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United States v. Gore
Citations: 154 F.3d 34; 1998 WL 515720Docket: Docket No. 97-1027
Court: Court of Appeals for the Second Circuit; August 21, 1998; Federal Appellate Court
Defendant Harvey Wells appeals a conviction and sentence from January 6, 1997, in the Northern District of New York for engaging in a heroin distribution conspiracy and related offenses. He was convicted on three counts: (i) conspiracy to distribute heroin under 21 U.S.C. § 846, (ii) distribution of heroin on July 13, 1995, under 21 U.S.C. § 841, and (iii) possession of heroin with intent to distribute on the same date, leading to a concurrent 27-month prison sentence for each count, three years of supervised release, and a $50 special assessment per count. The investigation into heroin trafficking began in Spring 1995, led by the Albany Police Department using confidential informants. Bruce Taft, arrested in March 1995, became an informant and, on July 13, 1995, recorded a transaction with Wells where he purchased heroin branded 'Fuji Power' for $45. This interaction, including a taped conversation where Wells discussed pricing and quality of heroin, was central to the prosecution's case. On September 20, 1995, a Superseding Indictment charged Wells and 22 others with narcotics-related offenses. Wells proceeded to trial pro se, assisted by a legal advisor. His trial lasted four days in September 1996, with the government's case relying solely on the recorded transaction with Taft, supported by witness testimony to establish the authenticity of the tape and the chain of custody of the drugs. The government presented testimony from the arresting officer, a DEA chemist, and a DEA agent regarding the drugs involved in the case against Harvey Wells, who was accused of selling heroin labeled 'Fuji Power'. The prosecution aimed to establish that Wells was part of a conspiracy to distribute this brand of heroin, supported by witness testimonials about its prevalence in Albany. However, evidence linking Wells to a broader conspiracy was limited to a single sale and did not include any corroborative witness testimony or proof of a supplier. The prosecution argued that Wells' comments on a recorded conversation implied a supplier relationship, yet no evidence confirmed the existence of this supplier. Wells did not testify in his defense. The jury found him guilty on all counts on September 17, 1996. At sentencing on December 19, 1996, the court assigned an Offense Level of 12 and a Criminal History Category of V, resulting in a 27-month prison term, three years of supervised release, and a $50 assessment per count. Wells filed an appeal, which was initially dismissed for lack of prosecution but later reinstated with new counsel appointed. On appeal, Wells raised three main issues: the sufficiency of evidence for his conspiracy conviction, the legality of being convicted for both distribution and possession based on the same sale, and claims of spillover prejudice from evidence related to the conspiracy charge. The appellate court noted the high burden on defendants challenging the sufficiency of evidence, emphasizing that the evidence must be viewed in the light most favorable to the government. A jury's verdict must be upheld if any rational fact-finder could conclude that the essential elements of the crime were proven beyond a reasonable doubt, regardless of whether the evidence is direct or circumstantial. Wells was convicted under Section 846 of Title 21 of the U.S. Code, which penalizes attempts or conspiracies to commit offenses within the subchapter. To establish a conspiracy charge, the government must show that the defendant knew of the conspiracy and actively participated in it. Evidence of both the conspiracy’s existence and the defendant’s intent can be circumstantial; the defendant does not need to know all co-conspirators or the details of the conspiracy. However, the mere buyer-seller relationship between Wells and Taft does not constitute a conspiracy. The government claims that a tape-recorded conversation between them indicates a conspiratorial relationship. Wells’ statement about not wanting to lose face with an unidentified person suggests a buyer-seller dynamic but fails to demonstrate a conspiratorial agreement to distribute drugs. The law requires at least two parties to agree to commit a criminal act for a conspiracy to exist. While parties can agree without knowing each other's identities, evidence must show the existence and complicity of unknown co-conspirators. Wells’ vague remark, made during a single heroin transaction, is insufficient to support the essential element of a conspiracy—the agreement. This is similar to precedent cases where mere presence or knowledge of crime was deemed inadequate to sustain a conspiracy conviction. The government argued that jurors should be allowed to infer an agreement in a drug conspiracy case without a clear connection between the established facts and the inferred conclusion. However, the evidence regarding Wells did not specify the nature or quantity of drugs involved, making any conclusion about an agreement purely speculative. Consequently, the court determined that no rational jury could find Wells guilty beyond a reasonable doubt for the narcotics conspiracy charge, leading to a reversal of his conviction on that count. Regarding the merger of convictions, Wells contended that the district court improperly allowed convictions for both distributing heroin and possessing heroin with intent to distribute based on a single sale of heroin. He argued that these offenses should merge into one, given that the only evidence presented was for the amount sold. The government countered that Wells did not properly preserve this merger claim during his trial. However, Wells asserted that he forfeited the issue rather than waived it, allowing for plain error review under Rule 52(b). The court agreed, clarifying that forfeiture occurs when an issue is not raised but not intentionally abandoned. Wells's failure to timely assert the merger issue did not indicate a strategic decision, allowing for the review of the district court’s handling of the merger of the distribution and possession charges for plain error. Rule 52(b) allows appellate courts to notice plain errors affecting substantial rights, even if not raised at trial. The Supreme Court, in Olano, established that for an appellate court to correct such an error, three conditions must be met: (1) there must be an error, (2) it must be "plain," and (3) it must affect substantial rights. Additionally, if these conditions are satisfied, the court may only act if (4) the error significantly undermines the fairness, integrity, or public reputation of judicial proceedings. The burden of proof lies with the appellant, Wells, to demonstrate that the district court committed a plain error. Wells argues that the "merger" rule for § 841(a)(1) convictions was "plain" at the time of his trial, supported by case law from other circuits and judicial dicta. The determination of whether an error is "plain" hinges on whether it is clear or obvious under existing law. A "plain" error is one so egregious that it indicates a failure on the part of the trial judge and prosecutor to recognize it, despite the defendant's non-objection. Generally, multiple punishments for the same conduct are impermissible unless explicitly intended by Congress, as reinforced by various Supreme Court precedents, including the Double Jeopardy Clause, which protects against multiple punishments for the same offense. The Court has not directly ruled on the application of Double Jeopardy concerning multiple punishments for the distribution and possession with intent to distribute a controlled substance under § 841(a)(1) when based on a single transaction. Other circuits consistently hold that convicting a defendant for both offenses stemming from the same transaction, without evidence of separate possession, results in unintended double punishment. The absence of this Court’s direct precedent on the matter does not preclude deeming a district court error as 'plain,' especially given that there is consensus among other circuits. Additionally, multiple convictions for the same offense can be addressed under the plain error doctrine. In light of applicable Supreme Court and Circuit Court law, convicting and sentencing an individual for both distribution and possession arising from a single transaction violates double jeopardy principles. The analysis for determining if separate federal convictions from a single event contravene double jeopardy includes examining the statute's language, the applicability of the Blockburger test—which assesses if each offense requires proof of a unique fact—and any express congressional intent regarding multiple punishments. The Blockburger test determines whether two offenses are distinct by checking if each requires proof of an element not needed by the other. Past Supreme Court rulings indicate that offenses may be deemed the 'same' if one is a lesser included offense of the other, as seen in cases concerning firearm offenses where receipt inherently includes possession. The Blockburger test is utilized to discern congressional intent regarding the imposition of separate sanctions for multiple offenses stemming from a single act or transaction. While it plays a significant role in addressing issues of multiple punishments for the "same offense," circuit courts have rarely applied it in cases involving multiple punishments under § 841(a)(1). For example, the Fifth Circuit determined that Blockburger did not apply in Hernandez, arguing that the case involved interpretation of phrases within a single law rather than separate statutes. Conversely, the Sixth Circuit in United States v. Miller applied the Blockburger test to § 841(a)(1) offenses, concluding that Congress intended for separate convictions for manufacture and possession with intent to distribute due to the disjunctive phrasing of the statute. The First Circuit also applied Blockburger, finding that possession with intent to distribute and distribution could be distinct offenses, as the proof required for each may differ. Specifically, to establish distribution, the government must demonstrate that the defendant knowingly and intentionally distributed a controlled substance, while possession requires knowledge of possession with the intent to distribute. Overall, the elements of these offenses must be compared under Blockburger to determine if they constitute different offenses warranting cumulative punishment. The First Circuit establishes that the crime of distribution includes an element not required for possession with intent, specifically the act of distribution. Circuit courts have found that proof of distribution does not inherently include possession, indicating that possession with intent can be proven without evidence of distribution, and vice versa. This aligns with the Blockburger test, which asserts that each offense must require proof of a distinct fact. However, the First Circuit recognizes that possession and distribution can merge if distribution is the sole evidence of possession or if possession only exists at the time of distribution. Circuits following the merger rule allow for separate convictions under § 841(a)(1) for both possession with intent and distribution when there is independent evidence of prior possession or separate evidence for each offense. Thus, generally, possession with intent and distribution are not considered the same offense, nor is possession with intent always a lesser included offense of distribution, except in cases where the defendant's actions consist solely of handing over drugs. In such scenarios, the offenses do not satisfy the Blockburger test, as they would not require proof of different facts. Most circuit cases on the merger of these offenses reference the Supreme Court's decision in Prince, which addresses separate clauses within the same statute. In Prince, the Court determined that Congress did not intend to impose cumulative penalties for lesser offenses associated with a greater crime. The Court found that the mental element of the lesser offense merges into the completed crime, leading to a remand for resentencing while preserving the separate convictions. This principle was similarly applied in cases regarding possession of a controlled substance and illegal importation, where the convictions were deemed to merge once the latter offense was committed. Congress enacted Section 841 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 to penalize possession with intent to distribute controlled substances, particularly in cases of unconsummated distribution. The legislative history indicates a strong intent to impose severe penalties on drug distributors compared to mere possessors. Courts have consistently recognized that simple possession is a lesser included offense of possession with intent to distribute, although there is inconsistency regarding its relationship to distribution charges. Possession with intent to distribute merges with distribution when the distribution is the sole evidence of possession. In the case of Wells, who was convicted of both possession with intent to distribute and distribution for a single sale of heroin, there was no evidence of additional drugs, demonstrating that his possession merged into distribution. The court found that the district court erred in this context, which was clear and obvious under existing law. The question of whether this error affected Wells’s substantial rights was addressed, concluding that the error was prejudicial and likely influenced the outcome of the proceedings, as Wells argued that he would not have been convicted had the error not occurred. Thus, the burden of proving the error's prejudice lies with the defendant. Possession with intent to distribute typically runs concurrently with distribution sentences. The Supreme Court in Rutledge determined that a second conviction under 18 U.S.C. § 3013 incurs a $50 special assessment, constituting a second punishment with collateral consequences, such as affecting parole eligibility and recidivist status. Therefore, even if no greater sentence results, the second conviction is deemed impermissible. Prior cases vacated second sentences for possession while allowing second convictions to stand, but subsequent rulings in Ball and Rutledge reversed both. Based on these precedents, both the second conviction and sentence in this case should be vacated, as established in Mendoza and Rosario. Wells received three concurrent 27-month terms for his convictions, calculated under U.S.S.G. § 2D1.1 for drug offenses, with a total special assessment of $150. The district court's imposition of multiple punishments for the same offense was erroneous, violating Rutledge. Wells demonstrated that this error affected his substantial rights, undermining the fairness and integrity of judicial proceedings. The court's imposition of unauthorized punishments not only contravenes double jeopardy protections but also infringes on the principle of separation of powers, significantly impacting individual liberty. Errors of constitutional significance are treated more liberally than less serious errors. The court is more inclined to recognize plain error when the relief sought has a lesser impact on the judicial system than a new trial. Consequently, the court has exercised its discretion to address the plain error raised by Wells's appeal, which, if unaddressed, would undermine the fairness and integrity of judicial proceedings. Wells successfully met the stringent four-part test for plain error, resulting in the vacating of his conviction for possession with intent to distribute heroin. Wells also claims he deserves a new trial on the remaining non-conspiracy counts due to spillover prejudice from the invalidated conspiracy conviction. He argues that evidence introduced for the conspiracy charge regarding the police investigation into heroin distribution would not have been admissible had he only faced simple narcotics charges, and this evidence was prejudicially similar to that for the other counts. The Government contends that such background information would have been admissible regardless of the conspiracy charge, thus causing no prejudice. In assessing claims of spillover prejudice from evidence related to an overturned count, the court considers several factors: 1) whether the evidence from the invalidated count could lead the jury to convict on remaining counts; 2) the similarity of facts between the reversed and remaining counts; 3) the dissimilarity of evidence allowing jurors to separate their considerations; and 4) the strength of the government’s case on remaining counts against potential spillover prejudice. In this case, the evidence supporting the conspiracy was minimal, making it unlikely to influence the jury’s decisions on the remaining counts. Conversely, the strength of the evidence for the remaining counts might have impacted the jury's verdict on the weaker conspiracy charge. Additionally, the evidence related to the conspiracy was deemed admissible as background evidence in a trial focused solely on narcotics sales. No new trial is necessary as there is no spillover prejudice from the minimal background and cumulative evidence related to the invalidated convictions. The court vacates the defendant's convictions on Counts 1 and 18, affirming the conviction on Count 47 for heroin distribution under 21 U.S.C. § 841(a)(1) and remanding for resentencing based solely on this conviction. Other circuits have consistently ruled that a mere buyer-seller relationship in drug transactions does not demonstrate a conspiratorial agreement under 21 U.S.C. § 846, as established in several precedential cases. The court distinguishes the current case from United States v. Young, where the defendant did not sufficiently raise a "merger" argument regarding multiple drug offenses, thus waiving the right to appeal. In contrast, the defendant here, Wells, did not waive his "merger" claim due to the lack of specific objections at trial and the failure of the Young court to analyze the "merger" claim for plain error. The court notes that Wells's claim is reviewable under Rule 52(b), which addresses errors that affect substantial rights. Previous cases have indicated no merger issue when the possession count pertains to different heroin than the distribution count. The court recognizes the complexity of the "merger" issue but refrains from making a definitive ruling at this time. A conviction for possession with intent to distribute requires actual distribution, but the reasoning in Young lacks sufficient legal authority to establish a clear rule. In United States v. Welbeck, it was stated that possession of crack cocaine is a lesser included offense of distribution, as all elements for possession are also required for distribution. However, this statement was not thoroughly discussed or supported by citations, suggesting it is merely dicta. In Welbeck, the defendant was charged with possession with intent to distribute cocaine base but was ultimately convicted of mere possession after a lesser included offense instruction was given. The defendant argued against the district court's denial of a downward departure based on the Probation Department's recommendation, claiming he deserved a lesser penalty for the lesser charge, but the court's ruling was based on its discretion and the advisory nature of probation reports. The Welbeck case did not analyze the elements of distribution in detail regarding the applicability of the Blockburger test, thus offering no binding precedent for determining whether distribution necessarily includes possession as an element.