United States v. Ross, 14-2498

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtFOR THE COURT: Catherine O'Hagan Wolfe, Clerk
PartiesUNITED STATES OF AMERICA, Appellee, v. TERRY L. ROSS, WANDA KINGSLEY, Defendants-Appellants, KENNETH MCGUINNESS, HERBERT BURDICK AKA JUNIOR, GREGORY HENDRICKSON, ADAM WILLSON, Defendants.
Decision Date24 May 2017
Docket Number14-2498,14-4292

UNITED STATES OF AMERICA, Appellee,
v.
TERRY L. ROSS, WANDA KINGSLEY, Defendants-Appellants,
KENNETH MCGUINNESS, HERBERT BURDICK AKA JUNIOR,
GREGORY HENDRICKSON, ADAM WILLSON, Defendants.

14-2498
14-4292

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

May 24, 2017


SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of May, two thousand seventeen.

Present: JOHN M. WALKER, JR., DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges.

For Defendants-Appellants:

STEPHEN LANCE CIMINO, ESQ. (Ross); LISA A. GILELS, ESQ. (Kingsley), both of Syracuse, New York

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For Appellee:

RAJIT S. DOSANJH, Carl G. Eurenius, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York

UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendants-Appellants Terry L. Ross and Wanda Kingsley appeal from a judgment of conviction of the United States District Court for the Northern District of New York (Suddaby, C.J.), entered on February 12, 2014, for conspiracy to manufacture 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; conspiracy to possess and distribute a listed chemical, knowing that it would be used to manufacture a controlled substance, in violation of 21 U.S.C. §§ 841(c)(2), 846; and possession and distribution of a listed chemical, knowing that it would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2). Ross and Kingsley also appeal from an order denying their motions for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 and for a new trial pursuant to Federal Rule of Criminal Procedure 33, entered June 16, 2014. Finally, Ross appeals the court's sentence entered June 17, 2014, and Kingsley appeals the court's sentence entered November 5, 2014. We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal, some of which we discuss briefly below.

I. Background1

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In early 2012, the government began an investigation into methamphetamine production and distribution in Central New York. In the illicit production of methamphetamine, individuals known as "smurfers" in the drug trade purchase pseudoephedrine, a decongestant and a key ingredient in the production of methamphetamine, from retail locations. Logs from pharmacies in the Central New York area identified Ross and Kingsley as individuals making more than the authorized number of pseudoephedrine purchases.2 Evidence presented during the three-day trial showed that Ross and Kingsley, along with other co-defendants, made "smurfing" trips to stores and pharmacies between November 2010 and January 2012. Once Ross and Kingsley acquired the pseudoephedrine, other members of the conspiracy "cooked" it into methamphetamine using lantern fuel and the "shaking" method. Ross and Kingsley sometimes assisted with the cooking process. In return for their smurfing and other assistance, Ross and Kingsley received finished methamphetamine.

Upon their conviction, by jury, of all the charges against them, Ross and Kingsley both filed motions for a judgment of acquittal and for a new trial. The district court denied these motions. The court sentenced Ross principally to 108 months' imprisonment and four years of supervised release. Kingsley was sentenced principally to 70 months' imprisonment and four years of supervised release.

On appeal, Ross and Kingsley challenge the sufficiency of the evidence underlying their convictions, the denial of their motions for judgments of acquittal and a new trial, and the court's

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decision not to issue a requested jury instruction. They also argue for the first time on appeal that the district court committed both procedural and substantive error at sentencing.

II. Discussion

We review a defendant's preserved challenge to the sufficiency of the evidence supporting his conviction de novo. United States v. Pierce, 785 F.3d 832, 837-38 (2d Cir. 2015). This Court must uphold the jury's verdict so long as "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review a district court's decision on a defendant's motion for a new trial for abuse of discretion. United States v. James, 712 F.3d 79, 107 (2d Cir. 2013). We review jury instructions de novo, reversing "when the charge, viewed as a whole, constitutes prejudicial error." United States v. Amato, 540 F.3d 153, 164 (2d Cir. 2008). Finally, this Court reviews unpreserved procedural challenges to sentences for plain error, United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007), and challenges to the substantive reasonableness of a sentence for abuse of discretion,3 Gall v. United States, 552 U.S. 38, 52 (2007).

A. Motions for a Judgment of Acquittal

Ross and Kingsley argue, at the start, that the evidence presented at trial was insufficient to sustain their convictions. We affirm the district court's decision for substantially the reasons stated in its thorough opinion. Viewing the evidence, as required, in the light most favorable to the government, see United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000), pharmacy logs

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and cooperating witnesses' testimony established that Ross and Kingsley purchased pseudoephedrine with other "smurfers" on multiple occasions. Laurie Burdick, a cooperating witness, testified further that Kingsley shoplifted other items used to manufacture methamphetamine, including batteries. In addition, cooperating witnesses including Burdick and Kenneth McGuinness testified that Ross and Kingsley assisted with the cooking process, either by crushing pills, shaking the bottle, or looking out for police officers or passers-by while the "cook" took place. As the district court stated, the evidence was more than sufficient to support the jury's verdict as to each of the four counts.

As to Count One, Ross and Kingsley urge, in addition, that even assuming the jury determination was otherwise supported by sufficient evidence, a reasonable jury could not have concluded that they participated in a conspiracy involving the manufacture of 50 grams or more of methamphetamine, as the indictment charged. Pursuant to the penalty provisions of 21 U.S.C. § 841(b), defendants may be held responsible for drug quantities in a...

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