SUMMARY ORDER
Defendant-Appellant Tmls Soerbotten ("Soerbotten") appeals from a September 25, 2009 judgment of the United States District Court for the Eastern District of New York (Dearie, C.J.), convicting him, after trial by jury, of one count of importation of a controlled substance, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(2)(A), and one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i), and sentencing him to 60 months' imprisonment on each count, to run concurrently, a five year term of supervised release, and a $100 special assessment on each count. We assume the parties' familiarity with the underlying facts and procedural history of the case.
Soerbotten's sole argument on appeal is that the district court erred by constructively amending the grand jury indictment in its charge to the jury. The superseding indictment charging Soerbotten specified, in relevant part, that both counts "involved 100 grams or more of a substance containing heroin, a Schedule I controlled substance." J.A. 14. The evidence adduced at trial, however, demonstrated that Soerbotten believed the controlled substance he was transporting to be cocaine. In its charge to the jury, the district court instructed, inter alia, that both "heroin and cocaine are controlled substances within the meaning of the law," J.A. 18, and it was sufficient for the Government to prove that Soerbotten knew he was transporting some controlled substance, even if he believed it was cocaine, and not heroin. See id. Soerbotten argues that, in so doing, the district court constructively enlarged the grand jury indictment, by failing to "specify that in order to be convicted . . . the defendant had to have the intent to import heroin rather than cocaine." Appellant's Br. 6.
Generally, "[w]e exercise de novo review of a constructive amendment challenge, which is a per se violation of the Grand Jury Clause of the Fifth Amendment." United States v. Rigas, 490 F.3d 208, 225-26 (2d Cir. 2007) (internal citation omitted). Given that Soerbotten did not object to the jury charge below, however, "he may prevail on this argument only by establishing plain error." United States v. Vebeliunas, 76 F.3d 1283, 1291 (2d Cir. 1996). Plain error review requires a defendant to demonstrate, inter alia, "that (1) there was error, (2) the error was `plain,' [and] (3) the error prejudicially affected his `substantial rights.'" United States v. Flaharty, 295 F.3d 182, 195 (2d Cir. 2002) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). A constructive amendment is, however, " per se prejudicial" for the purpose of the third prong of plain error review. United States v. Thomas, 274 F.3d 655, 671 (2d Cir. 2001). Nevertheless, we find no error in this case, plain or otherwise.
To demonstrate constructive amendment, a defendant must show that either the proof at trial or the district judge's instruction "so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment." United States v. Milstein, 401 F.3d 53, 65 (2d Cir. 2005) (quoting United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003)). "The challenged alteration must affect an essential element of the offense," United States v. Rosenthal, 9 F.3d 1016, 1021 (2d Cir. 1993) (internal quotation marks omitted), and we have "consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial," United States v. Jespersen, 65 F.3d 993, 1001 (2d Cir. 1995) (internal quotation marks omitted). Further, a defendant asserting a constructive amendment challenge must demonstrate "a substantial likelihood that the defendant may have been convicted of an offense other than the one charged by the grand jury." United States v. Clemente, 22 F.3d 477, 482 (2d Cir. 1994). Soerbotten has failed to satisfy this burden.
It is well established that knowledge of the specific type of controlled substance is not an essential element of the drug offenses for which Soerbotten was convicted. See, e.g., United States v. Abdulle, 564 F.3d 119, 126 (2d Cir. 2009); United States v. Morales, 577 F.2d 769, 776 (2d Cir. 1978) ("[T]he law is settled that a defendant need not know the exact nature of a drug in his possession to violate [21 U.S.C.] § 841(a)(1); it is sufficient that he be aware that he possesses some controlled substance."). Here, "the only variance alleged . . . is the exact nature of the substance involved, heroin or cocaine." United States v. Knuckles, 581 F.2d 305, 311 (2d Cir. 1978). Evidence adduced at trial demonstrated that Soerbotten knew he was transporting a controlled substance; the only disputed issue was his knowledge of which controlled substance he was importing. Moreover, based on the quantity of drugs in his possession, Soerbotten was subject to the same statutory sentencing scheme whether he possessed heroin or cocaine. See 21 U.S.C. §§ 841(b)(1)(B), 960(b)(2)(A).
Since the nature of the controlled substance at issue — heroin or cocaine — affected "neither the Government's case nor the sentence imposed," any variance "cannot have prejudiced the ability of the defendant] to make [his] defense." Knuckles, 581 F.2d at 311; cf. United States v. Wozniak, 126 F.3d 105, 111 (2d Cir. 1997). The charges against Soerbotten arose from a "specific transaction occurring on a specific date," Wozniak, 126 F.3d at 111, and the "time, place, people, and object proved at trial [were] in all respects those alleged" in the indictment, Knuckles, 581 F.2d at 311. Soerbotten was "sufficiently apprised of the charges" laid against him, id., such that he was given adequate notice of the "core of criminality" to be proved at trial. See Jespersen, 65 F.3d at 1001. Nor can we say that Soerbotten has demonstrated a "substantial likelihood that [he] may have been convicted of an offense other than that charged in the indictment." Thomas, 274 F.3d at 671.
We have considered all of Soerbotten's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
edible basis for the allegations. The city therefore was able to show that it had legitimate doubts about Bell's suitability for such a sensitive position and, in our view, demonstrated that it had a "reasonable justification" for bypassing Bell.
Instead of focusing on whether the city had carried its burden of demonstrating a "reasonable justification," the commission focused on whether the city had proved that Bell in fact engaged in the misconduct. We believe the commission erred as a matter of law in placing such an added evidentiary burden on the city. In simple terms, neither Bell nor the commission has presented a convincing argument that the Legislature intended to force an appointing authority to hire a job applicant for such a sensitive position unless it is able to prove to the commission's satisfaction that the applicant in fact engaged in the serious alleged misconduct for which he was fired.
The commission initially declined to submit a brief. In light of the substantial deference owed to an agency interpretation of a statute it administers, see Provencal v. Commonwealth Health Ins. Connector Authy., 456 Mass. 506, 514 (2010), we invited the commission to submit a brief, and it accepted that invitation. The commission's brief principally focuses on the facts, not on how the underlying statute should be interpreted. The commission does appear to take the position that the city faced the specific burden of proving the truth of the third-party allegations of misconduct. However, it does little to attempt to support that position based on the case law, the language of the statute, or other considerations. Moreover, elsewhere in its brief, the commission appears to concede that there may well be some situations where an appointing authority would be justified in bypassing a candidate based on prior misconduct without having to prove to the commission that the applicant in fact engaged in the misconduct, e.g., "where a candidate has been convicted of a crime or found responsible for some other type of misconduct by a court or governmental body." In any event, to the extent that the commission interprets an appointing authority's over-all burden to prove a "reasonable justification" as encompassing a specific burden of proving the truth of third-party allegations of misconduct, we consider that an unreasonable interpretation to which deference is not due.
Moreover, we believe that the commission's position that the city must hire Bell unless it can prove the truth of the third-party allegations would force the city to bear undue risks. In this respect, Cambridge v. Civil Serv. Commn., 43 Mass. App. Ct. at 301, is instructive. There, an applicant for a police position had long ago engaged in certain misconduct. Recognizing that hiring the applicant posed a risk, we concluded that "[w]hether to take such a risk is, however, for the appointing authority to decide." Id. at 305. Although the context presented here obviously differs in that the parties dispute whether the past misconduct ever occurred, the risks presented are similar. After completing its own independent review, the city decided that it was unwilling to bear the risks of hiring Bell. Absent proof that the city acted unreasonably, we believe that the commission is bound to defer to the city's exercise of its judgment.
We discern no conflict between our reasoning here and that of Leominster v. Stratton, 58 Mass. App. Ct. at 732-733. That case involved a city's termination of a tenured police officer who had been accused of sexually abusing his daughter and stepdaughter. The commission reinstated the officer after concluding that the evidence demonstrated that the allegations were in fact false. Id. at 729-731. A Superior Court judge vacated the commission's order. We reversed, concluding that the Superior Court judge should have deferred to the commission's finding of the facts. We distinguished Cambridge v. Civil Serv. Commn., supra, by noting that the misconduct there was undisputed, while in Leominster v. Stratton, the commission found that "the facts justifying [the city's action] did not exist." 58 Mass. App. Ct. at 732-733. Bell argues that the commission here similarly determined that he was falsely accused and that Leominster v. Stratton, supra, therefore dictates that the commission's decision be affirmed. We disagree.
Although we did not expressly note that the police officer in Leominster v. Stratton had obtained tenure, that status is evident from the fact that his termination proceedings were conducted under the provisions applicable to tenured employees. 58 Mass. App. Ct. at 726-727, citing G.L. c. 31, §§ 41, 43.
The context presented in Leominster v. Stratton, supra at 726, was significantly different. That case involved the discipline of a tenured employee, not an initial hiring decision. Ibid. Therefore, the appointing authority in that case had to demonstrate that it had acted with "just cause" to fire its employee (see G.L. c. 41, § 43), not merely that there was "reasonable justification" to bypass a job candidate. We think that the standards are materially different. Simply put, a municipality should be able to enjoy more freedom in deciding whether to appoint someone as a new police officer than in disciplining an existing tenured one.
Further, it bears noting that in Leominster v. Stratton, the commission found — after two rounds of evidentiary hearings — that the allegations of misconduct were demonstrably false, having been fabricated by the police officer's former wife. Id. at 730. By contrast, although a majority of commissioners here concluded that Bell was a credible witness, they appear in the end to have found the evidence inconclusive and ultimately rested their ruling on the city's failure to prove that the allegations of misconduct were in fact true, a burden that we have concluded the commission erroneously assigned to the city.
Nor is this a case where the individual who allegedly engaged in misconduct successfully confronted the allegations in separate proceedings in which the truth of the allegations was directly at issue. Compare Lynn v. Thompson, 435 Mass. 54, 55, 58 (2001) (upholding arbitration order reinstating police officer who had been discharged for allegedly using excessive force, where arbitrator rested in part on the officer having been "exonerated" in separate civil proceedings). As noted above, there is no evidence that Bell ever sought to challenge the hospital's summary termination of him.
In sum, we agree with the judge below that the city demonstrated a reasonable justification to bypass Bell and that the commission improperly substituted its judgment for that of the city in ordering that he be hired.
Judgment affirmed