United States Second Circuit

Conviction and sentence for drug crimes is affirmed and rewhere: 1) no constructive amendment resulted when the district court broke the single offense into two parts to be addressed by the jury as neither the trial evidence nor the jury charge altered the superseding indictment; 2) there is no double jeopardy violation in the government's pursuance of a retrial of the one count of the indictment left undecided by the jury as there was neither a complete acquittal on the count nor an acquittal relating to a key factual element of the crime described in the count; and 3) the court did not abuse its discretion in denying defendant's motion for a new trial. Case is remanded for the limited purpose of allowing the district court to re-sentence in light of the Supreme Court's decision in Kimbrough.

Appellate Information

• Decided 04/09/2009
• Published 04/09/2009

Judges

• MINER, Circuit Judge:, Before:  MINER, SOTOMAYOR, and KATZMANN, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellees:
  
• Edward S. Zas (of counsel), Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant., Elizabeth A. Latif (on the brief), Peter A. Norling (of counsel), Assistant United States Attorneys (Benton J. Campbell, United States Attorney for the Eastern District of New York), Brooklyn, NY, for Appellee.