Judge Chin
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=117297
A JURY convicted defendant Ortiz of conspiring to distribute or to possess with intent to distribute crack cocaine, and possessing a gun in furtherance thereof. The indictment charged him and codefendant Reyes with a conspiracy “from at least in or about 2004, up to and including in or about June 2008.” The court denied Ortiz’s motion for judgment of acquittal and the indictment’s dismissal, in which Reyes joined. The government presented evidence that the charged conspiracy existed, and that Ortiz was a conspirator, from 2004 through 2008. Where the dates of a conspiracy proven at trial are within the dates charged in the indictment, courts concluded that the variance is not prejudicial. Because there was sufficient circumstantial evidence from which a reasonable jury could conclude that a conspiracy existed from 2004 through 2006—and into 2008—and that Ortiz was a member of that conspiracy during its entire span, no variance existed. Also, alleged defects before the grand jury—purportedly due to inaccurate and insufficient testimony—did not warrant the indictment’s dismissal. Under United States v. Calandra, a facially valid indictment is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incomplete evidence.
