Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1987)

No. 87-3110.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and BEEZER, Circuit Judges, and LELAND C. NIELSEN,^**  District Judge.

MEMORANDUM^*** 

James Short appeals from his conviction for aiding and abetting the distribution of cocaine. We affirm.

* Short was indicted for aiding and abetting in the distribution of more than 500 grams of cocaine on March 24, 1987 in violation of 21 U.S.C. §§ 841(a) (1), (b) (1) (B) and 18 U.S.C. § 2. Before trial, Short moved for discovery and inspection, a bill of particulars, early disclosure of Jencks Act statements, and a supplemental request for discovery. The government responded to these motions.

At trial, Short presented no evidence. The district court denied Short's motion for judgment of acquittal. After deliberations, the jury found Short guilty of aiding and abetting Kelly N. Clay in the delivery of more than 500 grams of cocaine to government agents. Short was subsequently sentenced to eight years imprisonment without parole under the enhanced penalties provision in 21 U.S.C. § 841(b) (1) (B). Short timely appeals.

II

Short contends that the district court (1) erred in not restricting the government's proof of facts outlined in the indictment and the bill of particulars; (2) committed reversible error by allowing "compound hearsay" evidence at trial; (3) erred by allowing testimony of other crimes not specified in the indictment or bill of particulars; and (4) erred in not granting his motion for judgment of acquittal since no proof was offered that he had any knowledge of the amount of cocaine delivered on March 24, 1987.

III

At trial, Short moved the district court to exclude irrelevant evidence. Short attempted to limit the government's case to facts occurring between February 19, 1987 and March 24, 1987, and to further exclude any evidence of other crimes or acts not specifically charged in the indictment or in the government's bill of particulars. After argument, the district court denied the motion. Short maintains that the district court erred by not restricting the government's proof to the indictment and bill of particulars. He contends that a variance exists between what was alleged in the indictment and bill of particulars and the proof at trial, particularly evidence of other crimes and wrongs. We review the district judge's evidentiary decisions for an abuse of discretion. Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1315 (9th Cir. 1986); United States v. Rhohrer, 708 F.2d 429, 432 (9th Cir. 1983).

The principal purpose of an indictment is to provide a defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense and plead double jeopardy at a later prosecution. United States v. Krasovich, 819 F.2d 253, 254 (9th Cir. 1987); see also United States v. Dadanian, 818 F.2d 1443, 1447 (9th Cir. 1987); United States v. Martin, 783 F.2d 1449, 1452 (9th Cir. 1986). The indictment must contain elements of the offense charged and apprise the defendant of what he must be prepared to meet. Krasovich, 819 F.2d at 255; see also Fed. R. Crim. P. 7(c) (1). In the indictment, the government need not allege its theory of the case or supporting evidence, but only essential facts necessary to apprise the defendant of the crime charged. United States v. Buckley, 689 F.2d 893, 897 (9th Cir. 1982), cert. denied, 460 U.S. 1086 (1983).

Like the indictment, a bill of particulars is intended to inform the defendant of the specific charges with sufficient precision so as to minimize surprise at trial, to enable defendant to prepare an adequate defense and to protect against a second prosecution for the same offense. United States v. Chavez, 845 F.2d 219, 220 (9th Cir. 1988), petition for reh'g pending; United States v. Burt, 765 F.2d 1364, 1367 (9th Cir. 1985). These purposes are served if the indictment itself provides sufficient details of the charges and if the government provides full discovery to the defense. United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984). The bill of particulars' purpose is to supplement the indictment by providing more details of facts upon which the charges are based. United States v. Inryco, Inc., 642 F.2d 290, 295 (9th Cir. 1981), cert. dismissed, 454 U.S. 1167 (1982).

A bill of particulars is not intended to be the equivalent of a request for complete discovery of the government's evidence. United States v. Giese, 597 F.2d 1170, 1181 (9th Cir.), cert. denied, 444 U.S. 979 (1979); Morgan v. United States, 380 F.2d 686, 698 (9th Cir. 1967), cert. denied, 390 U.S. 962 (1968). As we have reasoned, " [a] defendant is not entitled to know all the evidence the government intends to produce, but only the theory of the government's case." Giese, 597 F.2d at 1181 (quoting Yeargain v. United States, 314 F.2d 881, 882 (9th Cir. 1963)) (emphasis in Yeargain) .

The indictment here states:

COUNT ONE

(Vio. 21 USC 841(a) (1),

841(b) (1) (B), and 18 USC 2)

That on or about March 24, 1987, in the District of Idaho, KELLY N. CLAY¹  and JAMES EDWARD SHORT, defendants herein, did knowingly and intentionally distribute and did aid and abet in the distribution of 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance; in violation of Title 21, United States Code, Section 841(a) (1), 841(b) (1) (B), and Title 18, United States Code, Section 2.

In response to the motion for a bill of particulars, the government stated:

1. Persons involved in the distribution charged to have occurred on March 24, 1987, are James Edward Short, Kelly N. Clay, and Linus Bowman. Kelly N. Clay handed the cocaine to Richard Jordan, the confidential informant of the United States Drug Enforcement Administration. They went together then into a hotel room and met with Special Agents of the Drug Enforcement Administration, Vera S. Thompson and Mary Kay McElderry, where the cocaine was weighed.

2. Kelly N. Clay physically delivered the cocaine charged in this case. Mr. Clay was aided and abetted by defendant James Edward Short and by Linus Bowman, who is not charged in this indictment. Mr. Short aided, abetted, counseled, induced, and procured the commission of this delivery of cocaine. He met on several occasions with both informant Richard Jordan and DEA agents McElderry and Thompson and negotiated this distribution, including prices, amounts, location for the distribution, and manner and means of delivery. The defendant Short also served as a conduit for information between Linus Bowman and Kelly Clay, the distributors, and the customers who were Richard Jordan and the undercover agents. These negotiations took place between November 1986, and March 24, 1987, but specifically on February 19, 20, 23, 25, 26, and March 12, 21, and 23, 1987. Many of these meetings were tape recorded and the recordings have been turned over to this defendant.

The crux of Short's argument is that the government did not limit the scope of its proof at trial to what was alleged in the indictment and the bill of particulars. Specifically, Short complains about the government's proffered evidence of prior acts, such as other alleged deliveries of cocaine, which were not mentioned in the indictment or bill of particulars.²  A variance occurs when the government's evidence at trial proves facts materially different from those alleged in the indictment and bill of particulars. See United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984). However, not every variance in the proof is grounds for reversal. United States v. Haskins, 345 F.2d 111, 114 (6th Cir. 1965). It is well settled that a variance is reversible error only if a defendant's substantial rights are actually prejudiced. See id.; Von Stoll, 726 F.2d at 587; United States v. Kenny, 645 F.2d 1323, 1334 (9th Cir.), cert. denied, 452 U.S. 920 (1981); Pependrea v. United States, 275 F.2d 325, 327 (9th Cir. 1960); see also United States v. Francisco, 575 F.2d 815, 818 (10th Cir. 1978).

A defendant's substantial rights are prejudiced if the effect of the variance " 'is to prevent the defendant from presenting his defense properly, or if it takes him unfairly by surprise, or if it exposes him to double jeopardy.' " Chavez, 845 F.2d at 221 (quoting United States v. Bolzer, 556 F.2d 948, 950 (9th Cir. 1977)). All other variances are considered harmless error. Fed. R. Crim. P. 52(a) (providing that " [a]ny ... variance which does not affect substantial rights shall be disregarded").

Our inquiry would normally be twofold: Was there a variance, and if so, was it prejudicial. See, e.g., Kenny, 645 F.2d at 1334. After a careful review of the record, however, we conclude that even if, arguendo, there were any variance, Short has not suffered actual prejudice of his substantial rights. Short was fully apprised of the charges against him in such a manner as to minimize surprise at trial and to enable him to prepare his defense adequately.³  Unlike the defendant in United States v. Chavez, 845 F.2d 219, 221-22 (9th Cir. 1988), petition for reh'g pending, Short was not affirmatively misled so as to prejudice his substantial rights.

Moreover, Short has not been deprived of his double jeopardy right. He may use his conviction as a bar to any future charge of aiding and abetting in the distribution of more than 500 grams of cocaine on March 24, 1987. That a conspiracy theory was used to convict him of that charge is not prejudicial; he was not convicted of conspiracy or of any other crime. Hence, there is properly no bar to a further prosecution for conspiracy, delivery of cocaine on other dates, or various other drug offenses he may have committed.⁴ 

Because both the indictment and bill of particulars (1) sufficiently apprised Short of the charges against him so as to enable him to prepare for trial and not be misled or unfairly surprised at trial and (2) protected against any double jeopardy, any supposed variance has not prejudiced his substantial rights. See United States v. Anton, 547 F.2d 493, 496 (9th Cir. 1976). Accordingly, we find that the district court did not err.

IV

Short contends that the district court erred in allowing "compound hearsay" at trial. We note, however, that most of the statements he refers us to were not objected to during trial, or were objected to on other grounds, such as lack of foundation. To the extent that timely objections were not made, we review the admission of statements only for plain error. Fed.R.Evid. 103(d); United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987), cert. denied, 108 S. Ct. 726 (1988). Plain error is a highly prejudicial error affecting substantial rights. Morris, 827 F.2d at 1350.⁵  To the extent that the correct objection was timely made, we review the district court's decision under the clearly erroneous standard. United States v. Smith, 790 F.2d 789, 794 (9th Cir. 1986).

After a careful review of the record, we conclude that no error occurred. The statements objected to were statements of co-conspirators made during and in furtherance of a drug conspiracy, which is not hearsay under Rule 801(d) (2) (E). Such declarations of a co-conspirator are admissible against each co-conspirator even if an indictment fails to charge conspiracy. United States v. Johnson, 463 F.2d 216, 217 (9th Cir.), cert. denied, 409 U.S. 1028 (1972).

To admit co-conspirator statements into evidence, the government must establish by a preponderance of the evidence the existence of the conspiracy and of the defendant's connection to it, and show that the statement was made during and in furtherance of the conspiracy. United States v. Crespo de Llano, 838 F.2d 1006, 1017 (9th Cir. 1987) (citing Bourjaily v. United States, 107 S. Ct. 2275, 2278 (1987)). Once a conspiracy is shown, the government need only present slight evidence connecting the defendant to the conspiracy. Crespo de Llano, 838 F.2d at 1017; United States v. Mason, 658 F.2d 1263, 1269 (9th Cir. 1981). The admissibility of co-conspirator statements is not subject to a test of independent indicia of reliability. Bourjaily, 107 S. Ct. at 2783; United States v. Dozier, 826 F.2d 866, 871 (9th Cir. 1987). A complete review of the record demonstrates that the government met its burden. Accordingly, the district court did not err.⁶ 

IV

Short further maintains that the district court erred in allowing testimony of other crimes not specified in the indictment or bill of particulars upon the common scheme or plan theory as allegedly proffered by the government and then instructing the jury that it was admitted for purposes of showing intent. Fed.R.Evid. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.) We have reasoned that the Rule 404(b) is "an inclusionary rule" which admits evidence of other circumstances unless the evidence tends only to prove criminal disposition. United States v. Catabran, 836 F.2d 453, 459 (9th Cir. 1988). We review a district court's decision to admit evidence under this rule for an abuse of discretion. Id. at 459; United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.), cert. denied, 439 U.S. 849 (1978).⁷ 

Testimony is admissible under Rule 404(b) if (1) the prior act is similar and not too remote in time; (2) proof of the prior act is clear and convincing; (3) the evidence is introduced to prove an element of the charged offense; and (4) the probative value outweighs any prejudice to the defendant. Catabran, 836 F.2d at 459.

Short's arguments are based entirely on the notion that the government offered the evidence on the theory of a common scheme or plan. Our review of the record, however, indicates that Short misconstrues the government's argument by taking one phrase out of context. Reading the record as a whole, we conclude that the government offered, and the district court received, the evidence of prior acts for the purpose of showing intent. Accordingly, the district court instructed the jury not to consider the prior wrongs and acts evidence to "prove that the defendant did the acts charged here, but only to prove the defendant's state of mind. That is, that the defendant acted with the necessary intent and not through accident or mistake." We conclude that the district court properly admitted the evidence of prior acts under Rule 404(b) and Catabran.

V

Short finally contends that the district court erred in not granting his motion for judgment of acquittal at the close of the government's case. Short claims that no proof was offered that he had any knowledge of the amount of cocaine delivered on March 24, 1987. We review a denial of a judgment of acquittal motion for substantial evidence beyond a reasonable doubt. United States v. Talbert, 710 F.2d 528, 530 (9th Cir. 1983), cert. denied, 464 U.S. 1052 (1984).

We have already considered this issue. We have held that subjective knowledge of the quantity of controlled substance is not an element of a 21 U.S.C. § 841(a) offense, nor is knowledge a required element before a mandatory minimum sentence under 21 U.S.C. § 841(b) is imposed. See United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986); see also United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.), cert. denied, 56 U.S.L.W. 3849 (1988). This conclusion applies to aiders and abettors as well. Normandeau, 800 F.2d at 956 n. 3. As we reasoned in Normandeau, the enhanced penalty provisions in 21 U.S.C. § 841(b) are wholly separate from the definition of unlawful acts included in 21 U.S.C. § 841(a). Id. at 956. Accordingly, Short's argument lacks merit.

AFFIRMED.