U.S. v. Russell
Under §3B1.1(c) of the Sentencing Guidelines, a defendant's offense level may be increased, if "the defendant was an organizer, leader, manager, or supervisor" in certain criminal activities. A jury convicted the defendant, Gregory Russell, of unlawful possession of a firearm by a convicted felon, possession with intent to distribute cocaine base and possession of a firearm in furtherance of a drug trafficking crime. The District Court sentenced Russell to 120 months. Russell appealed and argued that he was entitled to a new trial, because the prosecutor knowingly relied on false testimony. "The Supreme Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury," pursuant to the 2nd Circuit's 2009 decision, Drake v. Portuondo. The 2nd Circuit found that Russell failed to prove that a witness, Officer Broems, committed perjury. At trial, Broems testified that he did not observe a bandana at the time of the arrest. Previously, Broems testified to the grand jury that a gun shown in an exhibit was the gun he observed Russell hold at the time of Russell's arrest. The grand jury exhibit showed the gun wrapped in a green bandana. The 2nd Circuit rejected Russell's claim that Broems testified falsely. Broems did not testify about whether he observed the bandana wrapped around the firearm at the time of the arrest, only whether he observed the bandana. Russell also protested a sentencing enhancement, pursuant to §3B1.1(c) of the Sentencing Guidelines. The District Court found that Russell "exercised some degree of control over others in the commission of the offense," pursuant to U.S. v. Burgos, a 2003 decision of the 2nd Circuit. The government presented evidence that Russell actively recruited Noelle Candido to act as his driver on a trip to purchase drugs. Evidence existed to support the District Court's conclusion that Russell "exercised some degree of control over others in the commission of the offense." The 2nd Circuit affirmed the judgment of the District Court, Droney, J.