Appeal from a judgment of conviction and sentence entered September 7, 2007, in the United States District Court for the Eastern District of New York (Gleeson, J.), convicting defendant-appellant, after a jury trial, of three counts of possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and (b)(1)(C), and sentencing him to a term of incarceration of 78 months, which defendant is currently serving, a term of supervised release of 3 years, and a $300 special assessment, the District Court having rejected defendant's claims of constructive amendment and double jeopardy.
AFFIRMED; and REMANDED for resentencing.
The opinion of the court was delivered by: Miner, Circuit Judge
Argued: November 13, 2008
Before: MINER, SOTOMAYOR, and KATZMANN, Circuit Judges.
Defendant-appellant appeals from a judgment of conviction and sentence entered on September 7, 2007, in the United States District Court for the Eastern District of New York (Gleeson, J.), convicting defendant, after a second jury trial, of three counts of possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and (b)(1)(c). Following the convictions, the District Court imposed a sentence of incarceration of 78 months; a term of supervised release of 3 years; and a $300 special assessment. The defendant currently is serving his sentence.
Appellant contends that his rights under the Grand Jury Clause and the Double Jeopardy Clause of the Fifth Amendment were violated because (1) the trial court provided a special verdict sheet to the jury in which Count Three of a Third (and final) Superseding Indictment was split into two parts ("a" and "b"), with each part describing a different time and place for the charge of possession with intent to distribute a controlled substance on May 11, 2006; and (2) the trial court allowed the defendant to be retried on part "a" following the jury's verdict of not guilty as to part "b" and its failure to reach a verdict as to part "a." Appellant also claims that some or all of the testifying police officers lied under oath about material matters at defendant's second trial, and, therefore, that the District Court abused its discretion in denying his Rule 33 motion for a new trial in the interest of justice. Finally, Appellant argues that he should be entitled to re-sentencing, pursuant to Kimbrough v. United States, 128 S.Ct. 558 (2007), so that the District Court may consider the Appellant's argument post-Kimbrough that the Sentencing Commission's disparate treatment of "crack" and powder cocaine was unwarranted and rendered the advisory sentencing range in this case "greater than necessary" under 18 U.S.C. § 3553. For the reasons that follow, we affirm the judgment of conviction but remand for the limited purpose of allowing the District Court to re-sentence the Appellant in light of Kimbrough.
On June 8, 2006, a grand jury in the Eastern District of New York returned an indictment charging defendant-appellant Peter McCourty with four counts: possession with intent to distribute unspecified amounts of cocaine and cocaine base on June 16, 2005, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count One"); possession with intent to distribute unspecified amounts of cocaine and cocaine base on or about and between May 1, 2006, and May 11, 2006, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count Two"); possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ("Count Three"); and possession of a firearm in furtherance of a drug trafficking crime, the crime charged in Count Two, in violation of 18 U.S.C. § 924(c) ("Count Four").
On July 27, 2006, a grand jury returned a superseding indictment charging McCourty with the same four counts as in the initial indictment but adding to Count One a specification of a quantity of five grams or more of cocaine base and a reference to 21 U.S.C. § 841(b)(1)(B)(iii), which provides an enhanced penalty for possession of that amount of cocaine base. On October 19, 2006, in response to a September 12, 2006 pre-trial motion made by the defense, the grand jury returned a second superseding indictment. The second superseding indictment separated Count Two of the superseding indictment into two counts, one charging possession of unspecified amounts of cocaine and cocaine base on May 1 and the other charging possession of unspecified amounts of cocaine and cocaine base on May 11. These counts became Count Two (May 1) and Count Three (May 11), respectively.
McCourty also moved in his September 12, 2006 pre-trial motion for severance of Count One of the second superseding indictment.*fn1 He argued that the offense charged in Count One involved an incident that took place almost a year before the incidents described in the remaining counts. McCourty also argued that the events of May 11, 2006, involved a chase, as well as an alleged gun possession that might prejudice the jury in regard to Count One. The District Court granted the motion and ordered that Count One be tried separately from the remaining counts. The parties agreed that Count Four (the felon-in-possession count) would be tried separately from Counts Two, Three, and Five and that trial would proceed immediately on Count Four after the jury returned its verdict on the latter counts.
On December 11, 2006, the grand jury returned a third - and final - superseding indictment (the "Superseding Indictment"), which added a quantity of five grams or more of cocaine base to the previously unspecified amount of cocaine base charged in Count Three (May 11) and a reference to 21 U.S.C. § 841(b)(1)(B)(iii). In sum, McCourty was charged under the Superseding Indictment with possession of an unspecified amount of cocaine and five grams or more of cocaine base on June 16, 2005 (Count One); possession of unspecified amounts of cocaine and cocaine base on May 1, 2006 (Count Two); possession of an unspecified amount of cocaine and five grams or more of cocaine base on May 11, 2006 (Count Three); possession of a firearm as a convicted felon (Count Four); and possession of a firearm in furtherance of a drug trafficking crime, i.e., the drug-trafficking crime charged in Count Three (Count Five).
Prior to the start of the first trial, defense counsel raised the issue of a "duplicity problem" with regard to Count Three.*fn2 Defense counsel claimed that Count Three alleged that McCourty had possessed both powder cocaine and at least five grams of cocaine base on or about May 11, 2006. Accordingly, counsel argued, in the event of a simple "guilty" verdict returned by the jury as to Count Three, that verdict would not reveal either the type or quantity of drugs that McCourty would be found to have possessed. Defense counsel submitted that the duplicity problem could be "cured" by a "special interrogatory" asking the jury if it found that McCourty possessed over five grams of crack cocaine. The District Court stated that the issue could be addressed on the verdict sheet ("Verdict Sheet") for Count Three and that it would "deal with this at the charge conference." The court then swore in the jury, and the first trial began. With regard to Counts Two, Three, and Five, the government presented the following evidence in support of its case-in-chief.
A. Count Two (Drug Possession On May 1, 2006)
New York Police Department ("NYPD") Officers Kirk Anderson and Gabriel Dobles testified as follows concerning the events on May 1, 2006: The officers encountered McCourty at approximately 6 p.m., while they were on routine anticrime patrol in an unmarked vehicle. Officer Joseph Rodriguez of the NYPD was also in the vehicle with them. The three officers were traveling eastbound on Hegeman Avenue in Brooklyn, New York, when Officer Anderson saw McCourty standing on the south side of Hegeman Avenue, across from the east side of the Bristol Street corner. Officer Anderson was approximately 10-to-12 feet from McCourty when he saw McCourty standing in an unobstructed no-parking zone. Officer Anderson observed McCourty conduct a hand-to-hand drug transaction with another individual: McCourty was holding an inside-out rolling tobacco pouch in one hand and passed a smaller bag from that pouch to another individual. Officer Anderson then told the other officers in his vehicle what he had seen, and he and the other officers exited the patrol car and approached McCourty. When McCourty observed the officers approaching him, he turned away and dropped the tobacco pouch to the ground and began to walk in the opposite direction. Officer Anderson then recovered the pouch from the ground. McCourty was placed under arrest, and a post-arrest search of McCourty revealed baggies of marijuana, which the officers seized. At the time of his arrest, McCourty stated to the officers: "You're taking me for this bullshit? Next time I'll just run." The substance contained within the pouch McCourty dropped to the ground tested positive for powder and crack cocaine.
Based on this incident, McCourty was charged in Kings County Criminal Court with criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, and unlawful possession of marijuana, and he was released. The state charges were eventually adjourned in contemplation of dismissal.
B. Counts Three (Drug Possession On May 11, 2006) and Five (Firearm Possession On May 11, 2006)
The offense described in Count Three of the Superseding Indictment encompassed two events:
On or about May 11, 2006, within the Eastern District of New York, the defendant PETER McCOURTY did knowingly and intentionally possess with intent to distribute a controlled substance, which offense involved (a) a substance containing cocaine, a Schedule II controlled substance, and (b) 5 grams or more of a substance containing cocaine base, a Schedule II controlled substance.
(Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(B)(iii) and 841(b)(1)(C); Title 18, United States Code, Sections 3551 et seq.).
At trial, Officers Anderson and Dobles provided testimony regarding the events of May 11, 2006. These events served as the basis for the charges included in both Counts Three and Five. At approximately 11 p.m. on that day, Officers Anderson and Dobles were on patrol with their supervising officer, Sergeant Thomas Lent. The officers were traveling southbound on Amboy Street and, when the vehicle reached the intersection of Amboy Street and Hegeman Avenue, the officers saw McCourty standing on the northeast corner of the intersection, only two blocks from where McCourty was arrested on May 1.
The officers were approximately 10-to-12 feet from McCourty, who was standing in an area well-lit by street lights and also lit by lights along the wall of the parking garage across the street. The officers observed McCourty holding an inside-out rolling tobacco pouch in one hand and passing a smaller bag from that pouch to another individual. After observing this, the officers drove their police vehicle up onto the sidewalk, at which time McCourty, who saw the officers and their car on the sidewalk, ran away. McCourty ran across Hegeman Avenue towards Amboy Street. While in flight, McCourty dropped the item that he had been holding onto Hegeman Avenue. Officer Anderson recovered the item, which was later determined to be a package containing powder cocaine and crack cocaine, and continued to chase McCourty. Officer Anderson testified that, during the chase, he observed McCourty clutching a gun and attempting to put it into his pocket or waistband.
Officers Dobles and Lent pursued McCourty into a parking lot on Amboy between Hegeman Avenue and Linden Boulevard, but they did not catch him. The officers then chased McCourty into a three-family house at 1043 Thomas Boyland Street, but he eluded the officers at that location. Approximately twenty minutes later, the officers went to McCourty's grandmother's apartment located at 1381 Linden Boulevard, Apartment 5A, which was an address where the officers believed McCourty could be found. Once there, Officer Dobles observed McCourty in the doorway of the apartment, apparently attempting to leave. At that moment, McCourty was wearing what appeared to Officer Dobles to be a knapsack.
McCourty shut himself in the apartment, and the officers knocked on the door, but McCourty would not open the door. The officers eventually "gained forcible entry into the apartment," but McCourty was no longer inside, having apparently utilized a balcony to make his escape. Within the apartment, the officers found a gun that resembled the one that Officer Anderson had seen in McCourty's hand earlier that night and a knapsack containing drugs, drug paraphernalia, and McCourty's New York State identification card. The substances contained within the foil pouch McCourty dropped to the ground and within the knapsack tested positive for powder and crack cocaine; the crack cocaine found within the backpack amounted to over five grams.
C. Count Four (Felon-In-Possession of a Firearm)
In the separate portion of the trial pertaining only to Count Four, the government, in addition to the foregoing testimony, produced stipulations that the gun McCourty allegedly possessed on May 11, 2006, had traveled in interstate commerce and that McCourty was a convicted felon.
The defense called an investigator who had taken photographs of the repair shop and street corners on which McCourty was observed on May 1 and May 11, 2006, in an attempt to establish that the officers could not have seen the events to which they had testified. On cross-examination, the defense witness admitted that he had no knowledge of the officers' actual perspective on the dates McCourty was observed nor any personal knowledge of the events on the dates in question.
II. The Charge Conference and Verdict Sheet
At the charge conference following the close of trial, the District Court discussed Count Three and the duplicity issue raised by defense counsel prior to the start of the trial. Because Count Three of the Superseding Indictment charged McCourty with "possess[ing] with intent to distribute a controlled substance, which offense involved (a) a substance containing cocaine, . . . and (b) 5 grams or more of a substance containing cocaine base" on or about May 11, 2006, Count Three encompassed the entirety of the drugs allegedly possessed by McCourty on May 11:
(1) the cocaine and crack cocaine that he threw on the street and (2) the cocaine and more than five grams of crack cocaine found in his ...