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United States v. Rowe

United States Court of Appeals, Third Circuit

April 2, 2019

UNITED STATES OF AMERICA
v.
ANTHONY ROWE, Appellant

          Argued on December 12, 2018

          On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. No. 1-16-cr-00210-001) District Judge: Honorable Sylvia H. Rambo

          Peter Goldberger [ARGUED] Counsel for Appellant

          Daryl F. Bloom Stephen R. Cerutti, II [ARGUED] David J. Freed, United States Attorney Office of United States Attorney Counsel for Appellee

          Before: SMITH, Chief Judge, McKEE and FISHER, Circuit Judges.

          OPINION

          FISHER, CIRCUIT JUDGE.

         Anthony Rowe was charged in a one-count indictment with distribution and possession with intent to distribute 1000 grams of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Rowe conceded that he distributed approximately 200 grams, so the trial focused on whether he had actually distributed 1000 grams or more. The jury returned a general verdict finding Rowe guilty of the offense in the amounts of both 1000 grams or more and 100 grams or more. Rowe argues that the evidence was insufficient to convict because the Government did not prove that he distributed or possessed 1000 grams of heroin in a single unit, instead relying on evidence of multiple smaller distributions and possessions during the indictment period. He also challenges his sentence, arguing that the District Court relied on information lacking sufficient indicia of reliability to determine his offense level.

         We agree that the evidence was insufficient to support the 1000-gram verdict. We will therefore vacate the judgment of conviction based on the 1000-gram verdict and remand to the District Court to enter a judgment of conviction based on the 100-gram verdict. Because this conclusion resolves Rowe's appeal of the judgment, we will not address his additional arguments concerning duplicity of the indictment and prosecutorial misconduct. Regarding Rowe's sentence, we will vacate and remand for re-sentencing with the instruction that the Government may not introduce additional evidence on drug quantity.

         I.

         A. Investigation, Arrest, and Indictment

         Government witness and confidential informant William Pierce was arrested on April 20, 2016 after about ten grams of marijuana and forty grams of heroin were discovered in the rental car he was driving. Pierce offered to cooperate and subsequently made controlled transactions under surveillance. On June 25, 2016, Pierce paid Rowe $3900 and received 198.86 grams of heroin, and on June 27, 2016, Pierce paid him $7000 in pre-recorded bills for heroin Pierce had previously received. Rowe was arrested shortly afterward. Officers recovered a small notebook, several cell phones, and cash that matched the pre-recorded bills.

         Rowe was indicted in the Middle District of Pennsylvania for one count of distributing and possessing with intent to distribute 1000 grams and more of heroin, a Schedule I controlled substance, from on or about February 2016 through on or about June 25, 2016, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

         B. The Trial

         At trial, Rowe conceded that he had delivered approximately 200 grams of heroin to Pierce while under surveillance. Due to Rowe's concession, the only contested issue was drug weight; the jury was charged with determining whether Rowe distributed or possessed with intent to distribute 1000 grams or more of heroin, or a lesser amount (100 grams or more). The Government's theory throughout the trial was that because Rowe distributed or possessed with intent to distribute a total of 1000 grams or more of heroin during the indictment period, a 1000-gram verdict was justified. To support its theory, the Government presented the testimony of Pierce and a Drug Enforcement Administration agent, as well as the notebook found when Rowe was arrested.

         1. Testimony of Confidential Informant William Pierce

         Pierce's testimony implicated Rowe in sales totaling as much as 1700 grams of heroin during the indictment period. Pierce testified that when he met Rowe for the first time in February 2016, he attempted to purchase twenty-eight grams of heroin, but actually received twenty-one grams (a discrepancy that Rowe attributed to unintentional error). During this first meeting, Pierce saw a black bag (which he described as a "regular . . . little store bag") in Rowe's vehicle with six to eight packages inside, with numbers on each package that read "50 or a hundred or 75." App. 169a. Pierce believed these numbers indicated the amount of drugs in the packages.

         In the following months, Pierce testified that he bought heroin from Rowe one to two times a week for $75 to $85 per gram. Pierce recalled buying twenty-one grams in February 2016 and fifty grams shortly thereafter. There were larger transactions as well: eight purchases of 100 grams and three purchases of 150 to 200 grams. Pierce also testified about the two controlled transactions.[1] Pierce testified that in all, he bought $80, 000 to $140, 000 worth of heroin from Rowe at around $82.50 per gram, which would indicate a total amount of 969.7 to 1697 grams.

         Pierce testified that Rowe often wrote in "little notebooks." App. 209a-210a. When presented with the notebook confiscated from Rowe upon his arrest, Pierce testified that notations on a page marked "DO" tracked his purchase and payment history with Rowe, including the controlled transactions.

         2. Expert Testimony of DEA ...


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