United States v. Easter ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-41352
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DESMON CHARLES EASTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CR-33-1
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Desmon Charles Easter appeals his conviction for conspiring
to possess 50 grams or more of a mixture containing cocaine base
with intent to distribute. He contends that the indictment was
impermissibly vague because it failed to allege the dates of the
conspiracy with any specificity. Because he did not challenge
the indictment in the district court, this court reviews for
plain error. United States v. Cotton, 535 U.S. 625, 629-31
(2002). The date of the offense is not an essential element that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-41352
-2-
must be charged in the indictment. United States v. Lokey, 945
F.2d 825, 832 (5th Cir. 1991). Moreover, Easter has not
established that his substantial rights were affected by any
error in the date alleged on the indictment. See Cotton, 535
U.S. at 631.
Easter contends that the evidence is insufficient to support
his conviction because the Government did not prove at his trial
that all the conspirators named in the indictment were involved
in the conspiracy. He has not established that the Government
had a duty to prove the involvement of all other conspirators at
a trial where Easter was the only defendant. See United States
v. Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th Cir. 1988)
(defendant can be convicted of conspiracy even if his
codefendants have been acquitted); cf. United States v. Morris,
46 F.3d 410, 420-22 (5th Cir. 1995)(although Government required
to provide proof of the knowledge and participation of “each
alleged conspirator,” court reviewed evidence only of the
appealing defendants’ knowledge and participation).
Easter asserts alternatively that the failure to prove a
seven-person conspiracy, as alleged in the indictment,
constituted a fatal variance resulting in reversible error. He
has not established that he is entitled to relief on this ground.
See Berger v. United States, 295 U.S. 78, 81 (1935). The
judgment of the district court is AFFIRMED.