Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-20-2005
USA v. Young
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2326
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-2326
UNITED STATES OF AMERICA
v.
SHERROD YOUNG, a/k/a
"G",
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No.: 01-CR-00401
District Judge: The Honorable Edwin M. Kosik
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2005
Before: SLOVITER, BARRY, and SMITH, Circuit Judges
(Filed: September 20, 2005)
OPINION OF THE COURT
SMITH, Circuit Judge.
Sherrod Young was convicted by a jury of conspiring to distribute crack cocaine in
violation of 21 U.S.C. § 846, and of three counts of distributing and possessing with the
intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). The District Court
for the Middle District of Pennsylvania sentenced Young to 324 months’ imprisonment
on the conspiracy count, and concurrent 240 months’ imprisonment on the distribution
and possession counts. This timely appeal followed.1
Young contends that his conviction should be vacated because the District Court
erred by denying his motion to suppress evidence seized during the execution of a search
warrant at his home. He also submits that evidence adduced at trial is insufficient to
support his conviction on the conspiracy offense. Alternatively, Young asserts that a new
trial is warranted because the District Court did not grant his request for a separate
conspiracy charge and the verdict form failed to properly submit to the jury whether he
was guilty of a lesser included offense. Finally, Young argues that he should be
resentenced in accordance with United States v. Booker, 125 S.Ct. 738 (2005).
Young’s motion to suppress challenged whether there was probable cause to issue
a warrant to search his home. We review the District Court’s factual findings for clear
error and conduct de novo review of the application of the law to those facts. United
States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005). As a reviewing court, we “must
determine only that the magistrate judge had a ‘substantial basis’ for concluding that
probable cause existed to uphold the warrant.” United States v. Whitner, 219 F.3d 289,
296 (3d Cir. 2000) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Here, the affidavit
of probable cause recited that a controlled buy had occurred at Young’s residence within
1
The District Court had jurisdiction under 18 U.S.C. § 3231. Appellate jurisdiction
exists pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2
the previous forty-eight hours, that Young had been picked up at his residence prior to
other controlled buys, and that the police had verified that Young resided at that particular
address. These facts provided a substantial basis for finding that there was a fair
probability that evidence of a crime would be found at Young’s home. Accordingly, the
District Court did not err by denying Young’s motion to suppress.
Young contends that the evidence was insufficient to support his conviction for
conspiring to distribute in excess of fifty grams of crack cocaine. Rather, Young asserts
that the evidence proved, at best, that there were a series of conspiracies to sell less than
five grams of crack cocaine. In other words, Young relies upon the variance doctrine set
out in Kotteakos v. United States, 328 U.S. 750 (1946). Under that doctrine, we must
vacate Young’s conviction if the evidence at trial, instead of establishing a single
conspiracy as charged in the indictment, proves merely multiple conspiracies. United
States v. Salmon, 944 F.2d 1106, 1116 (3d Cir. 1991). On this issue we “must review the
record evidence in the light most favorable to the government to determine whether a
reasonable jury could find the existence of a single conspiracy.” Id.
Michelle Kowalski testified that beginning in March 2001 she lived for a period of
time with Kevin Dowdy and Young, that people would come to that location to purchase
crack cocaine, and that she would sell the crack cocaine packaged in $20 bags. She
explained that, on a typical day, twenty or more such transactions occurred. In addition to
Dowdy and Young, Kowalski testified that Butter, i.e. Bernard Jones, was also involved
3
in the distribution of these drugs and that the three men “were there together, they stayed
together, they lived together, they moved together.” If she had problems with the quantity
or quality of the crack she sold, Kowalski contacted Jones because “he seemed like he
was the one to fix the problems.” Kowalski also described numerous trips to New York
with Dowdy and Young to obtain additional crack cocaine to sell.
As if Kowalski’s testimony weren’t damning enough, Melissa Martin testified that
she lived with Dowdy from September 2001 until December 2001 when she was arrested.
During that time she also sold crack cocaine, and she described how Dowdy sold crack
“all day. Sometimes it was all night.” Dowdy, according to Martin, worked with Young,
and on occasion she would drive the two men to New York so they could purchase more
crack cocaine. Although Martin was unable to specify the exact quantity of crack cocaine
involved, she described that the crack was in “bars” and that a thousand dollars usually
exchanged hands. Martin confirmed that she was present with Dowdy and Jones when
the police searched the residence in which she and Dowdy lived in December 2001 and
seized the crack cocaine that had been purchased by Dowdy and Jones the night before.
Law enforcement officials also testified, describing the numerous controlled buys,
the seizure of 58.3 grams of crack cocaine from Dowdy’s and Martin’s residence, and the
seizure of crack cocaine from Young’s residence. Gerard Pender, another player in the
conspiracy, also testified about Young and Dowdy’s roles in the scheme.
The evidence shows that Young, Dowdy and Jones shared a common goal, namely
4
making a profit from the sale of crack cocaine. Their scheme depended upon Young,
Dowdy and Jones maintaining the contacts that they had with their suppliers in New
York. Although there were other individuals performing various roles in this drug
conspiracy, these men were the constants in the operation. For that reason, we conclude
that the evidence was more than sufficient for a reasonable jury to find the existence of a
single conspiracy. Salmon, 944 F.2d at 1116-17; see also United States v. Padilla, 982
F.2d 110, 114 (3d Cir. 1992) (acknowledging that we have “previously held that drug
conspiracies involving numerous suppliers and distributors operating under the aegis of a
common core group can be treated as a single conspiracy”). Accordingly, there was no
variance between the indictment and the proof adduced at trial.
Along this same line, Young challenges the District Judge’s refusal to grant his
requested jury instruction which would have allowed the jury to determine if there was a
single conspiracy as charged or multiple conspiracies. The District Judge denied the
request because he did not think it was applicable. Because Young’s request for this
single/multiple conspiracy instruction did not “preserve [his] objection to the instruction
actually given by the court,” Jones v. United States, 527 U.S. 373, 388 (1999), and
because he made no further objection before the jury retired, we review for plain error.
Id.; United States v. Olano, 507 U.S. 725, 732 (1993) (discussing requirements of Fed. R.
Crim. P. 52(b)). Under this standard, “only those errors that ‘undermine the fundamental
fairness of the trial and contribute to a miscarriage of justice’ will be reversed.” Gov’t of
5
the Virgin Islands v. Fonseca, 274 F.3d 760, 765 (3d Cir. 2001) (internal quotation marks
and citations omitted). In light of our conclusion that there was more than sufficient
evidence of record supporting the single conspiracy of conviction, and in the absence of
evidence suggestive of the existence of separate and distinct conspiracies, we find no
error, plain or otherwise, in the District Court’s refusal to give the requested
single/multiple conspiracy instruction.
Consistent with the fact that Young pressed for a single/multiple instruction,
Young also requested that the verdict slip allow for his conviction on a lesser included
offense, namely conspiracy to distribute less than fifty grams of crack cocaine. Although
Young acknowledges that the District Court tried to accommodate this request, Young
asserts that the verdict slip was inconsistent, confusing and ultimately prevented the jury
from convicting him of a lesser included offense. For that reason, Young asserts that his
conspiracy conviction should be vacated and he should be awarded a new trial.
Although we agree with Young that questions one, two, and three on the verdict
slip could have confused the jury and were susceptible to inconsistent answers, the fact
remains that the jury was not confused. Its answer to each question was that the quantity
of crack cocaine involved was 50 grams or more. The fact that there was a possibility of
confusion hardly warrants setting aside Young’s conspiracy conviction. Indeed, the
Supreme Court’s decision in United States v. Powell, 469 U.S. 57 (1984), instructs that
such relief is not available. There, the Court adhered to the rule enunciated in Dunn v.
6
United States, 284 U.S. 390 (1932), that a criminal defendant is not entitled to have his
conviction on one count set aside because it is inconsistent with his acquittal on another
count. Powell, 469 U.S. at 63-69. Accordingly, in the absence of either confusion or an
inconsistency in the verdict, there is no reason to disturb the jury’s verdict of guilty for
which there is sufficient evidence.
Finally, Young contends that the District Court erred at sentencing by finding
under U.S.S.G. § 1B1.3 that the quantity of crack cocaine was 150 to 500 grams, that he
had a managerial role under U.S.S.G. § 3B1.1(b), and that a two point upward adjustment
under U.S.S.G. § 2D1.1(b)(1) was warranted because he possessed a firearm. Relying on
Blakely v. Washington, 124 S.Ct. 2531 (2004), Young asserts that these findings had to be
made by a jury. In a Rule 28(j) letter filed in February 2005, Young cited as additional
authority the Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738 (2005),
and requested resentencing. For the reasons set forth in United States v. Davis, 407 F.3d
162 (3d Cir. 2005) (en banc), we will grant Young’s request, vacate the sentence and
remand to the District Court for resentencing in accordance with Booker.