United States v. Anthony Rowe , 919 F.3d 752 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 18-1192
______
UNITED STATES OF AMERICA
v.
ANTHONY ROWE,
Appellant
______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 1-16-cr-00210-001)
District Judge: Honorable Sylvia H. Rambo
______
Argued on December 12, 2018
Before: SMITH, Chief Judge, McKEE and FISHER, Circuit
Judges.
(Filed: April 2, 2019)
Peter Goldberger [ARGUED]
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
Daryl F. Bloom
Stephen R. Cerutti, II [ARGUED]
David J. Freed, United States Attorney
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Anthony Rowe was charged in a one-count indictment
with distribution and possession with intent to distribute 1000
grams of heroin in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A). Rowe conceded that he distributed approximately
200 grams, so the trial focused on whether he had actually
distributed 1000 grams or more. The jury returned a general
verdict finding Rowe guilty of the offense in the amounts of
both 1000 grams or more and 100 grams or more. Rowe argues
that the evidence was insufficient to convict because the
Government did not prove that he distributed or possessed
1000 grams of heroin in a single unit, instead relying on
evidence of multiple smaller distributions and possessions
during the indictment period. He also challenges his sentence,
arguing that the District Court relied on information lacking
sufficient indicia of reliability to determine his offense level.
2
We agree that the evidence was insufficient to support
the 1000-gram verdict. We will therefore vacate the judgment
of conviction based on the 1000-gram verdict and remand to
the District Court to enter a judgment of conviction based on
the 100-gram verdict. Because this conclusion resolves Rowe’s
appeal of the judgment, we will not address his additional
arguments concerning duplicity of the indictment and
prosecutorial misconduct. Regarding Rowe’s sentence, we will
vacate and remand for re-sentencing with the instruction that
the Government may not introduce additional evidence on drug
quantity.
I.
Investigation, Arrest, and Indictment
Government witness and confidential informant
William Pierce was arrested on April 20, 2016 after about ten
grams of marijuana and forty grams of heroin were discovered
in the rental car he was driving. Pierce offered to cooperate and
subsequently made controlled transactions under surveillance.
On June 25, 2016, Pierce paid Rowe $3900 and received
198.86 grams of heroin, and on June 27, 2016, Pierce paid him
$7000 in pre-recorded bills for heroin Pierce had previously
received. Rowe was arrested shortly afterward. Officers
recovered a small notebook, several cell phones, and cash that
matched the pre-recorded bills.
Rowe was indicted in the Middle District of
Pennsylvania for one count of distributing and possessing with
intent to distribute 1000 grams and more of heroin, a Schedule
I controlled substance, from on or about February 2016
through on or about June 25, 2016, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A).
3
The Trial
At trial, Rowe conceded that he had delivered
approximately 200 grams of heroin to Pierce while under
surveillance. Due to Rowe’s concession, the only contested
issue was drug weight; the jury was charged with determining
whether Rowe distributed or possessed with intent to distribute
1000 grams or more of heroin, or a lesser amount (100 grams
or more). The Government’s theory throughout the trial was
that because Rowe distributed or possessed with intent to
distribute a total of 1000 grams or more of heroin during the
indictment period, a 1000-gram verdict was justified. To
support its theory, the Government presented the testimony of
Pierce and a Drug Enforcement Administration agent, as well
as the notebook found when Rowe was arrested.
1. Testimony of Confidential Informant William
Pierce
Pierce’s testimony implicated Rowe in sales totaling as
much as 1700 grams of heroin during the indictment period.
Pierce testified that when he met Rowe for the first time in
February 2016, he attempted to purchase twenty-eight grams
of heroin, but actually received twenty-one grams (a
discrepancy that Rowe attributed to unintentional error).
During this first meeting, Pierce saw a black bag (which he
described as a “regular . . . little store bag”) in Rowe’s vehicle
with six to eight packages inside, with numbers on each
package that read “50 or a hundred or 75.” App. 169a. Pierce
believed these numbers indicated the amount of drugs in the
packages.
In the following months, Pierce testified that he bought
heroin from Rowe one to two times a week for $75 to $85 per
gram. Pierce recalled buying twenty-one grams in February
2016 and fifty grams shortly thereafter. There were larger
transactions as well: eight purchases of 100 grams and three
4
purchases of 150 to 200 grams. Pierce also testified about the
two controlled transactions.1 Pierce testified that in all, he
bought $80,000 to $140,000 worth of heroin from Rowe at
around $82.50 per gram, which would indicate a total amount
of 969.7 to 1697 grams.
Pierce testified that Rowe often wrote in “little
notebooks.” App. 209a-210a. When presented with the
notebook confiscated from Rowe upon his arrest, Pierce
testified that notations on a page marked “DO” tracked his
purchase and payment history with Rowe, including the
controlled transactions.
2. Expert Testimony of DEA Special Agent
Shuffelbottom
DEA Special Agent Eric Shuffelbottom, who had
experience in narcotics, undercover investigations, and
domestic and international drug smuggling, provided expert
testimony. He testified that based on his experience, the
notebook appeared to be a drug ledger, that is, “a record
keeping of drug transactions and money transactions.” App.
363a. He testified that the initials at the tops of the pages likely
referred to customers, and that the numbers below the initials
likely referred to the amount of product fronted to each
customer. Special Agent Shuffelbottom further testified that
additional notations tracked customers’ payments and
remaining debts. He explained that the notation “275x70” on
the inside cover of the ledger could refer to a 275-gram
purchase of a $70-per-gram substance.
1
At trial, Pierce seemed to confuse the two controlled
transactions, providing inconsistent testimony regarding how
much he paid Rowe on which date. The facts were
subsequently clarified through additional testimony from
Pierce and from officers who were involved in the transactions.
5
In addition to testifying about the ledger, Special Agent
Shuffelbottom testified generally about the heroin trade. For
example, he testified that one thousand grams of heroin could
cost between $65,000 and $75,000 and that individual amounts
of heroin were often packaged in “thin wax paper bags.” App.
358a. Special Agent Shuffelbottom also testified that a dealer
selling 200 grams of heroin at a time would likely have access
to multi-kilogram quantities. Finally, he testified about how
dealers use cell phones to conduct business and that they often
transport drugs from larger cities to smaller communities by
car.
3. The Ledger
The Government argued that the notebook was Rowe’s
drug ledger, pointing to Pierce’s and Special Agent
Shuffelbottom’s testimony, and also drawing connections
between Pierce’s testimony, the notations on the “DO” page,
and the marked funds from the controlled transactions. Over
defense counsel’s objection, the District Court admitted the
ledger in its entirety.
4. Closing Argument
In closing, the prosecutor argued, based on the evidence
of multiple distributions, that the Government presented
sufficient evidence to prove the 1000-gram drug weight. For
instance, he tallied the figures in the ledger to arrive at a “drug
ledger total” of 1066 grams. App. 405a. He argued that Pierce’s
testimony and his corresponding page in the ledger indicated
that the notations in the ledger referred to heroin.
5. The Instructions, Verdict, and Post-Trial Motion
The District Court instructed the jury that it had to
decide “whether the Government has proved beyond a
reasonable doubt that Mr. Rowe distributed 1 kilogram or more
of heroin.” App. 452a. The jury also had the option of returning
6
a verdict for the lesser-included 100 grams. It returned a guilty
verdict for both drug weights.
Rowe filed a post-trial motion for a judgment of
acquittal or a new trial, arguing that the evidence was
insufficient to support the jury’s 1000-gram verdict,
particularly because the District Court did not instruct the jury
on how to “determine the particular weight of heroin that was
involved in the crime.” App. 496a. The District Court denied
the motion.
Sentencing
Rowe objected to the Presentence Report (PSR)
calculation that his offense involved at least ten kilograms of
heroin, resulting in a base offense level of thirty-four under
U.S.S.G. § 2D1.1(c)(3). The PSR determination was based on
a statement Rowe was alleged to have made at the time of his
arrest regarding his heroin supplier. However, evidence of that
statement had been excluded at trial, and the Government
neither called a witness nor introduced any documentary
evidence concerning the statement at sentencing. Rowe
therefore argued that the Government had not presented any
evidence that his offense involved the requisite ten kilograms
of heroin. Despite Rowe’s objection, the Court “adopt[ed] the
pre-sentence investigation report without change,” App. 549a,
and imposed a within-Guidelines sentence of 151 months’
imprisonment followed by five years’ supervised release.
II.2
Insufficient Evidence to Support the 1000-Gram Verdict
Our review of the sufficiency of the evidence is plenary,
but “we must consider the evidence in the light most favorable
2
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
7
to the government and affirm the judgment if there is
substantial evidence from which any rational trier of fact could
find guilt beyond a reasonable doubt.” United States v.
Benjamin, 711 F.3d 371, 376 (3d Cir. 2013) (citations and
internal quotation marks omitted). Our task therefore is to
determine “whether the Government has adduced sufficient
evidence respecting each element of the offense charged to
permit jury consideration.” United States v. Miller, 527 F.3d
54, 63 (3d Cir. 2008) (citation omitted).
The Government may rely on direct and circumstantial
evidence to make its case to the jury. United States v.
Caraballo-Rodriguez, 726 F.3d 418, 425 (3d Cir. 2013). While
it is axiomatic that reasonable inferences can support a verdict,
they “must bear a logical or convincing connection to
established fact.” Id. (citation and internal quotation marks
omitted). In the end, “[t]he question is whether all the pieces of
evidence against the defendant, taken together, make a strong
enough case to let a jury find [the defendant] guilty beyond a
reasonable doubt.” Id. at 432 (quoting United States v. Cooper,
567 F.2d 252, 254 (3d Cir. 1977)).
The Government charged Rowe with violating 21
U.S.C. § 841(a)(1) by two means: distributing heroin, and
possessing it with intent to distribute. The Government further
charged that the violation involved 1000 grams or more of
heroin, but provided the jury with two options for a finding on
drug weight: 1000 grams or more, and 100 grams or more.
Under § 841(b)(1)(A)(i), a violation of § 841(a) involving
1000 grams or more of heroin requires a mandatory minimum
penalty of ten years’ imprisonment and sets a maximum
penalty of life imprisonment. Under § 841(b)(1)(B)(i), a
violation of § 841(a) involving 100 grams or more of heroin
U.S.C. § 3742(a).
8
requires a mandatory minimum penalty of five years’
imprisonment and sets a maximum penalty of forty years’
imprisonment. Because the weight involved in a violation of
§ 841(a) increases the statutory penalty, it is an element of the
offense that must be proven beyond a reasonable doubt. See
Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Any fact
that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a
reasonable doubt.”). Therefore, the question presented here is
whether the evidence was sufficient to allow a jury to find that
Rowe violated § 841(a) by distributing 1000 or more grams of
heroin, or by possessing with intent to distribute 1000 or more
grams of heroin.
Under 21 U.S.C. § 802(11), distribution occurs when a
controlled substance is delivered. Delivery is “the actual,
constructive, or attempted transfer of a controlled substance.”
21 U.S.C. § 802(8). Our sister circuits have held that “[t]he
plain language of [§ 841(a)] indicates” that “each unlawful
transfer [is] a distinct offense.” United States v. Lartey, 716
F.2d 955, 967 (2d Cir. 1983). See United States v. Mancuso,
718 F.3d 780, 793 (9th Cir. 2013); see also United States v.
Elliott, 849 F.2d 886, 889 (4th Cir. 1988) (“The more precise
terms ‘deliver’ and ‘transfer’ suggest that Congress intended
the statute to criminalize individual acts, rather than a
continuous course of conduct.”). We agree with their reasoning
and hold that “separate acts of distribution of controlled
substances are distinct offenses under 21 U.S.C. § 841(a), as
opposed to a continuing crime.” Mancuso, 718 F.3d at 793.3
3
The Eleventh Circuit has held that distribution
continued where a defendant “performed acts in furtherance of
[a] sale” in two districts, physically transferring a controlled
substance in one and receiving payment in another, for the
9
At trial, the Government did not present evidence of a
single distribution involving 1000 grams or more of heroin.
The prosecutor mistakenly believed that distribution of 1000
grams could be proven by combining several distributions that,
in total, involved 1000 grams of heroin. Rowe challenged this
approach in his post-trial motion. The District Court confirmed
that the Government was mistaken, and the Government
concedes the same before this Court.4 However, the District
Court found that because Rowe was also charged with
possession with intent to distribute, a continuing offense, the
jury’s general verdict could stand. We disagree. As we will
now explain, the Government’s understanding of possession
with intent to distribute was also flawed, and the Government
did not present sufficient evidence of possession with intent to
distribute 1000 grams of heroin.
Possession with intent to distribute is actual or
constructive possession over a controlled substance, United
States v. Crippen, 459 F.2d 1387, 1388 (3d Cir. 1972) (per
curiam), by a defendant who “ha[s] in mind or plan[s] in some
purpose of establishing venue in either district. United States
v. Brunty, 701 F.2d 1375, 1381 (11th Cir. 1983). See United
States v. Tingle, 183 F.3d 719, 727 (7th Cir. 1999) (distribution
may continue for venue purposes). However, that analysis does
not contradict our conclusion that separate acts of distribution
may not be combined and prosecuted as “part of a single
continuing scheme” under § 841. Mancuso, 718 F.3d at 793.
4
“[T]he United States does not dispute that each time
that Rowe distributed heroin to a customer it constituted a
separate and discrete crime.” Br. of Appellee at 17. “The
United States also concedes that it did not admit evidence of
any single transaction Rowe engaged in during which he
distributed 1000 grams or more of heroin.” Id. at 18.
10
way” to “deliver or transfer possession or control” of the
controlled substance to another. Third Circuit Model Criminal
Jury Instruction § 6.21.841-5. Constructive possession
requires “the power and the intention at a given time to
exercise dominion or control over a thing.” Benjamin, 711 F.3d
at 376 (quoting United States v. Garth, 188 F.3d 99, 112 (3d
Cir. 1999)). Proof that a defendant associated with a person
who controls a drug is insufficient to prove constructive
possession. Garth, 188 F.3d at 112.
Unlike distribution, possession with intent to distribute
is a continuing offense. United States v. Zidell, 323 F.3d 412,
422 (6th Cir. 2003) (collecting cases).5 “A continuing offense
is a continuous, unlawful act or series of acts set on foot by a
single impulse and operated by an unintermittent force,
however long a time it may occupy.” United States v. Midstate
Horticultural Co., 306 U.S. 161, 166 (1939) (citation omitted).
In Benjamin, we looked at another possession statute—felon in
possession of a firearm—and held that continuity is interrupted
by “relinquishment of both actual and constructive possession
of the gun before it is reacquired.” 711 F.3d at 378 (citation
and alteration omitted). Applying our reasoning in Benjamin to
§ 841, we conclude that possession of 1000 grams of heroin
begins when a defendant has the power and intention to
exercise dominion and control over all 1000 grams, and ends
when his possession is interrupted by a complete dispossession
or by a reduction of that quantity to less than 1000 grams.
5
See United States v. Uribe, 890 F.2d 554, 559 (1st Cir.
1989); United States v. Baskin, 886 F.2d 383, 388 (D.C. Cir.
1989), cert. denied, 494 U.S. 1089 (1990); United States v.
Stitzer, 785 F.2d 1506, 1519 (11th Cir. 1986), cert. denied, 479
U.S. 823 (1986).
11
The Government’s evidence supporting the 1000-gram
verdict was premised on its incorrect belief that it could
combine weights from multiple distributions and
discontinuous possessions during the indictment period. The
Government acknowledged its error at oral argument, Oral
Arg. at 18:32, but asserted that even so, it had presented
sufficient evidence to support a reasonable inference that at
some point during the indictment period, Rowe possessed at
least 1000 grams of heroin with intent to distribute. We are
unconvinced. If we assume that the jury did not combine the
amounts distributed or possessed over time, and instead sought
to determine whether Rowe possessed a 1000-gram quantity of
heroin at least once during the indictment period, the
Government’s evidence was not sufficient to permit any
rational juror to make such a finding beyond a reasonable
doubt.
From Pierce’s testimony about his first encounter with
Rowe, a rational juror could have inferred that: (1) there were
up to eight packages in Rowe’s black bag; (2) each package
contained up to 100 grams of a substance; and (3) based on the
confusion between the twenty-eight gram and twenty-one gram
packages, two or more packages contained heroin. Assuming,
based on Pierce’s testimony about the markings on the bags,
that at least one bag was marked “50,” one was marked “75,”
every other bag was marked “100,” and adding that to the
twenty-one grams Rowe possessed before distributing that
package to Pierce, a rational juror could conclude that Rowe
possessed and intended to distribute 746 grams of heroin. No
rational juror could have found beyond a reasonable doubt,
based on this testimony, that Rowe possessed 1000 grams or
more of heroin at that time.
Nor did Special Agent Shuffelbottom’s expert
testimony fill the evidentiary gap. Special Agent
12
Shuffelbottom opined that a dealer who could sell 200 grams
of heroin at a time (as the evidence showed Rowe did) would
have access to multi-kilogram quantities. However, testimony
about the amount of heroin that dealers generally would be able
to access is insufficient to support a finding that Rowe had
constructive possession of 1000 grams of heroin at any
particular time. This evidence might be a basis for speculation,
but it is not proof beyond a reasonable doubt.
The ledger corroborated Pierce and Special Agent
Shuffelbottom’s testimony, but failed to provide the necessary
logical step between Rowe’s discrete distributions and
possessions and an instance of possession of 1000 grams of
heroin. The Government’s theory was that all of the notations
in the ledger referred to heroin Rowe distributed during the
indictment period. Yet, despite its obvious evidentiary value,
the ledger lacked dates. Without details about the timing of
transactions, a rational juror would only have been able to
speculate about whether Rowe possessed a quantity of at least
1000 grams at one time during the indictment period.
All of the evidence—including Pierce’s testimony,
Special Agent Shuffelbottom’s testimony, and the ledger—
was insufficient, even considered in the light most favorable to
the Government, to allow a rational juror to find that Rowe
possessed at least 1000 grams of heroin at a single time with
the intent to distribute it. We will therefore vacate the
conviction as to the 1000 grams of heroin.
We further note that where, as here, the Government’s
presentation of the evidence rested upon an incorrect
understanding of the offense, the District Court failed to
correct the error by instruction, and the general verdict does not
assist this Court in understanding how the jury arrived at its
determination, we are reluctant to proceed as though the jury
was not misled. See Caraballo-Rodriguez, 726 F.3d at 431.
13
Deference to jury verdicts is premised on an expectation that
jurors “are instructed extensively as to what evidence they can
consider, how to consider it, and . . . the relevant legal
principles.” Id. That did not happen here, and the logic of
Caraballo-Rodriguez provides additional support for our
decision to vacate.6
6
Rowe offers two additional arguments to challenge his
conviction: that the indictment was duplicitous, and that the
prosecutor committed misconduct in his closing argument. We
will not address these arguments as they relate to the 1000-
gram verdict, because we have already decided to strike that
verdict as unsupported by sufficient evidence. Nor do these
arguments jeopardize the 100-gram verdict. In requesting a
remedy, Rowe argues: “[a]t least, the degree of the conviction
must be reduced based on the jury’s alternative, 100-gram
verdict . . . although there is no clear basis to infer that the jury
was in fact unanimous as to any occasion with respect to that
theory either.” Br. of Appellant at 29. While that request does
not explicitly acknowledge that the 100-gram verdict would
survive the duplicity argument, at oral argument Rowe
conceded that the jury agreed on the 100-gram verdict:
Chief Judge Smith: But we do know,
though, that the
jury agreed with
respect to the
100-gram
conviction,
right?
Mr. Goldberger: That’s true.
Oral Arg. at 11:54.
14
Sentencing Error
Rowe challenges the District Court’s acceptance of the
drug weight calculation in the PSR. The Government agrees
that the District Court erred in adopting that calculation.7
Having reviewed the District Court’s sentencing
determination, we also conclude that the court abused its
discretion by basing its determination on unsupported drug
weight assertions.8 Therefore, we will vacate the sentence.
Furthermore, Rowe’s argument that the prosecutor
erred in encouraging the jury to combine the figures in the
ledger as if they all tracked heroin distributions only affects the
jury’s 1000-gram finding. At the beginning of the trial, Rowe
referred to the fact that he had distributed at least 100 grams of
heroin as “undisputed.” App. 133a. Even if we employed our
usual harmless error standard, we would find that the jury
could have returned a guilty verdict for distributing at least 100
grams of heroin “notwithstanding the asserted error.” United
States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (quoting
United States v. Hasting, 461 U.S. 499, 506 (1983)). And in
this case, our review would be even more deferential because
Rowe did not object to the prosecutor’s closing argument. See
United States v. Fulton, 837 F.3d 281, 306-07 (3d Cir. 2016)
(employing plain error review when appellant had not objected
to prosecutor’s statements at trial).
7
The Government acknowledges—with commendable
candor—that “[u]pon thorough review of the record, the
United States agrees that the 10+ kilogram calculation is
problematic and that the district court did not address the basis
for its acceptance of that amount in enough detail.” Br. of
Appellee at 38. See Oral Arg. at 18:04.
8
In calculating the U.S. Sentencing Guidelines range, a
district court may consider “largely unlimited” sources of
15
What remains is the parties’ dispute about whether, on remand,
the Government should be permitted to develop the record on
the drug weight issue.
At sentencing, “the government bears the burden of
proof by a preponderance of the evidence,” United States v.
Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (citation omitted),
and ordinarily is only afforded one opportunity to carry its
burden. United States v. Dickler, 64 F.3d 818, 832 (3d Cir.
1995). We have recognized a limited exception to our distaste
for “a second bite at the apple,” id. (quoting United States v.
Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)), when the
Government “has tendered a persuasive reason why fairness . .
. requires” that the sentencing court “provid[e] the government
with an additional opportunity to present evidence on remand.”
Id. In Dickler, we imagined such an exception would apply
where “the government, for want of notice or any other reason
evidence, United States v. Paulino, 996 F.2d 1541, 1547 (3d
Cir. 1993) (citation omitted), but must base its determination
on information that “ha[s] sufficient indicia of reliability to
support its probable accuracy.” United States v. Freeman, 763
F.3d 322, 337 (3d Cir. 2014) (citation omitted); U.S.S.G.
§ 6A1.3(a). Conclusory assertions regarding drug weight in a
PSR will not support a sentencing court’s determination of
quantity for the purposes of fixing a Guidelines range. See
Freeman, 763 F.3d at 337 (citing United States v. Shacklett,
921 F.2d 580, 584 (5th Cir. 1991) (per curiam) (requiring a
sentence to be vacated because the sentencing court relied on
the probation officer’s “conclusory statement” regarding drug
quantity)). Here, the District Court erred in relying on Rowe’s
alleged admission that he received large quantities of heroin
from his supplier despite the fact that the Government did not
present any evidence of such a statement.
16
beyond its control, does not have a fair opportunity to fully
counter the defendant's evidence.” Id.At oral argument, the Government conceded that
Dickler stands for the proposition that the Government should
not generally receive a second opportunity to present evidence
for sentencing absent a persuasive reason, but was unable to
offer one. Oral Arg. at 28:58. We do not perceive any such
reason, and therefore the Government will not be permitted to
introduce additional evidence regarding drug quantity. It may
argue for any sentence supported by the existing record.
III.
For the reasons explained above, we will vacate the
judgment of conviction for distribution and possession with
intent to distribute 1000 grams or more of heroin, and we will
remand to the District Court for entry by the Court of a
judgment of conviction for distribution and possession with
intent to distribute 100 grams or more of heroin. We will also
vacate the sentence and remand for re-sentencing. Upon re-
sentencing, the Government may not introduce new evidence
to prove drug quantity.
17