Category: Grand Jury
In United States v. Dove, 14-1150-cr, the Second Circuit (Walker, Pooler, Chin) upheld a drug conspiracy conviction against claims that the government improperly shifted its case away from the broader conspiracy charge in the indictment. The defendant alleged that this amounted to a constructive amendment or a prejudicial variance, in violation of the Fifth Amendment Grand Jury Clause. The 2-1 decision, with Judge Chin dissenting, raises thorny questions about the evidence necessary to prove a defendant’s awareness of his role in a larger conspiracy and the government’s ability to thwart a lack-of-awareness defense through its selection of evidence at trial. Although the Court affirmed, the extended discussion and the dissent may be useful to future litigants who wish to invoke these defenses.
In United States v. Lee, 14-548, the Second Circuit (Kearse, Cabranes, Chin) held that the value of stolen property is an element of a felony offense under 18 U.S.C. § 641 and that, therefore, a grand jury indictment charging the defendant for a felony offense under that statute should have alleged the value of the property. Nevertheless, the Second Circuit concluded that the failure to do so in this case was harmless error and affirmed the defendant’s conviction. This case—which seems to be straight out of the files of the newest prosecutor in the SDNY General Crimes Unit—considers some weighty legal issues in the context of a straightforward offense.