United States of America, Plaintiff-appellee, v. Truman Leo Mcglamry, Defendant-appellant.united States of America, Plaintiff-appellee, v. Darryl James Mcglamry, Defendant-appellant, 898 F.2d 148 (4th Cir. 1990)

A federal jury found Darryl James McGlamry and Truman Leo McGlamry guilty of several drug offenses. Neither man attacks the sufficiency of the evidence supporting their convictions, but on appeal each assigns one error to the district court proceedings. Because we find the appeals lacking in merit, we affirm the judgments of conviction.

* On September 27, 1988, Darryl and Truman McGlamry were indicted along with two other men in Greensboro, North Carolina. The indictment charged Darryl and Truman with conspiracy to possess and distribute multiple kilograms of cocaine in violation of 21 U.S.C. § 841(a) (1). Darryl was also charged with a separate possession offense, while Truman was charged with attempting to possess "purported" cocaine with the intent to distribute.

The jury heard extensive evidence concerning the defendants' involvement in drug dealing. One witness testified that he had obtained large quantities of cocaine from Darryl beginning in 1982 and continuing until 1988. Truman became involved in these transactions sometime after 1985, and on more than one occasion arranged the transfer of cocaine from Darryl's base of operations in Florida to North Carolina. Truman proved especially helpful when Darryl was incarcerated in Florida on unrelated drug charges. The witness testified that he spoke often to Darryl, who was in jail, and that he continued to receive drugs from him with Truman's ready assistance. The witness described transactions in 1988 that were marked by disagreements over the quality of cocaine and manner of payment.

The jury also heard from a Drug Enforcement Administration agent who related the details of an undercover transaction between the agent, Truman, and another man. The agent agreed to sell Truman five kilograms of cocaine which in reality were fake. Truman accepted one kilogram of the fake cocaine believing it to be genuine. He was then arrested.

II

Darryl unsuccessfully moved to exclude any evidence related to his incarceration and conviction in Florida. He was mainly concerned with the testimony of the witness who described purchases arranged from Darryl's prison, as well as records of his incarceration and several phone lists. Darryl contends that admission of this evidence violated Federal Rule of Evidence 404(b), which disallows evidence of "other crimes, wrongs, or acts" when used to establish a defendant's character or actions "in conformity therewith."

Count one of the indictment charged Darryl with a cocaine conspiracy commencing " [p]rior to early 1986 ... up to and including the present." The testimony and records concerning his incarceration establish his role in the conspiracy through 1988. The evidence indicates how he managed to sell drugs from a Florida prison. His conduct was part of the conspiracy. The evidence does not fall within Rule 404 at all, but instead is properly analyzed under Rules 402 (relevancy) and 403 (prejudice). See United States v. Black, 692 F.2d 314, 315-16 (4th Cir. 1982). Applying these rules, we conclude that the district court acted well within its discretion in admitting the evidence.

III

Count three charged Truman with attempting "to possess with intent to distribute approximately one kilogram of purported cocaine, a Schedule II, narcotic controlled substance" in violation of Secs. 841(a) (1) and 846 (emphasis added). He challenges the conviction based on the wording of the indictment. He claims that the inclusion of "purported" renders count three invalid because it is not a crime to attempt to possess fake cocaine. The district court rejected this argument in Truman's postverdict motion.

Truman did not object to the indictment before trial pursuant to Federal Rule of Criminal Procedure 12. It is possible to question jurisdiction or failure to charge a crime at any time pursuant to Rules 12(b) (2) and 34. See generally 3 C. Wright, Federal Practice and Procedure Sec. 571 (1982). Nevertheless, the measure of an indictment's sufficiency changes when a defendant saves his challenge until after the verdict. "Indictments and informations are construed more liberally after verdict than before, and every intendment is then indulged in support of the sufficiency." Finn v. United States, 256 F.2d 304, 307 (4th Cir. 1958).

Unquestionably, an attempt to possess cocaine with intent to distribute charges a crime. See 21 U.S.C. § 846. The indictment clearly gave notice that Truman attempted to possess cocaine with intent to distribute. Truman has shown no prejudice. At worst, the word "purported" was surplusage which can be disregarded. Or giving liberal intendment to the indictment, it gave notice that Truman attempted to possess and distribute genuine cocaine by taking possession of purported cocaine. The district court committed no error by denying Truman's postverdict motion and entering judgment on the verdict.

AFFIRMED.