905 F.2d 677 (2nd Cir. 1990), 772, United States v. Campuzano
|Docket Nº:||772, 615, Dockets 89-1371, 89-1373.|
|Citation:||905 F.2d 677|
|Party Name:||UNITED STATES of America, Appellee, v. Dalmiro Eduardo CAMPUZANO and John Jario Rios, Defendants-Appellants.|
|Case Date:||June 11, 1990|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Feb. 15, 1990.
William F. Lally, Jr., Valatie, N.Y., for defendant-appellant Dalmiro Eduardo Campuzano.
Robert W. Linville, Albany, N.Y., for defendant-appellant John Jario Rios.
Barbara D. Cottrell, Asst. U.S. Atty. (Frederick J. Scullin, Jr., U.S. Atty., George A. Yanthis, Asst. U.S. Atty., N.D.N.Y., Albany, N.Y., of counsel), for appellee.
Before LUMBARD, CARDAMONE and WINTER, Circuit Judges.
WINTER, Circuit Judge:
Appellants Dalmiro Eduardo Campuzano and John Jario Rios appeal from their convictions by a jury in the Northern District of New York for conspiracy to distribute narcotics and from the sentences imposed by Judge Gagliardi. Rios and Campuzano challenge the jury instruction as to the elements of the crime charged and the district court's determination of the applicable base offense level under the Sentencing Guidelines. We affirm.
This case arose out of a narcotics conspiracy involving the two appellants and six co-defendants. Appellants and most of their co-defendants were employees at a hotel in Ellenville, New York. In the course of a money-laundering investigation, an undercover Customs Service agent went to work as a waitress at the hotel and discovered narcotics trafficking. The undercover waitress, together with an agent from the Drug Enforcement Administration posing as the waitress's cousin, arranged for two controlled purchases of cocaine from the traffickers. A purchase of one kilogram of cocaine was completed on October 26, 1988. A second purchase involving two kilograms of cocaine was completed on November 15. After the sales, the various defendants, including appellants, were arrested. A total of nearly five kilograms of cocaine was either purchased undercover or seized, and there was testimony at trial of other narcotics transactions.
A superseding indictment charged Rios and Campuzano with conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. Sec. 846 (1988). The jury convicted them on this count. The jury also answered special interrogatories submitted by the district court regarding the volume of cocaine involved in the conspiracy. In response to the interrogatory, "Was five kilograms (5,000 grams) or more involved?" the jury answered "No." The jury answered "Yes" to the interrogatory, "Was one-half kilogram (500 grams) or more but less than five kilograms (5,000 grams) involved?"
The district court sentenced both appellants to terms of seventy-two months. Appellants challenge their convictions and their sentences.
Appellants claim that the district court erred in its instructions regarding the narcotics conspiracy count because it did not require the jury to find that, as charged in the indictment, more than five kilograms of cocaine was involved. 1 Such a charge, they argue, amounted to an amendment of the indictment and failed to include an essential element of the offense. We disagree.
Neither appellant raised this issue at trial. 2 Nevertheless, we address it because a
failure to charge an essential element of the offense might constitute plain error under Fed.R.Crim.P. 52(b). See United States v. Golomb, 811 F.2d 787, 793 (2d Cir.1987); United States v. Walsh, 700 F.2d 846, 856 n. 6 (2d Cir.), cert. denied, 464 U.S. 825, 104 S.Ct. 96, 78 L.Ed.2d 102 (1983); see also United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985) (plain error should be found only where error would seriously affect fairness or integrity of proceedings).
Count I of the indictment charged the appellants with violating 21 U.S.C. Sec. 846 (1988) by conspiring to distribute "a quantity of cocaine in excess of five (5) kilograms in violation of Title 21, United States Code, Section 841(a)(1)." Section 841(a)(1) makes it unlawful to distribute a controlled substance, while Section 846 prohibits conspiracies to violate Section 841(a)(1). Although Section 841(b) was not referred to in the indictment, it is one source of the present dispute because it provides mandatory minimum penalties for violations of Section 841(a) that involve specified quantities of controlled substances. In particular, Section 841(b) requires a mandatory minimum sentence of ten years where more than five kilograms of cocaine are involved, see 21 U.S.C. Sec. 841(b)(1)(A)(ii) (1988), and of five years where more than five hundred grams of cocaine are involved, see 21 U.S.C. Sec. 841(b)(1)(B)(ii) (1988).
The district judge took the view that the jury could convict appellants for a conspiracy to violate Section 841(a)(1) without finding that a particular quantity of narcotics was involved, even though a particular quantity was mentioned in the indictment. He believed that the quantity issue was not for the jury because it "only goes to the penalty phase of the case and not to the question of guilt or innocence." He therefore charged the jury that it could convict on the conspiracy count if it found a conspiracy to distribute "a quantity" of cocaine. He also decided, however, that there would be "no harm" in getting a determination from the jury as to the precise quantity involved for purposes of enhancement and submitted the special interrogatories described above.
We agree with the view of the district court. Section 841(a) of Title 21 prohibits the distribution of any amount of cocaine and in no way requires proof of a particular quantity of narcotics as an element of the conspiracy to distribute. 3 When an indictment does allege that a particular quantity is involved, the effect is only to put the defendant on notice that the enhanced penalty provisions of Section 841(b) may apply. Because the quantity is relevant only to enhancement of the sentence, the government is not required to prove the quantity alleged, unless of course the specification of the particular quantity is somehow misleading to the defendant as to the conduct or transaction that is the basis of the charge. Appellants make no claim to having been so misled.
In so holding, we join a clear majority of circuits that have held that quantity is not an element of the crimes proscribed by Sections 841(a) and 846. See United States v. Brown, 887 F.2d 537, 540 (5th Cir.1989); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir.1989); United States v. Wood, 834 F.2d 1382, 1388 90 (8th Cir.1987); United States v. Gibbs, 813 F.2d 596, 599-600...
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