United States v. Black ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4223
BOBBY GENELL BLACK,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-96-35-BR)
Submitted: December 9, 1997
Decided: December 24, 1997
Before HALL, WILLIAMS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, John S. Bowler, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Bobby Black was convicted by a jury of one count each
of conspiracy to possess with intent to distribute crack cocaine (21
U.S.C. § 846 (1994)) and possession with intent to distribute crack
cocaine (21 U.S.C. § 841(a)(1) (1994)). He asserts that the district
court erred by denying his motion to dismiss the indictment against
him. In a pretrial motion, Black asserted that the indictment was
insufficient to notify him of the nature of the charges against him,
failed to provide adequate double jeopardy protection, and failed to
ensure that he was tried on the same offense for which he was indicted.1
Finding no reversible error, we affirm.
Black was part of a large, loosely-knit conspiracy which distributed
crack cocaine in the downtown area of Jacksonville, North Carolina.
The testimony at trial revealed that the conspirators frequently
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1 Black only challenges the sufficiency of the conspiracy count. How-
ever, he contends that the substantive distribution count must also be dis-
missed because of the prejudicial spillover of evidence from the
conspiracy count. Since we find the conspiracy count constitutionally
sound, we reject Black's request to reverse his conviction on the distribu-
tion count. The conspiracy count read as follows:
From on or about January, 1989, to January of 1996, in the East-
ern District of North Carolina and elsewhere, BOBBY GENELL
BLACK, a/k/a/ Black, defendant herein and others, known and
unknown to the Grand Jury, did knowingly and willfully com-
bine, conspire, confederate and agree with others, known and
unknown to the Grand Jury, to commit offenses against the
United States, to wit, to violate Title 21, United States Code,
Section 841, by knowingly and intentionally possessing with
intent to distribute cocaine base (crack), a Schedule II narcotic
controlled substance, in violation of the provisions of Title 21,
United States Code, Section 846.
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changed roles between buyer, seller, and competitor. Witnesses testi-
fied that Black bought and sold crack over 100 times during the
course of the conspiracy, and the district court attributed nearly three
kilograms of crack cocaine to him.2
Since Black challenged the indictment prior to trial, we review the
district court's decision to deny his motion de novo and find no error.
See United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997). "An
indictment must contain the elements of the offense charged, fairly
inform a defendant of the charge, and enable the defendant to plead
double jeopardy as a defense in a future prosecution for the same
offense." United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992).
Ordinarily, an indictment which follows the language of the criminal
statute is valid. See United States v. American Waste Fibers Co., 809
F.2d 1044, 1046 (4th Cir. 1987). Black concedes that his indictment
listed the statutory elements of the offense. Nevertheless, he asserts
that the indictment was insufficient because it failed to list the names
of his alleged co-conspirators or any overt acts. We disagree.
This court has consistently held that "the sufficiency of an indict-
ment should be determined by practical, as distinguished from purely
technical, considerations.'" United States v. Cobb, 905 F.2d 784, 790
(4th Cir. 1990) (quoting United States v. Missler, 441 F.2d 1293,
1297 (4th Cir. 1969)). We join our sister circuits in finding that a con-
spiracy indictment under 21 U.S.C. § 846 need not allege any overt
acts or name unindicted co-conspirators;3 it is sufficient if the indict-
ment alleges a conspiracy to distribute drugs, identifies the time
period in which the conspiracy allegedly operated, and specifies the
statute allegedly violated. See United States v. Gaytan, 74 F.3d 545,
552 (5th Cir.), cert. denied, 117 S. Ct. 77 (1996); United States v.
Brown, 934 F.2d 886, 889 (7th Cir. 1991); United States v. Jenkins,
779 F.2d 606, 608 n.1 (11th Cir. 1986). Black's indictment satisfied
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2 Prior to trial, the Government followed a liberal "open file" discovery
policy, in which Appellant received detailed lists of the witnesses against
him and the approximate dates and amount of drugs involved in each
transaction about which the witnesses were expected to testify.
3 Many of Black's alleged co-conspirators were later convicted of vari-
ous drug offenses, including conspiracy, but they were named in separate
indictments.
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these criteria. It alleged a conspiracy to distribute drugs, stated the
time frame of the conspiracy, the place of the offense, the controlled
substance involved, and cited the statute allegedly violated. Coupled
with the extensive discovery provided prior to trial, we find Black had
ample opportunity to prepare his defense.
We find Black's reliance on United States v. Cecil, 608 F.2d 1294(9th Cir. 1979); United States v. Curtis, 506 F.2d 985 (10th Cir.
1974); and United States v. Tomasetta, 429 F.2d 978 (1st Cir. 1970),
misplaced. The insufficient indictments in those cases are readily dis-
tinguishable from Black's. The major defect in the indictment in Cecil
was the open-ended time frame at both ends of the alleged conspiracy.
We find that Black's indictment more precisely alleged the time
frame involved and insured that he was convicted for actions commit-
ted during the same time period as that presented to the grand jury.
Curtis and Tomasetta are easily distinguished by the simple fact that
the defendants in those cases were accused of committing isolated
criminal acts, where greater specificity is required. Black, on the other
hand, was accused of being part of a conspiracy which occurred over
a long period of time and included numerous overt acts. See United
States v. Hallock, 941 F.2d 36, 40-41 (1st Cir. 1991) (distinguishing
the indictment in Tomasetta from one in a drug conspiracy).
Finally, "an indictment need not be so detailed that it can, standing
alone, bar a later prosecution." American Waste Fibers Co., 809 F.2d
at 1047. Examining the entire record, we find that the testimony pres-
ented at trial was sufficiently detailed to allow Black to plead double
jeopardy in a future proceeding if necessary. Moreover, the testimony
at trial merely described conduct which was a subset of the indicted
offense of conspiracy. See United States v. Alexander, 789 F.2d 1046,
1049 (4th Cir. 1986). As a result, there was no danger Black was con-
victed for a crime for which he was not indicted.
We therefore affirm Black's convictions and sentences. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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