McKEE, Chief Circuit Judge.
Glenn Petersen and Trevor Dorsett appeal their convictions for possessing more than 500 grams of cocaine with intent to distribute, and for aiding and abetting that possession. For the reasons that follow, we will affirm the judgments of conviction.
I. FACTUAL BACKGROUND.
The circumstances leading to the defendants' arrest and conviction began as Virgin Islands Police Officers Angela Brown and Steve Gibbons were monitoring surveillance cameras in a police station on the island of St. John. Those cameras had been deployed in "high crime areas" in Cruz Bay; and fed into the police station where officers monitoring them could zoom in and out of a scene by manipulating a joystick. The officers could also swivel the cameras in a complete 360 degree circle, thereby tracking movements of anyone they chose to focus on.
While monitoring the cameras, Officer Brown recognized Dorsett as she saw him standing on the sidewalk directly across from a post office. As the officers observed Dorsett, Petersen met him, and the two began walking toward "Cap's Place," a local bar. When the two left the bar, the officers saw that Petersen had a drink in one hand and a plastic bag in the other. The officers zoomed in on the bag and saw that it contained a brick-shaped object that appeared to be heavy. As Petersen and Dorsett continued walking down the street to the First Bank Building, Petersen passed the bag to Dorsett. Dorsett kept the bag until they reached a short cut that led to the Julius E. Sprauve School. They then moved out of camera range when they took that short cut.
Officers Brown and Gibbons then left the station and walked towards the school. As they did, they saw Dorsett and Petersen get into a red Mitsubishi car and drive past the officers. The officers then ran back to the station, got into a police car, and attempted to follow Dorsett and Petersen. As they attempted to pursue the Mitsubishi, Officer Brown radioed other officers to be on the lookout for Dorsett and Petersen in the red car.
Officer Emile Proctor was heading towards the red Mitsubishi when he saw it fail to stop at a stop sign. Officer Proctor radioed to the other officers, informed them of what he saw, and told them that he was going to make a traffic stop. While attempting to catch up to the Mitsubishi, Officer Proctor saw Dorsett throw a clear plastic bag that contained a white substance out through the driver's side window into an open gutter. After the clear plastic bag was thrown into the gutter, the Mitsubishi turned into a street that Officer Proctor knew to be a dead end and Proctor
Officer Proctor ordered Dorsett and Petersen out of the car as Officer Dennis Vanterpool arrived and was informed about the clear plastic bag that was still in the gutter. As he retrieved the bag, Vanterpool observed a rock-like substance inside. He opened the bag and smelled what he believed to be crack cocaine and then informed the other officers of his discovery. Officers Proctor and Vanterpool then frisked Petersen and Dorsett. While conducting the pat-downs, Officer Proctor noticed that both Dorsett and Petersen smelled of marijuana, and Officer Vanterpool recovered a bag of marijuana from Petersen's pants pocket.
After Dorsett and Petersen were secured, Officers Brown and Gibbons looked inside the Mitsubishi and immediately noticed the odor of marijuana coming from inside. As Officer Brown continued his visual inspection, he noticed what appeared to be the plastic bag that he had previously seen Dorsett and Petersen carrying as they walked down the street. Brown inquired about the bag, but both Dorsett and Petersen denied any knowledge of it. Officer Brown retrieved the bag and saw that it contained brick-like objects covered by a white powdery substance. Dorsett and Petersen were then arrested and charged with possession of a controlled substance with intent to distribute.
II. DISTRICT COURT PROCEEDINGS
On January 15, 2006, a grand jury returned a two count indictment charging both Dorsett and Petersen with possessing cocaine base (Count One) and cocaine hydrochloride (Count Two) with intent to distribute within 1000 feet of a public school, in violation of 21 U.S.C. §§ 841(a) and 860, as well as aiding and abetting each other and unknown others in the commission of those offenses, in violation of 18 U.S.C. § 2.
After the district court denied their motions to suppress physical evidence, they proceeded to trial before a jury. The government's evidence at trial included the testimony of Eric Jordan, a forensic chemist employed by the United States Drug Enforcement Agency. He testified that the bricks the defendants were carrying contained cocaine hydrochloride that had a gross weight of nearly one and a half kilograms (1,367.9 grams). Officer Mark Joseph, a Virgin Islands Police Department detective who is assigned to the Drug Enforcement Task Force, testified that the drugs were packaged in a manner that was not consistent with personal use.
At the conclusion of that trial, the district court granted the defendants' motions for judgment of acquittal and dismissed Count One of the indictment. The jury could not reach a verdict on Count Two and a mistrial was declared.
At the ensuing retrial, both defendants were convicted on the charges contained in Count Two and sentenced to lengthy prison terms after the court denied their post trial motions. These appeals followed.
Dorsett argues that the district court erred in denying his suppression motion, that there was insufficient evidence to support
The defendants' challenge to the denial of their suppression motions does not warrant discussion. Their only argument in support of that claim is that all of the evidence seized by the Officers should have been suppressed because the evidence established that Officer Proctor did not see the Mitsubishi run a stop sign. Thus, according to the defendants, the traffic stop violated their Fourth Amendment rights.
Petersen and Dorsett contend that surveillance videotape evidence established that Officer Proctor did not see their car run a stop sign. However, Officer Proctor clearly testified that he did see the Mitsubishi run a stop sign, and the district court credited the Officer's testimony and held that the traffic stop was proper. "It is not for us to weigh the evidence or to determine the credibility of witnesses." United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal quotation marks and citation omitted). Thus, the district court did not err in denying the motions to suppress.
Dorsett's argument that there was insufficient evidence to support his conviction does not merit much discussion either. Officer Brown testified that she saw Dorsett handling the bag containing the cocaine, and surveillance videotape established that Dorsett had actual possession of the bag. That same plastic bag was found in the vehicle just a few minutes later during the stop. This is more than sufficient to sustain the conviction for possession with intent to distribute.
We also reject both appellants' challenges to the district court's jury instructions, although those claims require more discussion.
Count Two of the indictment states:
As noted at the outset, Dorsett and Petersen were re-tried on Count Two after their first trial resulted in a mistrial because the jury could not agree on a verdict.
The jury answered: "Yes," on the verdict slips for both defendants.
The second interrogatory was:
On both defendants' verdict forms, the jury answered: "No."
The third interrogatory was:
On both defendants' verdict forms, the jury answered: "Yes." Accordingly, Petersen and Dorsett were acquitted of charges related to possessing more than 500 grams cocaine with intent to distribute within 1000 feet of a schoolyard in violation of § 860(a), but they were both convicted of possession with intent to distribute in violation of § 841(a)(1).
Following trial, Petersen moved for a judgment of acquittal, or in the alternative, for a new trial.
The district court denied Petersen's motion and ruled that Petersen was properly convicted of the lesser-included offense of possession with intent to deliver even though the court did not give a lesser-included offense charge to the jury. Petersen now claims that was error. We disagree.
Petersen's claim of error is as ironic as it is misguided. He not only failed to request a lesser-included offense charge in the district court and failed to object to the charge that was given; during the charge conference, Petersen specifically declined a lesser-included offense charge that the court offered to give. Thus, we review the instruction that was given for plain error. United States v. Gordon, 290 F.3d 539, 543-44 (3d Cir. 2002).
Under plain error review, relief is not warranted unless there has been an error that is clear and affects substantial
We review jury instructions as a whole and in light of the evidence. When so viewed, jury instructions must "fairly and adequately submit  the issues in the case to the jury." United States v. Hart, 273 F.3d 363, 373 (3d Cir.2001) (internal quotation marks and citation omitted). Nevertheless, a district court has broad discretion in fashioning a jury charge as long as it communicates "the substance of the law" so the jury is not misled or confused. United States v. McGill, 964 F.2d 222, 235 (3d Cir.1992).
The statute at issue here, 21 U.S.C. § 860(a), provides, in relevant part, as follows:
Section 841(a)(1) provides, in relevant part:
Section 860 is therefore a substantive offense that requires proof of an element that is not included in § 841—proof that the distribution, possession or manufacturing occurred within 1000 feet of a schoolyard. United States v. McQuilkin, 78 F.3d 105, 108-09 (3d Cir.1996).
Accordingly, § 841(a)(1) is a lesser-included offense of § 860(a). United States v. Jackson, 443 F.3d 293, 295 (3d Cir.2006); see also id. at 301 ("Because a conviction under § 860(a) only requires a finding of one additional element, the 1,000-foot proximity to a school, we agree that the possession of cocaine base with the intent to distribute under 21 U.S.C. § 841(a)(1) is a lesser-included offense of possession with intent to distribute within 1,000 feet of a school under 21 U.S.C. § 860(a).").
Accordingly, a jury cannot find a defendant guilty of § 860(a) without first concluding beyond a reasonable doubt that the government has established every element required under § 841(a)(1). Id.; see also United States v. Beltz, 385 F.3d 1158, 1162 (8th Cir.2004) ("In fact one of the statutory elements of § 860 requires that § 841(a)(1) have been violated.").
Federal Rule of Criminal Procedure 31(c) provides, in relevant part, as follows: "Lesser Offense or Attempt. A defendant may be found guilty of ... (1) an offense necessarily included in the offense charged." In Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), the Supreme Court explained that: "one offense is not `necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Where the lesser offense requires an element not required for the greater offense, no instruction is to be given under Rule 31(c)."
The government contends that neither Rule 31(c) nor Supreme Court precedent explicitly requires a lesser-included offense charge if the instruction that is given includes the greater offense. However, Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), seems, at first blush, to suggest otherwise.
There, a Native American was charged with assault with intent to commit serious bodily injury under the Major Crimes Act of 1885. That Act authorized the federal prosecution of a Native American charged with committing certain specifically enumerated offenses on a Reservation. Assault with intent to commit serious bodily injury was one of the specifically enumerated offenses. Keeble was charged with assault with intent to commit serious bodily injury after getting into a fight with his brother-in-law.
At the close of his trial, Keeble asked the district court to instruct the jury that it could convict him of simple assault. The district court refused because simple assault is not an offense specifically enumerated in the Act. Accordingly, Keeble could not have been tried for simple assault in federal court. The district court was affirmed on direct appeal, and the Supreme Court granted certiorari limited to "the question of the validity of denying the requested instruction." 412 U.S. at 207, 93 S.Ct. 1993.
The Supreme Court held that a lesser included offense charge should have been given, if supported by the evidence. Id. at 214, 93 S.Ct. 1993. The Court explained:
Id. at 208, 93 S.Ct. 1993 (emphasis added; footnote omitted). The Court continued:
Id. at 212, 93 S.Ct. 1993 (emphasis added).
Although Keeble might appear to support Petersen's argument, the Court's statements must be understood in the proper context. In Keeble, the Court was concerned with the danger that the defendant may be found guilty of the charged offense when the government has proven only the elements of the lesser included offense. The Court explained:
Keeble, 412 U.S. at 212-13, 93 S.Ct. 1993.
That danger is absent here because the special verdict form enabled the jury to make a separate finding as to each element of the charges against Petersen, and they did. Thus, the mandate of Keeble does not apply.
Although we have not previously decided if a defendant can be convicted of a lesser included offense where no such instruction was given to the jury, we have held that a trial court can enter a conviction on a lesser included offense under certain conditions without violating the Double Jeopardy Clause. Although Gov't of the Virgin Islands v. Josiah, 641 F.2d 1103 (3d Cir.1981), did not involve the specific issue raised here, we did explain:
Id. at 1108 (citations omitted).
Other circuit courts of appeal have addressed the question of whether an appellate court can remand for entry of judgment on a lesser included offense where no lesser included offense charge was given after determining that there is insufficient evidence to convict on the greater offense. Some of these courts of appeals have declined or hesitated to reduce a conviction to a lesser included offense when the district court did not give a lesser included offense instruction. See United States v. Dhinsa, 243 F.3d 635, 676-77 (2d Cir.2001) (refusing to affirm a conviction for coercion based upon the government's reasoning that the evidence established a lesser included offense, because the district court did not give a lesser included offense instruction); United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir.1994) (requiring a showing that the district court explicitly instructed the jury that it could convict a defendant of lesser included offense and an
Other courts of appeals have held that a separate jury instruction on a lesser included offense is not required as a prerequisite for exercising their authority under 28 U.S.C. § 2106.
In Allison v. United States, 409 F.2d 445 (D.C.Cir.1969), the court engaged in a different analysis. There, rather than focusing on whether a lesser included offense charge was given, the court focused on the nature of the offenses involved and the prejudice to the defendant. The court construed 28 U.S.C. § 2106 as authorizing "federal appellate courts to modify a criminal judgment to that of a lesser included offense." Id. at 450-51. However, it emphasized "that the circumstances in which such authority may be exercised are limited." Id. at 451.
Petersen argues that his conviction for knowingly and intentionally possessing with intent to distribute more than 500 grams of cocaine is improper because, given the language of the indictment, he had a "reasonable expectation" that he would face liability only for a violation of the schoolyard statute and not for possession of cocaine with intent to distribute it. He claims that since he was only on notice that he was required to defend the schoolyard charge, a conviction for possessing with intent to distribute denied him due process. Under the rather unique circumstances here, that argument is without merit.
His related argument that he suffered a due process deprivation because he prepared a defense against § 860(a) only and not § 841(a)(1) is similarly flawed; it also appears to be disingenuous. See United States v. Brozyna, 571 F.2d 742, 746 (2d Cir.1978) (an indictment "required [defendant] to prepare to defend not only against the charge but also against whatever necessarily included offenses and attempts she could have been convicted of under Fed.R.Crim.P. 31(c).").
His overarching contention that the district court erred when it sustained his § 841(a)(1) conviction because the jury was never given a lesser included offense charge is therefore meritless under a somewhat modified Allison test.
From the special verdict forms, it is clear that the jury found that there was insufficient evidence to support a conviction for violating § 860(a). Petersen does not argue that there was insufficient evidence to support a conviction for a violation of § 841(a)(1). As we explained earlier, § 841(a)(1) is a lesser included offense of § 860(a); in fact, § 860(a) specifically incorporates § 841(a)(1). Not only can Petersen not establish any undue prejudice, it is clear from this record (especially given the court's use of jury interrogatories) that he can not establish any prejudice. Indeed, he does not claim that he suffered any prejudice. Rather, he is claiming that he had a reasonable expectation that he would face liability only under § 860, and not under § 841(a)(1). However, as we have explained, that argument is without merit.
For all of the above reasons, we will affirm Petersen's judgment of conviction.
Dorsett also filed a motion for judgment of acquittal or, in the alternative, for a new trial, arguing, inter alia, that the district court's aiding and abetting jury charge was improper because it did not contain an adequate specific intent instruction. Dorsett now argues that the district court erred in denying that motion.
At the charging conference, Dorsett asked the court to instruct the jury that: "An aider and abettor must have some interest in the criminal venture, and the prosecution must prove the defendant's intentional involvement in the crime with the specific intent of making the crime succeed, and his participation in the commission of every element of the offense as defined in these instructions." Rather than give that instruction, the court gave the following intent instruction:
Dorsett appears to be arguing that because we said in Gordon that "[t]he government must ... prove that the defendant had the specific intent of facilitating the crime," 290 F.3d at 547, the aiding and abetting instruction must contain the words "specific intent."
His argument fails for two reasons. First, the district court used the Third Circuit's Model Criminal Jury Instructions § 7.02 for aiding and abetting. The district court's instruction on intent is taken verbatim from those model instructions. We have a hard time concluding that the use of our own model jury instruction can constitute error, and nothing that Dorsett says removes our doubt that use of such an instruction can constitute error. Moreover, Dorsett does not even contend that the model instruction is wrong. Second, we believe that the phrases "the defendant's
Accordingly, we will also affirm Dorsett's judgment of conviction.
However, the situation here transcends mere waiver or forfeiture of a legal argument because, as noted above, Petersen not only failed to object to the district court's jury charge, he actually refused the court's offer to give the lesser included offense charge that he now says should have been given. The situation is therefore more akin to an estoppel than a waiver or forfeiture. Although it can clearly be argued that he has lost any right to now claim that the court erred in not giving the charge he told the court he did not want, we believe that, given the very unique circumstances here, review for plain error is appropriate. The alleged error occurred only after the defendant was granted judgment of acquittal on similar charges at his first trial, and his attack on the outcome of the second trial is such that ignoring it now could "seriously affect  the ... public reputation of judicial proceedings[,]" United States v. Hoffecker, 530 F.3d 137, 181 (3d Cir.2008) (citing United States v. Wise, 515 F.3d 207, 214 (3d Cir. 2008)), as it may appear that he has been sentenced for a crime he was acquitted of. We caution, however, that circumstances are indeed rare that will cause us to exercise our discretion to review a claim that a trial court erred in not giving a jury charge that was offered, but refused by the defendant.
Moreover, "[i]t is well-settled that arguments asserted for the first time on appeal are deemed to be waived and consequently are not susceptible to review in this Court absent exceptional circumstances." United States v. Rose, 538 F.3d 175, 179 (3d Cir.2008) (internal quotation marks and citation omitted; alternation in original). Exceptional circumstances exist where, inter alia, "the public interest requires that the new issue be heard on appeal." Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 116 (3d Cir.1992). Since we have not yet addressed the issue raised by Petersen, there is an institutional consideration that can be viewed as "an exceptional circumstance." We therefore believe that "the public interest requires that the new issue be heard on appeal."