U.S. v. Sampson, 96-4431.

Citation140 F.3d 585
Decision Date02 April 1998
Docket NumberNo. 96-4431.,No. 96-4446.,96-4431.,96-4446.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eric Creighton SAMPSON, a/k/a Big E, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cedric Lamont DEAN, a/k/a Ced, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Noell Peter Tin, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC; Sharon Dunigan Jumper, Charlotte, NC, for Appellants. Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte, NC, for Appellee. ON BRIEF: Stephen Luke Largess, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC, for Appellants. Mark T. Calloway, United States Attorney, Charlotte, NC, for Appellee.

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opinion. Judge MOTZ wrote the opinion, in which Judge MURNAGHAN and Judge NIEMEYER joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

A jury convicted Eric Creighton Sampson and Cedric Lamont Dean of various narcotics and firearms offenses. The district court sentenced Sampson to life imprisonment and Dean to life imprisonment plus five years. Sampson and Dean appeal, asserting several trial and sentencing errors. We affirm the convictions and Sampson's sentence; however, we vacate Dean's sentence and remand for resentencing consistent with this opinion.

I.

The government produced evidence at trial that Sampson, Dean, and numerous other persons engaged in a three-year conspiracy to distribute cocaine and cocaine base (crack). The conspiracy took place from 1992 to 1995. The co-conspirators sold drugs in the home of Mack Hopper, which is located within one thousand feet of a playground, the Boulevard Homes and Southside Homes, both of which are public housing facilities, and at the Little Rock Apartments.

Two of the defendants' co-conspirators, Mack Hopper and Marcus Massey, testified at length as to the multiple illegal activities of Sampson and Dean. Hopper related that he frequently sold crack for Sampson and with Dean, and that Dean carried and brandished a gun during robberies of other drug dealers. Massey corroborated this testimony and explained that he, Hopper, Dean, Sampson, and others engaged in a wide-ranging drug conspiracy in which six or more persons worked for Sampson and Dean.

In addition, both Hopper and Massey testified that, along with Dean and Sampson, they sold "flex" (counterfeit cocaine) to unsuspecting purchasers. Massey recounted a botched sting operation in which he and Dean attempted to sell to undercover officers $8,000 worth of flex, but instead were arrested. Several other drug dealers and users corroborated Hopper and Massey's damaging testimony.

On the basis of this evidence, the jury convicted Sampson and Dean of conspiring to distribute cocaine and cocaine base within one thousand feet of a playground or public housing facility in violation of 21 U.S.C.A. §§ 841(a)(1), 846 and 860 (West 1981 & Supp. 1997). In addition, the jury found Dean guilty of possession with intent to distribute cocaine base in violation of 21 U.S.C.A. § 841(a)(1), of using or carrying a firearm in connection with a drug trafficking crime in violation of 18 U.S.C.A. § 924(c)(1) (West Supp.1997), and of possession of a firearm by a convicted felon in violation of 18 U.S.C.A. §§ 922(g)(1) and 924(a)(2) (West Supp.1997).

On appeal, Sampson and Dean contest their convictions and their sentences. We turn first to the challenges to their convictions.

II.
A.

One count of the indictment charged Sampson and Dean with conspiracy to violate 21 U.S.C.A. § 841(a)(1) which prohibits distribution of crack cocaine. Sampson and Dean maintain that the government constructively amended this count, effectively prosecuting them for conspiracy to distribute counterfeit cocaine in violation of 21 U.S.C.A § 841(a)(2) (West Supp.1997), in addition to conspiracy to distribute genuine cocaine in violation of 21 U.S.C.A. § 841(a)(1). Their contention is meritless.

First, contrary to Sampson's and Dean's arguments, the "crime" the government assertedly amended the indictment to charge them with is not forbidden by § 841(a)(2). A plain reading of § 841(a)(2) clearly demonstrates that flex is not a "counterfeit substance" within the meaning of that statute. A "counterfeit substance" under § 841(a)(2) is defined as:

a controlled substance which, the container or the labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.

21 U.S.C.A. § 802(7) (West 1981) (emphasis added).

A "controlled substance," in turn, is defined as "a drug or other substance ... included in schedule I, II, III, IV, or V of part B of this subchapter." 21 U.S.C.A. § 802(6) (West Supp.1997). Those schedules do not list "flex." Nor is it reasonable to conclude that flex, which (trial testimony established) is made out of "candle wax, flour and baking soda," would be considered a controlled substance under the statute. Thus, § 841(a)(2) is patently inapplicable. That statute seems to have been designed to prosecute the unauthorized use of controlled substances found in commercial settings such as prescription drugs, not those sold in street deals. For example, "dispenser" is statutorily defined as a "practitioner who so delivers a controlled substance to an ultimate user or research subject," 21 U.S.C.A. § 802(10) (West 1981); and "practitioner" is defined as a "physician, dentist, veterinarian, scientific investigator, pharmacy, hospital or other person licensed, registered, or otherwise permitted ... to distribute, dispense, [or] conduct research." 21 U.S.C.A. § 802(21) (West Supp.1997).

Selling flex does not constitute a crime punishable by any known federal law. Simply because a substance looks like cocaine, and the defendant misrepresents to his unsuspecting purchaser that the sub stance is cocaine, does not make the mere distribution of that substance a violation of the federal narcotics laws.

Sampson and Dean nonetheless maintain that "whether flex sales are an indictable offense or not," the government improperly broadened the basis on which to convict them beyond that contained in the indictment. Reply Brief at 3. This argument misunderstands what is necessary for a court to find that an indictment was constructively amended. We must find that "either the government (usually during its presentation of evidence and/or its argument),[or] the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury." United States v. Floresca, 38 F.3d 706, 710 (4th Cir.1994) (en banc). For a constructive amendment to have occurred, therefore, the government's presentation at trial, must expose defendant to criminal "charges that are not made in the indictment against him." Id. at 711 (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960)). In this case, Sampson and Dean could not be, and were not, convicted of a crime based on selling flex. The government did not urge the jury to convict Sampson and Dean because they sold flex; the district court did not instruct the jury that it could convict them of selling flex; and selling flex is not illegal under federal law.

True, the government did introduce evidence of flex sales, but merely as one of many "overt acts" undertaken by the co-conspirators that demonstrated the existence of the conspiracy. Defendants' only real challenge, therefore, is apparently one of relevancy. Sampson and Dean were charged with unlawfully conspiring to distribute illegal narcotics. To prove this charge, the government must demonstrate "(1) an agreement between two or more persons (not including government agents), (2) to commit in concert an unlawful act," which in this case is to distribute illegal narcotics. United States v. Giunta, 925 F.2d 758, 764 (4th Cir.1991), overruled on other grounds by United States v. Burgos, 94 F.3d 849 (4th Cir.1996). Proof of the first prong — that the co-conspirators agreed to commit an unlawful act — is often established through indirect evidence. See United States v. Morsley, 64 F.3d 907, 919 (4th Cir.1995). Accordingly, the government can introduce a wide variety of lawful conduct to demonstrate that co-conspirators maintained the trust and comfort necessary to conspire to commit unlawful acts. Here, two witnesses, Hopper and Massey, testified to first-hand knowledge that Sampson and Dean agreed to sell flex in lieu of cocaine to turn a quick profit so that they could purchase more illegal narcotics in furtherance of their drug operation. Thus, evidence of these flex sales, which was not itself criminal conduct, proves highly relevant to demonstrating that Sampson and Dean worked in concert to violate federal narcotics laws.

In sum, the government did not constructively amend the indictment by charging the defendants with selling flex, and the district court did not err in admitting evidence of the flex sales.

B.

Dean argues that his conviction under 18 U.S.C.A. § 924(c)(1) for using or carrying a firearm in the commission of a narcotics felony should be reversed because the court's jury instructions failed to properly define the term "use" under § 924(c)(1) in conformity with the Supreme Court's dictates in Bailey v. United States 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).

Section 924(c)(1) makes it a crime for anyone to use or carry a firearm "during and in relation to any crime of...

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