on December 12, 2018
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
Goldberger [ARGUED] Counsel for Appellant
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.
FISHER, CIRCUIT JUDGE.
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.
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
Investigation, Arrest, and Indictment
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.
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).
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.
Testimony of Confidential Informant William Pierce
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.
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. 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.
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.
Expert Testimony of DEA ...