Appeal from the United States District Court for the Western District of Wisconsin.
No. 94 CR 30--Barbara B. Crabb, Chief Judge.
Before CUMMINGS and RIPPLE, Circuit Judges, and WILL, District Judge. *fn1
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.
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 the next quantity of cocaine. Spaeni obtained the kilogram quantities of cocaine from Doiron on the same consignment-type basis.
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 ...