                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2008

USA v. Richards
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2536




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2536


                           UNITED STATES OF AMERICA

                                            v.

                                 JERRY L. RICHARDS
                                     a/k/a Junior

                                   Jerry L. Richards,

                                                 Appellant




           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                             (D.C. Criminal No. 1:06-CR-319)
                  District Judge: The Honorable Christopher C. Connor




                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 12, 2008

                       Before: McKEE and ROTH, Circuit Judges
                               O’NEILL*, District Judge

                                  (Filed : July 7, 2008)


      *Honorable Thomas N. O’Neill, Jr., United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
                               OPINION OF THE COURT




O’NEILL, District Judge

       Appellant Jerry L. Richards appeals the District Court’s use of a preponderance-of-

the-evidence standard to determine drug quantity at sentencing and the District Court’s

refusal to grant a mistrial and inquiry to the jury regarding whether there was a minimum

quantity of drugs upon which it could reach a unanimous verdict. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). For the reasons stated below,

we will affirm the judgment of the District Court.

                                            I.

       Because we write only for the parties, our factual summary is brief. On September

20, 2006, a grand jury returned a two-count indictment against appellant Richards,

charging him with conspiracy to distribute fifty grams or more of crack cocaine in

violation of 21 U.S.C. § 846 (Count I) and possession with intent to distribute fifty grams

or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count II). Defendant

pleaded not guilty, had counsel appointed, and went to trial in the United States District

Court for the Middle District of Pennsylvania on January 4, 2007. At the conclusion of

the government’s case-in-chief, the District Court granted appellant’s motion for

judgment of acquittal with respect to Count I.

                                             2
       After receiving the District Court’s instructions, the jury retired to deliberate at

3:31 p.m. on Friday, January 5, 2007. At 4:40 p.m. on January 5, the jury returned with a

question regarding where certain evidence had been found. The Court, with no objection

from either party, advised the jury that its recollection would govern.

       At 7:52 p.m. on January 5, the jury returned with the question, “Must the jury

reach unanimity on the interrogatory?” The interrogatory asked the jury, in the event that

it found appellant guilty of the substantive offense, to find beyond a reasonable doubt that

he was responsible for fewer than five grams, more than five but fewer than fifty grams,

or more than fifty grams of crack cocaine. The Court, with no objection from either

party, responded, “Yes.” The jury continued to deliberate until 9:00 p.m. on January 5, at

which point the Court recessed.

       Jury deliberations continued at 9:20 a.m. on Monday, January 8, 2007. At 12:13

p.m. on January 8, the jury returned with the questions, “What is the result of a

unanimous verdict, but not unanimous determination on the interrogatory? Is the result a

mistrial or a hung jury?” The District Court responded by providing the jury with a

modified Allen 1 charge:

       I’d like you to go back into the jury room and talk some more about the
       evidence, and remember my entire instructions that your job is to be the
       finders of the facts, that you should consider the evidence, you should
       consider my instructions on the law, and that you should render a verdict
       based on the evidence, and that should be your guide, what the evidence is


       1
           Allen v. United States, 164 U.S. 492 (1896).

                                               3
       in this case and what the instructions were on the law.

              It is your duty as jurors to consult with one another and to deliberate
       with a view to reaching an agreement, if you can do so without violence to
       individual judgment. Each of you must decide the case for yourself, but do
       so only after an impartial consideration of the evidence in the case with
       your fellow jurors. In the course of your deliberations do not hesitate to re-
       examine your own views and change your opinion if convinced it is
       erroneous, but do not surrender your honest conviction as to the weight or
       effect of evidence solely because of the opinion of your fellow jurors or for
       the mere purpose of reaching a verdict.

              Remember also that the government has to prove its case beyond a
       reasonable doubt, and if they do not do this, then you must return a verdict
       of not guilty. If they have done this, then you must return a verdict of
       guilty. So I ask you all to remember my instructions on what is reasonable
       doubt and all the other instructions that I gave you and remember that you
       oath as jurors is to decide the case on the evidence in the courtroom and the
       instructions of the law, and to render a verdict, if you possibly can, on the
       charge.

              If you cannot reach a unanimous verdict on the matters before you,
       you should notify the court that you are hopelessly deadlocked, and then the
       case will have to be retried in front of another jury. So I ask that you please
       go back into the jury room, continue to review the evidence before you, and
       continue to deliberate.

       At 3:30 p.m. on January 8, the jury returned with the statement, “Judge Connor, we

are deadlocked on the interrogatory.” Over defense counsel’s objection, the Court asked

the jury “to return to the jury room to determine whether there is a minimum quantity of

drugs upon which you can unanimously agree beyond a reasonable doubt.” The Court

further advised the jury, “If you are unable to do so, please respond that you are

hopelessly deadlocked and we will address that situation.”

       Defense counsel’s objection was based on his belief that “in light of the fact that


                                              4
the jury has now been deliberating for longer than it took us to introduce the evidence in

this case, and in light of the fact that we have already given the jury a modified Allen

charge . . . what the court is proposing would be unduly coercive.” Defense counsel

continued, “I would ask that the court take on face value the fact that the jury is

deadlocked and dismiss the jury.” The Court responded to counsel’s objection by stating

that it would proceed by asking the jury to return to the jury room to determine whether

there is a minimum quantity of drugs upon which the jury could unanimously agree

beyond a reasonable doubt, though the Court noted, “[I]t may very well be that the jury

determines that they are unable to agree unanimously on a minimum quantity of drugs, in

which event it would be my strong inclination to declare a mistrial.”

       At 4:21 p.m. on January 8, the jury returned a verdict. The jury found appellant

guilty of Count II and returned a special verdict finding beyond a reasonable doubt that

appellant distributed or possessed with intent to distribute at least five but fewer than fifty

grams of crack cocaine. The Court polled the jury at appellant’s request, and each of the

twelve jurors responded that he/she agreed with the verdict.

       The United States Probation and Parole Office prepared a presentence report in

May 2007. The presentence report determined, “Based on witness testimony, the

defendant is conservatively accountable for 519.78 grams of crack cocaine.” Appellant

objected to the report’s determination regarding drug quantity, arguing that the jury’s

verdict at trial – which found him responsible for between five and fifty grams of crack



                                               5
cocaine – should govern the drug quantity determination.

       The District Court held a sentencing hearing on May 15, 2007 and, using a

preponderance-of-the-evidence standard, found that appellant possessed with an intent to

distribute 108.28 grams of crack cocaine. Because the drug quantity determination

resulted in an offense level of 32 and appellant’s criminal history category was I, the

guideline imprisonment range was 121 to 151 months incarceration. The District Court

granted a downward variance and imposed a sentence of 100 months incarceration

followed by four years supervised release. The Court also ordered appellant to pay: a fine

of $1,000.00; $1,000.00 in community restitution; and a $100.00 special assessment.

       Judgment was entered in the District Court on May 16, 2007. Appellant filed a

timely notice of appeal on May 21, 2007. Appellant raises two issues on appeal: (1)

whether the District Court’s committed reversible error by determining the drug quantity

for guideline sentencing under a preponderance of the evidence standard; and (2) whether

the District Court abused its discretion by denying appellant’s motion for mistrial and

directing the jury to deliberate further on the issue of the quantity of drugs appellant was

responsible for distributing and possessing with intent to distribute.

                                             II.

       After United States v. Booker, 543 U.S. 220 (2005), we “continue to review

factual findings relevant to the Guidelines for clear error and to exercise plenary review

over a district court’s interpretation of the Guidelines.” United States v. Grier, 475 F.3d



                                              6
556, 570 (3d Cir.) (en banc), cert. denied, --- U.S. ----, 128 S.Ct. 106, 169 L.Ed.2d 77

(2007). “A finding is clearly erroneous when, although there is evidence to support it, the

reviewing body on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” Id. (citations and internal marks omitted).

         We review the District Court’s decision to read a supplemental jury instruction for

an abuse of discretion. United States v. Jackson, 443 F.3d 293, 297 (3d Cir. 2006), citing

United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995). Under the abuse of

discretion standard, appellant must show that the District Court’s action was “arbitrary,

fanciful or clearly unreasonable.” Id., citing Stich v. United States, 730 F.2d 115, 118 (3d

Cir. 1984). We must review the supplemental instruction given not “‘in artificial

isolation, but . . . in the context of the overall charge.’” Id., quoting United States v.

Brennan, 326 F.3d 176, 192 (3d Cir. 2003). We also review a District Court’s denial of a

mistrial for abuse of discretion. See United States v. Hakim, 344 F.3d 324, 328 (3d Cir.

2003).

                                              III.

         In United States v. Grier, 475 F.3d 556, 561 (3d Cir. 2007) (en banc), this Court

addressed “whether the Due Process Clause requires facts relevant to enhancements under

the United States Sentencing Guidelines, particularly those that constitute a ‘separate

offense’ under governing law, to be proved beyond a reasonable doubt.” We concluded




                                               7
“Once a jury has found a defendant guilty of each element of an offense 2 beyond a

reasonable doubt, he has been constitutionally deprived of his liberty and may be

sentenced up to the maximum sentence authorized under the United States Code without

additional findings beyond a reasonable doubt.” Id. Accordingly, “[j]udicial factfinding

in the course of selecting a sentence within the permissible range does not offend the

Fifth and Sixth Amendment rights to a jury trial and proof beyond a reasonable doubt.”

Id. “[T]he appropriate burden for finding sentencing facts here is by a preponderance of

the evidence.” United States v. Ali, 508 F.3d 136, 145 (3d Cir. 2007), citing Grier, 475

F.3d at 561.

       Appellant contends that the Due Process Clause of the Fifth Amendment and the

Sixth Amendment guarantee to trial by an impartial jury in criminal cases required the

District Court’s finding at sentencing that appellant was responsible for 108.28 grams of

crack cocaine – which resulted in an increase in the recommended Guidelines

imprisonment range from 78-97 months to 121-151 months – to be proved to a jury with

evidence beyond a reasonable doubt. However, as we stated in Grier:

       By excising the provisions of the United States Code requiring mandatory
       application of the United States Sentencing Guidelines, the Supreme Court
       in [United States v. Booker, 543 U.S. 220 (2005)] altered the constitutional


       2
        “[A]ny conduct that exposes an individual to punishment or increases the
maximum punishment to which he or she is otherwise exposed must be deemed a crime.
The predicate facts of such conduct constitute the ‘elements’ of the ‘crime.’ It is to these
facts, and to these facts alone, that the rights to a jury trial and proof beyond a reasonable
doubt attach.” Grier, 475 F.3d at 562, citing Apprendi v. New Jersey, 530 U.S. 466, 484
(2000) (citations omitted).

                                              8
       impact of the Guidelines. None of the facts relevant to enhancements or
       departures under the Guidelines can increase the maximum punishment to
       which the defendant is exposed. The Due Process Clause thus affords no
       right to have these facts proved beyond a reasonable doubt.

Grier, 475 F.3d at 565-66 (affirming the District Court’s decision to apply the

preponderance standard to all facts relevant to the Guidelines and stating that “[t]here can

be no question, in light of the holding of Booker and the reasoning of Apprendi, that the

right to proof beyond a reasonable doubt does not apply to facts relevant to enhancements

under an advisory Guidelines regime”). Because after Booker the Guidelines merely are

advisory, “[t]he maximum legislatively authorized punishment to which the defendant is

exposed is no longer the maximum prescribed by the Guidelines; instead, it is the

maximum prescribed by the United States Code. Therefore, findings of fact relevant to

the Guidelines need not be submitted to a jury.” 3 Grier, 475 F.3d at 564.

       At sentencing the District Court reviewed the drug quantity testimony presented at

trial and, using a preponderance-of-the-evidence standard, concluded that appellant was

responsible for 108.28 grams of crack cocaine. In considering the evidence, the District



       3
         Appellant cites Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007) for the
proposition that “any fact that exposes a defendant to a greater potential sentence must be found
by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance
of the evidence.” However, because the Supreme Court in Cunningham considered a Sixth
Amendment challenge to a mandatory sentencing regime, the Court’s analysis does not conflict
with our conclusion in this case, where we consider appellant’s constitutional arguments in the
context of an advisory sentencing scheme. Indeed the Court in Cunningham recognized that in
Booker a unanimous Court agreed that “‘merely advisory provisions,’ recommending but not
requiring ‘the selection of particular sentences in response to differing sets of facts . . . would not
implicate the Sixth Amendment.’” Cunningham, 127 S.Ct. at 870, quoting Booker, 543 U.S. at
233.

                                                   9
Court credited the testimony of the Government witnesses but refused to calculate the

drug quantity in accordance with the presentence report – which concluded that appellant

was accountable for 519.78 grams – because it found certain testimony “to be so

imprecise that it is insufficient to meet the preponderance of the evidence standard.”

After departing downward from the recommended Guidelines range for such an amount –

121 to 151 months – the District Court imposed a sentence of 100 months incarceration.

       We conclude that the District Court did not violate the Due Process Clause of the

Fifth Amendment and the Sixth Amendment guarantee to trial by an impartial jury by

using a preponderance-of-the-evidence standard to determine the drug quantity for

sentencing. As the statutory maximum to which appellant was exposed is no longer the

maximum prescribed by the Guidelines but the maximum prescribed by the United States

Code, the District Court was not required to submit to a jury this finding of fact relevant

to the Guidelines to impose its sentence.

       Appellant attempts to distinguish Grier by arguing that in this case the District

Court imposed a sentence enhancement based largely on acquitted conduct, while the

District Court in Grier imposed a sentence enhancement for an uncharged offence after

defendant pled guilty. See Grier, 475 F.3d at 559-60. However, as the United States

Supreme Court held in United States v. Watts:

       [A]n acquittal in a criminal case does not preclude the Government from
       relitigating an issue when it is presented in a subsequent action governed by
       a lower standard of proof. The Guidelines state that it is “appropriate” that
       facts relevant to sentencing be proved by a preponderance of the evidence,


                                             10
       and we have held that application of the preponderance standard at
       sentencing generally satisfies due process. . . . We therefore hold that a
       jury’s verdict of acquittal does not prevent the sentencing court from
       considering conduct underlying the acquitted charge, so long as that
       conduct has been proved by a preponderance of the evidence.

519 U.S. 148, 156 (1997) (citations omitted).

       Appellant acknowledges in his brief that Watts is still good law “until it is

expressly overruled by the Supreme Court.” Therefore, by appellant’s admission even if

we were to consider that the jury’s unanimous special verdict regarding a minimum

quantity of drugs constituted an acquittal of possession with intent to distribute any

greater drug quantity, the District Court was not prevented from considering facts

underlying the acquitted charge as long as the Court determined that those facts were

proved by a preponderance of the evidence.

                                             IV.

       Supplemental jury charges should not be used to “blast a hung jury into verdict.”

United States v. Burley, 460 F.2d 998, 999 (3d Cir. 1972), quoting United States v.

Fioravanti, 412 F.2d 407, 419 (3d Cir. 1969). “[I]t is a cardinal principle of the law that a

trial judge may not coerce a jury to the extent of demanding that they return a verdict.”

Fioravanti, 412 F.2d at 416; see United States v. Boone, 458 F.3d 321, 326 (3d Cir.

2006). We, however, will only find a supplemental charge to be unduly coercive where it

caused the jury to be “influenced by concerns irrelevant to their task” and “reach[] its

subsequent verdict for reasons other than the evidence presented to it.” United States v.



                                             11
E. Med. Billing, Inc., 230 F.3d 600, 613 (3d Cir. 2000), citing Burley, 460 F.2d at 999.

       The District Court did not abuse its discretion when it denied appellant’s motion

for a mistrial and, after the jury declared it was deadlocked on the interrogatory,

instructed the jury “to return to the jury room to determine whether there is a minimum

quantity of drugs upon which you can unanimously agree beyond a reasonable doubt.”

Such an instruction neither is coercive nor demands an answer. Further, the District

Court explicitly noted that deadlock was an option, advising the jury, if it were unable to

determine unanimously a minimum quantity of drugs, to “please respond that you are

hopelessly deadlocked and we will address that situation.”

       Appellant argues that the District Court’s instruction “in the face of the jury’s third

declaration of impasse” was as harmful as an affirmative declaration that deadlock was

not an option. This argument is without merit. First, this case readily is distinguishable

from the two cases cited by appellant finding that coercion exists where the trial courts

substantially and explicitly pressure the jury to reach a verdict or fail to notify the jury

that deadlock is an option. See Jenkins v. United States, 380 U.S. 445, 446 (1965)

(finding coercive the trial judge’ statement, “You have got to reach a decision in this

case”); United States v. U.S. Gypsum Co., 550 F.2d 115, 133 (3d Cir. 1977) (Adams, J.,

concurring). Second, the record includes only one declaration of impasse from the jury.

Though appellant counts three declarations, the first two of these merely were questions

regarding the effect of an impasse on the interrogatory. Upon receiving one declaration



                                              12
of impasse, the District Court did not abuse its discretion by asking the jury to return to

the jury room and determine whether it could unanimously agree on a minimum quantity

of drugs while explicitly advising the jury that deadlock was an option.

                                             V.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                           13
