The opinion of the court was delivered by: I. Leo Glasser, United States District Judge.
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
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
A. Yes. Then I began to ask him about his drug dealing
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
Q. Just to be clear, did he specify what money he was
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,
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
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
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. § 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 ...