Opinion
02 cr. 407 (JGK)
May 12, 2003
OPINION AND ORDER
The defendant, Juan Miguel Cruz, pleaded guilty to the two counts in Indictment 02 Cr. 407 ("the Indictment") on July 19, 2002. The defendant now moves to plead guilty to an allegedly lesser included offense but states that he does not wish to withdraw his original plea and go to trial. The defendant also moves to dismiss the Indictment.
Count One of the Indictment charges the defendant and a co-defendant with conspiring in violation of Title 21 United States Code Section 846, to distribute and possess with intent to distribute 100 grams and more of a mixture and substance containing a detectable amount of heroin, in violation of Sections 812, 841(a)(1) and 841(b)(1)(B) of Title 21, United States Code. Count Two charges the defendants with the substantive offense of distribution and possession with intent to distribute approximately 106 grams and more of a mixture and substance containing a detectable amount of heroin, in violation of Title 21, United States Code, Sections 812, 841(a)(1), and 841(b)(1)(B), and Title 18, United States Code, Section 2. At his plea on July 19, 2002, the defendant pleaded guilty to both counts of the Indictment without a plea agreement. The Government submitted a letter pursuant to United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), in which the Government explained that its view was that the Sentencing Guideline range for the defendant was sixty to seventy-one months.
After placing the defendant under oath, the Court asked Cruz a series of questions that confirmed that the defendant was competent to enter a plea and was satisfied with the representation of his attorney, Mr. Smith; that the defendant had reviewed and understood the Pimentel letter and the charges contained in the Indictment; that the defendant understood the Government's burden should he choose to go to trial; that the defendant understood all of his rights and was waiving them and that he was knowingly and intentionally entering a plea of guilty; and that the defendant was aware of the maximum and minimum sentences he raced pursuant to the Sentencing Guidelines. The defendant's allocution included the following exchange:
Court: All right. Mr. Cruz, tell me in your own words what you did in connection with the crimes to which you are entering the plea of guilty.
Defendant: Because I am guilty.
Court: What did you do?
Defendant: I took drugs where I shouldn't.
Court: Where did you take the drugs?
Defendant: To a restaurant on 190th.
Court: Is that 190th Street in the Bronx?
Defendant: Yes, and University Avenue.
Court: All right. Did you do this on about, March 27th, 2002?
Defendant: Yes.
Court: Did you agree with someone else to do this?
Defendant: It was given to me, and said go to that restaurant and wait there for me.
Court: And did you agree with this other person that you would take the drugs and go to the restaurant?
Defendant: Yes. Because it was in a little bag, but I knew that it was drugs afterwards when I — when he gave it to me.
Court: Were you intending to give those drugs to someone else then?
Defendant: Yes, to Renee.
Court: Do you know that the amount of drugs in the bag was in excess of 100 grams of mixtures and substances containing heroin?
Defendant: Yes, 106 grams.
Court: When you did these acts, did you know that what you were doing was wrong and illegal?
Defendant: I knew it, but he told me that he would give me something.
Court: Give you some money?
Defendant: Yes.
(Transcript of Hearing dated July 19, 2002 ("July 19, 2002 Tr.") at 19-20 attached as Ex. A to letter from Assistant United States Attorney Robin A. Linsenmayer to the Court dated Apr. 16, 2003 ("Gov. Apr. 16, 2003 Letter").) Based on the defendant's allocution and because the Court found that the defendant knew his rights and was waiving them knowingly and voluntarily, and because there was an independent basis in fact for the plea, the Court accepted the defendant's guilty plea and adjudged him guilty of the offenses to which he had pleaded. (July 19, 2002 Tr. at 23.)
On February 11, 2003, the date fixed for sentence, defense counsel raised concerns for the first time about the amount of drugs recovered from the defendant at the time of his arrest and asked for "some more inquiry on that issue" based on the fact that the total weight of 101.1 grams was close to the 100 grams necessary to constitute a violation of 21 U.S.C. § 841 (b)(1)(B) to which the defendant had pleaded guilty. (Transcript of Hearing dated Feb. 11, 2003 at 3-4 attached as Ex. B to Gov. Apr. 16, 2003 Letter.) The Court granted the request and held aFatico hearing concerning the weight of the drugs on March 14, 2003.
The defendant also moved for a downward departure from his Guideline sentence based on age, health condition, and family circumstances. The Government opposed the motion on the ground that the defendant was statutorily barred from receiving a sentence below the statutory mandatory minimum of sixty months pursuant to 21 U.S.C. § 841 (b)(1)(B) because the defendant had not provided substantial assistance to the Government, pursuant to 18 U.S.C. § 3553 (e), and did not qualify for relief under the "safety valve" provision in 18 U.S.C. § 3553 (f), the only bases for a downward departure below the mandatory statutory minimum sentence. See United States v. Medley, 313 F.3d 745 (2d Cir. 2002). After defense counsel was advised of the Court of Appeals' decision in Medley and reviewed that decision, the defendant, through counsel, withdrew his motion for a downward departure in a letter to the Court dated March 10, 2003.
At the hearing the Government called a single witness, forensic chemist Carolyn R. Roche of the Drug Enforcement Agency's ("DEA") northeast regional lab. (Transcript of Hearing dated Mar. 14, 2003 ("Mar. 14, 2003 Tr.") at 4.) Roche's responsibilities included analyzing evidence to determine if it contained controlled substances, and she did so for the three narcotic exhibits offered by the Government. (Mar. 14, 2003 Tr. at 3, 7.) These exhibits were two quantities of heroin seized from the defendant at the time of his arrest on March 27, 2002 (Exhibits 2 and 3), and one sample of heroin provided by the co-defendant to a confidential source with the DEA on the previous day (Exhibit 1). Roche testified that Exhibit 1 comprised .74 grams (net weight) of heroin hydrochloride with a mixture of the adulterants lidocaine and procaine, which, Roche explained, can mimic the effect of heroin or have other effects on the body. (Mar. 14, 2003 Tr. at 11, 13, 22-23.) Net weight is the weight of the sample without the packaging. (March 14, 2003 Tr. at 6.) Exhibit 2, Roche testified, contained 23.2 grams (net weight) of heroin hydrochloride with a mixture of procaine and lidocaine. (Mar. 14, 2003 Tr. at 11-12.) Finally, Exhibit 3, which forms the basis for the defendant's motions, comprised 77.9 grams of heroin (net weight), 47 percent of which was heroin hydrochloride and the rest of which was sugars or other unidentified impurities that have no effect on the body. (Mar. 14, 2003 Tr. at 12-13, 23-26, 39.) Roche testified that such impurities are used to "bulk up" the sample but did not include any packaging or other objects. (Mar. 14, 2003 Tr. at 26.)
The transcript appears to be inaccurate as to Roche's testimony about the amount of heroin in Exhibit 2, and the Government's statement at page 11, that the weight was 23.2 grams, not the 2.2 grams recorded by the reporter, is correct. See Exhibit 3501-G.
The defendant argues that because the 77.9 grams of heroin in Exhibit 3 was only 47 percent pure the amount of drugs recovered from the defendant could not have met or exceeded 100 grams and he could not be guilty of violating 21 U.S.C. § 841 (b)(1)(B) as charged in the Indictment and to which he pleaded guilty. However, "the weight of the mixture is determined without regard to the drug's purity", United States v. Stephenson, 183 F.3d 110, 118-19 (2d Cir. 1999), and thus refers to the entire weight of the mixture or substance, including any impurities. Id. at 119 (citing U.S.S.G. § 2D.1.1(c), Note A to Drug Quantity Table). The Guidelines make no distinction between cutting agents and dilutants that bulk up the substance so long as the heroin is part of the mixture or substance. In Stephenson, the Court of Appeals found that the caffeine in the mixture should be included in the weight of the mixture containing narcotics. Id. at 118-19. The results of the Fatico hearing were not "astounding", as defense counsel contends, and in fact confirmed the charges in the Indictment that the defendant conspired to possess with the intent to distribute and did in fact possess with the intent to distribute in excess of 100 grams of mixtures and substances containing a detectable amount of heroin.
The defendant now moves to "replead" to the lesser included offenses of conspiring to violate 21 U.S.C. § 841 (b)(1)(C) and committing the substantive offense of violating that statute. While 21 U.S.C. § 841 (b)(1)(B) requires that the amount of the mixture or substance containing a detectable amount of heroin be at least 100 grams, 21 U.S.C. § 841 (b)(1)(C) contains no such minimum requirement. Defense counsel contends that the defendant possessed substantially less than 100 grams of heroin at the time of his arrest, based on the impurities in Exhibit 3, and that Cruz did not know the weight of the heroin but allocuted to possessing 106 grams of the drug solely because that was the amount charged in the Indictment. The defendant repeatedly emphasizes, however, that he does not wish to withdraw his earlier plea and go to trial. The Court reiterates that the defendant could move to withdraw his plea of guilty and go to trial, in which case the Court would consider the motion and, if granted, the Government would have to prove to a jury the elements of 21 U.S.C. § 841 (b)(1)(B) as charged in the Indictment.
There is no procedure for the defendant to plead to a lesser included offense with which he is not charged and ignore the charge in the Indictment as though it did not exist. Cf. United States v. Doe, 297 F.3d 76, 89 (2d Cir. 2002) (defendant "is not entitled to plead guilty to an indictment charging a violation of Sections 841(b)(1)(A) and 841(b)(1)(B) and then be sentenced under Section 841(b)(1)(C), as he would have been if a jury had decided the drug quantity issue in his favor") (quoting United States v. Yu, 285 F.3d 192, 198 (2d Cir. 2002)). The Indictment charges the defendant with conspiring to violate 21 U.S.C. § 841 (b)(1)(B) and with a substantive violation of that statute. The Indictment charged the amount of the drugs necessary for that statutory violation and the defendant admitted to that amount of drugs at his plea allocution. While the defendant wishes to plead to a lesser amount of drugs, and avoid the mandatory minimum provision of 21 U.S.C. § 841 (b)(1)(B), that is precisely the statutory violation with which he was charged and to which he pleaded. The Government is not required to abandon the statutory charge and acquiesce to the defendant's wish to plead to a violation of 21 U.S.C. § 841 (b)(1)(C), and the Government does not in this case agree to abandon the charges in the Indictment that the defendant conspired to violate 21 U.S.C. § 841 (b)(1)(B) and did in fact violate that statute. The defendant suggests no authority, and the Court knows of none, allowing the defendant to plead to a lesser offense and requiring the Government to abandon the charges in the Indictment. Moreover, the defendant has made it clear repeatedly that if the Court does not allow him to plead to the lesser charge, and presumably dismiss the charges in the Indictment as pleaded, he does not wish to face the consequences of simply withdrawing his plea of guilty and going to trial on the charges in the Indictment. The Court of course will not compel the defendant to withdraw his plea of guilty.
The defendant also moves to dismiss the Indictment on the ground that the evidence presented at the Fatico hearing does not support the allegation that the defendant conspired to distribute and posses with intent to distribute, and did in fact possess, 100 grams and more of mixtures and substances containing an detectable amount of heroin. However, it is well established that an indictment that is valid on its face, as is the Indictment in this case, may not be dismissed on the ground that it is based on inadequate or insufficient evidence. See United States v. Williams, 504 U.S. 36, 54 (1992); United States v. Calandra, 414 U.S. 338, 345 (1974); United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989). Such a challenge to the sufficiency of the evidence does not provide a basis for dismissal because the Government is not required to demonstrate the sufficiency of its proof until the close of its case-in-chief at trial. See United States v. Elson, 968 F. Supp. 900, 905 (S.D.N.Y. 1997); United States v. Gambino, 809 F. Supp. 1061, 1079 (S.D.N.Y. 1992); United States v. Marchese, No. S7 89 Cr. 229, 1991 WL 60338, at *2 (S.D.N.Y. Apr. 11, 1991). If the defendant wishes to challenge the facts alleged in the Indictment he could have done so at trial. The motion to dismiss the Indictment is therefore denied. It should also be noted in this case that the entire thrust of the defendant's argument is misplaced because the evidence at the Fatico hearing amply supported the Government's case. If the defendant had any doubt about that he could have sought to withdraw his plea of guilty and go to trial. He has emphatically rejected that possibility.
Finally, defense counsel argues that sentencing the defendant under 21 U.S.C. § 841 (b)(1)(B) would constitute a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), because the amount of mixture or substance containing a detectable amount of heroin has not been proven to a jury or to the Court as factfinder to meet or exceed 100 grams beyond a reasonable doubt. In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490; see United States v. Thomas, 274 F.3d 655, 673 (2d Cir. 2001) (en banc) ("AfterApprendi, drug type and quantity are elements of the offense under 21 U.S.C. § 841 that must be charged in the indictment and submitted to the jury for its finding beyond a reasonable doubt" when they raise a potential penalty above the otherwise applicable statutory maximum). Under 21 U.S.C. § 841 (b)(1)(B) the defendant faces a minimum sentence of five years' imprisonment and a maximum of forty years. The defendant argues that because Section 841(b)(1)(B) contains a mandatory minimum sentence, Apprendi applies and the amount of drugs charged in the Indictment must be proved beyond a reasonable doubt to the finder of fact, in this case, the Court.
The defendant's argument misconstrues Apprendi. The existence of a statutory mandatory minimum sentence does not trigger the Apprendi requirements. See United States v. Martino, 294 F.3d 346, (2d Cir. 2002) ("Apprendi is inapplicable to Guidelines calculations that do not result in a sentence on a single count above the statutory maximum for that count.") (quoting United States v. McLeod, 251 F.3d 78, 82 (2d Cir.),cert. denied, 534 U.S. 935 (2001)); see also United States v. Luciano, 311 F.3d 146, 151 (2d Cir. 2002) (noting that Apprendi explicitly declined to overrule the holding in McMillan v. Pennsylvania, 477 U.S. 79, 84-90 (1986), that factual findings triggering the imposition of a mandatory minimum sentence need not be determined by a jury). InLuciano, the Court of Appeals rejected an argument that the twenty year mandatory minimum provision of 21 U.S.C. § 841 (b)(1)(A) could not be imposed because it was based on a finding of drug quantity that was made by the court at a sentencing hearing rather than by the jury at trial. The Court of Appeals noted that the 240 month mandatory minimum was well within the statutory maximum of 21 U.S.C. § 841 (b)(1)(C) which applies when a specific amount of drugs is not charged and proven. That section provides for a maximum sentence of 240 months or, as was the case in Luciano and in this case, 360 months, if the defendant has previously been convicted of a felony drug offense. Because Apprendi is a limit on sentencing a defendant above a statutory maximum, it does not apply to the facts that are required to find the requirements for a mandatory minimum sentence. See Luciano, 311 F.3d at 151-152. In this case, the Sentencing Guideline Range determined by the Probation Department is sixty to seventy-one months and the sentence imposed in this case will be substantially less than the statutory maximum sentence that could be imposed even if no specific quantity of drugs were proved under 21 U.S.C. § 841 (b)(1)(C). Thus, the defendant's argument underApprendi is without merit.
CONCLUSION
For the reasons explained the motions to replead and to dismiss the Indictment are denied.