Document Type


Publication Date



Defendant-appellant appeals from a judgment of conviction and sentence entered on September 7, 2007, in the United States District Court for the Eastern District of New York (Gleeson, J.), convicting defendant, after a second jury trial, of three counts of possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and (b)(1)(c). Following the convictions, the District Court imposed a sentence of incarceration of 78 months; a term of supervised release of 3 years; and a $300 special assessment. The defendant currently is serving his sentence.

Appellant contends that his rights under the Grand Jury Clause and the Double Jeopardy Clause of the Fifth Amendment were violated because (1) the trial court provided a special verdict sheet to the jury in which Count Three of a Third (and final) Superseding Indictment was split into two parts ("a" and "b"), with each part describing a different time and place for the charge of possession with intent to distribute a controlled substance on May 11, 2006; and (2) the trial court allowed the defendant to be retried on part "a" following the jury's verdict of not guilty as to part "b" and its failure to reach a verdict as to part "a." Appellant also claims that some or all of the testifying police officers lied under oath about material matters at defendant's second trial, and, therefore, that the District Court abused its discretion in denying his Rule 33 motion for a new trial in the interest of justice. Finally, Appellant argues that he should be entitled to re-sentencing, pursuant to Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), so that the District Court may consider the Appellant's argument post-Kimbrough that the Sentencing Commission's disparate treatment of "crack" and powder cocaine was unwarranted and rendered the advisory sentencing range in this case "greater than necessary" under 18 U.S.C. § 3553. For the reasons that follow, we affirm the judgment of conviction but remand for the limited purpose of allowing the District Court to re-sentence the Appellant in light of Kimbrough.


562 F.3d 458 (2009)

UNITED STATES of America, Appellee, v. Peter McCOURTY, Defendant-Appellant.

Docket No. 07-3862-cr.

United States Court of Appeals, Second Circuit.

Argued: November 13, 2008.Decided: April 9, 2009.New York Law School location: File #3745, Box 153