United States of America v. Anthony Rowe

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.

3

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.

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).

4

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

5

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 Special Agent

Shuffelbottom

DEA Special Agent Eric Shuffelbottom, who had

experience in narcotics, undercover investigations, and

domestic and international drug smuggling, provided expert

testimony. He testified that based on his experience, the

notebook appeared to be a drug ledger, that is, “a record

keeping of drug transactions and money transactions.” App.

363a. He testified that the initials at the tops of the pages likely

referred to customers, and that the numbers below the initials

likely referred to the amount of product fronted to each

customer. Special Agent Shuffelbottom further testified that

additional notations tracked customers’ payments and

remaining debts. He explained that the notation “275x70” on

the inside cover of the ledger could refer to a 275-gram

purchase of a $70-per-gram substance.

1 At trial, Pierce seemed to confuse the two controlled

transactions, providing inconsistent testimony regarding how

much he paid Rowe on which date. The facts were

subsequently clarified through additional testimony from

Pierce and from officers who were involved in the transactions.

6

In addition to testifying about the ledger, Special Agent

Shuffelbottom testified generally about the heroin trade. For

example, he testified that one thousand grams of heroin could

cost between $65,000 and $75,000 and that individual amounts

of heroin were often packaged in “thin wax paper bags.” App.

358a. Special Agent Shuffelbottom also testified that a dealer

selling 200 grams of heroin at a time would likely have access

to multi-kilogram quantities. Finally, he testified about how

dealers use cell phones to conduct business and that they often

transport drugs from larger cities to smaller communities by

car.

3. The Ledger

The Government argued that the notebook was Rowe’s

drug ledger, pointing to Pierce’s and Special Agent

Shuffelbottom’s testimony, and also drawing connections

between Pierce’s testimony, the notations on the “DO” page,

and the marked funds from the controlled transactions. Over

defense counsel’s objection, the District Court admitted the

ledger in its entirety.

4. Closing Argument

In closing, the prosecutor argued, based on the evidence

of multiple distributions, that the Government presented

sufficient evidence to prove the 1000-gram drug weight. For

instance, he tallied the figures in the ledger to arrive at a “drug

ledger total” of 1066 grams. App. 405a. He argued that Pierce’s

testimony and his corresponding page in the ledger indicated

that the notations in the ledger referred to heroin.

5. The Instructions, Verdict, and Post-Trial Motion

The District Court instructed the jury that it had to

decide “whether the Government has proved beyond a

reasonable doubt that Mr. Rowe distributed 1 kilogram or more

of heroin.” App. 452a. The jury also had the option of returning

7

a verdict for the lesser-included 100 grams. It returned a guilty

verdict for both drug weights.

Rowe filed a post-trial motion for a judgment of

acquittal or a new trial, arguing that the evidence was

insufficient to support the jury’s 1000-gram verdict,

particularly because the District Court did not instruct the jury

on how to “determine the particular weight of heroin that was

involved in the crime.” App. 496a. The District Court denied

the motion.

Sentencing

Rowe objected to the Presentence Report (PSR)

calculation that his offense involved at least ten kilograms of

heroin, resulting in a base offense level of thirty-four under

U.S.S.G. § 2D1.1(c)(3). The PSR determination was based on

a statement Rowe was alleged to have made at the time of his

arrest regarding his heroin supplier. However, evidence of that

statement had been excluded at trial, and the Government

neither called a witness nor introduced any documentary

evidence concerning the statement at sentencing. Rowe

therefore argued that the Government had not presented any

evidence that his offense involved the requisite ten kilograms

of heroin. Despite Rowe’s objection, the Court “adopt[ed] the

pre-sentence investigation report without change,” App. 549a,

and imposed a within-Guidelines sentence of 151 months’

imprisonment followed by five years’ supervised release.

II.2

Insufficient Evidence to Support the 1000-Gram Verdict

Our review of the sufficiency of the evidence is plenary,

but “we must consider the evidence in the light most favorable

2 The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18

8

to the government and affirm the judgment if there is

substantial evidence from which any rational trier of fact could

find guilt beyond a reasonable doubt.” United States v.

Benjamin, 711 F.3d 371, 376 (3d Cir. 2013) (citations and

internal quotation marks omitted). Our task therefore is to

determine “whether the Government has adduced sufficient

evidence respecting each element of the offense charged to

permit jury consideration.” United States v. Miller, 527 F.3d

54, 63 (3d Cir. 2008) (citation omitted).

The Government may rely on direct and circumstantial

evidence to make its case to the jury. United States v.

Caraballo-Rodriguez, 726 F.3d 418, 425 (3d Cir. 2013). While

it is axiomatic that reasonable inferences can support a verdict,

they “must bear a logical or convincing connection to

established fact.” Id. (citation and internal quotation marks

omitted). In the end, “[t]he question is whether all the pieces of

evidence against the defendant, taken together, make a strong

enough case to let a jury find [the defendant] guilty beyond a

reasonable doubt.” Id. at 432 (quoting United States v. Cooper,

567 F.2d 252, 254 (3d Cir. 1977)).

The Government charged Rowe with violating 21

U.S.C. § 841(a)(1) by two means: distributing heroin, and

possessing it with intent to distribute. The Government further

charged that the violation involved 1000 grams or more of

heroin, but provided the jury with two options for a finding on

drug weight: 1000 grams or more, and 100 grams or more.

Under § 841(b)(1)(A)(i), a violation of § 841(a) involving

1000 grams or more of heroin requires a mandatory minimum

penalty of ten years’ imprisonment and sets a maximum

penalty of life imprisonment. Under § 841(b)(1)(B)(i), a

violation of § 841(a) involving 100 grams or more of heroin

U.S.C. § 3742(a).

9

requires a mandatory minimum penalty of five years’

imprisonment and sets a maximum penalty of forty years’

imprisonment. Because the weight involved in a violation of

§ 841(a) increases the statutory penalty, it is an element of the

offense that must be proven beyond a reasonable doubt. See

Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Any fact

that, by law, increases the penalty for a crime is an ‘element’

that must be submitted to the jury and found beyond a

reasonable doubt.”). Therefore, the question presented here is

whether the evidence was sufficient to allow a jury to find that

Rowe violated § 841(a) by distributing 1000 or more grams of

heroin, or by possessing with intent to distribute 1000 or more

grams of heroin.

Under 21 U.S.C. § 802(11), distribution occurs when a

controlled substance is delivered. Delivery is “the actual,

constructive, or attempted transfer of a controlled substance.”

21 U.S.C. § 802(8). Our sister circuits have held that “[t]he

plain language of [§ 841(a)] indicates” that “each unlawful

transfer [is] a distinct offense.” United States v. Lartey, 716

F.2d 955, 967 (2d Cir. 1983). See United States v. Mancuso,

718 F.3d 780, 793 (9th Cir. 2013); see also United States v.

Elliott, 849 F.2d 886, 889 (4th Cir. 1988) (“The more precise

terms ‘deliver’ and ‘transfer’ suggest that Congress intended

the statute to criminalize individual acts, rather than a

continuous course of conduct.”). We agree with their reasoning

and hold that “separate acts of distribution of controlled

substances are distinct offenses under 21 U.S.C. § 841(a), as

opposed to a continuing crime.” Mancuso, 718 F.3d at 793.3

3 The Eleventh Circuit has held that distribution

continued where a defendant “performed acts in furtherance of

[a] sale” in two districts, physically transferring a controlled

substance in one and receiving payment in another, for the

10

At trial, the Government did not present evidence of a

single distribution involving 1000 grams or more of heroin.

The prosecutor mistakenly believed that distribution of 1000

grams could be proven by combining several distributions that,

in total, involved 1000 grams of heroin. Rowe challenged this

approach in his post-trial motion. The District Court confirmed

that the Government was mistaken, and the Government

concedes the same before this Court.4 However, the District

Court found that because Rowe was also charged with

possession with intent to distribute, a continuing offense, the

jury’s general verdict could stand. We disagree. As we will

now explain, the Government’s understanding of possession

with intent to distribute was also flawed, and the Government

did not present sufficient evidence of possession with intent to

distribute 1000 grams of heroin.

Possession with intent to distribute is actual or

constructive possession over a controlled substance, United

States v. Crippen, 459 F.2d 1387, 1388 (3d Cir. 1972) (per

curiam), by a defendant who “ha[s] in mind or plan[s] in some

purpose of establishing venue in either district. United States

v. Brunty, 701 F.2d 1375, 1381 (11th Cir. 1983). See United

States v. Tingle, 183 F.3d 719, 727 (7th Cir. 1999) (distribution

may continue for venue purposes). However, that analysis does

not contradict our conclusion that separate acts of distribution

may not be combined and prosecuted as “part of a single

continuing scheme” under § 841. Mancuso, 718 F.3d at 793.

4 “[T]he United States does not dispute that each time

that Rowe distributed heroin to a customer it constituted a

separate and discrete crime.” Br. of Appellee at 17. “The

United States also concedes that it did not admit evidence of

any single transaction Rowe engaged in during which he

distributed 1000 grams or more of heroin.” Id. at 18.

11

way” to “deliver or transfer possession or control” of the

controlled substance to another. Third Circuit Model Criminal

Jury Instruction § 6.21.841-5. Constructive possession

requires “the power and the intention at a given time to

exercise dominion or control over a thing.” Benjamin, 711 F.3d

at 376 (quoting United States v. Garth, 188 F.3d 99, 112 (3d

Cir. 1999)). Proof that a defendant associated with a person

who controls a drug is insufficient to prove constructive

possession. Garth, 188 F.3d at 112.

Unlike distribution, possession with intent to distribute

is a continuing offense. United States v. Zidell, 323 F.3d 412,

422 (6th Cir. 2003) (collecting cases).5 “A continuing offense

is a continuous, unlawful act or series of acts set on foot by a

single impulse and operated by an unintermittent force,

however long a time it may occupy.” United States v. Midstate

Horticultural Co., 306 U.S. 161, 166 (1939) (citation omitted).

In Benjamin, we looked at another possession statute—felon in

possession of a firearm—and held that continuity is interrupted

by “relinquishment of both actual and constructive possession

of the gun before it is reacquired.” 711 F.3d at 378 (citation

and alteration omitted). Applying our reasoning in Benjamin to

§ 841, we conclude that possession of 1000 grams of heroin

begins when a defendant has the power and intention to

exercise dominion and control over all 1000 grams, and ends

when his possession is interrupted by a complete dispossession

or by a reduction of that quantity to less than 1000 grams.

5 See United States v. Uribe, 890 F.2d 554, 559 (1st Cir.

1989); United States v. Baskin, 886 F.2d 383, 388 (D.C. Cir.

1989), cert. denied, 494 U.S. 1089 (1990); United States v.

Stitzer, 785 F.2d 1506, 1519 (11th Cir. 1986), cert. denied, 479

U.S. 823 (1986).

12

The Government’s evidence supporting the 1000-gram

verdict was premised on its incorrect belief that it could

combine weights from multiple distributions and

discontinuous possessions during the indictment period. The

Government acknowledged its error at oral argument, Oral

Arg. at 18:32, but asserted that even so, it had presented

sufficient evidence to support a reasonable inference that at

some point during the indictment period, Rowe possessed at

least 1000 grams of heroin with intent to distribute. We are

unconvinced. If we assume that the jury did not combine the

amounts distributed or possessed over time, and instead sought

to determine whether Rowe possessed a 1000-gram quantity of

heroin at least once during the indictment period, the

Government’s evidence was not sufficient to permit any

rational juror to make such a finding beyond a reasonable

doubt.

From Pierce’s testimony about his first encounter with

Rowe, a rational juror could have inferred that: (1) there were

up to eight packages in Rowe’s black bag; (2) each package

contained up to 100 grams of a substance; and (3) based on the

confusion between the twenty-eight gram and twenty-one gram

packages, two or more packages contained heroin. Assuming,

based on Pierce’s testimony about the markings on the bags,

that at least one bag was marked “50,” one was marked “75,”

every other bag was marked “100,” and adding that to the

twenty-one grams Rowe possessed before distributing that

package to Pierce, a rational juror could conclude that Rowe

possessed and intended to distribute 746 grams of heroin. No

rational juror could have found beyond a reasonable doubt,

based on this testimony, that Rowe possessed 1000 grams or

more of heroin at that time.

Nor did Special Agent Shuffelbottom’s expert

testimony fill the evidentiary gap. Special Agent

13

Shuffelbottom opined that a dealer who could sell 200 grams

of heroin at a time (as the evidence showed Rowe did) would

have access to multi-kilogram quantities. However, testimony

about the amount of heroin that dealers generally would be able

to access is insufficient to support a finding that Rowe had

constructive possession of 1000 grams of heroin at any

particular time. This evidence might be a basis for speculation,

but it is not proof beyond a reasonable doubt.

The ledger corroborated Pierce and Special Agent

Shuffelbottom’s testimony, but failed to provide the necessary

logical step between Rowe’s discrete distributions and

possessions and an instance of possession of 1000 grams of

heroin. The Government’s theory was that all of the notations

in the ledger referred to heroin Rowe distributed during the

indictment period. Yet, despite its obvious evidentiary value,

the ledger lacked dates. Without details about the timing of

transactions, a rational juror would only have been able to

speculate about whether Rowe possessed a quantity of at least

1000 grams at one time during the indictment period.

All of the evidence—including Pierce’s testimony,

Special Agent Shuffelbottom’s testimony, and the ledger—

was insufficient, even considered in the light most favorable to

the Government, to allow a rational juror to find that Rowe

possessed at least 1000 grams of heroin at a single time with

the intent to distribute it. We will therefore vacate the

conviction as to the 1000 grams of heroin.

We further note that where, as here, the Government’s

presentation of the evidence rested upon an incorrect

understanding of the offense, the District Court failed to

correct the error by instruction, and the general verdict does not

assist this Court in understanding how the jury arrived at its

determination, we are reluctant to proceed as though the jury

was not misled. See Caraballo-Rodriguez, 726 F.3d at 431.

14

Deference to jury verdicts is premised on an expectation that

jurors “are instructed extensively as to what evidence they can

consider, how to consider it, and . . . the relevant legal

principles.” Id. That did not happen here, and the logic of

Caraballo-Rodriguez provides additional support for our

decision to vacate.6

6 Rowe offers two additional arguments to challenge his

conviction: that the indictment was duplicitous, and that the

prosecutor committed misconduct in his closing argument. We

will not address these arguments as they relate to the 1000-

gram verdict, because we have already decided to strike that

verdict as unsupported by sufficient evidence. Nor do these

arguments jeopardize the 100-gram verdict. In requesting a

remedy, Rowe argues: “[a]t least, the degree of the conviction

must be reduced based on the jury’s alternative, 100-gram

verdict . . . although there is no clear basis to infer that the jury

was in fact unanimous as to any occasion with respect to that

theory either.” Br. of Appellant at 29. While that request does

not explicitly acknowledge that the 100-gram verdict would

survive the duplicity argument, at oral argument Rowe

conceded that the jury agreed on the 100-gram verdict:

Chief Judge Smith: But we do know,

though, that the

jury agreed with

respect to the

100-gram

conviction,

right?

Mr. Goldberger: That’s true.

Oral Arg. at 11:54.

15

Sentencing Error

Rowe challenges the District Court’s acceptance of the

drug weight calculation in the PSR. The Government agrees

that the District Court erred in adopting that calculation.7

Having reviewed the District Court’s sentencing

determination, we also conclude that the court abused its

discretion by basing its determination on unsupported drug

weight assertions.8 Therefore, we will vacate the sentence.

Furthermore, Rowe’s argument that the prosecutor

erred in encouraging the jury to combine the figures in the

ledger as if they all tracked heroin distributions only affects the

jury’s 1000-gram finding. At the beginning of the trial, Rowe

referred to the fact that he had distributed at least 100 grams of

heroin as “undisputed.” App. 133a. Even if we employed our

usual harmless error standard, we would find that the jury

could have returned a guilty verdict for distributing at least 100

grams of heroin “notwithstanding the asserted error.” United

States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (quoting

United States v. Hasting, 461 U.S. 499, 506 (1983)). And in

this case, our review would be even more deferential because

Rowe did not object to the prosecutor’s closing argument. See

United States v. Fulton, 837 F.3d 281, 306-07 (3d Cir. 2016)

(employing plain error review when appellant had not objected

to prosecutor’s statements at trial).

7 The Government acknowledges—with commendable

candor—that “[u]pon thorough review of the record, the

United States agrees that the 10+ kilogram calculation is

problematic and that the district court did not address the basis

for its acceptance of that amount in enough detail.” Br. of

Appellee at 38. See Oral Arg. at 18:04.

8 In calculating the U.S. Sentencing Guidelines range, a

district court may consider “largely unlimited” sources of

16

What remains is the parties’ dispute about whether, on remand,

the Government should be permitted to develop the record on

the drug weight issue.

At sentencing, “the government bears the burden of

proof by a preponderance of the evidence,” United States v.

Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (citation omitted),

and ordinarily is only afforded one opportunity to carry its

burden. United States v. Dickler, 64 F.3d 818, 832 (3d Cir.

1995). We have recognized a limited exception to our distaste

for “a second bite at the apple,” id. (quoting United States v.

Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)), when the

Government “has tendered a persuasive reason why fairness . .

. requires” that the sentencing court “provid[e] the government

with an additional opportunity to present evidence on remand.”

Id. In Dickler, we imagined such an exception would apply

where “the government, for want of notice or any other reason

evidence, United States v. Paulino, 996 F.2d 1541, 1547 (3d

Cir. 1993) (citation omitted), but must base its determination

on information that “ha[s] sufficient indicia of reliability to

support its probable accuracy.” United States v. Freeman, 763

F.3d 322, 337 (3d Cir. 2014) (citation omitted); U.S.S.G.

§ 6A1.3(a). Conclusory assertions regarding drug weight in a

PSR will not support a sentencing court’s determination of

quantity for the purposes of fixing a Guidelines range. See

Freeman, 763 F.3d at 337 (citing United States v. Shacklett,

921 F.2d 580, 584 (5th Cir. 1991) (per curiam) (requiring a

sentence to be vacated because the sentencing court relied on

the probation officer’s “conclusory statement” regarding drug

quantity)). Here, the District Court erred in relying on Rowe’s

alleged admission that he received large quantities of heroin

from his supplier despite the fact that the Government did not

present any evidence of such a statement.

17

beyond its control, does not have a fair opportunity to fully

counter the defendant's evidence.” Id.

At oral argument, the Government conceded that

Dickler stands for the proposition that the Government should

not generally receive a second opportunity to present evidence

for sentencing absent a persuasive reason, but was unable to

offer one. Oral Arg. at 28:58. We do not perceive any such

reason, and therefore the Government will not be permitted to

introduce additional evidence regarding drug quantity. It may

argue for any sentence supported by the existing record.

III.

For the reasons explained above, we will vacate the

judgment of conviction for distribution and possession with

intent to distribute 1000 grams or more of heroin, and we will

remand to the District Court for entry by the Court of a

judgment of conviction for distribution and possession with

intent to distribute 100 grams or more of heroin. We will also

vacate the sentence and remand for re-sentencing. Upon resentencing,

the Government may not introduce new evidence

to prove drug quantity.