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THEUS v. U.S.

No. 09-1015.

611 F.3d 441 (2010)

Bud THEUS III, Appellant, v. UNITED STATES of America, Appellee.

United States Court of Appeals, Eighth Circuit.

Filed: July 13, 2010.

Attorney(s) appearing for the Case

Stephanie Rae Amiotte, argued, Sioux Falls, SD, for Appellant.

Mark E. Salter, AUSA, argued, Sioux Falls, SD (John E. Haak, AUSA, on the brief, Sioux Falls, SD), for appellee.

Before RILEY, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Bud Theus III was convicted of conspiracy to distribute or possess with intent to distribute five kilograms or more of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the order denying Theus's motion for judgment of acquittal, the district court found a variance between the indictment and the proof, concluding that the evidence proved that Theus was part of a cocaine base (crack cocaine...

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