United States v. McCourty

07-3862-cr
USA v. McCourty

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT

3 August Term 2008

4 Docket No. 07-3862-cr

5 Argued: November 13, 2008 Decided: April 9, 2009

6 UNITED STATES OF AMERICA,

7 Appellee,

8 v.

9 PETER McCOURTY,

10 Defendant-Appellant.

11 Before: MINER, SOTOMAYOR, and KATZMANN, Circuit Judges.

12 Appeal from a judgment of conviction and sentence entered September 7, 2007, in the
13 United States District Court for the Eastern District of New York (Gleeson, J.), convicting
14 defendant-appellant, after a jury trial, of three counts of possession with intent to distribute
15 cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and (b)(1)(C), and
16 sentencing him to a term of incarceration of 78 months, which defendant is currently serving, a
17 term of supervised release of 3 years, and a $300 special assessment, the District Court having
18 rejected defendant’s claims of constructive amendment and double jeopardy.

19 AFFIRMED; and REMANDED for resentencing.

20 Edward S. Zas (of counsel), Federal Defenders of
21 New York, Inc., Appeals Bureau, New York, New
22 York, for Defendant-Appellant.

23 Elizabeth A. Latif (on the brief), Peter A. Norling
24 (of counsel), Assistant United States Attorneys
25 (Benton J. Campbell, United States Attorney for the

1
 1 Eastern District of New York), Brooklyn, New
2 York, for Appellee.

3 MINER, Circuit Judge:

4 Defendant-appellant appeals from a judgment of conviction and sentence entered on

5 September 7, 2007, in the United States District Court for the Eastern District of New York

6 (Gleeson, J.), convicting defendant, after a second jury trial, of three counts of possession with

7 intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii),

8 and (b)(1)(c). Following the convictions, the District Court imposed a sentence of incarceration

9 of 78 months; a term of supervised release of 3 years; and a $300 special assessment. The

10 defendant currently is serving his sentence.

11 Appellant contends that his rights under the Grand Jury Clause and the Double Jeopardy

12 Clause of the Fifth Amendment were violated because (1) the trial court provided a special

13 verdict sheet to the jury in which Count Three of a Third (and final) Superseding Indictment was

14 split into two parts (“a” and “b”), with each part describing a different time and place for the

15 charge of possession with intent to distribute a controlled substance on May 11, 2006; and (2) the

16 trial court allowed the defendant to be retried on part “a” following the jury’s verdict of not guilty

17 as to part “b” and its failure to reach a verdict as to part “a.” Appellant also claims that some or

18 all of the testifying police officers lied under oath about material matters at defendant’s second

19 trial, and, therefore, that the District Court abused its discretion in denying his Rule 33 motion

20 for a new trial in the interest of justice. Finally, Appellant argues that he should be entitled to re-

21 sentencing, pursuant to Kimbrough v. United States, 128 S. Ct. 558 (2007), so that the District

22 Court may consider the Appellant’s argument post-Kimbrough that the Sentencing

2
 1 Commission’s disparate treatment of “crack” and powder cocaine was unwarranted and rendered

2 the advisory sentencing range in this case “greater than necessary” under 18 U.S.C. § 3553. For

3 the reasons that follow, we affirm the judgment of conviction but remand for the limited purpose

4 of allowing the District Court to re-sentence the Appellant in light of Kimbrough.

5 BACKGROUND

6 I. The First Trial

7 On June 8, 2006, a grand jury in the Eastern District of New York returned an indictment

8 charging defendant-appellant Peter McCourty with four counts: possession with intent to

9 distribute unspecified amounts of cocaine and cocaine base on June 16, 2005, in violation of 21

10 U.S.C. § 841(a)(1) and (b)(1)(C) (“Count One”); possession with intent to distribute unspecified

11 amounts of cocaine and cocaine base on or about and between May 1, 2006, and May 11, 2006,

12 in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (“Count Two”); possession of a firearm as a

13 convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count Three”); and possession of a

14 firearm in furtherance of a drug trafficking crime, the crime charged in Count Two, in violation

15 of 18 U.S.C. § 924(c) (“Count Four”).

16 On July 27, 2006, a grand jury returned a superseding indictment charging McCourty

17 with the same four counts as in the initial indictment but adding to Count One a specification of a

18 quantity of five grams or more of cocaine base and a reference to 21 U.S.C. § 841(b)(1)(B)(iii),

19 which provides an enhanced penalty for possession of that amount of cocaine base. On October

20 19, 2006, in response to a September 12, 2006 pre-trial motion made by the defense, the grand

21 jury returned a second superseding indictment. The second superseding indictment separated

22 Count Two of the superseding indictment into two counts, one charging possession of

3
 1 unspecified amounts of cocaine and cocaine base on May 1 and the other charging possession of

2 unspecified amounts of cocaine and cocaine base on May 11. These counts became Count Two

3 (May 1) and Count Three (May 11), respectively.

4 McCourty also moved in his September 12, 2006 pre-trial motion for severance of Count

5 One of the second superseding indictment.1 He argued that the offense charged in Count One

6 involved an incident that took place almost a year before the incidents described in the remaining

7 counts. McCourty also argued that the events of May 11, 2006, involved a chase, as well as an

8 alleged gun possession that might prejudice the jury in regard to Count One. The District Court

9 granted the motion and ordered that Count One be tried separately from the remaining counts.

10 The parties agreed that Count Four (the felon-in-possession count) would be tried separately

11 from Counts Two, Three, and Five and that trial would proceed immediately on Count Four after

12 the jury returned its verdict on the latter counts.

13 On December 11, 2006, the grand jury returned a third — and final — superseding

14 indictment (the “Superseding Indictment”), which added a quantity of five grams or more of

15 cocaine base to the previously unspecified amount of cocaine base charged in Count Three (May

16 11) and a reference to 21 U.S.C. § 841(b)(1)(B)(iii). In sum, McCourty was charged under the

17 Superseding Indictment with possession of an unspecified amount of cocaine and five grams or

18 more of cocaine base on June 16, 2005 (Count One); possession of unspecified amounts of

19 cocaine and cocaine base on May 1, 2006 (Count Two); possession of an unspecified amount of

20 cocaine and five grams or more of cocaine base on May 11, 2006 (Count Three); possession of a

1
When McCourty submitted his pre-trial motion, dated September 12, 2006, his motion
necessarily referred to the second superseding indictment because the grand jury had not yet
returned the December 11, 2006 Superseding Indictment.

4
 1 firearm as a convicted felon (Count Four); and possession of a firearm in furtherance of a drug

2 trafficking crime, i.e., the drug-trafficking crime charged in Count Three (Count Five).

3 Prior to the start of the first trial, defense counsel raised the issue of a “duplicity problem”

4 with regard to Count Three.2 Defense counsel claimed that Count Three alleged that McCourty

5 had possessed both powder cocaine and at least five grams of cocaine base on or about May 11,

6 2006. Accordingly, counsel argued, in the event of a simple “guilty” verdict returned by the jury

7 as to Count Three, that verdict would not reveal either the type or quantity of drugs that

8 McCourty would be found to have possessed. Defense counsel submitted that the duplicity

9 problem could be “cured” by a “special interrogatory” asking the jury if it found that McCourty

10 possessed over five grams of crack cocaine. The District Court stated that the issue could be

11 addressed on the verdict sheet (“Verdict Sheet”) for Count Three and that it would “deal with this

12 at the charge conference.” The court then swore in the jury, and the first trial began. With regard

13 to Counts Two, Three, and Five, the government presented the following evidence in support of

14 its case-in-chief.

15 A. Count Two (Drug Possession On May 1, 2006)

16 New York Police Department (“NYPD”) Officers Kirk Anderson and Gabriel Dobles

17 testified as follows concerning the events on May 1, 2006: The officers encountered McCourty at

18 approximately 6 p.m., while they were on routine anticrime patrol in an unmarked vehicle.

19 Officer Joseph Rodriguez of the NYPD was also in the vehicle with them. The three officers

20 were traveling eastbound on Hegeman Avenue in Brooklyn, New York, when Officer Anderson

2
A duplicitous indictment is “[a]n indictment containing two or more offenses in the
same count” or “[a]n indictment charging the same offense in more than one count.” BLACK’S
LAW DICTIONARY 788 (8th ed. 2004).

5
 1 saw McCourty standing on the south side of Hegeman Avenue, across from the east side of the

2 Bristol Street corner. Officer Anderson was approximately 10-to-12 feet from McCourty when

3 he saw McCourty standing in an unobstructed no-parking zone. Officer Anderson observed

4 McCourty conduct a hand-to-hand drug transaction with another individual: McCourty was

5 holding an inside-out rolling tobacco pouch in one hand and passed a smaller bag from that

6 pouch to another individual. Officer Anderson then told the other officers in his vehicle what he

7 had seen, and he and the other officers exited the patrol car and approached McCourty. When

8 McCourty observed the officers approaching him, he turned away and dropped the tobacco pouch

9 to the ground and began to walk in the opposite direction. Officer Anderson then recovered the

10 pouch from the ground. McCourty was placed under arrest, and a post-arrest search of McCourty

11 revealed baggies of marijuana, which the officers seized. At the time of his arrest, McCourty

12 stated to the officers: “You’re taking me for this bullshit? Next time I’ll just run.” The

13 substance contained within the pouch McCourty dropped to the ground tested positive for

14 powder and crack cocaine.

15 Based on this incident, McCourty was charged in Kings County Criminal Court with

16 criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, and

17 unlawful possession of marijuana, and he was released. The state charges were eventually

18 adjourned in contemplation of dismissal.

19 B. Counts Three (Drug Possession On May 11, 2006) and Five (Firearm Possession

20 On May 11, 2006)

21 The offense described in Count Three of the Superseding Indictment encompassed two

22 events:

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 1 On or about May 11, 2006, within the Eastern District of New York, the defendant
2 PETER McCOURTY did knowingly and intentionally possess with intent to
3 distribute a controlled substance, which offense involved (a) a substance
4 containing cocaine, a Schedule II controlled substance, and (b) 5 grams or more of
5 a substance containing cocaine base, a Schedule II controlled substance.

6 (Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(B)(iii) and
7 841(b)(1)(C); Title 18, United States Code, Sections 3551 et seq.).

8 At trial, Officers Anderson and Dobles provided testimony regarding the events of May

9 11, 2006. These events served as the basis for the charges included in both Counts Three and

10 Five. At approximately 11 p.m. on that day, Officers Anderson and Dobles were on patrol with

11 their supervising officer, Sergeant Thomas Lent. The officers were traveling southbound on

12 Amboy Street and, when the vehicle reached the intersection of Amboy Street and Hegeman

13 Avenue, the officers saw McCourty standing on the northeast corner of the intersection, only two

14 blocks from where McCourty was arrested on May 1.

15 The officers were approximately 10-to-12 feet from McCourty, who was standing in an

16 area well-lit by street lights and also lit by lights along the wall of the parking garage across the

17 street. The officers observed McCourty holding an inside-out rolling tobacco pouch in one hand

18 and passing a smaller bag from that pouch to another individual. After observing this, the

19 officers drove their police vehicle up onto the sidewalk, at which time McCourty, who saw the

20 officers and their car on the sidewalk, ran away. McCourty ran across Hegeman Avenue towards

21 Amboy Street. While in flight, McCourty dropped the item that he had been holding onto

22 Hegeman Avenue. Officer Anderson recovered the item, which was later determined to be a

23 package containing powder cocaine and crack cocaine, and continued to chase McCourty.

24 Officer Anderson testified that, during the chase, he observed McCourty clutching a gun and

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 1 attempting to put it into his pocket or waistband.

2 Officers Dobles and Lent pursued McCourty into a parking lot on Amboy between

3 Hegeman Avenue and Linden Boulevard, but they did not catch him. The officers then chased

4 McCourty into a three-family house at 1043 Thomas Boyland Street, but he eluded the officers at

5 that location. Approximately twenty minutes later, the officers went to McCourty’s

6 grandmother’s apartment located at 1381 Linden Boulevard, Apartment 5A, which was an

7 address where the officers believed McCourty could be found. Once there, Officer Dobles

8 observed McCourty in the doorway of the apartment, apparently attempting to leave. At that

9 moment, McCourty was wearing what appeared to Officer Dobles to be a knapsack.

10 McCourty shut himself in the apartment, and the officers knocked on the door, but

11 McCourty would not open the door. The officers eventually “gained forcible entry into the

12 apartment,” but McCourty was no longer inside, having apparently utilized a balcony to make his

13 escape. Within the apartment, the officers found a gun that resembled the one that Officer

14 Anderson had seen in McCourty’s hand earlier that night and a knapsack containing drugs, drug

15 paraphernalia, and McCourty’s New York State identification card. The substances contained

16 within the foil pouch McCourty dropped to the ground and within the knapsack tested positive

17 for powder and crack cocaine; the crack cocaine found within the backpack amounted to over

18 five grams.

19 C. Count Four (Felon-In-Possession of a Firearm)

20 In the separate portion of the trial pertaining only to Count Four, the government, in

21 addition to the foregoing testimony, produced stipulations that the gun McCourty allegedly

22 possessed on May 11, 2006, had traveled in interstate commerce and that McCourty was a

8
 1 convicted felon.

2 D. The Defense’s Case

3 The defense called an investigator who had taken photographs of the repair shop and

4 street corners on which McCourty was observed on May 1 and May 11, 2006, in an attempt to

5 establish that the officers could not have seen the events to which they had testified. On

6 cross-examination, the defense witness admitted that he had no knowledge of the officers’ actual

7 perspective on the dates McCourty was observed nor any personal knowledge of the events on

8 the dates in question.

9 II. The Charge Conference and Verdict Sheet

10 At the charge conference following the close of trial, the District Court discussed Count

11 Three and the duplicity issue raised by defense counsel prior to the start of the trial. Because

12 Count Three of the Superseding Indictment charged McCourty with “possess[ing] with intent to

13 distribute a controlled substance, which offense involved (a) a substance containing cocaine, . . .

14 and (b) 5 grams or more of a substance containing cocaine base” on or about May 11, 2006,

15 Count Three encompassed the entirety of the drugs allegedly possessed by McCourty on May 11:

16 (1) the cocaine and crack cocaine that he threw on the street and (2) the cocaine and more than

17 five grams of crack cocaine found in his knapsack at his grandmother’s apartment.

18 The District Court indicated that it would structure the Verdict Sheet3 in such a way that

19 the jury could indicate whether it found McCourty guilty of either possessing the drugs on the

3
Count Three of the Superseding Indictment was presented on the Verdict Sheet as
Count Two because of the pre-trial severance of Count One of the Superseding Indictment. The
District Court stated that the jury was presented with the Verdict Sheet setting forth “Count One,
Count Two, and Count Three, which in the [Superseding] [I]ndictment are Count Two, Count
Three, and [C]ount Five respectively.”

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 1 street or possessing the drugs in the knapsack (or both), with an additional question as to the five

2 grams as to the drugs in the knapsack. Defense counsel objected, claiming that the language of

3 Count Three required a finding that McCourty possessed five grams of crack cocaine, a

4 requirement that would be defeated by the proposed charge. Defense counsel also argued that the

5 division of Count Three constituted “a very substantial amendment of the indictment to

6 essentially break down one charge into two charges.” Defense counsel acknowledged that the

7 Verdict Sheet “as a practical matter . . . could cure th[e] problem with ambiguity,” but argued

8 that the Verdict Sheet did not correspond to “the way the indictment is written and what was

9 charged and what we have defended against, and what we had notice of, that’s how we

10 proceeded.” In response, the court found that there was no “unfairness or lack of notice here”

11 and ruled that

12 it is commonly the case that more than one way of violating the statute is alleged
13 within a single count. Sometimes it’s a multiple object conspiracy; sometimes
14 manufacture and distribution is alleged in a single count, and this case has
15 obviously been about all along . . . the hand-to-hand transaction alleged to have
16 been observed in the street and the drugs seized from the backpack.

17 Accordingly, the jury was then charged in conformity with the three counts set forth on

18 the Verdict Sheet. Count Two of the Verdict Sheet provided as follows:

19 Count Two Possession of Cocaine or Crack With Intent to Distribute — May
20 11, 2006

21 a. Possession with intent to distribute at the intersection of Amboy
22 Street and Hegeman Avenue.

23 Guilty _______ Not Guilty _______

24 b. Possession with intent to distribute at 1381 Linden Boulevard,
25 Apartment 5A.

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 1 Guilty _______ Not Guilty _______

2 1. Only answer this question if you found the defendant
3 guilty of Count Two(b). Has the government proved
4 beyond a reasonable doubt that the defendant possessed
5 with the intent to distribute more than five grams of crack?
6
7 Yes _______ No _______

8 Following the jury’s overnight deliberations, the jury returned the following partial

9 verdict: (1) no verdict on Count Two of the Superseding Indictment (Count One on the Verdict

10 Sheet), regarding McCourty’s possession with intent to distribute cocaine and cocaine base on

11 May 1; (2) no verdict as to the part of Count Three of the Superseding Indictment regarding

12 McCourty’s possession of cocaine and cocaine base on the street on May 11 (Count Two “a” on

13 the Verdict Sheet); (3) not guilty as to the part of Count Three of the Superseding Indictment

14 regarding McCourty’s possession of cocaine and cocaine base found at his grandmother’s

15 apartment on May 11 (Count Two “b” on the Verdict Sheet); and (4) not guilty as to Count Five,

16 regarding McCourty’s possession of the firearm found at his grandmother’s apartment (Count 4

17 on the Verdict Sheet). The District Court subsequently directed a mistrial as to the hung counts.

18 The court also directed a not-guilty verdict as to Count Four (Count Three on the Verdict Sheet),

19 which pertained to the charged offense of possession of a firearm in connection with a narcotics

20 offense, in light of the jury’s not-guilty verdict as to McCourty having allegedly possessed a

21 firearm as a felon on May 11.

22 III. Post-Trial Motions

23 At the close of trial, defense counsel made a motion for a directed verdict as to the part of

24 Count Three of the Superseding Indictment regarding the possession of cocaine and cocaine base

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 1 on the street (appearing at Count Two “a” on the Verdict Sheet), re-arguing the duplicity issue

2 and arguing that res judicata principles precluded a retrial on this count. The District Court

3 stated that it would take up the issues at a later date.

4 Defense counsel also claimed with regard to Count Three that although the jury was

5 undecided as to whether he possessed crack on the street on May 11, the court should direct a

6 not-guilty verdict as to the entirety of Count Three because the specific wording of Count Three

7 mentioned “five grams or more” of crack on May 11, and it was undisputed that McCourty’s

8 alleged possession of crack cocaine on the street on that date involved less than five grams of

9 crack. Defense counsel concluded that the verdict precluded further prosecution as to the events

10 of May 11, or at least any prosecution with respect to crack on that date. The District Court

11 rejected McCourty’s challenges and permitted the government to retry McCourty on Count Three

12 only on the theory that McCourty possessed an unspecified amount of powder cocaine or crack

13 cocaine on the street on May 11.

14 IV. The Second Trial

15 A second trial was conducted on March 19, 2007, to resolve the remaining charges set

16 forth in the Superseding Indictment — Count One, which had been severed from the first trial,

17 and the counts for which the jury could not reach a verdict in the first trial, these being Count

18 Two and the part of Count Three concerning McCourty’s possession of the drugs on the street

19 (appearing as Count Two (a) on the Special Verdict form). The second trial resulted in a

20 conviction on all of these counts. At the second trial, the government presented the following

21 evidence in support of its case-in-chief.

22 A. Count One (Drug Possession On June 16, 2005)

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 1 NYPD Officers Anderson and Dobles, as well as NYPD Sergeant Lent (who had not been

2 a witness at the first trial), testified as follows concerning the events on June 16, 2005: On June

3 16, 2005, Officers Anderson and Dobles, as well as Sergeant Lent, were given an assignment to

4 speak with McCourty concerning two outstanding warrants for McCourty’s arrest and an

5 outstanding domestic violence complaint against McCourty. The District Court prohibited the

6 officers from specifically mentioning the warrants and complaint during their testimony. The

7 officers observed McCourty’s car being towed and followed it to a repair shop in Brooklyn. The

8 officers approached McCourty inside the tow yard of the repair shop, and, when McCourty

9 observed the officers, McCourty motioned that he would be with them in a moment. McCourty

10 then reached into the pocket of the sweatshirt he was wearing and threw a bag to the ground in

11 front of him. The bag was recovered, McCourty was arrested, and the substance in the bag was

12 later determined to be a large rock of crack cocaine. Officer Dobles placed McCourty under

13 arrest and found more drugs on McCourty’s person, namely, a large baggie of cocaine, a ziplock

14 baggie of crack cocaine, and six ziplock baggies of marijuana. The weight of the crack cocaine

15 found in the bag McCourty threw to the ground was 33.44 grams, and the weight of the powder

16 cocaine found on McCourty’s person was 14.33 grams.

17 B. Count Two (Drug Possession On May 1, 2006)

18 The testimony of Officers Anderson and Dobles concerning Count Two mirrored their

19 testimony at the first trial. Officer Anderson added at the second trial that McCourty was not

20 attempting to hide his behavior during the drug transaction on May 1.

21 Officer Joseph Rodriguez (who had not been a witness at the first trial) testified that

22 while on patrol with Officers Anderson and Dobles, he heard Anderson say, “There’s Pete, he’s

13
 1 engaging in a hand-to-hand.” Rodriguez looked over and saw McCourty brush by a taller Black

2 male on the south side of Hegeman near Bristol Street. Rodriguez was less than ten feet from

3 McCourty when he observed him, and there was nothing blocking his view of McCourty. He and

4 the other officers exited their vehicle, at which time Officer Rodriguez heard one of the other

5 officers say that McCourty had dropped something. Rodriguez looked down by the ground

6 where McCourty was standing and saw a silver shiny packet. The officers arrested McCourty,

7 and as he was being transported to the precinct, McCourty remarked that he thought the officers

8 were after guns and that if he had known they were after drugs he “would have ran [sic].” The

9 foil pouch thrown by McCourty contained 12 bags of crack cocaine and 3 bags of powder

10 cocaine.

11 C. Count Three (Drug Possession in the Street On May 11, 2006)

12 The testimony of Officers Anderson and Dobles concerning Count Three also mirrored

13 that of the first trial, except that they did not testify about the chase of McCourty or the drugs and

14 weapon found at McCourty’s grandmother’s apartment that day. Dobles added at the second trial

15 that he was able to recognize McCourty, when the patrol vehicle was right up next to the corner

16 of Hegeman and Amboy, because nothing was blocking his view of McCourty. He also testified

17 that the area was well lit, and he pointed out the various street and building lights on a

18 government exhibit containing enlarged photographs of the corner in question.

19 Sergeant Lent, the supervising officer, testified that while on patrol with the other officers

20 on May 11 he saw McCourty standing on Hegeman Avenue close to Amboy Street. Sergeant

21 Lent was driving the vehicle and recognized McCourty when he stopped for the stop sign at the

22 intersection of Hegeman and Amboy. Sergeant Lent testified that there was nothing blocking his

14
 1 view of McCourty and that the area was well lit by street lamps and box lamps on the parking

2 garage. Sergeant Lent saw McCourty engage in a hand-to-hand drug transaction and described

3 the individual with whom McCourty dealt as a Black man taller than McCourty. Sergeant Lent

4 turned the patrol vehicle onto the sidewalk and, as the officers approached, McCourty ran off and

5 dropped a package to the ground. The package turned out to be a foil pouch containing 18 bags

6 of powder cocaine and six bags of crack cocaine. McCourty turned himself in on May 25, 2006.

7 D. The Defense’s Case

8 The defense re-called Officer Dobles in order to impeach him with what the defense

9 believed to be a prior inconsistent statement concerning the drugs recovered on June 16, 2005

10 (Count One). The defense also called an investigator who had taken photographs of the repair

11 shop, of the street corners on which McCourty was observed on May 1 and May 11, and of

12 McCourty’s grandmother’s apartment. On cross-examination, the investigator admitted that he

13 had no knowledge of the officers’ actual perspective on the dates McCourty was observed nor

14 any knowledge of the weather or street conditions on those dates.

15 V. Proceedings Following the Second Trial

16 After deliberating, the jury returned a guilty verdict as to all three of the counts tried at

17 the second trial. McCourty filed a motion pursuant to Rules 29 and 33 of the Federal Rules of

18 Criminal Procedure for an acquittal and for a new trial, principally arguing that the government’s

19 witnesses were not credible and perjured themselves in various respects. Specifically, the

20 defense urged that the retrial had been infected by “rampant and pervasive perjury committed by

21 each of the testifying police officers.” At the outset of the sentencing proceeding, the District

22 Court denied the motions in their entirety, concluding that “the resolution of the factual issues

15
 1 here . . . is a matter properly left to the jury” and that there was no perjury of the kind complained

2 of by McCourty.

3 As to sentencing, in the Second Addendum to the Presentence Investigation Report

4 (“PSR”), issued on August 28, 2007, the Probation Department determined that McCourty’s total

5 offense level under the Guidelines was 30 and that his criminal history category was II, resulting

6 in a range of imprisonment of 108 to 135 months. The Second Addendum arrived at the base

7 offense level by combining the cocaine and crack cocaine attributable to McCourty based on his

8 convictions for Counts One, Two and Three; namely, 35.86 grams of crack cocaine and 18.79

9 grams of powder cocaine.

10 As directed by Application Note 10(d) to U.S.S.G. § 2D1.1, the Second Addendum

11 combined these two figures and converted them using the Drug Equivalency Tables into an

12 equivalent amount of marijuana — in this case, 715.75 kilograms. According to the Second

13 Addendum, this quantity of marijuana corresponded to an offense level of 30 under the

14 Guidelines. In a pre-sentencing submission, McCourty argued that, as relevant here, the District

15 Court should apply the then-proposed amendments to the Guidelines reducing the base offense

16 level for crack cocaine by two levels.

17 At the sentencing proceeding on August 30, 2007, McCourty argued for a sentence below

18 the applicable Guidelines range for a number of reasons, including “the policy considerations

19 surrounding the undue severity of the crack guidelines.” He urged the court to consider “whether

20 the sentencing guidelines are an unsound judgment” on the crack/cocaine disparity issue and

21 argued that the Supreme Court’s decision in Rita v. United States, 551 U.S. 338 (2007), allowed

22 the District Court to impose a sentence below the applicable Guidelines range on the basis of

16
 1 “the undue severity of the crack guidelines.”

2 The District Court indicated that he would apply the proposed amendments to the

3 Guidelines and reduce McCourty’s base offense level by two levels to level 28 and his criminal

4 history category from II to I. This resulted in a range of a term of imprisonment of 78 to 97

5 months. The court determined that the imposition of a sentence of 78 months was appropriate

6 and so ordered. McCourty timely appealed the judgment of conviction and sentence to this

7 Court.

8 ANALYSIS

9 I.

10 McCourty’s principal argument on appeal is that his rights under the Grand Jury Clause

11 of the United States Constitution were violated when the District Court, over defense counsel’s

12 objection, divided Count Three of the Superseding Indictment into “two counts alleging two

13 distinct crimes: one charging that he possessed the drugs ‘on the street’ and another charging that

14 he possessed the drugs in apartment 5A.” McCourty claims that the splitting of Count Three was

15 a “constructive amendment of the [i]ndictment, a per se violation of the Fifth Amendment’s

16 Grand Jury Clause that requires reversal.” McCourty claims that the only verdict that the first

17 jury was able to reach on the offense charged in Count Three of the Superseding Indictment was

18 an acquittal as to possession of drugs in apartment 5A, and he therefore argues that the first jury

19 did acquit him of at least some portion of Count Three and that the acquittal must be treated as an

20 acquittal of the entire “offense.” As such, McCourty claims that the Double Jeopardy Clause

21 barred the government from trying him again for that same offense, and the District Court

22 therefore erred in allowing the trial of Count Three in the second trial on the issue of whether he

17
 1 possessed drugs in the street on the same day.

2 We review double jeopardy claims de novo, United States v. Estrada, 320 F.3d 173, 180

3 (2d Cir. 2003), and we review constructive amendment issues de novo as well, United States v.

4 Rigas, 490 F.3d 208, 225–26 (2d Cir. 2007). We also may consider the record as a whole in

5 determining whether an indictment is in fact multiplicitous or duplicitous. United States v.

6 Walsh, 194 F.3d 37, 46 (2d Cir. 1999).

7 A.

8 The Grand Jury Clause of the Fifth Amendment to the Constitution provides in relevant

9 part that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless

10 on a presentment or indictment of a Grand Jury.” U.S. Const. amend. V. The purpose of the

11 Grand Jury Clause’s requirement that a defendant be prosecuted only for those crimes set forth in

12 the indictment is “to limit his jeopardy to offenses charged by a group of his fellow citizens

13 acting independently of either prosecuting attorney or judge.” Stirone v. United States, 361 U.S.

14 212, 218 (1960); see also Fed. R. Crim. Proc. 7(c)(1) (requiring that an indictment contain a

15 “plain, concise, and definite written statement of the essential facts constituting the offense

16 charged”); Walsh, 194 F.3d at 44 (discussing constitutional sufficiency of an indictment and the

17 reasons for such requirements).

18 The Supreme Court has held that “[t]he precise manner in which an indictment is drawn

19 cannot be ignored, because an important function of the indictment is to ensure that, ‘in case any

20 other proceedings are taken against [the defendant] for a similar offen[s]e, . . . the record [will]

21 sho[w] with accuracy to what extent he may plead a former acquittal or conviction.’” Sanabria v.

22 United States, 437 U.S. 54, 65–66 (1978) (omission and alterations in original) (quoting Cochran

18
 1 v. United States, 157 U.S. 286, 290 (1895)). As such, a court may not alter or amend the

2 indictment, literally or constructively, once it has been returned by the grand jury. See Ex parte

3 Bain, 121 U.S. 1, 10 (1887); see also Russell v. United States, 369 U.S. 749, 770 (1962)

4 (reiterating Bain’s holding that “an indictment may not be amended except by resubmission to

5 the grand jury, unless the change is merely a matter of form”). “An indictment has been

6 constructively amended when the trial evidence or the jury charge operates to broaden the

7 possible bases for conviction from that which appeared in the indictment.” Rigas, 490 F.3d at

8 225 (internal quotation marks and alterations omitted). The jury charge must not “so alter[] an

9 essential element of the charge that, upon review, it is uncertain whether the defendant was

10 convicted of conduct that was the subject of the grand jury’s indictment.” Id. at 227 (internal

11 quotation marks omitted). A constructive amendment of an indictment is “a serious error,”

12 United States v. Ansaldi, 372 F.3d 118, 126 (2d Cir. 2004), and a per se violation of the Fifth

13 Amendment, requiring automatic reversal, Rigas, 490 F.3d at 225–26.

14 We reject McCourty’s constructive amendment claim because neither the trial evidence

15 nor the jury charge altered Count Three of the Superseding Indictment. Count Three charges

16 McCourty with only one offense of “possess[ion of a controlled substance] with intent to

17 distribute [the] controlled substance.” Count Three does identify two bases for this single

18 offense; namely, the possession on one day of 5 grams or more of crack cocaine and the

19 possession on the same day of an unspecified amount of cocaine. That the District Court

20 distinguished the two bases of liability is of no consequence. No constructive amendment

21 resulted when the District Court broke the single offense into two parts to be addressed by the

22 jury. The Verdict Sheet’s identification of the apartment as the place of drug possession and the

19
 1 street as another location of drug possession does not alter any element of the single crime of

2 drug possession, which occurred on May 11, 2006. Indeed, we have encouraged such special

3 verdict sheets or interrogatories in cases where the indictment may be ambiguous. See, e.g.,

4 United States v. Sturdivant, 244 F.3d 71, 76 n.4 (2d Cir. 2001) (stating that, in a case involving

5 an ambiguous but not impermissibly vague indictment, it is “the government’s responsibility to

6 seek special verdicts” to avoid subsequent double jeopardy consequences (internal quotation

7 marks omitted)); see also United States v. Remington, 191 F.2d 246, 250 (2d Cir. 1951) (holding

8 that the defendant’s request for a special verdict on the specific basis of liability for the offense

9 “was right and should be given if there is a new trial”); cf. United States v. Gomez-Rosario, 418

10 F.3d 90, 104 (1st Cir. 2005) (no constructive amendment creating two charges in one count

11 where indictment alleged 100 grams or more heroin but verdict sheet permitted conviction for

12 that amount or, alternatively, for less).

13 Although the plain language of Count Three may seem to allege two offenses because it

14 is drafted in the conjunctive — that McCourty “did knowingly and intentionally possess with

15 intent to distribute a controlled substance, which offense involved (a) a substance containing

16 cocaine, a Schedule II controlled substance, and (b) 5 grams or more of a substance containing

17 cocaine base, a Schedule II controlled substance” (emphasis supplied) — this Court has

18 previously held that “[w]here there are several ways to violate a criminal statute . . . federal

19 pleading requires . . . that an indictment charge [be] in the conjunctive to inform the accused

20 fully of the charges. A conviction under such an indictment will be sustained if the evidence

21 indicates that the statute was violated in any of the ways charged.” United States v. Mejia, 545

22 F.3d 179, 207 (2d Cir. 2008) (omission and alteration in original; internal quotation marks

20
 1 omitted). In Mejia, we upheld a defendant’s conviction where a count in the indictment alleged

2 two forms of racketeering activity — threats of murder and narcotics trafficking. The jury found

3 the defendant not guilty of narcotics trafficking but guilty of threats of murder. Id. We

4 concluded that the “‘evidence indicate[d] that the statute was violated’” as to threats of murder.

5 Id. (quoting United States v. McDonough, 56 F.3d 381, 390 (2d Cir. 1995)). The instant case is

6 similar to Mejia in that here there is charged a single offense of possession “with intent to

7 distribute a controlled substance, which offense involved (a) . . . and (b).” Either “(a)” or “(b)”

8 could form the basis for conviction.

9 We further note that the use of the Verdict Sheet did not expose McCourty to a greater

10 possibility of conviction. Under McCourty’s mistaken view of the bifurcation and presentation

11 of Count Three into Count Two on the Verdict Sheet, the two questions on the Verdict Sheet

12 became separate “counts” or “offenses.” However, had the jury found McCourty guilty on Count

13 Three by answering “yes” to both of the questions on the Verdict Sheet, McCourty still would

14 have been convicted of only the one offense charged — that he “did knowingly and intentionally

15 possess with intent to distribute a controlled substance.” The issue of the amount of the

16 controlled substance was presented in a separate inquiry. Moreover, had the District Court never

17 split Count Three into two theories of liability, presented as Count Two, parts “a” and “b” on the

18 Verdict Sheet, the jury still could have returned a verdict of guilty on the basis of either one of

19 the incidents of May 11, 2006. See Mejia, 545 F.3d at 207. However, because we have the

20 benefit on appeal of the current record, which includes the jury’s findings as to parts “a” (no

21 verdict) and “b” (not guilty) of Count Two of the Verdict Sheet, we are able to conclude that had

22 this very same jury in this case been presented with a verdict sheet simply containing the

21
 1 language of Count Three of the Superseding Indictment, the jury would either have reported no

2 verdict because it was unable to agree on criminal liability for drug possession in the street or

3 reported the same mixed verdict as appeared on the Verdict Sheet. In the event of the former,

4 McCourty would have been retried on Count Three on both incidents of May 11, 2006. Thus, the

5 use of the Verdict Sheet did not expand McCourty’s liability, and, in fact, the Verdict Sheet

6 benefitted McCourty in this case because it resulted in less exposure to criminal liability at the

7 second trial.

8 Accordingly, we reject McCourty’s claim that the Verdict Sheet constituted a constructive

9 amendment of Count Three of the Indictment.

10 B.

11 The Double Jeopardy Clause of the Constitution forbids that “any person be subject for

12 the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Under this

13 clause, a defendant has a “valued right to have his trial completed by a particular tribunal,” Wade

14 v. Hunter, 336 U.S. 684, 689 (1949), which is a right held by the individual, independent of the

15 public interest in conducting “fair trials designed to end in just judgments,” Arizona v.

16 Washington, 434 U.S. 497, 503 n.11 (1978) (internal quotation marks omitted).

17 “‘Under this Clause, once a defendant is placed in jeopardy for an offense, and
18 jeopardy terminates with respect to that offense, the defendant may neither be
19 tried nor punished a second time for the same offense.’” United States v. Estrada,
20 320 F.3d at 180 (quoting Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003)).
21 In essence, the Double Jeopardy Clause protects criminal defendants against three
22 things: (1) “a second prosecution for the same offense after acquittal,” (2) “a
23 second prosecution for the same offense after conviction,” and (3) “multiple
24 punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717
25 (1969).

26 United States v. Olmeda, 461 F.3d 271, 278–79 (2d Cir. 2006) (parallel citations omitted).

22
 1 However, a retrial after a hung jury is not prohibited by the Double Jeopardy Clause. Sturdivant,

2 244 F.3d at 77 (citing Richardson v. United States, 468 U.S. 317, 324 (1984)).

3 In Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), the Supreme Court

4 stated, in regard to the Double Jeopardy Clause, that

5 [t]he underlying idea, one that is deeply ingrained in at least the Anglo-American
6 system of jurisprudence, is that the State with all its resources and power should
7 not be allowed to make repeated attempts to convict an individual for an alleged
8 offense, thereby subjecting him to embarrassment, expense and ordeal and
9 compelling him to live in a continuing state of anxiety and insecurity, as well as
10 enhancing the possibility that even though innocent he may be found guilty.

11 466 U.S. at 307 (quoting Green v. United States, 355 U.S. 184, 187–88 (1957)). “The primary

12 purpose of foreclosing a second prosecution after conviction, on the other hand, is to prevent a

13 defendant from being subjected to multiple punishments for the same offense.” Id. (citing United

14 States v. Wilson, 420 U.S. 332, 343 (1975)).

15 In United States v. Rivera, 77 F.3d 1348 (11th Cir. 1996) (per curiam), our sister Circuit

16 examined an issue similar to that with which we are faced in this case. In Rivera, the defendant

17 was indicted for possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in a single count

18 that alleged possession of the firearm on two different dates, August 12, 1994, and February 5,

19 1995. Id. at 1350. As here, the court used a special verdict form to divide the count into two

20 inquiries — one for each date. Id. The jury returned a finding of not guilty as to the February 5

21 event but reached no decision as to the August 12 event. Id. The district court declared a

22 mistrial for the jury’s failure to reach a decision in response to the second inquiry, and the

23 defendant moved to dismiss the entire count on grounds of double jeopardy and collateral

24 estoppel. Id. The motion was denied, and the defendant appealed. Id. On appeal, the Eleventh

23
 1 Circuit affirmed, holding that the Double Jeopardy Clause did not preclude the government from

2 retrying the defendant on the portion of the count to which the jury failed to reach a decision.

3 The protection of the Double Jeopardy Clause “applies only if there has been
4 some event, such as an acquittal, which terminates the original jeopardy.”
5 Richardson v. United States, 468 U.S. 317, 325 (1984) (citations omitted).
6 Appellant has been found “not guilty” as to one of the dates charged. The jury’s
7 finding that the defendant was “not guilty” of the “charge” of possessing the
8 shotgun on February 5, 1995, was merely a finding that the Government had not
9 demonstrated possession on this date beyond a reasonable doubt. This does not,
10 however, constitute an acquittal of the charged possession as a whole because
11 proof of possession on February 5, 1995, is not necessary to support a conviction
12 for the charged offense. When the jury deadlocked as to the August 12, 1994,
13 date, and the district court declared a mistrial, jeopardy did not fully terminate.
14 Therefore, the Double Jeopardy Clause does not bar a second prosecution as to the
15 alleged August 12, 1994, possession. See id. at 325–26 (declaration of mistrial
16 following hung jury does not terminate the original jeopardy).

17 Id. at 1351–52 (citations omitted; emphasis supplied).

18 The only real distinction between this case and Rivera is that in Rivera the count initially

19 alleged the two bases of liability by identifying the separate dates upon which the offense was

20 committed, whereas here Count Three did not break down the separate incidents of May 11 by

21 time. Count Three stated only that the offense involved “(a),” powder cocaine, and “(b),” five

22 grams or more of crack cocaine. This distinction, however, does not affect the significance of

23 two theories being identified in one count.4 When the Verdict Sheet was presented to the jury

4
We note that it is immaterial that Count Three charged McCourty with both possession
of an unspecified amount of cocaine, in violation of 21 U.S.C. § 841(b)(1)(C), and possession of
5 grams or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii). While the
offenses arise under separate statutory provisions and the latter requires proof of an element not
required by the former, see United States v. Gonzalez, 420 F.3d 111, 131 (2d Cir. 2005) (“[D]rug
quantity is an element that must always be pleaded and proved to a jury or admitted by a
defendant to support a conviction or sentence on an aggravated offense under § 841(b)(1)(B)(iii)
or -(b)(1)(B).”), the two are nevertheless considered a single offense for purposes of double
jeopardy and duplicity, cf. Blockburger v. United States, 284 U.S. 299, 304 (1932) (“[W]here the
same act or transaction constitutes a violation of two distinct statutory provisions, the test to be

24
 1 here, it did not create two “counts” or “two crimes” but two independent bases or theories of

2 liability. Where the jury is directed to make specific findings as to the separate bases of liability

3 set forth in the indictment, we see no danger of a double jeopardy violation. The indictment

4 itself puts the defendant on notice of the theories of liability, and there is no broadening of the

5 possibility of conviction or multiple punishments for the same offense. See supra Part I(A).

6 Thus, we hold that the defendant may be retried for a portion of the count to which he was

7 neither acquitted nor convicted provided the jury is particular about its findings with respect to

8 the different theories of liability contained in that count.

9 The Supreme Court’s decision in Sanabria is not to the contrary. In Sanabria, the

10 defendant was charged under one count of conducting an illegal gambling business involving

11 horse betting and numbers betting. 437 U.S. at 57. The defendant was acquitted of the entire

12 count after the district court excluded evidence relating to the numbers-betting portion of the

13 count. Id. at 66, 68–69. On appeal, the Court of Appeals vacated the judgment and remanded for

14 a new trial on the numbers theory. United States v. Sanabria, 548 F.2d 1 (1st Cir. 1976). Before

15 the Supreme Court, the government argued that the district court’s exclusion of evidence

16 amounted to a dismissal of the numbers-betting portion of the count, and, therefore, double

17 jeopardy did not foreclose the government from pursuing the prosecution of the defendant for

18 conducting an illegal gambling business involving only numbers betting. Sanabria, 437 U.S. at

19 66–69. The Supreme Court concluded that the district court’s evidentiary ruling did not in fact

20 amount to a dismissal of the numbers-betting portion of the count, and, thus, because the

applied to determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not.”).

25
 1 defendant was acquitted of the entire count, double jeopardy barred the government from

2 prosecuting defendant for conducting an illegal gambling business as to either horse betting or

3 numbers betting.

4 No language in the indictment was ordered to be stricken, nor was the indictment
5 amended. The judgment of acquittal was entered on the entire count and found
6 [the defendant] not guilty of the crime of violating 18 U.S.C. § 1955 (1976 ed.),
7 without specifying that it did so only with respect to one theory of liability[.]

8 Id. at 66–67 (citation omitted).

9 The Supreme Court further concluded that even if the numbers-betting portion of the

10 count had been dismissed, double jeopardy would still bar the government from retrying the

11 defendant for conducting an illegal gambling business involving only the numbers betting. Id. at

12 69. The Supreme Court explained that the defendant’s acquittal was based on a finding of not

13 guilty “for a failure of proof on a key factual element of the offense charged: that he was

14 connected with the illegal gambling business.” Id. at 71 (internal quotation marks omitted).

15 “Had the Government charged only that the business was engaged in horse betting and had [the

16 defendant] been acquitted, his acquittal would bar any further prosecution for participating in the

17 same gambling business during the same time period on a numbers theory.” Id. at 71–72.

18 Here, unlike in Sanabria, each theory of liability was identified for the jury to resolve,

19 permitting the jury to acquit as to a part of Count Three. Cf. Sanabria, 437 U.S. at 66–67 (stating

20 that the defendant was acquitted as to the entire count and that the judgment of acquittal was

21 entered “without specifying . . . [a] theory of liability”). The jury in the case before us reported

22 no verdict on the question of whether McCourty was guilty as to part “(a)” of Count Three,

23 which alleged his possession of drugs in the street, but reported a verdict of not guilty as to part

26
 1 “(b),” which alleged his possession of drugs in an apartment. Thus, the jury’s verdict of not

2 guilty as to the allegation that McCourty possessed drugs in the apartment did not amount to a

3 complete acquittal of the offense charged in Count Three.

4 Furthermore, that the jury acquitted McCourty of possession of drugs in the apartment is

5 not a “key factual element” that requires the conclusion that McCourty did not possess drugs in

6 the street. Unlike in Sanabria, where acquittal of the defendant’s involvement in any gambling

7 business alleged in the indictment foreclosed the possibility that he was engaged in a gambling

8 business involving numbers betting, McCourty’s acquittal of drug possession in one location

9 does not foreclose the possibility of drug possession in another location. Certainly, had the jury

10 found that McCourty possessed no drugs at all on May 11, a retrial on either basis of liability in

11 Count Three would be barred by double jeopardy. That, however, is not the case. McCourty was

12 never retried on the theory of liability for possession in the apartment and thus sustained no

13 double jeopardy in regard to that incident.

14 Accordingly, because there was neither a complete acquittal on Count Three nor an

15 acquittal relating to a key factual element of the crime described in the count, there is no Double

16 Jeopardy violation in the government’s pursuance of a retrial of Count Three as to that portion

17 undecided by the jury.

18 II.

19 McCourty also claims in his appeal that the District Court erred when it denied his

20 Federal Rule of Criminal Procedure Rule 33 motion seeking a new trial on all counts. McCourty

21 specifically alleged in his Rule 33 motion that the testifying police officers had lied at the second

22 trial about the issue of where the drugs had been found on June 16, 2005, and by whom, and

27
 1 about the May 1 and May 11 drug transactions. In his motion and in this appeal, McCourty

2 referred to the following in connection with his allegations of perjury: (1) Officer Dobles’s claim

3 that the “A/O” entry on the “Narcotics Possession Fact Sheet” sometimes referred to “assisting

4 officer” rather than “arresting officer” and Dobles’s statement that he could not recall what

5 “A/O” referred to in this case; (2) Officer Anderson’s testimony that he had witnessed the hand-

6 to-hand transaction on May 1, 2006, when his own report indicated that no hand-to-hand

7 transaction occurred; (3) the testimony by Officers Rodriguez and Lent that the supposed drug

8 buyer on both May 1, 2006, and May 11, 2006, was a “taller Black man.” McCourty also

9 claimed in his motion that the defense identified a host of smaller inconsistencies” that arguably

10 demonstrated that Officer Anderson was an “inveterate perjurer.”

11 We review challenges to a district court’s denial of a Rule 33 motion “for an abuse of

12 discretion” and “accept the district court’s factual findings unless they are clearly erroneous.”

13 United States v. Gallego, 191 F.3d 156, 161 (2d Cir. 1999). “[Rule 33] motions are granted only

14 in ‘extraordinary circumstances,’ and are committed to the trial court’s discretion.” United States

15 v. Torres, 128 F.3d 38, 48 (2d Cir. 1997) (citation omitted) (quoting United States v. Moore, 54

16 F.3d 92, 99 (2d Cir. 1995)).

17 The defendant bears the burden of proving that he is entitled to a new trial under Rule 33,

18 and before ordering a new trial pursuant to Rule 33, a district court must find that there is “‘a real

19 concern that an innocent person may have been convicted.’” United States v. Ferguson, 246 F.3d

20 129, 134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)).

21 Because the courts generally must defer to the jury’s resolution of conflicting evidence and

22 assessment of witness credibility, “[i]t is only where exceptional circumstances can be

28
 1 demonstrated that the trial judge may intrude upon the jury function of credibility assessment.”

2 Sanchez, 969 F.2d at 1414. An example of exceptional circumstances is where testimony is

3 “patently incredible or defies physical realities,” and the district court’s identification of

4 problematic testimony does not automatically meet this standard. Id.

5 Even where courts in this Circuit have clearly identified perjured testimony, they have

6 refused to grant a new trial unless the court could find that the jury “probably would have

7 acquitted in the absence of the false testimony.” Id. at 1413–15 (refusing to grant a new trial

8 under Rule 33 on the basis of perjured testimony because it “could not be said that the jury

9 probably would have acquitted in the absence of the false testimony”). In short, where the

10 resolution of the Rule 33 motion “depend[s] on assessment of the credibility of the witnesses, it

11 is proper for the court to refrain from setting aside the verdict and granting a new trial.”

12 Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992).

13 In this case, the District Court acknowledged that it was “troubled” by some of the police

14 testimony at trial and that there were “problems” with it. Nonetheless, the court found that

15 McCourty failed to demonstrate “exceptional circumstances” justifying overturning the jury’s

16 verdict. Specifically, the District Court found that “the resolution of the factual issues here,

17 given these various officers’ accounts of events, is a matter properly left to the jury.” The court

18 noted that the bases for McCourty’s claims of perjury were “problems with the [police] reports

19 and the vantage point of Officer Anderson and the like” and therefore raised “quintessential

20 cross-examination issues, credibility issues . . . and [that] this is why we have juries.” The court

21 further found that it “[did]n’t believe there’s rampant perjury here” even in light of his concern

22 over a portion of Officer Dobles’s testimony.

29
 1 On the record before us, we can detect no abuse of discretion by the District Court in

2 denying McCourty’s Rule 33 motion. It is the function of the jury to weigh the evidence and to

3 assess the credibility of those witnesses who testify. It was therefore well within the purview of

4 the jury to resolve any discrepancies in the testimony of Officer Dobles and Sergeant Lent,

5 testimony that McCourty now claims was perjured. Although Dobles testified that he did not

6 recall whether he was the officer who recovered the drugs in the street on May 11, his Narcotics

7 Possession Fact Sheet included the notation “A/O.” McCourty contends that this notation

8 demonstrated that Dobles was the arresting officer who retrieved the drugs. However, Dobles

9 also testified that “A/O” sometimes refers to “Assisting Officer.” Sergeant Lent testified that he

10 was the officer who recovered the drugs, and defense counsel cross-examined him at length using

11 Lent’s prior statements and “memo book entries.” The testimony of these officers was not so

12 patently incredible or defiant of physical realities as to justify intrusion upon the jury’s verdict.

13 We also reject McCourty’s claim of perjury arising from the alleged conflict between

14 Officer Anderson’s testimony that he saw McCourty engage in a hand-to-hand transaction on

15 May 1, 2006, and the fact that this observation by Officer Anderson was not reflected in

16 Anderson’s report. There was testimony from Officers Dobles and Rodriguez corroborating

17 Officer Anderson’s testimony regarding his observation of the transaction. Similarly, we also

18 reject McCourty’s claim that the testimony of Officers Rodriguez and Lent was perjured simply

19 because the officers did not testify at the suppression hearing or at the first trial and had no notes

20 or reports indicating that they saw a person — i.e., a “taller black male” — make physical contact

21 with McCourty. The jury was entitled to assess and weigh the credibility of these officers and

22 make the necessary findings that it did. Accordingly, we conclude that the District Court did not

30
 1 abuse its discretion in denying McCourty’s post-trial Rule 33 motion as we can discern no

2 “manifest injustice” in allowing the verdict in this case to stand, and we have no “real concern

3 that an innocent person may have been convicted” in this case. United States v. Canova, 412

4 F.3d 331, 349 (2d Cir. 2005) (internal quotation marks omitted).

5 III.

6 McCourty also contends in his appeal to this Court that we should remand the case to the

7 District Court, pursuant to Kimbrough v. United States, 128 S. Ct. 558 (2007), which had not

8 been decided at the time of McCourty’s sentencing. McCourty seeks to have the District Court

9 resentence him in light of Kimbrough, which provides the legal basis for his claim that the

10 Sentencing Commission’s disparate treatment of crack and powder cocaine was unwarranted and

11 rendered the advisory sentencing range in this case “greater than necessary” under 18 U.S.C. §

12 3553. The government does not object and agrees that this case “should be remanded for

13 resentencing.”

14 In Kimbrough, the Supreme Court held that a policy disagreement with the cocaine

15 powder/crack cocaine disparity in the Guidelines can be grounds for a non-Guidelines sentence.

16 In United States v. Regalado, 518 F.3d 143 (2d Cir. 2008), this Court observed that our decision

17 in United States v. Castillo, 460 F.3d 337 (2d cir. 2006), “may have been over-read or misread to

18 inhibit any deviation” from the policy and that “when a district court sentenced a defendant for a

19 crack cocaine offense before Kimbrough, there was an unacceptable likelihood of error.”

20 Regalado, 518 F.3d at 147. In Regalado, the defendant, at the time of his sentencing in the

21 district court, did not request a deviation, and Castillo had not yet been decided. Regalado, 518

22 F.3d at 146. The Court therefore employed a remand, similar to that in United States v. Crosby,

31
 1 397 F.3d 103 (2d Cir. 2005), for the district court to determine whether it would have imposed

2 the same sentence had it been aware of the discretion accorded it under Kimbrough. Regalado,

3 518 F.3d at 149.

4 In the District Court, McCourty did argue that a deviation was warranted based upon the

5 crack/cocaine disparity, notwithstanding the government’s claim at that time that “the Second

6 Circuit case law is clear on limiting the court’s ability to take into account policy disagreements

7 with the guidelines in fashioning a nonguideline sentence.” Although the District Court deviated

8 and adjusted the sentencing range to reach the sentence that McCourty would have received

9 under the then-pending revisions to the Guidelines that limit the disparity, the District Court still

10 expressed its opinion that “[t]he [United States Sentencing] Commission . . . has constantly been

11 making the guidelines onerous” and characterized the revisions as only a “tiny first step to

12 remedy unfairness.” Therefore, we conclude that we cannot state with any degree of certainty

13 that the District Court would not have imposed a lower sentence had it been aware of

14 Kimbrough’s abrogation of the rule announced in Castillo, and we remand this case for the

15 limited purpose of allowing the District Court to re-sentence McCourty in accordance with the

16 foregoing.

17 CONCLUSION

18 We AFFIRM the judgment of conviction and REMAND for the limited purpose of

19 allowing the District Court to re-sentence the Defendant in light of Kimbrough.

32