U.S. v. Henry

• Decision Date: 02 April 2003
• Docket Number: Docket No. 00-1558.,Docket No. 00-1516.
• Citation: 325 F.3d 93
• Parties: UNITED STATES of America, Appellee, v. William HENRY; Betty Henry, also known as Sealed Deft. # 6; Dennis J. Dattolo, also known as Sealed Deft. # 5; Anthony Santamaria, also known as Sealed Deft. # 3; Raymond A. Newkirk, also known as Sealed Deft. # 4; Michael Gonzalski, also known as Sealed Deft. # 5, Defendants, Edmund L. Panek, also known as Sealed Deft. # 4, also known as Sealed Deft. # 2, and Alexander Panek, also known as Phil Panek, also known as Sealed Deft. # 1, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

325 F.3d 93

UNITED STATES of America, Appellee, v. William HENRY; Betty Henry, also known as Sealed Deft. # 6; Dennis J. Dattolo, also known as Sealed Deft. # 5; Anthony Santamaria, also known as Sealed Deft. # 3; Raymond A. Newkirk, also known as Sealed Deft. # 4; Michael Gonzalski, also known as Sealed Deft. # 5, Defendants Edmund L. Panek, also known as Sealed Deft. # 4, also known as Sealed Deft. # 2, and Alexander Panek, also known as Phil Panek, also known as Sealed Deft. # 1, Defendants-Appellants.

Docket No. 00-1516.

Docket No. 00-1558.

United States Court of Appeals, Second Circuit.

Argued: December 14, 2001.

Decided: April 2, 2003.

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John W. Mitchell, New York, New York, for Defendant-Appellant Edmund L. Panek.

David G. Secular, Assistant Federal Public Defender (Alexander Bunin, Federal Public Defender, on the brief), Syracuse, New York, for Defendant-Appellant Alexander Panek.

Brenda K. Sannes, Assistant United States Attorney (Joseph A. Pavone, United States Attorney for the Northern District of New York, on the brief), Syracuse, New York, for Appellee.

Before: FEINBERG, POOLER, SOTOMAYOR, Circuit Judges.

POOLER, Circuit Judge.

Alexander Panek and Edmund Panek appeal from the judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge) after a jury convicted both Alexander Panek and Edmund Panek of conspiracy to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846 and Alexander Panek of conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). The district court sentenced Alexander Panek and Edmund Panek to 151 months and 78 months imprisonment, respectively. On appeal, defendants-appellants argue that: 1) their sentences are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); 2) there was insufficient evidence to support Alexander Panek's conviction for conspiracy to launder monetary instruments; 3) the district court erred by failing to disclose the entire contents of a jury note; 4) the district court erred in giving an Allen charge when three of the jurors were merely "undecided;" 5) the district court erred by denying defense counsel the right to review the Allen charge before giving it to the jury; 6) the Allen charge was impermissibly coercive; 7) the district court erred in holding that the defendants were not entitled to pro tanto credit for monies the government collects from their co-conspirators; and 8) the district court erred in denying Edmund Panek's motion for a mistrial based upon the government's inclusion of the money laundering charge, which was dismissed after its case-in-chief. We find defendants-appellants' contentions to be without merit, and we affirm their convictions and sentences.

BACKGROUND

In 1997 and 1998, the United States Attorney's Office for the Northern District of New York charged Alexander Panek, Edmund Panek, Anthony Santamaria, Raymond Newkirk, Michael Gonzalski, William Henry, Betty Henry, and Dennis Dattolo with various criminal acts arising out of an alleged conspiracy to distribute marijuana. As relevant to this appeal, Santamaria, Newkirk, William and Betty Henry, and Dattolo all pleaded guilty prior to trial and were sentenced to various terms of imprisonment. As part of their respective plea agreements, the pleading defendants agreed that the "gross proceeds" of the marijuana conspiracy amounted to $2,000,000 and that each would be jointly and severally liable for this amount.

Alexander Panek and Edmund Panek went to trial June 22, 1999, and stipulated to chemists' reports verifying the authenticity of the marijuana that the police seized in connection with this case. Alexander Panek was charged with one count of conspiracy to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846; two counts of conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Edmund Panek was charged with one count of conspiracy to possess with intent to distribute and to distribute marijuana in violation of 21 U.S.C. § 846 and one count of conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h).

At the close of its case-in-chief, the district court granted the government's motion to dismiss Count Two of the indictment, the sole money laundering conspiracy charge against Edmund Panek. Edmund Panek moved for a mistrial, arguing that the government's references in its opening statement to his involvement in the money laundering conspiracy prejudiced the jury against him with respect to the remaining marijuana conspiracy charge. The court denied Edmund Panek's motion.

The jury began deliberating July 7, 1999, and, at the end of the next day, sent the district court a note stating:

We are not able to reach a unanimous vote on Count 1 on Edmund Panek. Do we continue to deliberate? There are no requests for additional explanations on issues. Does 3 undecided, 9 guilty indicate an "automatic" not guilty? An automatic anything? All other counts have been decided.

The district court met with the parties in chambers and read an edited version of the note. The court omitted the portion of the note referring to the numerical division. The court also did not inform the parties that it had redacted the note. The district court then informed the parties that it intended to give the jury a "modified Allen charge" the next morning. The district court told Edmund Panek's defense counsel that he could review the charge if he reported to chambers shortly before 8:30 the next morning. When counsel arrived at chambers the morning of July 9, 1999, however, the district court told him that the charge was "still being edited and reviewed" and was not available for inspection. Almost immediately thereafter, at 8:37 a.m., the district court delivered the following Allen charge to the jury:

As I've instructed you in my charge, in order to return a verdict in this case, each juror must agree as to each count with respect to each defendant. In other words, your verdict must be unanimous. You should, therefore, consider all the evidence in the case and fully deliberate upon that evidence in a conscientious manner. Remember at all times that the Government has the burden of proof beyond a reasonable doubt. Also remember your oath, that when you were sworn in as jurors, and this panel was picked, your oath was that you would try this case and attempt to render a true verdict according to the evidence and the law, keep that in mind.

Furthermore, although each juror must decide the case for him or herself, this should be done after an impartial consideration of all the evidence with your fellow jurors.

Now, in the course of your deliberations as a juror, you must examine everybody's point of view. You should not hesitate to reexamine your own views and to change your opinion if you are convinced that it is erroneous. Each juror who finds him or herself in a minority should consider his or her view in light of the opinion of the jurors in the majority; conversely, each juror finding him or herself in the majority should give equal consideration to the view of the minority.

Now no juror should surrender his or her honest conviction as to the weight or the effect of the evidence to his fellow or her fellow jurors or for the purpose of returning a verdict. But remember also that after full deliberation and consideration of all the evidence, it is your duty to try to agree upon a verdict if you can do so without violating your individual judgment and conscience.

Now this has been a fairly long trial, about three weeks, and at some considerable expense and money and human effort, so if your deliberations do not end in agreement on a verdict, the case is necessarily left open and undecided, and in all likelihood it would have to be tried again before another jury, a jury which would have to be selected in the same manner you were. There's no reason to believe that this case would be better tried or would reveal any more or different evidence than you have heard. Nor is there any reason to believe that 12 different people would be more impartial or pay more attention to the evidence or make a greater effort to resolve the issues.

Now these considerations that I just laid out for you are but a reminder that your task, although not an easy one, is one of making a conscientious decision, which I feel you are fully equipped to make. And I hope that what I've said will help you deal with the differences that are preventing you from reaching an agreement. But you are free to disregard everything I've said, except the law as I've given it to you, and you must apply the law to the facts as you find them to be.

I would like to suggest at this time that you return to the jury room and reflect upon what I've said and resume your deliberations for such time as you, in your judgment, feel to be reasonable with the help that you can conscientiously reach an agreement.

Now again, it's up to you, you're the jurors, you are the judges of the facts, but these comments are just to give you some guidance as to, again, remind you what your responsibilities are and hopefully maybe you can resolve the issues that are keeping you separate and keeping you from [a] unanimous verdict. But if that isn't the case, then you let me know, all right.

After the jury was dismissed, defense counsel objected to the district court's failure to afford him the opportunity to review the charge before it was given to the jury. Defense counsel also objected to the "minority/majority" language in the charge, as well as the district court's failure to instruct the jury that it was permitted to return a partial verdict.

On July...