In United States v. Petersen, No. 08-4794 (3d Cir., October 1, 2010), the two defendants initially were charged with possession with intent to distribute cocaine base and cocaine powder within 1000 feet of a school, as well as aiding and abetting each other's possession. The evidence showed that, during surveillance of a high crime area, police observed the defendants exchanging a plastic bag which the officers described as a heavy brick-shaped object. As the two men attempted to drive away from the area, police moved to intercept them. During a brief chase, police claimed that they observed someone in the defendant's vehicle discard a plastic bag through a window. When the plastic bag was later retrieved, police discovered what was later identified as crack cocaine inside. Police eventually apprehended the defendants. During a search incident to their arrests, police discovered a plastic bag containing brick-shaped objects covered with a white powder. Police also recovered marijuana from the vehicle.
The first trial ended with a judgement of acquittal on the cocaine base count, and a mistrial on the cocaine powder count. On retrial, both of the defendants were convicted of possession with intent to distribute more than 500 grams of cocaine powder, as well as the aiding and abetting charge. However, both defendants were acquitted of drug possession within 1000 feet of a school. In this appeal of the second trial, the defendants challenged their convictions for possession with intent to distribute cocaine powder, claiming that the jury's verdict regarding the schoolyard statute constituted an acquittal of the possession with intent to distribute charge. The Third Circuit ruled, however, that possession with intent to distribute is a lesser-included offense of possession with intent to distribute within 1000 feet of a school because the schoolyard statute provides only one additional element, namely the presence of a school, to the possession with intent to distribute statute.
One of the defendants also argued that the conviction was improper because the trial court failed to give a lesser-included instruction to the jury. However, this argument was nullified by the defendant's decision to decline the lesser-included offense instruction offered by the court. The defendant's argument was further undermined by the special verdict form, which specifically allowed the jury to make separate findings on each element of the schoolyard statute. The Third Circuit ultimately ruled that remand for an entry of judgement on the lesser-included offense was not necessary. The second defendant argued separately that his conviction for aiding and abetting should be overturned because the trial court's jury instruction failed to adequately address the element of specific intent. The Third Circuit ruled that this argument failed because the trial court recited verbatim the Third Circuit's model jury instruction for aiding and abetting.