United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)
At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: McCourty ran away from some police officers and dropped a bag containing a small amount of both drugs on the street. Twenty minutes late, the officer found him at his grandmother’s apartment wearing a backpack that contained more than five grams of crack.
Before trial, defense counsel noted a duplicity “problem” with this count and asked for a “special interrogatory” to avoid a general verdict that would not reveal the type or quantity of drugs the jury found that McCourty had possessed. The district judge addressed this problem in the verdict sheet, which split the count into two questions. Part (a) asked whether McCourty possessed drugs with the intent to distribute on the street and part (b) asked whether he possessed drugs with intent to distribute in the apartment. Part (b) had a follow-up: if the jury answered “guilty” on this question, it had to decide whether there was more than five grams of crack. In the end, the jury could not reach a verdict on question (a) and acquitted on question (b). Post-trial, the defense moved for a directed verdict on question (a), since the wording of original count mentioned “five grams or more” of crack on that date. The defense argued that the acquittal on question (b) precluded further prosecution as to the events of that date.
The court denied the motion and, after a retrial, McCourty was convicted of what was left of this count – the possession of cocaine and crack on the street. The court sentenced him to seventy-eight months’ imprisonment, the bottom of the guideline range.
On appeal, McCourty argued that by splitting the count, the district court constructively amended the indictment, in violation of the Fifth Amendment’s Grand Jury Clause. In addition, he argued that the acquittal on question (b) was an acquittal of the entire “offense,” and thus that the Double Jeopardy Clause should have prohibited a retrial on question (a). The circuit disagreed and affirmed.
First, it held that there was no constructive amendment because “neither the trial evidence nor the jury charge altered” the count, which itself identified two separate bases for the offense – that the district court “distinguished the two bases of liability is of no consequence.” All the verdict sheet did was identify the apartment as the place of one instance of drug possession and the street as another. This did not “alter any element of the single crime of drug possession occurring on that date.” “Indeed” – according to the circuit -“we have encouraged such special verdict sheets or interrogatories in cases where the indictment may be ambiguous.”
As for the double jeopardy claim, the court held, “Where the jury is directed to make specific findings as to the separate bases of liability set forth in the indictment, we see no danger of a double jeopardy violation.” Accordingly, a defendant may be retried for a portion of a count “to which he was neither acquitted nor convicted provided the jury is particular about its findings with respect to the different theories of liability contained in that count.”
At the brighter side, however, the court granted McCourty a Regalado remand.