UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. 
Unpublished opinions are not binding precedent in this circuit.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 methamphetamine, 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 instructions 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 distribute, 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 containing a detectable amount of methamphetamine in the conspiracy and in furtherance thereof? 

YES: X NO:

2 UNITED STATES v. MORGAN
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 precedent. See United States v. Montgomery, 262 F.3d 233, 242 (4th Cir.

2001) (stating that "[w]here a statute is worded in the disjunctive, federal 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 violations charged conjunctively in the indictment will sustain a conviction." 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 several 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 Government’s assertion that Morgan’s conduct involved at least five kilograms of cocaine, the special verdict form does state that the jury

found Morgan guilty of conspiracy to distribute both methamphetamine 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 materials before the court and argument would not aid the decisional process. 

AFFIRMED

UNITED STATES v. MORGAN 3