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JAVIER
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' 90-1O389
D. c. No. cR-8 9 -3 59 -PHX-cLll
llo
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I'IARULAI{DA '
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Defenclant-APPeIlant
tggt
CATIIY A. CATTERSON, CITRK
U.S. COURT OI APPEAL6
ON
TOT FOR PI)BI,I CATI
OF APPEALS
UNITED STATES COURT
FOR TIIE NINTII CIRCUIT
IJNITED STATES OF AMERICA '
2
M
EMORAN DUI'1
D.istrict courc
rom the tjni ted States
Arrr)eaI f"r"o;,.PPeqr
;h" Di sLrict of rrrizona
-'
Judse' P-r-esidins
oititit:t
i,l'tt"iáv,
ctrarles
-""'-o"ro,i"¿ ancl submitted Jul y r 6' I ?: l
rulY 2s'- -reet
;;;;;=";;; HiLhdrawn
August
n"=ut *i tted
16-' r ??l
calrtornrd
Sall Fra¡lcisco'
Be
fore
:
Judges¡ and
clloY and SllEED, Cjrcuit
iul,in¡lun, " Djtt''iLrL J uLige '
I N'TRODUCTlO¡{
- convll'ction for engaging in a
and
court' Appellant
Marulanda appealed to this
Followilrg a jury trial
narcotics conspiracy,
fo-r publication as
is not appropr:iate'
t"* tt*"sition
tr tr'i= circuit excePt
tit'""""ii=
by
or
to
cited
be
not
nlay
prov ided by 9th cir' R' 36-3'
Judge for the
Distric!
'J'
KeIleher'
Robert
llonorable
calirornia' sittine Dy Clesr9¡ldLr'u¡¡'
Di'=;;;;;-;¡
l
centra
and
,
!
---!¡^-
betlJeen the indicttnent and the
cl.aimed tlrat tbere was a variance
reversal ' in that
proof at trial which was prejudicl'aI ' warranting
of irrelevant evidence and
it resulted in the admission
in an improper venue'
i.nadmissable hearsay, and trial
that the government had failed to
Specif icall-y, appellant claimed
conspiracy as the indict¡nent
prove that there had been one rarge
distinqt conspiracies '
charged and lrad instead shown multiple
the parties the
After oral argument, the panel afforded
addressing the issue of
opportunity to subnit additional briefs
jury instructions cured any
whether, if there was a variance, the
briefs revealed that the
prejudice that nay liave resulted' These
After considering
jury instructions had no such sal-utary effect'
reverse the conviction'
the record, we agree with the appellant and
to reach the adciitionat issues
t^¡e find it unnecessary, therefore'
raised by the appellant in hjs appeal'
DlSCUSS lOII
evidence in the light
A variance is shown when' viewing the
rational trier of fact could
most favorable to the prosecution' no
.
charged beyond a reasonable
have fout)d tl¡e el.ements of tl¡e- crirne
(9th clr'
L28g
' I2g3
doü-bt. u¡¡iÉcd states v' Abrrshi, 682 F'2d
proof affects
If the variance between the indictment and
.
is prejudicial and
the substantive rights of the parties' then it
645 F'2d L123 ' l-334 (9th
Unj ted states v' Kenrly'
warrarlts t.t.t"uI.
cir. 1981), cert. denied 452 U'S' 92o (1981)'
variance here'
e acjree wiLh the appel lant that tl¡ere was a
rational trier of fact could
Based upon the governmentrs proof' no
1982)
t"J
beyond a reasonable doubt'
conspiracy
single
a
have. found
lJas a I'wheel" type
this
that
prove
to
The governnent tried
rrhubrr enqages in various individual
central
the
wl¡ich
in
conspiracy
These separate transactions
'
tlle
are
'rspokes't
s'hich
transactions
is the overall agreenent
rrrimrr'
which
a
by
are Iinked together
objectives of the conspiracy'
the
out
carry
to
parties
arnong the
is a separate conspiracy'
spokes"
the
of
irrimtr,
each
I.lithout the
(L946)'; United:States
v' United States' 328 U'S' ?50
gee Kotteakos
v. Kennv, 645 F'2d at 1334-1335'
agreement' rrthe government
overall
the
establish
to
In order
agreement between the
explicit
or
contact
directneed not sllow
each defendant knew or
that
show
to'
sufficient
defe¡rdants' It is
and lhat each
conspiracy
the
of
scope
the
of
had iéason to know
own benefits were
their
thaL
ieve
Lref
to
riefendant had reaso¡1
I' Uniled States
venture'
entire
the
of
success
dependent upon the
Cii' 19?8) u'EVidence of onIY
380
ruUh
378'
F'2d
585
v. Kostoff,
r' United States v' Kennv | 645 F'2d
necessary'
is
a slight connectiotr
aL 1335.
the
liberal st-andards of proof '
these
ullder
evell
put,
sinply
to the
the appellant had any link
that
show
to
failed
governnent
multiple conspiracies heré
were
Thus'
:I9Ie
otl¡er transactions '
variance affected the
this
conspiracy
Iarge
'
and not one
in that it resulted in the
substantíve rights of the appellant
and trial in an irnproper venue '
evidence
prejudicial
of
admissio¡r
tlreory' tl're governrnent
eonspiracy
single
the
on
proceeding
By
arrd prejudicial evidence regarding
irreleva¡rt
introduce
to
was able
F
lÍi
the , prior transactions and heardá-y of al. purported cocónspirators. The jury instructio¡rs did nothing to cure this
prejudice and even. compounded it by specifically advisjng the jury
that they could irnpute the overt acts of the purported coconspirators to the appel I ant.
The single conspiracy indictment also allov¡ed for venue to be
.
founded in the District of Arizona based upon acts cornmitted by the
pufported co-conspirators. venue ¡nay be forrnd in any district ln
wh j.ch an overt act in furthera¡rce of tl¡e conspiracy has been
committed. United States v. Barnard, 490 p.2d 907, 910 (9th Cir,
1973) | cert, denied, 416 U.S. 959 (I974), Because the government
failed to prove that any overt act involving appellantrs alleged
transaction took place in Arizona, the District of Arizona was not
a proper venue. See United States v. Durades, 607 F.2d B1B, 820
(9th Cir. LgTg'). prosecution in an inproper venue infringed
appel lant rs substantive rights. fd.
For the above-stated reasons, the conviction is REVERSED.