US v. Dupree, Lewis et al, 2nd Cir., filed August Term: Failure of Indictment to Allege Drug Quantity, Admissibility of Other Bad Act Evidence.
Not a very helpful case for defendants charged with serious drug trafficking conspiracies, but important to know nonetheless. This case involved a long-running drug conspiracy that resulted in the death of a co-conspirator back in 1994. The main issues on appeal are the failure to allege drug quantity in the indictment, and admissibility of another drug conspiracy that occurred in Maryland some years before these events.
Defendants were charged with (1) killing and conspiring to kill a co-conspirator, Dawson, in 1994 while conspiring to distribute cocaine base in Staten Island (an offense punishable under 21 USC §§841(b)(1)(A) and 848 (e)(1)(A) (Counts One and Two); and (2) conspiring to distribute and possess with intent to distribute at least 280 grams of cocaine base in Staten Island from 2011 to 2013 in violation of 21 USC §§846 and 841(b)(1)(A)(iii) (Count Three). Of the 3 counts, counts One and Two did not allege drug quantity as it should have. “An indictment that does not set out all of the essential elements of the offense charged is defective.” United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012). Federal Rule of Criminal Procedure 7(c)(1) requires an indictment to contain both “a plain, concise, and definite written statement of the essential facts constituting the offense charged” and a citation to the “statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” The statements of essential facts and statutory citation are separate requirements, and a deficiency in the factual allegations cannot be cured by a statutory citation in the same account. Gonzalez, 686 F.3d at 128. An indictment charging an aggravated drug offense under 21 USC §841(b)(1)(A) “must always” include a factual allegations of the drug quantity as an essential element. The Court reviewed this claim under the plain error standard. Under the standard, the defendant is not entitled to relief unless there is (1) error that (2) is plain, and (3) affects his substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002). Here, the Court found that, under the plain error standard, defendants do not prevail because the district court judge repeatedly informed the jury that they had to find Defendants guilty of the conspiracy involving at least 280 grams of cocaine base. In fact, noting that the indictment was defective at the time of trial, the judge went out of his way to essentially fix the error when he became aware of it. So, no dice on this issue.
As to the 404(b) evidence, the other (really, really) “bad act” evidence: Rule 404(b) prohibits the admission of evidence of prior crimes, wrongs, or acts “to prove the defendant’s propensity to commit the crime charged.” United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999) (referring to Fed. R. Evid. 404(b)(1)). The rule does not bar admission if the evidence is used “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.” Fed. R. Evid. 404(b)(2). The Court noted its “inclusionary approach” that prior act evidence is admissible if offered ‘for any purpose other than to show the defendant’s criminal propensity.” United States v. Mejia, 545 F.3d 179, 206 (2d Cir. 2008) (quoting United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002).
“To determine if the court properly admitted prior at evidence pursuant to Rule 404(b) we consider whether: (1) The prior act evidence was offered for a proper purpose, (2) The evidence was relevant to a disputed issue; (3) The probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) The court administered inappropriate limiting instruction.”
Garcia, 291 F.3d at 136.
In this case, the district court allowed evidence of a prior drug conspiracy in Maryland from the early 1990’s to show that the brothers had a relationship that was beyond familial, and that they had worked in the drug trade together in the past. The court found the testimony was relevant to disputed issues as probative evidence of defendants’ knowledge, intent, and relationships to the charged conduct. Wow. It’s not often that I note that the law in South Carolina is better than the law in another jurisdiction, but this is one of those rare times. Thankfully in our state court, the rule is to closely monitor the admission of this kind of evidence because it’s so highly prejudicial. Anyway, an interesting case to be aware of.