United States v. Torres ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5642
DANDRE TORRES, a/k/a Danny Scott,
a/k/a "D",
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-92-153)
Submitted: February 28, 1997
Decided: May 19, 1997
Before LUTTIG and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joseph F. Lyles, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, David C. Keesler, Assistant United
States Attorney, Frank D. Whitney, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
D'Andre Torres appeals from his conviction for conspiracy to pos-
sess with intent to distribute, and to distribute cocaine in violation of
21 U.S.C. § 846 (1994). We affirm.
Torres claims that there was a variance between the offense
charged in the indictment, a single conspiracy, and the evidence pres-
ented at trial, which he contends related to multiple conspiracies.
Because Torres did not raise this issue below and the jury was not
instructed that they could find separate conspiracies, our review is
limited to determining whether the trial court committed plain error
in failing to sua sponte instruct the jury that they could find multiple
conspiracies rather than the single conspiracy charged in the indict-
ment. See United States v. Young, 470 U.S. 1, 15 (1985); United
States v. Richerson, 833 F.2d 1147, 1155-56 (5th Cir. 1987). After
reviewing the materials presented by both parties, we find no plain
error in the failure to give such an instruction.
Further, even assuming there was a variance, a variance which does
not modify the elements of a crime charged only invalidates a convic-
tion when it prejudices the defendant. See United States v. Odom, 736
F.2d 104, 118 (4th Cir. 1984). To make a showing of actual prejudice
an appellant must demonstrate that "``there were so many defendants
and so many separate conspiracies before the jury' that the jury was
likely to transfer evidence from one conspiracy to a defendant
involved in an unrelated conspiracy." United States v. Kennedy, 32
F.3d 876, 883 (4th Cir. 1994) (quoting United States v. Caporale, 806
F.2d 1487, 1500 (11th Cir. 1986)). This was simply not the case in
Torres' trial. Rather the evidence demonstrated that Torres and
another individual were the main actors in a conspiracy in which oth-
ers participated. Although Torres alleges that he did not participate in
all of the transactions and was unaware of the involvement of certain
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individuals, this does not preclude a finding of an single conspiracy.
See United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). Thus,
Torres has not demonstrated prejudice. Moreover, because the Gov-
ernment demonstrated Torres' involvement in at least one of these
conspiracies, there is no variance affecting his substantial rights. See
Richerson, 833 F.2d at 1155. We therefore affirm.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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