Constructive Criticism

United States v. D’Amelio, No. 09-2541-cr (2d Cir. June 13, 2012) (Raggi, Hall, Chin, CJJ)

This opinion provides some helpful clarification of the confusing precedents that try to differentiate between a constructive amendment to the indictment - which, in this circuit at least, requires reversal without a showing of prejudice - and a variance.

Background

Defendant D’Amelio was convicted after a jury trial of attempted enticement of a minor - in reality an undercover police officer - for the purpose of engaging in sexual activity with her. D’Amelio’s contacts with "Mary," took place over the Internet and on the telephone, but the "to wit" clause of the indictment alleged only that he "used a computer and the Internet," which the circuit noted were the same thing. Over objection, however, the district court charged the jury that it could convict based on either telephonic or Internet contact because both were facilities of interstate commerce. Post-conviction, D’Amelio filed a Rule 33 motion on this same issue, characterizing the evidence and jury charge as a constructive amendment. The district court, believing it to be bound by circuit precedent, agreed and granted him a new trial.

The Circuit’s Decision

On this, the government’s appeal, the circuit reversed. A constructive amendment to an indictment occurs when the presentation of the trial evidence and the jury instructions modify essential elements of the offense charged. This violates the Fifth Amendment’s Grand Jury Clause because it raises the possibility that the defendant was convicted of an offense other than that charged in the indictment. By contrast, a variance in proof occurs when the charging terms are unaltered, but the evidence at trial proves facts that are materially different from those alleged in the indictment. A variance requires reversal only where it is prejudicial, typically by infringing on the notice and double jeopardy protections of an indictment.

But identifying the line between these two, related errors has been difficult, because it relies on identifying something kind of amorphous: the "core of criminality" of the offense. To the circuit, the "core of criminality" involves the "essence" of the crime, and not "the particulars of how [the] defendant effected" it. And, as the circuit noted here, the defendant cannot necessarily rely only on the "to wit" clause to narrow the scope of the "core of criminality" to only the specific facts alleged there.

While there might be a constructive amendment where the jury convicted based on a complex of facts distinctly different from that set forth in the indictment, there is no constructive amendment where the indictment alleges a single set of discrete facts, and the proof varies from that set. Deciding whether the proof at trial was a "distinctly different complex set of uncharged facts" or was merely "a single set of discrete facts consistent with the charge in the indictment" can be difficult, and that is why the circuit's own cases have been so confusing Here, the court instructed that the main question should be whether the differences between the indictment and proof were "extreme," such that defendant "well may have been surprised by hte introduction" of "different and unrelated proof adduced at trial."

In D'Amelio's case, the circuit concluded that there were not "distinctly different sets of facts and theories presented and charged to the jury." All of D’Amelio’s contacts with "Mary" were part of a single course of conduct within the discrete time period charged in the indictment. That course had a "single, ultimate purpose" - the "core of criminality" - which was to entice Mary to have sex with him. This "core of criminality" did not encompass a "specific facility and a specific means of interstate commerce."

Accordingly, here, there was no constructive amendment. The issue turned only on the specific means that D’Amelio used to effect the crime, but that is not an "essential element" of the offense; "proof of specific means apart from those charged in the indictment does not constructively amend" it. The circuit did note in closing, however, that "this particular litigation could have been avoided had the government been more careful in wording its indictment."

The Acquittal That Wasn't

United States v. McCourty, No. 07-3862-cr (2d Cir. April 9, 2009) (Miner, Sotomayor, Katzmann, CJJ)

Background

At McCourty’s drug trial, one of the counts in the indictment alleged that he possessed with the intent to distribute both a quantity of cocaine and more than five grams of crack. The facts underlying this count were unusual: McCourty ran away from some police officers and dropped a bag containing a small amount of both drugs on the street. Twenty minutes late, the officer found him at his grandmother’s apartment wearing a backpack that contained more than five grams of crack.

Before trial, defense counsel noted a duplicity “problem” with this count and asked for a “special interrogatory” to avoid a general verdict that would not reveal the type or quantity of drugs the jury found that McCourty had possessed. The district judge addressed this problem in the verdict sheet, which split the count into two questions. Part (a) asked whether McCourty possessed drugs with the intent to distribute on the street and part (b) asked whether he possessed drugs with intent to distribute in the apartment. Part (b) had a follow-up: if the jury answered “guilty” on this question, it had to decide whether there was more than five grams of crack. In the end, the jury could not reach a verdict on question (a) and acquitted on question (b). Post-trial, the defense moved for a directed verdict on question (a), since the wording of original count mentioned “five grams or more” of crack on that date. The defense argued that the acquittal on question (b) precluded further prosecution as to the events of that date.

The court denied the motion and, after a retrial, McCourty was convicted of what was left of this count - the possession of cocaine and crack on the street. The court sentenced him to seventy-eight months’ imprisonment, the bottom of the guideline range.

The Appeal

On appeal, McCourty argued that by splitting the count, the district court constructively amended the indictment, in violation of the Fifth Amendment’s Grand Jury Clause. In addition, he argued that the acquittal on question (b) was an acquittal of the entire “offense,” and thus that the Double Jeopardy Clause should have prohibited a retrial on question (a). The circuit disagreed and affirmed.

First, it held that there was no constructive amendment because “neither the trial evidence nor the jury charge altered” the count, which itself identified two separate bases for the offense - that the district court “distinguished the two bases of liability is of no consequence.” All the verdict sheet did was identify the apartment as the place of one instance of drug possession and the street as another. This did not “alter any element of the single crime of drug possession occurring on that date.” “Indeed” - according to the circuit -“we have encouraged such special verdict sheets or interrogatories in cases where the indictment may be ambiguous.”

As for the double jeopardy claim, the court held, “Where the jury is directed to make specific findings as to the separate bases of liability set forth in the indictment, we see no danger of a double jeopardy violation.” Accordingly, a defendant may be retried for a portion of a count “to which he was neither acquitted nor convicted provided the jury is particular about its findings with respect to the different theories of liability contained in that count.”

At the brighter side, however, the court granted McCourty a Regalado remand.