United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case involves an investigation by the Massachusetts State
Police, the Drug Enforcement Administration and the
Department of Homeland Security into a Brockton-based gang
trafficking in fentanyl, heroin, oxycodone, cocaine, crack
cocaine and marijuana. Carlos Antunes (“Antunes”
or “defendant”) was indicted as one of ten
co-conspirators associated with Djuna Goncalves, the lead
figure in the subject conspiracy.
before the Court is the motion of Antunes to dismiss Count
One of the indictment (Docket No. 157). After Antunes filed
the pending motion, the government lodged a Superseding
Indictment (Docket No. 174) which the parties agree does not
alter the substance of the arguments set forth in
Antunes' motion to dismiss.
One of the indictment charges Antunes and others with
conspiracy to distribute and to possess with intent to
distribute 100 grams or more of heroin and 400 grams or more
of fentanyl, cocaine, cocaine base, oxycodone and marijuana.
The indictment alleges a single conspiracy involving several
named individuals and “other persons known and unknown
to the Grand Jury.” Included within Count One is an
aggravating quantity element in connection with the
allegation that the conspiracy involved 40 grams or more of
fentanyl which was reasonably foreseeable by and attributable
to various co-conspirators, including Antunes.
moves to dismiss Count One of the indictment insofar as it
charges the aggravating quantity element. Specifically, he
argues that the Grand Jury attached
penalty enhancing elements to the whole conspiracy charged
and not to every possible sub-set conspiracy.
contends that because the conspiracy includes “persons
known and unknown to the Grand Jury, ” it is impossible
for the government to prove the conspiracy to which the grand
jury attached the quantity enhancing elements. As a result,
submits Antunes, any conviction under Count One would result
in an impermissible constructive amendment of the indictment
because the conviction would inevitably involve less than the
whole conspiracy to which the enhancements were attached.
government has directed this Court's attention to a
decision of another session of this Court in a similar case
in which counsel for Antunes, representing another defendant
in a separate conspiracy, made a virtually identical
argument. See United States v. Miranda, Cr. No.
19-10163-IT (Docket No. 57). In that case, Judge Indira
Talwani rejected counsel's argument for reasons this
Court finds persuasive. Accordingly, this Court adopts the
reasoning of Judge Talwani and defendant's motion to
dismiss will be denied.
preliminary matter, a constructive amendment results when the
terms of an indictment are altered, “either literally
or in effect” by a body other than the Grand Jury.
United States v. Brandao, 539 F.3d 44, 57 (1st Cir. 2008).
The prohibition on constructive amendments exists to protect
the Fifth and Sixth Amendment rights of defendants.
Id. The existence of a constructive amendment is
generally determined upon consideration of the statutory
elements of a crime and an analysis of whether the crime
charged has been altered between indictment by the Grand Jury
and trial. See, e.g., United States v. Mubayyid, 658 F.3d 35,
51-52 (1st Cir. 2011). A mere narrowing or refinement of the
charges, however, does not result in a constructive
amendment. Id. at 50.
explained by the Court in Miranda, it is unclear, under these
circumstances, how the discrepancies alleged to exist between
the indictment and what the government may be able to prove
at trial result in a constructive amendment. To secure a
conviction under Count One, the government must demonstrate
that Antunes (1) conspired, (2) knowingly or intentionally,
(3) to distribute and possess with intent to distribute
fentanyl, (4) in a conspiracy that involved 40 grams or more
of a mixture and substance containing a detectable amount of
fentanyl and (5) where at least 40 grams or more of fentanyl
was reasonably foreseeable by and attributable to Antunes. 21
U.S.C. §§ 841, 846; United States v. Pizarro, 772
F.3d 284, 293-94 (1st Cir. 2014). The indictment alleges each
of those elements. Consequently, as in Miranda, if the
government can prove those elements beyond a reasonable
doubt, no constructive amendment has occurred regardless of
whether “other persons known and unknown to the Grand
Jury” are mentioned in the indictment.
forgoing reasons, the motion of defendant Antunes to dismiss
the indictment (Docket No. 157) is DENIED.