949 F.3d 1
D.C. Cir.2020Background
- Brothers Eliu and Waldemar Lorenzana‑Cordon (Guatemalan nationals) and their family used family farms as stash houses/airfields for large cocaine shipments delivered by Colombian suppliers for pickup by Mexican traffickers.
- From 1998 onward the brothers took active roles: Eliu offloaded shipments and fronted money for purchases; Waldemar acted as lookout and handled logistics; both bought and sold hundreds of kilograms wholesale and sometimes competed for customers.
- The brothers also transacted with multiple suppliers and intermediaries, including trips to Honduras to move cocaine and dealings with figures like Marllory Chacon, Jose Handal (via David Andrade), Walter Merida, and Sebastiana Cotton.
- A federal grand jury indicted the brothers in 2009 for conspiring to import and to manufacture/distribute cocaine for importation into the United States; they were tried together, convicted after a three‑week trial, and sentenced to life imprisonment.
- On appeal the brothers argued (1) the government’s trial proof materially diverged from the indictment (variance/constructive amendment) and (2) the district court erred by refusing a multiple‑conspiracies jury instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government’s trial evidence materially diverged from the indictment (variance or constructive amendment) | Lorenzana‑Cordon: Evidence at trial introduced conspiratorial conduct in Honduras and involvement with specific persons and crimes (ephedrine manufacture, money laundering) not alleged in the indictment, constituting an impermissible variance/amendment | United States: Indictment charged conspiracy with persons "known and unknown" in "Colombia, El Salvador, Guatemala, Mexico, and elsewhere," and jury instructions limited convictions to the charged cocaine‑import/manufacture/distribute offenses, so no divergence or constructive amendment occurred; any ancillary testimony was harmless | No material divergence or constructive amendment; indictment wording encompassed the evidence and jury instructions prevented conviction on uncharged offenses; any variance was not prejudicial |
| Whether the district court erred by refusing to give a multiple‑conspiracies jury instruction | Lorenzana‑Cordon: Evidence showed the brothers often sold separately, used different suppliers, and sometimes competed — sufficient to support reasonable juror finding of multiple distinct conspiracies; refusal deprived them of notice and ability to present defense | United States: Even if multiple conspiracies could be inferred, defendants suffered no prejudice — indictment was sufficiently broad and detailed, defense had Jencks disclosures, jury was instructed to assess each defendant on his own conduct, and there was no spillover or insufficiency of evidence | No reversible error. Court assumed arguendo an instruction might have been warranted but held omission was not prejudicial; convictions affirmed |
Key Cases Cited
- Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969) (distinguishes indictment amendments from variances; explains prejudice standards)
- Baugham v. United States, 449 F.3d 167 (D.C. Cir. 2006) (variance reversal requires substantial and injurious effect)
- Kotteakos v. United States, 328 U.S. 750 (Supreme Court 1946) (harmless‑error standard for prejudicial variance)
- Toms v. United States, 396 F.3d 427 (D.C. Cir. 2005) (constructive amendment test: jury instructions and proof must not modify charged elements)
- United States v. Cross, 766 F.3d 1 (D.C. Cir. 2013) (standards for multiple‑conspiracies instruction and prejudice analysis)
- Miller v. United States, 471 U.S. 130 (Supreme Court 1985) (broad indictment can bar subsequent prosecution for narrower included scheme)
- Hamling v. United States, 418 U.S. 87 (Supreme Court 1974) (indictment must set forth elements and sufficient detail to give notice)
- United States v. Graham, 83 F.3d 1466 (D.C. Cir. 1996) (single conspiracy can exist despite competition among co‑conspirators)
- United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) (use of different suppliers does not necessarily preclude single conspiracy)