Sunday, March 20th, 2011

Nothing Special

Morales v. United States, No. 04-0585-pr (2d Cir. March 11, 2011) (Pooler, Hall, Livingston, CJJ)

Although decisions in habeas cases are generally beyond the scope of this blog, this one contains an discussion of an interesting sentencing issue relating to convictions on multi-object conspiracies where there is no special verdict.

Morales was a “Director of Security” for the Latin Kings street gang. In 1995, he was convicted of multiple RICO and VICAR counts as well as two drug counts: a conspiracy to possess with intent to distribute marijuana, heroin, cocaine and cocaine base, and a substantive count of possessing with the intent to distribute 50 grams or more of crack cocaine. He received six life sentences, one of which was on the drug conspiracy count. Although it was a multiple-object conspiracy count, the jury did not return a special verdict as to which drugs Morales conspired to possess, and the life sentence on that count was premised on an assumption that he conspired to possess cocaine and/or cocaine base, since the maximum sentence would have been less than life for the other drugs that were the object of the conspiracy.

After losing his direct appeal, Morales filed a pro se 2255 motion arguing, inter alia, that his trial and appellate counsel were ineffective for not challenging the life sentence on the drug conspiracy count since, under United States v. Orosco-Prada, 752 F.2d 1076 (2d Cir. 1984), with only a general verdict on that count, the sentence should have been based on the drug carrying the lowest statutory penalty – marijuana.

The district court denied the motion, and the circuit affirmed, but not because there was no error. Rather, the court held that Morales could not establish prejudice, since he received five other life sentences.

But the court went on to discuss the legal issue itself, which is an important one. In Orozco-Prada, 732 F.2d at 1083, the jury convicted the defendant of conspiring to traffic in both marijuana and cocaine without specifying. The circuit held that it was error for the defendant to be sentenced in excess of the maximum term for a marijuana conspiracy. In “the absence of a special verdict, there was no way for” the sentencing judge “ to know whether the jury intended to convict … for a cocaine-related conspiracy, for a marijuana related conspiracy” or both. Accordingly, the judge “should have inferred that the conviction was for the drug conspiracy with the lowest statutory maximum,” and sentenced accordingly.

Here, the district court was aware of this rule, but found it in applicable to Morales. Citing a Seventh Circuit case, Peters, the court used the verdict on the substantive drug count – which was for possessing cocaine base – to assume that the jury also convicted Morales of conspiring to traffic in cocaine base. The district court called this an “exception” to Orozco-Prada.

In this opinion, the circuit “clarif[ied]” that it has “not yet expressly adopted any exception to the rule concerning general verdicts on multiple-drug conspiracy counts set forth in Orozco-Prada.” Rather, so far, the court has expressly refrained from adopting Peters. But its finding of a lack of prejudice here, coupled with the parties’ lack of briefing on whether the court should adopt Peters going forward prevented it from deciding the question. Instead, “we will wait until the issue is squarely before us.”

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