INCLUSION
For the foregoing reasons, we deny the motion of Defendants Andre Seymour, Kent

Clark, Andre Lawrence, and Nyroby Seymour not to be sentenced under 21 U.S.C. 841(b)(1)(A).

It is so ordered.

G2)... Cx
Wayne R. Anderstp——_.

United States District Court

Dated: § wd


within 1,000 feet of an elementary school. To sustain a charge of possessing with intent to
distribute and distributing crack cocaine within 1,000 fect of an elementary school, the
government must prove [beyond a reasonable doubt] that a defendant distributed the cocaine base
referred to in the count.

As the indictment makes clear, the cocaine base referred to in Count One was crack
cocaine. Therefore, by convicting the Defendants of Count One and concluding the conspiracy
involved over 50 grams of cocaine base, the jury necessarily found that the cocaine base was, in
fact, crack cocaine, as that was the only type of cocaine base referred to in Count One. In fact, the
jury was specifically instructed that the Defendants were charged in the conspiracy in Count One
with possessing with intent to distribute and distributing crack cocaine within 1,000 feet of an
elementary school. /d.

Finally, all of the evidence presented to the jury made clear that the cocaine base referred
to in the charged conspiracy was crack cocaine. We find that there is sufficient evidence that the
jury concluded beyond a reasonable doubt that the cocaine base at issue in Count One was crack
cocaine. Thus, not only is the Defendants’ cocaine base argument immaterial given the jury's
findings regarding powder cocaine, it also fails on the merits. In short, the Defendants (excluding
Stacia Smith) are subject to statutory maximum possible penalties of life based on the jury's

findings regarding both powder cocaine and crack cocaine.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) No. 02 CR 200
)
TROY LAWRENCE, et al., ) Wayne R. Andersen
) District Judge
Defendants. )

MEMORANDUM, OPINION AND ORDER
This case is before the Court on the motion of Defendants Andre Seymour, Kent Clark,
Andre Lawrence and Nyroby Seymour to not be sentenced under 21 U.S.C. 841(b)(1)(A) because
the government did not prove to the jury that the substances were in fact crack cocaine. For the
following reasons, the motion is denied.
BACKGROUND
Defendants have been convicted of:

(a) knowingly and intentionally possessing with intent to distribute and distributing a
controlled substance, namely, in excess of 5 kilograms of mixtures and substances
containing cocaine, a Schedule II Narcotic Drug Controlled Substance, in
violation of Title 21, United States Code, Section 841(a)(1); and

(b) knowingly and intentionally possessing with intent to distribute and distributing a
controlled substance, namely, in excess of 50 grams of mixtures and substances
containing cocaine base, commonly referred to as "crack," a Schedule II
Controlled Substance, within one thousand feet of the real property comprising an
elementary school, namely, the Gavin Elementary School, in violation of Title 21,
United States Code, Sections 841(a)(1) and 860(a). See Indictment, Count One.

In a special verdict form, the jury concluded that the conspiracy included over 50 grams

of cocaine base and between 500 grams and 5 kilograms of powder cocaine.


DISCUSSION

In their current motion, Defendants argue that they should not be sentenced under 21
U.S.C. 841(b)(1)(A) because the government did not prove to the jury that the substances were in
fact crack cocaine. Defendants attempt to use a recent Seventh Circuit case, United States v.
Edwards, 397 F.3d 570 (7th Cir. 2005), to suggest that the jury in this case must not have
concluded that the cocaine base at issue in the charged conspiracy was crack cocaine and,
therefore, the cocaine base mandatory minimum sentences do not apply.

In Edwards, the Seventh Circuit concluded that "cocaine base" under Title 21 means
"cocaine base" that is also "crack cocaine." 397 F.3d at 577. Thus, in order to determine the
appropriate mandatory minimum, it must be shown by a preponderance of the evidence that the
cocaine base sold during the Lawrence conspiracy was crack cocaine. See Edwards, 397 F.3d
al574-77 (inding district court erred by imposing mandatory minimum sentence without also
finding cocaine base at issue was crack cocaine). As demonstrated below, the evidence on this
point is overwhelming and, in fact, the jury necessarily concluded beyond a reasonable doubt that
the cocaine base at issue in the instant case was crack cocaine.

Unlike the mandatory minimums the Defendants face, the statutory maximums applicable
to those convicted on Count One of the charged conspiracy are determined by the jury’s finding
of the quantities of powder cocaine and/or crack cocaine in the conspiracy. Putting aside the issue
of the jury's findings regarding crack cocaine, the jury's finding on powder cocaine in the instant

case dooms the detendants' "cocaine base" argument. The jury, in a special verdict form,
concluded beyond a reasonable doubt that the charged conspiracy involved more than 500 grams

but less 5 kilograms of powder cocaine. Under Title 21, United States Code, Section


841(b)(1)(B), this yields a statutory maximum sentence of 40 years' imprisonment for each of the
Defendants convicted on Count One. Moreover, in the instant case, every Defendant who went to
trial except Stacia Smith is subject to enhanced penalties based on the government's filing of
notices under 21 U.S.C. Section 851. Returning to Section 841(b)(1)(B), the statute makes clear
that those individuals who participate in a conspiracy (or substantive act) that involves more than
500 grams of powder cocaine and have a prior drug conviction are subject to a statutory
maximum penalty of life. Thus, without regard to the Defendants’ cocaine base argument, every
Defendant except Stacia Smith is facing a statutory maximum of life imprisonment based on the
powder cocaine Count One conspiracy conviction.

Moreover, the jury, by convicting on Count One and determining a quantity of cocaine
base, essentially made a finding that the cocaine base is crack cocaine. As noted above,
Defendants were charged with knowingly and intentionally possessing with intent to distribute
and distributing a controlled substance, namely, in excess of 50 grams of mixtures and
substances containing cocaine base, commonly referred to as "crack." See Indictment, Count
One. The jury was provided with a copy of the indictment that repeatedly referred to the
substance sold by members of the conspiracy as "crack." /d. Count One specifically charged
members of the conspiracy with cooking powder cocaine that defendant Troy Lawrence obtained
from cocaine suppliers into crack cocaine. In short, the indictment made clear that the "cocaine
base" at issue in the Lawrence conspiracy was alleged to be crack cocaine.

In the addition, the jury was provided with numerous jury instructions that reference
crack cocaine. Most importantly, the jury was instructed that one of the objects of the conspiracy

charged in Count One is the possession with intent to distribute and distribution of crack cocaine