USA v. Brown et al

OCR transcription for search; preserved printed pages are authoritative

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION

CIVIL NO. 1:03CV251
(1:00CR69-5)

AMOS JUNIOR SCOTT, )
Petitioner,

Vs. ORDER
UNITED STATES OF AMERICA,
Respondent.

THIS MATTER is before the Court on the Petitioner’s motion pursuant

to Federal Rule of Civil Procedure 59(e) to alter or amend judgment.

|. STANDARD OF REVIEW
“There are three circumstances in which the district court can grant a
Rule 59(e) motion: ‘(1) to accommodate an intervening change in controlling
law; (2) to account for new evidence not available at trial; or (3) to correct a
clear error of law or prevent manifest injustice.”” United States ex rel. Becker

v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4" Cir. 2002),

INFORMATION

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cert. denied, 538 U.S. 1012 (2003) (quoting Pac. Ins. Co. v. Am. Nat’l Fire
Ins. Co., 148 F.3d 396, 403 (4 Cir. 1998)).th
Thus, the rule permits a district court to correct its own errors,
“sparing the parties and the appellate courts the burden of
unnecessary appellate proceedings.” Rule 59(e) motions may not
be used, however, to raise arguments which could have been
raised prior to the issuance of the judgment, nor may they be used
to argue a case under a novel legal theory that the party had the
ability to address in the first instance. . . . In general
“reconsideration of a judgment after its entry is an extraordinary
remedy which should be used sparingly.”
Pac. Ins. Co., at 403 (quoting Russell v. Delco Remy Div. of Gen. Motors
Corp., 51 F.3d 746, 749 (7 cir. 1995) and 11 Wright, et al., Federalth
Practice & Procedure § 2810.1, at 124 (2d ed. 1995)) (other citations
omitted). “[A]n issue presented for the first time in a motion pursuant to
[Rule 59(e)] generally is not timely raised; accordingly, such an issue is not
preserved for appellate review unless the district court exercises its discretion
to excuse the party’s lack of timeliness and consider the issue.” Holland v.
Big River Minerals Corp., 181 F.3d 597, 605 (4 Cir. 1999). Finally, “mereth
disagreement [with the Court’s ruling] does not support a Rule 59(e) motion.”
Hutchinson v. Staton, 994 F.2d 1076, 1082 (4 Cir. 1993).th
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II. DISCUSSION
In this motion, the Petitioner raises again the argument that the
undersigned erroneously determined his prior criminal conviction because, in
fact, his probation was never revoked. However, he has not submitted any
documentation that proves this claim. And, although he claims he has
initiated post-conviction proceedings in the state court to attack that
conviction, the only documentation provided shows that his appeal was not
filed because it was untimely. Thus, there is no post-conviction attack.
Johnson v. United States, 125 S. Ct. 1571 (2005).
Petitioner also reiterates his argument that the jury verdict should have
contained a finding of drug quantities attributable solely to him instead of to
the conspiracy, citing United States v. Collins, 415 F.3d 304 (4 Cir. 2005).th
In that case, the defendant was indicted for conspiring to distribute 50 grams
or more of cocaine base. After his conviction by jury verdict, he was
sentenced to the mandatory 10 year minimum sentence of 21 U.S.C. §§
841(b)(1)(A) and 846. On appeal, he claimed the court erroneously
instructed the jury when, during deliberations, a message came from the jury
asking whether the quantity of drugs alleged in the indictment, i.e., 50 grams
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or more, applied to the defendant or to the conspiracy as a whole. The judge
instructed the jury that the quantity applied to the entire group of
conspirators. He gave no further or supplemental instruction. On appeal,
Collins argue[d] that the district court erred in answering the jury’s
question. Collins contend[ed] that the jury should have been
instructed that in order to hold [him] responsible for 50 grams or
more of crack cocaine it must make one of two findings, either
that (1) Collins himself was involved in the distribution of 50
grams of crack cocaine, or (2) other members of the conspiracy
were involved in that amount, and those actions of coconspirators
were both reasonably foreseeable and in furtherance of the jointly
undertaken criminal activity, see Pinkerton v. United States, 328
U.S. 640 . . . (1946).
. . .
The most stringent penalty section under §841(b), §841(b)(a)(A),
mandates a 10 year minimum sentence for an individual found
guilty under §841(a) for . . . distributing . . . 50 grams or more of
cocaine base. The Superseding Indictment contemplates this
subsection by charging Collins with conspiring to distribute 50 or
more grams of cocaine base, commonly known as crack cocaine.
Considering the statutory scheme outlined above, it is clear that
the amount of narcotics attributable to a defendant dictates the
period of incarceration for a defendant convicted of the
substantive offense. When a defendant is charged and convicted
for conspiracy to violate § 841(a), the important question of
quantity becomes more difficult to interpret and apply. . . . [In
United States v. Irvin, 2 F.3d 72 (4 Cir. 1993), the Fourthth
Circuit concluded that] . . . “the most reasonable interpretation of
the relevant statutory provisions requires a sentencing court to
assess the quantity of narcotics attributable to each coconspirator
by relying on the principles set forth in Pinkerton.” Id., at 77.
. . .
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The principles outlined in Pinkerton, however, have no
applicability to a conviction under § 846. Pinkerton principles
are relevant when a conspirator is charged with a substantive
offense arising from the actions of a coconspirator, not when a
conspirator is charged with conspiracy. Because Count 1
charge[d] Collins with conspiracy (§ 846), and not a substantive
offense, the district court’s answer to the jury’s question, as well
as its original conspiracy instruction, is unassailable as a matter of
law. This, however, does not end the inquiry. Although the
district court correctly instructed the jury as to the elements of
conspiracy, it erred by not issuing a further instruction relating to
the factual predicate necessary for sentencing. . . . Under current
precedent, rather than the district court applying Pinkerton
principles when determining the appropriate sentence under §
841(b), that same court must instead instruct a jury to use
Pinkerton principles when making the same determination. . . .
By failing to instruct the jury . . . that, for purposes of setting a
specific threshold drug quantity under § 841(b), the jury must
determine what amount of cocaine base was attributable to
Collins using Pinkerton principles [i.e., other members of the
conspiracy were involved in that amount, and those actions of
coconspirators were both reasonably foreseeable and in
furtherance of the jointly undertaken criminal activity], the district
court’s sentence effectively attributed to Collins, an individual
member of the conspiracy, the quantity of cocaine base
distributed by the entire conspiracy. . . . For these reasons, the
district court’s sentence, which was based on the 10 year
minimum set forth in § 841(b)(1)(A), cannot stand.
Collins, 415 F.3d at 311-314 (internal citations, footnotes and quotations
omitted).
In the Petitioner’s case, however, the verdict sheet specifically
addressed the issue of “involvement:” “[D]id the conspiracy described in the
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indictment involve at least five kilograms of a mixture or substance containing
a detectable amount of cocaine?” Verdict Sheet, filed January 12, 2001.
And, there was no question from the jury as to the Petitioner’s individual
involvement.
In fact, the verdict sheet in the Petitioner’s case was identical that used
in United States v. Odman, 47 Fed. Appx. 221 (4 Cir. 2002), cert. denied,th
537 U.S. 1211 (2003). The verdict sheet there asked whether “the
conspiracy described in the indictment involve[d] at least five kilograms of
cocaine?” Compare Verdict Sheet, filed January 23, 2001, in United States
v. Odman, Criminal No. 4:96cr53, with Verdict Sheet, supra. On appeal, the
Fourth Circuit noted that Odman argued “that the verdict form was defective
because it did not ask the jury to determine the specific quantity of cocaine . .
. attributable to him[.] . . . The verdict form required the jury to determine
whether Odman was guilty of participation in a conspiracy involving the
specific threshold amounts of cocaine or crack that justify an enhanced
sentence under 21 U.S.C. § 841(b).” Odman, supra, at 223. The Fourth
Circuit found no error.
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The Petitioner’s conviction was rendered by jury verdict during the same
term of court as Odman was tried and convicted. The law at that time
condoned the verdict form used. The fact that the law may have changed in
light of subsequent precedent, is an issue which the Petitioner should pursue
with the Fourth Circuit Court of Appeals.
III. ORDER
IT IS, THEREFORE, ORDERED that the Petitioner’s motion pursuant to
Federal Rule of Civil Procedure 59(e) is hereby DENIED.
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Signed: December 9, 2005

Lacy H. Thornburg
United States District Judge

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