UNITED STATES v. COTTON et al.

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625 OCTOBER TERM, 2001
Syllabus
UNITED STATES v. COTTON et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 01–687. Argued April 15, 2002—Decided May 20, 2002
A federal grand jury returned an indictment charging respondents with
conspiracy to distribute and to possess with intent to distribute a “de-
tectable amount” of cocaine and cocaine base. Respondents were con-
victed and received a sentence based on the District Court’s finding
of drug quantity—at least 50 grams of cocaine base—that implicated
the enhanced penalties of 21 U. S. C. § 841(b). They did not object in
the District Court to the fact that the sentences were based on a quan-
tity not alleged in the indictment. While their appeal was pending,
this Court decided, in Apprendi v. New Jersey, 530 U. S. 466, 490, that
“[o]ther 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.” In
federal prosecutions, such facts must also be charged in the indict-
ment. Id., at 476. Respondents then argued in the Fourth Circuit that
their sentences were invalid under Apprendi, because the drug quan-
tity issue was neither alleged in the indictment nor submitted to the
petit jury. That court vacated the sentences on the ground that it had
no jurisdiction to impose a sentence for an offense not charged in the
indictment.
Held:
1. A defective indictment does not deprive a court of jurisdiction.
Ex parte Bain, 121 U. S. 1, the progenitor of the Fourth Circuit’s view
that the indictment errors are “jurisdictional,” is a product of an era
in which this Court’s authority to review criminal convictions was
greatly circumscribed. It could examine constitutional errors in a crim-
inal trial only on a writ of habeas corpus, and only then if it deemed the
error “jurisdictional.” The Court’s desire to correct obvious constitu-
tional violations led to a “somewhat expansive notion of ‘jurisdiction,’ ”
Custis v. United States, 511 U. S. 485, 494, which is not what the term
means today, i. e., “the courts’ statutory or constitutional power to adju-
dicate the case,” Steel Co. v. Citizens for Better Environment, 523 U. S.
83, 89. Because subject-matter jurisdiction involves a court’s power to
hear a case, it can never be forfeited or waived. Thus, defects require
correction regardless of whether the error was raised in district court.
But a grand jury right can be waived. Post-Bain cases confirm that

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626 UNITED STATES v. COTTON
Syllabus
indictment defects do not deprive a court of its power to adjudicate a
case. See, e. g., Lamar v. United States, 240 U. S. 60. Thus, this Court
some time ago departed from Bain’s view that indictment defects are
“jurisdictional.” Stirone v. United States, 361 U. S. 212; Russell v.
United States, 369 U. S. 749, distinguished. Insofar as it held that a
defective indictment deprives a court of jurisdiction, Bain is over-
ruled. Pp. 629–631.
2. The omission from a federal indictment of a fact that enhances the
statutory maximum sentence does not justify a court of appeals’ va-
cating the enhanced sentence, even though the defendant did not object
in the trial court. Under Federal Rule of Criminal Procedure 52(b)’s
plain-error test, where there is an “(1) error, (2) that is plain, and (3) that
affects substantial rights,” an appellate court may correct an error
not raised at trial, “but only if (4) the error seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings.” John-
son v. United States, 520 U. S. 461, 466–467 (internal quotation marks
omitted). The Government concedes that the indictment’s failure to
allege a fact that increased the sentences was plain error. But, even
assuming the error affected respondents’ substantial rights, it did not
seriously affect the fairness, integrity, or public reputation of judi-
cial proceedings. The evidence that the conspiracy involved at least
50 grams of cocaine base was “overwhelming” and “essentially uncontro-
verted.” It is true that the Fifth Amendment grand jury right serves
a vital function in providing for a body of citizens that acts as a check
on prosecutorial power, but that is no less true of the Sixth Amendment
right to a petit jury, which must find guilt beyond a reasonable doubt.
The petit jury’s important role did not, however, prevent the Johnson
Court from applying the longstanding rule “that a constitutional right
may be forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right.” Yakus v. United States, 321 U. S. 414,
444. The real threat to the “fairness, integrity, or public reputation
of judicial proceedings” would be if respondents, despite the over-
whelming and uncontroverted evidence that they were involved in a
vast drug conspiracy, were to receive a sentence prescribed for those
committing less substantial drug offenses because of an error that was
never objected to at trial. Pp. 631–634.
261 F. 3d 397, reversed and remanded.
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the briefs were Solicitor

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Opinion of the Court
General Olson, Assistant Attorney General Chertoff, Bar-
bara McDowell, and Nina Goodman.
Timothy J. Sullivan argued the cause for respondents.
With him on the brief were Arthur S. Cheslock, James E.
McCollum, Jr., Carter G. Phillips, Jeffrey T. Green, Paul J.
Zidlicky, and Stanley H. Needleman.*
Chief Justice Rehnquist delivered the opinion of the
Court.
In Apprendi v. New Jersey, 530 U. S. 466 (2000), we held
that “[o]ther 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.” Id., at 490. In federal prose-
cutions, such facts must also be charged in the indictment.
Id., at 476 (quoting Jones v. United States, 526 U. S. 227, 243,
n. 6 (1999)). In this case, we address whether the omission
from a federal indictment of a fact that enhances the statu-
tory maximum sentence justifies a court of appeals’ vacating
the enhanced sentence, even though the defendant did not
object in the trial court.
Respondent Stanley Hall, Jr., led a “vast drug organiza-
tion” in Baltimore. 261 F. 3d 397, 401 (CA4 2001). The six
other respondents helped run the operation. In October
1997, a federal grand jury returned an indictment charging
respondents with conspiring to distribute and to possess
with intent to distribute 5 kilograms or more of cocaine and
50 grams or more of cocaine base, in violation of 21 U. S. C.
§§ 846 and 841(a)(1). A superseding indictment returned in
March 1998, which extended the time period of the conspir-
acy and added five more defendants, charged a conspiracy to
*Clayton A. Sweeney, Jr., Mary Price, Peter Goldberger, David Porter,
Joshua L. Dratel, and Lisa Bondareff Kemler filed a brief for the National
Association of Criminal Defense Lawyers et al. as amici curiae urging
affirmance.

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distribute and to possess with intent to distribute a “detect-
able amount” of cocaine and cocaine base. The superseding
indictment did not allege any of the threshold levels of drug
quantity that lead to enhanced penalties under § 841(b).
In accord with the superseding indictment, the District
Court instructed the jury that “as long as you find that a
defendant conspired to distribute or posses[s] with intent
to distribute these controlled substances, the amounts in-
volved are not important.” App. to Pet. for Cert. 6a (em-
phasis deleted). The jury found respondents guilty.
Congress established “a term of imprisonment of not more
than 20 years” for drug offenses involving a detectable quan-
tity of cocaine or cocaine base. § 841(b)(1)(C). But the Dis-
trict Court did not sentence respondents under this pro-
vision. Consistent with the practice in federal courts at
the time, at sentencing the District Court made a finding
of drug quantity that implicated the enhanced penalties of
§ 841(b)(1)(A), which prescribes “a term of imprisonment
which may not be . . . more than life” for drug offenses
involving at least 50 grams of cocaine base. The District
Court found, based on the trial testimony, respondent
Hall responsible for at least 500 grams of cocaine base,
and the other respondents responsible for at least 1.5 kilo-
grams of cocaine base. The court sentenced respondents
Hall and Powell to 30 years’ imprisonment and the other re-
spondents to life imprisonment. Respondents did not object
in the District Court to the fact that these sentences were
based on an amount of drug quantity not alleged in the
indictment.
While respondents’ appeal was pending in the United
States Court of Appeals for the Fourth Circuit, we decided
Apprendi v. New Jersey, supra. Respondents then argued
in the Court of Appeals that their sentences were invalid
under Apprendi, because the issue of drug quantity was
neither alleged in the indictment nor submitted to the petit

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jury. The Court of Appeals noted that respondents “failed
to raise this argument before the district court” and thus
reviewed the argument for plain error. 261 F. 3d, at 403
(citing Fed. Rule Crim. Proc. 52(b)). A divided court none-
theless vacated respondents’ sentences on the ground that
“because an indictment setting forth all the essential ele-
ments of an offense is both mandatory and jurisdictional, . . .
a court is without jurisdiction to . . . impose a sentence for
an offense not charged in the indictment.” 261 F. 3d, at 404–
405 (internal quotation marks omitted). Such an error, the
Court of Appeals concluded, “seriously affects the fair-
ness, integrity or public reputation of judicial proceedings.”
Id., at 406. We granted certiorari, 534 U. S. 1074 (2002), and
now reverse.
We first address the Court of Appeals’ conclusion that
the omission from the indictment was a “jurisdictional”
defect and thus required vacating respondents’ sentences.
Ex parte Bain, 121 U. S. 1 (1887), is the progenitor of this
view. In Bain, the indictment charged that Bain, the cash-
ier and director of a bank, made false statements “with in-
tent to deceive the Comptroller of the Currency and the
agent appointed to examine the affairs” of the bank. Id.,
at 4. Before trial, the court struck the words “the Comp-
troller of the Currency and,” on the ground that they were
superfluous. The jury found Bain guilty. Id., at 4–5. Bain
challenged the amendment to the indictment in a petition
for a writ of habeas corpus. The Court concluded that the
amendment was improper and that therefore “the juris-
diction of the offence [was] gone, and the court [had] no right
to proceed any further in the progress of the case for want
of an indictment.” Id., at 13.
Bain, however, is a product of an era in which this Court’s
authority to review criminal convictions was greatly circum-
scribed. At the time it was decided, a defendant could not
obtain direct review of his criminal conviction in the Su-

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preme Court.1 See generally United States v. Sanges, 144
U. S. 310, 319–322 (1892); L. Orfield, Criminal Appeals in
America 244–246 (1939). The Court’s authority to issue a
writ of habeas corpus was limited to cases in which the
convicting “court had no jurisdiction to render the judg-
ment which it gave.” Bain, supra, at 3; see also Preiser v.
Rodriguez, 411 U. S. 475, 485 (1973). In 1887, therefore, this
Court could examine constitutional errors in a criminal trial
only on a writ of habeas corpus, and only then if it deemed
the error “jurisdictional.” The Court’s desire to correct
obvious constitutional violations led to a “somewhat expan-
sive notion of ‘jurisdiction,’ ” Custis v. United States, 511
U. S. 485, 494 (1994), which was “more a fiction than anything
else,” Wainwright v. Sykes, 433 U. S. 72, 79 (1977).
Bain’s elastic concept of jurisdiction is not what the term
“jurisdiction” means today, i. e., “the courts’ statutory or
constitutional power to adjudicate the case.” Steel Co. v.
Citizens for Better Environment, 523 U. S. 83, 89 (1998).
This latter concept of subject-matter jurisdiction, because
it involves a court’s power to hear a case, can never be for-
feited or waived. Consequently, defects in subject-matter
jurisdiction require correction regardless of whether the
error was raised in district court. See, e. g., Louisville &
Nashville R. Co. v. Mottley, 211 U. S. 149 (1908). In con-
trast, the grand jury right can be waived. See Fed. Rule
Crim. Proc. 7(b); Smith v. United States, 360 U. S. 1, 6 (1959).
Post-Bain cases confirm that defects in an indictment
do not deprive a court of its power to adjudicate a case. In
Lamar v. United States, 240 U. S. 60 (1916), the Court re-
jected the claim that “the court had no jurisdiction because
the indictment does not charge a crime against the United
States.” Id., at 64. Justice Holmes explained that a dis-
1 In 1889, Congress authorized direct review of capital cases in the
Supreme Court. See 25 Stat. 655. In 1891, this right was extended to
defendants in all cases involving “infamous crime[s].” 26 Stat. 827; see
In re Claasen, 140 U. S. 200 (1891).

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trict court “has jurisdiction of all crimes cognizable under
the authority of the United States . . . [and] [t]he objec-
tion that the indictment does not charge a crime against
the United States goes only to the merits of the case.” Id.,
at 65. Similarly, United States v. Williams, 341 U. S. 58, 66
(1951), held that a ruling “that the indictment is defective
does not affect the jurisdiction of the trial court to determine
the case presented by the indictment.”
Thus, this Court some time ago departed from Bain’s view
that indictment defects are “jurisdictional.” Bain has been
cited in later cases such as Stirone v. United States, 361 U. S.
212 (1960), and Russell v. United States, 369 U. S. 749 (1962),
for the proposition that “an indictment may not be amended
except by resubmission to the grand jury, unless the change
is merely a matter of form,” id., at 770 (citing Bain, supra).
But in each of these cases proper objection had been made
in the District Court to the sufficiency of the indictment.
We need not retreat from this settled proposition of law de-
cided in Bain to say that the analysis of that issue in terms
of “jurisdiction” was mistaken in the light of later cases
such as Lamar and Williams. Insofar as it held that a de-
fective indictment deprives a court of jurisdiction, Bain is
overruled.
Freed from the view that indictment omissions deprive a
court of jurisdiction, we proceed to apply the plain-error test
of Federal Rule of Criminal Procedure 52(b) to respondents’
forfeited claim. See United States v. Olano, 507 U. S. 725,
731 (1993). “Under that test, before an appellate court can
correct an error not raised at trial, there must be (1) ‘error,’
(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ”
Johnson v. United States, 520 U. S. 461, 466–467 (1997) (quot-
ing Olano, supra, at 732). “If all three conditions are met,
an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error “seriously affect[s]
the fairness, integrity, or public reputation of judicial pro-

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ceedings.” 520 U. S., at 467 (internal quotation marks omit-
ted) (quoting Olano, supra, at 732).
The Government concedes that the indictment’s failure
to allege a fact, drug quantity, that increased the statu-
tory maximum sentence rendered respondents’ enhanced
sentences erroneous under the reasoning of Apprendi and
Jones. The Government also concedes that such error was
plain. See Johnson, supra, at 468 (“[W]here the law at
the time of trial was settled and clearly contrary to the
law at the time of appeal[,] it is enough that an error be
‘plain’ at the time of appellate consideration”).
The third inquiry is whether the plain error “affect[ed]
substantial rights.” This usually means that the error
“must have affected the outcome of the district court pro-
ceedings.” Olano, supra, at 734. Respondents argue that
an indictment error falls within the “limited class” of “struc-
tural errors,” Johnson, supra, at 468–469, that “can be cor-
rected regardless of their effect on the outcome,” Olano,
supra, at 735. Respondents cite Silber v. United States, 370
U. S. 717 (1962) (per curiam), and Stirone v. United States,
supra, in support of this position.2 The Government coun-
ters by noting that Johnson’s list of structural errors did not
include Stirone or Silber, see 520 U. S., at 468–469, and that
the defendants in both of these cases preserved their claims
at trial.
As in Johnson (see id., at 469), we need not resolve
whether respondents satisfy this element of the plain-error
inquiry, because even assuming respondents’ substantial
rights were affected, the error did not seriously affect the
2 Respondents also argue that even if the indictment defect is not struc-
tural error, it did affect their substantial rights because they were sen-
tenced to more than the 20-year maximum that § 841(b) authorizes without
regard to drug quantity. The Government responds that the defendants
had notice that their sentences could exceed 20 years, and that the grand
jury would have found that the conspiracy involved at least 50 grams of
cocaine base had the Government sought such an allegation.

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fairness, integrity, or public reputation of judicial proceed-
ings. The error in Johnson was the District Court’s failure
to submit an element of the false statement offense, material-
ity, to the petit jury. The evidence of materiality, however,
was “overwhelming” and “essentially uncontroverted.” Id.,
at 470. We thus held that there was “no basis for conclud-
ing that the error ‘seriously affect[ed] the fairness, integrity
or public reputation of judicial proceedings.’ ” Ibid.
The same analysis applies in this case to the omission of
drug quantity from the indictment. The evidence that the
conspiracy involved at least 50 grams of cocaine base was
“overwhelming” and “essentially uncontroverted.” 3 Much
of the evidence implicating respondents in the drug con-
spiracy revealed the conspiracy’s involvement with far more
than 50 grams of cocaine base. Baltimore police officers
made numerous state arrests and seizures between February
1996 and April 1997 that resulted in the seizure of 795 zip-
lock bags and clear bags containing approximately 380 grams
of cocaine base. 20 Record 179–244. A federal search of
respondent Jovan Powell’s residence resulted in the sei-
zure of 51.3 grams of cocaine base. 32 id., at 18–30. A co-
operating co-conspirator testified at trial that he witnessed
respondent Hall cook one-quarter of a kilogram of cocaine
powder into cocaine base. 22 id., at 208. Another cooperat-
ing co-conspirator testified at trial that she was present in a
hotel room where the drug operation bagged one kilogram
of cocaine base into ziplock bags. 27 id., at 107–108. Surely
the grand jury, having found that the conspiracy existed,
would have also found that the conspiracy involved at least
50 grams of cocaine base.
3 Respondents challenged the presentence reports’ assignment of a base
offense level of 38, which is applicable to 1.5 kilograms or more of cocaine
base. But they never argued that the conspiracy involved less than
50 grams of cocaine base, which is the relevant quantity for purposes of
Apprendi, as that is the threshold quantity for the penalty of life imprison-
ment in 21 U. S. C. § 841(b)(1)(A).

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Respondents emphasize that the Fifth Amendment grand
jury right serves a vital function in providing for a body
of citizens that acts as a check on prosecutorial power.
No doubt that is true. See, e. g., 3 Story, Commentaries on
the Constitution § 1779 (1883), reprinted in 5 The Founders’
Constitution 295 (P. Kurland & R. Lerner eds. 1987). But
that is surely no less true of the Sixth Amendment right to
a petit jury, which, unlike the grand jury, must find guilt
beyond a reasonable doubt. The important role of the petit
jury did not, however, prevent us in Johnson from applying
the longstanding rule “that a constitutional right may be for-
feited in criminal as well as civil cases by the failure to make
timely assertion of the right . . . .” Yakus v. United States,
321 U. S. 414, 444 (1944).
In providing for graduated penalties in 21 U. S. C. § 841(b),
Congress intended that defendants, like respondents, in-
volved in large-scale drug operations receive more severe
punishment than those committing drug offenses involv-
ing lesser quantities. Indeed, the fairness and integrity of
the criminal justice system depends on meting out to those
inflicting the greatest harm on society the most severe pun-
ishments. The real threat then to the “fairness, integrity,
and public reputation of judicial proceedings” would be if
respondents, despite the overwhelming and uncontroverted
evidence that they were involved in a vast drug conspiracy,
were to receive a sentence prescribed for those committing
less substantial drug offenses because of an error that was
never objected to at trial. Cf. Johnson, supra, at 470 (quot-
ing R. Traynor, The Riddle of Harmless Error 50 (1970)).
Accordingly, the judgment of the Court of Appeals is re-
versed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.