UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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