Further, Detective Caggiano had insisted at trial that his
testimony was identical to the version of events he had given to
Special Agent Cuccinelli on the day of the arrest.
A hearing was then held on defendants' motions. While
acknowledging the inconsistencies between the testimony of the
two officers, the government argued that the discrepancies did
not warrant dismissal of the indictment. Even if Special Agent
Cuccinelli's grand jury testimony was inaccurate, the government
contended, the inaccuracies were of detail and not of material
fact. Thus, the government argued, the reliance on hearsay
testimony before the grand jury did not result in prejudice to
the defendants.*fn4 Defendants countered that the potential
for prejudice could be inferred from, inter alia, the fact
that the grand jury requested that Special Agent Cuccinelli be
returned to the grand jury room four times for further
questioning. This implied, defendants argued, that the grand
jury was concerned about the quality of the evidence before it —
the very danger inherent in the government's practice of relying
exclusively on hearsay testimony in such circumstances.
The issue to be resolved thus became the degree to which the
grand jury was genuinely troubled by the prospect of returning
an indictment solely on the basis of Special Agent Cuccinelli's
hearsay testimony. Defendants sought an order to have
transcribed the previously absent portions of the grand jury
minutes, those containing the colloquies between the grand jury
and the Assistant United States Attorney in the absence of the
witness. After ordering that the transcripts be produced, the
Court further reserved its decision on defendants' motions, in
the interest of judicial economy and again with the consent of
Closing arguments took place on April 18, and the jury was
charged on the morning of April 19. That same morning, shortly
before charging was to commence, the government produced a
partial transcript that included four colloquies between the
grand jury and the Assistant United States Attorney ("Colloquy
Transcript").*fn5 This transcript did not include a further
colloquy, approximately twenty minutes in length, that occurred
before Special Agent Cuccinelli was called for the first
The Court proceeded to charge the trial jury, which began its
deliberations. Our in camera review of the Colloquy
Transcript, however, revealed a new and unforeseen problem in
the grand jury proceedings. During the first of the four
transcribed colloquies, the following exchange took
place between one or more grand jurors and the government:
A Juror: Was the apartment the legal
residence of either of these defendants? And the
second question was were any fingerprints taken
from the gun that was recovered?
[Assistant]: I will ask that question — on
the fingerprint question, I think it was
constructive possession, okay.
You have heard the testimony at the time
Detective [Caggiano] made his observation, no one
actually possessed the gun. The government is
proceeding on the theory of both individuals being
able to exercise some minimum — in other words,
they exercise[d] control or they had access to the
gun. They would be able — it was readily available
for them to grab it or hold [it]. That is
constructive possession. Their [sic] official words
are "exercising dominion and control".
A Juror: Did anyone have a license for the
gun? Was it licensed?
[Assistant]: Do you want me to go get him or
do you want to go get him?
Colloquy Transcript at 7-8 (emphasis added). Later, during the
fourth colloquy, the following exchange took place:
A Juror: Again, one thing is bothering me. I
know you went through it. Did he use and carry —
[no,] the gun wasn't used or carried, but he had
the opportunity to carry it and fire it?
[Assistant]: It is charged to both
individuals in this case.
A Juror: But this is proper even though the
gun was never carried?
A Juror: Why don't you read the section
A Juror: I understand the concept of
availability, but did he use —
[Assistant]: And Section 924(c), subdivision
(1) — let me say that again. Section 924(c) of
Title 18, subsection (c), subdivision (1), reads as
"[Whoever], during and in relation to any crime
of violence or drug trafficking crime for which he
may be prosecuted in a court of the United States,
uses or carries a firearm."
Okay. "uses or carries a firearm." The
definition of "use", so to speak, in this
particular matter, that would be the idea of
"carry" again. I am instructing you to
constructive possession — whether or not the
firearm in this particular case, a .38 caliber, was
accessible to them; whether or not these two
individuals exercised any type of dominion or
control over it.
I can't draw that conclusion for you. The only
thing you can do is based on the circumstances, you
would have to draw it for yourself whether or not
they used and carried it.
The definition of "used" in this particular
case, it is up to you — "use" can mean, well, they
actually pick[ed] it up or it was actually there
readily available to be used or carried.
Again, it comes back to the term, the idea of
constructive possession. Is everyone clear on that?
Because the question has come up two times. It is
the key of constructive possession.
No one actually possessed it in this case. No
one actually picked it up, fired it, used it,
pointed it. It was the idea they had dominion and
control — that could fit under the idea of
exercising dominion or control.
A Juror: "Use" in the broader sense rather
[Assistant]: In other words, there is, it's
available to use. It was operating. The idea
also, there was — if you look at the facts as they
were testified to you through Agent Cuccinelli,
based on the information [he] received from
Detective Caggiano, you have Detective Caggiano
indicated to Agent Cuccinelli he saw drugs, a
scale, money, and there was a gun in an open
It is up to you. From those circumstances it is
up to you whether those guys were using and
carrying that gun in connection with drug
trafficking. I can't make that conclusion for you
based on the circumstances. As to the gun, it is as
to whether or not it was used and carried in
connection with drug trafficking. That is something
you have to draw
the inference from, but "use and carry" apply with
respect to the totality of the circumstances, and
the idea of constructive possession applies in this
A Juror: Can you substitute the words in the
indictment, "with the intent to use"?
[Assistant]: I can't change the statutory
language, so to speak. I am required in the
indictment to plead based on what the statute says.
A Juror: Use in their work, which was
[Assistant]: That would be — that is the
theory under which the government is proceeding.
Again, the idea of constructive possession, it has
to apply here because you didn't hear any testimony
of actually possessing it.
A Juror: They were using it in their work, in
[Assistant]: That is a theory that the
government is a[d]vancing in this case, exactly.
Now, it is up to you. I want to be clear, I am your
legal advisor. I am — you have to determine whether
or not they were using or carrying the gun in
connection with the drug trafficking, not from me,
but based on the facts that you heard. So I will
leave this copy of the proposed indictment to
you. . . .
Colloquy Transcript at 19-24 (emphasis added).