UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 01-4699
JOHN SAMUEL LEIGH, a/k/a J.R., a/k/a
J.D.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-00-57)
Argued: February 25, 2003
Decided: March 17, 2003
Before WILKINSON and MOTZ, Circuit Judges, and
James P. JONES, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Steven B. Epstein, HUNTON & WILLIAMS, Raleigh,
North Carolina; Nash E. Long, III, HUNTON & WILLIAMS, Char-
lotte, North Carolina, for Appellant. Thomas Oliver Mucklow, Assis-
tant United States Attorney, Martinsburg, West Virginia, for
Appellee. ON BRIEF: Thomas E. Johnston, United States Attorney,
Martinsburg, West Virginia, for Appellee.
2 UNITED STATES v. LEIGH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Samuel Leigh appeals his conviction and sentence for con-
spiracy to distribute cocaine base and for distribution of cocaine base
in violation of 21 U.S.C.A. §§ 846 and 841(b)(1)(A) (West 1999). For
the reasons stated below, we affirm.
I.
The Government indicted Leigh in December 2000, charging him
and twenty-five co-conspirators in a sixty-five count indictment. The
indictment alleged that Leigh participated in a large crack cocaine
conspiracy stretching over ten years in Jefferson County, West Vir-
ginia. According to the Government, the conspiracy comprised a net-
work of crack houses, crack dealers, drug runners, and users in the
Fox Glen subdivision in Jefferson County. Principal dealers, like
Leigh and his co-defendant Michael Puzey, sold crack from various
crack houses in the subdivision. The Government contends that Leigh
joined the conspiracy in September 1999 upon his release from
prison.
Leigh and co-defendant Puzey were tried together in April 2001.
After a four-day trial, the jury returned guilty verdicts as to both
Leigh and Puzey on all counts charged against them. Specifically, the
jury convicted Leigh on Count One, conspiracy to possess with intent
to distribute and to distribute fifty grams or more of cocaine base in
violation of 21 U.S.C.A. §§ 846 and 841(b)(1)(A), and Count Sixty-
three, distribution of .24 grams of cocaine base in violation of 21
U.S.C.A. § 841(a)(1) (West 1999).
The district court sentenced Leigh to 420 months on Count One
and 240 months on Count Sixty-Three, to run concurrently. Leigh
UNITED STATES v. LEIGH 3
filed a timely notice of appeal with this court, contesting only his con-
viction and sentence on Count One, the drug conspiracy charge.
II.
Leigh first contends that there was a fatal variance between the sin-
gle conspiracy charged in Count One of the indictment and the proof
offered at trial, which, in his view, only supported a finding of multi-
ple, competing conspiracies. According to Leigh, this constituted a
constructive amendment to the indictment that violated his Fifth
Amendment rights, thereby providing grounds for reversal.
A constructive amendment or fatal variance occurs "[w]hen the
government, through its presentation of the evidence and/or its argu-
ment, or the district court, through its instructions to the jury, or both,
broadens the bases for conviction beyond those charged in the indict-
ment." United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999)
(citation omitted). Because this has the effect of changing the ele-
ments of the offense charged, it "violates the Fifth Amendment right
to be indicted by a grand jury, is error per se, and must be corrected
on appeal even when the defendant did not preserve the issue by
objection." Id. (citation omitted).
We review such claims for sufficiency of the evidence. When
assessing the sufficency of the evidence of a criminal conviction on
direct review, "[t]he verdict of [the] jury must be sustained if there is
substantial evidence, taking the view most favorable to the Govern-
ment, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
In this case, after reviewing the evidence offered at trial, it is clear
that Leigh’s fatal variance argument has no merit. As we have stated
on numerous occasions, the question of "‘[w]hether there is a single
conspiracy or multiple conspiracies depends upon the overlap of key
actors, methods, and goals.’" United States v. Strickland, 245 F.3d
368, 385 (4th Cir. 2001) (quoting United States v. Leavis, 853 F.2d
215, 218 (4th Cir. 1988)). The facts established here show that Leigh,
Puzey, and their co-conspirators shared the same goals, employed the
same methods, used the same crack houses, and worked with some of
the same personnel to distribute crack cocaine in the Fox Glen subdi-
vision.
4 UNITED STATES v. LEIGH
Moreover, Leigh fails to point to any evidence of a separate con-
spiracy that would have undermined the jury’s conclusion that there
was but a single Fox Glen conspiracy. Instead, he simply attacks the
Government’s theory of the case, pointing to the Government’s
admission that this was a "chain" conspiracy, the Government’s alle-
gations that Leigh and Puzey were competitors (rather than co-
conspirators), and the lack of any evidence that Leigh knew of
Puzey’s conspiracy. None of these arguments have any merit.
Indeed, contrary to Leigh’s argument, a chain conspiracy, such as
that alleged here, may constitute a single conspiracy. See, e.g., United
States v. Hines, 717 F.2d 1481, 1490 (4th Cir. 1983) (concluding that
"chain" or "multi-level" conspiracies may constitute single conspira-
cies). In fact, drug distribution conspiracies often take the form of
chain conspiracies with different co-conspirators playing different
roles in the drug supply chain. In this case, the Government presented
evidence at trial that specifically linked Leigh’s drug distribution
efforts with those of Puzey and the other Fox Glen conspirators. For
example, both Leigh and Puzey dealt drugs out of Joey Breeden’s
house, and both supplied drugs to a smaller dealer, Michael Viands.
In addition, the fact that Leigh and Puzey "competed" for the same
crack cocaine market does not support Leigh’s claim of multiple con-
spiracies. See Banks, 10 F.3d at 1054 ("[T]he fact that parallel suppli-
ers . . . serving such a [drug consumption] market may sometimes, or
even always, compete for supplies or customers in serving that market
does not on that account alone disprove either the existence of a sin-
gle conspiracy to achieve the overall results of their several efforts,
or the participation of particular ones of them in that conspiracy.").
Although Leigh and Puzey may have been selling to the same cus-
tomers, the evidence at trial showed that they were part of a common
enterprise.
Finally, the existence of a single conspiracy does not founder on
Leigh’s lack of knowledge of Puzey’s drug distribution efforts. As we
have previously held, "[i]t is of course elementary that one may be a
member of a conspiracy without knowing its full scope, or all its
members." Id.
UNITED STATES v. LEIGH 5
Accordingly, we conclude that Leigh has failed to demonstrate that
a reasonable jury could not have found a single conspiracy beyond a
reasonable doubt based on the evidence presented at trial.
III.
Leigh next argues that the district court committed reversible error
in denying his request for a jury instruction that would have allowed
the jury to find either a single conspiracy or multiple conspiracies.
Leigh would have been entitled to such an instruction only if the evi-
dence at trial supported the existence of multiple conspiracies. See
United States v. Bowens, 224 F.3d 302, 307 (4th Cir. 2000) ("A court
need only instruct on multiple conspiracies if such an instruction is
supported by the facts." (citation and internal quotation marks omit-
ted)); United States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994) ("A
multiple conspiracy instruction is not required unless the proof at trial
demonstrates that appellants were involved only in separate conspira-
cies unrelated to the overall conspiracy charged in the indictment."
(citation and internal quotation marks omitted)). As noted above,
however, Leigh has failed to point to any evidence demonstrating that
he was involved in a separate conspiracy unrelated to the Fox Glen
conspiracy. Id. Accordingly, "the district court did not err in refusing
to instruct the jury on this subject." Bowens, 224 F.3d at 308; see also
United States v. Dorta, 783 F.2d 1179, 1183-84 (4th Cir. 1986).
IV.
In addition, Leigh contends that the verdict form presented to the
jury conflicted with the court’s instructions as to the conspiracy,
thereby creating ambiguity as to the actual drug amounts attributed to
each of the defendants by the jury. Specifically, Leigh asserts that
although he and Puzey each joined the conspiracy at different times
and although the district court instructed the jury that it could attribute
specific drug weights to a defendant only after that defendant had
joined the conspiracy, the verdict form required the jury to draw one
conclusion regarding drug weight that would be applied to both
defendants. Thus, Leigh argues, it is possible that his conviction for
fifty grams or more of cocaine base could have been based upon drug
weights attributable to Puzey and Puzey’s co-conspirators before
Leigh joined the conspiracy. Such an outcome, according to Leigh,
6 UNITED STATES v. LEIGH
constitutes error akin to that found in United States v. Rhynes, 196
F.3d 207 (4th Cir. 1999), vacated in part on other grounds on reh’g
en banc, 218 F.3d 310 (4th Cir. 2000), and requires that we vacate
Leigh’s sentence and remand for re-sentencing.
Because Leigh did not object to the verdict form, we review his
contentions for plain error. Fed. R. Crim. P. 52(b). In order to receive
any relief under that standard, Leigh must establish (1) that there was
error; (2) that the error was plain; (3) that the error affected his sub-
stantial rights; and (4) that a failure to notice the error would "seri-
ously affect[ ] the fairness, integrity or public reputation of judicial
proceedings." See United States v. Olano, 507 U.S. 725, 732-36
(1993).
After reviewing the record, we conclude that even if there was
plain error here, it did not affect Leigh’s substantial rights. First, dur-
ing its deliberations, the jury specifically asked the district court to
clarify the issue regarding the drug amounts that could be attributed
to the individual defendants: "Concerning the drug weight amounts
. . ., do these amounts include everyone involved in the conspiracy
over the given 10 years or just the amounts involved with the defen-
dant(s) during their possible involvement in the named conspiracy[?]"
In response, the court informed the jury that it could only attribute
drug weights associated with the conspiracy to each defendant after
each defendant joined the conspiracy.
Moreover, even if we put aside the evidence of drug amounts attri-
buted to co-conspirators during the time that Leigh was involved in
the conspiracy, the Government presented ample evidence at trial of
Leigh’s direct involvement with quantities of crack cocaine in excess
of fifty grams. Specifically, Michael Viands testified that he bought
$2000 packages of crack from Leigh some fifteen to twenty times —
substantially more than the threshold showing of 50 grams. At oral
argument, Leigh’s counsel conceded that the Viands’ testimony alone
would, if linked to the Fox Glen conspiracy, provide a sufficient basis
for the jury to make its drug weight determination, thereby defeating
any argument that the verdict form prejudiced the outcome. Thus,
Leigh’s argument regarding the ambiguous verdict form effectively
collapses back into his argument regarding multiple conspiracies.
Given that Viands himself, along with others, testified that he
UNITED STATES v. LEIGH 7
(Viands) participated in the Fox Glen conspiracy, the jury had every
reason to infer that Leigh’s transactions with Viands were part of that
conspiracy. Indeed, Leigh has presented no evidence to the contrary.
Instead, he simply asserts that because Leigh first met Viands in
Hagerstown, Maryland, their drug transactions must have occurred
outside of the Fox Glen locale. We disagree. Accordingly, we con-
clude that if there was error in the verdict form it did not affect
Leigh’s substantial rights.
V.
Finally, Leigh argues that the district court erred in accepting the
drug amounts attributed to him in his Presentence Report (PSR).
Because Leigh failed to object to the PSR calculation, we review for
plain error. Fed. R. Crim. P. 52(b).
The district court adopted the PSR’s finding that Leigh was respon-
sible for 298.6 to 498.89 grams of cocaine base in relation to the Fox
Glen conspiracy. These quantities included only those drug amounts
that were directly attributable to Leigh based on the evidence at trial
rather than the total drug amounts attributable to the conspiracy as a
whole during the time that Leigh was involved.
Nevertheless, Leigh maintains that the district court committed
plain error here. Relying once again on his multiple conspiracy argu-
ment, Leigh contends that the drug weight amount in the PSR as
accepted by the district court included drug amounts from transac-
tions unrelated to the indicted Fox Glen conspiracy. He argues that
the drug amounts related to his transactions with Michael Viands,
which the PSR calculated as 276 to 460 grams and which accounted
for the vast majority of the total amounts attributed to him in the PSR,
had nothing to do with the Fox Glen conspiracy and thus could not
be used to calculate drug amounts for relevant conduct. This argu-
ment fails for the reasons noted previously. Accordingly, we conclude
that the district court did not err in accepting the PSR’s calculation
of drug amounts.
VI.
For the reasons set forth within, the judgment of the district court
is affirmed in all respects.
AFFIRMED