ORDER DENYING DEFENDANT'S MOTION FOR ACQUITTAL (RULE 29)
This matter is before the Court on Defendant Duane Eddings' ("Eddings") Motion for Acquittal. Eddings moves the Court for an order granting a motion for judgment of acquittal on Counts 3 and 4 of the Superseding Indictments, arguing that there was insufficient evidence from which the jury could reasonably find Eddings guilty; and Counts 8, 9 and 10 of the Superseding Indictment on the grounds that the government either constructively amended the indictment at trial or fatally varied from the indictment. For the reasons set forth below, Eddings Motion for Acquittal is DENIED.
A. Constructive Amendment 3
After an indictment has been returned and criminal proceedings 4 are underway, the indictment's charges may not be broadened by 5 amendment, either literal or constructive, except by the grand jury 6 itself. United States v. Adamson, 291 F.3d 606, 614 (9th Cir. 7 2002). Constructive amendment of an indictment may be found where 8 1) "there is a complex set of facts [presented at trial] distinctly 9 different from those set forth in the charging instrument," or 2) "the crime charged was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved." United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002).
Eddings argues that the Superseding Indictment was constructively amended when the government proved wire and mail frauds different than those alleged in Counts 1-7 of the superseding indictment to support an element of money laundering, that the money or property at issue be derived unlawfully. Eddings points to language in the money laundering counts that the property at issue in those counts was "derived from specified unlawful activity, that is, Mail Fraud . . . as alleged in Counts One through Four . . .; and Wire Fraud . . . as alleged in Counts Five through Seven of this Superseding Indictment."
The government generally argues that Eddings reads too much into the "as alleged in" language because that language does not indicate that the particular wire or mailing in the referred to counts will necessarily serve as the predicate unlawfully obtained funds.
In United States v. Randall, 171 F.3d 195 (4th Cir. 1999), two 2 brothers were arrested for various counts related to a conspiracy 3 to distribute crack. Id. at 198. The § 924(c) charge was for 4 knowingly using and carrying a firearm in the commission of a drug 5 crime. Id. at 201. The indictment further stated that the 6 predicate drug offense was "specifically, distribution of a 7 narcotic controlled substance." Id. 8
At trial, however, the evidence presented indicated that the 9 defendant did not distribute crack when he was arrested. At the time of arrest, no crack transaction occurred. Instead, officers arrested the defendants before any sale occurred and found 1.3 grams of crack along with a gun in their car. Id. at 201.
The Randall court held that the government amended the indictment in violation of the defendants' Fifth Amendment rights when it proved a different predicate offense than the one alleged in the indictment. Id. at 210.
The court reasoned, with relevance to the present case, "the government was not required to specify on which § 924(c) predicate offense it was relying, because the government did indeed specify in the indictment that it was relying on the predicate offense of distribution, it was not allowed through the presentation of its evidence and its argument, and the district court was not allowed through its jury instructions, to broaden the bases of conviction to include the different § 924(c) predicate offense of possession with intent to distribute." Id.
In this case, the government used wire fraud and mail fraud as the predicate offenses for the money laundering counts. Randall does not apply neatly because the government did in fact prove those exact predicate offenses. Eddings argues that the government 2 amended the indictment because it did not prove the exact offenses 3 alleged in counts 1-4 and 7. The government, however, did not 4 specifically state it was going to prove the facts of those 5 offenses and show that Eddings laundered the money derived from 6 them. It only committed to proving wire and mail fraud as the 7 predicate offenses for the money laundering counts. Eddings' 8 reading of the indictment assumes too much when he reads "as 9 alleged" to mean specific acts of wire and mail fraud, rather than those offenses generally.
Even in U.S. v. Dupre, which Eddings distinguishes as incorrectly decided, the indictment specifically identified the particular wire transfer that would be proven at trial in a "to wit" clause. United States v. Dupre, 462 F.3d 131, 141 (2d Cir. 2006). In this case, however, the government did not commit to proving a particular wire or mailing in its indictment on the money laundering counts. Eddings does not provide case law that extends the constructive amendment rule to facts analogous to the present case.
Eddings next argues that if there was no constructive amendment, then there was a variance from the Superseding Indictment that ...