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January 14, 1993


The opinion of the court was delivered by: JACK B. WEINSTEIN



 The government is correct that there is at present a uniform practice in the courts of the Second Circuit of applying an objective rather than a subjective test of quantity of drugs possessed. Real intent is ignored and it is assumed that the amount and kind of drugs actually possessed is congruent with the amount intended to be possessed. Such a rule ignoring mens rea when state of mind is contested is of doubtful constitutionality and was not intended by Congress. Acquiescence in an invalid rule of law does not make it valid. See Brown v. Board of Educ., 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), overruling Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896).


 Defendant Caroline Ekwunoh is 28 years old with one year of college. She has custody of her three children, seven, six and five years of age, by her spouse from whom she is separated. She has always been fully employed; since 1991 she has owned and operated a successful clothing and jewelry boutique in Brooklyn. Her boyfriend is a drug smuggler.

 In June 1991 a confidential informant controlled by the Drug Enforcement Administration (DEA) arrived at Kennedy Airport from Nigeria carrying an attache case containing 1.013 kilograms of heroin. He was met by defendant. She accompanied the informant to the parking lot where she took the case and placed it in the trunk of a vehicle. She was then arrested.

 Defendant was charged with conspiracy and with possessing heroin with intent to distribute. 21 U.S.C. § 841 (a). In September 1991 she pled guilty to a single count charging that she "did knowingly and intentionally possess with intent to distribute an amount in excess of one kilogram of a substance containing heroin" in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(i). She signed a plea agreement providing that she would cooperate in the investigation and prosecution of narcotics and other offenses.

 At the time it accepted defendant's plea of guilty, the court explained to her that an offense involving one kilogram or more of heroin carries a mandatory sentence of at least ten years in prison. The government indicated that it anticipated writing a letter on her behalf, pursuant to 18 U.S.C. § 3553(e) and Guidelines § 5K1.1, recommending to the court that it depart downward from the statutory minimum on the basis of her cooperation. Defendant was warned, however, that neither the court nor the government guaranteed that such a letter would be issued.

 When it came time for defendant to be sentenced, the government did not write a letter to the court on her behalf. It found her cooperation unsatisfactory. Defendant claimed that the government's decision not to write a letter was made in bad faith and requested a hearing.

 At a Fatico hearing the court heard testimony from defendant, the DEA agent responsible for supervising her and a state police investigator. The testimony established that, while defendant was helpful on some matters, transactions that defendant told the government she would arrange sometimes did not materialize; defendant left the jurisdiction in violation of her cooperation agreement, travelling to Florida to purchase a home; she made a substantial downpayment on that home and purchased a $ 7700 automobile; and she concealed and retained $ 40,000 at the time her application for bail was granted and she posted $ 50,000 in cash.


 A. The Statute

 The law defendant pled guilty to violating states that

 it shall be unlawful for any person knowingly and intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .

 21 U.S.C. § 841(a)(1). Subsection (b) of 21 U.S.C. § 841 sets out certain penalties specific to this crime. A violation of subsection (a) involving "1 kilogram or more of a mixture or substance containing a detectable amount of heroin" carries a sentence of "a term of imprisonment which may not be less than ten years or more than life." 21 U.S.C. § 841(b)(1)(A)(i). A violation of subsection (a) involving "100 grams or more of a mixture or substance containing a detectable amount of heroin" carries a sentence of "a term of imprisonment which may not be less than 5 years and not more than 40 years." 21 U.S.C. § 841(b)(1)(B)(i).

 B. Division of Responsibility Between Judge and Jury

 Subsection (b) of 21 U.S.C. § 841 is relevant only at sentencing. The Court of Appeals for the Second Circuit has explained,

 Section 841(a) of Title 21 prohibits distribution of any [emphasis in original] amount of [heroin] and in no way requires proof of a particular quantity of narcotics as an element of the [offense]. When an indictment does allege that a particular quantity is involved, the effect is only to put the defendant on notice that the enhanced penalty provisions of Section 841(b) may apply [emphasis supplied]. Because the quantity is relevant only to enhancement of the sentence, the government is not required to prove the quantity alleged . . . .

 United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.), cert. denied, 498 U.S. 947, 112 L. Ed. 2d 326, 111 S. Ct. 363 (1990); see also United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991), cert. denied, 117 L. Ed. 2d 428, 112 S. Ct. 1186 (1992) (quantity is not an element of the substantive § 841(a) offense but is relevant at sentencing under § 841(b)); United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990), cert. denied, 113 L. Ed. 2d 263, 111 S. Ct. 1331 (1991) (same); United States v. Wood, 834 F.2d 1382, 1388 (8th Cir. 1987) (same).

 The amount of the drugs is not, the cases hold, an essential element of the offense of possession with intent to distribute and the issue does not go to the jury. See United States v. Moore, 968 F.2d 216, 224 (2d Cir.), cert. denied, 121 L. Ed. 2d 385, 113 S. Ct. 480 (1992) (lack of specific finding by jury of quantity involved is irrelevant since quantity is solely for sentencing judge).

 Because quantity is not an essential element of the § 841(a) offense, a defendant does not plead to a quantity of drugs when he or she pleads guilty to violating that statute. See Hayle v. United States, 815 F.2d 879, 881 (2d Cir. 1987) ("It is well settled that a defendant's plea of guilty admits all of the elements of a formal criminal charge . . . ."); LaMagna v. United States, 646 F.2d 775, 778 (2d Cir. 1981) (same). As Judge Stanley H. Fuld -- the great criminal law expert, previously head of the Appeals Bureau of the New York County District Attorney's Office under Thomas E. Dewey and later Chief Judge of the New York Court of Appeals -- pointed out in People v. Olah, 300 N.Y. 96, 98-100, 89 N.E.2d 329 (1949):

 Since an indictment not infrequently contains immaterial and nonessential recitals, we cannot determine the 'crime' with which a defendant is charged and, of course, of which he is convicted by mere examination of the indictment's allegations. To ascertain that 'crime', we must of necessity consider the statute which created and defined it and upon which the indictment was based . . . .

 It is the statute upon which the indictment was drawn that necessarily defines and measures the crime. There is a difference between the 'crime' of which a defendant was convicted and the 'evidence' relied upon to establish that crime. And, by the same token, there is a difference between the 'crime' of which he was convicted and the 'act' which he may have committed. In other words, the crime, i.e., the operative facts which constitute the criminal offense as defined by the statute, cannot be extended or enlarged by allegations in the indictment or by evidence at the trial. Expressed somewhat differently, facts not specified in the statute upon which the indictment is based may not be rendered material or operative by merely stating them in the indictment . . . .

 The 'crime' of which a defendant is convicted remains the same whether a trial was had or a plea of guilty was entered. A plea simply avoids the necessity and expense of a trial, and a defendant is not to be prejudiced, is not to be placed in a different or worse position, by entering a guilty plea.

 While the statute here contains references to amounts of drugs, the courts have interpreted the applicable provisions, in effect, to eliminate as surplusage from both statute and ...

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