Appeal from convictions for conspiracy to violate 21 U.S.C. § 841, and for violations of that section. At trial, the United States District Court for the Southern District of New York, Hon. C.S. Haight, Jr., J., charged the jury that though the indictment referred to heroin-related acts by the defendants, convictions would be proper on the basis of proof that the substance involved was either heroin or cocaine. The Court of Appeals held that, having argued in the trial court that there was evidence of cocaine sufficient to create a prejudicial variance between the indictment and the proof, the appellants could not argue on appeal that there was insufficient evidence of cocaine to support a conviction; and that assuming that there was sufficient evidence of cocaine to support a conviction, the charge to the jury was proper because it did not create a material variance. The Court of Appeals also held that statements of a conspirator related to the distribution of the spoils of the conspiracy are in furtherance of the conspiracy and so admissible against co-conspirators. Affirmed.
Before Moore, Oakes and Gurfein, Circuit Judges.
Marion Knuckles, Raymond Brown, and Rose Smith appeal from judgments of conviction entered after a jury trial in the Southern District of New York. The indictment charged Knuckles, Brown, and Smith, as well as Yolanda Simpson,*fn1 with two counts of violating the federal narcotics laws. Count One charged the defendants with conspiracy to distribute and to possess with intent to distribute Schedule I and Schedule II controlled substances, in violation of 21 U.S.C. § 846.*fn2 Count One alleged various overt acts in furtherance of the conspiracy, including a delivery of heroin by Knuckles to Simpson in October 1976, and the processing and packaging of heroin in October 1976. Count Two charged the defendants with distribution of heroin and possession with intent to distribute heroin on or about October 1, 1976, in violation of 21 U.S.C. § 841(a)(1).*fn3 Simpson pleaded guilty to Count One, and appeared as a witness for the Government. The jury convicted Knuckles and Brown on both counts, and Smith on Count One.*fn4
Simpson, the Government's principal witness, testified that on several occasions she and the defendants had processed and packaged heroin for distribution. Her testimony related particularly to two nights in the summer and autumn of 1976 when Simpson and the defendants met at two different locations to process and package several thousand bags of what Simpson testified was heroin. Counsel for Knuckles, in cross-examining Simpson, brought out that some of the participants in the processing and packaging operation had brought cocaine to Simpson's apartment and had used it on the night of the second packaging operation, which took place sometime around October 1, 1976. Counsel for Smith, in his cross-examination of the Drug Enforcement Agency officer who seized narcotics paraphernalia from Simpson's apartment on April 19, 1977, developed that some of the utensils seized showed cocaine traces.*fn5
At the close of the Government's case, the defendants made motions for acquittal on the ground that the substance involved in the defendants' activities was cocaine, not heroin. Later, in the conference on requests to charge, the defense counsel urged that though the indictment alleged a conspiracy related to heroin, and distribution and possession with intent to distribute heroin, the jury could conclude from the evidence in the case that the actions of the defendants were related to cocaine rather than heroin, and that there was therefore a substantial variance. After the court pointed out that the conspiracy count referred to "Schedule I and II narcotic drug controlled substances," which included both heroin and cocaine, defense counsel limited their variance argument to the substantive count, Count Two. The Government's attorney argued that there was too little evidence of cocaine to make this a serious issue, but that even if there were some grounds for supposing that cocaine rather than heroin was involved, the resulting variance between the indictment and the proof would be immaterial. The district court, persuaded by the Government's latter argument, charged the jury that they could convict on either count if they were convinced beyond a reasonable doubt that the substance involved was either heroin or cocaine.*fn6 No objection was made to the charge on the ground of insufficient evidence that the substance was cocaine.
On appeal, the defendants now contend that there was insufficient evidence that the substance was cocaine to sustain the convictions. They contend also that the district court violated the defendants' Fifth Amendment right by amending the indictment to allow conviction for conspiracy to possess and distribute Cocaine and for possession with intent to distribute, and distribution of, Cocaine, though the indictment charges that the substance was Heroin.
The defense brought the issue of cocaine into the case through the cross-examination of several Government witnesses. There was little evidence of cocaine, and had the Government's case rested only on this evidence, a dismissal would have been appropriate. But the Government's case in chief was directed to proof of dealings in heroin, and the defendants directed their motion for acquittal to the insufficiency of the evidence to prove possession of Heroin ;*fn7 the district court properly denied their motion.
In the conference on instructions to the jury, however, the defense argued that the evidence that the substance might have been cocaine was enough to raise the variance issue. Indeed, they emphasized that the jury could find that the substance involved in the case was cocaine. The defense urged that this was a prejudicial variance between the indictment and the proof, and required dismissal of the case.
An argument that there is a substantial variance assumes that there is sufficient evidence to establish a different offense from the offense charged. If the defendant believes that such evidence is not enough to allow the offense different from the offense charged to go to the jury there is, by definition, no variance.
The variance argument raised by the defense accordingly had to acknowledge implicitly that there was sufficient evidence from which the jury could conclude that the substance involved in the conspiracy and in the substantive count was cocaine. When the district court accepted that premise, but concluded to treat the variance as immaterial, the defense quite logically made no objection based on the insufficiency of the proof of cocaine, for that was the cornerstone of their defense of variance.
The defendants now seek reversal on a tortuous line of reasoning. They now urge that the judge committed reversible error by charging that the jury could find the defendants guilty if the defendants possessed cocaine rather than heroin, upon the asserted ground that the evidence that the substance was cocaine was insufficient to go to the jury. From this they deduce that since no one can say that the jury did not acquit the defendants on heroin and convict them only on cocaine, the verdict may not stand.
There are several answers. First, as we have noted, the very motion to dismiss on the ground of variance assumed a prima facie case on cocaine, for otherwise the motion would have been transparently frivolous. Second, the defendants having accepted the position that there was a prima facie case on cocaine cannot, on appeal, shift their position. Third, we believe that, though in the light of the meager evidence of cocaine the Government should not have pressed the court to make the charge in the alternative, no ...