United States of America, Appellee, v. Dennis Frank Sazenski, Appellant.united States of America, Appellee, v. Edward William Macdonald, Appellant, 833 F.2d 741 (8th Cir. 1987)

Dennis Frank Sazenski and Edward William MacDonald appeal their drug-related convictions. Both were convicted of one count of conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1) and 846; additionally, Sazenski was convicted of three counts of distributing cocaine in violation of 21 U.S.C. § 841(a) (1). The two were jointly tried and convicted in district court.¹  As grounds for reversal they assert that (1) the trial judge's instruction to the jury on the conspiracy charge constructively amended the indictment or constituted a prejudicial variance; (2) MacDonald was prejudiced by the misjoinder of the cases and denial of his motions for severance; and (3) Sazenski was prejudiced by the district court's error in admitting $480,000 in cash into evidence. We affirm.

Background

A DEA informant made three separate purchases of cocaine from Dennis Sazenski on January 22, April 15, and April 18, 1986. These three purchases formed the basis for Sazenski's cocaine convictions, which he does not appeal. MacDonald was not involved in any of these transactions. In fact, the indictment charged that the conspiracy began on or about September 16, 1986, almost five months after the last of the cocaine transactions.

On August 30, 1986, Sazenski asked the informant if he wanted to buy more cocaine. The informant declined but said that he was putting together a sale of 2000 pounds of marijuana. At a meeting on September 17, 1986, Sazenski was introduced to DEA Special Agent Leonard, who was posing as a drug dealer. At this meeting, Sazenski introduced MacDonald as his partner.

On October 1, 1986, Sazenski and MacDonald were given samples of the marijuana and the alleged conspirators arranged to purchase a total of 6200 pounds. This included the 2000 pounds that the informant was to sell.

The purchase took place on October 3, 1986. On that day, MacDonald kept trying to contact someone named John, his supposed source for the money needed. Sazenski's source of funds was his cousin Joseph Sazenski. Joe and Agent Leonard drove to various places while Joe collected $480,000 in cash. The two then went to the airport hangar where the marijuana was stored. Joe was arrested after loading eight bales in his van. Sazenski and MacDonald later followed Agent Leonard to the airport. Sazenski said he wanted to split the profits from Joe's deal. MacDonald declined to put any marijuana in his car, but said they should split the profits. At that point, both Sazenski and MacDonald were arrested. Joe pled guilty--the other two stood trial.

Amendment of Indictment

The first issue on appeal concerns asserted discrepancies between the conspiracy indictment and the trial court's responses to certain questions from the jury. The original indictment presented to the grand jury read in pertinent part as follows:

From on or about September 16, 1986 to October 3, 1986, in the State and District of Minnesota, the defendants,

JOSEPH MICHAEL SAZENSKI,

DENNIS FRANK SAZENSKI, and

EDWARD WILLIAM MACDONALD,

did knowingly and willfully conspire and agree togther to possess with intent to distribute approximately 6200 pounds of marijuana * * *.

Before trial, the district court, on its own motion, amended the indictment, presumably because Joseph Sazenski had entered a plea of guilty. The amended indictment read in pertinent part as follows:

From on or about September 16, 1986 to October 3, 1986, in the State and District of Minnesota, the defendants,

DENNIS FRANK SAZENSKI

and EDWARD WILLIAM MACDONALD

did knowingly and willfully conspire and agree together with Joseph Michael Sazenski to possess with intent to distribute approximately 6200 pounds of marijuana * * *

Neither the defendants nor the government objected to the amendment.

During deliberations, the jury submitted two questions to the trial judge concerning the conspiracy indictment. The trial judge's answers to those questions permitted the jury to convict the defendants of conspiracy without finding that the conspiracy included Joseph Sazenski.²  The defendants contend that the trial court's responses thus constructively amended or created a prejudicial variance from the indictment, because, they argue, the indictment as amended before trial required the jury to find that Joseph Sazenski participated in the conspiracy before it could find either MacDonald or Dennis Sazenski guilty of conspiracy. We disagree with the defendants' interpretation of the amended indictment.

Initially, it is clear that the original indictment and the indictment as amended before trial charged the same offense. Although the trial court generally has no power to amend an indictment even with the defendant's consent, see United States v. Norris, 281 U.S. 619, 623, 50 S. Ct. 424, 425, 74 L. Ed. 1076 (1930),³  that rule is inapplicable when the court's change in the indictment is one of form only. See United States v. Nabors, 762 F.2d 642, 647 (8th Cir. 1985) (exception to rule has been recognized "where mere surplusage is eliminated ('merely a matter of form'), nothing is added to the indictment, and the remaining allegations state the essential elements of an offense.") (citing United States v. Burnett, 582 F.2d 436, 438 (8th Cir. 1976)). We are convinced that the court's pretrial change in the indictment was one of form only; despite the slight change in wording, both the original and amended indictments charged a single conspiracy between MacDonald, Dennis Sazenski, and Joseph Sazenski.⁴ 

As one court has stated, the question whether there has been an impermissible amendment of a conspiracy indictment must be resolved by asking

whether there has been a modification of the elements of the crime from that charged by the grand jury to that presented to the petit jury. The "gist" of a conspiracy * * * "is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy." * * * The existence of an agreement, rather than the identity of those who agree, is essential to prove the crime of conspiracy.

United States v. De Cavalcante, 440 F.2d 1264, 1272 (3d Cir. 1971) (quoting United States v. Falcone, 311 U.S. 205, 210, 61 S. Ct. 204, 206, 85 L. Ed. 128 (1940)); see also United States v. Williams, 798 F.2d 1024, 1032-33 (7th Cir. 1986) (court need not instruct the jury to find specific roles corresponding to the co-conspirators; no constructive amendment of conspiracy indictment when the court did not omit any of the essential elements of a conspiracy charge).

It is an elementary principle of conspiracy law that the government need not prove that all persons alleged to have been members of the conspiracy actually participated in the conspiracy. See, e.g., United States v. Reese, 775 F.2d 1066, 1071 (9th Cir. 1985) (" [T]he government's failure to connect an individual to a charged conspiracy is not a fatal variance."); United States v. Bell, 651 F.2d 1255, 1258 (8th Cir. 1981); E. Devitt & C. Blackmar, Federal Jury Practice and Instructions section 27.04 (1977) ("The evidence in the case need not establish * * * that all of the persons charged to have been members of the alleged conspiracy were such.") Thus, the trial court did not modify the elements of the crime charged by instructing the jury that it need not find that Joseph Sazenski participated in the conspiracy. The jury was still required to find that at least two people other than a government informant agreed together to possess with intent to distribute 6200 pounds of marijuana. Proof that Joseph Sazenski participated in the conspiracy was not a necessary element of the government's conspiracy case against MacDonald and Dennis Sazenski. We hold, therefore, that the trial court's responses to the jury's questions did not impermissibly amend the indictment.

Misjoinder

MacDonald next argues that joinder of his trial on the marijuana conspiracy indictment with Sazenski's trial on the cocaine charges was improper under Federal Rule of Criminal Procedure 8(b)⁵  because there was no connection between the marijuana and cocaine transactions. He further argues that the misjoinder prejudiced him by confusing the jury and by creating a "spillover" effect. We agree that the defendants were misjoined under Rule 8(b), but, after a complete review of the record, are unable to find that MacDonald was prejudiced by the misjoinder.

We have repeatedly observed that for joinder of defendants under Rule 8(b) to be proper, there must be " 'some common activity involving all of the defendants which embraces all the charged offenses even though every defendant need not have participated in or be charged with each offense.' * * * Furthermore, to be part of the 'same series of acts,' the offenses charged must be part of one overall scheme about which all joined defendants knew and in which they all participated." United States v. Grey Bear, 828 F.2d 1286, 1298, (8th Cir. 1987) (quoting United States v. Bledsoe, 674 F.2d 647, 656 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S. Ct. 456, 74 L. Ed. 2d 608 (1982)).

Thus, the impropriety of joinder in this case is clear. MacDonald had absolutely no connection to the cocaine transactions that took place between Dennis Sazenski and the government informant five months before the marijuana conspiracy was alleged to have begun. The government argues that there is a sufficient connection between the defendants' offenses because the cocaine dealings "provided the genesis" of the marijuana operation and because the same informant was involved in both the cocaine and marijuana transactions. We must disagree. The former argument is irrelevant; it fails to address how MacDonald was connected to the cocaine dealings. The latter argument would support joinder for trial of every defendant with whom a government informant had transacted.

Nevertheless, misjoinder requires reversal only if it "result [ed] in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict.' " United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)). The Lane Court suggested several factors that might lead to a finding of prejudice: (1) failure to give limiting instructions; (2) evidence of guilt that is not overwhelming; (3) admission of evidence that would be inadmissible in a trial of only properly joined defendants and counts; (4) evidence on the improperly joined charges that is indistinct and not easily segregated; and (5) en masse trial of numerous defendants. See id., 106 S. Ct. at 732 and n. 13. None of these factors is present here.

First, the trial court cautioned the jury during trial and in its instructions that it should consider the cocaine evidence only against Sazenski. Second, it is probable that evidence of Sazenski's cocaine dealings would have been admissible in a joint trial on the marijuana charge to rebut Sazenski's entrapment defense.⁶  See Fed.R.Evid. 404(b). Third, the evidence of the cocaine transactions was distinct and easily segregated from the evidence of the marijuana transaction. Finally, because there were only two defendants, the danger of guilt by association inherent in en masse trials was substantially allayed. Cf. Grey Bear, at 1299.⁷ 

MacDonald argues that joinder of the cocaine and marijuana charges caused jury confusion, pointing to the jury's questions about the marijuana conspiracy charge. See supra n. 2. Those questions, however, did not indicate that the jury was confused about the connection between the cocaine and marijuana charges; its queries were addressed solely to the meaning of the marijuana conspiracy charge. Thus, the jury's confusion was not caused by the misjoinder. Because our review of the record has uncovered no bases for a finding of prejudice, we must hold that the misjoinder in this case was harmless error. The defendants' convictions are affirmed.⁸