                                                                             FILED
                           NOT FOR PUBLICATION                                JUN 30 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30349

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00035-SEH-1

  v.
                                                 MEMORANDUM *
JUDY MARIE LAVERDURE,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                        Argued and Submitted June 9, 2010
                                Portland, Oregon

Before: HALL, THOMPSON and McKEOWN, Circuit Judges.

       Judy Marie Laverdure was indicted for, and convicted by jury of:

(1) conspiracy to possess with intent to distribute 500 grams or more of

methamphetamine, 21 U.S.C. §§ 841, 846; (2) possession with intent to distribute

more than 500 grams of methamphetamine, 21 U.S.C. § 841(a)(1); and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(3) distribution of more than 500 grams of methamphetamine, 21 U.S.C.

§ 841(a)(1). Laverdure appeals her conviction on three grounds. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.    Fatal Variance

      Laverdure argues there was a fatal variance from the indictment because

evidence at trial showed the existence of multiple conspiracies, rather than the

single charged conspiracy. In particular, Laverdure argues that the evidence

showed that, on two occasions, principals withdrew from the conspiracy,

subdividing any dealing operation into distinct conspiracies.

      To prove a fatal variance, Laverdure must show: (1) the claimed variance

and (2) resultant prejudice to Laverdure’s rights. United States v. Adamson, 291

F.3d 606, 614-15 (9th Cir. 2002). Because Laverdure has not shown that her rights

were prejudiced, we do not consider whether a variance existed.

      Laverdure had ample opportunity to prepare a defense and the proof at trial

did not impermissibly go beyond the allegations in the indictment. See United

States v. Morse, 785 F.2d 771, 775 (9th Cir. 1986) (“[P]rejudice may result in three

ways: 1) inadequate opportunity to prepare a defense and exposure to unanticipated

evidence at trial; 2) deprivation of the right to be tried only on charges presented in




                                           2
an indictment returned by a grand jury; and 3) exposure to prejudicial evidentiary

spillover.” (citations omitted)).

      First, Laverdure was notified of the evidence that the government intended

to put forth at trial, and she successfully excluded and neutralized some of the

testimony. Second, despite the absence of any physical drug evidence, numerous

witnesses testified to Laverdure’s dealings: nine witnesses testified to buying

methamphetamine from Laverdure, one witness testified that Laverdure brokered

several drug deals, and other witnesses testified that Laverdure and her parents had

a substantial amount of methamphetamine bagged at their house and that the three

of them sold methamphetamine. Third, the jury could not have convicted

Laverdure of some other conspiracy. The evidence at trial focused on Laverdure’s

direct involvement in drug dealing with limited mention of any other supposed

conspiracies.

II.   Relevancy

      Laverdure argues that the district court abused its discretion by admitting

testimony about drug dealings that occurred before the time frame of the

indictment. See United States v. Vo, 413 F.3d 1010, 1017 n.4 (9th Cir. 2005). In

particular, a Federal Bureau of Investigation agent testified that, in the months

before the indictment’s time frame, Laverdure was suspected of allowing


                                           3
methamphetamine dealers to use her garage for unpacking drugs. The agent

testified that Laverdure consented to a search of the garage, which was later shown

to be her parents’ garage, and that circumstantial evidence of drug trafficking was

found there.

        The district court did not abuse its discretion by admitting this evidence.

The testimony was relevant, as it suggested that Laverdure and her parents

conspired to possess with an intent to distribute methamphetamine. Furthermore,

the evidence was not unfairly prejudicial to Laverdure, as more compelling

evidence of guilt was offered by other witnesses. See Fed. R. Evid. 403. Other

witnesses testified that Laverdure lived with her parents in 2005—during the

indictment’s time frame—and that a substantial amount of methamphetamine was

stored there and sold by both Laverdure and her parents.

III.    Base Offense Level

        Laverdure argues that the district court erred in setting her base offense level

at 34 based on her responsibility for between 1.5 and 5kg of methamphetamine. In

particular, Laverdure argues that the jury verdict and testimony support a

determination that she was responsible for only between 500g and 1.5kg of the

drug.




                                            4
      We reject this argument. The jury’s special verdict that Laverdure was

responsible for over 500g of methamphetamine is not controlling, as that

determination was made solely for the purpose of imposing the statutory minimum

sentence. The trial testimony addressing Laverdure’s dealings, if aggregated over

the time frame of the indictment, see United States v. Culps, 300 F.3d 1069, 1077

(9th Cir. 2002), supports the 1.5 to 5kg determination.

      AFFIRMED.




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