Third Circuit affirms drug conviction, but remands for resentencing in light of Fair Sentencing Act

Defendant Haziz Self was convicted on two counts of distributing crack cocaine and sentenced to a mandatory minimum sentence of 120 months' imprisonment. On appeal, Self identified six separate instances of possible error: (1) the disqualification of his counsel of choice; (2) the denial of his motion for a mistrial; (3) the denial of defense counsel's request to interview an alternate juror after the alternate alleged misconduct by other jurors; (4) the district court's refusal to adopt a mitigating role adjustment; (5) the total weight of the drugs involved in the offense; and (6) the use of a pre-Fair Sentencing Act (FSA) mandatory minimum. The Third Circuit, in United States v. Self, No. 11-1763 (3d Cir. May 30, 2012), rejected all but the defendant's FSA challenge. On that ground, the Court held, and the government conceded, that Self was entitled to be resentenced without application of any mandatory minimum because he was sentenced after the FSA was enacted.

With respect to the remaining challenges, the Court found the following:

(1) The right to counsel of choice is not absolute and the possibility of a conflict is sufficient to disqualify appellant's counsel of choice. Here, Self and his co-defendant brother were both originally represented by two members of the same four-person law firm. Even though Self's brother's attorney ultimately withdrew from representation, citing the potential for conflict, the Court found that a serious potential for conflict remained if Self's lawyer retained any loyalty to his firm's former client (Self's brother). The Court found that, given the firm's small size, disqualification of the entire firm was not an abuse of discretion.

(2)  A mistrial was not required where improper remarks made by a government witness were brief, isolated, unsolicited and followed by a cautionary instruction.

(3) Post-verdict inquiries of jurors are generally disfavored. Here, the district court denied defense counsel's request to question an alternate juror who never participated in deliberations, but who reported post-verdict that several of the regular jurors had told her that they went along with the verdict even though they did not necessarily agree with it. The Third Circuit concluded that, at best, the alternate juror's statement suggested only that some jurors may have persuaded others to set aside their misgivings and vote to convict. There was no allegation of any outside influence on the jury and the alternate was not present for deliberations. As such, the Court held that the district court did not abuse its discretion in denying counsel's request to question the alternate juror.

(4) Self's direct engagement in drug distribution, his relationship with others in the conspiracy and his knowledge of the nature and scope of the venture precluded a mitigating role adjustment.

(5) Finally, Self objected to the district court's determination that he should be held responsible for the weight of the drugs in two separate packages where the contents of only one of the packages was tested. In light of the use of an established testing procedure, the similar size and appearance of the packages, and the incriminating circumstances of the transaction, the Third Circuit concluded that the district court's weight calculation was reasonably reliable.