United States v. Martinez , 259 F. App'x 531 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4251
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RENED MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00503-HFF)
Submitted: November 26, 2007 Decided: December 11, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, W. Walter Wilkins, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rened Martinez was charged in five counts of a six-count
indictment with: (1) conspiracy to possess with intent to
distribute five kilograms or more of cocaine (Count One); (2)
possession with intent to distribute five hundred grams or more of
cocaine (Count Two); (3) possession of a firearm by a convicted
felon (Count Three); (4) possession of a firearm during and in
furtherance of a drug trafficking crime (Count Five); and (5)
possession of a counterfeited obligation of the United States
(Count Six).
Count Two of the indictment charged:
That on or about March 31, 2006, in the
District of South Carolina, the Defendants,
HECTOR LOPEZ, a/k/a Eddy Antonio Rivera, and
RENED MARTINEZ, did knowingly, intentionally
and unlawfully possess with intent to
distribute and did distribute 500 grams or
more of cocaine, a Schedule II controlled
substance;
In violation of Title 21, United States Code,
Section 841(a)(1) and 841(b)(1)(B).
During its deliberations, the jury asked the following question of
the court:
. . . . did knowingly, intentionally,
unlawfully possess with intent to distribute
and did distribute 500 grams or more of
cocaine, we feel - feel that up to that point
the count is clear. However, did they have to
follow through with the transaction to
distribute for the count to be guilty?
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The court then instructed the jury as follows:
The statute is in the disjunctive or, an “or.”
I can’t tell you why the United States
Attorney’s Office obtained an indictment in
the conjunctive. The government only has to
prove one or the other, but they can prove
both. They are two separate crimes.
Possession with intent to distribute is one
thing. Distribution is another. And I’ve
ruled as a matter of law that the government
can prove one or the other, even though the
language is in a conjunctive.
Martinez moved for judgment of acquittal, Fed. R. Crim.
P. 29, on the grounds that the Government failed to offer any
evidence of distribution and to allow the jury to consider only
possession with intent to distribute would amount to a constructive
amendment of Count Two of the indictment. The district court
denied the motion, finding that there was no constructive amendment
of the indictment. Martinez was convicted of counts One, Two,
Three, and Five, and sentenced to 420 months imprisonment. He
noted a timely appeal.
A constructive amendment occurs when the government or
the court broadens the possible bases for conviction beyond those
presented to the grand jury, in violation of the Fifth Amendment
right to grand jury indictment. United States v. Floresca, 38 F.3d
706, 710 (4th Cir. 1994). Typically, a constructive amendment
occurs when the evidence at trial changes or alters the essential
elements of the crime charged in the indictment. United States v.
Randall, 171 F.3d 195, 209 (4th Cir. 1999). Such an amendment is
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reversible per se. Floresca, 38 F.3d at 711. “The general rule is
that when a jury returns a guilty verdict on an indictment charging
several acts in the conjunctive, . . . the verdict stands if the
evidence is sufficient with respect to any one of the acts
charged.” Turner v. United States, 396 U.S. 398, 420 (1970).
We have held that when the Government charges in the
conjunctive, and the statute is worded in the disjunctive, the
district court can instruct the jury in the disjunctive. See
United States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001); see
also United States v. Champion, 387 F.2d 561, 563 (4th Cir. 1967);
United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996)
(affirming district court’s response to jury question that the
government could charge the defendant in the conjunctive but prove
the case at trial in the disjunctive). Accordingly, we find that
the district court did not constructively amend Martinez’s
indictment.
Martinez has moved to file two supplemental pro se briefs
and a motion to file supplemental authority. We grant the motions.
We have reviewed the claims Martinez seeks to raise and find them
to be without merit. Martinez’s claims of ineffective assistance
of counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Instead, to allow
for adequate development of the record, a defendant generally
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should bring his ineffective assistance claims in a motion under 28
U.S.C. § 2255 (2000). United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). Our review of the record does not conclusively
establish ineffective assistance of counsel.
Accordingly, we affirm Martinez’s conviction. We dispense
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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