United States v. Gama-Bastidas

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 25 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4169

JESUS ROBERTO GAMA-
BASTIDAS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 96-CR-192-2)

Benjamin A. Hamilton, Salt Lake City, Utah, for Defendant-Appellant.

Wayne T. Dance, (Paul M. Warner, United States Attorney, Brooke C. Wells,
Assistant United States Attorney, with him on the briefs), Salt Lake City, Utah,
for Plaintiff-Appellee.

Before EBEL , PORFILIO , and MAGILL , * Circuit Judges.

EBEL , Circuit Judge.

*
Frank J. Magill, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
 Jesus Roberto Gama-Bastidas (“Gama-Bastidas”) appeals from a conviction

and sentence that he contends was imposed in violation of the law. He argues

that the underlying indictment to which he pleaded guilty failed properly to

charge him with possession of cocaine with intent to distribute and, therefore, that

the district court erred in sentencing him on that offense following his plea of

guilty. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because

Gama-Bastidas did not assert his challenge to the sufficiency of the indictment

until after his conviction, we construe the indictment with maximum liberality.

Thus, we can refer to the caption of the indictment, as well as to the statutory

reference in the body of the indictment and the other facts contained in the body

of the indictment, to determine that the indictment properly charged the crime of

possession of cocaine with intent to distribute, even though the body of the

indictment itself did not specifically charge intent to distribute. Accordingly, we

affirm.

BACKGROUND

The relevant facts are undisputed. On March 5, 1997, the government filed

a superseding indictment against Gama-Bastidas and two co-defendants. The

caption of the indictment read as follows:

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 S U P E R S E D I N G
I N D I C T M E N T

VIO. 21 U.S.C. §§
841(a)(1), 841(b)(1)(B)
and 2

POSSESSION OF A CONTROLLED
SUBSTANCE WITH INTENT TO
DISTRIBUTE; AIDING AND
ABETTING

The body of the indictment stated:

The Grand Jury charges:

COUNT I

On or about August 24, 1996 through August 26, 1996, in the
Central Division of the District of Utah,

ARNULFO GARCIA SOSA,
JESUS ROBERTO GAMA-BASTIDAS,
and MANUAL GAMA,

defendants herein, aided and abetted by each other and others
unnamed in this Indictment, did knowingly and intentionally possess
in excess of five hundred grams of a mixture or substance containing
a detectable amount of cocaine, a Schedule II controlled substance;
all in violation of Title 21 U.S.C. 841(a)(1) and 841(b)(1)(B), and
Title 18 U.S.C. 2.

Thus, while the body of the indictment cited 21 U.S.C. § 841(a)(1) and the

caption of the indictment referenced an intent to distribute, the body of the

indictment failed to allege an intent to distribute, which is an essential element of

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the § 841(a)(1) offense for which he pled guilty and was sentenced. By contrast,

the body of the indictment factually charged only simple possession.

On April 11, 1997, Gama-Bastidas entered a conditional guilty plea to the

charge of violating § 841(a)(1), reserving the right to appeal the district court’s

denial of his motion to suppress. In a written statement in advance of plea,

Gama-Bastidas stated that he “knowingly and intentionally possessed 2.5 kilos of

cocaine with intent to distribute and aided and abetted others therein.” At the

plea hearing, Gama-Bastidas told the court he understood he was being charged

with “possession of 2 and a half kilos of cocaine,” and in response to further

questions he told the court how he, with the assistance of others, brought two and

a half kilos of cocaine from Mexico to Utah to sell for $17,000 per kilo.

After the district court accepted Gama-Bastidas’ guilty plea, a presentence

investigation report (PSR) was prepared. In its section on the charges and

conviction, the PSR recited § 841(a)(1) and used language identical to the

language set forth in the indictment’s caption, i.e., “Possession of a controlled

substance with intent to distribute.” The PSR also recited that Gama-Bastidas had

pled guilty to the charge of “Possession of a Controlled Substance With Intent to

Distribute, as reflected in Count I.” Gama-Bastidas made no objections to these

statements in the PSR. On June 23, 1997, the district court sentenced him to the

§ 841 statutory minimum of sixty months’ imprisonment.

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 Gama-Bastidas then appealed on different grounds than is the subject of the

present appeal, contending the district court erred in 1) denying his motion to

suppress, and 2) refusing to apply USSG § 5C1.2 to limit the applicability of the

statutory minimum sentence. We concluded on that appeal that the district court

properly denied his suppression motion and, therefore, we affirmed his

conviction. United States v. Gama-Bastidas , 142 F.3d 1233, 1241 (10th Cir.

1998). We further concluded, however, that the district court erred in failing to

make necessary sentencing findings under USSG § 5C1.2. Id. at 1242-43.

Therefore, we vacated Gama-Bastidas’ sentence and remanded with instructions

to the district court to make specific findings under § 5C1.2. Id. at 1243.

Meanwhile, Gama-Bastidas’ two co-defendants went to trial on what was

initially presented to the jury as a charge of possession of cocaine with intent to

distribute. The jury returned a verdict against defendant’s brother, Manuel Gama,

but it acquitted his friend, Arnulfo Sosa. The brother, Manuel Gama, was

sentenced to seventy-eight months’ incarceration. His conviction was reversed on

appeal due to instructional error on his defense of entrapment, and the case was

remanded for retrial. United States v. Gama , No. 97-4109, 1998 WL 133833, at

**4 (10th Cir. Mar. 25, 1998) (unpublished order and judgment). Gama was

retried in the district court in June of 1998. While preparing jury instructions for

the new trial, the district court noticed that the body of the indictment did not

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charge intent to distribute. Concluding that the indictment charged only simple

possession, the district court refused to instruct the jury on intent to distribute.

The jury found Gama guilty of possession of a controlled substance in violation of

21 U.S.C. § 844(a), and the court subsequently sentenced Gama to twelve months’

incarceration, which was the maximum prison term allowable under § 844(a). No

appeal was taken.

More than two months later, Gama-Bastidas appeared for resentencing as a

result of our remand. After hearing argument from counsel, the court concluded

that Gama-Bastidas did not qualify for the benefit of USSG § 5C1.2, which was

the only subject of the remand. 1
Therefore, the court again imposed the

sixty-month mandatory minimum sentence. Immediately after the

court pronounced the sentence, defense counsel made an oral motion under

Fed. R. Crim. P. 35(c) to correct the sentence. Relying on the earlier ruling in

favor of defendant’s brother, Manuel Gama, that the common indictment charged

only simple possession, counsel argued that it was clear error to impose a

sentence greater than twelve months, which was the maximum penalty for simple

possession. 2
The court instructed counsel to file a written motion, which he did.

Approximately two months later, the district court entered a written decision

1
Gama-Bastidas does not appeal this finding.
2
Rule 35(c) authorizes the sentencing court to “correct a sentence that
was imposed as a result of arithmetical, technical, or other clear error.”

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denying the motion. Noting that Gama-Bastidas’ current claim was actually a

challenge to his conviction, the district court concluded that Rule 35(c) was not

the proper avenue for relief. Although the court recognized its power to construe

the motion as one to vacate, set aside, or correct a sentence under 28 U.S.C.

§ 2255, the court chose not to do so.

DISCUSSION

A. Gama-Bastidas’ Arguments

Gama-Bastidas argues that the district court’s ruling in Gama’s case–that

the indictment did not charge a § 841(a) violation–is law of the case and that

principles of collateral estoppel or issue preclusion prevent the government from

arguing otherwise. Accordingly, he contends that the district court should have

treated him in the same manner as his co-defendant, by construing his plea and

conviction as a plea and conviction for simple possession under § 844 only.

Gama-Bastidas further argues that his conviction for possession with intent to

distribute under § 841(a) was unconstitutional because it impermissibly exceeded

the grand jury’s charge in violation of his Fifth Amendment right to be tried for a

felony only on a grand jury indictment.

Gama-Bastidas also argues that the district court construed Rule 35(c) too

narrowly. According to his interpretation, the rule’s plain language invested the

district court with authority to correct the underlying “clear error,” and, therefore,

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the court should have resentenced him as though he had been convicted of a § 844

violation, rather than a § 841(a) violation. He claims the court’s failure to

properly recognize and exercise its authority under Rule 35(c) is reversible error.

B. Appellate Jurisdiction and the Scope of Our Review

This case comes before us in an unusual posture. The government contends

that we have no jurisdiction to review Gama-Bastidas’ claim because he is

attacking a sentence that is within the guideline range and he is not challenging

the district court’s application of the sentencing guidelines. See 18 U.S.C.

§ 3742(a) (delineating grounds upon which sentence can be appealed). Although

Gama-Bastidas purports to complain of sentencing error, he is actually attacking

the sufficiency of the underlying indictment and, therefore, his conviction.

Because we have jurisdiction to review the denial of a challenge to the conviction

under 28 U.S.C. § 1291, our jurisdiction is not limited to the grounds set forth in

§ 3742(a). Gama-Bastidas’ current claim does, however, implicate our earlier

decision affirming his conviction.

Ordinarily, we will not review in a second direct appeal an issue that

underlies a previously affirmed conviction. See United States v. Webb , 98 F.3d

585, 589 (10th Cir. 1996). This general rule is based on two related principles.

First, “[u]nder the law of the case doctrine, findings made at one point during

litigation become law of the case for subsequent stages of that same litigation.”

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Id. at 587. Second, under the mandate rule, the district court should act in

conformity with the appellate court’s mandate which, in this case, directed the

district court only to make findings under a particular sentencing guideline and

resentence Gama-Bastidas accordingly. Normally, “remand on the sentencing

question [will] not reopen for review the underlying convictions.” Id. at 589.

Neither law of the case nor the mandate rule is jurisdictional, however.

“We recognize that law of the case is not a jurisdictional rule; rather, it is a rule

to be applied at the sound discretion of the court to effectuate the proper

administration of justice.” United States v. Carson , 793 F.2d 1141, 1147 (10th

Cir. 1986). Likewise, “the mandate rule, which generally requires trial court

conformity with the articulated appellate remand, is a discretion-guiding rule.”

United States v. Moore , 83 F.3d 1231, 1234 (10th Cir. 1996). Moreover, neither

doctrine precludes our review of a non-waivable issue. See, e.g. , Dow Chem.

Corp. v. Weevil-Cide Co. , 897 F.2d 481, 486 n.4 (10th Cir. 1990).

The challenge that Gama-Bastidas raises is that the indictment failed

factually to charge him with a felony offense under 21 U.S.C. § 841. Pursuant to

Fed. R. Crim. P. 12(b)(2), a defendant’s objection that the indictment fails to

charge an offense “shall be noticed by the court at any time during the pendency

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of the proceedings.” 3
See also United States v. Bullock , 914 F.2d 1413, 1414

(10th Cir. 1990) (“[T]he failure of an indictment to state an offense is a fatal

defect that may be raised at any time.”) (quotation omitted). Here, Rule 12(b)(2)

clearly allows him to raise his current challenge. Accordingly, we may consider

Gama-Bastidas’ challenge to the sufficiency of his indictment even though he

raised it for the first time on remand for resentencing. See United States v.

Adesida , 129 F.3d 846, 850 (6th Cir. 1997) (ruling that defendant could raise

challenge that indictment failed to charge an offense for first time on remand for

resentencing); United States v. Rosnow , 9 F.3d 728, 730 (8th Cir. 1993) (same).

Further, we do not limit our review of Gama-Bastidas’ challenge to the

narrow scope of “clear error” under Rule 35(c). Although Gama-Bastidas raised

his current challenge through a Rule 35(c) motion, Rule 35(c) was neither a

necessary procedural vehicle for his claim nor, as the district court noted, an

appropriate one, see United States v. Furman , 112 F.3d 435, 438 (10th Cir. 1997)

(discussing scope of Rule 35(c)). His claim is one that can be raised at any time

during the pendency of the proceedings, and the proceedings were still

3
The government contends that Rule 12(b)(2)’s non-waiver language
includes only challenges that an indictment fails to state any federal offense. It
argues that, because the indictment here charged a federal offense of some type,
albeit a misdemeanor, defendant’s challenge is not one that can be raised at any
time pursuant to Rule 12(b)(2). We do not read the rule so narrowly. Rather, we
construe Rule 12(b)(2)’s non-waiver language to include challenges that an
indictment fails to charge the offense of conviction.

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pending–with or without his Rule 35(c) motion–when he raised his claim.

Because Gama-Bastidas’ claim is functionally and analytically independent of

Rule 35(c), our review of his claim is not limited to the narrow scope of that

rule. 4

C. The Indictment

We review the sufficiency of an indictment de novo. See United States v.

Dashney , 117 F.3d 1197, 1205 (10th Cir. 1997). “[W]e determine the sufficiency

of an indictment by practical rather than technical considerations. An indictment

is sufficient if it sets forth the elements of the offense charged, puts the defendant

on fair notice of the charges against which he must defend, and enables the

defendant to assert a double jeopardy defense.” Id. (citation omitted). “The test

of the validity of the indictment is not whether the indictment could have been

framed in a more satisfactory manner, but whether it conforms to minimal

constitutional standards.” United States v. Fitzgerald , 89 F.3d 218, 222 (5th Cir.

1996).

4
Nor is the scope of our review limited to plain error, as the
government contends. Plain error review applies only to “errors that were
forfeited because not timely raised in district court.” United States v. Olano , 507
U.S. 725, 731 (1993). We agree with the Fifth Circuit that “the application of the
plain error standard is inappropriate when the aggrieved party may object to the
error at any time.” United States v. Fitzgerald , 89 F.3d 218, 221 n.1 (5th Cir.
1996).

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 Although “the failure of an indictment to state an offense is a fatal defect

that may be raised at any time[,] . . . the countervailing interest in judicial

efficiency requires that tardily-challenged indictments be construed in favor of

validity.” Bullock , 914 F.2d at 1414 (quotation omitted). “[A]fter a verdict or

plea of guilty, every intendment must be indulged in support of the

indictment . . . .” Clay v. United States , 326 F.2d 196, 198 (10th Cir. 1963). If a

defendant does not challenge an indictment until after a verdict or guilty plea, and

if he “does not assert prejudice, that is, if he had notice of the crime of which he

stood accused, the indictment is to be read with maximum liberality.” Fitzgerald ,

89 F.3d at 221. 5

Gama-Bastidas does not contend that he had no notice that he was charged

with possession of cocaine with intent to distribute, so we will read the

indictment with maximum liberality. Under this liberal standard, “it is enough

that the necessary facts appear in any form, or by a fair construction can be found

within the terms of the indictment.” United States v. Brown , 995 F.2d 1493, 1505

(10th Cir. 1993) (quotation omitted). Thus, we will find the indictment sufficient

5
For an illustration of the difference between challenging the
sufficiency of an indictment before the verdict and challenging it after, see the
Fourth Circuit’s opinion in United States v. Sutton , 961 F.2d 476, 479 (4th Cir.
1992), holding that an indictment was sufficient when construed liberally, even
though the court had held a similar indictment to be insufficient in United States
v. Pupo , 841 F.2d 1235, 1239 (4th Cir. 1988) (en banc), where the rule of liberal
construction did not apply because the indictment was challenged pre-verdict.

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“unless it is so defective that by any reasonable construction, it fails to charge the

offense for which the defendant is convicted.” Fitzgerald , 89 F.3d at 221.

The body of the indictment here does not explicitly state that

Gama-Bastidas possessed the cocaine with intent to distribute it. In determining

whether the indictment is fatally deficient, we must keep in mind that we are not

faced with a Sixth Amendment challenge based on lack of fair notice of the

charges. If we were concerned with a Sixth Amendment challenge, we would

readily conclude that Gama-Bastidas received adequate notice, as evidenced in the

plea agreement. Instead, we are faced with a Fifth Amendment challenge based

on Gama-Bastidas’ right to be tried for a felony only upon a finding of probable

cause by the grand jury. See, e.g., Brown , 995 F.2d at 1504; United States v.

Cabrera-Teran , 168 F.3d 141, 143 (5th Cir. 1999). Therefore, our task is to

search for the grand jury’s charging intent, using whatever clues are available to

us and construing the indictment with utmost liberality. 6

6
Because the district court analyzed the sufficiency of the same
indictment against Gama-Bastidas’ brother, Manuel Gama, before any verdict was
rendered against Manuel Gama, it correctly did not apply the maximum liberality
standard that now applies to Gama-Bastidas’ post-conviction claim. For this
reason, we reject Gama-Bastidas’ argument that issue preclusion applies to bar
relitgation of the sufficiency of the indictment, which was decided in favor of his
brother in the same case. “Collateral estoppel does not preclude litigation of an
issue unless both the facts and the legal standard used to assess them are the same
in both proceedings.” Copeland v. Merrill Lynch & Co. , 47 F.3d 1415, 1422 (5th
Cir. 1995); cf. Bulloch v. Pearson , 768 F.2d 1191, 1193 (10th Cir. 1985)
(continued...)

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 The primary clue we have of the charging intentions of the grand jury is in

the explicit recitation of possession with intent to distribute contained in the

caption of the indictment. The caption was part of the document presented to and

approved by the grand jury. 7
We recognize that this court and others have held on

occasion that the caption is not a controlling part of the indictment, but those

cases were concerned with whether a caption that contained an error or conflicted

with the body of an indictment created a fatal defect. See, e.g., Brown v.

Hudspeth , 103 F.2d 958, 959 (10th Cir. 1939); United States v. Ebolum , 72 F.3d

35, 39 (6th Cir. 1995). Here, we have neither an error in the caption nor a

conflict between the caption and the body of the indictment. We are simply using

the caption to supplement and clarify the charging intent of the grand jury that is

expressed in the body of the indictment. See, e.g. , United States v.

Arteaga-Limones , 529 F.2d 1183, 1188 (5th Cir. 1976) (holding that counts of

indictment “need not be read apart from the caption and heading of the

indictment”).

(...continued)
6

(recognizing that collateral estoppel does not apply where burden of proof is
higher in first action than in second).
7
At oral argument, the attorney for the government unequivocally
recited that it was standard practice that the caption, together with the body of the
indictment, be presented to, and approved by, the grand jury. Defendant’s
counsel did not object to this representation, and we are familiar with it as the
common practice.

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 The intent we glean from the caption–to charge Gama-Bastidas with

felonious intent to distribute–is supplemented and informed by the statutory

reference in the body of the indictment to 21 U.S.C. § 841(a)(1). Section

841(a)(1) makes it unlawful to possess a controlled substance with intent to

distribute it. In Brown , we concluded that reference to the charging statute in the

body of the indictment was not alone a sufficient substitute for the substantive

recitation of an essential element. 995 F.2d at 1505 (challenge raised by court sua

sponte on appeal). Here, however, we are simply using the reference to

§ 841(a)(1) in the body of the indictment as further confirmation of the grand

jury’s intent to charge Gama-Bastidas with felonious intent to distribute, which is

expressly stated in the caption. Accord United States v. Ramirez-Gamez , 171 F.3d

236, 239 (5th Cir.) (noting that although statutory citation cannot substitute for

recitation of element, it can reinforce other references in the indictment), cert.

denied , 120 S. Ct. 195 (1999); United States v. Forbes , 16 F.3d 1294, 1297 (1st

Cir. 1994) (same).

Finally, we note that the large quantity of drugs recited in the body of the

indictment–in excess of 500 grams–is entirely consistent with possession with

intent to distribute, and is inconsistent with simple possession. See United States

v. Delreal-Ordones , 213 F.3d 1263, 1268 n.4 (10th Cir. 2000). This recitation

reinforces our conclusion that the grand jury found defendant possessed the

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cocaine with intent to distribute it. We do not mean to imply, however, that the

indictment would be fatally deficient without this recitation; the express language

of the caption and the statutory reference in the body of the indictment

sufficiently evidence the grand jury’s intent under a liberal construction to satisfy

the demands of the Fifth Amendment.

In light of the foregoing, we conclude that the indictment here, when

construed with maximum liberality, was sufficient to charge Gama-Bastidas with

possession of a controlled substance with intent to distribute. This conclusion is

consistent with those of our sister circuits in similar cases, particularly that of the

Second Circuit in United States v. Hernandez , 980 F.2d 868, 870 (2d Cir. 1992).

The defendant in Hernandez challenged the sufficiency of the indictment on the

ground that the body of the indictment failed to recite that he possessed the

controlled substance with intent to distribute. Even though the Second Circuit

scrutinized the indictment under the stricter standard applicable to pre-verdict

challenges, it concluded that the indictment was sufficient because the caption

expressly stated possession with intent to distribute, the body of the indictment

referenced the charging statutes, and the body of the indictment recited

defendant’s possession of a large quantity of drugs. Id. at 871-72. Because the

Second Circuit was applying a stricter standard of construction, its holding a

fortiori supports our conclusion under the more liberal standard applicable here,

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and we need not decide whether we would reach a similar conclusion under the

stricter standard applicable to pre-verdict challenges. See also Fitzgerald , 89

F.3d at 223 (holding that quantity of cocaine was sufficiently charged under

liberal construction where caption expressly stated the quantity and body of

indictment referred to charging statute); United States v. Ruelas , 106 F.3d 1416,

1419 (9th Cir. 1997) (holding that felonious use or carrying of firearm was

sufficiently charged under liberal construction where heading of count expressly

stated defendant used or carried firearm and body of indictment both stated

defendant possessed firearm during drug offense and referred to 18 U.S.C.

§ 941(c)(1)); United States v. Williams , 152 F.3d 294, 298-99 (4th Cir. 1998)

(same).

D. Conclusion

When construed with maximum liberality, the indictment here adequately

charged Gama-Bastidas with possession of more than 500 grams of cocaine with

intent to distribute. Gama-Bastidas pleaded guilty to this charge and received a

sentence within the applicable guideline range. Accordingly, we AFFIRM his

conviction and sentence.

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