UNITED STATES OF AMERICA v. KENNETH PETTWAY, JR.
12-CR-103S (1)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
May 13, 2025
On Mаy 21, 2024, this Court denied Defendant Kenneth Pettway, Jr.‘s second motion for a new trial under
Motions for reconsidеration brought in criminal cases are assessed under the civil reconsideration standard, since there is no express criminal procedure provision for such motions. See United States v. Larson, No. 07-CR-304S, 2013 WL 6196292, at *2 (W.D.N.Y. Nov. 27, 2013) (collecting cases). Reconsideration is generally justified in any one of the following three circumstances: (1) an intervening change in controlling law; (2) new evidence; or (3) the need to correct a clear error of law or to prevent manifest injustice. See Virgin Atl. Airways, Ltd. v. Nat‘l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); see also Shrader v. CSZ Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might
The decision whether to grant or deny reconsideration lies in the court‘s discretion. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983). Parties seeking reconsideration “should evaluate whether what may seem to be a clear error of law is in fаct simply a point of disagreement between the Court and the litigant.” Duane v. Spaulding & Rogers Mfg. Inc., No. 92-CV-305, 1994 WL 494651, *1 (N.D.N.Y. Aug. 10, 1994) (quoting McDowell Oil Serv. v. Interstate Fire and Cas., 817 F. Supp. 538, 541 (M.D.Pa. 1993)). Motions for reconsideration are not to be used as a means to reargue matters already disposed of by previous rulings or to put forward additional argumеnts that could have been raised before the decision. See Duane, 1994 WL 494651, at *1. After all, a “motion for reconsideration is not a device intended to give an unhappy litigant one additional chance to sway the judge.” Nossek v. Bd. of Ed. of Duanesburg Cent. Sch. Dist., No. 94-CV-219, 1994 WL 688298, at *1 (N.D.N.Y. Nov. 10, 1994).
This Court previоusly determined that Pettway‘s second motion for a new trial was procedurally barred and otherwise lacked merit. See Pettway, 2024 WL 2286255, at *1. Pettway contends that reconsideration is required because this Court overlooked or misinterpreted his ineffеctive-assistance-of-counsel claims and sufficiency-of-the-evidence arguments. The government maintains that there is no basis for reconsideration. (Docket No. 1357.) This Court agrees.
In its previous decision, this Court found that Pettway‘s motion was untimely and
This Court found that the first three factors weighed against Pettway, with only the fourth factor weighing in his favor. See Pettway, 2024 WL 2286255, at *6-7. In examining the third factor—reason for the delay—this Court found that ineffective assistancе of counsel did not cause Pettway‘s delay in raising his prosecutorial-misconduct arguments, which predominated his motion. See id. Pettway does not challenge that determination, but argues that reconsideration is necessary because this Court did not specifically consider trial counsel‘s alleged ineffectiveness at trial in its excusable neglect analysis. While Pettway is technically correct, this Court elsewhere fully examined each of his ineffectiveness arguments and found none to be meritorious. See Pettway, 2024 WL 2286255, at *16-20.
Pettway argued (and continues to argue) that trial counsel was ineffective for failing to object to Kenneth James‘s testimony as to drug quantity; failing to request a limiting instruction; and failing to object to the gоvernment‘s constructive amendment of the
Despite the procedural bar, this Court assessed the merits of Pettway‘s motion for the sake of completeness. Pettway argues that, in the course of doing so, this Court erred in considering his argument that the trial evidence was legally insufficient to establish that the Count 1 conspiracy involved a drug quantity of 280 grams or more of crack cocaine. Pettway variously accuses this Court of ignoring, disregarding, mischaracterizing, misapprehеnding, or failing to appreciate his argument. Yet this Court examined and discussed the sufficiency of the evidence underlying the Count 1 “charged conspiracy.” See Pettway, 2024 WL 2286255, at *15. The “charged conspiracy” includes the drug-quantity element of 280 grams or more of crack cocaine. This Court found that Pettway‘s challenge failed. Id.
To be more specific, Pettway cannot meet the
Pettway insists that Kenneth James‘s testimony is insufficient to establish the drug-quantity element of Count 1, because James did not testify to specific drug quantities or dates. But such evidence is not required.
“The drug quantity attributable to a defendant knowingly participating in a drug distribution conspiracy includes (1) transactions in which he participated directly, (2) transactions in which he did not personally participate, but where he knew of the transactions or they were reasonably foreseeable to him, and (3) quantities he agreed to distribute or possess with intent to distribute regardless of whether he ultimately committed the substantive act.” United States v. Pauling, 924 F.3d 649, 657 (2d Cir. 2019) (internal quotation marks omitted).
“To prove the quantity by one of these means beyond a reasonable doubt, the government must introduce specific evidence of drug quantities, or evidence from which quantity can, through inference, be logically approximated or extrapolated.” Id. (emphasis added). And “[t]he jury may reach its verdict based upon inferences drawn from circumstantial evidence.” United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008); United States v. Shine, 17-CR-28-FPG-JJM, 2019 WL 6838623, at *3 (W.D.N.Y. Dec. 16, 2019) (finding that “while drug quantity may not be adduced through speculation or
Here, the jury found that the government proved the 280-gram threshold charged in the Count 1 conspiracy, which occurred “[b]eginning sometime in 2010, and continuing sometime into late 2011, the еxact dates being unknown.” (Docket No. 1033.) And this Court previously found that “[e]ven in the absence of specific dates, James‘s testimony supports the reasonable inference and the jury‘s determination that Pettway engaged in the conspirаcy as charged.” Pettway, 2024 WL 2286255, at *15. Again, the “conspiracy as charged” includes drug quantity of 280 grams or more of crack cocaine.
To elaborate, James testified that Pettway was his crack cocaine supplier “back in 2011” and for the fivе years before. See Transcript, Docket No. 1172, pp. 117-18, 123-25, 174. At that time, James was selling pieces of crack cocaine weighing .4 grams for $40 each, what he referred to as “$40 pieces.” Id. pp. 108-10, 121-122. On October 31, 2011, James was arrested and his residence was searched. Id. pp. 110-14 Among other items, law enforcement seized crack cocaine and $35,000 in cash. Id. pp. 110-12, 152. James testified that the $35,000 was from “probably almost a year” of him “selling crack.” Id. p. 112.
From this evidence alone, the jury could reasonably infer and logically approximate the drug-quantity element. See Pauling, 924 F.3d at 657. James unequivocally testified that Pettway was his source of crack cocaine in 2010 and 2011, during the timeframe of the conspiracy. Jamеs also testified that he sold the crack cocaine that he got from Pettway in “$40 pieces“—.4 grams for $40—or $100 per gram. He further indicated that
Drug procеeds of $35,000 would be from the sale of 875 “$40 pieces,” which would amount to 350 grams of crack cocaine (875 x .4 grams) distributed between 2010 and 2011 (the year prior to James‘s arrest). See Shine, 2019 WL 6838623, at *4 n. 4 (employing similar inferential analysis: “$1000 would be 20 baggies at $50 per baggiе, which would amount to approximately 8.8 grams of cocaine base.“) The jury thus could reasonably infer that Pettway distributed 280 grams or more of crack cocaine during the timeframe of the conspiracy. Cf. United States v. Cotto, No. 21-2791-cr, 2023 WL 2027277, at *2 (2d Cir. Feb. 16, 2023) (finding sufficient evidеnce of drug quantity because “the jury could reasonably have relied upon Ortiz‘s statement that the 29 grams of heroin was ‘the week‘s worth’ of drugs, along with evidence demonstrating that the conspiracy had a much longer duration than one weеk, to support an inference that the conspiracy distributed that amount on a weekly basis, or at least on some weeks.“); cf. United States v. Walker, 750 F. App‘x 324, 326 (5th Cir. 2018) (summary order) (“So, if a witness testifies that he bought a gram of crack each week for a year, the jury cаn do the basic math and conclude that the defendant sold about 50 grams.“).
This inference is further supported by James‘s less specific testimony that he purchased drugs from Pettway in various quantities both during the timeframe of the charged conspiracy and several years before. James testified that he knew Pettway from the Bailey area of Buffalo and purchased crack cocaine from him “more times than [he] could count” between 2006 and 2011, and purchased ouncе-quantities from him
With Pettway not having demonstrated any error in this Court‘s conclusions that “James‘s testimony supports the reasonable inference and the jury‘s determination that Pettway engaged in the сonspiracy as charged,” Pettway, 2024 WL 2286255, at *15, or that “Pettway fails to show that the evidence predominates against the jury‘s verdict so heavily that it would be manifestly unjust to let the verdict stand,” id. (citing Archer, 977 F.3d at 187), there is no basis for reconsideration. Pettway‘s sufficiency-of-the-evidence argument fails.
Finally, Pettway argues that reconsideration is warranted because trial counsel was ineffective for failing to object to James‘s testimony, failing to request a limiting instruction concerning the timeframe of the conspiracy, and failing to argue that the government had not sufficiently proven the drug-quantity element of Count 1. These contentions are variations of Pettway‘s previously rejected arguments. See id. at *18-19. And with this Court‘s finding that Pettway‘s drug-quantity arguments lack merit, therе is no error that requires reconsideration.
IT HEREBY IS ORDERED, that Pettway‘s Motion for Reconsideration (Docket No. 1355) is DENIED.
FURTHER, that the parties must appear before this Court on May 28, 2025, at 10:00 a.m., for a status conference to determine how best to proceed to resentencing.
SO ORDERED.
Date: May 13, 2025
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge