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Friday, February 23rd, 2024

Circuit upholds conviction based on a plea to an indictment mistakenly alleging that the crime occurred on a date four months earlier than the actual date.

In United States v. Morgan, No. 22-2798 (2d Cir. February 23, 2024), the Circuit (Parker, Lynch and Khan) affirmed, in a summary order, the defendant’s conviction for being a felon in possession of ammunition based on an indictment that charged and a guilty plea that admitted to that crime occurring on March 8, 2020, although the offense indisputably occurred on August 31, 2020. Morgan was sentenced for the crime occurring on August 31, 2020, which had been charged in the original complaint, but not in the indictment to which he pled guilty. The Circuit concluded that there was no constructive amendment because “the conduct Morgan was charged with, pled guilty to, and ultimately was sentenced for was one and the same,” and he was on notice of the “essence of the crime.”…

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Categories: constructive amendment, indictment

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Categories: constructive amendment, indictment

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Tuesday, July 20th, 2021

But is it one conspiracy? And is it securities fraud?

The answer to those questions is pretty much always “yes.” In United States v. Khalupsky, Nos. 19-197-cr, 19-780-cr (2d Cir. July 19, 2021), the Second Circuit affirmed the trial convictions of two defendants, rejecting various legal challenges. According to the circuit, the evidence at trial established that the defendants participated in a multi-year scheme to use stolen pre-publication press releases to make securities trades. Specifically, “hackers in Ukraine” “hacked into three newswires” that disseminated press releases for publicly traded companies, and passed those press releases to an intermediary (Dubovoy) before they were published. This intermediary then equipped and funded each defendant for trading, and gave them access to the releases. The defendants traded, kept a percentage of trading profits for themselves, and passed the rest back to Dubovoy.

On appeal, the defendants argued that there was not sufficient evidence to establish the existence of the single charged conspiracy, since …

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Categories: conscious avoidance, conspiracy, constructive amendment, securities law

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Categories: conscious avoidance, conspiracy, constructive amendment, securities law

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Wednesday, March 7th, 2018

Second Circuit Rejects Constructive Amendment Challenge In Conspiracy Case

Yesterday, over a dissent by Judge Chin, the Second Circuit rejected what seemed to be a promising claim that the district court constructively amended the indictment in a drug conspiracy case. See United States v. Dove, No. 14-1150 (2d Cir. 2018) (Walker, Pooler, Chin) (appeal from Cogan, J., EDNY). The opinion in Dove, available here, is alarming in terms of the latitude it provides the government to effectively change its theory of the case at the close of trial in order to undermine a well-presented defense. It should be possible, however, for practitioners to argue that Dove’s holding is limited to its specific facts.

The superseding indictment in Dove charged the appellant and five other named defendants with engaging in a months-long conspiracy to distribute heroin and cocaine. This indictment separately charged Mr. Dove with one count of distributing cocaine on the last day …

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Categories: conspiracy, constructive amendment

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Categories: conspiracy, constructive amendment

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Sunday, June 17th, 2012

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 …

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Categories: constructive amendment, Uncategorized

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Sunday, May 3rd, 2009

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 …

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Categories: constructive amendment, double jeopardy, Uncategorized

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