20-63

U.S. v. Pettway

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 15th day of September, two thousand twenty-one.

PRESENT:

DENNIS JACOBS,

SUSAN L. CARNEY,

RICHARD J. SULLIVAN,

Circuit Judges.

_________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 20-63

COLLINS PETTWAY, AKA THIRSTY,

Defendant-Appellant, 

MICHAEL PETTWAY,

Defendant.*

_________________________________________

* The Clerk of Court is directed to amend the case caption to conform to the above.
 

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FOR DEFENDANT-APPELLANT: Elizabeth Latif, Law Offices of Elizabeth

A. Latif PLLC, West Hartford, CT.

FOR APPELLEE: Katherine A. Gregory, Assistant United 

States Attorney, for James P. Kennedy, Jr., 

United States Attorney for the Western

District of New York, Buffalo, NY.

Appeal from a judgment of the United States District Court for the Western District 

of New York (Vilardo, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on January 7, 2020, is 

AFFIRMED.

Collins Pettway appeals from a judgment of conviction entered following a jury trial 

at which he was found guilty of ten counts of narcotics-related charges. The District Court 

sentenced Pettway principally to an aggregate 72-month term of imprisonment. We assume 

the parties’ familiarity with the underlying facts, procedural history, and arguments on 

appeal, to which we refer only as necessary to explain our decision to affirm.

1. Motion for Judgment of Acquittal

Pettway first challenges the District Court’s denial of his Rule 29 motion for a 

judgment of acquittal on four counts of the Second Superseding Indictment: conspiring to 

possess with intent to distribute and to distribute 500 grams or more of a mixture or 

substance containing cocaine and 28 grams or more of a mixture of substance containing 

cocaine base, see 21 U.S.C. § 846 (“Count One”); possessing with intent to distribute 28 

grams or more of a mixture or substance containing cocaine base, and 500 grams or more of 

a mixture or substance containing cocaine, see id. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2 

(“Count Seven” and “Count Eight,” respectively); and maintaining drug-involved premises, 

see 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (“Count Nine”).

Rule 29 permits a trial court to set aside a jury’s guilty verdict if it determines the 

evidence is “insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Such a finding is 

warranted “only if the evidence that the defendant committed the crime alleged is 
 

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nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable 

doubt.” United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999).1 We review de novo a 

district court’s denial of such a motion. United States v. Cacace, 796 F.3d 176, 191 (2d Cir. 

2015). On such review here, we conclude that the District Court correctly denied Rule 29 

relief on each of the counts that Pettway challenges. 

Trial evidence established that Pettway was engaged in drug dealing in the spring of 

2015. A Buffalo Police Department Detective, Jeff Weyand, testified that he conducted 

several controlled, undercover purchases of crack cocaine and cocaine from Pettway over a 

period of less than one month. On February 19, 2015, Detective Weyand requested an “8 

ball,” or one eighth of an ounce, of crack cocaine from Pettway, and Pettway told Detective 

Weyand to wait while he got it. Surveillance officers followed Pettway as he drove to a 

residential building located at 460 Eggert Road, where he “jumped out of the car, . . . ran to 

the back door, opened the back door, was in there for [at most] 35 or 45 seconds,” App’x at 

379, before meeting Detective Weyand at a nearby gas station and selling him $200 worth of 

crack cocaine. 

On March 7, 2015, officers observed Pettway driving away from 460 Eggert Road 

before he met Detective Weyand and sold him half an ounce of powder cocaine. Officers 

arrested Pettway shortly after that transaction. When Pettway was arrested, he possessed 

keys that opened the interior and exterior doors of the lower apartment at 460 Eggert Road. 

Pettway claimed that he had never been to the address before, even though trial testimony 

established that police and others had observed him there multiple times.

Officers executing a search warrant at 460 Eggert Road on the day of Pettway’s arrest 

found drugs and drug-related paraphernalia throughout the apartment and above an air duct 

in the building’s common basement. Included in the materials seized were a kilogram of 

cocaine, 146 grams of cocaine base, two loaded handguns, ammunition, approximately

$6,000 dollars in cash, a strainer in the sink that held evident cocaine “rocks,” bags with 

1 Unless otherwise noted, in quoting caselaw, this Order omits all alterations, citations, footnotes, and internal 

quotation marks.
 

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prepackaged “8 ball” quantities of crack cocaine, baking soda, and a scale. Pettway’s DNA 

was found on the strainer bearing cocaine residue. The kilogram of cocaine that was 

recovered that day had an estimated street value of from $30,000 to $35,000.

Other evidence introduced at trial connected the Eggert Road apartment and the 

drug distribution operation to Pettway’s brother and co-defendant, Michael Pettway. When 

the search warrant was executed, Michael Pettway’s driver’s license—which listed his address

as 460 Eggert Road—was retrieved from a dresser in one of the apartment’s bedrooms. 

Michael Pettway’s DNA was found on the scale and on two of the bags containing drugs 

that were recovered during the search. Additionally, the lone occupant of the apartment 

when the search warrant was executed later testified at trial that Michael Pettway lived in the 

apartment and had been there earlier that morning. 

Witness testimony also established that Michael Pettway rented multiple vehicles, 

registering Collins Pettway as an additional driver. Collins Pettway used these vehicles to 

distribute narcotics. The vehicles rented by Michael Pettway included the black Ford Edge 

SUV that Collins Pettway was driving on March 7, 2015, when he was arrested. When it was 

searched after the arrest, the Ford Edge was found to contain crack cocaine “crumbs.”

A motion for judgment of acquittal “does not provide the trial court with an 

opportunity to substitute its own determination of . . . the weight of the evidence and the 

reasonable inferences to be drawn for that of the jury.” Guadagna, 183 F.3d at 129. Viewing 

this evidence in the light most favorable to the prosecution, as we are bound to do on appeal 

after a verdict of conviction, we easily conclude that the evidence adduced was sufficient for 

the jury to find “the essential elements of the crime[s] established beyond a reasonable 

doubt.” Cacace, 796 F.3d at 191. 

A reasonable jury could infer that Collins Pettway conspired with his brother to 

possess with intent to distribute, and to distribute, 500 grams or more of a mixture or 

substance containing cocaine and 28 grams or more of a mixture or substance containing 

cocaine base (Count One). Michael Pettway’s acquittal on the conspiracy charge does not 

change this result. As the District Court correctly explained, it has long been established that 
 

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“[i]nconsistency in a verdict is not a sufficient reason for setting it aside.” Harris v. Rivera, 454 

U.S. 339, 345 (1981). The same principle holds for “verdicts that treat codefendants in a 

joint trial inconsistently.” Id.

Likewise, as to Counts Seven and Eight, a reasonable jury could infer that Pettway 

had at least constructive possession of the drugs recovered from 460 Eggert Road because 

he had been seen at or near the apartment during and immediately before conducting drug 

sales, he had keys to the apartment, his DNA was found on a strainer in the apartment that 

also contained cocaine residue, and he lied to law enforcement about whether he had been 

to the apartment. See United States v. Facen, 812 F.3d 280, 286–87 (2d Cir. 2016).2 For 

substantially the same reasons, a reasonable jury could infer that Pettway knowingly used the 

460 Eggert Road apartment for the purpose of narcotics distribution (Count Nine). See id. at 

290.3

We therefore conclude that the District Court did not err when it denied Pettway’s

motion for Rule 29 relief.

2. Limiting Cross-Examination of Detective Mulhern

Pettway also argues that the District Court erred by limiting the scope of crossexamination of Detective Timothy Mulhern. He contends that the limitation violated his 

constitutional rights under the Sixth Amendment’s Confrontation Clause. 

We review the District Court’s decision to limit the scope of cross-examination for 

abuse of discretion. See United States v. Figueroa, 548 F.3d 222, 226 (2d Cir. 2008). A district 

court abuses its discretion “when (1) its decision rests on an error of law (such as application 

of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision—

2 Pettway does not contest the sufficiency of the evidence showing intent to distribute.

3 The District Court properly rejected Pettway’s argument that the evidence was insufficient to support his 

convictions for “aiding and abetting” Michael Pettway in Counts Seven, Eight, and Nine on the ground that 

“there was sufficient evidence to permit the jury to find that Collins Pettway was criminally liable for the 

substantive offenses charged in counts 7-9 as a principal.” United States v. Pettway, 403 F. Supp. 3d 173, 179

(2019); see also United States v. Becerra, 97 F.3d 669, 672 (2d Cir. 1996) (defendant’s “conviction as an aider and 

abettor was not erroneous since the jury had ample evidence on which to convict her as a principal”).
 

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though not necessarily the product of a legal error or a clearly erroneous factual finding—

cannot be located within the range of permissible decisions.” Id.

A district court has “broad discretion in controlling the scope and extent of crossexamination and may impose reasonable limits on cross-examination to protect against, e.g.,

harassment, prejudice, confusion, and waste.” United States v. Sampson, 898 F.3d 287, 308 (2d 

Cir. 2018). Although “the Sixth Amendment’s Confrontation Clause gives a defendant the 

right not only to cross-examination, but to effective cross-examination, it does not follow 

that the Confrontation Clause prevents a trial judge from imposing any limits on defense 

counsel’s cross-examination of government witnesses.” Id. (emphasis in original). 

Here, the District Court acted within its discretion when it limited the scope of crossexamination of Detective Mulhern. Pettway sought to challenge Detective Mulhern’s 

credibility by questioning him about misrepresentations related to Pettway’s criminal history

that Detective Mulhern allegedly made when applying for a search warrant. 

The District Court thoroughly considered Pettway’s argument at multiple sidebars,

listened to the recording of Detective Mulhern’s colloquy with the judge when applying for 

the search warrant, and—based on the parties’ agreement—conducted an in camera review of 

a more current criminal history report provided by the government. After that review, the 

District Court discussed the matter again with the parties and determined that allowing 

cross-examination on this issue would result in a mini-trial on Pettway and his brother’s 

prior criminal history. The District Court warned that “if we went off on this tangent . . .

with this cross-examination, we’d be going down a road that would be very prejudicial, and 

might well result in a mistrial because of what would come out as a result of that.” App’x at 

1381.

We conclude that the limitation placed by the District Court on the scope of the 

defense’s cross-examination was reasonable. Delving into Pettway’s prior criminal history 

and creating a mini-trial on the number and nature of Pettway’s prior arrests and convictions 

would have been of limited probative value while creating a significant risk of prejudice to 

Pettway. See Sampson, 898 F.3d at 308; see also United States v. Beno, 324 F.2d 582, 589 (2d Cir. 
 

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1963) (“[A] criminal defendant is entitled to have his guilt or innocence determined on the 

specific offense charged and not risk the possibility of conviction for a series of prior 

specific acts which collectively suggested that his career had been reprehensible.”). Further, 

the District Court allowed considerable cross-examination of Detective Mulhern as to other 

aspects of the warrant application. Accordingly, the District Court acted well within its broad 

discretion when it limited Pettway’s cross-examination of Detective Mulhern. 

3. Consideration of Pettway’s October 18, 2017, Conduct at Sentencing

Finally, Pettway submits that the District Court committed procedural error by 

concluding that Pettway possessed 4.5 grams of crack cocaine on October 18, 2017, and 

then considering that conduct in imposing Pettway’s sentence. Pettway did not advance this 

argument at sentencing, and we therefore review his objection to the Court’s finding for 

plain error. United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). To meet that standard, 

Pettway must show that “there was (1) error (2) that is plain and (3) that affects substantial 

rights.” Id. at 86–87.

Sentencing courts may consider conduct on which a defendant has been acquitted, so 

long as that conduct has been proven by a preponderance of the evidence. See United States v. 

Watts, 519 U.S. 148, 157 (1997); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005) 

(“[D]istrict courts may find facts relevant to sentencing by a preponderance of the evidence, 

even where the jury acquitted the defendant of that conduct.”). Similarly, courts may 

consider uncharged conduct at sentencing, provided—once again—that such conduct is 

proven by a preponderance of the evidence and relevant to the broad objectives of 

sentencing. See Sampson, 898 F.3d at 313–14; see also United States v. Pocinoc, 833 F. App’x 847, 

850 (2d Cir. 2020) (explaining that “a district court may consider uncharged [criminal] 

conduct . . . proven by a preponderance of the evidence when . . . that conduct does not 

increase either the statutory minimum or maximum available punishment”). 

Here, the District Court did not find by a preponderance that Pettway committed the 

crime charged in Count Twelve—possession with intent to distribute cocaine base on October 

18, 2017. Rather, the District Court concluded that Pettway had a committed a different 
 

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crime, possession of crack cocaine, on that same date. See App’x at 2309 (“[T]hose drugs that 

were found in your shoe, I don’t know if you intended to distribute them or not, but you 

certainly possessed them by a preponderance of the evidence after you had been arrested on 

that first charge.”). And for this crime, there was ample evidence to support the District 

Court’s conclusion. Trial testimony established that when Pettway was being arrested that 

day, the U.S. Marshals discovered in Pettway’s shoe a bag containing a white substance that 

they suspected to be illegal drugs. A forensic chemist testified that laboratory testing 

confirmed the substance in the bag was 4.5 grams of cocaine base, and a forensic biologist 

testified that, based on her analysis, it was “at least 22.1 trillion times more probable” that 

the DNA sample found on the bag originated from Collins Pettway and two unknown 

individuals rather than three unknown individuals. App’x at 1198. Indeed, these facts were 

set forth in the Presentence Investigation Report and adopted by the District Court without 

objection by Pettway. 

Accordingly, we identify no error, let alone plain error, in the District Court’s

conclusion by a preponderance of the evidence that Pettway possessed 4.5 grams of crack 

cocaine on October 18, 2017, and its consideration of that relevant fact when imposing

sentence. Pettway does not otherwise challenge the sentence imposed by the District Court.

* * *

We have considered Collins Pettway’s remaining arguments and find in them no basis 

for reversal. For the reasons set forth above, the judgment of the District Court is 

AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court