Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.united States of America, Appellee, v. Guy Joseph Duchi, Appellant, 972 F.2d 355 (8th Cir. 1992)

Guy Joseph Duchi appeals his convictions of possession of cocaine with intent to distribute, aiding and abetting possession of cocaine with intent to distribute, attempted possession of cocaine with intent to distribute, and aiding and abetting such activity, and travel from California to Minnesota in furtherance of the illegal narcotic activity. This case has been before our court on two previous appeals. In the first appeal, this court reversed Duchi's conviction because of illegally obtained evidence. See United States v. Duchi, 906 F.2d 1278 (8th Cir. 1990). In the second appeal, this court refused to allow the government to utilize an alternate theory for introduction of the suppressed evidence, but we held that the government was free to introduce incriminating testimony given by Duchi in a separate trial of his co-defendant, Constance Mae Conrad. See United States v. Duchi, 944 F.2d 391 (8th Cir. 1991). Duchi now appeals after conviction at his second trial in which he was found guilty on two counts in violation of 21 U.S.C. § 841(a) (1) & (b) (1) (B) and 18 U.S.C. § 2 and 21 U.S.C. § 846. He was also found guilty of violating one count of traveling in interstate commerce in aid of unlawful activity in violation of 18 U.S.C. § 1952(a). The facts are fully set forth in earlier opinions. Duchi now argues on appeal that the district court erred in (1) not suppressing certain portions of his prior testimony given in the trial of Conrad; and (2) in allowing testimony concerning the discovery of the two kilogram package of cocaine. His argument is that the latter testimony is the fruit of the illegal search and seizure and, therefore, should be excluded. Duchi also asserts that the court erred in instructing the jury with respect to counts I and II because the instructions were a constructive amendment of the indictment. Duchi contends that the court erred in instructing the jury that the government was not required to prove that Duchi knew that the package contained cocaine; that it was sufficient that Duchi knew that he possessed some controlled substance. In addition, Duchi claims that the district court erred by denying defendant's motion to dismiss counts I and II of the indictment. Duchi claims that there existed a discrepancy between the facts as presented to the grand jury and the evidence presented at trial.

We have reviewed each of the claims raised on appeal and find that the district court committed no prejudicial error of law. On this basis, we affirm the judgment of conviction on each count.

JUDGMENT AFFIRMED.¹