Opinion
02 Cr. 756 (LMM).
September 6, 2006
MEMORANDUM AND ORDER
1.
The above defendant was charged in two counts of the tenth superseding indictment: (Count One) with conspiring, from at least in or about 1996 through in or about June 2002, to distribute and possess with intent to distribute 50 grams and more of "crack" cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A); and (Count Two) with using, carrying and brandishing a firearm, specifically, a .380 caliber semi-automatic handgun, in or about the summer of 1998, during and in relation to a drug-trafficking crime, specifically, the conspiracy charged in Count One, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii). After trial, the jury was unable to reach a verdict on either of these charges.
At trial, the Court reserved decision on defendant's motions pursuant to Fed.R.Crim.P. 29 for dismissal of Count Two, after the close of the government's evidence and the close of all the evidence, and defendant now renews those motions.
Defendant points out that "there was absolutely not one scintilla of proof or evidence that Mr. Rowe ever possessed or brandished a 380 caliber handgun at another person in or about July,1998 at location charged herein." (Def. Letter Mem. at 2.) The government does not really dispute this assertion, but says that it "presented proof that in or about September 2000, Cleon Rowe brandished a firearm and threatened a rival drug dealer. . . ." (Gov't Letter Mem. at 2; see id. at 4-5 for summary of, with citations to, evidence.) The government claims that a reasonable juror could have found on the evidence "that Cleon Rowe participated in the charged conspiracy . . .[,] that he possessed a firearm that was brandished, and that he did so during and in relation to the charged drug conspiracy." (Id. at 5.)
The indictment alleges that the conduct charged in Count Two took placein the summer of 1998, butdoes not specifythe month. CountTwo does not allege a location other than the Southern District of New York; defendant may have in mind Count One's overt act a, alleging that, in the summer of 1998, defendant possessed a firearm and threatened an individual in the vicinity of Vyse Avenue in the Bronx.
2.
It is certainly the case that "[w]here `on or about' language is used [as here in Count Two ("In or about the Summer of 1998 . . .")], the government is not required to prove the exact date, if a date reasonably near is established," and that "[t]his is especially true where, as here, the exact time of the offense is not an essential element of the offense charged." United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987) (citations omitted).
In United States v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir. 1994), the court concluded that "the date specified in the indictment was not a substantive element" of 18 U.S.C. § 924(c).
Here, the proof showed an offense at least two years later than that charged in the indictment. Is that "reasonably near"?Id.
That there was no evidence that the firearm allegedly brandished by defendant in September of 2000 was a .380 caliber semi-automatic handgun does not affect the necessary analysis.United States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992) (citing with approval United States v. Robison, 904 F.2d 365, 369 (6th Cir. 1990)); see also United States v. Salmonese, 352F.3d 608, 621 (2dCir. 2003) (citing Patino, 962 F.2d at 266, and Robison, 904 F.2dat 369).
In Nersesian, the variance in proof spanned less than two months: "the government's argument that the date of the actual transaction was possibly July or early August was not an improper material variance from the `on or about June 1984' date charged in the indictment." 824 F.2d at 1323. In United States v. Heimann, 705 F.2d 662 (2d Cir. 1983), the court found that "[s]ince the fraudulent scheme that the government proved against Heimann fell within the period charged in the indictment, we conclude that there was no fatal variance." 705 F.2d at 667. InUnited States v. Teague, 93 F.3d 81 (2d Cir. 1996), where the defendant was charged with possessing crack cocaine with intent to distribute "`on or about June 21, 1994,'" 93 F.3d at 83, proof of possession of crack cocaine on June 16, 1994 did not amount to a material variance.Id. at 83-84. Such variances are, plainly, "reasonably near" to the charged date. Nersesian, 824 F.2d at 1323. They do not approach the present two-year variance.
In United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998), where proof that a bribe was solicited in the months preceding April 1984 was offered in support of an indictment charging that the bribe was solicited in April 1985, Judge Easterbrook described the date in the indictment as a "blunder," and characterized the discrepancy between the proof and the indictment as "a classic variance, which does not change the nature of the crime alleged," and concluded that the variance was harmless. 159 F.3d at 1027.
However, "[a]lthough the evidence, and hence jury instructions, in a criminal trial are permitted to vary somewhat from the allegations of the indictment, in recognition of the inherent uncertainties of the trial process, there are limits to any permitted variance." United States v. Ross, 412 F.3d 771, 774 (7th Cir. 2005) (citations omitted). In Ross, the Seventh Circuit found a four-year discrepancy between evidence of the time of possession of a firearm by a felon and the date charged in the indictment required a remand for a new trial. 412 F.3d at 774-75.
In United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997), the defendant had been indicted for sexual abuse of a child between June and July 1992, but there was no evidence of abuse in that year. 112 F.3d at 990. There was testimony that abuse occurred in the child's 1994-1995 school year (introduced, it appears, to show the likelihood of the 1992 charged crime).Id. The Ninth Circuit agreed with the defendant's argument on appeal "that there was insufficient evidence to prove that he committed the crime charged on any date within or reasonably near the period charged in the indictment." Id.
The Court cannot consider a two year variance to be immaterial.
3.
The government argues alternatively, however, that the discrepancy of the evidence and the date alleged in the indictment is a variance which did not prejudice defendant, and so does not lead to a judgment of acquittal. "A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment." Dunn v. United States, 442 U.S. 100, 105 (1979). "[A] defendant must show prejudice in order to prevail on a variance claim." United States v. Frank, 156 F.3d 332, 337 n. 5 (2d Cir. 1998) (citing United States v. Zingaro, 858 F.2d 94, 98 (2d Cir. 1988)); see also United States v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003); United States v. McDermott, 245 F.3d 133, 139 (2d Cir. 1995). InTsinhnahijinnie, supra, the court noted that the defendant was in fact prejudiced by the variance. 112 F.3d at 991.
Under Fed.R.Crim.P. 52(a), any "variance which does not affect substantial rights should be disregarded." In United States v. Berger, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), the Supreme Court enunciated the two prong test to determine whether substantial rights had been affected. First, the accused must be definitely informed of the charges against him so that he might be able to present a defense without surprise by the evidence at trial. Second, substantial rights would be affected by a variance which would render the defendant susceptible to another prosecution for the same offense.United States v. Sindona, 636 F.2d 792, 798 (2d Cir. 1980). Defendant cannot satisfy this test. Since the first jury was unable to reach a verdict, he is now (whatever may have been the case at the first trial) able to present a defense without surprise, and he is not susceptible to another prosecution for the same offense. Where a defendant does establish that a variance has caused substantial prejudice, the relief to which he is entitled is a new trial, which, of course, is necessary here in any event because of the inability of the jury to reach a verdict. McDermott, 245 F.3d at 139-40.
Defendant, understandably, does not argue that the variance at issue was a constructive amendment of the indictment, "a per se violation of the grand jury clause." Frank, 156 F.3d at 337 n. 5 (citing Zingaro, 858 F.2d at 98). A constructive amendment occurs "if the prosecution's proof or theory constitute a modification at trial of an essential element of the offense charged." United States v. Weiss, 752 F.2d 777, 787 (2d Cir. 1985) (citations omitted); see also United States v. Ansaldi, 372 F.3d 118, 127 (2d Cir. 2004) (quoting United States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992)). As appears above, the date of the offense charged in Count Two is not an element of an 18 U.S.C. § 924(c) charge.
For the foregoing reasons, defendant's motion for judgment of acquittal on Count Two must be denied.
SO ORDERED.