United States v. Dove
884 F.3d 138
2d Cir.2018Background
- Steven Dove was convicted by a jury of one-count conspiracy to distribute heroin and cocaine (21 U.S.C. §§ 841(b)(1)(C), 846) based principally on a single May 22, 2012 controlled buy in which Dove supplied 3.5g of cocaine to an undercover via co‑conspirator Elijah Ingram.
- The superseding indictment charged a multi‑defendant conspiracy (named six individuals “together with others”) spanning Jan 1–May 22, 2012; several co‑defendants pleaded guilty before Dove’s trial.
- At trial the district court declined to read four co‑defendants’ names from the indictment and instructed the jury that Dove and Ingram, “together with others,” conspired — omitting other named individuals.
- The government introduced evidence of three undercover buys (one involving Dove and two involving Ingram alone) and video/testimony linking Dove only to the May 22 transaction.
- Dove was acquitted of a separate substantive distribution count, moved for acquittal/ new trial, and was later sentenced as a career offender under U.S.S.G. § 4B1.1 to 72 months (below Guidelines); he appealed conviction and sentencing.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Dove) | Held |
|---|---|---|---|
| Constructive amendment of indictment | Jury instruction and evidence did not alter an essential element; names were unnecessary and indictment still alleged conspiracy "with others" | Redaction of four co‑conspirator names + proof linking Dove only to Ingram effectively narrowed/changed the conspiracy charged | No constructive amendment: omission of names and trial proof did not change an essential element or broaden bases for conviction |
| Prejudicial variance (single vs multiple conspiracies) | Any variance was non‑prejudicial; Dove had notice and proof of relevant overt acts; no McDermott factors of spillover present | Trial evidence permitted conviction on a two‑person conspiracy distinct from the larger conspiracy charged, prejudicing Dove | Variance existed but was not prejudicial: Dove’s substantial rights were not affected, so reversal not required |
| Sufficiency of evidence; buyer‑seller doctrine | Evidence (agreement, planning, mutual trust, standardized wholesale dealings) supports conspiracy beyond mere buyer‑seller | Argues transaction was mere buyer–seller and insufficient to show conspiratorial agreement | Evidence sufficient; buyer‑seller exception inapplicable given indicia of ongoing cooperation and plan for future wholesale sales |
| Career‑offender designation | Dove’s prior robbery and drug convictions qualified as predicate offenses under § 4B1.1; Beckles forecloses vagueness challenge | Argues NY robbery convictions shouldn’t qualify under the force clause and Johnson/vagueness issues | Career offender designation affirmed; prior convictions qualify and Beckles prevents vagueness challenge to Guidelines |
Key Cases Cited
- Stirone v. United States, 361 U.S. 212 (constructive amendment occurs when trial proof broadens indictment)
- United States v. Miller, 471 U.S. 130 (alteration that does not change essential elements is not a constructive amendment)
- United States v. Wozniak, 126 F.3d 105 (trial evidence can effect constructive amendment when core criminality differs from indictment)
- United States v. Salmonese, 352 F.3d 608 (indictment must give notice of core criminality; constructive narrowing permissible where generally framed indictment encompasses trial theory)
- United States v. Agrawal, 726 F.3d 235 (alteration of essential element can constitute constructive amendment)
- United States v. McCourty, 562 F.3d 458 (constructive amendment is per se Grand Jury Clause violation; distinguishes variances)
- United States v. D'Amelio, 683 F.3d 412 (permitting flexible proof so long as core criminality is noticed)
- United States v. Brock, 789 F.3d 60 (buyer–seller exception and factors distinguishing conspiratorial relationship)
- United States v. Williams, 205 F.3d 23 (single‑conspiracy inference factors)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Beckles v. United States, 137 S. Ct. 886 (Guidelines not subject to vagueness challenge)
- Johnson v. United States, 135 S. Ct. 2551 (residual clause vagueness decision referenced in sentencing discussion)