U.S. v. Rowe
| Decision Date | 02 April 2019 |
| Docket Number | No. 18-1192,18-1192 |
| Citation | 919 F.3d 752 |
| Parties | UNITED STATES of America v. Anthony ROWE, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
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
Before: SMITH, Chief Judge, McKEE and FISHER, Circuit Judges.
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.
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.
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).
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.
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 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.
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.
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.
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.
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.
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 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.
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.
Our review of the sufficiency of the evidence is plenary, but "we must consider the evidence in the light most favorable 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...
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