581 F. App'x 70
2d Cir.2014Background
- Defendant Jeremy Zullo pleaded guilty to, among other counts, conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A).
- Zullo moved to dismiss the indictment under Federal Rule of Criminal Procedure 12(b)(3)(B), arguing the indictment was legally deficient.
- His arguments claimed the indictment failed to allege (1) existence of an agreement, (2) that he knowingly joined the conspiracy, and (3) improperly alleged part of the conspiracy occurred outside the District of Vermont.
- The district court denied the motion to dismiss; Zullo appealed pro se, challenging only the denial of that motion.
- The Second Circuit reviewed the sufficiency of the indictment de novo and considered whether a guilty plea limited Zullo’s ability to seek dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of indictment for § 846 conspiracy | Gov't: indictment tracked statute and stated offense, time, and place | Zullo: indictment failed to allege an agreement | Indictment sufficient; conspiracies imply an agreement, so explicit allegation unnecessary |
| Allegation of defendant's knowing participation | Gov't: conspiracy charge implicitly includes knowledge and intent | Zullo: indictment did not allege he knowingly joined | Court: knowledge/intent implicit in conspiracy charge; explicit allegation not required |
| Allegation that part of conspiracy occurred outside District of Vermont (venue/jurisdiction) | Gov't: district courts have jurisdiction over federal offenses under 18 U.S.C. § 3231 | Zullo: objected to out-of-district allegation as fatal to indictment | Court: location allegation concerns venue, not jurisdiction; Zullo waived venue challenge by pleading guilty |
| Derivative challenges to other counts based on conspiracy count | Gov't: other counts were tied to valid conspiracy charge | Zullo: attacked other counts by attacking conspiracy count | Denied: because conspiracy count is sufficient, derivative challenges fail |
Key Cases Cited
- United States v. Pirro, 212 F.3d 86 (2d Cir. 2000) (de novo review standard for indictment sufficiency)
- United States v. Yousef, 750 F.3d 254 (2d Cir. 2014) (grounds for dismissal after guilty plea limited to failure to charge a federal offense)
- United States v. Story, 891 F.2d 988 (2d Cir. 1989) (elements of § 846 conspiracy)
- United States v. Frias, 521 F.3d 229 (2d Cir. 2008) (indictment need only track statute and state time/place in approximate terms)
- United States v. Bermudez, 526 F.2d 89 (2d Cir. 1975) (requirements for alleging a § 846 conspiracy)
- United States v. Yu-Leung, 51 F.3d 1116 (2d Cir. 1995) (conspiracies by definition require agreements)
- Schnautz v. United States, 263 F.2d 525 (5th Cir. 1959) (knowledge and intent implicit in a conspiracy charge)
- United States v. Calderon, 243 F.3d 587 (2d Cir. 2001) (guilty plea waives venue challenges)