Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2006

USA v. Lacy
Precedential or Non-Precedential: Precedential

Docket No. 05-1913




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Lacy" (2006). 2006 Decisions. Paper 1008.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1008


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                           PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                        No. 05-1913


            UNITED STATES OF AMERICA

                             v.

                    MICHAEL LACY,
                         Appellant


        Appeal from the United States District Court
                 for the District of Delaware
              (D.C. Criminal No. 01-cr-00037)
       District Judge: Honorable Joseph J. Farnan, Jr.


                   Argued March 7, 2006
      Before: RENDELL and AMBRO, Circuit Judges,
               and SHAPIRO, District Judge*

                    (Filed May 5, 2006)


* Honorable Norma L Shapiro, Senior District Court Judge
for the Eastern District of Pennsylvania, sitting by
designation.
Penny Marshall [ARGUED]
Office of Federal Public Defender
704 King Street
First Federal Plaza, Suite 110
Wilmington, DE 19801
  Counsel for Appellant

Shannon T. Hanson [ARGUED]
Office of the U. S. Attorney
1007 Orange Street, Suite 700
Wilmington, DE 19899
  Counsel for Appellee



                OPINION OF THE COURT


RENDELL, Circuit Judge.

        Defendant Michael Lacy was charged with possession
with intent to distribute five grams or more of a substance
containing a detectable amount of cocaine base, or crack
cocaine, in violation of 21 U.S.C. § 841(a) and (b). A jury
acquitted him of the charged offense, but convicted him of two
lesser included offenses, simple possession of more than five
grams of cocaine base, in violation of 21 U.S.C. § 844, and
possession with intent to distribute an unspecified amount of

                              2
cocaine base, in violation of 21 U.S.C. § 841(a)(1).

       On appeal, Lacy asks us to vacate his simple possession
conviction, raising several claims to the effect that his
conviction on more than one lesser included offense arising out
of the same charge was improper. We conclude that none of
Lacy’s claims provides a proper basis for reversal.
Accordingly, we will affirm.

                               I.

       Michael Lacy was arrested by the Wilmington, Delaware
Police on June 19, 2001, in a Wilmington apartment. The
police recovered from his pocket a small plastic bag that
contained several individually wrapped small chunks, weighing
1.85 grams, of a white substance that was later determined to be
a mixture containing cocaine base, or crack cocaine. They
seized two more plastic bags from the bathroom of the
apartment. One contained a large chunk of the substance,
weighing 3.24 grams, and the other contained several more
individually wrapped smaller chunks, weighing a total of 1.66
grams. Thus, the police recovered a total of 6.75 grams of crack
cocaine on Lacy’s person and in the bathroom.

        Lacy was charged, in an indictment, with possessing with
intent to distribute five grams or more of a mixture or substance
containing cocaine base in violation of 21 U.S.C. § 841(a)(1)
and (b). Before trial, the government asked the District Court
to include three lesser included offenses in the jury charge and
on the verdict form. Lacy objected, contending that drug type
and quantity are not elements of the offense, but are, instead,

                               3
“sentencing factors” under 21 U.S.C. § 841. The District Court
disagreed with Lacy, and, accordingly, instructed the jury
orally, and in a written verdict form, that if the jury found that
Lacy was not guilty of the indicted offense, it could consider
whether he was guilty of (1) possession with intent to distribute
an unspecified amount of cocaine base in violation of 21 U.S.C.
§ 841(a)(1), and (2) simple possession of more than five grams
of cocaine base, in violation of 21 U.S.C. § 844. If the jury
found Lacy not guilty of both of these offenses, it was instructed
to consider whether he was guilty of a third alternative offense,
simple possession of an unspecified amount of cocaine base.
The jury found Lacy not guilty of possession with intent to
distribute five grams of cocaine base, but found him guilty of
both possession with intent to distribute an unspecified amount
of cocaine base and simple possession of more than five grams
of cocaine base.

        After trial, Lacy moved for judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29(c), arguing
that the evidence did not support verdicts on both lesser
included offenses, that the jury verdict violated double jeopardy
principles and that simple possession of cocaine base is not a
lesser included offense of a section 841(a) charge for possession
with intent to distribute. The District Court denied the motion.
Lacy now appeals.

                               II.

       Our jurisdiction to consider Lacy’s appeal from the
District Court’s final order of conviction arises under 18 U.S.C.
§ 1291. We exercise plenary review over an appeal from the

                                4
grant or denial of a motion for judgment of acquittal, applying
the same standard as the district court to the individual claims.
United States v. Brodie, 

, 133 (3d Cir. 2005).
Thus,

       we must view the evidence in the light most
       favorable to the verdict, and must presume that
       the jury has properly carried out its functions of
       evaluating credibility of witnesses, finding the
       facts, and drawing justifiable inferences. A
       verdict will be overruled only if no reasonable
       juror could accept the evidence as sufficient to
       support the conclusion of the defendant’s guilt
       beyond a reasonable doubt.

United States v. Coleman, 

, 807 (3d Cir. 1987)
(quoting United States v. Campbell, 

, 264 (D.C.
Cir. 1983)).

                               III.

       Lacy urges us to overturn his simple possession
conviction, arguing (1) that the Federal Rules of Criminal
Procedure do not permit conviction for more than one lesser
included offense arising out of a single charged offense, (2) that
simple possession is not a lesser included offense of possession
with intent to distribute, (3) that his convictions violate the
Double Jeopardy Clause of the Constitution and (4) that the
evidence presented was insufficient to support his conviction of
both the simple possession and the possession with intent to
distribute offenses. We address these claims in turn.

                                5
A.     Federal Rule of Criminal Procedure 31(c)

        Federal Rule of Criminal Procedure 31(c) provides: “A
defendant may be found guilty of . . . an offense necessarily
included in the offense charged.” Lacy argues that, because the
rule is phrased in the singular, it prohibits conviction on more
than one lesser included offense for each offense charged. If
Congress and the Supreme Court had intended to allow multiple
convictions for lesser included offenses under the rule, he
contends, they would have said that a defendant may be found
guilty of “offenses,” not “an offense,” “necessarily included in
the offense charged.”

        We disagree that the rule is so limited, for several
reasons. First, the advisory committee notes to Rule 31(c)
indicate that the rule “is a restatement of existing law.”
Specifically, the rule replaced the provision in the Act of June
1, 1872 that stated that “‘in all criminal cases the defendant may
be found guilty of any offence the commission of which is
necessarily included in that with which he is charged in the
indictment.’” Schmuck v. United States, 

, 719
(1989) (quoting Act of June 1, 1872, ch. 255, § 9, 17 Stat. 198)
(emphasis added). The word “any” suggests that a defendant
may be found guilty of several offenses other than that charged
in the indictment, so long as all such offenses are “necessarily
included” in the charged offense. Thus, the idea that a
defendant may be convicted of multiple lesser included offenses
arising out of a single charge in an indictment is rooted in the
history of the rule; the change in the text from “any offence” to
“an offense” does not appear to reflect a change in its meaning.


                                6
       Second, Lacy has not advanced, and we cannot fathom,
any principle that would prevent us from applying the rule
according to this tradition. We are satisfied that defendants’
rights are adequately protected by existing limitations on the
application of the rule. The Supreme Court has adopted a test
for determining when an offense is “necessarily included in the
offense charged” under Rule 31(c):

       [O]ne offense is not “necessarily included” in
       another unless the elements of the lesser offense
       are a subset of the elements of the charged
       offense. Where the lesser offense requires an
       element not required for the greater offense, no
       instruction is to be given under Rule 31(c).

This test protects defendants’ rights by ensuring that
they have “constitutionally sufficient notice” that they face
conviction on all lesser included offenses. See 

Further, the common law rule “bar[ring] conviction for both an
offense and a lesser included offense arising from the same
conduct,” Paul H. Robinson et al., 1 Crim. L. Defs. § 68(d)(2)
(1984 & 2005 Supp.), neutralizes any potential prejudice to the
defendant by prohibiting multiple lesser included offense
convictions for the same acts. As long as these rules are
satisfied, as they are here, see section III.B below, we see no
reason not to allow multiple convictions for lesser included
offenses on the same charged offense under Rule 31(c).

        Third, a finding that Rule 31(c) supports only a single
lesser included offense conviction would require us, in cases
where more than one lesser included offense satisfies the

                                7
Schmuck elements test, to develop some mechanism for
selecting which offense should be charged. Lacy has not
explained what criteria should guide this choice, and, because
this issue has not been addressed in the case law, we would be
arbitrarily creating such a test. We think the sounder practice is
to conclude, consistent with the history of Rule 31(c), that all
lesser included offenses that satisfy the test established by the
Supreme Court may be charged simultaneously, and may
support separate convictions, as long as the various lesser
included offenses relate to different conduct, i.e., are not lesser
included offenses of one another.

B.     Lacy’s Lesser Included Offense Claim

        Lacy argues that simple possession of five or more grams
of cocaine base, in violation of 21 U.S.C. § 844, is not
“necessarily included in” the offense with which he was
charged, possession with intent to distribute five or more grams
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b).
We do not agree and, in fact, find that his convictions of both
lesser included offenses fit well within the parameters described
above.

       As noted above, an offense “necessarily included in the
offense charged” under Federal Rule of Criminal Procedure
31(c) “is one that does not require proof of any additional
element beyond those required by the greater offense.” Gov’t of
the Virgin Islands v. Joseph, 

, 396 (3d Cir. 1985)
(emphasis omitted). To resolve Lacy’s claim, then, we must
compare the elements of the charged offense with those of the
convicted offense.

                                8
        We have addressed this question once before. In 1992,
we noted, without further explanation, that “[t]he crime of
simple possession under 21 U.S.C. § 844 is a lesser offense
included within the offense of possession with intent to
distribute under 21 U.S.C. § 841(a).” United States v. Frorup,

, 42 (3d Cir. 1992) (citing United States v. Garcia-
Duarte, 

, 47 (2d Cir. 1982)).1 However, changes in
the law regarding what constitutes an “element” of an offense,
as a result of the Supreme Court’s opinion in Apprendi v. New
Jersey, 

(2000), require that we examine this issue
anew.

        After Apprendi, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” 

Such
facts are the “functional equivalent[s]” of “elements” of an
aggravated offense that carries a higher statutory maximum
penalty. 

n.19. See also United States v. Barbosa, 

, 452-53 (3d Cir. 2001) (explaining Apprendi). Thus,
we held, in United States v. 

, and
United States v. Vazquez, 

, 98 (3d Cir. 2001) (en
banc), that drug identity and quantity must be treated as
elements of a section 841 possession with intent to distribute
offense when taking either factor into account increases the

   1
    Other courts of appeals disagreed, concluding that simple
possession required proof of drug amount and type, while
possession with intent to distribute did not. See United States v.
Stone, 

, 828-34, 836 (11th Cir. 1998) (collecting
cases).

                                9
applicable statutory maximum. Although we have not
previously discussed this issue in the context of a section 844
simple possession offense, we conclude that applying Apprendi
to that statute yields the same result that we reached with respect
to section 841: drug identity and quantity should be considered
the functional equivalents of elements of a simple possession
offense when they increase a defendant’s maximum statutory
sentence exposure.

        Lacy was charged with “knowingly possess[ing] with
intent to distribute 5 grams or more of a mixture or substance
containing a detectable amount of cocaine base, a Schedule II
narcotic controlled substance, in violation of Title 21, United
States Code, Sections 841(a)(1) and (b).” The statutory
provision under which Lacy was charged in the indictment, 21
U.S.C. § 841(a)(1), provides “it shall be unlawful for any person
knowingly or intentionally–to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” Thus, the elements of the
base offense are (1) knowing or intentional (2) possession (3)
with intent to distribute (4) a controlled substance.

        Lacy’s indictment did not just charge the base offense,
however; it specified a particular drug type and amount. We
apply the tests from Barbosa and Vazquez to determine whether
those facts act as “elements,” or their equivalents, of the charged
offense. Subsection 841(b), which is labeled “Penalties,” sets
forth statutory sentencing ranges based on the type and amount
of drug involved. The “default” or “catchall” sentence for a
violation of 841(a)(1) is a term of imprisonment of not more
than one year, as set forth in 21 U.S.C. § 841(b)(3). See

                                10


. By contrast, the maximum penalty
for possession with intent to distribute an unspecified quantity
of a mixture or substance containing cocaine base is 20 years,
see 21 U.S.C. § 841(b)(1)(C),2 and the maximum penalty for
possession with intent to distribute five grams or more of a
mixture or substance that contains cocaine base is 40 years, 21
U.S.C. § 841(b)(1)(B)(iii). Thus, in this case, both the drug type
and amount serve to increase the maximum statutory penalty,
and must be treated as “elements” of the offense. Effectively,
then, the elements of the charged offense are (1) knowing or
intentional (2) possession (3) with intent to distribute (4) five
grams or more (5) of a mixture or substance containing cocaine
base.

        Lacy was convicted of “possession of more than five (5)
grams of cocaine base.” The basic elements of a simple
possession offense are (1) knowing or intentional (2) possession
(3) of a controlled substance. See 21 U.S.C. § 844 (“It shall be
unlawful for any person knowingly or intentionally to possess
a controlled substance . . . .”). Like section 841, however,
section 844 provides a schedule of escalating penalties that
depend on the drug type and amount. The basic penalty, as
under section 841, is “a term of imprisonment of not more than
one year.” 

for conviction of possession of more
than five grams of a mixture or substance that contains cocaine
base, however, is imprisonment for up to 20 years. As under
section 841, the drug amount and quantity increase the statutory
maximum penalty applicable to a simple possession conviction.

    2
     Cocaine and its derivatives are schedule II controlled
substances. See 21 U.S.C. § 812, sched. II (a)(4).

                               11
Thus, the functional elements of the simple possession offense
for which Lacy was convicted are (1) knowing or intentional (2)
possession (3) of more than five grams (4) of a mixture or
substance containing cocaine base.

         Comparing the elements of the two offenses, it is clear
that the simple possession offense of which Lacy was convicted
is a lesser included offense of the charged possession with intent
to distribute offense. The only difference between the two
offenses is that the section 841 offense requires proof of intent
to distribute the drugs. The District Court therefore properly
charged simple possession of more than five grams of cocaine
base as a lesser included offense of possession with intent to
distribute five grams or more of cocaine base.

        It is also clear that the second offense of which Lacy was
convicted–which he does not challenge on appeal–is a lesser
included offense of the charged offense. Possession with intent
to distribute an unspecified quantity of cocaine base requires
proof of a “subset” of the facts that must be proved to sustain a
conviction for possession with intent to distribute five grams or
more of cocaine base–everything except for the drug amount.

        Finally, although Lacy has not raised this as an issue, we
note that the two offenses of which he was convicted are not
lesser included offenses of each other, because each requires
proof of a fact that the other does not. The simple possession
conviction requires proof of the specific drug amount, while the
possession with intent conviction requires proof of intent to
distribute. Lacy was not convicted twice for the same conduct.



                               12
       Thus, the District Court properly charged Lacy with, and
the jury properly convicted him of, two separate lesser included
offenses.

C.     Double Jeopardy

       The Double Jeopardy Clause provides that no person
shall “be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. The Supreme
Court, in North Carolina v. Pearce, 

(1968)
explained that the “constitutional guarantee against double
jeopardy” consists of “three separate constitutional protections”:

       It protects against a second prosecution for the
       same offense after acquittal. It protects against a
       second prosecution for the same offense after
       conviction. And it protects against multiple
       punishments for the same offense.

        The District Court analyzed and rejected Lacy’s
challenge under the third category of protections, concluding
that he was not being punished twice for the same offense. On
appeal, Lacy repeatedly stresses that he is not pursuing a
“separate offense” or “multiplicity” challenge because “he does
not assert that the two convictions returned by the jury establish
one violation,” Appellant’s Br. at 31; Appellant’s Reply Br. at
18. Furthermore, he acknowledges that “possession with intent
to distribute a controlled substance under 21 U.S.C. § 841(a) and
possession of five grams or more of cocaine base under 21

                               13
U.S.C. § 844 constitute wholly separate proscriptions.”
Appellant’s Br. at 31.

       Instead, Lacy appears to be raising two separate but
related double jeopardy challenges. First, he argues that his
convictions were improper because the jury effectively
convicted him of the two lesser included offenses after it had
acquitted him of the charged offense. Second, he claims that, by
requesting the District Court to charge the jury on the two lesser
included offenses, the prosecution improperly “‘divide[d] up a
continuing crime into bits and prosecute[d] him separately for
each.’” Appellant’s Br. at 25 (quoting United States v. Chagra,

, 29 (1st Cir. 1981)). We can find no support for
either of these claims.

        Lacy bases his first double jeopardy claim on Sanabria
v. United States, 

(1978). The question in that case
was whether, after the defendant had been acquitted of an
offense, the prosecution could subject the defendant to a
subsequent trial on the same facts, under a slightly different
legal theory. 

The Supreme Court held that it could
not. 

Citing Sanabria, Lacy claims that his acquittal on
the charged offense immunized him from “subsequent” charges
on the lesser included offenses. See Appellant’s Br. at 26-27.

       The holding of Sanabria does not apply here. Lacy
glosses over a crucial distinction, namely that, unlike the
defendant in Sanabria, Lacy was convicted of the lesser
included offenses in the same trial in which the jury acquitted
him of the charged offense. None of the cases that Lacy cites,
or that we could find, supports his view that Sanabria’s

                               14
subsequent prosecution theory of double jeopardy applies in
cases involving convictions for lesser included offenses in the
same proceedings.

        In fact, the Supreme Court has repeatedly noted that
double jeopardy does not bar prosecution of related charges in
the same proceeding. In Missouri v. Hunter, 

(1983), for example, the Court concluded that, “[w]here . . . a
legislature specifically authorizes cumulative punishment under
two statutes, regardless of whether those two statutes proscribe
the ‘same’ conduct . . . the prosecutor may seek and the trial
court or jury may impose cumulative punishment under such
statutes in a single trial.” 

(emphasis added). In
Sanabria, the Court clearly acknowledged that, although
prosecutors could not bring a new trial against the defendant on
different theories related to the same conduct, acquittal on one
theory might not have barred conviction on the other if the
theories had been charged in separate counts of a single

. Finally, in Ohio v. Johnson, 

(1984), the Court noted that the prosecution could not
bring new charges where a defendant has already been acquitted
or convicted on a lesser included offense, see 

(citing
Brown v. Ohio, 

(1977)), but held that the Double
Jeopardy Clause did not bar a State from continuing a
prosecution on greater offenses in the same proceeding in which
the defendant had pleaded guilty to lesser included offenses
charged in a single indictment. 

        Following the Supreme Court’s lead, we decline to hold
that “trial proceedings, like amoebae, are capable of being
infinitely subdivided, so that a determination of guilt and

                               15
punishment on one count . . . immediately raises a double
jeopardy bar to continued prosecution on any remaining counts
that are greater or lesser included offenses of the charge just
concluded.” 

Thus, the District Court did not violate
Lacy’s rights under the Double Jeopardy Clause by allowing the
jury to convict him of two lesser included offenses in the same
trial in which the jury acquitted him of the charged offense.

       Lacy also contends that his conviction on separate
offenses amounted to improperly dividing up a single “unit of
prosecution” into pieces and convicting him separately of each
piece. We disagree, and find his challenge ill-suited to the facts
of this case. The central inquiry in a “unit of prosecution”
challenge is whether the defendant has been charged, convicted
and punished more than once for the same conduct. See United
States v. Pollen, 

, 85 (3d Cir. 1992) (quoting

) (question in “unit of prosecution” case
is whether “‘a particular course of conduct involves one or more
distinct offenses’”). As Lacy notes in his brief, “[i]t has long
been the law that a prosecutor cannot divide a continuing crime
into bits and prosecute separately for each.” United States v.
Chagra, 

, 29 (1st Cir. 1981), quoted in Appellant’s
Br. at 25. Thus, a baker that baked four loaves of bread on a
Sunday could only be convicted once under a statute that
prohibited working on a Sunday, 

v. Durden,
(1777) 98 Eng. Rep. 1283 (K.B.)), and the government could
prosecute a man “only once for cohabiting for three years
straight with more than one woman as his wife; it could not
prosecute him three times, once for each year,” 

(citing
In re Snow, 

(1887)).



                               16
      To determine whether a defendant was properly charged,
convicted and punished separately for the same offense, we
examine

       whether proof of one offense charged requires an
       additional fact that proof of the other offense does
       not necessitate. . . . Also of central importance is
       whether the legislature intended to make
       separately punishable the different types of
       conduct referred to in the various counts.

(quoting United States v. Stanfa, 

, 87 (3d Cir. 1982)).

       The facts of this case do not raise “unit of prosecution”
concerns. As noted above, each of the offenses of which Lacy
was ultimately convicted required proof of a fact that the other
did not. And Lacy himself acknowledges that he was not
convicted of multiple counts of the same offense, but rather of
single counts of each of two “wholly separate proscriptions.”
Appellant’s Br. at 31. His two convictions do not dissect an
otherwise continuing crime, but, rather, reflect two different
types of conduct: simple possession of more than five grams of
cocaine base, and possession with intent to distribute the
remaining drugs. We will not disturb his convictions on this
basis.



D.     Sufficiency of the Evidence



                               17
       As described above, the evidence presented at trial
established Lacy’s possession of three bags of crack cocaine,
with a total drug weight of 6.75 grams. Two of the bags
contained individually wrapped chunks; the one found in the
bathroom contained a total of 1.66 grams, and the one found in
Lacy’s pocket contained 1.85 grams. The third bag, also found
in the bathroom, contained a larger single chunk of crack
cocaine that weighed 3.24 grams. Based on the verdict, we
know that the jury concluded that Lacy did not intend to
distribute five grams or more of the drugs. We also know that
the jury believed that he possessed five grams or more of
cocaine base, and that he possessed some unknown quantity
with intent to distribute.

       Lacy argues, quite simply, that there aren’t enough drugs
in evidence to support both of his convictions. In his view,
“[t]here are only two logical manners in which a reasonable jury
might divide” the evidence. Appellant’s Br. at 18. The first
logical way to divide the evidence, he contends, would be to
assume that the drugs found on Lacy’s person were intended for
distribution, while those found in the bathroom were not. Under
this scenario, Lacy would have possessed 1.85 grams for
distribution and 4.9 grams for some purpose other than
distribution. Alternatively, he argues, the jury could have
assumed that Lacy intended to distribute the drugs that were
wrapped up into smaller pieces. In that case, 3.51 grams of the
drugs would support the possession with intent to distribute
conviction, but only 3.24 grams would remain for the simple
possession conviction. But under neither scenario could the jury
simultaneously conclude that he intended to distribute a discrete
quantity of drugs and that he possessed five grams or more of

                               18
drugs for some purpose other than distribution.

        We disagree, and decline Lacy’s invitation to guess
which drugs the jury assigned to which conviction. The
sufficiency of the evidence standard requires us to uphold
convictions as long as “a reasonable jury believing the
government’s evidence could find beyond a reasonable doubt
that the government proved all the elements of the offenses.”
United States v. Salmon, 

, 1113 (3d Cir. 1991).
In this case, the government presented evidence that Lacy
possessed 6.75 grams of cocaine base, more than enough drugs
to support both convictions. We are satisfied that a reasonable
jury could simultaneously have concluded that Lacy possessed
five or more grams for some purpose other than distribution and
that he possessed the residual amount with intent to distribute.
The jury’s verdict was accordingly supported by sufficient
evidence.

                              IV.

        For the foregoing reasons, we reject Lacy’s claims and
will affirm his convictions.




                              19