United States v. Gonzalez

• Decision Date: 19 July 2012
• Docket Number: Docket No. 11–1490–cr.
• Citation: 686 F.3d 122
• Parties: UNITED STATES of America, Appellee, v. Omar GONZALEZ, a/k/a biotech research@ hush. com, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

686 F.3d 122

UNITED STATES of America, Appellee,

v.Omar GONZALEZ, a/k/a biotech research@ hush. com, Defendant–Appellant.

Docket No. 11–1490–cr.

United States Court of Appeals, Second Circuit.

Argued: April 20, 2012.

Decided: July 19, 2012.

Harris M. Fischman, Assistant United States Attorney, New York, NY (Preet Bharara, United States Attorney for the Southern District of New York, Aimee Hector, Justin S. Weddle, Assistant United States Attorneys, New York, NY, on the brief), for Appellee.

David A. Lewis, New York, NY (Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, on the brief), for Defendant–Appellant.

Before: JACOBS, Chief Judge, KEARSE and McLAUGHLIN, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Omar Gonzalez appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before Colleen McMahon, Judge, convicting him on one count of conspiracy to distribute and to possess with intent to distribute cocaine, heroin, ketamine, and morphine, in violation of 21 U.S.C. § 846 (Count 1), and three substantive counts, to wit, distribution and possession with intent to distribute cocaine (Count 2) and attempting to distribute and to possess with intent to distribute morphine (Count 3) and ketamine (Count 4), all in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). Gonzalez, a previously convicted felon, was sentenced principally to four concurrent terms of 120 months' imprisonment, the mandatory minimum provided by 21 U.S.C. §§ 846 and 841(b)(1)(B) for his conviction of conspiracy to traffic in 500 or more grams of a substance containing cocaine. On appeal, Gonzalez contends principally that the indictment under which he was convicted did not properly allege any quantified amount of cocaine and that he thus should have been sentenced under § 841(b)(1)(C), the penalty provision that does not depend on quantity and does not, except in circumstances not present here, provide a mandatory minimum prison term. Gonzalez also alleges that there were various errors in the conduct of the trial, and he requests a new trial in the event that he is not granted resentencing. For the reasons that follow, we conclude that Gonzalez is entitled to be resentenced under § 841(b)(1)(C).

I. BACKGROUND

Many of the facts are not in dispute. The present prosecution of Gonzalez began in February 2010 after he shipped 50 grams of cocaine to United States Drug Enforcement Administration (“DEA”) undercover Special Agent Neil Rubin and attempted to purchase ketamine and morphine from Rubin. The government's evidence at the November 15–19, 2010 trial included emails between Gonzalez and his narcotics suppliers or customers, as well as Rubin's testimony that Gonzalez sought to obtain morphine from Rubin in exchange for cocaine.

A. The Second Superseding Indictment

Count 1 of the initial four-count superseding indictment against Gonzalez charged him with conspiring, in violation of 21 U.S.C. § 846, to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1), and specified that “[t]he controlled substances involved in the offense were”—to the extent pertinent here—“mixtures and substances containing a detectable amount of cocaine in violation of Title 21, United States Code, Sections 812, 841(a)(1) and 841(b)(1)(C)” (First Superseding Indictment ¶ 3, filed Oct. 14, 2010). Two weeks later, a second superseding indictment was filed, which read exactly the same as its predecessor except that, in the paragraph of Count 1 referring to “a detectable amount of cocaine,” 841(b)(1)(C) was replaced by “841(b)(1)(B).” (Second Superseding Indictment ¶ 3, filed Oct. 28, 2010 (emphasis added).)

At Gonzalez's arraignment on the second superseding indictment, the Assistant United States Attorney (“AUSA”) stated that in that new indictment “[t]he only change is that in the conspiracy count, Count One, the cocaine object is now a (b)(1)(B), 500 grams or more. That is the only change.” (Arraignment Transcript, November 2, 2010 (“A.Tr.”), at 2.) The government also thereafter filed a “prior felony information” charging that Gonzalez had been convicted of three narcotics felonies in 2007.

Section 841(a)(1) of Title 21 makes it unlawful for a person knowingly or intentionally to, inter alia, distribute or possess with intent to distribute a controlled substance. Subsection (b)(1)(B) of § 841, to the extent pertinent here, provides that a person convicted of “a violation of [§ 841(a) ] involving ... 500 grams or more of a mixture or substance containing a detectable amount of ... cocaine”—if he or she has a prior conviction for a felony drug offense that has become final—“shall be sentenced to a term of imprisonment which may not be less than 10 years.” 21 U.S.C. § 841(b)(1)(B)(ii)(II). In contrast, subsection (b)(1)(C) of § 841 deals with indeterminate drug quantities; and unless death or serious bodily injury resulted from the use of the substance involved—which was not alleged or shown here—subsection (b)(1)(C) does not establish a minimum term of imprisonment. See id. § 841(b)(1)(C). Section 846 provides that “[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Id. § 846.

B. The Evidence at Trial

At trial, the government witnesses included Rubin, who testified to negotiations in which Gonzalez sought to buy ketamine and/or morphine in exchange for cash or cocaine. Gonzalez sought four kilograms of morphine and offered to pay Rubin 250 grams of cocaine per kilogram of morphine, i.e., one kilogram of cocaine. The government also introduced into evidence numerous emails sent from the address “biotech research@ hush. com”—which Gonzalezadmitted was his—through “Hushmail,” an encrypted email service provider that encoded email messages, permitting them to be accessed and read only by someone who had the encryption key. The emails introduced at trial by the government, decoded by Hushmail, included the following communications from Gonzalez:

• “Just got a nice shipment of Coke” willing to sell for “$50” per gram. (Government Exhibit (“GX”) 919.)

• “I have a new lot of ‘C’ ” acquired at a repeat-buyer “price break”; “I am passing that savings on to my customers” at “$825” per ounce. (GX 913.)

• “Sent 10g ket and 1.5g coke for you to test out.” (GX 912, at 1.)

• Responding to an email complaining that a shipment of “C” from which the customer's customer “ma[de] crack” was only “67% pure” (GX 724, at 2), Gonzalez rejected the complaint, stating, inter alia, “I myself have tested this cocaine” ( id. at 1).

• After receiving a request for prices “of C,” Gonzalez responded “1/2kg = $11,000” and “1kg = $20,000.” (GX 711.)

• “I will buy: Acetic anhydride from you first. That ok? $300 if you comply, I will buy KG of Coke. Ok?” (GX 928.)

• After receiving a request for prices of “your best H,” Gonzalez responded that “Heroin, Pure 99% uncut,” would be “8 ball = 3.5g for $1,500,” “1g = $600,” and “.5g = 350.” (GX 921.)

• “We have sold out on pretty much everything we still have: Morphine tablets 15mg $6.00ea [and] Heroin uncut 99% pure-$1/mg.” (GX 926.)

• “How much should I send you for 1kg cocaine or 1kg Heroin, shipped to Puerto Rico, USA?” (GX 927.)

The government also introduced FedEx shipment confirmations matching several of the shipments discussed in Gonzalez's emails.

Gonzalez testified in his own defense and essentially admitted his guilt on the substantive distribution and attempted distribution charges against him. ( See, e.g., Sentencing Transcript (“S.Tr.”) at 9 (“[Gonzalez's Attorney]: ... Mr. Gonzalez ... did accept responsibility for what he did. THE COURT: That's true. He got on the stand and admitted to Counts Two, Three and Four.”).) Gonzalez defended against the conspiracy count principally by testifying that, except for the 50 grams of cocaine he sent to Rubin, he had distributed only a sham substance, consisting principally of lidocaine, not cocaine.

C. The Objection to and the Sentence Under § 841(b)(1)(B)

On the second day of trial, Gonzalez's attorney, after receiving the government's proposed jury interrogatories with respect to Count 1, had objected to the court that trafficking in 500 or more grams of cocaine was not actually alleged in the second superseding indictment. Counsel pointed out that although that pleading cited 21 U.S.C. § 841(b)(1)(B), “[w]hat it doesn't say in this indictment is that there was over 500 grams of cocaine.” (Trial Transcript (“Tr.”) at 85.) He argued that, under Second Circuit case law, “drug quantity is an element” of the offense “that must always be pleaded and proved to a jury or admitted by [the] defendant” ( id. at 86 (emphasis added)) in order to support a conviction and sentence under § 841(b)(1)(B), and that “the fact that they say ( [b] )(1)(B) is ... not enough. They have to allege the amount” (Tr. 85 (emphasis added)).

The district court rejected Gonzalez's argument, stating that because § 841(b)(1)(B) was referred to in the text of Count 1, rather than merely in the parenthetical citation at the end of the textual allegations, drug quantity was sufficiently charged to permit Gonzalez to be convicted and sentenced under that section:

[w]hen the relevant statutory section (i.e., the one specifying drug quantity) is set forth in the text of the indictment, the drug quantity is sufficiently charged because the defendant is on notice from the text of the indictment that he is being charged with conspiring to possess and distribute a quantity of cocaine that qualifies him for enhanced sentencing.

In the indictment in this case the statutory section that references the 500 gram drug quantity is mentioned in the text of paragraph 3 of Count One of the indictment. That is, the...