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 of the charged conspiracy. Other than Dove, the defendants named in the indictment pled guilty.
At trial, the government proved that Mr. Dove engaged in a two-person conspiracy to distribute cocaine. The government does not appear to have proved, however, that Dove was involved in a larger-scale narcotics conspiracy. Specifically, the government showed that Dove sold 3.5 grams of cocaine to an undercover agent whom Dove met through one of the alleged co-conspirators, Elijah Ingram. Mr. Ingram had previously sold heroin to the undercover agent, who then asked to purchase cocaine from Ingram. Ingram introduced the agent to Dove, explained to the agent that cocaine was Dove’s “thing” and told them to exchange numbers for future transactions so that Ingram “can be out of it.” During this meeting the undercover agent discussed possible, future purchases of heroin with Dove and Ingram. There was no evidence, however, that directly linked Mr. Dove to any member of the conspiracy named in the indictment other than Ingram.
After the close of evidence, the district court agreed to eliminate four of the names charged in the conspiracy count of the indictment. The district court thus instructed the jury that “the defendant Steven Dove and Elijah Ingram . . . together with others, did knowingly and intentionally conspire to distribute and possess with intent to distribute one ore more controlled substances.” Mr. Dove argued on appeal that, in light of the evidence at trial, the district court’s instructions constructively amended the indictment in violation of the Grand Jury Clause of the Fifth Amendment.*
The panel rejected this argument, holding that “neither the jury instructions nor the government’s evidence altered an essential element of the charges set forth in the indictment.” Slip op. at 11. As the panel explained, an indictment is not constructively amended when there is a removal or alteration of a part of the indictment that is unnecessary for a conviction. Rather, a constructive amendment occurs only where (1) “an additional element, sufficient for conviction, is added; or (2) an element essential to the crime charged is altered.” Id. at 12 (citing United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013)). Here, the panel reasoned, no such additions or alterations occurred. The district court removed four of the names charged in the indictment, but the government was not required to prove the identities of those co-conspirators to secure a conviction. Slip op. at 15. Because it included the words “with others” in its instructions, the district court did not relieve the government of its burden to prove Dove’s role in a larger scheme than one between Ingram and himself. Id. at 16. Moreover, the panel concluded, the fact that Ingram referred the undercover agent to Dove permits one to infer that Dove was aware he was part of a larger conspiracy. Id. at 17,
Judge Chin’s dissent exposes the implausibility of this reasoning. As Judge Chin explains, Dove was involved in only one of the 30 transactions that ostensibly occurred in the scope of the six-member narcotics conspiracy. Dove’s transaction involved cocaine, whereas the other 29 involved heroin and some pills. Ingram set the undercover agent up with Mr. Dove because Ingram did not have cocaine, and explained that cocaine was Dove’s “thing.” There was no evidence that Dove had any contact with the four co-conspirators whose names were redacted. Nor was there evidence that investigators were aware of Dove’s existence prior to the cocaine sale on the last day of the conspiracy. Thus, “[w]hile the district court expected to hear a case about Dove’s involvement in a six-person, five-month heroin and pills conspiracy, as charged in the indictment, the government presented proof instead of a distinct two person, one-day cocaine conspiracy.” Dissent at 2-3. By redacting the names charged in the indictment, the district court permitted proof of this smaller cocaine conspiracy to substitute for proof of the larger heroin-and-pills conspiracy. The district court therefore broadened the basis on which Dove could be convicted and, accordingly, constructively amended the indictment.
Notwithstanding the accuracy of Judge Chin’s analysis, practitioners can distinguish Dove by taking the panel’s assessment of the facts on its own terms. As the panel explains, the language of the district court’s instructions still required the government to prove that Dove knowingly participated in at least a four-member conspiracy. During the cocaine sale, Ingram explained that he planed to reach out to Dove’s sources for heroin, and Dove assured him of the quality of that heroin. In this context, the fact that Ingram had referred a buyer (the undercover agent) to Dove permits the inference that Dove was knowingly participating in a larger, multi-person heroin conspiracy. It is therefore possible to limit Dove to its facts.
*Dove also argued, and the government conceded, that there was a variance between the proof at trial and the conspiracy charged in the indictment. The panel held, however, that the variance was not prejudicial. See slip op. Part II. The panel also rejected a sufficiency of the evidence challenge. See id. Part III.