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United States v. McIntosh

United States Court of Appeals, Second Circuit

June 4, 2014

UNITED STATES OF AMERICA, Appellee,
v.
GARY MCINTOSH, Defendant-Appellant

Argued October 4, 2013.

Gary McIntosh appeals from a judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Block, J.) entered May 6, 2011. McIntosh was convicted pursuant to 18 U.S.C. § 111(a) of assault on a federal officer, following a jury trial; of false personation of a federal officer, in violation of 18 U.S.C. § 912, following a guilty plea; and of concealment of a public record, in violation of 18 U.S.C. § 641, following a guilty plea. McIntosh also appeals from the district court's January 22, 2013, order denying his motion pursuant to Federal Rule of Criminal Procedure 35. We conclude that the district court did not err in declining to instruct the jury that it must unanimously agree as to which means of commission set forth in 18 U.S.C. § 111(a) was proven beyond a reasonable doubt. Further, we determine that the sentence imposed was substantively and procedurally reasonable; we also conclude that McIntosh did not raise a clear error in his Rule 35 motion, and thus it was properly denied. Accordingly, we AFFIRM the May 2011 judgment and the January 2013 order of the district court.

RICHARD 1 M. TUCKER (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

GARY MCINTOSH, Brooklyn, N.Y., Pro se.

Before: LIVINGSTON, LYNCH, and DRONEY, Circuit Judges.

OPINION

Page 389

Per Curiam:

Defendant-Appellant Gary McIntosh (" McIntosh" ), proceeding pro se, appeals from a May 6, 2011, judgment of conviction and sentence of the United States District Court for the Eastern District of New York (Block, J .). McIntosh was convicted after a jury trial on one count of assault on a federal officer in violation of 18 U.S.C. § 111(a) (" Count One" ). He also entered a plea of guilty to one count of false personation

Page 390

of a federal officer, in violation of 18 U.S.C. § 912 (" Count Two" ), and one count of concealment of a public record, in violation of 18 U.S.C. § 641 (" Count Three" ). The district court sentenced McIntosh to 12 months' imprisonment on Counts One and Three, and to 18 months' imprisonment on Count Two, all to run concurrently. McIntosh also appeals from the district court's January 22, 2013, order denying as moot his motion pursuant to Federal Rule of Criminal Procedure 35 to correct " clear error" in the May 2011 judgment. On appeal, McIntosh contends principally that: (1) the district court erred in declining to instruct the jurors that they must unanimously agree as to one specific method -- i.e., whether he " forcibly assault[ed], resist[ed], oppose[d], impede[d], intimidate[d], or interfere[d] with" a federal officer, see 18 U.S.C. § 111(a) -- by which McIntosh violated § 111(a), so as to support his conviction on Count One; (2) the twelve-month sentence imposed on Count Three was procedurally unreasonable; (3) the sentences imposed on Counts One and Three were substantively unreasonable; and (4) the district court erred in denying his Rule 35 motion. For the reasons that follow, we affirm the district court's May 2011 judgment and January 2013 order.

Background

A. Facts

The following facts are drawn from uncontradicted testimony during McIntosh's jury trial on Count One. On March 24, 2010, agents from the Immigration and Customs Enforcement (" ICE" ) and the State Department, including Ryan Boyd, Ed Carey, Kevin Barry, Mark Mancini, Joseph Quigley, Robert Fitzsimmons, Reilly Dundon, and Ryan Elliott, went to McIntosh's Brooklyn home to execute an arrest warrant for McIntosh. The agents were in plain clothes, but most were wearing badges on lanyards around their necks identifying them as federal officers. When McIntosh exited his building shortly before 8:00 a.m., the agents approached him, shouting " Police!" and " Gary!" J.A. 218. McIntosh then climbed into his Volvo, which had darkly tinted windows and was parallel parked on his street, locking the doors behind him. The agents, seeking to arrest McIntosh, surrounded his car, pounding on its windows with their hands and loudly identifying themselves as law enforcement. The officers shouted " Police. Open the door!," J.A. 185, and " Police, police, get your hands in the air," J.A. 219. The officers attempted to open the car door, but McIntosh kept the doors locked, turned on the engine, and began to drive the car forward and backward, striking the vehicles parked in front of and behind his own.

ICE Agent Fitzsimmons moved to the front of the vehicle where he displayed his badge through the windshield. McIntosh then removed his hands from the steering wheel and reached below. In reaction, Agent Fitzsimmons drew his pistol, pointed it at McIntosh, and yelled, " Get your [h]ands back on to the steering wheel where I c[an] see them." J.A. 221. McIntosh returned his hands to the steering wheel, after which Agent Fitzsimmons returned his pistol to its holster.

All the while, the agents were yelling " Police!," J.A. 186, and " Police, federal agents, open the door," J.A. 222. Agent Boyd then drew his weapon, identified himself as a police officer, and commanded McIntosh to stop the vehicle. Because he could not see McIntosh's hands through the tinted window, State Department Agent Elliott shattered the passenger-side window with his baton. While maintaining ...


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