted Davis with a body-recording

device and a transmitter. Davis then

paged Briggs, who returned the page,

acknowledging himself as "Milton" in a

recorded phone call. During that call,
Davis and Briggs agreed to meet at a pre

arranged location, and Agent Avery

provided Davis with $2,000 in cash.

 Following the phone call with Briggs,

Davis and Agent Avery drove in Davis’ car

to meet Briggs at the Pierson Hills

housing complex in Peoria. After arriving

at the complex, Agent Avery left Davis’

car and joined other law enforcement

agents in establishing visual

surveillance of the complex. Davis then

drove into the complex, located Briggs’

car, and joined Briggs inside of that

car. While in the car, Davis provided

Briggs with $2,000 in cash in exchange

for 54.7 grams of crack./1 Following

this transaction, Davis met with Agent

Avery and provided him with the crack

that he had obtained from Briggs.

 Law enforcement agents obtained a

warrant for Briggs’ arrest based on the

transaction with Davis and conducted

surveillance at the Seven Oaks apartment

complex in Peoria where agents knew

Briggs to reside. After approximately two

weeks of surveillance, law enforcement

agents went to Seven Oaks Apartment 1001

to arrest Briggs. The law enforcement

agents knocked several times and

announced their identity and presence,

and stated that they had a warrant for

Briggs’ arrest. They received no

response, although one agent observed

movement inside of the apartment. After

continuing to announce their presence and

after again receiving no response, agents

forcibly entered the apartment. Once

inside the apartment, the agents saw a

person identified as Harold Washington

sitting on the couch in the living room.

Eventually, Briggs appeared from the back

room of the apartment and was placed

under arrest.

 Following Briggs’ arrest, a law

enforcement agent conducted a protective

sweep of the apartment and discovered a

large amount of money and cocaine. Two

agents testified that Briggs confessed

that the drugs in the apartment belonged

to him and that Washington had nothing to

do with those items. Based on the drugs

seen in plain view during the protective

sweep, law enforcement agents obtained

and lawfully executed a search warrant

for the apartment. During that search,

agents seized numerous plastic bags

containing, in total, 161 grams of crack
cocaine, an additional 175.6 grams of

powder cocaine, two digital scales, a

cutting tray, several cell phones and

pagers, and approximately $6,350 in cash.

 Additionally, Jennifer Jones, a

marketing representative for Seven Oaks,

testified that Apartment 1001 was rented

to a person identified as "James

Pierson." On several occasions, "Pierson"

came to the apartment complex office and

paid his monthly rent with money orders.

Jones identified Briggs as the person she

believed to be "Pierson."

 In his defense, Briggs attempted to

challenge the credibility of the

government’s witnesses as well as to show

that the drugs in the apartment did not

belong to him. For example, the two

agents that testified that Briggs

hadconfessed to the possession of the

drugs admitted on cross-examination that

they had failed to include Briggs’

admission in their police report. Briggs’

mother testified that during the time in

question, he lived with and took care of

her because she had been injured at work.

Finally, Davis admitted writing a letter

to Briggs’ girlfriend, offering not to

testify in exchange for $7,500. 

 The jury then convicted Briggs of one

count of distribution of fifty or more

grams of crack, in violation of 21 U.S.C.

sec. 841(a)(1) and (b)(1)(A), and one

count of possession of fifty or more

grams of crack with the intent to

distribute it in violation of 21 U.S.C.

sec. 841(a)(1) and (b)(1)(A)(1). After

the jury convicted Briggs of both counts

but prior to sentencing, the district

court received an exit questionnaire from

one of the jurors. In that questionnaire,

the juror described the deliberative

process and the role she played in that

process. Although the juror had stated

that she had been "intimidated" by other

jurors into finding Briggs guilty, the

juror did not suggest that any extraneous

information or outside influence had been

brought to the jury’s attention. Based on

the juror’s questionnaire, Briggs filed a

motion for a hearing to determine the

validity of the jury’s verdict. 

 Before the district court, Briggs’

counsel acknowledged that the juror’s

statements fell within the purview

ofFederal Rule of Evidence 606(b), and
were thus inadmissable./2 Further,

neither exception to Rule 606(b)--

extraneous information nor outside

influence--applied that would allow the

questionnaire to be admitted into

evidence. Initially, the district court

agreed that the juror’s statements did

not raise any issue as to whether any

extraneous information or outside

influence had been brought to the jury’s

attention. Relying on this court’s

decision in United States v. Ford, 840

F.2d 460, 465-66 (7th Cir. 1988), the

district court then denied Briggs’

motion. After the district court had

ruled on the motion and at the suggestion

of the government, the district court

allowed Briggs to contact the juror to

inquire into the statements the juror had

made in her questionnaire because the

court was concerned that "intimidation"

could mean physical intimidation of some

sort.

 Briggs’ counsel contacted the juror and

conducted a recorded interview of her.

During that interview, the juror made

clear that there was no physical

intimidation of any sort. Further, the

juror explained that neither extraneous

information nor outside influence had

been brought to the jury’s attention and

that she was merely unhappy with the

deliberative process. At sentencing, the

district court again considered Briggs’

motion for a hearing to determine the

validity of the jury’s verdict. After

reviewing the transcript of the interview

with the juror, the district court

reaffirmed his denial of the motion for a

hearing and the motion for a new trial.

Subsequently, the district court

sentenced the defendant to a mandatory

term of life imprisonment on each of the

two counts, to run concurrently.

II. Analysis

 Briggs first challenges his convictions

based on the sufficiency of the evidence.

In weighing the sufficiency of the

evidence, we view the evidence in the

light most favorable to the government

and will reverse a conviction only if no

rational trier of fact could have found

the essential elements of the offense

beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). To prove

the offense of distribution of a
controlled substance, the government must

prove that a defendant knowingly

distributed a controlled substance and

that the defendant knew that what he

distributed was a controlled substance.

See, e.g., United States v. Hatchett, 245

F.3d 625, 631 (7th Cir. 2001). To

establish that a defendant possessed

crack with the intent to distribute it,

the government must prove that the

defendant: "(1) knowingly or

intentionally possessed cocaine; (2)

possessed it with the intent to

distribute; and (3) knew it was a

controlled substance." United States v.

Stribling, 94 F.3d 321, 324 (7th Cir.

1996). 

 As we noted, Briggs cannot prevail on

his sufficiency of the evidence claim

unless he demonstrates that no rational

jury could have found the essential

elements of the offense. See Jackson, 443

U.S. at 319. Instead of making such a

showing, Briggs offers a competing

characterization of the evidence and

challenges the credibility of the

government’s witnesses. For example,

Briggs repeatedly notes that Davis was a

paid informant and that Briggs’ admission

was not included in the initial police

report. However, "questions of

credibility are solely for the trier of

fact, [and] such arguments are wasted on

an appellate court." United States v.

Henderson, 58 F.3d 1145, 1148 (7th Cir.

1995). Indeed, in the present case, the

evidence on the distribution count is

overwhelming, and Briggs’ challenge

borderlines on the frivolous. Davis and

several FBI agents testified that Briggs

participated in a controlled drug

purchase with Davis while under law

enforcement surveillance. Further, an

audio cassette tape of the transaction

was admitted at trial, and Briggs’ voice

was authenticated by Agent Avery. Thus,

the distribution conviction must be

affirmed.

 Similarly, Briggs’ challenge to his

possession with the intent to distribute

conviction also fails. Two FBI agents

testified that Briggs confessed that the

161 grams of crack and the 175.6 grams of

powder cocaine belonged to him. Briggs

was also arrested coming out of the room

that contained the cocaine. Further,

Jones testified that Briggs, under the

name of "Pierson," had paid for the
apartment in which the crack was found.

Finally, the crack was found in

individual packaging, with scales, and a

tray to cut it up along with numerous

phones and pagers. See, e.g., United

States v. Molinaro, 877 F.2d 1341, 1345-

46 (7th Cir. 1989) (holding that scales,

plastic baggies, and cutting agents

support an inference of an intent to

distribute). This evidence is more than

adequate for the jury to convict Briggs

of possession with the intent to

distribute. 

 Briggs next contends that the district

court erred in denying his motion for a

hearing to determine the validity of the

jury’s verdict and for a new trial based

on the juror’s questionnaire. We faced a

similar situation in Ford, 840 F.2d at

465. In Ford, the district court received

a letter from a juror eleven days after

the conclusion of the trial, claiming

that the jurors and the jury foreman had

behaved improperly during deliberations.

See id. There were allegations that votes

were taken prior to deliberation and that

they were taken orally, and that there

had been "extreme and excessive pressure

on individuals to change votes." Id. In

spite of these claims, the district court

refused to hold a hearing to determine

whether improper influences on jurors

occurred during deliberations. We

affirmed this ruling stating that under

Fed. R. Evid. 606(b) "a court will not

inquire into the jury’s deliberative

process, including arguments, statements,

discussions, mental and emotional

reactions, and votes, in the absence of a

claim of external influence." Id. Because

the juror’s letter involved only

"intrajury influences on the verdict," we

affirmed the district court’s denial of a

hearing. Id. at 465-66.

 As in Ford, the juror’s questionnaire

answer in the present case did not allege

that any extraneous prejudicial

information was brought to the jury’s

attention or that any outside influence

was brought to bear on any juror.

Further, the district court allowed

Briggs to interview the juror and that

interview confirmed these conclusions. As

we noted in Ford, Rule 606(b) "is

designed not only to protect the jurors

from being pestered by lawyers after the

verdicts are rendered, but also to

protect the judicial process from efforts
to undermine verdicts by scrutinizing the

jurors’ thoughts and deliberations." Id.

at 465. Because both the juror’s

questionnaire and her interview only

allege "intrajury influences on the

verdict during the deliberative process,"

id., we affirm the district court’s

denial of Briggs’ motion./3 See Fed. R.

Evid. 606(b).

 Next, Briggs asserts that reversal is

required because, according to Briggs,

Apprendi, 530 U.S. 466, requires that

prior convictions be charged in the

indictment and submitted to the jury and

proven beyond a reasonable doubt. Briggs,

however, did not raise this claim in the

district court as he specifically agreed

with the jury instructions submitted to

the jury, and accordingly, this argument

is waived on appeal. See United States v.

Cooper, 243 F.3d 411, 415-16 (7th Cir.

2001). Further, even if we were to

conclude that this argument was not

waived, we would still reject it. See

Apprendi, 530 U.S. at 490 ("Other than

the fact of a prior conviction, any fact

that increases the penalty for a crime

beyond the prescribed statutory maximum

must be submitted to a jury, and proved

beyond a reasonable doubt.") (emphasis

added); Almendarez-Torres v. United

States, 523 U.S. 224, 247, 118 S. Ct.

1219, 140 L. Ed. 2d 350 (1998) (holding

that enhancements based on recidivism

need not be established beyond a

reasonable doubt); United States v.

Skidmore, 254 F.3d 635, 642 (7th Cir.

2001) ("Apprendi does not overrule the

holding of Almendarez-Torres that penalty

enhancements based on recidivism need not

be established beyond a reasonable

doubt."). 

 Finally, Briggs’ contention that 21

U.S.C. sec. 841 is facially

unconstitutional is meritless. See United

States v. Brough, 243 F.3d 1078, 1080

(7th Cir. 2001) ("[T]here is no

constitutional defect in the design of

sec. 841, and . . . there is no

impediment to convictions under the

statute as written").

III. Conclusion

 For the forgoing reasons, Briggs’

convictions and sentence are AFFIRMED.

FOOTNOTES
/1 An audio cassette tape of the transaction was

entered into evidence at trial.

/2 Federal Rule of Evidence 606(b) provides:

Upon inquiry into the validity of a verdict or

indictment, a juror may not testify as to any

matter or statement occurring during the course

of the jury’s deliberations or to the effect of

anything upon that or any other juror’s mind or

emotions as influencing the verdict or indictment

or concerning the juror’s mental processes in

connection therewith, except that a juror may

testify on the question of whether extraneous

prejudicial information was improperly brought to

the jury’s attention or whether any outside

influence was improperly brought to bear upon any

juror. Nor may a juror’s affidavit or evidence or

any statement by the juror concerning a matter

about which the juror would be precluded from

testifying be received for these purposes.

/3 Briggs’ attempt to frame this argument as a due

process violation is without merit and does not

warrant discussion.