United States v. Trigueros

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2007
No. 07-60127
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS RAMIREZ TRIGUEROS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:06-CR-34-1
Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Luis Ramirez Trigueros appeals his conviction for knowingly possessing
and using a counterfeit document in violation of 18 U.S.C. § 1546(a). Trigueros
was sentenced to sixteen months of imprisonment, which will be followed by
three years of supervised release. He also was ordered to pay $136 in restitution
and a $100 special assessment. Trigueros contends that the district court erred
by allowing a material variance to the indictment regarding the date and
location of the offense, and that the variance prejudiced his defense.
*
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should not be published and is not precedent except under the limited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. 07-60127
Trigueros was indicted on June 6, 2006. The indictment charged that
Trigueros “did knowingly and intentionally possess and use” a counterfeit
resident alien card on April 21, 2006, in Harrison County, Mississippi. The
Government’s evidence at trial showed that Trigueros used the counterfeit card
to apply for food stamps in Hancock County on January 4, 2006. A witness
testified that Trigueros was found in possession of the counterfeit card when, as
the witness put it, the defendant was “encountered” in Hancock County on May
9, 2006. The witness sought to distinguish the encounter from the actual arrest,
which was said to have occurred once Trigueros was taken by sheriff department
deputies to Harrison County. The testimony is unclear as to whether Trigueros
retained possession of the card as he was transported to Harrison County, or
whether the card was taken from him by the deputies in Hancock County. The
only reference in testimony to the April date charged in the indictment is that
one of the special agents opened his investigation that day.
Thus on two points, the indictment is said to have varied from the
evidence – the date of the use and possession was charged as being in April, and
the location was charged as being in Harrison County. Variances between
indictment and proof are material if they cause a modification in an essential
element of the offense charged. United States v. Thomas, 12 F.3d 1350, 1357
(5th Cir. 1994). The concern with a variance is “whether the indictment,
assuming it has otherwise alleged the elements of the offense, has so informed
a defendant that he can prepare his defense without surprise and has protected
him against a second prosecution for the same offenses.” United States v.
Cochran, 697 F.2d 600, 604 (5th Cir. 1983). We use a harmless-error analysis
to determine whether a defendant was prejudiced by a variance. Thomas, 12
F.3d at 1357.
Trigueros’s first challenge, which is to the difference between the date of
possession charged in the indictment and the dates proven at trial, may not
show a variance at all. A reasonable inference from the evidence could be that
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No. 07-60127
because Trigueros was shown to have had the document in January and in May
2006, he also had it in April as charged in the indictment. Because Trigueros
was charged with use and possession, possession alone on the April date would
have sufficed even if evidence of use indicated a different date. United States v.
Gonzales, 484 F.3d 712, 715 (5th Cir. 2007) (“disjunctive statute may be pleaded
conjunctively and proven disjunctively.”) Evidence of either use or possession
would have supported guilt.
In addition, any variance between indictment and proof as to the date did
not implicate an essential element of the charged offense. “An allegation as to
the time of the offense is not an essential element of the offense charged in the
indictment, and, within reasonable limits, the offense need only occur before the
return of the indictment and within the statute of limitations.” United States v.
Valdez, 453 F.3d 252, 259-60 (5th Cir.) (internal quotation marks and citation
omitted), cert. denied, 127 S. Ct. 456 (2007). Where, as here, the prosecution
uses “the ‘on or about’ designation” in the indictment, it is “not required to prove
the exact date; it suffices if a date reasonably near is established.” Id. (internal
quotation marks and citation omitted). There is no material variance between
the date in the indictment and the evidence presented at trial.
The second alleged variance is that there was no evidence that the location
of the offense was Harrison County, as stated in the indictment, but instead both
the use of the card and the seizure of Trigueros with the card were in Hancock
County. We note that Harrison and Hancock are adjacent counties and that
both are within the jurisdiction of the district court.
This Circuit has stated, though the authority is somewhat dated, that so
long as the defendant is not misled and there is proof that the offense occurred
within the jurisdiction of the court, an error as to location of the offense is an
immaterial variance. See Cagnina v. United States, 223 F.2d 149, 153 n.2 (5th
Cir. 1955) (variance was immaterial where there was a discrepancy between
evidence as to location and county stated in the indictment, there was no
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No. 07-60127
misleading, and proof that offense took place in the jurisdiction of the district
court); Herman v. United States, 48 F.2d 479, 480 (5th Cir. 1931) (location of
offense treated as surplusage and no variance was found where location was
descriptive of offense in indictment).
More recently, the First Circuit addressed the issue of whether a
discrepancy in the location stated in the indictment and evidence presented at
trial resulted in a fatal variance. United States v. Escobar-de Jesus, 187 F.3d
148 (1st Cir. 1999). The indictment had charged that the offense took place “at
Guayama, Puerto Rico,” while the evidence presented at trial was that the
offense took place in a neighboring town. Id. at 171. The court noted that any
discrepancy between the specified location in the indictment and the evidence
at trial “was neither material nor prejudicial,” and that location was not an
element of the crime. Id. at 172. The towns were close to each other and both
were within the jurisdiction of the district court. Id. It was not even claimed
that the location named in the indictment led to any misinformation about the
charges. Id.Here, the Government notified Trigueros two weeks before trial that it
intended to introduce evidence that varied from the location stated in the
indictment. Trigueros contends that he was prejudiced because the notice came
so close to his trial date and his attorney’s ability to respond to the change was
hampered because Trigueros speaks only Spanish. However, Trigueros does not
allege any specific prejudice that resulted. Moreover, he does not deny the
Government’s claim that it informed him during discovery of the evidence that
the Government planned to introduce at trial.
Trigueros was able to prepare his defense without surprise. The
discrepancy does not put Trigueros at risk for a second prosecution for the same
offense. Trigueros has also failed to demonstrate any prejudice. There is no
merit to the issues raised, and the conviction is AFFIRMED.
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