Markov

MEMORANDUM

Defendant Henri Markov contends that the district court erred by failing to give a specific unanimity instruction to the jury and requests a new trial. Markov was indicted on one count of Conspiracy to Possess with Intent to Distribute Marijuana and Cocaine, a violation of 21 U.S.C. § 846 , and four counts of Possession with the Intent to Distribute Marijuana, a violation of 21 U.S.C. § 841 (a)(1). The jury found Markov guilty on the conspiracy count and on two of the four counts of possession with intent to distribute.

The offense of possession of marijuana with the intent to distribute includes the lesser included offense of possession of marijuana. Accordingly, the trial court provided the jury with two verdict forms. Verdict form # 1 listed the four counts as Possession with Intent to Distribute. Verdict form #2 listed the counts as the lesser included offense of Possession of Marijuana. On both forms, there was a blank next to each count where the jury had to write in “Guilty” or “Not Guilty.” Thus, the two forms allowed the jurors to decide if Markov was guilty of the greater offense and/or the lesser included offense.

During their deliberations, the jury…