June 16, 2019

Tenth Circuit: Conspiracy to Traffic Meth Sufficiently Proven and Venue Proper; No Variance Between Indictment and Trial Facts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Acosta-Gallardo on Tuesday, August 30, 2011.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of conspiracy to traffic in methamphetamine and using a telephone to facilitate a felony drug offense. Petitioner appeals his conviction, alleging a variance between his indictment and the facts proven at trial, a Brady violation, improper venue, and that insufficient evidence was presented to sustain his conviction for alleged trafficking in methamphetamine.

The Court disagreed with all of Petitioner’s contentions. First, the Court found that no variance occurred because the facts proven at trial were the same as those alleged in the indictment. Second, to succeed on his claim under Brady v. Maryland, 373 U.S. 83 (1963), Petitioner must demonstrate that the prosecution suppressed evidence, that the evidence was favorable to him, and that the evidence was material; Petitioner failed to prove these factors. Third, even assuming that Petitioner never set foot in the District of Wyoming, viewing the evidence in the light most favorable to the jury verdict, ample evidence was introduced showing that acts in furtherance of the conspiracy were committed there, making venue proper. Fourth, a conspirator need not know of the existence or identity of the other members of the conspiracy or the full extent of the conspiracy; the evidence need only show that a conspirator has at least a general awareness of both the scope and the objectives of the conspiracy. Such evidence was presented at trial.

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