United States v. McIntosh
753 F.3d 388
| 2d Cir. | 2014Background
- ICE and State Dept. agents went to McIntosh’s Brooklyn home on an arrest warrant; agents were in plain clothes but displayed badges and repeatedly identified themselves as police.
- McIntosh got into his parked car, locked the doors, started the engine, and moved the vehicle forward and backward, striking vehicles and pushing a government vehicle; he then drove directly toward an agent and fled; he was arrested later that evening.
- At trial on Count One (18 U.S.C. § 111(a)), the jury acquitted on the aggravated (weapon) theory but convicted on the simple-assault theory; McIntosh pleaded guilty to false personation (§ 912) and concealment of a public record (§ 641) (Counts Two and Three).
- District court instructed the jury that it need not unanimously agree on which specific act listed in § 111(a) ("forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered") McIntosh committed, only that the jury unanimously find he committed at least one.
- McIntosh challenged (1) the unanimity jury instruction for Count One, (2) procedural and substantive reasonableness of the 12‑month sentences on Counts One and Three, and (3) the denial (as moot) of his Rule 35 motion seeking a concurrency determination between federal and state sentences.
- The Second Circuit affirmed the conviction, the sentences, and the denial of the Rule 35 motion.
Issues
| Issue | McIntosh's Argument | Government's/Respondent's Argument | Held |
|---|---|---|---|
| Whether jury must unanimously agree on a single specific means under § 111(a) | Jury must unanimously pick one of the listed acts (assault, resist, oppose, impede, intimidate, interfere) to convict | The listed verbs are alternative means of a single offense; unanimity on a single means is not required | Court held unanimity on a single means was not required; instruction was proper |
| Procedural reasonableness of 12‑month sentences (Counts One & Three) | Sentences rested on inaccurate factual statements by government at sentencing | District court relied on its own inferences from trial/allocution; no clear factual error | No procedural error; sentence not based on clearly erroneous facts |
| Substantive reasonableness of 12‑month sentences | Sentences were substantively excessive | Sentences fall within discretion and permissible range | Sentences were substantively reasonable; affirmed |
| Denial of Rule 35 motion to order federal sentence concurrent with state sentence | District court should have ordered or recommended concurrency | Motion was moot because federal sentence already served; district court not required to decide; default rule permits consecutivity | Denial affirmed as not erroneous; court not required to make concurrency determination |
Key Cases Cited
- Schad v. Arizona, 501 U.S. 624 (plurality) (when a statute lists alternative means of committing a single offense, jurors need not unanimously agree on the means)
- McKoy v. North Carolina, 494 U.S. 433 (concurrence noting jurors need not agree on preliminary factual issues underlying a general verdict)
- United States v. Stewart, 433 F.3d 273 (2d Cir.) (different theories in § 1001 are means, not separate offenses; unanimity on a single theory not required)
- United States v. Street, 66 F.3d 969 (8th Cir.) (§ 111(a) lists alternative means of a single crime)
- United States v. Cavera, 550 F.3d 180 (2d Cir. en banc) (standard for reviewing procedural and substantive reasonableness of sentences)
- Gall v. United States, 552 U.S. 38 (sentencing review framework for procedural and substantive reasonableness)
- United States v. Feola, 420 U.S. 671 (Congress intended § 111 to protect law enforcement function)