Petition for Writ of Certiorari — Couto v. United States

Supreme Court, U.S. -

/ FILED

No. 04- "41373 APR12 2005

OFFICE OF THE CLERK

IN THE

United States Supreme Court

2004 TERM

>P-d¢

IVANIA M. Couto,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

Counsel of Record

ROGER BENNET ADLER, P.C.

Attorney for Petitioner IVANIA M. COUTO

225 Broadway — Suite 1804

New York, New York 10007

212-406-0181

ROGER BENNET ADLER

DENNIS SCHLENKER

Of Counsel

i

QUESTIONS PRESENTED

Was the trial evidence legally sufficient to support

Petitioner’s conviction for bribery (18 U.S.C. §201(b)

(1)(A), and conspiracy to commit bribery (18 U.S.C.

§ 371), where no payments were made to a govern-

ment officer, or employee?

Did the trial court unlawfully constructively amend

the indictment to alter the charges contained in the

indictment, resulting in a prejudicial variance?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............ccccceees i

TABLE OF COUT iccciisdsceeaeee ii

TABLE OF AUTHOREQEGS .. icid.cecsckunctecsvac: iv

OPINION BELOW. occ eee l

STATEMENT OF JURISDICTION.........5...... l

CONSTITUTIONAL PROVISION INVOLVED ... l

STATUTORY PROVISIONS INVOLVED......... l

STATEMENT OF PAE TS... is iccscesuceseeabonaows 2

A. The Government’s Case .. .....0..ccccccces 2

1. Operation “Wild Card” .......cccccccess 2

2. Petitioner Travels to the Northern

District for Processing.................. 6

3. Mercado Only Discusses Payment with

Pedra CORORINE «ici cc covcaueswebanees 8

B. The Jury Instructions and Verdict .......... 9

C. The Semteneiet q. ccsickssccausatea ee. 9

D. The Agee «xs sasisastasavaned eee 10

REASONS FOR GRANTING THE PETITION

I. PETITIONER DID NOT BRIBE A PUBLIC

INES Ci uutes bey suede debs i chbcduekceasess

1. Aiding and Abetting ....................

Pic I Silva thnkakaawsdncutns dnwbadens

Il. THE DISTICT COURT CONSTRUCTIVELY

AMENDED THE INDICTMENT, THEREBY

EFFECTING A PER SE VIOLATION OF

PETITIONER’S FIFTH AMENDMENT

RIGHTS. ....... LeMhbaebabesvs sekdeecdeswivasckas

Appendix:

Opinion of the Court of Appeals...............

10

11

13

14

15

iV

TABLE OF AUTHORITIES

; Page

Federal Cases

Sg AN WE OD oni akdcnaesvstickdennkcks ck 13

Ex Parte Bain, 121 U.S. 1,7 S. Ct. 781 [1887]... 15

Dixon v. United States, 465 U.S. 482,

Ware ee ee We I nda vonsanace) cadvccksx, 11

Nye & Nissen v. United States, 336 U.S. 613

I ia ith ee ek ea er 12

Schmuck v. United States, 489 U.S. 705, 717-18,

a |. ROSS Rie otra 15

Stirone v. United States, 361 U.S. 212,

80 S. Ct. 270-272-74 [1960] ................ veh 15

United States v. Best, 219 F.3d 192 [2d Cir. 2000}

cert. denied, 532 U.S. 1007 [2001] ............ 12

United States v. Ceballos, 340 F.3d 115

SNF G: SEE baie Sead eee tn: 3n, 8n, 13

United States v. Choy, 309 F.3d 602

4 Pree at See Re 13

United States v. Ivania M. Couto, 119 Fed. Appx

Fe I IE ss Se bv ona scent 1, 10, 14

United States v. Gaviria, 740 F.2d 174

SU i he 13

United States v. Labat, 905 F.2d 18

ST SEE abc cpiedisWeens cicero ee 12

Page

United States v. Medina, 32 F.3d 40

Sy POE A dank kgs akin beauabedenededoniéas 12

United States v. Peoni, 100 F.2d 401

Ss es RUE aa bdunadad on daukcapaacdodededueaes 12

United States v. Pipola, 83 F.3d 556, 562 [2d Cir.]

cert. denied, 519 U.S. 869 [1996].............. 12

United States v. Rosenblatt, 554 F.2d 36

DBs) Rep er ers Up Oe Sr eRe 13

United States v. Samaria, 239 F.3d 228

SEG SUED dacacantatuscsiaecieredeconeatian 11, 13

United States v. Soto, (Pefia), 97 F.3d 546, 549-550

Se EA. ROE célackpupatadddiastaccspucteshines 12

United States v. Sun Diamond Growers,

526 U.S. @ 404-05, 119 S.Ct. 1402-1406 ..... 10, 11

United States v. Wallace, 85 F.3d 1063

Le GAs SOUND Lixidbwddaeaddeccay Sandseaeeiess 13

United States v. Wiley, 846 F.2d 150

PS UE 450 kb kes dda dedsekuosvanmenie nade 12

United States v. Wozniak, supra,

SE RD SF 25dcth tendkiaxcbdnedencaceeeden 15

Federal Statutes

Be Ui ans 2 EE TOD ck chp bused coeaseuadens 1, 10, 14

er as ie Pe 004.5 sae hee nen sknunadeaanes |

ita 60 ae ee 1

OPINION BELOW

On January 14, 2005, the United States Court of Appeals

for the Second Circuit issued a Summary Order affirming

Petitioner's judgment of conviction (United States v. Iva-

nia M. Couto, 119 Fed. Appx 345 [2d Cir. 2005}).

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked pursuant to 29

U.S.C. § 1254(i). The Petition has been filed in a timely

manner, pursuant to Rule 13(3).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution

in pertinent part states:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury .. .”

STATUTORY PROVISIONS INVOLVED

18 U.S.C. §201(b)(1)(A) states:

“whoever—

(1) directly or indirectly, corruptly gives, offers,

or promises anything of value to any public offi-

cial, or person who has been selected to be a

public official ... with intent

2

(A) to influence any official act...

shall be fined under this title . . . or imprisoned

for not more than fifteen years .. .”

STATEMENT OF FACTS

A. The Government’s Case

1. Operation “Wild Card”

Between April, 1999 and June, 2000, New York State

investigators, together with agents from the former INS,

conducted undercover operation “Wild Card.” The opera-

tion “utilize[ed] green cards as an object to obtain nar-

cotics for money.” During the investigation, green cards

were provided to known narcotics traffickers and brokers

as a commodity, paid for with narcotics.

Investigators believed that drug dealers coveted “green

cards” “because it allows individuals who otherwise could

not be able to travel freely to and from their countries, in

this case Colombia, and back to the United States to be

able to continue working in the narcotics deals, to go their

original countries to enjoy the fruits of their labor, which

were the primary goals and primary targets.” Id. “Green

cards” allowed the drug dealers to travel and obtain other

United States documents (such as Social Security cards

and drivers licenses).

Drug traffickers preferred payment in narcotics rather

than cash; “green cards” were valued in return for the

' Since March, 2003, the former INS is the “Immigration and

Customs Enforcement” subdivision of the Department of Homeland

Security.

3

drugs. For example, depending on the specific alien

involved, the cards were assessed a worth of $10,000 in

return for a kilo of drugs which was valued at $30,000,

three cards would be issued to cover the drug price.

The officers contacted with different individuals during

the investigation. They included persons who brokered

drug deals; those who brokered green cards to needing per-

sons; aliens who overstayed their visas; and “mules” sole-

ly hired to transport narcotics from New York City to the

investigators’ designated destination, New York’s North-

ern District. One goal of the operation was to infiltrate

these narcotics groups, and thereby determine their supply

source, infrastructure, and identify their co-conspirators.

Investigator Mercado acted as a Dominican drug traf-

ficker with connections both in New York City and Cana-

da. Ferdinando (“Fern”) Ortega worked for Mercado in the

same undercover capacity. Thomas O’Connell played a

corrupt INS official.”

Mercado was introduced to Pedro Gonzalez, a broker of

both drugs and aliens desiring green cards. Gonzalez

would intreduce a drug supplier to a receiver (or purchas-

er), and from both parties. When Gonzalez saw that he

could broker persons looking for the green cards which

Mercado supplied, he did so.

2 DEA Special Agent Ulysses Delgado, who did not testify at trial

(but see United States v. Ceballos, 340 F.3d 115 [2d Cir. 2003]), was

also involved in the investigation. His role was strictly to make

arrangements for delivery of narcotics from the brokers, obtain the nar-

cotics, and negotiate prices. Mercado’s job was to schedule aliens for

green card processing, and set the price on the green cards that would

result. Mercado would then inform Delgado of the price so that Delga-

do could deduct it from the value of the drugs received.

4

During the operation, Gonzalez contacted Mercado

when he had green card customers. Gonzalez would enlist

aliens, including undocumented illegal immigrants, those

legal entrants with expired visas, and those who had re-

entered illegally. Mercado was unaware whether Gonzalez

passed himself off as an attorney in his efforts to recruit

aliens with immigration problems.

In furtherance of alien “processing,” Gonzalez collected

the names, dates of birth, and individual passports of those

he intended to transport upstate. Each alien had two pho-

tographs. This information allowed investigators to deter-

mine if any of the aliens were wanted by other agencies,

and whether they had actual prior arrests, or outstanding

warrants.

Mercado then contacted Gonzalez, indicating that

“Maestro” (Agent O’Connell’s pseudonym) was willing to

meet the aliens on a particular date. Mercado told Gonza-

lez that:

“Maestro, which is the named [sic] that we used

for Special Agent Tom “O’Connell from the

INS, was willing to meet on such and such date,

at which time he [i.e., Gonzalez] would provide

me the names of individuals he would be bring-

ing up that day.”

Gonzalez would provide Mercado with the names of

those whom the broker was intending to transport.} _

> O’Connell explained that the targets “.did not have any idea of

what my official position was as it relates to Immigration; they never

referred to me as an agent or an officer. I was merely a corrupt person

who worked for the INS.” O’Connell, however, sought to make the pro-

cessing itself appear “as official” as possible.

5

On the designated date, Gonzalez would either personal-

ly transport the aliens, or they used multiple vehicles fol-

lowing Gonzalez. Upon arrival, the aliens would meet with

Mercado, Delgado, and other undercover individuals at the

Fox Run Restaurant, located in New Baltimore, New York.

Mercado spoke with each individual whom Gonzalez

had transported, advising them of “the system,” and what

the processing would entail. They learned they would be

taken to a room at a nearby “Best Western” motel to meet

“an individual,” who would start processing them; taking

biographical information, including examining their pass-

ports to determine their validity. Once in the room, as part

of the green card processing, they would be fingerprinted

by “the individual,” and photographed.

In June, 1999, Mercado and Gonzalez agreed to a $5,000

per “green card” processing fee. At the time of initial pro-

cessing, Mercado expected half, or $2,500. The balance

would be due when the card became available. As the

investigation progressed, the price increased to $7,000. By

the time it ended, the price had risen to $9,500 for an alien

with no prior law enforcement encounters. An alien with a

prior history, paid more. a

When Gonzalez delivered one group to Mercado, Gon-

zalez brought the passports for the next set of individuals

scheduled for future processing. As new persons arrived,

they received their passports “by the individual” [i.e.,

O’Connell] who awaited their arrival. As they entered the

room, he would provide the passport, and proceed to

process.” Pedro Gonzalez ultimately brokered about 36

greed card-seeking aliens.

6

On March 22nd, 2000, Mercado telephoned contacted

Gonzalez, and arranged to bring up six individuals for pro-

cessing. Previously, Mercado was given their names by

Gonzalez, who had also delivered one kilo of heroin val-

ued at $78,000 intended for Special Agent Delgado.

Because six people were processed on that day, $29,500

was deducted as the value of six green cards, leaving Gon-

zalez a $48,500 balance. The undercover operatives

incurred a debt that day which was lowered on April 27th

when Gonzalez brought two more persons up for “green

cards.” By May 19th, Gonzalez was owed a $37,500 bal-

ance.‘

Although Petitioner was not present on March 22nd,

Mercado obtained background information about her from

Gonzalez, who had provided her passport,’ including her

name, her date of birth, and documentation.

2. Petitioner Travels to the Northern District for

Processing

The earlier debt owed to Gonzalez continued to May

19th when he brought Petitioner Ivania Couto—the moth-

er of a 10 year-old American citizen son—to the “Fox Run

* Once the green card would be delivered, the “balance of pro-

cessing Ms. Couto on the 19th was $11,000.” Mercado: JA122. Such

balance, however, would not cover the cost of the other five persons

who were being processed that same date. Therefore, when those addi-

tional aliens would later receive their green cards, more hereon was

required. Mercado: JA122, 154.

* O’Connell noted that Petitioner’s visa would have expired on

November 22nd, 1991. Petitioner, unlike other processed aliens, pos-

sessed a valid Social Security number, and had her passport legitimate-

ly extended in 1995 for 10 years at the Brazilian Consulate in

Manhattan (until July, 2005).

7

Restaurant” for “green card” processing. No prior infor-

mation had surfaced in Petitioner’s case and, unlike many

other processed people, Petitioner had absolutely no con-

nection to the drug business.

Mercado initially met with Petitioner to insure her doc-

uments were in order. Petitioner learned that she would be

meeting “an individual” inside the motel room who would

be asking biographical questions, and thereafter take her

fingerprints.

When asked concerning any prior encounters with law

enforcement or immigration, Petitioner, who was “very

relaxed,” “calm,” and “friendly,” stated she had previously

filed a petition with immigration to obtain a “green card”

through marriage. After indicating the process was incom-

plete, Mercado noted it made “no difference,” since a file

would have been created. Petitioner learned that if she had

any questions, she should ask the “individual” at the motel.

Petitioner accompanied Ortega to the “Best Western” motel

room with another person, Aracella Mufioz.

O’Connell asked whether the two women had been

searched, and whether they possessed anything on their per-

sons. He then processed them. O’Connell advised Petitioner

concerning what answers to give inspectors at the airport to

avoid arrest, or being subjected to another proceeding.

At the conclusion, O’Connell (as he knew of the elements

of the contemplated criminal charge), asked Ortega if they

were “all set with the payment.” Ortega then asked Petition-

er in Spanish (using the word “plata” which means “money”)

who, as a native Brazilian, primarily spoke Portuguese

(although she is knowledgeable in both English and Spanish

as second and third languages), responded “it’s with Pedro.”

8

When O’Connell therefore asked if Pedro was “taking care

of it,” Petitioner told O’Connell that Pedro was “taking care

of it.”

3. Mercado Only Discusses Payment with Pedro

Gonzalez

Investigator Mercado never spoke with Petitioner about

the price of the green card—only with Gonzalez. They never

discussed drugs, or that Gonzalez was acquiring her green

card with drugs. O’Connell never took money from any

aliens whom Gonzalez brought up, and certainly not from

Petitioner.

Mercado told Gonzalez that the “new price” for persons

with “standard problems” was $9,500. Because Petitioner

had prior INS contact (and her file would consequently

need to be removed), the price would be higher.

As a matter of practice, Mercado never spoke with aliens

about price, because it was his understanding with Gonza-

lez that the broker would charge the aliens more money

(whether $2,000 or $3,000), and he did not want to under-

cut Gonzalez’s profit margin. In addition to the “green

cards” being used to purchase the drugs, the aliens seeking

them were likewise being used by the drug dealers as a

financial source.’

6 Similarly, Mercado, who first heard later that day that Petition-

er had paid Gonzalez, did not know how much she had given him. Mer-

cado: JA84. In fact, he had no idea what she knew or did not know.

Mercado: JA105.

-

The investigators invariably placed Gonzalez in a money

squeeze vis a vis his suppliers—including Gabriel Ceballos (see Cebal-

los, supra), to learn their identities. They had no idea, however, what

Gonzalez was telling the aliens in order for him to obtain more money

to pay off his drug purchase obligations.

9

B. The Jury Instructions and Verdict

After the Government rested, the denial of counsel’s

Fed.R.Cr.P. 29 motion for a judgment of acquittal, and

counsel’s closing arguments, the District Court, in con-

formity with its earlier pre-trial ruling charged the jury

that:

“[t]he defendant must have promised, offered[ ,

or given heroin to the public official with the

deliberate purpose of influencing an official act

of that person.” JA509.

Nonetheless, in a subsequent response to a jury question

following a reported deadlock, and the giving of a duly

protested Allen charge, Judge McAvoy charged that it was

no defense that Petitioner lacked knowledge of drug activ-

ity. The jury soon returned, and convicted Petitioner on

both counts.

C. The Sentencing

On March 4th, 2004, Petitioner appeared before Judge

McAvoy for sentencing. The District Judge, in response to

her statement, “I just want to be with my son” (SPA8),

observed:

“T still believe that you were motivated almost

entirely by your desire to remain in this country

and bring your son up, which you are doing an

excellent job of, no question in my mind about

that, and you should feel good about that. And

the way this thing came down, the Court cer-

tainly understands why you did what you did. It

10

wasn’t right; you know that; and I believe you’ve

accepted responsibility for that.”

“The Court thinks it’s an unfortunate circum-

stance when people who clearly would make

solid good citizens of the United States, are

penalized because of the way our immigration

laws are set up, and the Court—and I can’t

speak for the legislature, I can’t speak for the

Congress, but I can speak for myself, and I think

that you certainly are the type of person we

want in this country, as well as your son.

(SPA8-9, 14).”

The Court sentenced Petitioner to two concurrent five-

year probationary terms, a six-month term of home deten-

tion, and a $2,500 fine, together with a $100 special

assessment.

D. The Appeal

Petitioner unsuccessfully appealed to the United States

Court of Appeals for the Second Circuit which, on January

14th, 2005 affirmed the judgment of conviction (see Unit-

ed States v. Couto, 119 Fed.Appx. 345 [2d Cir. 2005]).

I.

PETITIONER DID NOT BRIBE A PUBLIC OFFICIAL

Bribery under 18 U.S.C. § 201(b)(1)(A) is a specific intent

crime (United States v. Sun Diamond Growers of Califor-

nia, 526 U.S. 398, 404-05 [1999]). To be convicted of

bribery of a public official, therefore, the evidence must

1]

demonstrate that the accused specifically intended that

some benefit be given to such official in return for the cor-

rupt influencing of conduct within the official’s authority

(Dixon v. United States, 465 U.S. 482, 104 S.Ct. 1172, 1176-

80 [1984]) (bribery to employees of community-based

social service organization administered federal program.

In this regard, “/t/he ‘corrupt’ intent necessary to a

bribery conviction is in the nature of a quid pro quo

requirement; that is, there must be ‘a specific intent to give

. something of value in exchange for an official act’”

(Sun Diamond Growers, 526 U.S. @ 404-05, 119 S.Ct.

1402-1406) (emphasis in original). Putting it only slightly

differently, bribery involves the giving of value to procure

a public official’s action (United States v. Sun Diamond

Growers, supra, 119 S.Ct. 1408-1410). There was no such

proof attendant to payment in this case.

1. Aiding and Abetting

Under 18 U.S.C. § 2(a), anyone who:

“aids, abets, counsels, commands, induces or

procures,” the commission of a crime against the

United States “is punishable as a principal,” with

respect to that crime. As with a substantive

bribery charge, aiding and abetting a principal

constitutes a specific intent crime (United States

v. Samaria, 239 F.3d 228, 234-35 [2d Cir. 2001]).

To aid and abet bribery, the Government must prove

beyond a reasonable doubt that the underlying bribery,

which Petitioner allegedly aided and abetted, was commit-

ted by one person other than the Petitioner, and that the

Petitioner acted consciously, and with the specific purpose

of accomplishing that offense (Samaria, supra; citing

12

United States v. Best, 219 F.3d 192, 199 [2d Cir. 2000]

cert. denied, 532 U.S. 1007 [2001)}).

Otherwise stated, “[t]o sustain a conviction for aiding

and abetting, [the Court] must find that ‘the Petitioner

joined the specific venture and shared in it, and con-

tributed to its success’” (United States v. Labat, 905 F.2d

18, 23 [2d Cir. 1990]; see also Nye & Nissen v. United

States, 336 U.S. 613, 619 [1949]; United States v. Peoni,

100 F.2d 401, 402 [2d Cir. 1938]; United States v. Medina,

32 F.3d 40, 45 [2d Cir. 1994]). “[T]Jhe Government there-

fore must prove that the underlying crime was committed

by someone other than the Petitioner, and that the Peti-

tioner herself either acted, or failed to act, with the specif-

ic intent of advancing the commission of the underlying

crime (see United States v. Labat, supra; United States v.

Pipola, 83 F.3d 556, 562 [2d Cir.] cert. denied, 519 U.S.

869 [1996]).

[T]o show specific intent, the prosecution must prove

the Petitioner knew of the proposed crime—suspicion that

it might occur is not enough—and had an interest in fur-

thering it (see United States v. Wiley, 846 F.2d 150, 154

[2d Cir. 1988]; Pipola, supra, 83 F.3d @ 562, cf United

States v. Soto, (Pena) 97 F.3d 546, 549-550 [2d Cir. 1995])

(Cianci used a Customs Department stamp on two occa-

sions in Pefias presence, while leaving documents with

agency’s official authorization, and his own badge number).

In short, a person accused of accessorial conduct must

have committed some act or omission which knowingly,

and intentionally, furthered the criminal end of the princi-

pal’s “proposed crime.” We dispute that such proof was

established herein.

13

2. Conspiracy

Conspiracy to commit bribery, like the subject offense,

is a specific intent crime (Ceballos, supra). Therefore, in

furtherance of such conspiracy, the government must

prove that Petitioner acted with the specific intent to vio-

late the bribery statute. Jd. (Samaria, supra; citing United

States v. Gaviria, 740 F.2d 174, 183 [2d Cir. 1984]; Unit-

ed States v. Wallace, 85 F.3d 1063, 1068 [2d Cir. 1996}).

This includes competent proof that Petitioner intended to

corruptly influence an official act, by a known federal

official (A/fisi, 308 F.3d @ 149).

There was no proof that Petitioner knew O’Connell was

a “public official.” The Panel decision went to great

lengths to distinguish United States v. Choy, 309 F.3d 602

{9th Cir. 2002] involving money and a computer given to a

private individual who, it was believed, could secure ille-

gal customs clearance from a government official. We sub-

mit that this case is similar to Choy, since Gonzalez was

not a federal official. There was never a “meeting of the

minds” (United States v. Rosenblatt, 554 F.2d 36 [2d Cir.

1977]) that a federal official would be paid. We submit

that, against this backdrop, there is a conflict among the

Circuit Courts with respect to Section 201 prosecutions

involving payments to non-officials. Whatever the ulti-

mate outcome, this legal conflict cries out for resolution by

this Court, because the same conduct which is unlawful in

the Second Circuit, is valid throughout the Ninth Circuit.

Like Choy, Couto did not give money to a government

official. She gave it to a private person—Pedro Gonza-

lez—in the not unreasonable view he was a private immi-

gration consultant.

14

Il.

THE DISTRICT COURT CONSTRUCTIVELY

AMENDED THE INDICTMENT, THEREBY

EFFECTING A PER SE VIOLATION OF PETI-

TIONER’S FIFTH AMENDMENT RIGHTS

Petitioner’s indictment charged the 18 U.S.C. § 201(b)

(1)(A) “thing of value” was “heroin delivered on March

22nd, 2000, and future heroin promised.” The government

conceded that Petitioner was unaware of the involvement

of such drugs (see United States v. Couto, supra, 311 F.3d

@ 182,n.1).

Mindful of this assumed evidentiary obstacle, Petition-

er’s trial counsel thereafter argued to the jury inter alia

that there was no evidence of an agreement between Pedro

Gonzalez and Petitioner involving the giving of heroin to

a public official. The defense advanced this argument after

being informed by the District Court’s ruling, upon deny-

ing Petitioner’s motion to dismiss, that “while this may

affect the government's ability to prove its case to the jury,

JA75a-76a, it would “still charge the jury that the ‘thing of

value’ allegedly paid to the INS officer was heroin.” Id.

In its later response to a jury note, and over defense

objection, the District Court changed its position prejudic-

ing the defense. For the first time, the Court concurred

with the government’s circumvention of the indictment—

on the heels of having given a protested Allen charge to a

deadlocked jury—by instructing that it was no defense to

the bribery “that the Petitioner had no knowledge of the

specific thing of value that was actually given, offered, or

promised to the public official by someone on her behalf.”

JASS58.

15

This dramatic judicial alteration went to the very “core

of criminality to be proven at trial” (United States v. Woz-

niak, supra, 126 F.3d @ 1909). It constructively amended

the indictment which the Grand Jury had earlier returned.

As a result, there was a per se violation of the Fifth

Amendment, and Petitioner should be afforded a new trial.

It has been “black letter law,” at least since Ex Parte

Bain, 121 U.S. 1, 7 S.Ct. 781 [1887] that, after an indict-

ment has been returned, its charges may not be broadened

by amendment, except by Grand Jury action. In a consis-

tent line of cases, including Stirone v. United States, 361

U.S. 212, 80 S.Ct. 270-272-74 [1960], this Court has hewed

to this view of the Fifth Amendment.

More recently, in Schmuck v. United States, 489 U.S.

705, 717-18, 109 S.Ct. 1443, 1451 [1989], this Court re-

affirmed its lack of tolerance for variances which erode the

accused’s notice of the filed charges. The variance here

involved “heroin delivered and future heroin promises.”

Where, as here, the governments conceded Petitioner’s

lack of knowledge of such drugs, the charge effected by

Judge McAvoy was effectuated with the deft skill of a

“three-car Monti” dealer.

The criminal justice system requires more. This Court

should grant review to revisit Stirone, and re-affirm the

constitutional error in prejudicial variances of this kind.

CONCLUSION

The petition for a writ of certiorari should be granted,

the judgment of the court of appeals for the second circuit

vacated, and the case remanded for appellate review con-

sistent with this court’s ruling.

16

Dated: New York, New York

April 12, 2005

Respectfully submitted:

/s/ ROGER BENNET ADLER

ROGER BENNET ADLER, P.C.._

Attorney for Petitioner

225 Broadway — Suite 1804

New York, New York 10007

— = (212) 466-181

ROGER BENNET ADLER

DENNIS SCHLENKER

Of Counsel

APPENDIX

_A-]

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTEN-

TION OF THIS OR ANY OTHER COURT IN A SUBSE-

QUENT STAGE OF THIS CASE, IN A RELATED CASE,

OR IN ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

No. 04-1516-CR

January 14, 2005

UNITED STATES of America,

Appellee,

V.

Ivania M. COUTO,

Defendant-Appellant.

UPON DUE CONSIDERATION of this appeal from

the United States District Court for the Northern District

of New York (McAvoy, J.), it is hereby ORDERED,

ADJUDGED, AND DECREED that the judgment of the

district court is AFFIRMED.

NEMO pet ich Ut a eS es NORIO ELIE Ss aa

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Mark M. Baker, Brafman & Ross, P.C.

(Benjamin Brafman), New York, New

York, for Appellant, of counsel.

Richard S. Hartunian, Assistant United

States Attorney for the Northern District

of New York (Glenn T. Suddaby, United

States Attorney for the Northern District

of New York, on the brief, Robert P.

Storch, Senior Litigation Counsel), for

Appellee, Albany, NY, of counsel.

Present: WINTER, SOTOMAYOR, and B.D. PARKER,

Circuit Judges.

ORDER

Defendant Ivania M. Couto appeals from a judgment of

the United States District Court for the Northern District

of New York (McAvoy, J.) after conviction for conspiring

to commit and committing bribery in violation of 18

U.S.C. §§ 371, 201(b)(1)(A), and 2. Couto was principally

sentenced to five years of probation with six months of home

detention. For the reasons to be discussed, we reject Couto’s

challenges to her conviction. We also assume familiarity by

the parties with the facts and procedural history of the case.

The federal bribery statute, codified in relevant part at

18 U.S.C. §201(b)(1)(A), imposes criminal penalties on any-

one who “directly or indirectly, corruptly gives, offers or

promises anything of value to any public official or any per-

son who has been selected to be a public official, or offers or

promises any public official or any person who has been

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selected to be a public official to give anything of value to

any other person or entity” with intent “to influence any offi-

cial act.” Couto argues that the evidence only established that

she paid money to Pedro Gonzalez, a private broker who traf-

ficked in drugs and illegal green cards, so that Gonzalez

would secure a green card for her. According to Couto, this

evidence was insufficient to establish her intent that a “thing

of value” be given to a “public official,” within the meaning

of § 201(b)(1)(A), in exchange for an illegal green card. We

disagree.

A jury’s verdict must be upheld if “any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). At the end of the illicit

transaction during which Couto secured her false immigration

papers, the individual processing her paperwork (Thomas

O’Connell, an undercover law enforcement official posing as

a corrupt immigration official) asked Couto if the payment

for illegal immigration documents had been settled. In

response, she stated that the funds for the transaction were

with “Pedro” and affirmatively indicate that Gonzalez would

resolve the payment. This exchange was more than sufficient

for the jury to reject Couto’s assertion that Gonzalez was the

only intended recipient of her funds.

Couto also asserts that insufficient evidence existed to

support her knowledge that O’Connell was a public offi-

cial. During his transaction with Couto, however, O’Connell

indicated to her that he had access to the federal government’s

immigration files; described regional immigration processing

centers as “our local offices”; repeatedly referred to the gov-

ernment’s computing setup for immigration matters as “our”

system; stated that he possessed an “approval stamp” that

would allow Couto to circumvent questioning by immigration

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officials; coached Couto on methods for evading detection by

immigration authorities; and conversed in immigration termi-

nology and about immigration procedures. A rational trier of

fact could have found that this evidence established Couto’s

knowledge that O’Connell was a corrupt immigration

employee. Cf. United States v. Jennings, 471 F.2d 1310,

1312-13 (2d Cir. 1973) (holding that conviction under federal

bribery statute does not require proof that defendant knew of

bribed official’s federal status but only proof that defendant

has “some form of knowledge that the person bribed was an

official.”). Couto’s reliance on United States v.Choy, 309 F.3d

602 (9th Cir. 2002) is unpersuasive. In Choy, the Ninth Cir-

cuit declined to uphold the bribery conviction of an individ-

ual who gave money and a computer to a private individual

who, in turn, agreed to secure illegal customs clearances from

a government official. 309 F.3d at 604, 606. Because the

defendant gave nothing directly to the government official,

but merely-facilitated the private intermediary’s ability to

obtain the illicit customs approvals, the court found that the

defendant’s acts did not fall within the terms of the bribery

statute. Jd. at 606. The Choy defendant only met with the gov-

ernment official to discuss the customs clearance plan, not to

offer him an item of value in exchange for his assistance in

securing false customs approvals. Jd. at 604, 605. The instant

case is readily distinguishable, for the evidence establishes

that Couto intended for an item of value to be given directly

to an individual she had every she had every reason to per-

ceive to be a public official in exchange for his commission

of a crime on her behalf.

Couto next argues that the district court’s jury instruc-

tion constructively amended the indictment. The Fifth

Amendment establishes a defendant’s right to be tried only

on charges contained in a grand jury indictment. United

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States v. Clemente, 22 F.3d 477, 482 (2d Cir. 1994). “A

constructive amendment occurs when the government’s

presentation of evidence and the district court’s jury

instructions combine to modify essential elements of the

offense charged to the point that there is a substantial like-

lihood that the defendant may have been convicted of an

offense other than the one charged by the grand jury.”

United States v. Vebeliunas, 76 F.3d 1283, 1290 (2d Cir.

1996) (citation and internal quotation marks omitted). This

Court has established that “not every variance between the

words of the indictment and the evidence presented at trial

or the instructions given to the jury amounts to a construc-

tive amendment,” United States v. Ansaldi, 372 F.3d 118,

127 (2d Cir. 2004). Rather, “an impermissible alteration of

the charge must affect an essential element of the offense.”

United States v. Patino, 962 F.2d 263, 266 (2d Cir. 1992).

A constructive amendment is a per se violation of the Fifth

Amendment that requires reversal regardless of whether

the constructive amendment actually prejudiced the defen-

dant. Clemente, 22 F.3d at 482.

During the course of its deliberations, the jury asked the

district court, inter alia, if it was a defense to the crime of

bribery that the defendant had no knowledge of the spe-

cific thing of value (in the instant case, heroin) that was

actually given, offered or promised to the public official by

someone else on her behalf. The district court responded

that this was not a defense. Couto argues that this instruc-

tion constructively amended the indictment.

This argument lacks merit. The indictment stated in rel-

evant part that the named defendants, including Couto,

“directly or indirectly did corruptly give, offer and prom-

ise a thing of value as set forth below, to an employee of

the United States Department of Justice, Immigration and

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Naturalization Service (INS), a public official, with the

intent to influence an official act . . .” Count Eighteen of

the indictment identified that thing of value as “[h]eroin

delivered on March 22, 2000 and future heroin promised.”

Similarly, the conspiracy charge in the indictment stated

that the thing of value was “[h]jeroin promised.” The

indictment did not specify that Couto directly delivered,

gave or promised heroin. The government stipulated at

trial to the fact that Couto had no knowledge that Gonza-

lez delivered heroin in exchange for her illegal green card.

- Throughout the trial proceedings, the government repeat-

edly stated that its theory of the case never necessitated

proof of Couto’s knowledge that heroin was exchanged for

the illegal green card but only required proof that Couto

offered “something of value” to influence a public official.

Couto has not established that the contested jury charge

varied from the indictment of the government’s position at

trial such that she was convicted for a crime for which she

was not charged. Nor does Couto show that the govern-

ment introduced evidence that could have permitted the

jury to convict her on grounds different from those set

forth in the indictment. The jury charge also did not

require proof of Couto’s knowledge that heroin would be

given to O’Connell. Accordingly, Couto’s case is readily

distinguishable from those in which we have found con-

structive amendment. See, e.g., United States v. Wozniak,

126 F.3d 105, 108-11 (2d Cir. 1977) (holding that con-

structive amendment occurred when indictment charged

defendant with cocaine and methamphetamine offenses but

government’s evidence consisted primarily of marijuana

evidence and district court charged jury that it could con-

vict regardless of illegal substance involved); United

States v. Zingaro, 858 F.2d 94, 102-103 (2d Cir. 1988)

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(finding that constructive amendment occurred because

government introduced evidence of extortionate act that

did not form basis of indictment).

For the reasons discussed, the judgment of the district

court is AFFIRMED.

FOR THE COURT:

Roseann B. MacKechnie, Clerk

By: