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U.S. v. WILLIAMS

May 30, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TIMOTHY WILLIAMS, DEFENDANT.



The opinion of the court was delivered by: I. Leo Glasser, United States District Judge.

MEMORANDUM & ORDER

On April 18, 2001, the Court of Appeals for the Second Circuit vacated and remanded for further proceedings a sentence imposed on the defendant approximately eight years ago on November 5, 1993, for possession with intent to distribute cocaine base (crack) and for three gun-related offenses. That sentence was reimposed (as will be hereafter explained) on June 27, 2000. 247 F.3d 353 (2d Cir. 2001). In vacating and remanding for further proceedings this Court was directed to clarify the sentence by specifying the amount of cocaine Williams possessed with intent to distribute and the amount he intended for personal use. Because that decision, in this Court's view, has significant implications for district courts in the Circuit, an extended discussion of the evolution of the case which brings it to this point is important for an understanding of those implications.

Following a two day jury trial on February 8 and 9, 1993, Williams was found guilty of possession with intent to distribute cocaine base in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(A); possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922 (k); possession and use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924 (c)(1); and possession of a firearm after being convicted of a felony in violation of 18 U.S.C. § 922 (g)(1).

of special significance to the ultimate issue addressed by this opinion is this brief excerpt from the testimony of Robert Berger, a Special Agent with the Bureau of Alcohol, Tobacco and Firearms, who inteiviewed the defendant shortly after his arrest.

Q. Did you ask him about anything other than the firearms?

A. Yes. Then I began to ask him about his drug dealing operation.

Q. What did he tell you about that?

A. I asked him where he was buying it. He told me he was buying it from a pool hall in East New York.

Q. When you say it, could you be more specific?

A. He said he was buying cocaine powder and that he would cook it up himself with crack. He would, you know, weigh it, package it, and pretty much sell it himself. He said he was buying it about one or two times a week and one or two ounces at a time.

Q. Did he say - did you ask him anything else?

A. He asked - he said his wife had nothing to do with it. That she didn't know what was going on. I asked him what he was doing with the money, and he said that the money he was making he was just spending on the wife and kids. Buying them jewelry and clothes.
Q. Just to be clear, did he specify what money he was referring to?

...

A. The money he was making from selling drugs.

Tr. at 120-121 (emphasis added).*fn1

of particular relevance to this decision is that portion of my charge to the jury which was as follows:

First thing you must determine is whether the defendant possessed cocaine base. The government must prove that what the defendant was charged with, possessing with intent to distribute was, in fact, cocaine base.
The government doesn't have to prove that the defendant possessed any specific quantity of cocaine base. It is sufficient if the government has proved that the defendant possessed cocaine base with intent to distribute it regardless of what the quantity was.

Tr. at 260.

If you find that the defendant possessed cocaine base, you find that he knew he possessed cocaine base, the third element which the government must prove beyond a reasonable doubt is that he possessed those drugs with the intent to distribute.
The word "distribute" in this context simply means to deliver, hand over to, pass on to somebody else or to cause to be handed over or passed on to somebody else, to attempt to do so.
To prove intent to distribute, the government has to prove beyond a reasonable doubt that the defendant had control over the drugs with the state of mind, with the purpose to deliver them, pass them on, turn them over to somebody else. And the same considerations that apply to your determination as to whether he knew he possessed drugs will apply to your determination concerning his intent to distribute.
You can't read a defendant's mind. You have to draw inferences from a defendant's behavior.
You may not convict the defendant unless those inferences persuade you beyond a reasonable doubt that he intended to distribute the drugs.
When I say that you must find that he intended to distribute the drugs, that doesn't mean that you have to find that he intended personally to distribute the drugs, it is enough if you find that he intended to cause or assist the distribution of the drugs by anybody else.
What you are determining basically is whether the cocaine base was for the defendant's personal use or was it for the purpose of distribution.
It is often possible to make that determination from the quantity of drugs, which have been found in the defendant's possession.
And possession of a large quantity of cocaine base doesn't necessarily mean that the defendant intended to distribute it. Just as it is possible that a defendant who possessed the small quantity of cocaine base may have intended to distribute it.
In deciding whether the defendant intended to distribute cocaine base. again. consider all of the evidence, which has been presented during the course of the trial.

Tr. at 264-265 (emphasis added).

In commenting upon my charge, the Court made reference to that portion of it in which I instructed the jury that "the government does not have to prove that the defendant possessed any specific quantity of cocaine base. It is sufficient if the government has proved that the defendant possessed cocaine with intent to distribute it, regardless of what the quantity was," and then wrote: "In light of this instruction, it was error for the district court to rely on the jury verdict as the basis for a finding that Williams intended to distribute more than 50 grams of cocaine base." 247 F.3d at 359. I did not rely on the jury verdict as a basis for finding the quantity of cocaine base possessed by Williams with intent to distribute. I did rely upon the jury verdict as a basis for finding the intent with which Williams possessed the cocaine base, intent being an element of the offense which must be submitted to and found by the jury beyond a reasonable doubt. The bases for my finding the amount of crack cocaine Williams possessed with the requisite intent required by § 841 will be, as directed, clarified hereafter.

The statutory sentencing provision for his possession with intent to distribute cocaine base was a minimum imprisonment term of 20 years and a maximum of life, 21 U.S.C. ยง 841 (b)(1)(A); for possession of the Mossberg shotgun and the Glock pistol with an obliterated serial number, the maximum imprisonment term was 5 years; for possession of the firearms in connection with the drug offense, a mandatory term of 5 years required to run ...


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