United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2781
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Johnnie Joe Longs, *
also known as Johnny Blaze, *
*
Appellant. *
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Submitted: May 13, 2010
Filed: July 30, 2010
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Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.
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RILEY, Chief Judge.
A jury found Johnnie Joe Longs guilty of one count of conspiracy to distribute
and possess with intent to distribute more than 50 grams of cocaine base (crack), in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846, and one count of
conspiracy to possess firearms in furtherance of the drug trafficking conspiracy, in
violation of 18 U.S.C. § 924(c)(1)(A) and (o). For the first time on appeal, Longs
argues his convictions should be reversed because there was a variance between the
conspiracy as charged in Count 1 of the indictment and the evidence presented to the
jury. We affirm.
I. BACKGROUND
In June 2007, a grand jury returned an indictment against fourteen individuals,
charging them with various drug and firearms offenses in the District of Minnesota.
The grand jury issued a superseding indictment in September 2007, adding several
defendants, including Longs and his brother. Each defendant named in the
superseding indictment, other than Longs, reached a plea agreement with the
government.
In April 2008, a second superseding indictment was issued, naming Longs as
the sole defendant and charging him with conspiracy to distribute crack, conspiracy
to possess firearms in furtherance of the crack conspiracy, and possession with intent
to distribute crack. Longs pled not guilty to the charges against him, and the case
went to trial. Several of Longs’s co-conspirators testified against him. The jury found
Longs guilty of the crack and firearms conspiracies and not guilty of the substantive
count of possession with intent to distribute crack cocaine. The district court1
sentenced Longs to 240 months imprisonment.2
II. DISCUSSION
Longs belatedly claims his convictions should be reversed because there was
a variance between the indictment and the evidence presented at trial. A variance
exists when the allegations in the indictment are “materially different” from the
evidence presented to the jury. See United States v. Hyles, 521 F.3d 946, 957 (8th
Cir. 2008) (quoting United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir.
2007)), cert. denied, 129 S. Ct. 941 (2009).
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
2
Longs does not appeal his sentence.
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Because Longs did not raise this issue in the district court, we review for plain
error. See Hyles, 521 F.3d at 957. In order to show plain error, Longs must prove:
(1) there was an error, (2) the error is clear or obvious, and (3) the error affects
Longs’s substantial rights. See Puckett v. United States, 556 U.S. __, __, 129 S. Ct.
1423, 1429 (2009). “[I]f the above three prongs are satisfied, [we have] the discretion
to remedy the error . . . only if the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (quoting United States v. Olano, 507
U.S. 725, 736 (1993) (internal quotation marks omitted)).
The indictment alleged Longs participated in a single conspiracy to distribute
crack cocaine, but Longs insists the evidence presented at trial “tended to show that
multiple conspiracies were in existence,” rather than a single conspiracy.
A single conspiracy is composed of individuals sharing common
purposes or objectives under one general agreement. A single
conspiracy may exist even if the participants and their activities change
over time, and even if many participants are unaware of, or uninvolved
in, some of the transactions. Further, the agreement need not be explicit,
but may be tacit, based upon the actions of the defendant.
United States v. Donnell, 596 F.3d 913, 923 (8th Cir. 2010) (quoting United States v.
Ramon-Rodriguez, 492 F.3d 930, 941 (8th Cir. 2007)).
Where, as here, a defendant argues the evidence varies from the
conspiracy charged in the indictment by establishing multiple and
different conspiracies than the one charged, “[w]e will reverse only if we
find the evidence adduced at trial does not support a finding of a single
conspiracy, and we determine [the defendant] was prejudiced by the
[evidence].”
United States v. Smith, 450 F.3d 856, 860 (8th Cir. 2006) (quoting United States v.
Benford, 360 F.3d 913, 914 (8th Cir. 2004)).
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First, the evidence overwhelmingly supported the charge that Longs
participated in the crack conspiracy as alleged in the second superseding indictment.
Longs’s co-conspirators testified Longs, among other things, gave money to his co-
conspirators to purchase crack, converted powder cocaine into crack with his brother,
sold crack to his co-conspirators and others on a regular basis at homes rented by co-
conspirator Deborah Lomax, provided crack to co-conspirators to sell on his behalf,
had co-conspirators provide security for him and provided security for others during
drug transactions at Lomax’s homes, and carried firearms for protection while selling
crack.
Longs suggests the government proved, at most, he was a part of separate
conspiracies, rather than a single conspiracy. However, at the time of trial, Longs was
the sole remaining defendant. All of the evidence at trial related directly to Longs’s
involvement in the crack and firearms conspiracies as charged in the second
superseding indictment. “[I]t is difficult to see how the defendant was prejudiced
given that he was the sole defendant on trial and was arguably implicated in any other
conspiracy the evidence could prove.” United States v. Lopez-Arce, 267 F.3d 775,
781 (8th Cir. 2001); see also United States v. Buckley, 525 F.3d 629, 634 (8th Cir.
2008) (“[T]he chance of a prejudicial spillover effect from one conspiracy to another
if the defendant is a member of both conspiracies is minimal, if not nonexistent.”
(quoting United States v. Ghant, 339 F.3d 660, 664 (8th Cir. 2003) (internal quotation
marks omitted))), cert. denied, 129 S. Ct. 475 (2009).
The cases Longs cites in support of his variance argument are inapposite. Cf.
United States v. Snider, 720 F.2d 985, 987 (8th Cir. 1983) (finding a fatal variance
where the indictment alleged a single conspiracy, but the evidence presented
established the existence of two separate, independent marijuana grow houses and the
defendants on trial were only involved in one of the operations); United States v.
Jackson, 696 F.2d 578, 582 (8th Cir. 1982) (concluding there was a fatal variance
where the indictment alleged a single conspiracy to set fires to four buildings and
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collect insurance proceeds through the mail, but the evidence “at most showed that
two separate conspiracies were in operation” and two of the defendants were only
involved in one of the conspiracies).
Longs also protests how “drug conspiracies, distinguished from substantive
drug crimes, are alleged and proved in federal prosecutions today.” Longs complains
the first two indictments here were vague and “barren,” although the second
superseding indictment provided “a little more information.” In this case, we
conclude Longs’s complaints lack merit. To the extent Longs argues the indictment
failed to provide him with sufficient notice of the evidence that would be presented
at trial, we disagree. The indictment sufficiently apprised Longs of the evidence the
government would introduce at trial.
We find no error, plain or otherwise, because, viewing the evidence in the light
most favorable to the verdict, we conclude “‘a reasonable jury could have determined
that the defendant participated in the single conspiracy charged in [Count 1 of] the
[second superseding] indictment.’” Donnell, 596 F.3d at 923 (quoting United States
v. Sdoulam, 398 F.3d 981, 991 (8th Cir. 2005)).
III. CONCLUSION
We affirm Longs’s convictions.
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