U.S. v. Spaeni

• Decision Date: 13 July 1995
• Docket Number: No. 94-3084,94-3084
• Citation: 60 F.3d 313
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. SPAENI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 313

60 F.3d 313

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. SPAENI, Defendant-Appellant.

No. 94-3084.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 1995.

Decided July 13, 1995.

Robert Anderson, Asst. U.S. Atty., Madison, WI (argued), for plaintiff-appellee.

Ralph A. Kalal, Kalal & Associates, Madison, WI (argued), for defendant-appellant.

Before CUMMINGS and RIPPLE, Circuit Judges, and WILL, District Judge. ^*

WILL, Senior District Judge.

Defendant Jeffrey A. Spaeni was convicted by a jury of possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), and conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846. He appeals his conviction and sentence, claiming that the government constructively amended the indictment by presenting at trial evidence of alleged conspiratorial acts that occurred prior to the date charged in the indictment. For the following reasons, we affirm.

BACKGROUND

On March 12, 1994, Jeffrey Spaeni was arrested in Madison, Wisconsin, after Dane County Narcotics officers found half a kilogram of cocaine in the car Spaeni was driving. The presence of the cocaine was no surprise to the officers, who, based on information provided by a confidential informant, had been surveilling Spaeni's house for several days in anticipation of a cocaine delivery. Earlier that day, the officers had apprehended Terry Dover, a known drug dealer, minutes after he was seen leaving the Spaeni residence. At the time of his arrest, Dover had in his possession approximately 231 grams of cocaine. Dover immediately informed officers that he had procured the cocaine from Jeffrey Spaeni. After Jeffrey Spaeni's arrest, the police also arrested his brother, Greg Spaeni, with whom Jeffrey lived.

Soon after their arrests, both Terry Dover and Greg Spaeni gave statements to the police. Based on the information provided, the government believed that Jeffrey and Greg Spaeni were involved in a conspiracy to distribute cocaine and that the conspiracy was in existence from at least January 1994 through March 12, 1994. At that time, the government knew that Jeffrey Spaeni had been purchasing cocaine on a regular basis from Kandace Doiron, who lived in Milwaukee, and that Greg Spaeni had been acting as a courier for his brother by making trips to Milwaukee to obtain kilogram quantities of cocaine.

On March 30, 1994, a Grand Jury returned an indictment charging Jeffrey Spaeni and Greg Spaeni with possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute. Most relevant to this case, count two of the indictment charged that from on or about January 1994 to March 12, 1994, Jeffrey and Greg Spaeni, and other known and unknown co-conspirators, conspired to possess cocaine with intent to distribute.

Due to the bare-bones nature of the conspiracy charge, Jeffrey Spaeni moved for a bill of particulars in order to obtain more information about the alleged conspiracy. The government originally opposed the motion, but eventually provided the bill of particulars. Although the indictment stated that the conspiracy began in January 1994, the bill of particulars described acts that had occurred in furtherance of the conspiracy starting as early as 1992.

In essence, the bill of particulars stated that Jeffrey Spaeni had been the sole customer of Kandace Doiron since the middle of 1992, and that she had supplied kilogram quantities to him at least monthly during the year before his arrest. Ms. Doiron obtained the cocaine from Guadalupe Mata and, later, after Mr. Mata's death, from Beto Lechuga. At times, Jeffrey Spaeni would travel to Milwaukee to obtain the cocaine from Doiron, sometimes accompanied by Greg Spaeni. On four or five occasions, Greg Spaeni was sent by his brother to secure the cocaine.

Once Jeffrey Spaeni was in possession of the cocaine, he would distribute smaller amounts to other dealers, such as Terence Dover, Pat Verriden, and Jim Renda, for redistribution. Jeffrey Spaeni would "front" the cocaine to these dealers, who would then pay Spaeni from the proceeds before obtaining At trial, the government's opening statement paralleled the information provided in the bill of particulars. At the end of the government's opening argument, the defendant moved for a mistrial and judgment of acquittal on the conspiracy count, claiming that the government, by attempting to prove a conspiracy that began in 1992 instead of 1994, had constructively amended the indictment. Alternatively, the defendant requested a motion in limine to exclude the evidence of conspiratorial acts committed prior to 1994.

the next quantity of cocaine. Spaeni obtained the kilogram quantities of cocaine from Doiron on the same consignment-type basis.

The government conceded that it intended to introduce evidence establishing that the conspiracy began earlier than January 1994, but claimed that under the law of this circuit it was entitled to do so. The government stated that it had learned of the longer duration of the conspiracy after the indictment had been returned and, rather than obtaining a superseding indictment, it chose instead to use the evidence of the earlier conspiratorial acts to establish and explain the conspiracy as charged in the indictment.

After confirming that the government intended to prove that the conspiracy existed from January to March 1994 by introducing evidence that established that the same conspiracy might have started considerably prior to January 1994, the district court denied the motions for mistrial and judgment of acquittal. The district court also denied the defendant's motion in limine and overruled the defendant's continuing objection to the admission of the evidence. During the remainder of the trial, the government introduced evidence of the earlier conspiratorial acts as proof of the charged conspiracy.

At the close of the evidence, the defendant again moved for mistrial and judgment of acquittal. The district court denied both motions. The jury found the defendant guilty of both counts. At the sentencing hearing, the district court found that during the course of the conspiracy Mr. Spaeni had possessed between 15 and 50 kilograms of cocaine and that he was a manager or supervisor in a conspiracy which involved at least five participants. On the basis of these findings, the district court imposed a 210-month sentence. Mr. Spaeni then filed this timely appeal.

DISCUSSION

We review a denial of a motion for mistrial or judgment of acquittal de novo. United States v. Sax, 39 F.3d 1380, 1385 (7th Cir.1994). A trial court has broad discretion in assessing the admissibility of evidence and its rulings may be reversed only if the court has abused its discretion. United States v. Miller, 984 F.2d 201, 203 (7th Cir.1993).

On appeal, Mr. Spaeni contends that, by presenting evidence of the conspiracy predating by almost two years the conspiracy charged in the indictment, the government impermissibly broadened the indictment and thus committed reversible error. Spaeni relies on the holding of United States v. Leichtnam, 948 F.2d 370, 376 (7th Cir.1991), to support his position. In Leichtnam, we held that a broadening of the possible bases for a conviction from those contained in the indictment was reversible per se. Id. at 377.

Yet, even in Leichtnam we recognized that not all variances from the terms of the indictment are fatal. In fact, we consistently have allowed a variance or amendment to an indictment when it does not change an "essential" or "material" element of the charge and does not prejudice the defendant. See, e.g., United States v. Cina, 699 F.2d 853, 857 (7th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983). Further, only in rare cases is time a material element of a charged offense, even where continuing offenses such as conspiracy are alleged. Id. at 859. Therefore, "[u]nless the particular date is an element of the alleged offense, it is generally sufficient to prove that the offense was committed on any day before the indictment and within the statute of limitations." United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir.1988), cert. denied, 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989).

Spaeni does not claim that the date of the charged conspiracy was a material...