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United States v. Cotchery

United States District Court, N.D. Alabama, Southern Division

July 19, 2019

UNITED STATES OF AMERICA,
v.
BOB COTCHERY, III, Defendant.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         In this criminal prosecution, the government charged Defendant Bob Cotchery, III with possessing 400 grams or more fentanyl with the intent to distribute it. For purposes of this opinion, everyone agrees that the evidence at trial was sufficient to show that Cotchery possessed some amount of fentanyl but insufficient to show that he possessed 400 grams or more of fentanyl.[1] At the government's request, the court instructed the jury that it could convict Cotchery if it found he possessed any amount of fentanyl with the intent to distribute it.

         Cotchery moved for a judgment of acquittal at trial on the ground that the court's instruction constructively amended the indictment, in violation of the Fifth Amendment. The question presented by his motion is whether a constructive amendment occurs when the government charges a particular drug quantity in a prosecution under 21 U.S.C. § 841 but the court permits the jury to convict based simply on its finding that the defendant possessed the drug in question-without finding that he possessed the amount charged in the indictment.

         As explained below, the court holds that no constructive amendment occurs under these circumstances so long as the defendant is sentenced under the statutory range authorized simply by the finding that the defendant possessed the drug in question-i.e., without regard to quantity. A constructive amendment of the indictment occurs when a trial court instructs a jury that it may find an element of the charged offense satisfied by a broader range of facts than the government has alleged in the indictment. But drug quantity under § 841 becomes an “element” of the offense for Fifth Amendment purposes only if a quantity finding actually increases the defendant's punishment-either by subjecting him to a mandatory minimum sentence he would not otherwise face or by increasing his sentence beyond the otherwise-applicable statutory maximum. Because the court will sentence Cotchery under § 841(b)(1)(C) -- the penalty provision that applies when a defendant simply possesses fentanyl with the intent to distribute it, without regard to quantity -- drug quantity is not (and will not become) an element of Cotchery's offense for constructive amendment purposes. For that reason, the court's jury instruction did not constructively amend the indictment, even though it broadened the possible drug quantities Cotchery could be convicted of possessing beyond the quantity charged in the indictment. Cotchery's motion for a judgment of acquittal is therefore due to be denied.

         I. Background

         Cotchery was indicted in May 2018 on one count of violating 21 U.S.C. § 841(a)(1). (Doc. # 1). The indictment specifically charged that Cotchery “did knowingly and intentionally possess with the intent to distribute 400 grams or more of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, more commonly known as ‘fentanyl,' a controlled substance.” (Id. at 1). The charge in the indictment can be more succinctly stated as follows: “Cotchery did knowingly and intentionally possess with the intent to distribute 400 grams or more of fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).”

         The indictment was based on the following events. In December 2017, Cotchery fled from police during a routine traffic stop, first in his car and then on foot. After apprehending Cotchery, police found a plastic bag containing an unknown substance under a nearby car. The evidence at trial, including testimony from an eyewitness bystander, showed that Cotchery hid the bag under the car before being apprehended by police. Investigators later determined that the substance in the bag contained fentanyl, a schedule I controlled substance.

         At trial, the government called Carissa Stark, a forensic chemist from the Drug Enforcement Administration. Stark testified that the total weight of the substance Cotchery allegedly possessed with the intent to distribute was approximately 498 grams. She also testified that, although the mixture definitely contained a detectable amount of fentanyl and caffeine, she could not testify to the weight or purity of either substance. There was no further evidence at trial concerning the amount of fentanyl Cotchery possessed.

         At the close of the prosecution's case, Cotchery moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. He argued that there was insufficient evidence from which a jury could find that he committed the crime charged in the indictment: possessing with the intent to distribute 400 grams or more of fentanyl. Specifically, he noted that Stark's testimony precluded any finding regarding the quantity of fentanyl contained in the 498-gram mixture he was alleged to have possessed, other than that he possessed some amount of fentanyl. And, Cotchery further argued, to permit the jury to convict him simply by finding that he possessed a detectable amount of fentanyl (without finding the quantity charged in the indictment) would be to constructively amend the indictment.

         The government responded by noting that the statute Cotchery was charged under only requires proof that he possessed 400 grams or more of a mixture or substance containing a detectable amount of fentanyl. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(vi). Specifically, § 841(a)(1) makes it unlawful to knowingly or intentionally possess with the intent to distribute “a controlled substance.” Section 841(b)(1)(A) then provides that in the case of a violation of § 841(a) involving “400 grams or more of a mixture or substance containing a detectable amount of [fentanyl]”[2] the offender “shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.” 21 U.S.C. § 841(b)(1)(A)(vi). Because the proof at trial was sufficient to show that Cotchery possessed 400 grams or more of a mixture or substance containing a detectable amount of fentanyl, the government argued, Cotchery's motion for judgment of acquittal was due to be denied.

         Pursuant to Rule 29(b), the court reserved decision on the motion and allowed the trial to proceed. Before the case was submitted to the jury, Cotchery again renewed his Rule 29 motion, and the court heard argument on the issue from both Cotchery and the government. A key disagreement between Cotchery and the government concerned the appropriate instructions to give the jury. Cotchery argued that, if the court sent the case to the jury at all, the court must instruct the jury that it could convict him only if it found beyond a reasonable doubt that he possessed with the intent to distribute 400 grams or more of fentanyl, as charged in the indictment. Cotchery maintained that to instruct the jury it could convict if it found he possessed “400 grams or more of a mixture or substance containing a detectable amount of [fentanyl], ” as § 841(b)(1)(A) permits, would constitute a constructive amendment of the indictment. The government conceded on the record that the evidence was insufficient to establish that Cotchery possessed 400 grams or more of fentanyl. But it argued the jury should be instructed based on the language of § 841(b)(1)(A) rather than the language of the indictment, and that the case should be submitted to the jury on that basis.

         While reserving decision on Cotchery's Rule 29 motion, and after making clear on the record the government's concession that it could not prove Cotchery possessed 400 grams or more of fentanyl, the court decided to submit the case to the jury using the government's preferred instruction.[3] The court instructed the jury that Cotchery could be found guilty only if the government proved beyond a reasonable doubt that he knowingly possessed a mixture or substance containing a detectable amount of fentanyl and intended to distribute the mixture or substance containing a detectable amount of fentanyl. If the jury found Cotchery guilty of that crime, a second question on the verdict form asked the jury to make a finding regarding the weight of the substance he possessed. Part two of the verdict form allowed the jury to choose between the following weights: (1) a mixture or substance containing a detectable amount of fentanyl weighing 400 grams or more or (2) a mixture or substance containing a detectable amount of fentanyl weighing less than 400 grams. (Doc. # 47). The court informed Cotchery's counsel that it would take his Rule 29 motion under advisement and issue a ruling after the jury returned its verdict.

         The jury found Cotchery guilty of possessing a detectable amount of fentanyl with the intent to distribute it. With respect to quantity, the jury found that Cotchery had possessed a mixture or substance containing a detectable amount of fentanyl weighing 400 grams or more. (Doc. # 47).

         The amount of fentanyl a person is charged with possessing under § 841 can have a tremendous impact on his sentence. Section 841(b) provides for three different levels of punishment for violations of § 841(a) involving fentanyl, depending on the amount involved. 21 U.S.C. § 841(b)(1)(A)-(C). If the crime involves 400 grams or more of a mixture or substance containing a detectable amount of fentanyl, the offender shall receive a prison sentence of 10 years to life. Id. § 841(b)(1)(A). If the crime involves 40 grams or more of a mixture or substance containing a detectable amount of fentanyl, the offender shall receive a prison sentence of 5 to 40 years. Id. § 841(b)(1)(B). And finally, if the crime involves “a controlled substance in schedule I or II” -- that is, any amount of fentanyl -- the offender shall receive a prison sentence of not more than 20 years. Id. § 841(b)(1)(C).

         There is no question the jury's finding in this case -- that Cotchery possessed with the intent to distribute 400 grams or more of a mixture or substance containing a detectable amount of fentanyl -- would ordinarily authorize a sentence under § 841(b)(1)(A) of 10 years to life. But the indictment did not charge that Cotchery possessed 400 grams or more of a mixture or substance containing a detectable amount of fentanyl. It instead charged that Cotchery possessed 400 grams or more of fentanyl. Thus, the question is whether the court constructively amended Cotchery's indictment by permitting the jury to convict him based simply on its finding that Cotchery possessed a detectable amount of fentanyl-without finding that he possessed 400 grams or more of fentanyl, as charged in the indictment.

         II. Analysis

         The court's analysis proceeds in three parts. First, the court explains that a trial court constructively amends an indictment in violation of the Fifth Amendment by instructing a jury that it may find an element of the charged offense satisfied by a broader range of facts than the government has alleged in the indictment. Second, the court explains when drug quantity becomes an element of an offense under 21 U.S.C. § 841 for Fifth Amendment purposes. Third and finally, the court explains that no constructive amendment occurred in this case, provided that Cotchery is sentenced under the penalty provision that applies when a defendant simply possesses fentanyl with the intent to distribute it, without regard to quantity.

         A. What Constitutes a Constructive Amendment of an Indictment

         The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .” U.S. Const. amend. V. That guarantee, the Supreme Court has long held, means that “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Stirone v. United States, 361 U.S. 212, 217 (1960) (citing Ex parte Bain, 121 U.S. 1 (1887)). Consequently, “after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Id. at 215-16.

         It has long been recognized that a trial court's admission of evidence and its jury instructions may constructively amend an indictment. Id. at 218-19; United States v. Weissman, 899 F.2d 1111, 1114 (11th Cir. 1990). A constructive amendment occurs “when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). Put differently, a court may not through its jury instructions alter an ...


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