United States v. Easter ( 2006 )


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  •                                                        United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                   July 5, 2006
    
                                                             Charles R. Fulbruge III
                                                                     Clerk
                               No. 05-41352
                             Summary Calendar
    
    
    
    UNITED STATES OF AMERICA,
    
                                        Plaintiff-Appellee,
    
    versus
    
    DESMON CHARLES EASTER,
    
                                        Defendant-Appellant.
    
                            --------------------
               Appeal from the United States District Court
                     for the Eastern District of Texas
                           USDC No. 5:03-CR-33-1
                            --------------------
    
    Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
    
    PER CURIAM:*
    
         Desmon Charles Easter appeals his conviction for conspiring
    
    to possess 50 grams or more of a mixture containing cocaine base
    
    with intent to distribute.   He contends that the indictment was
    
    impermissibly vague because it failed to allege the dates of the
    
    conspiracy with any specificity.   Because he did not challenge
    
    the indictment in the district court, this court reviews for
    
    plain error.   United States v. Cotton, 
    535 U.S. 625
    , 629-31
    
    (2002).   The date of the offense is not an essential element that
    
    
         *
           Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                               No. 05-41352
                                    -2-
    
    must be charged in the indictment.   United States v. Lokey, 
    945 F.2d 825
    , 832 (5th Cir. 1991).   Moreover, Easter has not
    
    established that his substantial rights were affected by any
    
    error in the date alleged on the indictment.   See Cotton, 535
    
    U.S. at 631.
    
         Easter contends that the evidence is insufficient to support
    
    his conviction because the Government did not prove at his trial
    
    that all the conspirators named in the indictment were involved
    
    in the conspiracy.   He has not established that the Government
    
    had a duty to prove the involvement of all other conspirators at
    
    a trial where Easter was the only defendant.   See United States
    
    v. Hernandez-Palacios, 
    838 F.2d 1346
    , 1348-49 (5th Cir. 1988)
    
    (defendant can be convicted of conspiracy even if his
    
    codefendants have been acquitted); cf. United States v. Morris,
    
    
    46 F.3d 410
    , 420-22 (5th Cir. 1995)(although Government required
    
    to provide proof of the knowledge and participation of “each
    
    alleged conspirator,” court reviewed evidence only of the
    
    appealing defendants’ knowledge and participation).
    
         Easter asserts alternatively that the failure to prove a
    
    seven-person conspiracy, as alleged in the indictment,
    
    constituted a fatal variance resulting in reversible error.    He
    
    has not established that he is entitled to relief on this ground.
    
    See Berger v. United States, 
    295 U.S. 78
    , 81 (1935).     The
    
    judgment of the district court is AFFIRMED.