Friday, August 24, 2012

Grand Slam


United States v. Gonzalez, No. 11-1490-cr (2d Cir. July 19, 2012) (Jacobs, Kearse, McLaughlin, CJJ)


Omar Gonzalez was originally charged with a narcotics conspiracy in a superseding indictment that alleged his involvement with “mixtures and substances containing a detectable amount of cocaine.” The indictment did not allege a drug quantity, and cited 21 U.S.C. §§ 846 and 841(b)(1)(C), a penalty section that carries no mandatory minimum. Before trial, the government superseded again. The second superseding indictment was identical to the first except it replaced the citation to § 841(b)(1)(C) with a citation to § 841(b)(1)(B), a penalty provision that, in cases involving 500 grams or more of cocaine, has a five-year mandatory minimum; in 500+ gram cases like Mr. Gonzalez’, where the government files a prior felony information, it specifies a ten-year minimum.

During trial, the defense, after seeing the government’s proposed jury instructions, objected, noting that trafficking in 500 grams or more of cocaine was not actually alleged in the indictment, and that drug quantity is an element that must be pled. Counsel questioned how the court could be sure that the grand jury actually found that the case involved 500 grams or more of cocaine. The district court disagreed that the indictment was insufficient, on the ground that § 841(b)(1)(B) was mentioned in the text of the indictment, not merely the parenthetical at the end, and thus that Gonzalez could be convicted, which he was, and sentenced, which he was, under that section. Believing itself bound by a  ten-year mandatory minimum - the statutory five doubled - the court sentenced Mr. Gonzalez to 120 months’ imprisonment.

On appeal, the circuit remanded the case for resentencing under § 841(b)(1)(C) because sentencing Gonzalez under § (b)(1)(B) violated his rights under the Grand Jury Clause. 

But to get there, the court had to harmonize some seemingly conflicting precedents. In one case, Berlin, the indictment did not include a factual allegation that the defendant knew of the falsity of a statement he made in order to obtained mortgage insurance, even though that was an element of the offense charged, a violation of 18 U.S.C. § 1010.  There, the circuit held that the deficiency was “not cured by the fact that each count cited the statute that [he] was alleged to have violated.” After all, “stating that an act is ‘in violation of’” a particular statute “adds no factual information as to the act itself.” In another, Doe, the court found an indictment defective where, although it alleged a statutory violation that contained a drug quantity, the indictment itself had no language referring to any particular quantity; only a “parenthetical string citation” suggested the quantity of drugs involved in the offense. Thus, it was unclear whether the grand jury actually made findings on the drug quantity involved.

But, by contrast, in Hernandez, an indictment was sufficient; although it failed to allege in its text that a drug possession conspiracy involved the intent to distribute, the indictment had “both explicit and implicit” references to the “neglected element.” That indictment did more than merely cite a statutory section: the element was in the caption of the indictment and the indictment alleged a large enough quantity of heroin that an intent to distribute could be inferred. In addition, the statutory citation containing the missing element appeared in the text of the indictment, and not just, as in Doe, in a parenthetical after the factual allegations.

The district court had viewed this case as more like Hernandez due to the placement of the citation, but the circuit made clear that that was “not the only difference” between Doe and Hernandez. Doe could be distinguished from Hernandez because there was other language in the Hernandez indictment that sufficiently indicated that the grand jury hade made a finding on the element. 

Gonzalez’ case was accordingly governed by Doe, not Hernandez, irrespective of the placement of the statutory citation.  The circuit also rejected the government’s argument that the indictment should be “construed liberally in favor of sufficiency,” since it contained “no helpful language to construe.”   Thus, it is now clear that a citation to a statutory section is not, by itself, sufficient to cure a defective indictment that fails to allege all the elements of an offense, and it does not matter whether the statutory citation is located in the text of the indictment or in a parenthetical following the text.

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2 Comments:

Anonymous Anonymous said...

I believe that there was another significant difference between Hernandez (and Doe) and Gonzalez's case. The first two cases were plain error cases -- the error had not been pointed out in the district court -- but in Gonzalez, a timely objection was made. In plain error cases, most Circuits stretch to find other language in the indictment to uphold the conviction, as in Hernandez.

David Lewis

September 11, 2012 at 10:15 AM  
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