Opinion
00 CR. 447 (DLC)
January 22, 2002
Attorney for Plaintiff, Marc A. Weinstein, Assistant United States Attorney Office of the United States Attorney, New York.
Attorney for the Defendant, Jeremy F. Orden New York, NY.
OPINION and ORDER
On December 12, 2001, this Court issued an Opinion denying defendant Esteban Gonzalez's ("Gonzalez") motion to dismiss Count 4 of his indictment, which charged him with possessing a "prohibited object" in prison, on the ground that it violated Apprendi v. New Jersey, 530 U.S. 466 (2000). At sentence on December 14, 2001, the Court granted Gonzalez permission to renew his motion to dismiss in light of the Second Circuit's intervening decision construing Apprendi, United States v. Thomas, 274 F.3d 655 (2d Cir. 2001). Relying on an entirely separate argument, Gonzalez now contends that the conviction on Count 4 must be vacated because of the absence of a special verdict on two alternative means of violating the "prohibited object" statute. For the reasons that follow, Gonzalez's most recent motion to dismiss Count 4 is also denied.
BACKGROUND
On April 27, 2000, Gonzalez was indicted in four counts for the stabbing of a fellow inmate at the Metropolitan Correctional Center in Manhattan. 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 Gonzalez," 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))
Counts 1, 2 and 3 charged Gonzalez 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).
(Emphasis supplied.)
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." The maximum sentence for a violation of Section 1791 ranges 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. At trial, the prosecution presented evidence, both through testimony and by introduction of the object itself, that the "prohibited object" Gonzalez was charged with possessing was a piece of metal that resembled a knife or an ice pick, approximately ten inches long, that had been altered to come to a sharp point at one end. The jury instructions, read on December 5, 2000, provided:
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. .
(Emphasis added.) The 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.
(Emphasis supplied.) Each juror was provided with a copy of the charge when it was read to them and for their deliberations.
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.
(Emphasis supplied.) Gonzalez did not object to the jury instruction or the special verdict questions on Count 4 at the charging conference on December 5, 2000, or at any other time.
On October 18, 2001, Gonzalez moved for the first time to dismiss Count 4 and vacate his conviction on that count. In his motion, Gonzalez relied on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the 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). Gonzalez argued that the definition of a "prohibited object" was an element of an offense under Section 1791 and that Count 4 of his indictment did not sufficiently allege the nature of the prohibited object he was charged with possessing.
In denying Gonzalez's motion on December 12, 2001, the Court noted that the Second Circuit had not yet decided whether Apprendi applied not only to facts that must be found by the jury but also to facts that must be alleged in the indictment. See United States v. Santiago, 268 F.3d 151, 157 n. 8 (2d Cir. 2001) Nonetheless, assuming that such facts must be alleged in the indictment, and applying the liberal standard that governs when a defendant first attacks an indictment after a verdict, the Court held that the indictment "sufficiently informed Gonzalez that he was charged with possession of an object designed or intended to be used as a weapon." United States v. Gonzalez, No. 00 Cr. 447, 2001 WL 1580233, at 3 (S.D.N.Y. Dec. 12, 2001)
On the same day that this Court's decision was issued, the Second Circuit held that drug quantity was "an element of the offense charged under 21 U.S.C. § 841," and that a defendant's sentence could not exceed the statutory maximum unless drug quantity was "charged . . . in the indictment and proved . . . to a jury beyond a reasonable doubt."Thomas, 274 F.3d at 663.
Gonzalez now argues for the first time that his conviction on Count 4 is invalid because the jury instructions impermissibly allowed the jury to convict him without reaching a unanimous verdict on Count 4. Specifically, Gonzalez maintains that the statutory phrasing in Section 1791(d)(1)(B), which defines a prohibited object as, inter alia, an object that is "designed" or "intended" to be used as a weapon, creates independent elements, each of which required a unanimous jury verdict.
DISCUSSION
It is well established that "a jury must reach a unanimous verdict as to the factual basis for a conviction." United States v. Schiff, 801 F.2d 108, 114 (2d Cir. 1986); see also Griffin v. United States, 502 U.S. 46, 60 (1991). Absent "a genuine danger of jury confusion,"Schiff, 801 F.2d at 115, however, "[a] general instruction on unanimity is sufficient to insure that such a unanimous verdict is reached" id at 114, even when instructions to the jury are phrased in the alternative.See United States v. Trupin, 117 F.3d 678, 687 (2d Cir. 1997) ("possessed, concealed or stored the property or that the defendant bartered, sold, or disposed of the property"); see also United States v. Shaoul, 41 F.3d 811, 817 (2d Cir. 1994) (no specific charge that unanimity required regarding specific overt act or misrepresentation);United States v. Harris, 8 F.3d 943, 945 (2d Cir. 1993) (attempt to possess and/or aiding and abetting attempted possession); Schiff, 801 F.2d at 115 (tax evasion committed by failing to make income tax returns, failing to pay income tax, or by concealing and attempting to conceal income) No unanimity problems arise unless "each of the . . . specifications is conceptually distinct from the other." Id. Finally, even if the specifications are conceptually distinct, a conviction based on a general verdict that included alternatives "will stand if there was sufficient evidence with respect to each "specification' in the challenged count of the indictment." Id.
In this case, the Court instructed the jurors that their verdict must be unanimous, and that in reaching a verdict on Count 4, they must find each of the elements beyond a reasonable doubt. The case was not complex and created no genuine risk of jury confusion. While the terms "designed" and "intended" are not so conceptually distinct as to give rise to unanimity problems, even were these terms distinct, the evidence presented at trial — that the object in question was a piece of metal, approximately ten inches long, that resembled a knife or an ice pick and that had been altered to come to a sharp point at one end — was more than sufficient to support finding that Gonzalez possessed an object that was both "designed as a weapon" and "intended as a weapon." It is worth noting that Gonzalez does not argue now that the evidence was insufficient with regard to either of these alternatives, and did not contest at trial that the object was both designed and intended to be used as a weapon.
While the jury instructions were sufficient to obtain a unanimous verdict, there is compelling authority for the proposition that unanimity as to these two alternative definitions was not required. There is no requirement that "in returning general verdicts . . . jurors should be required to agree upon a single means of commission." Schad v. Arizona, 501 U.S. 624, 636, 631 (1991) (emphasis supplied). The terms "designed" and "intended" in Section 1791(b)(1)(B) merely describe two means of committing an offense under that section. The difference between "designed" and "intended" is not "a material difference requiring separate theories of crime to be treated as separate offenses subject to separate jury findings," but rather "an immaterial difference as to mere means." Id. at 633.
Even assuming that "intended to be used as a weapon" required a specific mental state, see United States v. Rodriguez, 45 F.3d 302, 305 (9th Cir. 1995), there is "no reason . . . why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea," Schad, 501 U.S. at 632. Further, the mental state required to support a finding that the object was "intended to be used as a weapon" is not so different from the mental state necessary to support a conviction for possession of an object "designed" to be used as a weapon that these terms should be considered independent elements.
CONCLUSION
For the reasons stated, the defendant's renewed motion to dismiss Count 4 of his indictment is denied.
SO ORDERED