[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
June 10, 2004
THOMAS K. KAHN
No. 02-13437
CLERK
________________________
D. C. Docket No. 00-06211-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS NAROG,
MOHAMMED SAMHAN,
NIZAR FNEICHE,
RAED NASER ALDIN,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 10, 2004)
Before WILSON, FAY and MESKILL *, Circuit Judges.
*
Honorable Thomas J. Meskill, United States Circuit Judge for the Second Circuit, sitting
by designation.
FAY, Circuit Judge:
Appellants Thomas Narog, Mohammed Samhan, Nizar Fneiche and Raed
Naser Aldin were convicted by a jury for a variety of offenses involving the
possession and distribution of pseudoephedrine, a List One chemical. Among their
challenges to their respective convictions, all appellants contend that the trial judge
erred when, in response to a query from the jury, the district court responded that
the government need only prove that defendants knew or reasonably believed that
the pseudoephedrine would be used to produce any controlled substance.
Appellants urge that, because the indictment charged specifically that each
participated in the scheme knowing or having reasonable cause to believe that the
chemical would be used to manufacture methamphetamine, the district court’s
response to the jury’s question constructively amended the indictment. We agree
and reverse appellants’ convictions.
I.
In May 1999, Thomas Narog filed an application with the DEA for a license
to operate as a wholesale distributor of List One chemicals, including
pseudoephedrine. After acquiring his license in July of that year, Narog began
doing business as Seaside Pharmaceuticals Corporation and operated out of
Shurgard Storage Facility units in Fort Lauderdale, Florida. Beginning in
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September 1999, Narog received several large shipments containing millions of
pseudoephedrine pills, prompting a DEA investigation in March of the following
year.
DEA learned that Narog employed the services of defendants Raed Naser
Aldin and Mohammed Samhan in loading and unloading pallets of
pseudoephedrine from one storage unit to another. Keeping close tabs on Samhan
and Aldin, DEA discovered that a townhouse in Boynton Beach, Florida was
involved in the processing of the pills. In June 2000, DEA observed Aldin
discarding over 50 trash bags in dumpsters throughout the area surrounding the
Boynton townhome. These bags contained empty pseudoephedrine bottles that
were traced to a May shipment to Seaside. Surveillance of the townhouse
followed, and on June 4, 2000, agents observed an individual picking up boxes
containing 130 pounds of loose pills, which were later received at an “extraction
lab” in California. Aldin was again spotted dumping trash bags containing
thousands of empty pill bottles in nearby dumpsters, this time accompanied by co-
defendant Nizar Fneiche.
DEA eventually suspected that appellants were becoming wise to its
surveillance, as Aldin and Samhan were observed on various occasions driving
slowly around the storage facility and the townhouse, apparently conducting
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countersurveillance. During one such outing, when DEA felt that its own
surveillance was seriously compromised, agents pulled over Aldin’s car and
another following behind, in which Fneiche was a passenger. After being advised
of their rights, both agreed to speak. Fneiche gave inconsistent statements as to
whether he had been at the townhouse, and Aldin denied it though two bottles of
pseudoephedrine were found in his car. Shortly after this traffic stop, the agents
acquired a warrant to search the townhouse.
In the townhouse, agents immediately noted that, though large, it was
sparsely furnished and apparently not used as a residence. Scattered around
several rooms were numerous boxes of pseudoephedrine, thousands of empty
bottles, plastic baggies, cutting utensils and tape. After the search, Fneiche
admitted that he had been in the apartment cutting open bottles of pills. DEA
seized the evidence, but activity continued at the Shurgard storage units. On June
14, Narog was observed repositioning pallets of pseudoephedrine between two
units, and on June 15, a commercial cargo truck picked up several pallets and
delivered them to a nearby Pakmail facility. Samhan and co-defendant Rabah El
Haddad were at the Pakmail facility when the truck arrived, and both proceeded to
explain to the owner that the pseudoephedrine boxes they were shipping to Oregon
contained shoes. DEA agents ultimately seized this and other shipments in
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Oregon, along with similar shipments to clandestine methamphetamine labs in
California.
In the meantime, Narog applied to DEA for an exporter’s license –
supposedly to ship pseudoephedrine to JAM and Drug Store, Inc., two
pharmaceutical companies in Israel. During the application process, to DEA’s
surprise, Narog claimed that he had already exported to Israel all of the
pseudoephedrine he had received. He later stated to a DEA investigator that, since
applying for his exporter’s license, he had only shipped pills to Impact, a
pharmaceutical company in Massachusetts. When questioned about the seizure at
the Boynton townhouse, Narog suggested that it might have been stolen from his
shipment to Impact. Further investigation by DEA, however, revealed that Narog
never had any dealings with Impact, and the Israeli pharmaceutical companies did
not exist.
Samhan was arrested on July 29, and DEA found in his South Florida home
thousands of loose pseudoephedrine pills in ziploc bags and boxes bearing Seaside
labels. Search warrants were executed at Narog’s residence and Shurgard on the
same day. Blank Impact purchase orders were found along with financial records
corroborating Seaside’s purchase of pseudoephedrine in bulk, but no record of
legitimate distribution or exportation of the pills was found. Soon after, appellants
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were indicted for their involvement in the pseudoephedrine distribution scheme.
The original charging document was superseded on February 27, 2001 by a
fourteen-count superseding indictment charging appellants Narog, Aldin, Samhan,
Fneiche and other named co-defendants with offenses involving the possession and
distribution of pseudoephedrine. Specifically, Count 1 charged appellants with
conspiracy to possess and distribute pseudoephedrine “knowing and having
reasonable cause to believe that the listed chemical would be used to manufacture a
controlled substance, that is, methamphetamine,” in violation of 21 U.S.C. § 846.
Count 2 charged appellants Narog and Samhan, and co-defendant El Haddad, with
conspiracy to manufacture at least 50 grams of methamphetamine, in violation of
21 U.S.C. §§ 846 and 841(a)(1). Counts 3, 6, 8, 10 and 13 charged Narog
individually with knowingly and intentionally possessing and distributing
pseudoephedrine, again having reasonable cause to believe that it would be used to
manufacture a controlled substance, “that is, methamphetamine,” in violation of 21
U.S.C. § 841(d)(2) and 18 U.S.C. § 2. Likewise, Counts 4, 5, 7 and 9 charged
Narog with possessing pseudoephedrine on various dates with intent to
manufacture a controlled substance, “that is, methamphetamine,” in violation of 21
U.S.C. 841§ (d)(1) and 18 U.S.C. § 2. Count 11 charged all appellants with the
substantive crime of possessing and distributing pseudoephedrine on or about June
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1, 2000, knowing or having reasonable cause to believe that it would be used to
manufacture a controlled substance, “that is, methamphetamine,” in violation of 21
U.S.C. § 841(d)(2) and 18 U.S.C. § 2. Finally, counts 12 and 14 charged the same
crime as in Count 11, but on the dates of June 15 and July 21, 2000, and only
against appellants Narog and Samhan, and co-defendant El Haddad.
Appellants, along with co-defendants Nabil Aquil and El Haddad, proceeded
to trial on February 4, 2002. Throughout the six week trial, the government
introduced evidence and testimony in an attempt to show that the defendants knew,
or had reasonable cause to believe, that the pseudoephedrine would be used to
make methamphetamine. An abundance of evidence set forth that
pseudoephedrine was, indeed, used in the manufacture of methamphetamine.
Government experts corroborated this evidence. In fact, no evidence in the record
even suggested that another controlled substance could be made using
pseudoephedrine. The district court’s charge to the jury tracked the indictment to
the extent that it required the jury to find that defendants knew or had reasonable
cause to believe that the pseudoephedrine would be used to manufacture a
controlled substance, and added (both orally and in the written instructions given to
the jury) that “methamphetamine is a controlled substance within the meaning of
the law.” The jury was clearly confused, however, as the following written
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question was raised during deliberations:
Re: Charge 11
Reasonable cause to believe standard
vs.
State proving its case
*Did a defendant have to have knowledge or reasonable
cause to believe the pseudoephedrine would be used to
make specifically methamphetamine to be guilty??
After entertaining extensive argument on the issue, the district court rejected
the idea that the government had “effectively heightened and raised the mens rea
requirement” when it identified the particular controlled substance in the
indictment. The court then responded to the jury’s query:
The answer to your question is no. Let me give you this
instruction. As to this charge, the government need not
prove that a Defendant knew or had reasonable cause to
believe the exact nature of the controlled substance to be
manufactured. What the government must prove beyond
a reasonable doubt is that a Defendant knew or had
reasonable cause to believe that the pseudoephedrine
would be used to manufacture some controlled substance.
The jury returned to the deliberation room and, soon after, returned the following
verdict: Narog was convicted on all counts; Samhan was acquitted on the
conspiracies charged in Counts 1 and 2, but convicted of the substantive charges in
Counts 11, 12 and 14; Aldin was found guilty on Counts 1 and 11; and Fneiche
was acquitted on Count 1 and convicted on Count 11.
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II.
All appellants contend that the district court’s response to the jury’s question
constructively amended the indictment, and urge that such an amendment
mandates per se reversal of their convictions. The government counters that its use
of the phrase “that is, methamphetamine” in the indictment was mere surplusage,
and thus no constructive amendment occurred. Alternatively, the government
argues that even if the district court’s response varied from the indictment, that
variance was not material and thus does not require reversal. At the forefront, it is
necessary to distinguish the oft-confused concepts of variance and constructive
amendment. As this Court succinctly stated in Keller:
[A]n amendment occurs when the essential elements of
the offense contained in the indictment are altered to
broaden the possible bases for conviction beyond what is
contained in the indictment. A variance occurs when the
facts proved at trial deviate from the facts contained in
the indictment but the essential elements of the offense
are the same.
United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990); see also, United States
v. Flynt, 15 F.3d 1002, 1005-06 (11th Cir. 1994). Whereas a variance requires
reversal only when the defendant can establish that his rights were substantially
prejudiced thereby, constructive amendment of the indictment is per se reversible
error. Keller, 916 F.2d at 633; Flynt, 15 F.3d at 1005.
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We are not faced with a variance issue here. The facts proved at trial did not
deviate from the facts alleged in the indictment – the grand jury charged this case
as a methamphetamine case, and the government tried it as such. There was
simply nothing else involved. The defendants were accused of collecting large
amounts of pseudoephedrine and shipping it to a lab where it would be used to
manufacture methamphetamine. There were no allegations of other activity and all
of the evidence dealt with exactly what was alleged – securing pseudoephedrine for
the manufacturing of methamphetamine. The issue is whether the district court’s
charge to the jury constructively broadened the possible bases for the conviction;
thus the issue we face here is one of constructive amendment.1
Appellants direct our attention to various authorities from this Court, other
circuits and the Supreme Court outlining the basic tenets of constructive
amendment, including the seminal case on the issue, Stirone v. United States, 361
U.S. 212 (1960). Most appellants rely heavily on our decision in Cancelliere,
where we found that redacting the word “willfully” from an indictment charging
defendant with “knowingly and willfully” committing the offense of money
laundering was a constructive amendment of the indictment. United States v.
1
We recognize that the jury’s question was specifically directed to Count 11. However,
as stated earlier, this entire case dealt with one scenario of receiving large quantities of
pseudoephedrine for use in the manufacturing of methamphetamine. Therefore, the trial court’s
response amounted to a constructive amendment of each and every count in the indictment.
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Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995). Our Court noted that, though
the term “willfully” was included by the government by mistake, the charge was
read to the jury at the beginning of the trial, the jury listened to defendant try to
prove he acted in good faith, and then the district court “instructed them they could
convict without mentioning any requirement that they find he acted willfully.” Id.
This redaction, our Court found, impermissibly broadened the scope of the
indictment and mandated reversal. Id.
The general reasoning set forth in Cancelliere, that a constructive
amendment occurs when the indictment is broadened by instruction of the court, is
certainly instructive. However, the particular question we are faced with here is
whether an indictment – containing both the broad language of the statutory crime
and additional language seemingly narrowing the charged crime to a subset of the
statutory crime – is unconstitutionally amended when that narrowing language is
removed. We find this Court’s opinion in United States v. Weissman, 899 F.2d
1111 (11th Cir. 1990) to be more pertinent, and indeed indistinguishable, from the
case at bar.
Weissman involved three members of a crime syndicate that were convicted
by a jury of RICO conspiracy. Id. at 1112. Count 2, the charge under which each
appellant was convicted, alleged that defendants:
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[K]nowingly and willfully... conspired ... with each other
... to commit offenses against the United States, that is,
while employed by or associated with an enterprise, to
wit, a group of individuals associated in fact known as
the DeCavalcante Family of La Cosa Nostra ....
Id. Throughout the trial, the government introduced evidence to link defendants
with the DeCavalcante Family, and in its closing argument reiterated that the
enterprise in which defendants were involved was that family. Id. at 1112-13. The
trial court’s initial charge to the jury recognized that “enterprise” was defined in
the indictment as the DeCavalcante Family. Id. at 1113. Shortly after retiring to
deliberate, however, the jury submitted a query to the trial judge asking, with
respect to the RICO count, whether “enterprise” and DeCavalcante Family were
synonymous. After entertaining argument, the district court responded that it was
not necessary for the government to prove that the enterprise was the DeCavalcante
Family “if there was an enterprise proved that meets the definition of the term.”
Id. The jury rendered its verdict on the following day, convicting appellants on all
counts save one RICO conspiracy count.
On appeal, our Court reversed appellants’ convictions, finding that the
district court’s supplemental instructions constructively amended the indictment.
Id. at 1115. The panel noted that the government could have used the general
language of the statute to refer to the enterprise, but instead chose to specify that
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the appellants were associated with an enterprise, “to wit, a group of individuals
associated in fact known as the DeCavalcante Family.” Id. Our Court found that
the trial court should have informed the jury, “in conformity with the charges
brought in this indictment,” that enterprise was synonymous with the
DeCavalcante Family. The district court’s supplemental instruction, although
“adequately stating the general law, ... ‘altered an essential element of the crime
charged.’” Id.
We find that the Weissman decision completely encompasses, and resolves,
the constructive amendment challenge raised here. As in Weissman, the indictment
charged that defendants committed the crimes either knowing or having reasonable
cause to believe that the List One substance pseudoephedrine would be used to
manufacture a controlled substance, “that is, methamphetamine.” By including
this last phrase in the indictment, the government essentially charged a subset of
the statutory crime. The jury, in response to its query, should have been informed
that “controlled substances,” in this case, was synonymous with methamphetamine.
By instructing the jury that it only needed to find that defendants knew or had
reasonable cause to believe that the pseudoephedrine would be used to make any
controlled substance, the district court unconstitutionally broadened the crimes
charged in the indictment. The jury may well have convicted appellants of
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believing that the pills would be used to manufacture a controlled substance other
than the one specified therein, although there was no evidence of such.
We reject the government’s contention that utilization of the phrase, “that is,
methamphetamine,” was mere surplusage. It is accurate that surplusage in an
indictment may be deleted without error. United States v. Miller, 471 U.S. 130,
140 (1985); Cancelliere, 69 F.3d at 1121 (citing Miller). The government relies
heavily on this Court’s decision in Williams to support the application of the
“surplusage” doctrine. United States v. Williams, 334 F.3d 1228 (11th Cir. 2003).
However, the government again confuses the concepts of constructive amendment
and variance. Williams is plainly the latter. In that case, defendant Williams was
charged with aiding and abetting the using and carrying of a firearm, “that is, a
handgun.” Id. at 1231. During the trial, the government presented evidence that
co-defendant Addison carried an AK-47 assault rifle, while Williams himself
carried the handgun. Id. at 1230. Thus, the evidence showed Williams aided and
abetted the use of the assault rifle – not the use of the handgun as the indictment
charged. Defendant apparently never maintained that a constructive amendment
analysis was appropriate because he never “argue[d] a per se reversible error.” Id.
at 1232. Therefore, the Court only considered whether there was a variance
between the indictment and the proof at trial. Ultimately, this Court found the
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phrase, “that is, a handgun,” to be mere surplusage because defendant Williams did
not allege, nor could he show, that the variance somehow prejudiced him. Id.
Appellants in this matter, on the other hand, are not required to demonstrate that
they were prejudiced. The matter is one solely of constructive amendment, and we
find we are bound by the clear precedent set forth in Weissman. Accordingly, we
reverse appellants’ convictions.
III.
Appellants’ convictions are REVERSED and the matter remanded for
appropriate proceedings.
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