United States v. Lasko
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be and it hereby is AFFIRMED in part and the case is REMANDED.
Defendant-appellant Lawrence L. Lasko appeals from a March 1, 2004, judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) convicting him (1) following a jury trial, of conspiring to manufacture 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, and (2) following his plea of guilty, of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). Lasko was sentenced principally to 210 months’ and 120 months’ imprisonment, respectively, to run concurrently. Familiarity with the facts and procedural history is assumed.
On appeal, Lasko argues that: (1) the district court erred in admitting a chart summarizing Lasko’s post-arrest statements; (2) the jury’s finding of 50 grams or more of methamphetamine was not supported by sufficient evidence; and (3) the district court’s use of the mandatory Sentencing Guidelines requires remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).
Lasko first contends that the district court erred in admitting into evidence
We conclude that the district court did not abuse its discretion in admitting the summary chart. The chart set forth the duration and frequency of the methamphetamine “cooking” operation, an estimate of the size of the batches, and an estimate of the total amount of the drug produced over that period of time—all based on Lasko’s testimony to the police. GA 16. And the district court gave clear and repeated cautionary instructions to the jury that the chart was not evidence, but was being offered as a synthesis of previously admitted testimony. See Pinto, 850 F.2d at 935; GA 48, 55-56. At one point the district court even took the care to state that “the chart is no better than the evidence upon which it is based and does not in and of itself constitute independent evidence,” GA 56, which is substantially the same as the curative instruction used in United States v. Goldberg, 401 F.2d 644, 647—48 (2d Cir. 1968) (affirming conviction). We find that the admission of the summary chart was well with the district court’s discretion.
Lasko next argues that the jury’s quantity finding was not supported by sufficient evidence. He contends that the jury was instructed to determine whether Lasko conspired to manufacture 50 grams or more of pure methamphetamine, see 21 U.S.C. § 841(b)(1)(A)(viii), while the indictment charged him with producing 50 grams or more of a “mixture or substance containing a detectable amount of methamphetamine,” see id. § 841(b)(l)(B)(viii). This argument is wholly without merit. Throughout the trial, the parties and the court referred to “methamphetamine” as shorthand for the substance charged in the indictment. The defendant never objected. The indictment charged Lasko with manufacturing 50 grams or more of a mixture or substance containing methamphetamine, and it was read to the jury during the charge to the jury. There was never any doubt that the “methamphetamine” referred to throughout the trial was the “mixture or substance” referred to in the indictment. There was no argument or evidence that the substance at issue was pure. Moreover, we conclude that the jury’s verdict was more than supported by the defendant’s post-arrest confession, the statements of his co-conspirator, Mark Helton, and the physical evidence recovered at the scene of the large-scale methamphetamine manufacturing operation and of a batch in progress.
We agree with Lasko and the government that, in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and this court’s decision in Crosby, 397 F.3d 103, this case should be remanded for consideration of resentencing. Pursuant to appellate counsel’s request, we direct the district court to appoint new CJA counsel for purposes of these district court proceedings.
We have carefully considered Lasko’s other arguments and find them to be without merit.
Accordingly, and for the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part and the case is REMANDED.
Reference
- Full Case Name
- United States v. Lawrence L. LASKO
- Cited By
- 4 cases
- Status
- Published