UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7525
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES KEITH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-97-4; CA-02-135-1)
Submitted: June 30, 2004 Decided: March 22, 2005
Before WIDENER, TRAXLER, and SHEDD, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
Charles Keith, Appellant Pro Se. Thomas Oliver Mucklow, Assistant
United States Attorney, Paul Thomas Camilletti, OFFICE OF THE
UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
We issued a certificate of appealability in response to
Charles Keith’s claims that counsel was ineffective for failing to
object to jury instructions that he alleged amended the indictment
as to Counts 20, 31, and 32 and Counts 5, 6, 7, 14, 15, and 24.
We are of opinion that the jury instructions regarding
Counts 20, 31, and 32 and Counts 5, 6, 7, and 14 impermissibly
amended the indictment and that counsel was ineffective for failing
to object to the jury instructions that constructively amended the
indictment.
The indictment charged Keith in Counts 20, 31, and 32
with violating 21 U.S.C. § 843 by using a communication facility to
commit drug trafficking crimes, namely distribution of drugs and
conspiracy to distribute drugs, in violation of 21 U.S.C. §§
841(a)(1) and 846.
However, in charging the jury, the district court stated
that in order to find Keith guilty on these counts, the jury would
have to find that Keith “used a communication facility with the
intent to commit or facilitate the commission of the offense of
distribution or possession with the intent to distribute a
controlled substance.” (emphasis added) The court added possession
with intent to distribute in the disjunctive as a predicate
offense, thereby broadening the indictment.
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Possession with intent to distribute and distribution
under 21 U.S.C. § 841(a) are two separate offenses. United States
v. Randall, 171 F.3d 195, 209 (4th Cir. 1999). Thus, the district
court amended the indictment by instructing the jury on possession
with intent to distribute when that was not charged by the grand
jury. We therefore vacate Keith’s conviction on Counts 20, 31, and
32.
Keith was indicted in Counts 5, 6, 7, and 14 with
violating 18 U.S.C. § 1956(a)(1)(A) and 18 U.S.C. § 2. He was also
charged in Counts 15 and 24 with violating 18 U.S.C. §
1956(a)(1)(A) and 18 U.S.C. § 2, and in addition in Counts 15 and
24 was charged with violating 18 U.S.C. § 1956(a)(1)(B).
Subsection (B) of § 1956(a)(1) includes as an element of
the offense “knowing that the transaction is designed in whole or
in part . . . to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of specified
unlawful activity.”
Even though Keith was indicted for 18 U.S.C. §
1956(a)(1)(B) only in Counts 15 and 24, the district court
instructed the jury as to Counts 5, 6, 7, 14, 15, and 24, that “the
defendant must engage in the financial transaction with the intent
to promote the carrying on of specific unlawful activity or to
conceal or disguise the nature, location, source, ownership or
control of the proceeds.”
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Therefore, the district court constructively amended the
indictment on Counts 5, 6, 7, and 14 by broadening the bases for
conviction to include violation of 18 U.S.C. § 1956(a)(1)(B), when
the indictment only charged Keith in those counts with violating 18
U.S.C. § 1956(a)(1)(A) and 18 U.S.C. § 2. We therefore vacate
Keith’s conviction on Counts 5, 6, 7, and 14.
The conviction of Keith is otherwise not disturbed, but
on remand Keith may be resentenced if the district court be so
advised.
The government may reindict and retry Keith, on correct
instructions, on Counts 5, 6, 7, 14, 20, 31, and 32 should it be so
advised. See United States v. Polowichak, 783 F.2d 410, 417 (4th
Cir. 1986).
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.
VACATED IN PART
AND REMANDED
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