United States v. Morgan ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4270
DOYLE RAY MORGAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-01-52)
Submitted: November 14, 2003
Decided: December 3, 2003
Before WILKINSON and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Charles W. McKeller, Brevard, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Charlotte, North Carolina;
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
2 UNITED STATES v. MORGAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted Doyle Ray Morgan of conspiracy to distribute and
to possess with intent to distribute an unspecified quantity of cocaine
and at least fifty grams of methamphetamine, in violation of 21
U.S.C. § 846 (2000).* Morgan appeals his conviction, alleging that
the district court erred by instructing the jury that it could find cocaine
and/or methamphetamine as the subject of the conspiracy when the
indictment charged a conspiracy involving cocaine and methamphet-
amine, and the evidence was insufficient to support a conviction of
conspiracy to distribute cocaine. We affirm.
Morgan contends on appeal that the district court gave jury instruc-
tions that constructively amended the indictment. Morgan points to
*The jury’s special verdict form indicated:
As to the charge of conspiracy to possess, with intent to distrib-
ute, cocaine and methamphetamine contained in the Bill of
indictment, do you find the Defendant, Doyle Ray Morgan -
GUILTY: X NOT GUILTY:
1. Did the Government prove beyond a reasonable doubt that the
Defendant knew of or could reasonably have foreseen the
involvement of at least five kilograms of a mixture or substance
containing a detectable amount of cocaine in the conspiracy and
in furtherance thereof?
YES: NO: X
2. Did the Government prove beyond a reasonable doubt that the
Defendant knew of or could reasonably have foreseen the
involvement of at least 50 grams of a mixture or substance con-
taining a detectable amount of methamphetamine in the conspir-
acy and in furtherance thereof?
YES: X NO:
UNITED STATES v. MORGAN 3
the fact that the indictment charged a conspiracy involving cocaine
and methamphetamine, while the court instructed the jury that it could
convict based upon participation in a conspiracy involving cocaine
and/or methamphetamine. Rogers’ claim is foreclosed by circuit pre-
cedent. See United States v. Montgomery, 262 F.3d 233, 242 (4th Cir.
2001) (stating that "[w]here a statute is worded in the disjunctive, fed-
eral pleading requires the Government to charge in the conjunctive[;]
[t]he district court, however, can instruct the jury in the disjunctive")
(internal quotation marks and citation omitted); United States v.
Champion, 387 F.2d 561, 563 (4th Cir. 1967) (approving disjunctive
jury instructions when statute disjunctively worded and indictment
conjunctively worded). Morgan does not dispute that the Government
proved he was involved in a conspiracy to distribute at least fifty
grams of methamphetamine. We therefore find that Morgan is not
entitled to relief on this claim.
Morgan further asserts there was not sufficient evidence to convict
him of conspiracy to distribute cocaine. "Proof of any one of the vio-
lations charged conjunctively in the indictment will sustain a convic-
tion." United States v. McGinnis, 783 F.2d 755, 757 (8th Cir. 1986);
see Turner v. United States, 396 U.S. 398, 420 (1970) (stating general
rule that when jury returns guilty verdict on indictment charging sev-
eral acts in conjunctive, verdict stands if evidence is sufficient with
respect to any one act charged). Morgan’s conspiracy conviction is
supportable on proof of his involvement with methamphetamine.
Moreover, although the jury’s verdict reflects it rejected the Govern-
ment’s assertion that Morgan’s conduct involved at least five kilo-
grams of cocaine, the special verdict form does state that the jury
found Morgan guilty of conspiracy to distribute both methamphet-
amine and cocaine. Thus, this claim is meritless.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED