United States v. Roque
1:15-cr-00485
N.D. Ill.Feb 22, 2022Background
- Mireles was indicted in a fourth superseding indictment for conspiracy to distribute 5 kilograms or more of cocaine and a quantity of heroin in violation of 21 U.S.C. § 846; he was tried and convicted by a jury.
- The Government proposed an instruction ("Government’s Proposed Instruction 4") stating the Government need not prove the specific quantity or type alleged in the indictment, only a measurable quantity of some controlled substance, and that the jury must later determine type and amount if it found guilt.
- Defense initially objected to that instruction, then withdrew the objection pretrial and expressly requested the instruction during the jury instruction conference.
- The jury convicted and made a special finding that the conspiracy involved over 5 kilograms of cocaine and a measurable quantity of heroin.
- Mireles moved under Rules 29 and 33, arguing the instruction constructively amended the indictment and lowered the Government’s burden of proof (permitting a conviction based on an uncharged drug or by a preponderance standard).
- The court denied the motion: finding Mireles waived his objection by requesting the instruction; explaining that under §846 drug type/quantity are not elements and need not be proved as part of the offense; and holding the overall instructions and argument preserved the beyond-a-reasonable-doubt burden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury instruction constructively amended the indictment | Instruction was proper because §846 does not make drug type/quantity elements; jury still made special findings | Instruction allowed conviction without proving the specific drugs charged (could convict for uncharged drug like cannabis) | No constructive amendment; §846 does not require proof of specific drug type/quantity and verdict form required drug findings |
| Whether the instruction lowered the Government’s burden of proof | Government maintained the beyond-a-reasonable-doubt standard throughout instructions and argument | Instruction permitted conviction on a preponderance showing that defendant knew some controlled substance was involved | No; court emphasized multiple instructions and argument required proof beyond a reasonable doubt; special verdict form reinforced that standard |
| Whether defendant preserved objection to contested jury instruction | Government relied on defense’s later approval/request of the instruction | Mireles contended earlier objection meant preservation | Court found waiver: defense withdrew earlier objection and expressly proposed/approved the instruction at conference |
| Whether a new trial is warranted in the interest of justice under Rule 33 | No reversible error; evidence sufficient and no prejudicial instruction error | Motion asserted prejudicial error and lowered burden | Denied: relief reserved for extreme cases; no reasonable possibility instruction prejudiced verdict |
Key Cases Cited
- United States v. Crowder, 588 F.3d 929 (7th Cir. 2009) (describing when a constructive amendment occurs)
- United States v. Murphy, 406 F.3d 857 (7th Cir. 2005) (defendant waives objection by agreeing to instruction)
- United States v. Gonzalez, 737 F.3d 1163 (7th Cir. 2013) (conviction under §846 does not require knowledge of specific drug type or quantity)
- United States v. Paulette, 858 F.3d 1055 (7th Cir. 2017) (drug type and quantity are not elements of a §846 conspiracy unless seeking enhanced penalties)
- Stirone v. United States, 361 U.S. 212 (U.S. 1960) (Fifth Amendment prohibits trying a defendant on charges not made in the indictment)