Archive | grand jury

Tuesday, August 9th, 2016

Failure to Charge Loss Amount in 18 U.S.C. 641 Case Harmless Error

In United States v. Lee, 15-458, the Second Circuit affirmed a conviction under 18 U.S.C. 641 and the 30-month sentence that followed.

Relying in part on Apprendi, the Court concluded that a loss amount in excess of $1000 is an element of a felony offense under Section 641 and that, to allege a felony, the indictment should allege that the loss amount exceed $1000.  In this case, however, where the pretrial discovery and the trial included “overwhelming” evidence that hundreds of thousands of dollars worth of government property had been stolen, the violation of the Fifth Amendment’s Grand Jury Clause was harmless.  Opinion at 3.  The deficient indictment gave Lee “specific notice of the nature of the offense and the core of the criminal conduct to be proven at trial.”  Opinion at 22.…

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Categories: Apprendi, grand jury, indictment

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Friday, August 24th, 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 Before trial, the government superseded again.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 …

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Categories: grand jury, indictment, Uncategorized

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