United States v. D'Amelio
| Decision Date | 13 June 2012 |
| Docket Number | Docket No. 09–2541–cr. |
| Citation | 683 F.3d 412 |
| Parties | UNITED STATES of America, Appellant, v. Daniel D'AMELIO, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Jesse M. Furman (Randall W. Jackson on the brief), Assistant United States Attorneys, of counsel, for Preet Bharara, United States Attorney for the Southern District of New York, for Appellant.
Jonathan I. Edelstein, New York, NY, for Defendant–Appellee.
Before: RAGGI, HALL, and CHIN, Circuit Judges.
Appellant, the United States of America (the “government”), appeals from the June 1, 2009, amended decision of the Southern District of New York (McMahon, J.) that vacated Defendant–Appellee Daniel D'Amelio's conviction, after a jury trial, of one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), and granted his motion for a new trial under Fed.R.Crim.P. 33. The district court held that its jury instructions resulted in a constructive amendment of the indictment because the difference between the language of the “to wit” clause of the indictment, which charged D'Amelio with using the Internet as a facility of interstate commerce in committing the crime, and the jury instructions, which permitted proof of D'Amelio's use of the Internet and the telephone in committing the crime, altered an essential element of the charge to such an extent that it violated the Fifth Amendment's Grand Jury Clause. On appeal, the government argues that the district court erred because the deviation between the text of the indictment and the jury charge neither affected the “core of criminality” proven at trial nor modified an “essential element” of the crime, nor did it leave D'Amelio open to be charged again for the same offense. We agree with the government's contentions and therefore reverse the district court's decision and remand for further proceedings consistent with this opinion.
This case stems from contacts occurring online, on the telephone, and in person between D'Amelio, a 47–year–old architect and part-time screenwriter, and an individual with the online screen name “MaryinNYC1991” (“Mary”) during August and September of 2004. “Mary's” online profile indicated that she was a twelve-year-old girl, when in reality she was created by a team of New York City Police Department (“NYPD”) officers: Detective James Held posed as “Mary” during the Internet chats, and twenty-three-year-old Detective Anne Psomas posed as “Mary” during telephone conversations and in-person meetings with D'Amelio. The content of the Internet and in-person conversations between “Mary” and D'Amelio ranged from innocuous topics such as D'Amelio's work as a screenwriter to more suggestive topics such as “Mary's” sexual history and what D'Amelio enjoyed doing sexually with girls. The NYPD arrested D'Amelio as he left a New York City park with “Mary,” following their second meeting.
On June 15, 2007, a grand jury returned a one-count indictment charging D'Amelio with attempted enticement of a minor for the purpose of engaging in sexual activity, in violation of 18 U.S.C. § 2422(b). The indictment contains a single substantive paragraph, which reads as follows:
From on or about August of 2004, up to and including in or about September of 2004, in the Southern District of New York, DAN D'AMELIA [sic], a/k/a “Wamarchand@ aol. com,” the defendant, unlawfully, willfully, and knowingly, did use a facility and means of interstate commerce to persuade, induce, entice, and coerce an individual who had not attained the age of 18 years to engage in sexual activity for which a person can be charged with a criminal offense, and attempted to do so, to wit, D'AMELIA [sic] used a computer and the Internet to attempt to entice, induce, coerce, and persuade a minor to engage in sexual activity in violation of New York State laws.
J.A. 14 (emphasis added). In July 2007, eighteen months prior to trial, the government informed D'Amelio of its intention to introduce evidence of the telephone conversations between D'Amelio and “Mary.” The government subsequently provided D'Amelio with recordings of the telephone conversations and at trial introduced transcripts of the nine Internet chat sessions between D'Amelio and “Mary,” copies of the e-mails D'Amelio sent to “Mary,” and recordings of their six telephone calls and two meetings.
In response to the government's requested jury instructions, D'Amelio objected, inter alia, to any reference in the proposed instructions that he used a telephone to commit the offense. He asserted that the jury charge constituted an impermissible constructive amendment of the indictment, which only referred to his use of the Internet,1 particularly since the governmentdid not obtain “a general indictment encompassing all the methods of commission permitted by 18 U.S.C. § 2242(b).” J.A. 66. The court denied the motion, stating:
Both the internet and telephone are, of course, facilities of interstate commerce. The question is whether by including the to wit clause, the [government] limited itself to proving that the defendant is guilty of using only the facility of interstate commerce that is specified in the to wit clause, that being the internet, or whether ... the government can argue that more than one facility of interstate commerce was used.
I wish the government would leave the to wit clauses out of indictments, or would include, in the to wit clauses, everything of which it has evidence. And the government certainly knew that it had evidence of telephone conversations that were material to this case.
However, having read a number of cases ... I am convinced that this does not constitute a constructive amendment of the indictment, because the evidence that the government proposes to introduce at trial concerns the same course of conduct consisting of a series of conversations that were designed to cultivate a relationship, with, and ultimately to induce, a minor to come to a meeting for the purpose of having sex.
The court held that the government's reliance on communications over the telephone constituted, at most, a variance in the indictment, and that D'Amelio could not show prejudice because he had been aware for approximately eighteen months prior to trial that the government intended to introduce recordings of his and “Mary's” telephone conversations. Accordingly, the district court instructed the jury as follows:
The third element the government must prove beyond a reasonable doubt is that the defendant used a facility or means of interstate commerce in order to attempt to persuade, induce, or entice the person he believed to be a minor to engage in sexual activity. Both the telephone and the internet qualify as facilities or means of interstate commerce. Therefore, you must determine whether the government has proven beyond a reasonable doubt that a communication that constitutes an attempt to persuade, induce, or entice a person to commit a sexual act, was actually transmitted by means of a telephone, or the internet, or both.
Trial Tr. at 483. After two days of deliberations, the jury returned a guilty verdict.
Following his conviction, D'Amelio filed a motion for a judgment of acquittal or, in the alternative, a new trial pursuant to Fed.R.Crim.P. 29 and 33. D'Amelio reasserted his argument that, by charging the jury that the interstate commerce element of the offense could be satisfied by use of either the telephone or Internet, the district court constructively amended the indictment.
The district court denied D'Amelio's motion for a judgment of acquittal but reversed its earlier decision on whether the jury instructions constituted a constructive amendment to the indictment, and it granted his motion for a new trial. United States v. D'Amelio, 636 F.Supp.2d 234 (S.D.N.Y.2009). The court framed the issue as follows: if the charging terms in the indictment included the “to wit” clause, then the indictment was constructively amended because the jury instructions broadened the possible bases for conviction beyond that specifically identified in the indictment, i.e. using the Internet to entice a minor to engage in sexual activity. See id. at 240. If, on the other hand, the charging terms were limited to the generally framed statutory language regarding the use of a facility of interstate commerce, a constructive amendment would not exist because the telephone, like the Internet, is a means of interstate commerce. See id.
In its analysis, the district court found that the “core criminality” in this case consisted of “enticing a little girl (or a person the defendant believed was a little girl) into a position where she could become the victim of a sexual predator,” and that “[a]ll the communications relied on by the [g]overnment, whether e-mails or telephone calls, took place as part of a single course of conduct.” Id. at 243. The district court recognized that the telephone conversations would have been admitted into evidence at trial, whether the indictment had mentioned them or not, and noted that D'Amelio had not objected to their admission. See id.
But after analyzing the Second Circuit cases offered by both the government and D'Amelio, the district court determined that the indictment—“which charges the crime in narrow and specific terms rather than in broad general ones—was constructively amended by the [g]overnment's argument and by the [jury] charge,” id. at 245, and that the jury instructions “so altered an essential element of the charge that it is not certain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment,” id. The district court reached its conclusion “reluctantly,” acknowledging that the case law was not on “ ‘all fours' with the cases in which constructive amendments were found.” Id. at 245–46. The court added...
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