United States of America, Plaintiff-appellee, v. James Van Buren, Defendant-appellant, 513 F.2d 1327 (10th Cir. 1975)

Defendant was charged in a two-count indictment with violations of 21 U.S.C. § 841(a) (1), the unlawful distribution of cocaine. He was acquitted on Count 1, an incident alleged to have occurred in Aspen, Colorado, and found guilty on Count 2, a transaction occurring in Denver. He appeals from the judgment and sentence imposed on the second count.

Defendant's appellate claims of trial error are two-fold neither being complex or meritorious. First, a fatal variance between the charge and proof is asserted premised upon a charge alleging the distribution of cocaine and proof of distribution of cocaine hydrochloride. We take judicial notice of the fact that cocaine hydrochloride is a prohibited drug under the subject statute and that no variance is present. Jordan v. United States, 10 Cir.,345 F.2d 302. And see United States v. Mills, 149 U.S.App.D.C. 345, 463 F.2d 291, 296 n.27.

In submitting the case to the jury, the trial court instructed on the so-called "procuring agent" defense.¹  Defendant testified that his activity in the procuring and distribution of the drug was simply that of a conduit, "nonprofit" procuring agent. His testimony was not rebutted nor did the government object to the instruction. The instruction, though erroneous,²  was clearly favorable to the defendant and thus does not require reversal. Killian v. United States, 368 U.S. 231, 258, 82 S. Ct. 302, 7 L. Ed. 2d 256. The instruction did not, as in Michaud v. United States, 10 Cir., 350 F.2d 131, insert a confusing and false issue into the case to the detriment of the defendant.

Affirmed.