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United States v. Morgan

United States Court of Appeals, Seventh Circuit

July 1, 2019

United States of America, Plaintiff-Appellee,
v.
Kent Morgan, Defendant-Appellant. Government's proposed instruction 13. Instruction 13 given to jury Pattern instruction

          Argued May 29, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. l:16-cr-10031-MMM-JEH-1 - Michael M. Mihm, Judge.

          Before Ripple, Rovner, and Barrett, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         The jury deciding Kent Morgan's fate had no trouble concluding that he had possessed the 86.5 grams of methamphetamine that he conceded he tossed over the heads of inquisitive law enforcement officers in the Peoria airport on January 7, 2016. But the jury could not come to an agreement as to whether the government proved that he possessed that methamphetamine with the intent to deliver it. They declared themselves deadlocked on that issue-the one actually charged in the indictment-but found him guilty of the lesser included offense of possession of methampheta-mine. Morgan now argues that his Fifth Amendment right to be free from double jeopardy was violated by the government's second attempt to convict him of possession with intent to deliver. In the course of making that claim, he also asserts other improprieties in his trial. In the end we find only harmless errors and no violation of double jeopardy resulting after the deadlocked jury could not come to a conclusion on the indicted count. We therefore affirm the decision of the district court.

         I.

         Kent Morgan has struggled with methamphetamine addiction since 2006. It was no surprise then that he would continue to feed his habit while caring for his elderly father and transitioning him from his family home in Galesburg, Illinois, to an assisted living facility nearby. During that transition, Morgan brought his father to live with him in St. George, Utah for eight months while his father's health improved. Morgan was in the process of returning his father to Galesburg when law enforcement officers stopped him at the Peoria airport and, in the course of asking him some questions, caught him throwing a medical glove, stuffed to approximately the size of a softball with 86.5 grams of pure methamphetamine, over the heads of the officers. He was arrested and charged with one count of possession with intent to distribute more than 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). He went to trial on that single charge on August 15, 2016.

         During this first trial, Morgan chose to testify and conceded that he possessed the methamphetamine and that he attempted to throw it to avoid arrest but denied that he intended to distribute it to anyone else. To convince the jury, he testified that he had not lived in Galesburg since 2003, he did not return often, and he knew no one in Galesburg other than his parents and an adult son who frequently travelled for his job with the railroad. As a result, he testified, all of the meth-amphetamine was for his personal use only. Morgan hoped to convince the jury that he was just a long-standing metham-phetamine addict with a hearty appetite and tolerance for methamphetamine. His counsel followed this tack by arguing in closing that Morgan had been gone from Galesburg for years and that "there was no evidence of any kind that he even knows anybody back here." R. 131 at 32. Given Morgan's concession that he possessed the methamphetamine, the government's sole task was to convince the jury that Morgan did not simply possess the methamphetamine for his personal use, but that he intended to distribute it. It did this largely by relying on the quantity of methamphetamine that he possessed. The government's witnesses included the Drug Enforcement Administration (DEA) agent who established the chain of custody for the methamphetamine, three local police officers who were involved in the arrest, a senior forensic chemist for the DEA who confirmed the contents of the drug-stuffed glove, and a special agent with the DEA who provided background information on methamphetamine as well as expert testimony on the price, means, and manner of trafficking methamphetamine.

         At the close of evidence, the court instructed the jury on the indicted charge of possession with intent to distribute. In addition, the court instructed the jury on the lesser included offense of possession of a controlled substance. The judge sent the jury to deliberate with a verdict form that gave the jury two choices for its conclusions (The numbers are ours. The verdict forms were not numbered):

(1) We the jury find the defendant, Kent Morgan, Guilty of the charge of Possession of Meth-amphetamine with Intent to Distribute as alleged in the Indictment.
(2) We the jury find the defendant, Kent Morgan, Not Guilty of the charge of Possession of Methamphetamine with Intent to Distribute as alleged in the Indictment, but Guilty of the offense of Possession of Methamphetamine.

R. 45 at 24, 26.[1]

         During the course of deliberations, the jury sent three questions out to the judge. The first of these read:

We all agree Kent Morgan is guilty of possession of meth. However, we are not in agreement on the charge of intent to deliver. Asking for clarification, if we are not in agreement on 2nd charge, what becomes of the case? Does it become hung jury on all counts or is there a way to convict him of posession [sic] have a non decision on 2nd charge.

R. 47 at 1.

         The judge conferred with counsel for both sides and all agreed that given the language of the verdict forms, there was no way for the jury to convict Morgan of possession and give no decision on the issue of possession with intent to distribute. The judge and counsel agreed to modify the verdict forms to separate guilt or acquittal on distribution from guilt or acquittal on simple possession. Morgan's counsel stated that this was "his first federal jury trial/' and that he was "learning all kinds of different things." R. 127 at 195. As a result of the agreement, the judge collected the old forms and sent the jury back to deliberate with a new set of verdict forms which gave them the following four choices (once again, the numbering is ours):

(1) We the jury find the defendant, Kent Morgan, Guilty of the charge of Possession of Meth-amphetamine.
(2)We the jury find the defendant Kent Morgan, Not guilty of the charge of Possession of Meth-amphetamine.
(3) We the jury find the defendant, Kent Morgan, Not Guilty of the charge of Possession of Methamphetamine with Intent to Distribute as alleged in the Indictment.
(4)We the jury find the defendant Kent Morgan, Guilty of the charge of Possession of Methamphetamine with Intent to Distribute as alleged in the Indictment.

R. 46 at 1-4.

         Shortly thereafter, the jury sent another question to the court which stated:

We are split on the decision of the intent to deliver charge. We have discussed case for a couple hours no one has changed their decision of guilty or not guilty not likely to change. How much longer should we deliberate before we arrive at a hung jury? We have arrived at a decision on the posession [sic] charge.

R. 127 at 200-01; R. 47 at 4. The judge and counsel for the parties discussed the jury's second question, and the judge suggested two options. He could simply tell the jury to keep deliberating, or, he proposed, he could bring them out and ask: "Is there any one of the 12 of you who believes that there is any possibility of reaching a verdict on the question of-on the charge of possession with intent? If anyone says yes, then I send them back in. If they all say no, then I would declare a hung jury on the possession with intent and take the other verdict." R. 127 at 201. Morgan's counsel asked the court to instruct the jury to continue deliberating. The judge and both counsel agreed that if they did not have a verdict by 4:00 p.m., the judge would ask: "Do you wish to continue deliberating, or do you believe you are ... hopelessly deadlocked?" R. 127 at 204-05; R. 47 at 6.

         A very short while later, the judge received the following third question:

As in the indictment, does over posession [sic] 50 grams of methamphetamine determine a user versus a seller? Or does it reflect more into the sentencing of Kent Morgan.

R. 127 at 205; R. 47 at 2.

         Again, the judge discussed the matter with the respective counsel, noting that he believed that "it's a big mistake if we start trying to make distinctions between using and selling beyond what they've already been told." R. 127 at 207. The court concluded that the proper response would be to re-submit the following instruction to the jury:

In deciding your verdict, you should not consider the possible punishment for the defendant who is on trial. If you decide that the government has proved the defendant guilty beyond a reasonable doubt, then it will be my job to decide on an appropriate punishment.

R. 127 at 207; R. 47 at 3.

         At 4:00 p.m., as the parties and the court had previously agreed, the judge sent the note to the jury asking whether they wished to continue deliberating or were deadlocked. The jury returned the note stating "unanimously deadlocked." R. 47 at 6.

         The jury then returned a verdict of guilty of possession of methamphetamine without reaching any verdict on the charged offense of possession with intent to distribute methamphetamine. The district court did not expressly declare a "mistrial"-using that word-on the intent to distribute charge. Nevertheless, after dismissing the jury, the judge did all of the things a judge would do had he just declared a mistrial: he stated that he would schedule a sentencing hearing on the possession verdict and asked the government "[h]ow much time will you need to decide whether you're going to retry the possession with intent?" R. 127 at 213-14. The court agreed to the government's request for sixty days. In the meantime, the court set a tentative trial date for the retrial to which Morgan's counsel agreed without further comment.

         The United States Attorney eventually decided to retry Morgan for possessing methamphetamine with intent to distribute, but this time, having heard Morgan's defense that he had no contacts in Galesburg, the government came prepared to defeat it. The government subpoenaed Morgan's cell phone records and through these, prosecutors were able to track down five witnesses who were willing to testify that they had shared Morgan's methamphetamine supply with him while Morgan was visiting his father in Galesburg on previous occasions. One witness, in fact, was waiting in a car outside of the Peoria airport to give Morgan and his father a ride on the day he was arrested. Prior to trial, the government filed a notice of intent to offer these witnesses to demonstrate Morgan's intent as permitted under Federal Rule of Evidence 404(b). Morgan's counsel did not object to the motion other than to express concern that some of the prior acts were "very remote in time." R. 128 at 8. The judge dismissed this time concern but expressed his own uncertainty about the need for five witnesses. Ultimately the government agreed that it would call only three witnesses and reserve the other two for rebuttal, if necessary. Morgan's counsel had no further objections.

         During a pre-trial discussion before the second trial, the parties also discussed the issue of double jeopardy. The court noted that the jury had failed to come to a verdict on the charge of possession with intent to distribute, and therefore Morgan would be tried on this count of the indictment again. The government filed a motion asking the court to prohibit reference to the prior trial. Morgan's counsel objected noting his conundrum:

We are in a situation where if there is no prior- unless, of course, the judge is going to allow an instruction on mere possession, we're going to be stuck in a situation where the only verdict the jury has is possession with intent to deliver, and that basically cuts the trial strategy in half. ... I think the jury needs to know somehow that this defendant has been convicted in this case before, but they are seeking to retry him. That's a double-edged sword because a possible implication is that he's such a bad guy that they're going to do it again.

R. 128 at 12-13. Consequently, when it became time to hash out the jury instructions, the judge asked the government to propose an instruction on the lesser included offense of possession. Morgan's counsel argued that he was entitled to either that instruction or to have the court instruct the jury that Morgan had been found guilty of possession in a prior proceeding. The court concluded:

THE COURT: Right. I've ruled that I'm not going to do that [reference the prior proceeding], but because of that, I think that you're entitled to that instruction. But we're all aware of the fact that he's previously been convicted of that, which would normally raise double jeopardy issues. I assume for purposes of this trial you're waiving any double jeopardy issue? If he were-for example, if he's convicted only of possession in this trial, obviously he's not going to be sentenced twice.
MR. HOLMAN: Right.
THE COURT: I'd only sentence him once. But is that correct? Are you waiving that issue ...

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