UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4789

HENRY FRANK MCLEAN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4775

KAREN ELAINE BLAND,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., District Judge.

(CR-96-6)

Argued: May 8, 1998

Decided: December 17, 1998

Before ERVIN and MOTZ, Circuit Judges, and BEEZER,

Senior Circuit Judge of the United States Court of Appeals

for the Ninth Circuit, sitting by designation.

_________________________________________________________________

Reversed and remanded by unpublished opinion. Judge Ervin wrote

the opinion, in which Judge Motz and Senior Judge Beezer joined.

_________________________________________________________________
COUNSEL

ARGUED: Michael Andrew Grace, MICHAEL A. GRACE, P.A.,

Winston-Salem, North Carolina, for Appellant McLean; Bruce Alan

Lee, BRUCE A. LEE, P.A., Greensboro, North Carolina, for Appellant Bland. Paul Alexander Weinman, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. ON BRIEF:

Walter C. Holton, Jr., United States Attorney, Winston-Salem, North

Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Henry McLean and Karen Bland were both convicted of a 26-year

conspiracy to distribute cocaine hydrochloride, cocaine base, and

marijuana. McLean's primary contention on appeal is that the district

court erred by not granting his motion for judgment of acquittal

because the United States offered insufficient evidence to prove

McLean engaged in a single conspiracy lasting 26 years. Bland challenges the sufficiency of the evidence regarding her participation in

the latter stages of the alleged conspiracy and also argues that she was

entitled to a jury instruction on withdrawal from the conspiracy.

We find that the United States failed to prove the existence of any

conspiracy lasting 26 years. We therefore reverse McLean's judgment

of conviction and remand for entry of a judgment of acquittal. Bland,

who was indicted and convicted of engaging in the same alleged 26-

year conspiracy, was also erroneously convicted. We therefore

reverse Bland's judgment of conviction and remand for entry of a

judgment of acquittal.

 2
I.

Henry McLean, Karen Bland, Robert Jerome Murchison, and five

others (Jerome Jewitt Johnson, Sr., James Marshall McLean, Michael

Anthony Taylor, Ronovan Kennedy Berryman, and Dwight Levern

Morgan) were indicted on January 29, 1996, for conspiracy to distribute cocaine hydrochloride, cocaine base, and marijuana. The government claimed that McLean and the others conspired from in or about

1970 to January 1996 to sell cocaine, cocaine base (crack), and marijuana, primarily in Sanford, North Carolina, which is in Lee County.

McLean's initial drug operation in the early 1970s involved sales

of marijuana and various forms of LSD. During this time, he gave

marijuana to his cousin, Robert Jerome Murchison, who was visiting

Sanford from New England. McLean went to prison in 1973, and was

paroled in 1974. Sometime after his release from prison, he began to

sell cocaine, and still sold marijuana and LSD. In the early 1980s, he

apparently employed other persons to pick up drugs in Fayetteville,

North Carolina, including Tony Wade Johnson and Fletcher McBride,

though none of those persons was named in the indictment.

In late 1982, McLean sold marijuana to an undercover officer and

was subsequently arrested and sent to state prison. After his release

in 1985, he did not re-enter the drug market for some time. Then, in

approximately 1987, he began to sell crack and cocaine in Lee

County. McLean used numerous rented locations, including a place

referred to as "the shop" at 1801 Garden Street, to facilitate his drug

distribution business. He generally sold "individual-use" packets of

drugs.

Murchison, McLean's cousin, returned to Lee County from Massachusetts in 1987. He immediately began working for McLean, and

was primarily employed in "watching out" for Karen Bland, who

worked as McLean's assistant starting in about 1987, to make sure

she was not robbed or assaulted while she sold drugs for McLean.

Murchison also traveled various places, such as Hoke County, to

obtain drugs for sale in Sanford. McLean sometimes accompanied

Murchison, as did co-defendant Jerome Johnson.

For some time in 1988, Murchison and Bland sold crack and

cocaine from the loft of "the shop." After several months, McLean

 3
had a falling-out with one of the co-conspirators, Jerome Johnson,

who then persuaded Murchison to sell cocaine with him. McLean and

Murchison feuded over Murchison's "desertion," but later made up

their quarrel. Murchison and Jerome Johnson, however, remained

business rivals of McLean.

Bland also worked out of a trailer on Beulah Brown Road in 1989.

The police searched the trailer in January, 1989, while Bland and

Walter Petty were there, and found 8.6 grams of cocaine. In August

1989 the police found Bland in possession of 8.19 grams of cocaine.

Also in August 1989, Murchison was arrested in New Jersey and was

in jail there until December, 1989.

The government first tied Karen Bland to McLean in 1987. She

was arrested in 1989 and went to prison for approximately nine

months in 1990.

On April 2, 1990, the police searched the area around "the shop"

and found six vials of crack concealed in a car that had been abandoned on the property. Vanessa Shaw, who was then working as

McLean's assistant, was arrested and charged with possession of the

drugs related to the search.

In 1990, McLean began using a house on South Plank Road to

store and sell cocaine. According to Murchison, McLean switched his

operation from "the shop" to the house on South Plank Road after

Shaw's arrest.

Early in 1994, McLean purchased a yellow 1978 Ford station

wagon, but titled it in the name of Thurman Blue, an unindicted coconspirator. On April 23, 1994, McLean was driving the vehicle when

Sanford police officers stopped it for not having a license plate. The

police officers searched the vehicle and found crack cocaine in a

brown bag sitting between the front seats. All charges against

McLean stemming from this incident were subsequently dismissed.

Murchison was arrested in 1994. He pled guilty to federal drug

charges. He had sold drugs independently of McLean from 1989 or

early 1990 until the time of his arrest.

 4
Other alleged co-conspirators presented evidence of various sales

practices in the late 1980s and early 1990s in and around Sanford

involving "the shop," a trailer on Beulah Brown Road, a few different

houses, and a place in the woods.

McLean, Bland, James Marshall McLean, Taylor, and Berryman

were all arrested on February 15, 1996. McLean was arrested at "the

shop," which he had again begun to use as a distribution center sometime after Shaw's arrest. As the police officers approached him,

McLean threw down a bag containing an ounce of marijuana. The

arrests were the culmination of a federal investigation into the drug

distribution activities of McLean and his associates.

At trial, Bland and McLean each presented character evidence.

McLean presented testimony that he had a good reputation, ran a logging business, and regularly attended church. Bland's evidence

showed she had worked at an animal hospital since her release from

prison in 1990. She had taken custody of both of her children and

spent her evenings at home with them. Murchison had testified that

Bland worked in April 1994 selling drugs for McLean out of the

trailer on Beulah Brown Road and out of a house on McIvor Street.

Bland, however, presented testimony that there was no trailer on Beulah Brown Road during this time because it had burned down in 1990

and was not replaced until 1995. Bland also presented evidence that

she had never lived on McIvor Street.

As they were entitled to do, both McLean and Bland moved for a

judgment of acquittal pursuant to Federal Rule of Criminal Procedure

29 after the jury had given its guilty verdict as to each of them. The

district court denied McLean's motion and refused to entertain

Bland's motion because she had absented herself from the jurisdiction

of the court for some period of time before the trial. Bland did not

question the district court's ability to refuse to entertain her motion,

and we do not address that question here.

II.

The district court entered a final order in McLean's case on October 3, 1996, and in Bland's case on September 10, 1997. Both defen-

 5
dants entered timely appeals, and we have jurisdiction under 28

U.S.C. § 1291 (1994) and 18 U.S.C. § 3742.

III.

We review de novo a district court's ruling on a motion for judgment of acquittal. United States v. Romer, 148 F.3d 359, 364 (4th Cir.

1998). When a defendant's Rule 29 motion rests on a charge of insufficiency of the evidence, we review the evidence in the light most

favorable to the prosecution to determine if any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.

1982).

A. McLean

McLean argues that the government's evidence showed at most

multiple conspiracies rather than the single 26-year conspiracy

charged in the indictment, that the single conspiracy charge permitted

the government to enter evidence of prior convictions that would otherwise have been inadmissible under Rule 404(b), and that the government failed to establish all essential elements of a conspiracy with

regard to his conduct. These arguments are somewhat intertwined; the

failure to prove the existence of a single conspiracy, as opposed to

multiple smaller conspiracies, may be viewed as a failure to prove an

essential element of the crime of conspiracy.

The government must establish each element of a conspiracy

beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 855

(4th Cir. 1996) (en banc), cert. denied , 117 S.Ct. 1087 (1997). The

essential elements of a conspiracy are:

(1) an agreement between two or more persons, which constitutes the act; and (2) an intent thereby to achieve a certain

objective which, under the common law definition, is the

doing of either an unlawful act or a lawful act by unlawful

means.

Id. at 860 (internal citation omitted).

 6
The government cannot use multiple conspiracies as evidence to

support an indictment for a single conspiracy; the evidence at trial

may not vary impermissibly from the allegations of the indictment.

Kotteakos v. United States, 328 U.S. 750 (1946). A defendant may

establish a fatal variance "when the evidence at trial establishes facts

materially different from those alleged in the indictment." United

States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). In United States

v. Goss, the Fourth Circuit struck down a conspiracy conviction in a

case in which the government had charged 10 defendants (though it

identified 25 co-conspirators) with "white liquor" violations and

alleged a single conspiracy involving multiple conspirators in multiple locations. 329 F.2d 180 (4th Cir. 1964). The court struck down the

conviction because the evidence failed to prove any"unitary scheme"

or "common aim"; rather it presented a series of undoubtedly criminal

activities that had no evident relation to each other. Id. at 183-184.

The court observed that the criminal activities proven at trial were "so

far apart and so differently peopled as to destroy any semblence of

relationship." Id. at 183.

McLean's case differs from Goss in that the alleged conspiracy

involves fewer actors and is based on more numerous overt acts, but

the government's allegation of a single, overarching 26-year conspiracy is subject to similar problems of proof. One of the primary deficiencies in the case against McLean is a lack of co-conspirators,

particularly in the early stages of the alleged conspiracy. The "gravamen of the crime of conspiracy is an agreement to effectuate a criminal act." United States v. Laughman, 618 F.2d 1067, 1074 (4th Cir.

1980). In addition, the vast majority of the overt acts occur in 1987

and later. Evidence of pre-1987 drug activity derives mostly from

McLean's prior convictions, rather than from evidence offered in the

conspiracy trial itself.

Taken in the light most favorable to the United States, the evidence

shows that McLean was involved in dealing drugs of various types in

Lee County from at least the early 1970s to 1996, though his activities

were interrupted by stretches in state prison.

The evidence shows that McLean sold marijuana and LSD from a

pool hall in Sanford in the early 1970s. The government has identified

no co-conspirators who were allegedly in business with McLean dur-

 7
ing this time period. The government showed only that McLean gave

marijuana to his cousin Murchison, who was visiting from New

England, and that McLean was apparently in the company of two

men, Hollingsworth and Baldwin, when he sold marijuana to an

undercover officer for the Sanford Police Department. There is no

evidence that Murchison conspired with McLean to sell drugs at that

time, or that McLean was conspiring with anyone else. Though conspiracies may be broad-ranging in time, scope, and participants, see

Burgos, 94 F.3d at 861, they do require the participation of at least

two persons, id. at 860 (conspiracy is an unlawful agreement between

two or more individuals either to commit an unlawful act or to perform an otherwise lawful act in an unlawful manner). The mere fact

that McLean knew Murchison at the time is insufficient to establish

the existence of a conspiracy. "[M]ere knowledge, acquiescence, or

approval of a crime is not enough to establish that an individual is

part of a conspiracy to distribute drugs." United States v. Pupo, 841

F.2d 1235, 1238 (4th Cir. 1988) (en banc).

McLean went to prison from 1973 to 1974. A defendant's involvement in a conspiracy is presumed to continue absent an affirmative

act of withdrawal; arrest and imprisonment alone are not per se acts

of repudiation, though they may be enough evidence of withdrawal

to create a question for the jury. See, e.g., United States v. West, 877

F.2d 281, 289-90 & n.4 (4th Cir. 1989). Here, however, the government has established no evidence of any conspiracy that McLean

would have been required to disavow. The 26-year conspiracy allegation fails alone because the United States's failure to show the existence of any co-conspirators also means it is unable to prove any

common goal or goals between or among two or more persons during

the early years of the alleged conspiracy.

The next time period, from 1975 to 1983, suffers from similar

problems of proof. After his release from prison in 1974, McLean

apparently started selling drugs again, though this time he added

cocaine to his wares. However, evidence of conspiratorial activity

during the early part of this time period is scarce. In the early 1980s,

McLean occasionally employed men, including Tony Wade Johnson

and Fletcher McBride, to drive to Fayetteville to pick up LSD for

him. He would pay them for their work either with currency or with

LSD. McLean went to prison again from 1983-85. When he got out,

 8
he apparently did not sell any drugs until 1987; one of the government's own witnesses, Tony Wade Johnson, testified that McLean

was "clean" for a few years after his release from prison. J.A. at 648.

Viewing the evidence in the light most favorable to the government, the government showed that McLean conspired with Tony

Wade Johnson and Fletcher McBride to sell drugs from 1980 to 1983.

These conspirators, however, do not reappear, nor is there any evidence that this conspiracy to deal drugs survived McLean's imprisonment. A conspiracy is at base an agreement to commit an unlawful

act. While a conspiracy may survive when one of the conspirators is

sent to prison, and while that conspirator's incarceration will not in

and of itself constitute his withdrawal from the conspiracy, here there

is no evidence that any agreement between McLean, Tony Wade

Johnson, and Fletcher McBride continued after McLean was incarcerated.

The third major time period at issue was 1987 to 1996. The government proffers more evidence for that time period. Murchison and

Bland, the primary co-conspirators named in the indictment, came on

the scene in 1987, two years after McLean's 1985 release from

prison. With the exception of Murchison, McLean's cousin, the other

co-conspirators named in the indictment all date from the post-1986

time period. Taken in the light most favorable to the government, the

evidence establishes McLean's involvement in a conspiracy to distribute crack from 1987 to 1996, the date he was arrested. The amount

of evidence supporting conspiratorial activity after 1987 cannot, however, offset the paucity of evidence offered for the earlier time periods

at issue.

We conclude that the evidence proffered by the government at trial

varied fatally from the indictment for a 26-year conspiracy. To recapitulate, the government's evidence shows what might be termed a

non-conspiratorial, though criminal, period before the early 1980s; a

two-to-three-year criminal period from 1980 to 1983 involving at

least two co-conspirators and culminating in a prison sentence; and a

third period extending from 1987 to 1996, which period involves the

bulk of the government's evidence. McLean is not an exemplary citizen and he is the common denominator in the conspiracies shown by

the government, but this fact does not offset the error. "[The govern-

 9
ment may not] string together, for common trial, eight or more separate and distinct crimes, conspiracies related in kind though they

might be, when the only nexus among them lies in the fact that one

man participated in all." Kotteakos, 328 U.S. at 773.

The indicted co-conspirators, with the exception of McLean's cousin Murchison, all date from the post-1986 time period. Tony Wade

Johnson testified that he did not sell drugs for McLean after Johnson

got out of prison in 1988. J.A. at 651-52. Fletcher McBride does not

appear in the testimony after 1983. The government has therefore

shown no overlap in the actors (with the exception of McLean) and

no "unitary scheme" or "common aim" among co-conspirators for the

period before 1987. See, e.g., Goss, 329 F.2d at 183 (conspiracy not

established when only thing in common was law defendants were

breaking).

Where the evidence proffered to support the crime of which a

defendant is convicted is insufficient, we will not refrain from overturning a jury verdict. "[A] properly instructed jury may occasionally

convict even when it can be said that no rational trier of fact could

find guilt beyond a reasonable doubt . . . . In a federal trial, such an

occurrence has traditionally been deemed to require reversal of the

conviction." Jackson v. Virginia, 443 U.S. 307, 317 (1979). Where,

as here, the lack of evidence is such that a "reasonable fact-finder"

could not have found that the government established an overarching

26-year conspiracy, we must reverse the judgment of conviction and

remand for entry of a judgment of acquittal.

We also recognize that a variance between the indictment and facts

proved at trial may be harmless error. Kennedy , 32 F.3d at 883; Fed.

R. Crim. P. 52(a). The question is therefore whether the variance violated McLean's substantial rights, and we find that it did.

The government exceeded its bounds by charging and attempting

to prove a 26-year conspiracy for which its evidence was sketchy at

best. We recognize that the government cannot be expected to identify precisely the beginning and ending dates of a conspiracy, which

is largely a mental exercise, see United States v. Queen, 132 F.3d 991,

999 (4th Cir. 1997) ("[T]he trier of fact may find that the starting date

of a conspiracy begins anytime in the time window alleged, so long

 10
as the time frame alleged places the defendant sufficiently on notice

of the acts with which he is charged."), cert. denied, 118 S.Ct. 1572

(1998). The Queen court found that a 13-month window within which

a jury could find the commencement of a conspiracy did not prejudice

the defendant's rights because Queen was sufficiently on notice of the

charges against him to defend himself effectively and to prevent

reprosecution for the same offense. Further, because a particular date

is not a substantive element of the crime of conspiracy, "`strict chronological specificity or accuracy is not required.'" Id. (quoting United

States v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir. 1994) (internal citation omitted)).

This case differs fundamentally from that in Queen because of the

extreme length of the time period the government sought to cover in

its window. Charging McLean and his co-conspirators with a 26-year

conspiracy, but offering little or no proof as to activities in the first

17 years of the time period covered, is not prosecutorial conduct that

the court can support. Conspiracy charges are useful tools for prosecutors, but using the charge to reach well beyond the range of activity

supported by the evidence is an abuse of the weapon. As Justice Jackson noted as early as 1949, the history of conspiracy, "that elastic,

sprawling and pervasive offense," "exemplifies the tendency of a

principle to expand itself to the limit of its logic." Krulewitch v.

United States, 336 U.S. 440, 445 (1949) (internal quotation marks and

citation omitted) (J. Jackson concurring). The government must be

held to some standards of proof of the period alleged, and the defendant must have some ability to prepare his defense without being

required to respond to inchoate attacks on the bulk of his life. Impairing a defendant's ability to conduct his defense violates his substantial

rights. United States v. Lewis, 53 F.3d 29, 35 (4th Cir. 1995).

McLean was prejudiced in other ways by the 26-year conspiracy

charge. By stretching the period of the conspiracy to cover 26 years,

the government could include drugs from that entire period in the

"relevant conduct" calculation under the United States Sentencing

Guidelines. J.A. at 1100-07. The Guidelines give prosecutors a great

deal of discretion, but the prosecutor must exercise that discretion

with integrity.

Indicting McLean for a 26-year conspiracy also permitted the government to introduce evidence of McLean's prior convictions under

 11
Federal Rule of Evidence 404(b). That evidence was not only prejudicial to McLean's interests, see Old Chief v. United States, 117 S.Ct.

644, 650 (1997) (warning of "risk that a jury will convict for crimes

other than those charged--or that, uncertain of guilt, it will convict

anyway because a bad person deserves punishment" (internal quotation marks and citation omitted)); without it, the government offered

virtually no testimony relating to the first ten years of the alleged conspiracy, and remarkably little as to the first 17 years of the conspiracy.

We have previously cautioned that the "obviousness of the criminalness of the defendants' behavior cannot be allowed to obliterate the

prejudice arising from the failure of the misconduct to sustain the special nature of the particular charge." Goss , 329 F.2d at 184. The

Eighth Circuit has upheld a conviction predicated on a conspiracy

lasting more than 20 years, but in that case the government offered

copious evidence of the defendant's activities over a thirty-year

period. Alexander v. Thornburgh, 943 F.2d 825, 827, 829-30 (8th

Cir.), vacated on other grounds, Alexander v. United States, 509 U.S.

544 (1993).

Because no rational trier of fact could have found that the government proved the existence of a 26-year conspiracy, we reverse

McLean's conviction and remand for the entry of a judgment of

acquittal. Our decision to order a judgment of acquittal effectively

moots McLean's other claims.

B. Bland

Karen Bland was convicted for the same 26-year conspiracy allegedly masterminded by McLean. Because Bland's conviction was subject to the same evidentiary insufficiencies as that of McLean, we also

reverse Bland's judgment of conviction and remand to the district

court for the entry of a judgment of acquittal.

Our decision to grant Bland's motion for judgment of acquittal also

moots Bland's other claims. We note for the district court's guidance

in the event of any further proceedings that Bland was entitled to a

jury instruction on withdrawal from the conspiracy, see Kornahrens

v. Evatt, 66 F.3d 1350, 1354 (4th Cir. 1995), cert. denied, 517 U.S.

1171 (1996), and that the record of Bland's commission of any overt

acts in furtherance of the conspiracy within the last five years of its

 12
alleged duration is sparse at best, see 18 U.S.C. § 3282 (providing that

indictment in non-capital offense be brought within five years of the

unlawful activity).

IV.

Because the government proffered insufficient evidence to sustain

their convictions for a 26-year conspiracy, we reverse the convictions

of Henry Frank McLean and Karen Elaine Bland and remand for

entry of judgments of acquittal for both of them.

REVERSED AND REMANDED

 13