Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 28th day of October, two thousand ten.
PRESENT: GUIDO CALABRESI DEBRA ANN LIVINGSTON, Circuit Judges, PAUL A. CROTTY, District Judge.*fn1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.
3 Defendant-Appellant Truls Soerbotten ("Soerbotten") appeals from a September 25, 2009 4 judgment of the United States District Court for the Eastern District of New York (Dearie, C.J.), 5 convicting him, after trial by jury, of one count of importation of a controlled substance, in violation 6 of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(2)(A), and one count of possession of a controlled 7 substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i), and 8 sentencing him to 60 months' imprisonment on each count, to run concurrently, a five year term of 9 supervised release, and a $100 special assessment on each count. We assume the parties' familiarity 10 with the underlying facts and procedural history of the case.
11 Soerbotten's sole argument on appeal is that the district court erred by constructively 12 amending the grand jury indictment in its charge to the jury. The superseding indictment charging 13 Soerbotten specified, in relevant part, that both counts "involved 100 grams or more of a substance 14 containing heroin, a Schedule I controlled substance." J.A. 14. The evidence adduced at trial, 15 however, demonstrated that Soerbotten believed the controlled substance he was transporting to be 16 cocaine. In its charge to the jury, the district court instructed, inter alia, that both "heroin and 17 cocaine are controlled substances within the meaning of the law," J.A. 18, and it was sufficient for 18 the Government to prove that Soerbotten knew he was transporting some controlled substance, even 19 if he believed it was cocaine, and not heroin. See id. Soerbotten argues that, in so doing, the district 20 court constructively enlarged the grand jury indictment, by failing to "specify that in order to be 21 convicted . . . the defendant had to have the intent to import heroin rather than cocaine." Appellant's 22 Br. 6.
1 Generally, "[w]e exercise de novo review of a constructive amendment challenge, which is 2 a per se violation of the Grand Jury Clause of the Fifth Amendment." United States v. Rigas, 490 3 F.3d 208, 225-26 (2d Cir. 2007) (internal citation omitted). Given that Soerbotten did not object to 4 the jury charge below, however, "he may prevail on this argument only by establishing plain error."
5 United States v. Vebeliunas, 76 F.3d 1283, 1291 (2d Cir. 1996). Plain error review requires a 6 defendant to demonstrate, inter alia, "that (1) there was error, (2) the error was 'plain,' [and] (3) the 7 error prejudicially affected his 'substantial rights.'" United States v. Flaherty, 295 F.3d 182, 195 8 (2d Cir. 2002) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). A constructive 9 amendment is, however, "per se prejudicial" for the purpose of the third prong of plain error review. 10 United States v. Thomas, 274 F.3d 655, 671 (2d Cir. 2001). Nevertheless, we find no error in this 11 case, plain or otherwise.
12 To demonstrate constructive amendment, a defendant must show that
either the proof at trial
13 or the district judge's instruction "so altered an essential
element of the charge that, upon review,
14 it is uncertain whether the defendant was convicted of conduct
that was the subject of the grand
15 jury's indictment." United States v. Milstein, 401 F.3d 53, 65
(2d Cir. 2005) (quoting United States
16 v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003)). "The challenged
alteration must affect an essential
17 element of the offense," United States v. Rosenthal, 9 F.3d 1016,
1021 (2d Cir. 1993) (internal
18 quotation marks omitted), and we have "consistently permitted
significant flexibility in proof,
19 provided that the defendant was given notice of the core of
criminality to be proven at trial," United
20 States v. Jespersen, 65 F.3d 993, 1001 (2d Cir. 1995) (internal
quotation marks omitted). Further,
21 a defendant asserting a constructive amendment challenge must
demonstrate "a substantial
22 likelihood that the defendant may have been convicted of an
offense other than the one charged by
the grand jury." United States v. Clemente, 22 F.3d 477, 482 (2d
Cir. 1994). Soerbotten has failed
2 to satisfy this burden.
3 It is well established that knowledge of the specific type of controlled substance is not an 4 essential element of the drug offenses for which Soerbotten was convicted. See, e.g., United States 5 v. Abdulle, 564 F.3d 119, 126 (2d Cir. 2009); United States v. Morales, 577 F.2d 769, 776 (2d Cir. 6 1978) ("[T]he law is settled that a defendant need not know the exact nature of a drug in his 7 possession to violate [21 U.S.C.] § 841(a)(1); it is sufficient that he be aware that he possesses some 8 controlled substance."). Here, "the only variance alleged . . . is the exact nature of the substance 9 involved, heroin or cocaine." United States v. Knuckles, 581 F.2d 305, 311 (2d Cir. 1978).
10 Evidence adduced at trial demonstrated that Soerbotten knew he was transporting a controlled 11 substance; the only disputed issue was his knowledge of which controlled substance he was 12 importing. Moreover, based on the quantity of drugs in his possession, Soerbotten was subject to 13 the same statutory sentencing scheme whether he possessed heroin or cocaine. See 21 U.S.C. §§ 14 841(b)(1)(B), 960(b)(2)(A).
15 Since the nature of the controlled substance at issue - heroin or cocaine - affected "neither 16 the Government's case nor the sentence imposed," any variance "cannot have prejudiced the ability 17 of the defendant to make [his] defense." Knuckles, 581 F.2d at 311; cf. United States v. Wozniak, 18 126 F.3d 105, 111 (2d Cir. 1997). The charges against Soerbotten arose from a "specific transaction 19 occurring on a specific date," Wozniak, 126 F.3d at 111, and the "time, ...