United States v. Staggs

BALDOCK, Circuit Judge.

Appellants were convicted by a jury on a variety of federal drug and drug-related charges arising out of an alleged operation to produce amphetamine, a schedule II controlled substance. See 21 C.F.R. § 1308.12(d) (1987). Specifically, appellants Donald Eugene Staggs (Staggs), Charles David “Rusty” Teafatiller (Teafa-tiller), Peggy Savage Teafatiller, and Frank E. Gabriel (Gabriel), were each convicted of conspiring to manufacture, possess with intent to distribute, and distribute amphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1).¹ Teafatiller and Staggs also were convicted of engaging in a continuing criminal enterprise (CCE), contrary to 21 U.S.C. § 848.² The jury further convicted both Gabriel and Staggs on firearms charges; Gabriel of possessing an unregistered automatic weapon in violation of 26 U.S.C. § 5861(d), and Staggs of possessing a firearm shipped or transported in interstate commerce after a felony conviction, contrary to 18 U.S.C. § 922(g)(1). Finally, Teafatiller was convicted of attempted tax evasion as prohibited by 26 U.S.C. § 7201, and Teafatiller and his wife Peggy together were convicted of conspiring to defraud the United States by obstructing the collection of the revenue, in contravention of 18 U.S.C. § 371. Our jurisdiction of this direct appeal from the judgment of conviction arises under 28 U.S.C. § 1291.

Appellants assert six grounds of error on appeal. First, Teafatiller and Staggs challenge the indictment, claiming that the continuing criminal enterprise charges in counts two and three failed to allege three felony violations comprising the “series of violations” required by the CCE statute. Second, Teafatiller and Staggs argue that their respective conspiracy convictions, being lesser included offenses of the CCE offense, should be vacated. Third, while not seeking reversal on this point, Teafatil-ler seeks correction of the judgment and commitment order filed after trial because the sentence reflected therein differs from that orally rendered by the trial judge. Fourth, all appellants claim the case should be remanded for a hearing to determine whether the government acted outrageously by seeking the cooperation of an attorney who, according to appellants, had formerly represented them. Fifth, Gabriel argues that the testimony of Sharon Gabriel was admitted in violation of the marital privilege. Lastly, Gabriel contends that the evidence is insufficient to support his conviction on the conspiracy count.

This case was assigned originally to a three-judge panel for determination of these issues. Prior to the issuance of the proposed panel opinion, a majority of the active judges of the Tenth Circuit voted sua sponte to hear the first of the above-listed issues, regarding the sufficiency of the CCE indictments of Teafatiller and Staggs, before the en banc court. By order dated March 29, 1989, the court defined the issue for en banc consideration as follows:

Whether a continuing criminal enterprise indictment which tracks the language of the statute and contains three violations underlying the series in another count of the indictment is sufficient to charge a continuing criminal enterprise offense under 21 U.S.C. § 848, consistent with the requirements for an indictment under the fifth and sixth amendments of the Constitution.

Given this posture, we will address this appeal in two opinions, filed this day: the first, herein, before the en banc court, considering the sufficiency of the CCE indictments; and the second, before the original three-judge panel, considering the remaining issues. See 881 F.2d 1546 (10th Cir. 1989).

Appellants Teafatiller and Staggs were charged in a superseding indictment, counts two and three respectively, with engaging in a continuing criminal enterprise, proscribed at 21 U.S.C. § 848. The essential elements of the CCE offense include the following:

(1) a continuing series of violations of the Controlled Substances Act of 1970, 21 U.S.C. et seq., (2) the violations were undertaken in concert with five or more other persons with respect to whom the accused acted as organizer, supervisor or manager, and (3) from which the accused obtained substantial income or resources.

United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988) (quoting United States v. Dickey, 736 F.2d 571, 596-97 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985)). Courts construing the first element, the only one at issue here, have generally agreed that the “continuing series of violations” specified by the CCE statute requires proof of three or more drug violations in order to support a CCE conviction. United States v. Apodaca, 843 F.2d 421, 427 (10th Cir.), cert. denied, — U.S. -, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).

The appellants were charged, in the language of the CCE statute, with engaging in “a continuing series of violations,” the indictment specifying additionally that Staggs and Teafatiller had “repeatedly violated Title 21, United States Code, Section 841(a)(1) and other provisions of Title 21, regarding amphetamine, a Schedule II, stimulant controlled substance.³ No underlying violations were specified in the CCE counts, but at least three violations of Title 21 were alleged with regard to each appellant in count one of the indictment, the conspiracy count.⁴ Both Teafatiller, rec. vol. I, doc. 2, and Staggs, rec. vol. I, doc. 12, filed motions to dismiss the indictment, which were denied. Rec. vol. I, doc. 18. On appeal, Teafatiller and Staggs do not contend that three violations were not charged and proved. Neither do appellants contend that any evidence of uncharged violations was introduced at trial in support of the CCE counts. Rather, they argue that the indictment was insufficient with regard to the CCE counts in that those counts failed either to list the underlying violations or to specifically incorporate by reference the violations charged in count one.

Generally, an indictment is sufficient if it contains the elements of the offense charged, putting the defendant on fair notice of the charge against which he must defend, and if it enables a defendant to assert an acquittal or conviction in order to prevent being placed in jeopardy twice for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Young, 862 F.2d 815, 819 (10th Cir.1988). Because appellants could plead the entire record as a bar to future CCE or conspiracy charges based on the predicate acts charged in the indictment or otherwise considered by the jury, appellants are adequately protected from double jeopardy, see Apodaca, 843 F.2d at 430 n. 3, and the central issue here, as appellants conceded at oral argument, involves the notice function of this indictment. Teafatiller and Staggs contend that by omitting from the CCE counts the underlying violations, the indictment did not articulate the essential facts constituting the offense as required by Fed.R.Crim.P. 7(c)(1). The practical result, according to appellants, was that the indictment failed to provide them the notice necessary to prepare their defense. We disagree.

An indictment is generally sufficient to overcome constitutional concerns if it sets forth the words of the statute, as long as the statute itself adequately states the elements of the offense. Hamling, 418 U.S. at 117, 94 S.Ct. at 2907; United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988). Each of the other circuits that has considered the sufficiency of a CCE indictment either has held generally that a CCE indictment is sufficient if it tracks the language of the statute, or specifically that an indictment need not allege the three violations that underlie the “continuing series” element. United States v. Alvarez-Moreno, 874 F.2d 1402, 1408, 1410-11 (11th Cir.1989) (CCE indictment sufficient when alleging offense in language of statute); United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.) (indictment sufficient although not alleging five individuals with whom defendant acted in concert), cert. denied, 479 U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 353 (1986); United States v. Sterling, 742 F.2d 521, 526 (9th Cir.1984) (no legal requirement that specific violations underlying series be listed in indictment), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978) (indictment sufficient because it charged in the words of the statute that the defendant and others had participated in a continuing criminal enterprise), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979); United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974) (indictment adequate for preparation of defense and avoidance of double jeopardy although not listing five individuals with whom defendant acted in concert or violations underlying the charged series), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975).

Following oral argument before the en banc court, the court first considered whether tracking the language of the statute with regard to the “continuing series of violations” element was sufficient to meet the constitutional requirements of an indictment. After discussion, the court was evenly divided on that issue; therefore, we reach no conclusion about the sufficiency of an indictment that does no more than track the language of the CCE statute. We do hold, however, that a CCE indictment is sufficient where, as here, the CCE counts charge appellants in the language of the statute, and the indictment additionally alleges at least three violations in another count or counts. See United States v. Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988) (defendant put on actual notice by violations listed in other counts; indictment held sufficient), cert. denied, — U.S. -, 109 S.Ct. 3221, 106 L.Ed.2d 571; United States v. Becton, 751 F.2d 250, 256-57 (8th Cir.1984) (same), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).

Even had we held that an indictment must allege the violations underlying the continuing series element, this indictment would be sufficient because here, the CCE count need not have explicitly incorporated by reference violations listed elsewhere in the indictment. The Seventh and Eighth Circuits have considered the precise factual circumstance before us, from a similar legal perspective: While neither adopting nor dispensing with a rule requiring a CCE indictment to allege at least three violations, both courts considered the indictment sufficient where such violations were alleged in other counts of the indictments. Although recognizing the prosecutor’s ability to avoid the issue by listing the violations in the CCE count, the courts in Moya-Gomez and Becton both held that the indictments afforded adequate notice when read as a whole. See Moya-Gomez, 860 F.2d at 752; Becton, 751 F.2d at 256-57.

Similarly, appellants complained neither at trial nor on appeal that the proof of the violations contained in count one surprised them, thereby hampering the preparation of their defense. Because the allegations in count one afforded appellants actual notice regarding the violations proved at trial in support of the CCE charge, their argument essentially seeks reversal for reasons other than a failure of notice. We approve of the approach in Moya-Gomez and Bec-ton: Because the essential issue is whether the appellants received notice adequate for the preparation of their defense, it would be both anomalous and hypertechnical to conclude that, even though the indictment provided such notice, the notice function was not served because of the failure to explicitly incorporate by reference count one, containing the charged violations. See United States v. Esposito, 771 F.2d 283, 288-89 (7th Cir.1985) (Travel Act indictment held sufficient where indictment read as a whole put defendants on notice of element not alleged in Travel Act counts; dismissal “would be an extreme example of technicality”), cert. denied, 475 U.S. 1011, 106 S.Ct. 1187, 89 L.Ed.2d 302 (1986). But see, e.g., United States v. Hooker, 841 F.2d 1225, 1231 (4th Cir.1988) (en banc) (element of offense missing from one count cannot be read into that count from another unless explicitly incorporated by reference).

This result is supported not only by the factually similar cases from other circuits, but also by the weight of analogous precedent from this circuit. We have said that in evaluating the sufficiency of the indictment, “the entire document may be considered.” United States v. Mobile Materials, Inc., 871 F.2d 902, 906 (10th Cir.1989) (per curiam); United States v. Metropolitan Enterprises, Inc., 728 F.2d 444, 453 (10th Cir.1984); Mobile Materials, 871 F.2d at 919-20 (McKay, J., dissenting) (“we look first to the charging statement and related provisions of count one, then to the remaining paragraphs of that count, and finally to all ‘four corners’ of the indictment”).

Particularly instructive here is United States v. Neal, 692 F.2d 1296 (10th Cir.1982), which addressed the sufficiency of an indictment charging the defendant in three counts, respectively, with 1) using extortionate means to collect an extension of credit, 2) possessing an unregistered firearm, and 3) distributing cocaine. The defendant challenged count one, arguing that it did not contain sufficient specificity regarding the allegedly extortionate threats. In evaluating the sufficiency of count one, which did not incorporate by reference any other counts, see id. at 1301 n. 4, we considered “it proper to note that the nature of the charge and the evidence before the grand jury are further revealed by Counts II and III of the indictment.” Id. at 1302. We upheld the indictment, stating that it “was not fatally defective in view of the other details alleged, which we have noted.”⁵ Id. at 1303. Given this precedent, and keeping in mind that in interpreting an indictment, we are “governed by practical rather than technical considerations,” United States v. Phillips, 869 F.2d 1361, 1364 (10th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989), we will not require explicit incorporation by reference under the facts of this case.⁶

Despite our previous holdings, the dissent cites other circuits for the proposition that “precedent solidly precludes incorporation except by express reference.” Dissent, op. at 1537. Significantly, however, three of the nine circuits cited by the dissent would uphold this indictment on its face and never reach that issue, as those circuits have concluded that a CCE indictment tracking the language of the statute is sufficient. Amend, 791 F.2d at 1125 (4th Cir.); Johnson, 575 F.2d at 1356 (5th Cir.); Sterling, 742 F.2d at 526 (9th Cir.). The other six circuits cited by the dissent have not addressed the sufficiency of an indictment which tracks the language of the CCE statute. Thus, as noted earlier, the decisions of the Fourth, Fifth, and Ninth Circuits fall into line with those other circuits which have previously considered the CCE indictment issue, see Alvarez-Moreno, 874 F.2d at 1402 (11th Cir.); Sperling, 506 F.2d at 1344 (2d Cir.), “solid” precedent that the dissent is not nearly so enamored of in its Part II. See Dissent, op. at 1540, 1544 n. 6. Further, none of the other six express incorporation by reference cases cited by the dissent discusses how that rule of express incorporation relates to the constitutional protections afforded by good indictments. To rely on those cases rather than a considered analysis of such protections would advance a technical evaluation of indictments, expressly disfavored in modern criminal pleading, without necessarily promoting the constitutional rights of criminal defendants. Thus we turn to the dissent’s discussion of those rights.⁷

The portion of the dissent dealing directly with the substantive goals of indictments relies on the decision of the Supreme Court in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In particular, the dissent echoes the fear expressed in Russell that “a defendant [could] be convicted on the basis of facts not found by, or perhaps not even presented to, the grand jury.” Id. at 770, 82 S.Ct. at 1050. While the dissent criticizes what it perceives as our failure to address the Russell concern with the grand jury function, the fear articulated in Russell simply does not manifest itself in this case, where the facts at issue were both presented to and found by the grand jury.⁸ Notably, our approach to this indictment is mirrored by that of the defendants who have never suggested, either at trial or on appeal, that their right to be tried on charges presented to a grand jury has been prejudiced; they have instead challenged the indictment on the ground that it hampered the preparation of their defense. Additionally, our pri- or decisions where we have considered the entire indictment in evaluating the sufficiency of a count have explicitly considered the Russell concern with the grand jury function, and have found that function not to be adversely implicated by considering other counts not expressly incorporated by reference. See Neal, 692 F.2d at 1302 & n. 5 (“We also feel it proper to note that the nature of the charge and the evidence before the grand jury are further revealed by Counts II and III of the indictment.”) (emphasis added); see also Mobile Materials, 871 F.2d at 910; id. at 919-20 (McKay, J., dissenting).

And the dissent’s concern that “the majority’s holding would not restrict the prosecutor to the charges returned by the grand jury,” Dissent, op. at 1540, is misplaced in the context of this case. The defendants were not convicted of any crimes other than those they were charged with, nor was there evidence introduced at trial other than that alleged in the indictment, as the dissent acknowledges. The statement that “neither the majority’s holding nor its logic necessarily requires” such a factual scenario is not surprising, because we are guided by the sound judicial principle enunciated in Article III of the Constitution to judge only the situation before us.⁹

In addition to their notice and double jeopardy arguments, Teafatiller and Staggs assert another basis for challenging the sufficiency of the indictment. The appellants argue that because the jury found guilt on the conspiracy count, the jury improperly considered the overt acts listed therein as proved for purposes of the CCE count. According to the appellants, this result occurred because the jury lacked the guidance of a more specific CCE count. The jury was guided by more than the indictment, however, as the trial court instructed the jury that it only had to find the existence of one overt act in order to convict on the conspiracy count, rec. vol. XIII at 947-48, while it was required to find three drug violations in order to find guilt on the CCE charge. Id. at 949-50. The trial court also instructed the jury that its verdict on any one count should not control the verdict with regard to any other count. Id. at 941-42. Thus, appellants’ contention that the jury may have convicted on the CCE count based solely on its finding of guilt on the conspiracy count is without merit. See United States v. Hall, 843 F.2d 408, 411 (10th Cir.1988). The indictment is sufficient to charge the CCE offense and support the convictions of Teafatiller and Staggs. Based on the foregoing, the CCE convictions of appellants Teafatiller and Staggs are AFFIRMED. The panel opinion filed this same day resolves the balance of the issues raised by this appeal.

1 . 21 U.S.C. § 846 provides that "[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 841(a)(1) makes it unlawful for any person "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."

2 . A person is involved in a continuing criminal enterprise if:

(1) he violates any provision of this title or title III the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this title or title III—

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources. 21 U.S.C. § 848.

3 . Both CCE counts read in pertinent part:

Beginning in or about November, 1985, and continuing to on or about the date of this Indictment, within the Eastern District of Oklahoma, and elsewhere, the defendant [Teafatiller/Staggs] did knowingly, intentionally, unlawfully and willfully engage in a continuing criminal enterprise in that he repeatedly violated Title 21, regarding amphetamine, a Schedule II, stimulant controlled substance, which violations were part of a continuing series of violations undertaken by defendant [Teafatiller/Staggs], in concert with at least five other persons with respect to whom [Teafatiller/Staggs] occupied a position of organizer, a supervisory position, or any other position of management, and from which the defendant [Teafatiller/Staggs] obtained substantial income and resources.

Rec. vol. I, doc. 4 at 6-10.

4 . Count one charged each appellant with conspiracy to manufacture, possess, and distribute amphetamine, see 21 U.S.C. §§ 846 & 841(a)(1), as well as at least two overt acts of manufacturing or possession in furtherance of that conspiracy. Rec. vol. I, doc. 4 at 1-4. Thus, each were charged with three violations sufficient, when proved, to support a CCE conviction. See United States v. Hall, 843 F.2d 408, 411 (10th Cir.1988).

5 . The dissent contends that prior to these statements, the court in Neal had already explicitly held that the count in question, count one, was sufficient by itself. Dissent, op. at 1538. This contention is untenable. The discussion in Neal begins with the ultimate conclusion that count one is sufficient; that conclusion is then followed by more than a page of supporting reasoning. It is in this discussion explaining the sufficiency of count one that the court looked to other counts, not explicitly incorporated by reference, to reveal further the nature of the charge and the evidence before the grand jury. Neal, 692 F.2d at 1302. (Immediately following this reference to other counts, a footnote specifically lists the requirements of an indictment, including the grand jury function, id. at n. 5.). The court describes details alleged in other counts, and later concludes with its actual holding regarding count one: "We nevertheless feel the indictment was not fatally defective in view of the other details alleged, which we have noted.” Id. at 1303. It is inescapable that some of these details came from other counts not explicitly incorporated by reference.

6 . After citing cases from other circuits requiring explicit incorporation by reference, the dissent criticizes the use of Moya-Gomez, Esposito, and Becton in part because they dealt only with the notice requirement of an indictment, rather than the grand jury function emphasized by the dissent, an emphasis we reject infra at p. 1534. See Dissent, op. at 1538 n. 1. Despite such criticism, not one of the cases cited by the dissent as more persuasive than the above authorities mentions how the rule of express incorporation by reference relates to the grand jury function, and only one mentions how the rule relates to any of the constitutional requirements relevant to indictments, that being notice. See United States v. Hajecate, 683 F.2d 894, 901 (5th Cir.1982) (notice for preparation of defense); see also United States v. Miller, 774 F.2d 883, 885 (8th Cir.1985) (grand jury function considered, but rule of express incorporation by reference not explained on that basis). In any event, as noted in the text, the express incorporation cases cited by the dissent conflict with our decision in Neal, which, explicitly considering the grand jury function, looked to indictment counts not expressly incorporated by reference.

The dissent also criticizes Esposito, Becton, and United States v. Zavala, 839 F.2d 523, 526 (9th Cir.), cert. denied, — U.S. -, 109 S.Ct. 86, 102 L.Ed.2d 62 (1988), because unlike the instant case, the indictments in those cases were not challenged at trial. Interestingly, only Za-vala, which we did not even rely upon, factored the lack of objection at trial into its standard of review. Zavala, 839 F.2d at 526. The court in Becton concluded that the indictment “did not prejudice Becton in any way,” 751 F.2d at 256, and the court in Esposito determined that reversal was "unnecessary to protect the rights of the defendants,” 771 F.2d at 289. These decisions were grounded on substantive concerns and cannot be read as being in any way tied to a liberal construction of indictments based on the timing of objections. This is evidenced by the decision in Moya-Gomez, where the defendant did object at trial, and where the court relied on Becton to uphold the sufficiency of the indictment. Moya-Gomez, 860 F.2d at 752.

In the same vein, we must address the dissent's reliance, in this criminal context, upon cases considering the sufficiency of civil complaints. See Dissent, op. at 1543-44. This is like comparing apples with oranges. The underlying processes are structurally different. The criminal proceeding is monitored from its inception by a district judge (or a magistrate) and a grand jury, to satisfy probable cause requirements, among other things. The civil complaint is not screened in the slightest by a court prior to filing, thus requiring some screening-type rules to be instituted by the court itself. See Fed.R.Civ.P. 12(b), 56. Finally, the dissent’s citation to civil cases is inconsistent with and undercuts its emphasis on the grand jury function, which has no relation to the civil context. Nevertheless, the dissent clings to this comparison, see Dissent, op. at 1544 n. 5, reemphasizing its primary theme of the grand jury function, but not pointing to any authority or logic suggesting that the civil complaint context is somehow helpful in analyzing that function.

7 . This is the approach counseled by Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962):

"This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. This has been a salutary development in the criminal law.” Smith v. United States, 360 U.S. 1, 9 [79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959)]. "But ... the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.” Ibid. Resolution of the issue presented in the cases before us thus ultimately depends upon the nature of "the substantial safeguards" to a criminal defendant which an indictment is designed to provide. Stated concretely, does the omission from an indictment under 2 U.S.C. § 192 of the subject under congressional committee inquiry amount to no more than a technical deficiency of no prejudice to the defendant? Or does such an omission deprive the defendant of one of the significant protections which the guaranty of a grand jury indictment was intended to confer?

Id. at 763, 82 S.Ct. at 1046.

8 . The Court in Russell held that in prosecutions involving 2 U.S.C. § 192, which prohibits the refusal to answer questions pertinent to a subject under inquiry by a congressional committee, pertinency to the subject under inquiry is “the very core of criminality.” Russell, 369 U.S. at 764, 82 S.Ct. at 1047. Thus, the allegation of the subject was necessary to the sufficiency of the indictment, lest it leave “the chief issue undefined.” Id. at 766, 82 S.Ct. at 1048. Because of this, courts have distinguished Russell as involving a unique situation. See Neal, 692 F.2d at 1302; United States v. Perkins, 748 F.2d 1519, 1526 n. 11 (11th Cir.1984); United States v. McClean, 528 F.2d 1250, 1257 (2d Cir.1976). In his dissent in Russell, Justice Harlan expressed the fear that the decision would not be seen as unique but would lead to detailed indictments in all criminal cases, contrary to Fed.R. Crim.P. 7(c). See Russell, 369 U.S. at 787, 793, 82 S.Ct. at 1059, 1062.

9 . Without the benefit of any factual framework, it is unclear if the dissent is referring to an amendment (alteration of charging terms), a variance (facts proved at trial materially different from those alleged), or neither. See United States v. Weiss, 752 F.2d 777, 787 (2d Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 285 (1985). In any event, this portion of the dissent’s theory is not applicable in the context of evaluating the sufficiency of an indictment. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme Court held that "a court cannot permit a defendant to be tried on charges that are not made in the indictment against him,” considering such to be an improper amendment of or variance from the indictment. Id. at 217, 80 S.Ct. at 273. It is not the anticipation of such an amendment or variance which invalidates an indictment, however, but the occurrence of such which may invalidate a conviction. Thus, consideration of the possible use of unindicted charges or materially different facts at trial is not relevant to the analysis of the sufficiency of an indictment. While Russell cites Stirone, the Court in Russell had already concluded that an essential element was omitted from the indictment, yet proved at trial, therefore rendering the Stirone analysis applicable. That the possibility of an amendment or variance is not applicable to evaluation of the sufficiency of an indictment is obvious: such is always possible, yet not every indictment is invalid. The proper inquiry here must be limited to the charges in the indictment itself.