United States v. Judy Laverdure , 385 F. App'x 737 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30349
Plaintiff - Appellee, D.C. No. 4:09-cr-00035-SEH-1
v.
MEMORANDUM *
JUDY MARIE LAVERDURE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted June 9, 2010
Portland, Oregon
Before: HALL, THOMPSON and McKEOWN, Circuit Judges.
Judy Marie Laverdure was indicted for, and convicted by jury of:
(1) conspiracy to possess with intent to distribute 500 grams or more of
methamphetamine, 21 U.S.C. §§ 841, 846; (2) possession with intent to distribute
more than 500 grams of methamphetamine, 21 U.S.C. § 841(a)(1); and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(3) distribution of more than 500 grams of methamphetamine, 21 U.S.C.
§ 841(a)(1). Laverdure appeals her conviction on three grounds. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. Fatal Variance
Laverdure argues there was a fatal variance from the indictment because
evidence at trial showed the existence of multiple conspiracies, rather than the
single charged conspiracy. In particular, Laverdure argues that the evidence
showed that, on two occasions, principals withdrew from the conspiracy,
subdividing any dealing operation into distinct conspiracies.
To prove a fatal variance, Laverdure must show: (1) the claimed variance
and (2) resultant prejudice to Laverdure’s rights. United States v. Adamson, 291
F.3d 606, 614-15 (9th Cir. 2002). Because Laverdure has not shown that her rights
were prejudiced, we do not consider whether a variance existed.
Laverdure had ample opportunity to prepare a defense and the proof at trial
did not impermissibly go beyond the allegations in the indictment. See United
States v. Morse, 785 F.2d 771, 775 (9th Cir. 1986) (“[P]rejudice may result in three
ways: 1) inadequate opportunity to prepare a defense and exposure to unanticipated
evidence at trial; 2) deprivation of the right to be tried only on charges presented in
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an indictment returned by a grand jury; and 3) exposure to prejudicial evidentiary
spillover.” (citations omitted)).
First, Laverdure was notified of the evidence that the government intended
to put forth at trial, and she successfully excluded and neutralized some of the
testimony. Second, despite the absence of any physical drug evidence, numerous
witnesses testified to Laverdure’s dealings: nine witnesses testified to buying
methamphetamine from Laverdure, one witness testified that Laverdure brokered
several drug deals, and other witnesses testified that Laverdure and her parents had
a substantial amount of methamphetamine bagged at their house and that the three
of them sold methamphetamine. Third, the jury could not have convicted
Laverdure of some other conspiracy. The evidence at trial focused on Laverdure’s
direct involvement in drug dealing with limited mention of any other supposed
conspiracies.
II. Relevancy
Laverdure argues that the district court abused its discretion by admitting
testimony about drug dealings that occurred before the time frame of the
indictment. See United States v. Vo, 413 F.3d 1010, 1017 n.4 (9th Cir. 2005). In
particular, a Federal Bureau of Investigation agent testified that, in the months
before the indictment’s time frame, Laverdure was suspected of allowing
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methamphetamine dealers to use her garage for unpacking drugs. The agent
testified that Laverdure consented to a search of the garage, which was later shown
to be her parents’ garage, and that circumstantial evidence of drug trafficking was
found there.
The district court did not abuse its discretion by admitting this evidence.
The testimony was relevant, as it suggested that Laverdure and her parents
conspired to possess with an intent to distribute methamphetamine. Furthermore,
the evidence was not unfairly prejudicial to Laverdure, as more compelling
evidence of guilt was offered by other witnesses. See Fed. R. Evid. 403. Other
witnesses testified that Laverdure lived with her parents in 2005—during the
indictment’s time frame—and that a substantial amount of methamphetamine was
stored there and sold by both Laverdure and her parents.
III. Base Offense Level
Laverdure argues that the district court erred in setting her base offense level
at 34 based on her responsibility for between 1.5 and 5kg of methamphetamine. In
particular, Laverdure argues that the jury verdict and testimony support a
determination that she was responsible for only between 500g and 1.5kg of the
drug.
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We reject this argument. The jury’s special verdict that Laverdure was
responsible for over 500g of methamphetamine is not controlling, as that
determination was made solely for the purpose of imposing the statutory minimum
sentence. The trial testimony addressing Laverdure’s dealings, if aggregated over
the time frame of the indictment, see United States v. Culps, 300 F.3d 1069, 1077
(9th Cir. 2002), supports the 1.5 to 5kg determination.
AFFIRMED.
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