Opinion
00 CR. 447 (DLC)
December 12, 2001
Marc A. Weinstein, Assistant United States Attorney, Office of the United States Attorney, New York, NY, for the United States.
Jeremy F. Orden, New York, NY, Attorney for the Defendant.
OPINION and ORDER
Defendant Esteban Gonzalez ("Gonzalez") has filed a post-trial motion to dismiss Count 4 of his indictment, which alleged that he had possessed a prohibited object, a homemade knife, while he was an inmate of a federal prison. 18 U.S.C. § 1791(a)(2). Gonzalez was found guilty on this and two other counts and now maintains that the definition of the object he was charged with possessing should have been alleged in his indictment. For the reasons that follow, Gonzalez's motion to dismiss Count 4 is denied.
BACKGROUND
On February 28, 1999, an inmate at the Metropolitan Correctional Center in Manhattan was repeatedly stabbed by a fellow inmate with a knife-like object. On April 27, 2000, Gonzalez was indicted for this attack in four counts. Counts 1, 2 and 3 charged him with assault with intent to commit murder pursuant to 18 U.S.C. § 113(a)(1); assault with intent to do bodily harm pursuant to 18 U.S.C. § 113(a)(3); and assault resulting in serious bodily injury pursuant to 18 U.S.C. § 113(a)(6). Count 4, which charged Gonzalez with a violation of 18 U.S.C. § 1791(a)(2), read as follows:
On or about February 28, 1999, in the Southern District of New York, ESTEBAN GONZALEZ, a/k/a "Stevie Gonzales," a/k/a "Steven Gonzalez," the defendant, being an inmate of a prison, unlawfully, wilfully, and knowingly did possess a prohibited object, to wit, ESTEBAN GONZALEZ, a/k/a "Stevie Gonzalez," a/k/a "Steven Gonzalez," the defendant, possessed a homemade knife in the Metropolitan Correctional Center.
(Title 18, United States Code, Section 1791(a)(2).)
Section 1791(a)(2) provides that one who, "being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object" commits a crime. The statute provides six alternative definitions of a "prohibited object" and maximum sentences ranging from six months to twenty years depending on the class of object possessed by the inmate. The two definitions provided to the jury, and thus at issue here, are "a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a weapon or to facilitate escape from a prison," 18 U.S.C. § 1791(d)(1)(B), and "any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual," 18 U.S.C. § 1791(d)(1)(F). The former carries a maximum sentence of five years; the latter, of six months.
Gonzalez was tried before a jury on November 27, 2000 through December 7, 2000. The jury charge provided:
Each juror was provided with a copy of the charge when it was read to them and for their deliberations.
In order to find the defendant guilty of a charge of possession of a prohibited object, you must find that the Government has proved each of the following elements of the crime beyond a reasonable doubt:
First: That on or about February 28, 1999, the defendant was an inmate in a federal prison. The MCC is a federal prison.
Second: That on or about that date, the defendant knowingly possessed a prohibited object. . . .
The jury charge defined a "prohibited object" as
one that is designed or intended to be used as a weapon. It is also any object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual. You will be asked whether the Government has proven that the defendant possessed a weapon prohibited under either, both, or neither of these definitions.
Throughout the trial, the object Gonzalez was alleged to have possessed was alternately described by both prosecution and defense as a "metal shank" or a "knife." It was approximately ten inches long.
On December 7, 2000, the jury returned a verdict of guilty on Counts 2, 3 and 4. Gonzalez was acquitted of the offense alleged in Charge 1. The jury returned a special verdict on Count 4, which read:
Has the government proven beyond a reasonable doubt that the defendant possessed an object that was designed or intended to be used as a weapon? Yes.
Has the government proven beyond a reasonable doubt that the defendant possessed an object that threatens the order, discipline or security of the prison, or the life, health or safety of an individual?
Yes.
Gonzalez did not object to Count 4 or the jury instruction on Count 4 at the charging conference on December 5, 2000, to the questions regarding Count 4 in the special verdict form, or to the verdict on the grounds pressed in this motion.
On October 18, 2001, Gonzalez moved for the first time to dismiss Count 4 and vacate his conviction on that count. He argues that Count 4 of the indictment was insufficient because it did not recite all of the elements of an offense under Section 1791(a)(2). He maintains that under Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact that varies the sentence that could be imposed is an element of the offense and thus must be alleged in the indictment.
DISCUSSION
For an indictment to be constitutionally valid, it "must sufficiently inform the defendant of the charges against him and provide enough detail so that he may plead double jeopardy in a future prosecution based on the same set of events." United States v. De La Pava, 268 F.3d 157, 162 (2d Cir. 2001); see also United States v. Danielson, 199 F.3d 666, 670 (2d Cir. 1999) (notice of "core of criminality"). The indictment must allege each element of an offense and state enough facts "to describe a particular criminal act, rather than a type of crime." United States v. Pirro, 212 F.3d 86, 91, 93 (2d Cir. 2000); United States v. Wozniak, 126 F.3d 105, 111 (2d Cir. 1997); Fed.R.Crim.P. (7)(c)(1). "An indictment, however, need not be perfect, and common sense and reason are more important than technicalities." De La Pava, 268 F.3d at 162.
The Eleventh Circuit has described Section 1791's statutory definitions as elements of the offense rather than sentencing factors, largely because of the disparity in punishment for possession of different kinds of objects. United States v. Allen, 190 F.3d 1208, 1210-11 (11th Cir. 1999); see Jones v. United States, 526 U.S. 227, 233 (1999); see also United States v. Rodriguez, 45 F.3d 302, 306 (9th Cir. 1995). As noted, punishment under Section 1791 ranges from six months to twenty years. 18 U.S.C. § 1791(b)(1)-(5).
In this motion, the defendant relies heavily on the Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490 (emphasis supplied). The Second Circuit has specifically declined to decide whether Apprendi applies both to facts that must be found by the jury and to facts that must be alleged in the indictment. United States v. Santiago, 268 F.3d 151, 157 n. 8 (2d Cir. 2001). Other Circuits have determined that Apprendi does apply to indictments. See, e.g., United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000); United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000). To the extent that Apprendi applies to indictments, it would prohibit the imposition of a sentence greater than the maximum sentence authorized by the facts alleged in the indictment. Under Section 1791(a)(2), the fact that determines the maximum sentence is the nature of the prohibited object the defendant is charged with possessing.
Even if the definitions of a prohibited object on which the Government relied at trial, or the facts that will determine the defendant's sentence, were required to be charged in the indictment, it does not necessarily follow that the defendant's motion must be granted. "The scrutiny given to an indictment depends, in part, on the timing of a defendant's objection to that indictment." De La Pava, 268 F.3d at 162. When a defendant does not raise an objection until "after a verdict has been rendered, . . . [the] indictment should be interpreted liberally, in favor of sufficiency." Id.; see also Pirro, 212 F.3d at 92. Because Gonzalez did not object to his indictment until after the verdict was rendered, Count 4 is subject to a liberal interpretation.
Count 4 of the indictment sufficiently informed Gonzalez that he was charged with possession of an object designed or intended to be used as a weapon. 18 U.S.C. § 1791(d)(1)(B). First, Count 4 alleged that Gonzalez possessed a "knife." The jury needed to find no other facts than this to conclude that the object was a "weapon." Second, Count 4 specified that the object was "homemade." Read liberally, the allegation that the knife was "homemade" — made or constructed by an inmate — sufficiently alleged that the knife was intended or designed to be used as a weapon.
Similarly, the indictment clearly gave Gonzalez notice that he was charged with possession of an object that "threatens the order, discipline or security of the prison, or the life, health or safety of an individual." 18 U.S.C. § 1791(d)(1)(F). A homemade knife is an object that threatens the security of the prison or safety of inmates.
Unlike the defendant in Wozniak, who was charged with offenses involving one drug but convicted for offenses involving another, Gonzalez was appraised of the operative facts and the core of criminality at issue at trial. See Wozniak, 126 F.3d at 111. He was indicted for possession of a "homemade knife." At trial, the Government introduced the object — a long metal shank that had been altered to come to a sharp point on one end. The jury found that Gonzalez possessed an object designed or intended to be used as a weapon, or, alternatively, that he possessed a weapon that threatened the security of the prison or safety of other inmates. Gonzalez's defense did not concern the nature of the weapon, but his excuse for possessing it. Gonzalez cannot reasonably complain that he was convicted of an offense different from the offense alleged in his indictment.
Failure to allege all elements of an offense in the indictment cannot be cured by actual notice to the defendant. United States v. Tran, 234 F.3d 798, 809 (2d Cir. 2000). En banc review of Tran's holding is pending before the Second Circuit. See United States v. Thomas, 248 F.3d 76, 78 (2d Cir. 2001) (en banc). Because Gonzalez's indictment was sufficient when construed liberally, Tran is inapposite.
Finally, none of the concerns underlying the Fifth Amendment guarantee at issue here — that "[n]o person shall be held to answer for a . . . crime, unless on . . . indictment of a Grand Jury" — are implicated by the deficiency identified in this motion. U.S. Const. amend. V. There is no question that the defendant was tried on the evidence presented to the grand jury and that the grand jury acted properly in indicting him.
Similarly, the Sixth Amendment's guarantee that a defendant "`be informed of the nature and cause of the accusation'" has been adequately met. Pirro, 212 F.3d at 92 (quoting Russell v. United States, 369 U.S. 749, 761 (1962)). There is no suggestion that the failure to list the two definitions in the indictment interfered with either the defendant's ability to prepare a defense or the scope of his protection against another prosecution for the same crime.
CONCLUSION
For the reasons stated, the defendant's motion to dismiss Count 4 of his indictment is denied.
SO ORDERED: