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United States of America v. Ramon Dellosantos, A/K/A Ramon Delosantos, A/K/A

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Before Torruella, Stahl, and Howard, Circuit Judges.

On October 22, 2008, appellants Ramon Dellosantos and Richard W. Szpyt (collectively “the Defendants”), together with sixteen other individuals,*fn1 were charged in a multiple-count superseding indictment. Count 1 alleged that all individuals (including the Defendants), in violation of 21 U.S.C. §§ 841(a)(1), 846, “in the District of Maine and elsewhere . . . knowingly and intentionally conspired with one another and with others . . . to commit offenses against the United States, namely, distribution and possession with intent to distribute controlled substances, including 5 kilograms or more of cocaine, and marijuana, and did aid and abet such conduct.” A trial followed, in which a jury found Szpyt and Dellosantos guilty of the conduct charged in Count 1. Szpyt and Dellosantos appealed.*fn2

Because we find that the evidence at trial against both Dellosantos and Szpyt prejudicially varied from the charge in Count 1 of the indictment, we vacate their convictions.*fn3

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