2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# U S A v . S chofield P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1175

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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. It h as be e n a c c e pt e d for inclusion in 2003 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

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w . v i l l a no va . e du . Re c omme nde d C it at ion
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w . v i l l a no va . e du/thir dc ir c uit_2003/98NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT


### No. 03-1175

UNITED S TATES OF AMERI CA

v. ROZONE S CHOFI ELD,

Appellant
App eal from th e Un ited States District Co urt for the We stern D istrict of P enns ylvania (D.C. Crimi nal Acti on No. 02-cr- 00008) Distri ct Judge: Honorable Alan N. Bloch Argued September 16, 2003
Be for e: A LIT O, AM BR O a nd C HE RT OF F, Circuit Judges (Opinion fi led: November 20, 2003)

Frank Arcuri , Esquire (Argued) DiSalle & Arcuri 90 West Chestnut St

reet Suite 715 Mill craft

Center Washington, PA 15301 Attorneyfor Appell

ant2 Mary Beth Buchanan United States Attorney Bonnie R. Schlueter (Argued) Assist ant Unite d States Attorney Office of the United State s Attorne y 633 Un ited States Post

Office & Courthouse Pitt sburgh, PA 15219 Attorney s for Appel lee
OPI NION
AM BR O, Circuit

Judge
Rozone Schofield appeals hi s jury conviction for cons piri ng to posses s, with intent to di st ri bute, 50 g ra ms o r mo re of co ca in e b as e i n vi ol atio n of 21 U .S .C . § 846 . H e clai ms that t

he District Court

erred bynot suppre ssing evi dence obtai ned in viol ation of the Fourt h Amendment and by fai ling to inst ruct t he jury(i) on whether venue exi sts for this c ons pira cy an d (ii) p recis ely as to the c ont rolle d su bsta nce inv olv ed. W e af firm
. I. Factualand Procedural History While typical ly a not prec edenti al opini on contai ns a tr uncated t elli ng of facts, the hi ghl y fa ctua l n atur e o f Sc hof ie ld ’s Fou rt

h Ame ndm en t c la im re quire s g re at erde ta il . O n the morning of

October 31, 2001 a

Maryland St ate Trooper , Douglas Bit tinger , st opped a
m ot or ve hi cle w he n h e o bs er ve d i t tra ve lin g a t 8 6 m ile s p er ho ur in W as hi ng to n C ou nt y, Maryland. Bitti nger asked Schofi eld, the dri ver of the vehicl e, for hi s li cense and the car’s regis tration. The r egist rati on identi fied the backseat passenger , Donnie Dreher, as3

the ow ner of the h alted vehicle. Bittinger ran a routine che ck on S chofield’s drive r’s lice nse and dis covered that the lice nse was suspended. In Maryl and, dri ving with a suspended l icense i s punishabl e by i ncarcer ation. Bitti nger thereupon radioe d for backup to as sist h im in arre sting Sch ofie ld. After securing Schofie ld in hi s patr ol vehic le, Bitti nger obtai ned permiss ion from Dreher, t he owner of the vehi cle, to search its interior. In the cour se of his search, Bittinger observed what appeared to be cigar tobacco. He suspected that the loose tobacco indicated marijuana use, as “people who smoke m arijuana will t ake cigars,
unw rap the c igar s, tak e the tob acc o ou t of it , and plac e the ma rijua na b ack insid e.” Bittin ger then ask ed, a nd r ece ived , Dr ehe r’s co nse nt to sea rch the tr unk as w ell. In the t runk Bittinger obs erved a l arge laundry deterge nt box. The box’ s pull tab remained i ntact , but t

he box had been tape d at thetop. Bi tti nger li fted the box and noticed that it felt com pletely full and was h eavier than h e expec ted, given that laun dry deterg ent bo xes o rdinar ily have a ir spac e at the top. B ittinger w as aw are tha t deterg ent is often used to mask the odor of dr ugs. Upon inqui ry , Dreher i nformed Bittinger t hat the box belonged t o Schofiel d. Bittinger then noti fied Dreher t

hat he would be t aking Sch ofie ld to the s tate p olice bar rack s fo r pro ces sing . Dr ehe r fo llow ed in his v ehic le. While in t

ransi t to t

he barrac ks, Bittinger

asked Schofie ld who owned the deterg ent bo x, and he ad mitted ow nersh ip. In res pon se to fu rther q uestion ing, Sc hof ield stated th at he h ad us ed so me o f the d eterge nt to w ash h is clothe s and had ta ped it to4

pre ven t spilla ge. H e de cline d, ho we ver , Bittin ger ’s req ues t to o pen the b ox. Wh en he arrived at the b arrack s, Bitting er attem pted to bring in a K -9 un it to conduct a drug sniff of Dreher ’s car . Meanwhile, Drehe r asked fi rst t he Duty Offic er and then Bittinger

whether he coul d leave the barrac ks to eat . In r esponse, Bitti nger asked whether the box of deter gent was stillin the c ar and, i f so, whether he would turn i t over to the pol ice. Bitti nger tes tifi ed that Dreher volunt aril y opened t he trunk and ga ve Bitti nger the box. While ret urning t o the barr acks with t he box, Bittinger

again not ed that the box seemed i nordinatelyheavy. He weighed the box at t he barrac ks, and t

he scale s indicated a weight

of 17 1⁄2 pounds. The weight st ated on the labelof the box was 14 3⁄4 pou nds
. Thereafter , Bittinger

succeeded i n speaking wit h a K-9 officer . His t

rained dog sniffed t he room in which the deter gent box had been pl aced and ale rted Bit tinger to the potenti al pres ence of contr olled s ubstances within t he deter gent box. Schofiel d then claim ed th at the box belo nge d to all oc cup ants of th e ca r. After the K-9 alert , Bittinger obtaine d a warrant to search t he box. Contai ned within t he box were 275.5 grams of cocaine bas e (“cra ck cocaine” ) and 159.6 gr ams of
coc aine hydro chlo ride (“p ow der coc aine ”). At 4:25 p.m., Sergeant Mark H oltzman advised Schofield of his Miranda righ ts. Sch ofield then to ld H oltzm an tha t the bo x con tained coca ine an d that h e w as sup pose d to recei ve part of

the cocai ne upon arri val in Pi tts burgh. He als o impli cated the front- seat1 Schofiel d’s unedi ted st atement, which was admitt ed at the suppress ion heari ng and at

trial , reads as foll ows: Today I was driving bac k from D.C. when I was stopped by the st ate pol ice. The police s earched the car and found a box of l aundry deterge nt in t he trunk t he polic e asked whose box it was and I tol d them it

was ours for our laundry , we then went t o state polic e barri cks where he asked me what was up with the t ape on the box Itold hi m Carlos dropped t he box on the ground andI r et ape d i t. I wa s then re ad my ri ght s by

th e po li ce a nd theyas kedme wh ose d ope w as in the box . I then to ld them wh at the tru th w as, the tru th is that Carlos, Larry , & I came Beaver Fall s to D.C. over the weekend Carlos ha d a bou t 1 9 t o $2 5K i n hi s p os se ss io n we wen t o utove r t he wee ke nd w e we nt to this g irl Jan’s h ouse wh ere C arlos b oug ht in a d eterge nt bo x w ith dop e in it w e w rapp ed it up in sara n w rap, on e of th e pkg s wa s in a p otato chip bag. We then put petroleum jel ly over it then rewrappe d it i n saran wrap. I t hen seale d the box with t ape. The next day Carl os put the box in the car th en w e lef t ou t to h ead hom e. Carlos l ives i n Detroit

or Ponti ac Michigan, hemakes tri ps everyweek from there to PA to sell do pe. I ha ve bo ugh t anywh ere fro m 4 1⁄2 to 9 ozs of (so ft) coca ine fro m C arlos in the pa st. 5 passenger

of the car

as well as Dreher. Schofi eld provi ded a written statement detai ling his inv olvem ent in o btainin g the c ocain e and transp orting it f rom Wa shing ton, D .C. to Pitt sburgh. 1 Schofiel d was indicted by a gr and juryin the West ern District of Pennsy lvania

for violat ing 21 U.S.C. § 846, in t his cas e conspiring to pos sess, with the i ntent to dist ribute, 50 g rams or m ore o f coc aine b ase. P rior to trial, S chof ield’s co unse l filed a m otion to suppress physi cal evi dence and st atements . The District Court, a fter apretrial c onference and h earing , grante d the m otion o nly with re spec t to the sta teme nts m ade b y Scho field prior to recei ving his Miranda warnings. A jury found Schofiel d guilt y. The Distri ct6

Court sent enced him to 135 months of incarceration, fol lowed by fi ve years of supervised relea se. H e ap pea ls. We exercise pl enaryreview of the District Court ’s fi ndings as to the la wfulness of the s earc h; th e un der lying f actu al fin din gs a re re view ed f or c lear e rror. Ornelas v. United Sta tes, 517 U .S. 690, 699 -700 (19 96). W hen review ing wh ether the D istrict Court’s jury instr uctio ns s tated the p rop er leg al sta nda rds, w e ex ercis e ple nar y revie w. Government of Virgin I slands v. Isaac , 50 F.3d 1175, 1180 (3d Cir. 1995). The Dist rict Court had juri sdiction over t

he federalcrimina l prose cution unde r 18 U.S.C. § 3231. We have juri sdiction pursuant to 28 U.S. C. § 1291. II. Dis cussion A. F ourth Am endm ent C laim Schofiel d argues that the deterge nt box was unlawfull y se ized and det ained, and thus the District Court

erred bynot suppre ssing i t. We dis agree, as the box was se arched ba se d u po n T ro op er B itti ng er ’s r ea so na bl e, a rtic ul ab le s us pi cio n o f c rim in al a cti vi ty. As a thresh old m atter, the G over nm ent ass erts that S chof ield ha s wa ived th is claim because hi s motion t o suppress was insuffi ciently detai led. Schofiel d’s moti on stated
mere ly that “[t]he police exam ination of the box with out a w arrant w as un cons titutional in violatio n of the F ourth Am endm ent to th e U nited S tates C onstitu tion.” M oreo ver, he did not devel op this issue i n his memorandum of law fil ed in the Distri ct Court or at the suppress ion heari ng. Without doubt greater exposi tion of t his ar gument in the District2 The alleged “detention” of Dreher and the third passenger was, in any case, almost

certain ly consen sual. D reher v olun teered to follo w B ittinger to the ba rracks in ord er to determi ne what would happen to Schofi eld. Moreover, to t he extent that Drehe r consent ed to the s earch of hi s vehicl e, he conse nted to be detai ned for the durati on of that search. See, e. g., Unit

ed State s v. Suki

z-Grado , 22 F .3d 1 006 , 100 9 (1 0th Cir . 199 4).

7 Court is preferabl e. Yet Schofi eld’s motion was suffi cient “to serve notic e as to t

he underly ing basi s for the objection.” Un ited Sta tes v. R ussell , 134 F.3d 171, 179 (3d Cir. 1998). Thus we m ove to the merits. In de ciding the m erits, we note a t the ou tset that S chof ield ha s no s tandin g to contest any detention o f the autom obile’s ow ner or its other passe nger. 2 In this c ontex t, Schofiel d’s argument

that “ the continued questioning and s eizure of the owner [and] remaini ng passenger

. . . following [ his] arrest lacked pr obable caus e as well a s
reas ona ble, a rticu lar [ sic] s usp icion ” is u nav ailin g. A ppe llant ’s B riefat 19
. Wh ether S chof ield ha s stand ing to c hallen ge an unlaw ful sea rch o f the v ehicle its elf i s a clos er question. I n United Stat es v. Baker , 2 21 F .3 d 43 8, 442 (3 d Ci r. 200 0) , w e explai ned that

“whether the driver

of a car has t

he reasonabl e expectat

ion of pri vacy
necessary t o show Fourth Amendment standi ng is a fac t-bound ques tion depe ndent on the stre ngth of his interest i n the car and the nature of his controlover it ; ownershi p is not
necessary. ” The facts uni que to that case- -Baker was alone in a borr owed car and had been drivi ng it, with the owner’ s permiss ion, for four to s ix weeks-- resul ted in t he expe ctation of p rivacy. Y et the n orm al cou rse is tha t wh en the ow ner o f a ve hicle is travelin g w ith a no n-ow ner d river, the latter has no re ason able e xpec tation o f priva cy in3 The discuss ion does not addr ess w hethe r Dre her co uld p rope rly have c onse nted to

Bitti nger’s s earch and se izure of the det ergent box. First , it is uncl ear whether

Dreher had a property i nteres t in t

he box. While Schofi eld ini tial ly declar ed possess ion and decl ined to consent

to a search, Bittinger

testifie d that Schof

ield l ater c laimed t

hat the box belonged t o all t

hree occupant s of the car. The Government argues that even if Dreher had no possessory interest in the bo x, he w as none theless entitled to authorize its seizure and subsequent

search bec ause Schofie ld, by stowing the box in Dreher’ s car, had forfeited his priva cy right in it. In other words, the G overnm ent sugge sts that Dreher’s right to remove Schofi eld’s belongings from his car preclude d Schofiel d from asserting a priv acy in teres t in th ose obj ects as a gain st the pol ice. But cf. United Stat es v. Je ffer son , 925 F.2d 1242 (10th Cir. 1991) (“Because [t he owner] was present

in the c ar, he was constantly in a posi tion to assert his poss essoryinterest [i n the car ] to t he extent that he desired to do so. . . .”) Because we find that Bittinger acted permissibly on other grounds, we nee d no t reso lve th is issu e. 8 the vehi cle becaus e a reasonable pers on would expect t hat the owner can handle or
rem ove any ite m w ithin the v ehic le. See United St ates v. Jeff

erson , 925 F.2d 1242, 1248- 49 ( 10t h C ir.), cert. denied , 502 U .S. 884 (199 1); United Stat es v. Lochan , 674 F.2d 960, 965 -66 (1st C ir. 19 82)
. But we need not deci de this standi ng aspect today. For even if we ass ume that Sch ofield had a reaso nable expe ctation of p rivacy in D reher’ s veh icle fo r Fou rth Amendment standing pur poses, nothing i n the rec ord indi cates t hat it s searc h was anyt hing but cons ensual. Schofiel d was lawfully stopped for

a traf fic vi olati on, and he was lawfully

arres ted for dr

iving wit hout a li cense. Bi tti nger did not act unl awfullyby asking Dreher

for permis sion t o search t he vehicl e, nor was he under any cons tit

utional obl igati on t o in for m D reh er th at he nee d no t con sen t. Oh io v. R obin ette , 519 U.S. 33, 39- 40 (199 6). 39

Schofiel d prevail s on his Fourth Amendment clai m only i f he can est ablis h that Bitti nger’s s eizi ng, and subs equent searching, of the detergent box was unlawful. The princi pal is sues are whether Bittinger violated Schofiel d’s Fourt h Amendment rights (1) when he lift ed the box duri ng his search of Dreher’ s vehicl e, and (2) when he later took the b ox f rom Dr ehe r’s ca r to th e po lice b arra cks
. As to the fo rmer incide nt, Dr eher’s cons ent to a search of the vehic le is disposi tive. Bitti nger noted l oose cigar tobacco, potenti ally

indicative of

marijuana use, in the p assen ger co mp artme nt of th e veh icle. H e then obtain ed D reher’ s con sent to search t he trunk. Bitti nger almost certainly

did not s eize the deter gent box merel y by liftin g it. See U nited S tates v. H all , 978 F.2d 616, 619 (10th Cir . 1992) ( “Agent[’s] lift ing of D efen dant’s suitcas e did n ot con stitute a se izure b ecau se this in terfere nce w ith Defendant’s pos sessory i nteres ts i n her sui tcase was mini mal”). While it is ar guable that
mo vin g th e bo x w as a sea rch , see Ariz ona v. Hicks , 480 U.S. 321, 324-25 (1987) ( “[T]he ‘dist incti on between ‘l ooking’ at a suspic ious obj ect i n plain vi ew and ‘moving’ it even a few in ches’ is mu ch mo re than trivial for purp oses of the Fourth A mend ment. It matters not that t he s earc h un cov ered not hin g of any g reat p erso nal v alue to re spo nde nt. . . . A search i s a sear ch. . . .” ), t his act was within t

he scope of Dreher’ s consent . Bittinger receiv ed D reher’ s unre stricted p ermis sion to search the trun k. A reaso nable perso n w ould underst and Dreher’s consent t o allow Bittinger ’s touc hing and moving obj ects wit hin the trun k. Cf. Flor ida v. Jimeno , 500 U.S . 248 , 251 (19 91)
.10

That the s earch was mini mallyintr usive means much. Had Bitti nger opened the box during t

he course of hi s searc h, he might have exceeded what a reasonable person would have underst ood as the l imit s of Dreher’s consent. We do not decide t oday whe ther Dreh er was c apable of consen ting to an invasiv e search o f Scho field’s belon ging s. Bitting er did n ot op en an y contain ers w ithin the trunk . Rath er, he m erely lifted one obj ect in the tr unk in th e co urse of in spe cting its co nten ts. Sch ofield ’s limited privac y interest in th e dete rgen t box is also sig nifica nt. Co urts have recogni zed that

the owners of s uch ite ms as brie fcases and l uggage have high exp ecta tion s of priv acy in them bec aus e the y con tain p oten tially pe rson al item s. See Bond v. United St

ates , 529 U .S. 334 , 337- 38 (2 000 ) (“[T ]ravele rs are p articular ly
con cernedabo utth ei r c arry -o n l ugg age ; t heygen er al lyuse it

to tr ans port p er son al items that, for whatever reason, t hey pr efer t o keep close at hand. ”) By cont rast , an i nnocent perso n’s ex pecta tion of privac y in a box of d eterge nt is alm ost alw ays low . Wh ateve r his privacy interest i n the box’s content s, Schofi eld’s privacy interest i n the weig ht of the dete rge nt w as m inim al at b est. Cf. United State s v. Jacobs en , 466 U.S. 109, 123 (1984) (“A chemical test t

hat merel y di sclose s whether or not a part

icular subst ance is c ocaine does not compromi se any legit imate i nteres t in privacy
. . . . [G]overnment al conduct that
can re veal w hethe r a sub stance is coca ine, an d no other a rgua bly ‘private ’ fact, comp romises no legitimate privacy interest.”) We therefore conc lude that Bitt inger’ s ini tialhandling of the det ergent box was4 Because we find that Bitti nger act ed upon reasonabl e, art iculable suspi cion when he seized t he box, we do not deci de whether Dreher was capable of cons enting, as the bai lee of B itting er’s b elon gin gs, to the r em ova l of th e de terg ent b ox. 11 consti tuti onally

permissible, and we turn to t he seizure of the detergent box at the pol ice barracks. D etaining the bo x to arrange for a drug sniff w as justified by Bittinger’s reasonable, arti culable suspicion that it contained drugs. 4 The Supreme Court has hel d that a police officer

may act upon reasonabl e, arti culabl e suspic ion of cri minal activit y- -short of probable cause-- if the governmental acti on is mini mallyintr usive of t

he indivi dual’s Fourth Amendment interest s and the opp osin g law enf orc em ent in teres ts are gre at. United Stat es v. Place , 462 U.S. 696, 703- 05 (1983). Bitti nger’s c onduct in s ubjecting the de tergent box to a K-9 unit

dog sniff was minim ally intrusive . The Go vern men t’s interes t in prev enting the traf fickin g of drug s is sub stan tial. Id. at 703 (“[W ]here th e auth orities po ssess sp ecific a nd ar ticulab le fac ts warranti ng a reasonabl e beli ef that a trave ler’ s luggage cont ains narcotic s, the gov ernm ental in terest in s eizing the lug gage briefly to p ursue furthe r inves tigation is substant ial. ”) The constitutionali ty of the sei zure thus turns on whether Bitt inger ac ted upon reasonabl e, art

iculable suspi cion. The Distri ct Court i dentif ied four fa cts i ndicating that he did: ( 1) “the unus ual manner in which t

he box was taped, ” (2) “t he trooper ’s knowledge that det ergent i s often used to mask t

he scent of

drugs, ” (3) “t

he fact t hat the box felt

heavier than the total5 Schofiel d suggests that Bi tti nger could not permissibly consider

the perc eived disc rep anc y in w eigh t bec aus e the initia l liftin g of the b ox w as a n un law ful s earc h. Because, as noted, we conclude that Dreher consented to Bittinger ’s movement of the trun k’s c ont ents , that a rgu me nt fa ils. 12 we igh t iden tified on t he o utsid e of the p ack age ,” 5 and (4) “t he trooper

witnesse d other evidence of dr

ug use in t

he front s eat of the car at issue. ” As the District

Court noted, “cond uct wh ich wo uld be w holly innocent to the un trained observ er . . . might acquire signi ficance when vie wed by an agent who is famili ar with t

he practices of dr

ug smugglers and the methods us ed to avoi d detection.” Un ited Sta tes v. W allraff , 705 F.2d 980, 988 (8t

h Cir. 1983) (quoti ng Un ited Sta tes v. M ende nha ll , 446 U.S. 544, 563 (1980)). In evaluating t he vali dity

of a seiz ure li ke the one before us, we consi der the total ity of th e circ um stan ces . United Stat es v. Sokolow, 490 U.S. 1 ( 1989) . Here it appears fr om the recor d that Bi tti nger, i n light of his obse rvati ons, t

raini ng, and subs tantial ex perien ce, ha d am ple gro und s for su spicion . The Distric t Cou rt correc tly
conc luded that B ittinger a cted u pon reaso nable , articulab le susp icion--a nd th us sq uarely within t he bounds of the Fourth Amendment--when he detained the deterge nt box for t he purposes of arrangi ng a K-9 drug snif f. B. Venue Schof ield urges us to rev erse the D istrict Court’s judgm ent becau se the Co urt fail ed to ins truct

the jur y on t he issue of venue. He conte nds that he has met the three criteria noted by t

his Court in United Stat

es v. Pere z , 280 F.3d 318, 327 (3d Cir. 200 2),13

for establishing rev ersible error:

[W ]here the indi ctment al leges venu e w ithout a facial ly obvious defe ct, the failure to instruct the jury to dete rmine whether that venu e is pro per is re versib le error o nly when (1) the defe ndant objects to venue prior to or at the close o f the prosec ution’s case- in-ch ief, (2) the re is a g enuin e issue of m aterial fa ct with regard to pro per v enue , and (3 ) the de fend ant tim ely requests a juryinst ructi on. Sc ho fie ld as se rts th at t he G ov er nm en t p lac ed ve nu e in iss ue be ca us e it di d n ot pr ov e, b y a prepon derance o f the eviden ce, that the consp iracy charged w as form ed--or that an o vert act in f urther ance of the cons piracy oc curred --in the W estern Distric t of P enns ylvania (where the c ase was tried). There is no e vidence, he suggest s, that he was a member of any cons piracy

when he left Beaver

Falls , Pennsy lvania

for Washington, D.C. Given that the st op, arrest, and seizure all occurred i n Maryland, Schofiel d concludes t hat the Distri ct Court err ed in ref

using t o charge the juryon the is sue of venue, thus pre cluding i t from dec idin g th at iss ue. As we noted in Perez , 280 F.3d at 335 n.12, “ Having made a timel y obj ecti on, the defendant normallyneeds to pr esent testi mony that places ve nue in is sue at any time pri or to th e clo se o f ev iden ce.” Sch ofie ld fa iled t o pr ese nt an y such evid enc e at tr ial. Perez , how ever, goes on to provide: “A lternatively, t he cou rt may find that the G overnm ent’s testimony pl aces venue i n issue notwithst anding the defense pres entation.” Id
. At the cl ose of the Government ’s case , Schofie ld moved for acqui ttalon the ground of impro per venu e in the W estern District of P ennsylvania. Th e District Cou rt6 The v ariance betw een the ind ictment and the jury instructions is not reversible error.

“To show prejudic e, a defenda nt must gener ally show that t

he indic tment ei ther di d not sufficiently

inform him of the charges against him so that he could prepare his defense and not be misl ed or surprised at tri al or t hat the varianc e creat ed a danger t hat the defendant coul d be prosecuted a second time for the same offense. ” United Stat es v. Balter , 91 F .3d 4 27, 4 41 ( 3d C ir. 19 96)
. Cf. United States v. Sheppard , 219 F.3d 766, 770 (8th Cir . 2000) ( “[A] defendant maybe convict ed of a drug conspiracyviolat ion without proof that

he knew the preci se drug he cons pired to possess and dist ribute. . . . The di stri ct court’ s inst

ructi ons requi red the j ury to find t hat the drug in ques tion was methamphetamine, and that Sheppard knew it was a c ontrol led subst ance. . . . There was no materi al vari ance because t he inst ructi ons onlytook away a‘non-defens e’-- that Sheppard knew it was a contro lled sub stance , but no t the control led subst ance, metham phetam ine.”). 14 denied the motion with consider able support. The Government offered t esti mony, ba sed on Schofiel d’s confes sion, to the e ffect t hat Schofi eld le ft Beaver Fal ls i n the company of hi s c o- con spira to rs and with the i nt ent to get her to pur cha se coc ai ne i n Was hi ngt on, D.C. Sch ofield conf essed that he and h is com panio ns w ere en route to Pittsbu rgh w hen th eir
car w as stop ped a nd th at Sch ofield wa s to rec eive p art of th e coc aine o n arriv al in Pitt sburgh. He also confess ed to purcha sing cocai ne from his co- conspir ator i n Pitt sburgh
on a we ekly b asis. T his e vid enc e w as c ertai nly ad equ ate to esta blish ven ue. C. The Specifi city

of the Indi ctment Finally, Schofield argu es that the D istrict Court erred by using the g eneral term “control led subst ance,” r ather t han the pre cise s ubstance c harged in t he indic tment, in the jury i nstructions. 6 In other words, Schofield contends that the Government must dem ons trate that h e w as e nga ged in a c ons pira cy spe cific ally to d istrib ute c rack coc aine
. Tha t misse s the m ark. T he G over nm ent m ust pro ve on ly that the de fend ant co nspire d to15

dist ribute a contr olled s ubstance. The indictment charged a conspiracy to possess with i ntent to dist ribute “in excess of 5 0 gra ms o r mo re of c ocain e bas e in the form com mo nly kno wn as crac k.” G iven th is indict ment, Schofi eld’s theoryof defense was that he did not know the box contai ned crack cocai ne, but

rather thought t

hat it contai ned powder cocaine. Schofiel d’s efforts at trial were misplac ed. “[T]h e structure and plain text of § 8 41 affo rds no sup port for a requirement that

the Government must

prove more than the defendant ’s knowledge that he was traffi cking in a

control led subst ance.” United States v. Barbosa , 271 F.3d 438, 458 (3d Cir . 200 1), cert. denied , 537 U .S. 1049 (20 02). Schofiel d argues that thi s analy sis appl ies onl y t o the mens rea (or i ntent) porti on of the subs tanti ve offense. A conspiracyconviction, he contends, requires somethi ng
mo re. W e disag ree. Se ction 8 46 sp ecifica lly states that “a ny offe nse d efine d in this subchapter

shallbe subject

to the s ame penalti es as those presc ribed for the offense , the commission of which was t he object of the attempt of cons piracy .” EveryCourt of Appeals that

has addres sed thi s iss ue has exte nded the re asoning underly ing Barbosa to
con spira cy cas es. See United St ates v. Villarce , 323 F.3d 435, 439 n.1 (6th C ir. 2003); Un ited Sta tes v. C ollazo -Apo nte , 281 F.3 d 32 0, 32 6 (1 st C ir.), cert. denied , 537 U.S. 869 (200 2); United States v. Carrera , 259 F .3d 81 8, 830 (7th C ir. 2001 ); United Stat es v. Sheppard , 219 F.3 d 76 6, 76 8 n.2 2, 77 0 (8 th C ir. 20 00)
. To be s ure , ther e ca n be no c ons pira cy w her e the re is n o m eetin g of the m ind s.16

However, a co-conspirator need not be aware of t

he preci se detai ls of the scheme as l ong as th e G ove rnm ent c an e stab lish a com mo n pu rpo se. See U nited S tates v. R ussell , 134 F.3d 171 , 183 ( 3d C ir. 1998 ). The Distric t Cou rt thus d id no t err by cha rging the jury to determine w hether Sch ofield con spired to distribute a co ntrolled substanc e. The jury found that

Schofiel d and his co- conspir ators sought t o advance the c ommon unlawful object of dist ributing controlled s ubstances in viol ation of § 841, and Schofi eld was properl y convi cted on that char ge. III. Conclusion Because the Dis tri ct Court properlyadmitt ed the phy sicalevidence at issue, and bec aus e the jury ins truc tion s w ere le gally su ffic ient, w e af firm Sch ofie ld’s c onv ictio n.TO THE C LERK:

Please fi le the foregoing Not Pr ecedenti al Opinion.
By the C ourt,
/s / Thom as L. A mbro Circuit Judge