U.S.A. v. Sturdivant

• Decision Date: 05 September 2000
• Docket Number: Docket No. 00-1058
• Citation: 244 F.3d 71
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. ELBERT L. STURDIVANT, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 71

244 F.3d 71 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. ELBERT L. STURDIVANT, Defendant-Appellant.

Docket No. 00-1058

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 5, 2000.

Decided: March 19, 2001.

Appeal from a judgment entered on January 27, 2000 by the United States District Court for the Western District of New York (William M. Skretny, J.) convicting defendant after a jury trial of one count of possession with intent to distribute, and distribution of, cocaine base in violation of 21 U.S.C. § 841(a)(1) and sentencing defendant to 63 months' imprisonment. Because defendant would be prejudiced, absent resentencing, by the duplicity of his one count of conviction, we vacate the sentence as improperly based upon two separate and distinct drug transactions and remand for resentencing assuming conviction of only the drug transaction involving the lesser drug amount.

Judgment of conviction affirmed, sentence vacated and remanded.

EDWARD S. ZAS, The Legal Aid Society, Federal Defender Division, New York, NY, for defendant-appellant.

WILLIAM J. KNAPP, Assistant United States Attorney for the Western District of New York, for Denise E. O'Donnell, United States Attorney for the Western District of New York, Buffalo, NY, for appellee.

Before: CALABRESI and SOTOMAYOR, Circuit Judges, and TRAGER,^* District Judge.

SOTOMAYOR, Circuit Judge:

Defendant-appellant Elbert L. Sturdivant appeals from a judgment entered on January 27, 2000 by the United States District Court for the Western District of New York (Skretny, J.) convicting him after a jury trial of one count of possessing and distributing cocaine base. The court imposed a sentence of 63 months' imprisonment.

Defendant claims that he suffered prejudice by being convicted and sentenced based upon a count that was duplicitous, i.e., a single count in the indictment that charged him with participating in two separate and distinct drug transactions. This duplicity allegedly resulted in, among other things, uncertainty as to whether the jury's general verdict represented a unanimous finding that defendant was guilty based on participation in both drug transactions or just one. The jury, in fact, had been specifically instructed that it could convict on the charged count based on either finding. Defendant argues that he was harmed by this uncertainty because the district court at sentencing failed to recognize the possibility that he had been found guilty based on participation in only one transaction, and instead assumed that he had been convicted of possessing and distributing the aggregate drug quantity involved in both.

In response, the government contends that defendant has waived his duplicity argument by not asserting it prior to trial, and argues alternatively that the two transactions were related conduct that the judge could properly take into account in sentencing defendant under the United States Sentencing Guidelines (the "Guidelines"). See U.S.S.G. § 1B1.3 (1998).

We agree with defendant that his duplicity argument was not waived, and, in any event, we find that his claims with respect to the sentencing issue rises to the level of plain error. However, any prejudice to defendant resulting from the duplicity of the count of conviction can be avoided simply by resentencing defendant under the assumption that he was convicted only on the transaction involving the lesser drug amount and was acquitted on the other transaction. Thus, we affirm defendant's conviction, vacate his sentence, and remand for resentencing consistent with this opinion.

BACKGROUND

Defendant's indictment resulted from a federal investigation into the sale of crack cocaine in the Niagara Falls area of New York. As part of this effort, the Federal Bureau of Investigation ("FBI") obtained the assistance of an individual named William O'Neill, who claimed that he had come into contact with defendant during the course of his own drug use. The facts underlying defendant's indictment involve two transactions on the same day in which the defendant allegedly sold crack cocaine to O'Neill.

According to the testimony of government witnesses and other evidence presented by the government at trial, O'Neill telephoned defendant on February 9, 1997 at approximately 3 p.m. and arranged to meet him at a local car wash to purchase crack cocaine (the "Afternoon Transaction"). At the car wash, defendant supplied O'Neill with 3.4 grams of crack cocaine in exchange for $300. O'Neill also returned a small portion of the drugs to defendant as an additional "payment."¹ O'Neill then drove around the block and handed his purchase over to FBI agents. The agents monitored the entire transaction and recorded it on audio and video cassettes.

Later that day, O'Neill agreed to attempt another crack cocaine purchase from a different seller named Anthony Pascuzzi (the "Evening Transaction"). O'Neill telephoned Pascuzzi and arranged to meet at Pascuzzi's home. After O'Neill arrived and gave Pascuzzi $300, Pascuzzi left to retrieve the crack cocaine. He returned about twenty minutes later unexpectedly accompanied by defendant, at which time O'Neill received 2.8 grams of crack cocaine. O'Neill later testified that it was defendant who handed him the crack cocaine during the transaction, although the defense provided evidence that, immediately after the transaction, O'Neill had told the FBI that Pascuzzi had been the one providing him the drugs during the transaction. O'Neill testified that he gave both Pascuzzi and defendant twenty dollars for their assistance in providing him with the drugs, and might also have given a portion of the crack cocaine to defendant as he had done in the Afternoon Transaction.² FBI agents recorded this transaction on audio tape but not videotape.

Based on these two transactions, on September 8, 1998, defendant was charged with one count of conspiracy "to possess with intent to distribute, and to distribute, 5 grams or more of a substance containing cocaine base, 'crack,'" in violation of 21 U.S.C. § 846 (Count I) and one count of possession with intent to distribute, and distribution of, five grams or more of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (aiding and abetting) (Count II). Count II also cited to 21 U.S.C. § 841(b)(1)(B), which contains a mandatory statutory sentencing range of five to forty years for drug violations involving five grams or more of a substance containing cocaine base.

At the close of the government's case, defendant moved under Fed. R. Crim. P. 29 for a judgment of acquittal on both counts of the indictment. Defendant argued that Count I, the conspiracy count, should be dismissed because there was insufficient evidence to establish the existence of the conspiracy charged. The court agreed and dismissed Count I, holding that:

With respect to that [afternoon] transaction that I will term number one, the record, even viewing it in the light most favorable to the government, does not establish a link to transaction number two such that transaction number one and transaction number two would be one conspiracy as the government has argued.

The court also found that Count I could not be interpreted as encompassing a claim that each transaction involved its own separate conspiracy without running into duplicity problems, because Count I only charged the existence of one conspiracy.

Defendant argued that Count II should be dismissed because it was duplicitous, i.e., that the count actually included within its scope two distinct drug transactions not connected by any overarching conspiracy. As an alternative to dismissal, defendant asked the court to order the government to submit only one of the transactions to the jury and drop the other one. The court refused to grant the relief requested by defendant and instead held that a jury charge on unanimity would be sufficient to protect against the dangers posed by Count II's duplicity.

The court thus charged the jury:

In order to convict the defendant on Count 2, the only charge you have before you, all twelve of you must agree on the specific transaction the defendant committed in violation of the law. All of you must agree that the defendant illegally engaged in the afternoon transaction, or all of you must agree the defendant illegally engaged in the evening transaction, or all of you must agree the defendant illegally engaged in both transactions.

The judge also instructed the jury that drug quantity was not an element of the offense. The court did not order the jury to make any special findings regarding defendant's guilt with respect to each transaction, nor did the parties request a special verdict.

On August 6, 1999, the jury returned a general verdict of guilty on Count II. The court sentenced defendant on January 11, 2000 in reliance on the recommendations in the Presentence Investigation Report ("PSR") prepared by the Probation Office. The PSR had concluded that defendant's offense involved 6.2 grams of crack cocaine triggering a mandatory minimum prison term of five years (60 months) pursuant to 21 U.S.C. § 841(b)(1)(B). The PSR had also calculated defendant's sentence under the Guidelines to be 63-78 months' imprisonment based on an offense level of 26 (using the aggregate quantity of 6.2 grams involved in the two transactions) and a Criminal History Category of I. The PSR did not mention anything concerning the existence of a relationship between the two transactions or otherwise mention the concept of relevant conduct.

At the sentencing proceeding, the court noted that defendant had withdrawn a request, pursuant to the "safety valve" provided by 18 U.S.C. § 3553(f) and § 5C1.2 of the Guidelines, that his sentence not be constrained by the statutory minimum sentence of five years contained in 21 U.S.C. § 841(b)(1)(B). The court denied defendant's request for downward adjustments for acceptance of...