United States v. Bastian

Decision Date29 October 2014
Docket NumberDocket No. 13–1156–cr.
Citation770 F.3d 212
PartiesUNITED STATES of America, Appellee, v. Jasaan BASTIAN, aka Gex, Defendant–Appellant, Frank Williams, Delshonda Kimble, Jesse Lewis, aka Wes, Joan James, aka Nay Nay, Jason Elder, aka TI, aka Turn It Up, Floyd Spruill, aka Twin, Messiah Lockhart, aka Siah, Kenneth Mitchell, Jr., aka Sham, Basheem Smalls, aka Bah, aka Jeffrey Bradford, Marion Tingman, Deshawn Lewis, Andrea Brown, aka Pumpkin, Defendants.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Brian E. Spears, Brian Spears LLC, Southport, CT, for DefendantAppellant Jasaan Bastian.

Douglas B. Bloom, Assistant United States Attorney (Justin Anderson, Michael Anderson Levy, Jeffrey E. Alberts, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

Before: KATZMANN, Chief Judge, SACK and LYNCH, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

DefendantAppellant Jasaan Bastian pled guilty in the United States District Court for the Southern District of New York (Kenneth M. Karas, Judge ) to conspiracy to distribute crack in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and to using and possessing a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). He now appeals from his convictionfor the firearms offense, contending that the district court's acceptance of his plea based on the possession of a different weapon from the one identified by the grand jury constructively amended his indictment and that the district court's failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary guilty plea. Reviewing Bastian's unpreserved claims for plain error under Fed.R.Crim.P. 52(b), we conclude that Bastian has not established that his conviction on the basis of a different weapon plainly constituted a constructive amendment of his indictment. We therefore AFFIRM the judgment of the district court.

BACKGROUND

Between 2009 and 2011, Jasaan Bastian participated in a conspiracy to distribute crack cocaine in New York's Sullivan County. Over the course of the drug operation, Bastian distributed between 2.8 and 8 kilograms of crack cocaine. During one sale of 2.3 grams of crack on or around November 23, 2010, Bastian also sold one of his customers a .32 caliber revolver with three rounds of ammunition.

On May 16, 2012, a grand jury indicted Bastian on three counts relating to the trafficking ring. Count One charged Bastian with conspiring, between 2009 and December 2011, to distribute crack cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Count Two charged him with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Count Three charged him with using and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Specifically, that count charged that [b]etween in or about January 2011 and in or about April 2011,” Bastian did “in relation to ... the narcotics conspiracy alleged in Count One of this Indictment ... possess a firearm, to wit, an Excel .20 gauge shotgun.” 1

On October 12, 2012, Bastian pled guilty to Counts One and Three of the indictment before the Honorable George A. Yanthis, United States Magistrate Judge. With regard to Count Three, the prosecutor advised the court, without objection from the defense, that Bastian and the government had “conferred and agreed” that Bastian would plead guilty on the basis of his use and possession of a different weapon from the one specified in the indictment: specifically, a .32 caliber revolver. Bastian subsequently allocuted to the fact that he had possessed and sold the .32 caliber revolver to one of his customers in furtherance of his drug trafficking operation. Based on the proceeding, Judge Yanthis recommended that the district court accept Bastian's plea agreement and, in January 2013, Judge Karas adjudged Bastian guilty on both counts.

At no point before Judge Yanthis or Judge Karas did Bastian challenge the substitution of the .32 caliber revolver as the basis of his conviction under § 924(c)(1), nor did he otherwise challenge the sufficiency of his plea.

DISCUSSION

The Grand Jury Clause of the Fifth Amendment provides that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const. amend. V, cl. 1. Accordingly, no defendant in the federal courts may “be charged with a capital crime, or indeed with any felony,” unless the charge is first brought by a grand jury. Matthews v. United States, 622 F.3d 99, 101 (2d Cir.2010). An indictment satisfying the Fifth Amendment must fulfill two requirements: first, it must “contain[ ] the elements of the offense charged and fairly inform[ ] a defendant of the charge against which he must defend,” and second, it must “enable[ ] him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Rigas, 490 F.3d 208, 228 (2d Cir.2007), quoting United States v. Resendiz–Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). The right to indictment thus simultaneously protects a defendant's ability to prepare his defense and safeguards him from facing double jeopardy for a single crime. See United States v. Dupre, 462 F.3d 131, 140 (2d Cir.2006).

Bastian claims that, by convicting him of Count Three on the basis of a different weapon from that specified in his indictment, the district court constructively amended the grand jury's charges, violating the Grand Jury Clause and requiring a per se vacatur of his conviction. Alternatively, he argues that because he was neither informed of nor waived his right to a new indictment for the amended charge, his ensuing guilty plea was not knowing and voluntary under the law. The government responds first, that Bastian's guilty plea waived his challenges and, second, that Bastian's decision to plead guilty on the basis of a different weapon rendered any ensuing Fifth Amendment violation an “invited error” evading appellate review.

I. Waiver by Guilty Plea

A defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings.” United States v. Garcia, 339 F.3d 116, 117 (2d Cir.2003); accord United States v. Coffin, 76 F.3d 494, 496 (2d Cir.1996). A defect qualifies as jurisdictional only if it alleges that “the face of the [defendant's] indictment discloses that the count ... to which he pleaded guilty failed to charge a federal offense,” such that the district court “lacked the power to entertain the prosecution.” United States v. Kumar, 617 F.3d 612, 620 (2d Cir.2010) (internal quotation marks omitted).

As the language of the rule makes clear, a waiver by guilty plea extinguishes the defendant's rights to challenge only defects in a “prior stage of the proceedings against him.” United States ex rel. Glenn v. McMann, 349 F.2d 1018, 1019 (2d Cir.1965); see also Garcia, 339 F.3d at 117. It does not preclude him from challenging defects in the guilty plea itself, which, as the rule demands, must be “knowing and voluntary” to have preclusive effect. Coffin, 76 F.3d at 496. Before we consider a defendant's non-jurisdictional objections waived, therefore, we must conclude that the defendant “entered a valid plea” under Fed.R.Crim.P. 11. United States v. Calderon, 243 F.3d 587, 589 (2d Cir.2001).

Because Bastian was neither advised of nor waived his rights to a superseding indictment on Count Three, Bastian's claim that the substitution of the .32 caliber revolver as the basis of his § 924(c)(1) conviction constructively amended the grand jury's indictment directly challenges the validity of his ensuing guilty plea. As this Court has noted, absent a valid indictment charging a defendant with criminal conduct, a “waiver of indictment” is “a necessary prerequisite ... for entering a guilty plea” for a felony charge. United States v. Grandia, 18 F.3d 184, 187 (2d Cir.1994). The government suggests that Bastian's guilty plea itself served as an implicit waiver of his rights to a grand jury. Yet we have repeatedlyheld that “a guilty plea ... cannot serve as a waiver of indictment.” United States v. Cordoba–Murgas, 422 F.3d 65, 71 (2d Cir.2005); see also United States v. Tran, 234 F.3d 798, 806 (2d Cir.2000), overruled on other grounds by United States v. Thomas, 274 F.3d 655 (2d Cir.2001) ([P]leading guilty does not waive a defendant's right to indictment by a grand jury.”); United States v. Macklin, 523 F.2d 193, 196 (2d Cir.1975) (“While prosecution by indictment can be waived, the only waiver that could conceivably be found here is the plea of guilty.”) (citation omitted). As we have emphasized, the waiver of indictment is an act “deliberately clothed in formal procedure.” Macklin, 523 F.2d at 196. At the very least, it “must be made in open court,” after defendants have been “informed of the nature of and the cause for the accusation” and the court is “satisfied that [they] waive their rights knowingly, intelligently and voluntarily.” United States v. Ferguson, 758 F.2d 843, 850–51 (2d Cir.1985); see alsoFed.R.Crim.P. 7(b). While a panel of this Court once recognized an implicit waiver of the right to indictment where the defendants specifically requested the court to amend their charges and “displayed a lively cognition of their rights,” Ferguson, 758 F.2d at 851–52, the mere fact of a guilty plea does not obviate Fed.R.Crim.P. 7(b)'s procedural requirements.

Because Bastian's constructive amendment claim challenges the validity of his guilty plea, the plea does not preclude us from considering his appeal.

II. Invited Error

Alternatively, the government insists that, to the extent that Bastian's allocution to possessing the .32 caliber revolver...

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