United States v. Taylor

• Decision Date: 02 March 2016
• Docket Number: No. 14–360–CR.,14–360–CR.
• Citation: 816 F.3d 12
• Parties: UNITED STATES of America, Appellee, v. Dewey TAYLOR, aka Road Rash, Defendant–Appellant, John Smith, aka Kazoo, Ricky Allen, Terrance Hall, aka Bam, Johnnie Gibson, aka Goldie, Willia Szymanski, Emanuel E. Bell, Jeffery Achatz, Dale Lockwood, Anthony Burley, Frank Owens, Van Miller, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

816 F.3d 12

UNITED STATES of America, Appellee,
v.
Dewey TAYLOR, aka Road Rash, Defendant–Appellant,

John Smith, aka Kazoo, Ricky Allen, Terrance Hall, aka Bam, Johnnie Gibson, aka Goldie, Willia Szymanski, Emanuel E. Bell, Jeffery Achatz, Dale Lockwood, Anthony Burley, Frank Owens, Van Miller, Defendants.^*

No. 14–360–CR.

United States Court of Appeals, Second Circuit.

Argued: May 29, 2015.
Decided: March 2, 2016.

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Lawrence D. Gerzog, New York, NY, for Defendant–Appellant.

Joseph J. Karaszewski, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

Before: POOLER, LOHIER, and DRONEY, Circuit Judges.

DRONEY, Circuit Judge:

Defendant–Appellant Dewey Taylor appeals from a judgment entered in the United States District Court for the Western District of New York (Arcara, J. ), following a jury trial, convicting him of one count of conspiracy to distribute or possess with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and seven counts of transaction structuring for the purpose of evading currency reporting requirements in violation of 31 U.S.C. § 5324(a)(1)and (a)(3).

Taylor argues that his conviction for the cocaine conspiracy must be vacated because it constituted a constructive amendment of the indictment, which charged a conspiracy involving a larger amount—five kilograms or more—of cocaine. Taylor also argues that there was insufficient evidence to allow a jury to reasonably infer an intent to evade the currency reporting requirements because the evidence did not establish a pattern of structured transactions sufficient to indicate that intent.

We AFFIRM the judgment of conviction as to the cocaine conspiracy count, but REVERSE as to the transaction structuring counts, and REMAND for resentencing.

BACKGROUND

Taylor was a member of the Afro Dogs Motorcycle Club, a national motorcycle and social club. Taylor, along with his codefendants John Smith and Ricky Allen, held various leadership positions in the Buffalo, New York chapter of the club.

In the fall of 2009, the Government began investigating Smith for his suspected involvement in trafficking cocaine, setting up a series of controlled buys at Smith's residence and the Afro Dogs' Buffalo clubhouse after a cocaine dealer was arrested

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and informed the police that Smith was his supplier of cocaine. The Government presented evidence at trial that Smith regularly packaged and stored cocaine in Allen's house, where Smith also counted and stored cash ranging in amounts from $40,000 to more than $100,000.

The Government also presented evidence of Taylor's involvement in the drug operation. At Smith's request, Taylor delivered to Allen's house a package that contained a kilogram of powder cocaine and crack cocaine. Taylor stored the package in Allen's basement. On two or three other occasions, Taylor helped Smith count money from drug proceeds in Allen's kitchen.

Taylor was charged, along with Smith, Allen, and nine others, in a November 2010 indictment with conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.¹ Taylor alone was charged with thirteen counts of transaction structuring for the purpose of evading currency reporting requirements under 31 U.S.C. §§ 5313(a), 5324(a)(1), and 5324(a)(3).

At the defendants' trial, the Government called seventeen witnesses, including Allen, to testify about the drug conspiracy. Allen had pled guilty and was a cooperating witness for the Government. The Government also presented evidence of the drug conspiracy obtained through wiretaps authorized on Smith's phones, including conversations between Smith and Taylor. Taylor called no witnesses.

In support of the structuring counts, the Government called two witnesses and introduced Taylor's credit union records.

Following the close of evidence, Taylor moved pursuant to Federal Rule of Criminal Procedure 29(a)for a judgment of acquittal on the drug conspiracy count as well as the structuring counts. The Government moved to dismiss six of the structuring counts, as it conceded it had presented no evidence as to those counts. The court granted the Government's motion as to those six counts and denied Taylor's motion as to the drug conspiracy count and the remaining seven structuring counts.²

The jury convicted Taylor of the drug conspiracy count for the amount of 500 grams or more of cocaine and of all seven structuring counts.³ The court sentenced Taylor to 144 months' imprisonment on the drug conspiracy count and to sixty months' imprisonment on each of the transaction structuring counts, to be served concurrently with one another and with the 144 month sentence on the drug conspiracy count.

DISCUSSION

I. Constructive Amendment of the Drug Conspiracy Count

The district court instructed the jury that to prove the drug conspiracy charge

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against Taylor, the Government must establish beyond a reasonable doubt the following elements: (1) "that two or more persons entered into an unlawful agreement charged in the indictment," and (2) that Taylor "knowingly became a member of the conspiracy." App. 101. As to the quantity of drugs involved in the conspiracy, the court instructed the jury as follows:

If you find that the Government has proven beyond a reasonable doubt the two elements [of conspiracy] that I have just described, then there is one more issue that you must decide. I will provide you with a special verdict form asking you to fill in the type and amount of drugs that the defendants conspired to possess with intent to distribute. The burden is on the Government to establish the type and amount of drugs beyond a reasonable doubt.

App. 106–07. This portion of the charge was based on the proposed jury instructions of the Government and two of Taylor's co–defendants, which Taylor adopted.

The district court also instructed the jury that:

[C]ount one charges the defendant with a conspiracy to distribute and to possess with the intent to distribute five kilograms or more of a mixture or substance containing cocaine. Now, there's a verdict sheet ... which will be given to you and will require you to specify, in the event of a guilty verdict on count one, whether the conspiracy proven involved cocaine. You must then unanimously agree upon which controlled substance or substances were involved in the conspiracy.

You must also determine the weight of the controlled substances involved in the conspiracy. And I'll go over that verdict sheet with you in a few minutes. Specifically, should you determine that the conspiracy charged in count one involved a mixture or substance containing cocaine, you must determine whether the weight of that mixture or substance was five kilograms or more, or if it was 500 grams or more, or if it was less than 500 grams.⁴

App. 114–15. Taylor's counsel did not object to this portion of the charge or the special verdict form.

The jury found Taylor guilty of "conspir[acy] to possess with intent to distribute and to distribute a mixture or substance containing cocaine." App. 127. As to the quantity options, the jury determined the amount of cocaine to be "500 grams or more." District Ct. Docket No. 237, at 2.

Taylor argues that this conviction based on an amount of cocaine less than that charged in the indictment constituted an unlawful constructive amendment of the indictment.⁵

An indictment has been constructively amended "[w]hen the trial evidence or the jury charge operates to broaden[ ] the possible bases for conviction from that which appeared in the indictment." United States v. Rigas, 490 F.3d 208, 225 (2d Cir.2007)(alterations in original) (quoting United States v. Milstein, 401 F.3d 53, 65 (2d Cir.2005)). Constructive amendment is "a per se violation" of the Fifth Amendment's Grand Jury Clause, "sufficient to secure relief without any showing of prejudice."

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United States v. Agrawal, 726 F.3d 235, 259–60 (2d Cir.2013). Nevertheless, "this court has proceeded cautiously in identifying such error, 'consistently permitt[ing] significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.' " Id. at 260(alteration in original) (quoting United States v. D'Amelio, 683 F.3d 412, 417 (2d Cir.2012)).

"To prevail on a constructive amendment claim, a defendant must demonstrate that 'the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.' " D'Amelio, 683 F.3d at 416(quoting United States v. Mollica, 849 F.2d 723, 729 (2d Cir.1988)). This Court generally reviews a...