In United States v. Dove, 14-1150-cr, the Second Circuit (Walker, Pooler, Chin) upheld a drug conspiracy conviction against claims that the government improperly shifted its case away from the broader conspiracy charge in the indictment.  The defendant alleged that this amounted to a constructive amendment or a prejudicial variance, in violation of the Fifth Amendment Grand Jury Clause.  The 2-1 decision, with Judge Chin dissenting, raises thorny questions about the evidence necessary to prove a defendant’s awareness of his role in a larger conspiracy and the government’s ability to thwart a lack-of-awareness defense through its selection of evidence at trial.  Although the Court affirmed, the extended discussion and the dissent may be useful to future litigants who wish to invoke these defenses.

The Proceedings Below

Dove arose out of “Operation Comb the Beach,” an NYPD investigation into violent homicides and narcotics trafficking in the Far Rockaway neighborhood of Queens.  During 2011 and 2012, an undercover officer (UC) participated in more than thirty transactions, holding himself out as a drug dealer looking to resell whatever he purchased.  All but one of the transactions involved heroin or pills, and only one involved the defendant, Steven Dove, and the sale of cocaine.  The indictment charged that between January and May 2012, Dove conspired with five named persons, “together with others,” to distribute heroin and cocaine.[1]

The indictment and the government’s evidence at trial were limited to three transactions; Dove participated only in the third.  In January 2012, the UC met with one of Dove’s co-conspirators, Elijah Ingram, in a CVS Pharmacy parking lot, where he purchased Percocet and discussed purchasing other narcotics in the future.  In April, the UC purchased heroin through another of Dove’s co-conspirators, Jason Carter, in the same parking lot with Ingram present.  Finally, in May, the UC met Ingram in the same parking lot and drove with him to an apartment complex, where Ingram introduced the UC to Dove as a source of cocaine and told him to contact Dove directly as cocaine was “his thing.”  During the meeting, Ingram and Dove discussed Dove’s efforts to supply Ingram with heroin and Ingram told the UC he hoped to provide better quality heroin in the future through Dove’s sources.

Dove’s co-conspirators pled guilty but he chose to go to trial, arguing that he had participated in a one-off cocaine transaction with the UC and Ingram and was neither aware of nor part of a conspiracy involving other individuals and other drugs.  During the jury instruction conference, the government requested that the district court refrain from reading the names of the co-conspirators listed in the indictment.  The court agreed, with the exception of Ingram, and instructed the jury that the government was required to prove a conspiracy involving Dove and Ingram, “together with others,” to distribute “one or more controlled substances.”  Following Dove’s conviction, the district court sentenced him as a career offender under § 4B1.1 of the United States Sentencing Guidelines, finding that he been convicted of at least two “crimes of violence” based on his New York first- and second-degree robbery convictions.

The Majority’s Decision

On appeal, Dove principally argued that his conviction ran afoul of the Grand Jury Clause of the Fifth Amendment because the jury instruction and government’s evidence at trial resulted in a constructive amendment of the indictment, or, in the alternative, the government’s evidence amounted to a prejudicial variance.  A constructive amendment exists when the government is allowed to provide the jury with a theory of guilt that was not put before the grand jury, or when the evidence at trial alters the essential elements of the charges specified in the indictment.  A prejudicial variance occurs when the evidence at trial proves facts that are materially different from those alleged in the indictment.

Writing for the majority, Judge Walker held that Dove failed to establish either claim.  With respect to constructive amendment, the majority “perceived three related but distinct theories” as to how removal of the names from the indictment and jury instructions could have made a difference to the government’s burden but found none did.  First, the specific individuals with whom Dove was alleged to have conspired were not elements of the offense; the government did not have to prove any of their identities.  Second, the names were not a necessary element by setting the minimum size of the conspiracy at six, because the government was not required to prove the details or size of the alleged conspiracy, only that Dove was aware of his role in a larger scheme with Ingram, “together with others.”

Finally, the majority considered Judge Chin’s argument in dissent that the removal allowed the government to prove Dove’s awareness of his role in “a smaller, independent conspiracy between Dove and Ingram involving cocaine,” rather than “a larger conspiracy mainly involving the sale of heroin.”  The majority rejected this theory because the indictment and jury instructions both alleged that Dove was a “relatively minor participant” in a larger conspiracy.  Specifically, the removal of the other co-conspirators’ names did not change the key allegations in the indictment that Dove (i) was involved in a single overt act that occurred on the last day of the conspiracy, (ii) was directly involved with only one other member of the conspiracy, Ingram, and (iii) participated in a transaction involving cocaine rather than heroin or pills. 

For similar reasons, the majority disagreed that the government’s evidence resulted in a constructive amendment.  In its view, the evidence “tended to prove” that Ingram and Dove had agreed to sell cocaine to the UC and that Ingram told the UC, in Dove’s presence, that Dove had sources for quality heroin.  Dove was thus fairly on notice that the government intended to prove his awareness of and participation in a larger conspiracy involving various narcotics based upon a single transaction with Ingram involving cocaine.  The majority rejected the dissent’s reliance on Ingram’s statement to the UC that cocaine was Dove’s “thing,” because it did “nothing to rebut the inference that Dove understood that by serving as a source of cocaine for buyers referred to him by Ingram, he was participating in a larger, multi-person conspiracy to distribute wholesale quantities of narcotics” and understood that referrals to him were based on sales of other drugs by other individuals.

With respect to prejudicial variance, the majority acknowledged the government’s concession that a variance had occurred “because a single conspiracy was alleged but the evidence would allow the jury to find the existence of multiple conspiracies.”  However, the variance was not prejudicial because there was no harmful “spill-over” from testimony concerning any conspiracy in which Dove did not participate.  The majority rejected Dove’s contention that he was prejudiced because he was not provided with adequate notice of the charge against him, reasoning that no authority supported such a broad rule, and in any event Dove had notice of the basic facts the government intended to prove.

In addition to his challenges under the Grand Jury Clause, Dove contended that the evidence was insufficient under the buyer-seller exception to conspiracy because it showed he had simply engaged in a single sale with Ingram and the UC.  The majority found that argument to be “wholly without merit” because the buyer-seller exception is concerned primarily with protecting people who simply buy for personal use, and the evidence showed Dove and Ingram had a history of dealing in wholesale quantities of narcotics and were planning future sales of drugs intended for resale, not personal use.  Dove also argued that his sentence was procedurally unreasonable because his convictions for New York first- and second-degree robbery were not “crimes of violence.”  The Court disagreed, noting that under United States v. Jones (2d Cir. Oct. 5, 2017), covered here and here, “New York robbery, regardless of degree, is categorically a crime of violence” under the 2014 United States Sentencing Guidelines in effect at the time of Dove’s sentencing.

The Dissent

Judge Chin would have found a constructive amendment based on the jury instructions and the government’s evidence.  He focused on the fact that there were thirty transactions carried out by the UC during this investigation, only one of which involved Dove and cocaine, and Ingram’s statement to the UC that cocaine was Dove’s “thing.”  In his view, this evidence showed Dove had a cocaine business and Ingram reached out to him for a one-off referral for the UC.   Moreover, the removal of the other co-conspirators’ names altered an essential element of the offense—Dove’s awareness of his part in a larger conspiracy involving various narcotics—because it allowed the government to prove awareness based solely on Dove’s communications with Ingram in a single cocaine transaction. 

The dissent was particularly persuaded by the practical effect of the government’s tactics on Dove’s preparation of a defense.  “Dove’s trial strategy was to challenge the government’s claim that he was aware of his role in a larger narcotics distribution conspiracy with a shared purpose.  The possibility of such a challenge, however, was effectively taken away by the constructive amendment of the indictment.”  In other words, the government had responded to Dove’s “lack-of-awareness” defense by removing the other co-conspirators’ identities from the charge entirely.  The dissent specifically rejected the majority’s conclusion that because Dove did need not to know the identities of his co-conspirators, the government’s removal of their names made no difference to its burden of proof.  That rule exists, the dissent reasoned, for the government’s benefit when it does not know the co-conspirators’ identities, and is “often coupled with the limitation that the evidence must support the existence of such unknown persons and their complicity.”  It was of no import here as the government knew the names of the co-conspirators and, in removing them, had undermined Dove’s primary defense.

Analysis

While the majority and the dissent agreed about the legal standard that governed constructive amendment claims, the two opinions parsed the facts very differently.  The majority saw Dove’s single cocaine transaction as part of the larger, multi-drug conspiracy alleged in the indictment.  Given that Dove was the only trial defendant, there was no longer any need to prove all of the broader contours of the conspiracy.  The majority relied on the evidence that Dove likely knew about Ingram’s other sales and also had offered to supply heroin to the undercover agent in the future.  As a result, the majority concluded that the indictment was not amended. 

The dissent, by contrast, viewed the trial as something of a bait-and-switch:  the government alleged a broader conspiracy in which Dove played a peripheral role, and now Dove was unable to present his defense because the government redacted away the indictment’s breadth.  Had all of the defendants gone to trial, or had the jury known of the full extent of the alleged conspiracy, Dove might have had a more persuasive defense that he did not participate in the charged conspiracy.  He might have looked like a defendant who just happened to wander into a massive conspiracy for an unrelated sale, without himself being a part of the conspiracy.  But with the other defendants having pleaded guilty and with their names redacted, this defense did not succeed.

The dissent raises some hard questions about the redaction of the indictment and the motivation behind this decision.  Why did the government need to remove the names of the other co-conspirators?  The opinion does not say, other than alluding to the fact that each “had already pleaded guilty.”  The redaction of the names of the guilty defendants might help avoid jury confusion but is that more important than Dove’s interest in presenting a “lack-of-awareness” defense?  The majority did not address these problematic questions, choosing to rely on the fact that the evidence was, in its view, sufficient to prove Dove’s awareness of the larger, multi-drug conspiracy alleged in the indictment.  Although it did not carry the day, it is possible that Judge Chin’s dissent will lead the government to re-think how it charges multi-defendant conspiracies, or influence district judges to decline to redact an indictment over a defense objection.