041747P.pdf   09/14/2005  United States  v.  Shawn Barth
   U.S. Court of Appeals Case No:  04-1747
   District of North Dakota   
   [PUBLISHED] [Melloy, Author, with Murphy and Hansen, Circuit 
   Judges] 
   Consolidated Criminal Cases - criminal law. Any variance between 
   indictment charging single conspiracy and evidence supporting multiple 
   conspiracies did not infringe on substantial rights of either defendant; no 
   spillover of evidence prejudiced defendant, who was involved in all of 
   the conspiracies. Limiting instruction protected against prejudice. 
   Sufficient evidence supported finding that Ferneau knew of purpose of 
   conspiracy and knowingly joined in it. Sufficient evidence presented to 
   support jury's conviction of Barth. Defendants' presence was not required 
   at pretrial conference discussing voir dire procedure, witness lists, 
   schedule, procedure for handling trial exhibit objections, and proposed 
   jury instructions. District court's failure to admonish jury not to discuss 
   the case among themselves at every break did not prejudice defendants or 
   constitute reversible error. Failure to give minor participant reduction to 
   Ferneau was not clear error. Defendants did not prove plain error in 
   sentences; nothing in record indicated district court would have imposed 
   a more favorable sentence under advisory regime. Barth's life sentence 
   was based on mandatory minimum sentences