United States v. Patricia Ann Lewis

Appellant was indicted on nine counts for violating the narcotics laws, 21 U.S. C. § 174 and 26 U.S.C. § 4705 (a). Three separate instances of possession and sale were involved. At the close of the Government’s case three counts were dismissed on motion of the United States, and three on motion of the appellant. At the end of the jury trial appellant was convicted on the remaining three counts and sentenced to five year concurrent terms.

1. Appellant contends that the motion of acquittal should have been granted on two of the remaining counts, on grounds that the indictments were fatally defective in that they charged sale to a federal agent, while the proof offered was of sale to the informer. We disagree. Appellant concedes that she was not misled by the variance; nór do we regard the variance between indictment and proof as affecting substantial rights under Berger v. United States, 295 U.S. 78, 82 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935). Nor is there any possibility of double jeopardy, since the record as well as the indictment must be consulted should that issue arise in a future prosecution. Russell v. United States, 369 U.S. 749 , 82 S.Ct. 1038 , 8 L.Ed.2d 240 (1962).

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