Court: Court of Appeals for the Second Circuit; September 18, 1997; Federal Appellate Court
Kenneth Wozniak appeals his conviction from the United States District Court for the Western District of New York, where he was found guilty of conspiracy to possess with intent to distribute cocaine and methamphetamine, possession with intent to distribute cocaine, and using a communication device to facilitate drug distribution. The grand jury indictment specifically charged him with these offenses under 21 U.S.C. §§ 841(a)(1), 846, and 843(b). During the trial, while some evidence presented was related to cocaine, the majority involved marijuana distribution. The trial court permitted the jury to convict based on marijuana transactions, despite the indictment only alleging cocaine and methamphetamine crimes. Wozniak argues that this constituted a constructive amendment of the indictment, which is impermissible. The Court of Appeals agreed with Wozniak’s argument, vacating his conviction and remanding the case for a new trial if the government chooses to reprosecute. The background includes a lengthy, multi-defendant indictment detailing a conspiracy involving various controlled substances, with Wozniak’s co-defendants pleading guilty prior to his trial. Evidence against him was largely based on monitored communications indicating his involvement with the distribution of marijuana.
Several unindicted co-conspirators provided testimony regarding Wozniak's involvement in marijuana-related activities. Glenn Wolffe, who has known Wozniak since 1987 through John Sacco, claimed Wozniak operated a security company that offered anti-surveillance services to Sacco and other conspiracy members. These services included searching for law enforcement listening devices in their homes and phones. Wolffe also recounted instances of Wozniak smoking marijuana at Sacco's residence and during a trip to Detroit in 1988. He testified that in 1991, he witnessed a transaction where Anthony Santa Maria supplied Wozniak with approximately one pound of marijuana, during which Wozniak mentioned having access to a boat for transporting marijuana from Canada. Furthermore, Wolffe recalled an occasion where Sacco handed Wozniak a substantial amount of cash, typical of their drug operation's proceeds.
In contrast, Santa Maria claimed he never provided Wozniak with a pound of marijuana but did share smaller amounts for personal use. The government’s evidence regarding Wozniak's cocaine involvement relied on Vincent Petrinec's testimony, who stated he sold cocaine to Wozniak and Brian Karas at a clubhouse, indicating it was for personal use. The government did not present any evidence about Wozniak's involvement with methamphetamine.
Wozniak sought to strike all marijuana-related testimony, arguing it was irrelevant since he was not indicted for those charges, but the court denied this motion. During his testimony, Wozniak claimed a conversation recorded in 1991 was about fish, supported by multiple witnesses including his wife, and asserted he had not smoked marijuana since the early 1970s.
In rebuttal, Joseph Orcutt testified that he and Wozniak had smoked marijuana together and that he provided Wozniak with a thirty-pound bale of marijuana in 1989, which was before the alleged conspiracy and could only be used for impeachment purposes. Wozniak requested the court to dismiss the indictment based on the government's focus on marijuana conspiracy evidence, arguing it led to an unconstitutional amendment of the indictment. The court denied this request, viewing the differences between the indictment and trial evidence as immaterial. Both parties' jury instructions were then considered by the court.
The government contended that the specific controlled substance involved in a narcotics conspiracy is not essential for conviction, and the district court supported this by instructing the jury that it could convict Wozniak based on any controlled substance, even if different from what the indictment specified. The jury found Wozniak guilty on all counts except one related to communication facilities, leading to a thirty-month prison sentence. On appeal, Wozniak argued that allowing a conviction based on marijuana transactions, despite the indictment specifying only cocaine and methamphetamine, constituted an unconstitutional constructive amendment of the indictment. The court agreed, emphasizing that the Fifth Amendment guarantees a defendant's right to be tried only on charges presented by a grand jury. A constructive amendment occurs when evidence and jury instructions alter the essential elements of the charged offense, which can lead to conviction for an offense not indicted. Such amendments are per se violations of the Grand Jury Clause and require reversal without needing to show prejudice. Although some flexibility in proof is allowed, Wozniak argued that the prosecution's reliance on marijuana evidence fundamentally changed the case's theory, depriving him of notice regarding the core criminality he needed to defend against. The court's agreement was limited to the unique facts of this case.
A lengthy investigation into the Rare Breed motorcycle clubhouse led to multiple indictments, including one for cocaine and methamphetamine, under which Wozniak was charged, and a separate indictment for a marijuana distribution conspiracy. The government opted not to charge Wozniak under the marijuana indictment, limiting charges to cocaine and methamphetamine offenses. The indictment specifically named these substances, preventing a general conviction that could have included marijuana. The Supreme Court clarified that a general indictment could support a conviction on alternative bases, as seen in Stirone v. United States, where a conviction was reversed because the defendant was potentially convicted on a charge not presented to the grand jury. If Wozniak had known the government might rely on marijuana evidence for conviction, he might have altered his trial strategy, potentially avoiding the damaging testimony from a witness who contradicted his claims about marijuana use and possession.
The government argues that the specific controlled substance involved in a narcotics conspiracy is not a material element under 21 U.S.C. § 841(a)(1), which prohibits distribution of any controlled substance. It cites United States v. Knuckles, where defendants charged with heroin distribution successfully argued that the substance was actually cocaine, leading to a conviction despite a variance between the indictment and evidence. The court found no substantial prejudice because the defendants were adequately informed of the charges.
However, the current case is distinguishable from Knuckles. Unlike the Knuckles defendants, Wozniak may have been surprised by the introduction of evidence regarding narcotics not specified in his indictment. In Knuckles, the facts presented at trial matched those in the indictment, thus the defendants understood the "core of criminality." In contrast, Wozniak was charged only with conspiracy related to cocaine and methamphetamine, while the government sought separate indictments for his co-conspirators involving marijuana. This lack of clarity in Wozniak's indictment, especially regarding the intermingling of charges, means he was not sufficiently apprised of the evidence he would face at trial.
Despite three other counts in the indictment specifying dates, these too are flawed as they rely on separate and distinct evidence for cocaine and marijuana activities. The government's limited evidence of Wozniak's involvement with cocaine, combined with jury instructions referencing Knuckles, led to convictions based on uncharged transactions.
The district court's jury instructions allowed for conviction regardless of the specific illegal substance involved, which, along with the prosecution's evidence, constituted a constructive amendment of the indictment. The indictment specified cocaine and methamphetamine, but not marijuana, leading to the conclusion that the conviction on all counts must be vacated. The court vacates the judgment and remands for a new trial if the government chooses to reprosecute, without commenting on potential defenses against reprosecution. The investigation included multiple indictments related to cocaine, methamphetamine, and marijuana distribution. Most evidence against Wozniak pertained to marijuana, although he was indicted only for cocaine and methamphetamine offenses. Testimony from Anthony Santa Maria indicated involvement in a marijuana operation, including a substantial financial transaction believed to be a loan to Wozniak for his security business. The court does not address the sufficiency of the evidence, noting that much of it related to Wozniak's marijuana use rather than possession with intent to distribute cocaine, distinguishing this case from previous rulings.
