         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2020 Term
                                 _______________                              FILED
                                                                           June 15, 2020
                                    No. 19-0875                            released at 3:00 p.m.
                                  _______________                      EDYTHE NASH GAISER, CLERK
                                                                       SUPREME COURT OF APPEALS
                                                                            OF WEST VIRGINIA

                          STATE OF WEST VIRGINIA,
                                 Respondent

                                         v.

                                 JUSTIN K. LEGG,
                                    Petitioner

      ____________________________________________________________

            Certified Questions from the Circuit Court of Fayette County
                      The Honorable Thomas H. Ewing, Judge
                           Criminal Action No. 19-F-134

                     CERTIFIED QUESTIONS ANSWERED

      ____________________________________________________________

                               Submitted: May 19, 2020
                                 Filed: June 15, 2020

James Adkins, Esq.                            Patrick Morrisey, Esq.
Assistant Public Defender                     Attorney General
Edward S. Stanton, Esq.                       Scott E. Johnson, Esq.
Deputy Chief Public Defender                  Assistant Attorney General
Fayetteville, West Virginia                   Charleston, West Virginia
Counsel for the Petitioner                    Counsel for the Respondent



CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WORKMAN not participating.
                              SYLLABUS BY THE COURT


              1.     “When a certified question is not framed so that this Court is able to

fully address the law which is involved in the question, then this Court retains the power

to reformulate questions certified to it under both the Uniform Certification of Questions

of Law Act found in W.Va. Code, 51-1A-1, et seq. and W.Va. Code, 58-5-2 [1967], the

statute relating to certified questions from a circuit court of this State to this Court.” Syl.

Pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).

              2.     “The appellate standard of review of questions of law answered and

certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197

W. Va. 172, 475 S.E.2d 172 (1996).

              3.     An indictment for conspiracy under W. Va. Code § 60A-4-414(b)

need not name all of the co-conspirators. An indictment specifically alleging a conspiracy

involving a single defendant and only one other co-conspirator is sufficient, under

constitutional principles, to put the defendant on notice that he or she may be held

responsible under § 60A-4-414(f) for the quantity of drugs delivered or possessed with

intent to deliver solely by the co-conspirator to other persons who have also been charged

in separate indictments alleging a single conspiracy involving the same co-conspirator,

when those other persons are not named in the indictment.

              4.     “Where the language of a statute is free from ambiguity, its plain

meaning is to be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett

v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).


                                               i
              5.     For purposes of a crime under W. Va. Code § 60A-4-414(b), W. Va.

Code § 60A-4-414(f) requires that overt acts have to be in furtherance of the conspiracy

before the trier of fact can attribute to the defendant “all of the controlled substances

manufactured, delivered or possessed with intent to deliver or manufacture by other

participants or members of the conspiracy.”

              6.     For purposes of the trier of fact’s determination under W. Va. Code §

60A-4-414(f) as to the amount of controlled substances attributable to a defendant for

purposes of W. Va. Code § 60A-4-414(b), the admissibility of evidence of an unindicted

co-conspirator’s drug transactions with others who are not named or identified in the

indictment is subject to the knowing and foreseeable principles outlined in Pinkerton v.

United States, 328 U.S. 640 (1946) and its progeny.

              7.     “Where a constitutional right to counsel exists under W. Va. Const.

art. III, § 14, there is a correlative right to representation that is free from conflicts of

interest.” Syl. Pt. 2, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988).




                                              ii
ARMSTEAD, Chief Justice:

              In this case we consider four certified questions regarding West Virginia’s

conspiracy statute contained in the Uniform Controlled Substances Act, W. Va. Code §

60A-4-414 (2017). 1 After exercising our authority to reformulate the certified questions,

and after considering the parties’ briefs, relevant portions of the appendix record, oral

arguments, and the pertinent law, we answer the reformulated certified questions as

follows:

              1.     For purposes of a crime under West Virginia Code §
                     60A-4-414(b), is an indictment specifically alleging a
                     conspiracy involving a single defendant and only one
                     other co-conspirator sufficient, under constitutional
                     principles, to put the defendant on notice that he or she
                     may be held responsible under § 60A-4-414(f) for the
                     quantity of drugs delivered or possessed with intent to
                     deliver solely by the co-conspirator to other persons not
                     named in the indictment?
                     Answer: Yes

              2.     For purposes of a crime under West Virginia Code §
                     60A-4-414(b), does § 60A-4-414(f) require that overt
                     acts have to be in furtherance of the conspiracy before
                     the trier of fact can attribute to the defendant all of the
                     controlled substances manufactured, delivered or
                     possessed with intent to deliver or manufacture by other
                     participants or members of the conspiracy?
                     Answer: Yes.

              3.     For purposes of the trier of fact’s determination under
                     West Virginia Code § 60A-4-414(f), is evidence of an
                     unindicted co-conspirator’s drug transactions with

       1
         The Circuit Court of Fayette County proposed five certified questions. However,
we decline to address the fourth question certified by the circuit court. We believe the crux
of the question posed by the proposed fourth certified question is essentially discussed in
the certified questions answered herein.
                                              1
                      others not named or identified in the indictment
                      admissible for consideration in determining the amount
                      of controlled substances attributable to the Defendant
                      for purposes of West Virginia Code § 60A-4-414(b)
                      subject to the knowing and foreseeable principles
                      outlined in Pinkerton v. United States, 328 U.S. 640
                      (1946) and its progeny?
                      Answer: Yes.

              4.      Where an indictment charges a conspiracy in violation
                      of West Virginia Code § 60A-4-414(b) involving the
                      defendant and only one other named, but indicted co-
                      conspirator, may counsel for the defendant continue to
                      represent similarly situated, but separately indicted
                      defendants who were not named in the defendant’s
                      indictment but who are alleged to have had separate
                      conspiracies with the same, named unindicted co-
                      conspirator as identified in the defendant’s indictment
                      when the State seeks to offer evidence in the
                      defendant’s trial of drug transactions between the
                      named, unindicted co-conspirator and the other
                      separately indicted individuals for consideration in
                      determining the quantity of controlled substance
                      attributable to the defendant under West Virginia Code
                      § 60A-4-414(f)?
                      Answer: No.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

              In 2017, the Central West Virginia Drug Task Force (“Task Force”) began

an investigation into drug activity that was eventually referred to as Operation Mountaineer

Highway. Thereafter, the Drug Enforcement Agency (“DEA”) began working with the

Task Force on this investigation.

              The Task Force began its investigation into two individuals, Greg Coleman

and Ryan Johnson, after controlled purchases were made from Mr. Coleman’s residence.

In May of 2018, the DEA applied for and was granted “a wire intercept order” allowing

                                             2
them to listen to and record conversations between Greg Coleman and others. The wiretap

investigation revealed that Greg Coleman sold drugs to more than twenty individuals in

Fayette County, West Virginia.

               On May 15, 2019, the petitioner, Justin K. Legg, was indicted by a Fayette

County, West Virginia, Grand Jury for the offense of conspiracy. In addition to the

petitioner, Operation Mountaineer Highway resulted in numerous other individuals being

indicted. 2 In the indictments, the State “alleged that the Defendant conspired with a single

named, unindicted co-conspirator to deliver or possess with intent to deliver one kilogram

or more of heroin, and that the Defendant and/or the unindicted co-conspirator did act to

effect the object of the conspiracy. No other co-conspirators are named or identified in the

Indictment.”

               Although the petitioner may not have distributed over one kilogram of heroin

himself, the State asserts that he and other similarly situated defendants are responsible for

the heroin that Mr. Coleman distributed as part of the overall conspiracy. Following

discovery and the filing of various motions, the Circuit Court of Fayette County entered its

“Order Certifying Questions To The Supreme Court of Appeals Of West Virginia.” 3 The

five questions, and the circuit court’s answers are as follows:

               1. For purposes of a crime under West Virginia Code Section
                  60A-4-414(b), is an Indictment specifically alleging a

       2
        Sixteen of the cases were assigned to the Honorable Thomas H. Ewing.
       3
        The Honorable Thomas H. Ewing consolidated the related cases that were assigned
to him for the limited purpose of certifying questions to this Court. Petitioner Justin K.
Legg’s case was designated as the lead case for the limited purpose of resolving the
questions presented.
                                            3
   conspiracy involving a single defendant and only one other
   co-conspirator sufficient, under constitutional principles, to
   put the defendant on notice that he/she may be held
   responsible under section 4-414(f) for the quantity of drugs
   delivered or possessed with intent to deliver solely by the
   co-conspirator to other persons, who have also been
   charged in separate indictments alleging a single
   conspiracy involving the same co-conspirator, when those
   other persons are not named in the indictment?
   Answer: Yes.
2. For purposes of a crime under West Virginia Code Section
   60A-4-414(b), does section 4-414(f) incorporate the
   common law principle that overt acts have to be in
   furtherance of the conspiracy before the jury can attribute
   to the defendant “all of the controlled substances
   manufactured, delivered or possessed with intent to deliver
   or manufacture by other participants or members of the
   conspiracy”?
   Answer: Yes.
3. For purposes of the jury’s determination under West
   Virginia Code Section 60A-4-414(f), is evidence of an
   unindicted co-conspirator’s drug transactions with others
   not named or identified in the Indictment admissible for the
   jury’s consideration in determining the amount of
   controlled substance attributable to the Defendant for
   purposes of West Virginia Code Section 60A-4-414(b)
   subject to the knowing and foreseeable principles outlined
   in Pinkerton v. United States, 328 U.S. 640 (1946) and its
   progeny?
   Answer: Yes.
4. For purposes of a crime under West Virginia Code Section
   60A-4-414(b), can the jury consider the volume of
   controlled substances distributed by the named, co-
   conspirator as part of his separate conspiracies with others
   not named or identified in the Indictment for purposes of
   the jury’s determination under West Virginia Code Section
   60A-4-414(f) even when the State does not intend to
   introduce evidence to show that the defendant had any
   connection or dealings with any of the unindicted co-
   conspirator’s other alleged, separately indicted co-
   conspirators?
   Answer: Yes.

                               4
              5. Where the Indictment charges a conspiracy in violation of
                 West Virginia Code Section 60A-4-414(b) involving the
                 defendant and only one other named, but unindicted c-
                 conspirator, may counsel for the defendant continue to
                 represent similarly situated, but separately indicted
                 defendants who were not named in the defendant’s
                 indictment but who are alleged to have had separate
                 conspiracies with the same, named unindicted co-
                 conspirator as identified in the defendant’s Indictment,
                 when the State seeks to offer evidence in the defendant’s
                 trial of drug transactions between the named, unindicted co-
                 conspirator and the other separately indicted individuals for
                 the jury to consider in determining the quantity of
                 controlled substance attributed to the defendant under West
                 Virginia Code Section 60A-4-414(f)?
                 Answer: No.


                              II. STANDARD OF REVIEW

              “The appellate standard of review of questions of law answered and certified

by a circuit court is de novo[,]” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va.

172, 475 S.E.2d 172 (1996), meaning that “we give plenary consideration to the legal issues

that must be resolved to answer the question” certified by the circuit court. Michael v.

Appalachian Heating, LLC, 226 W. Va. 394, 398, 701 S.E.2d 116, 120 (2010).

                                    III. DISCUSSION

              Prior to addressing the issues raised in this proceeding, we exercise our

authority to reformulate the questions certified by the circuit court in order to fully address

the legal issues presented.

                     When a certified question is not framed so that this
              Court is able to fully address the law which is involved in the
              question, then this Court retains the power to reformulate
              questions certified to it under both the Uniform Certification of

                                              5
              Questions of Law Act found in W.Va. Code, 51-1A-1, et seq.
              and W.Va. Code, 58-5-2 [1967], the statute relating to certified
              questions from a circuit court of this State to this Court.

Syl. Pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993).

              Consistent with our authority to do so, we reformulate the questions certified

as follows:

              1.     For purposes of a crime under West Virginia Code §
                     60A-4-414(b), is an indictment specifically alleging a
                     conspiracy involving a single defendant and only one
                     other co-conspirator sufficient, under constitutional
                     principles, to put the defendant on notice that he or she
                     may be held responsible under § 60A-4-414(f) for the
                     quantity of drugs delivered or possessed with intent to
                     deliver solely by the co-conspirator to other persons not
                     named in the indictment?
                     Answer: Yes

              2.     For purposes of a crime under West Virginia Code §
                     60A-4-414(b), does § 60A-4-414(f) require that overt
                     acts have to be in furtherance of the conspiracy before
                     the trier of fact can attribute to the defendant “all of the
                     controlled substances manufactured, delivered or
                     possessed with intent to deliver or manufacture by other
                     participants or members of the conspiracy”?
                     Answer: Yes.

              3.     For purposes of the trier of fact’s determination under
                     West Virginia Code § 60A-4-414(f), is evidence of an
                     unindicted co-conspirator’s drug transactions with
                     others not named or identified in the indictment
                     admissible for consideration in determining the amount
                     of controlled substances attributable to the Defendant
                     for purposes of West Virginia Code § 60A-4-414(b)
                     subject to the knowing and foreseeable principles
                     outlined in Pinkerton v. United States, 328 U.S. 640
                     (1946) and its progeny?
                     Answer: Yes.


                                              6
             4.      Where an indictment charges a conspiracy in violation
                     of West Virginia Code § 60A-4-414(b) involving the
                     defendant and only one other named, but indicted co-
                     conspirator, may counsel for the defendant continue to
                     represent similarly situated, but separately indicted
                     defendants who were not named in the defendant’s
                     indictment but who are alleged to have had separate
                     conspiracies with the same, named unindicted co-
                     conspirator as identified in the defendant’s indictment
                     when the State seeks to offer evidence in the
                     defendant’s trial of drug transactions between the
                     named, unindicted co-conspirator and the other
                     separately indicted individuals for consideration in
                     determining the quantity of controlled substance
                     attributable to the defendant under West Virginia Code
                     § 60A-4-414(f)?
                     Answer: No.


             We will address each of these questions in turn.

                       A. “Sufficiency of Indictment”

             In the first certified question, we are asked to determine if an indictment for

conspiracy under W. Va. Code § 60A-4-414(b) (2017) is sufficient to a place a defendant

on notice that he or she may be held responsible for the quantity of drugs delivered or

possessed with intent to deliver solely by a co-conspirator to other persons who have also

been charged in separate indictments alleging a single conspiracy involving the same co-

conspirator, when those other persons are not named in the indictment.

              An indictment “shall be a plain, concise and definite written statement of the

essential facts constituting the offense charged.” W. Va. R. Crim. P. 7(c)(1). The West

Virginia Constitution provides, “[i]n all [criminal] trials, the accused shall be fully and


                                             7
plainly informed of the character and cause of the accusation[.]” Further, this Court has

previously held “[a]n indictment need only meet minimal constitutional standards, and the

sufficiency of an indictment is determined by practical rather than technical

considerations.” Syl. Pt. 2, in part, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996).

              In answering this question, the circuit court relied, in part, upon the Fourth

Circuit’s decision in United States v. Camara, 908 F.3d 41 (4th Cir. 2018), which noted

that “the government need not identify any co-conspirators.” Camara at 46. In discussing

this issue, the United States Supreme Court has noted “at least two persons are required to

constitute a conspiracy, but the identity of the other members of the conspiracy is not

needed, inasmuch as one person can be convicted of conspiring with persons whose names

are unknown.” Rogers v. United States, 340 U.S. 367, 375 (1951). When considering a

case with a similar indictment, the Sixth Circuit noted, “not to construe this indictment to

charge a conspiracy involving two or more persons might create tension with the general

rule that the prosecution need not furnish co-conspirators’ names as long as the defendant

has notice of the conspiracy with which he is charged.” United States v. Pingleton, 216 F.

App’x 526, 529 (6th Cir. 2007).

              Practically speaking, a defendant who is charged with conspiracy under W.

Va. Code § 60A-4-414(b) of the Uniform Controlled Substances Act, is on notice that he

or she may be held responsible for the quantity of drugs delivered or possessed with intent

to deliver solely by the co-conspirator to other persons not named in the indictment. This

is because the conspiracy statute, W. Va. Code § 60A-4-414, allows the trier of fact to


                                             8
“include all of the controlled substances manufactured, delivered or possessed with the

intent to deliver or manufacture by other participants or members of the conspiracy” when

it is determining the quantity of controlled substances attributable to the defendant in a

charge under this section. W. Va. Code § 60A-4-414(f) (2017) (emphasis added). To the

extent that the defendant is charged under the conspiracy statute, such attribution may be

permitted.

              Therefore, we hold that an indictment for conspiracy under W. Va. Code §

60A-4-414(b) need not name all of the co-conspirators. An indictment specifically alleging

a conspiracy involving a single defendant and only one other co-conspirator is sufficient,

under constitutional principles, to put the defendant on notice that he or she may be held

responsible under § 60A-4-414(f) for the quantity of drugs delivered or possessed with

intent to deliver solely by the co-conspirator to other persons not named in the indictment.

              The reformulated certified question asked:

                     For purposes of a crime under West Virginia Code §
              60A-4-414(b), is an indictment specifically alleging a
              conspiracy involving a single defendant and only one other co-
              conspirator sufficient, under constitutional principles, to put
              the defendant on notice that he or she may be held responsible
              under § 60A-4-414(f) for the quantity of drugs delivered or
              possessed with intent to deliver solely by the co-conspirator to
              other persons not named in the indictment?

We answer the reformulated certified question in the affirmative.

                                B. “Overt Acts”

              The second question certified by the circuit court relates to the quantity of

controlled substances that are attributable to a defendant who has been charged under W.

                                             9
Va. Code § 60A-4-414(b). In this question, we are asked if W. Va. Code § 60A-4-414(f)

requires that overt acts have to be in furtherance of the conspiracy before the trier of fact

may attribute to a defendant “all of the controlled substances manufactured, delivered or

possessed with intent to deliver or manufacture by other participants or members of the

conspiracy.” W. Va. Code § 60A-4-414(f). Answering this question requires us to

examine the conspiracy statute within the Uniform Controlled Substances Act, W. Va.

Code § 60A-4-414.

               We begin our analysis with a review of our rules regarding statutory

interpretation. When deciding the meaning of a statutory provision, “[w]e look first to the

statute’s language. If the text, given its plain meaning, answers the interpretive question,

the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v.

State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995). See also Syl.

Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language

of a statute is free from ambiguity, its plain meaning is to be accepted and applied without

resort to interpretation.”).

               With these rules of statutory construction in mind, we examine W. Va. Code

       § 60A-4-414. It provides, in relevant part:

               ***

               (b) Notwithstanding the provisions of subsection (a) of this
               section, any person who willfully conspires with one or more
               persons to manufacture, deliver or possess with intent to
               manufacture or deliver one kilogram or more of heroin, five
               kilograms or more of cocaine or cocaine base, one hundred
               grams or more of phencyclidine, ten grams or more of lysergic

                                             10
              acid diethylamide, or fifty grams or more of methamphetamine
              or five hundred grams of a substance or material containing a
              measureable amount of methamphetamine, if one or more of
              such persons does any act to effect the object of the conspiracy,
              is guilty of a felony and, upon conviction thereof, shall be
              imprisoned in a state correctional facility for a determinate
              sentence of not less than two nor more than thirty years.

              ***

              (f) The determination of the trier of fact as to the quantity of
              controlled substance attributable to the defendant in a charge
              under this section may include all of the controlled substances
              manufactured, delivered or possessed with intent to deliver or
              manufacture by other participants or members of the
              conspiracy.


              Subsection (b) clearly requires an overt act. The statutory language provides

“if one or more of such persons does any act to effect the object of the conspiracy...” W.

Va. Code § 60A-4-414(b) (emphasis added). When examining the overt act requirement

as it relates to our general conspiracy statute, W. Va. Code § 61-10-31(1), this Court has

noted that “[t]he purpose of the overt act requirement is merely to show ‘that the conspiracy

is at work.’ …. It is not necessary that each conspirator involved in the conspiracy commit

his or her own overt act. The overt act triggering the conspiracy as to all the conspirators

can be committed by any one of their number.” State v. Less, 170 W. Va. 259, 265, 294

S.E.2d 62, 67 (1981) (internal citations omitted). Although W. Va. Code § 60A-4-414(b)

does not require each conspirator to commit his or her own overt act, it requires an overt

act to effect the object of the conspiracy.




                                              11
              Subsection (f) of this conspiracy statute provides, “[t]he determination of the

trier of fact as to the quantity of controlled substance attributable to the defendant in a

charge under this section may include all of the controlled substances manufactured,

delivered or possessed with intent to deliver or manufacture by other participants or

members of the conspiracy.” W. Va. Code § 60A-4-414(f) (emphasis added). We believe

that the conspiracy referenced in subsection (f) is the conspiracy charged in the indictment.

              Therefore, we hold that for purposes of a crime under W. Va. Code § 60A-

4-414(b), W. Va. Code § 60A-4-414(f) requires that overt acts have to be in furtherance of

the conspiracy before the trier of fact can attribute to the defendant “all of the controlled

substances manufactured, delivered or possessed with intent to deliver or manufacture by

other participants or members of the conspiracy.”

              The reformulated certified question asked:

                     For purposes of a crime under West Virginia Code §
              60A-4-414(b), does § 60A-4-414(f) require that overt acts have
              to be in furtherance of the conspiracy before the trier of fact
              can attribute to the defendant “all of the controlled substances
              manufactured, delivered or possessed with intent to deliver or
              manufacture by other participants or members of the
              conspiracy”?

We answer the reformulated certified question in the affirmative.

                              C. “Foreseeability”

              The third question certified by the circuit court also relates to the quantity of

controlled substances that are attributable to a defendant who has been charged under W.

Va. Code § 60A-4-414(b). However, this question asks whether the amount of controlled


                                             12
substances attributable to a defendant under W. Va. Code § 60A-4-414(b) is subject to the

foreseeability principles of Pinkerton v. United States, 328 U.S. 640 (1946) and its

progeny.

              As has previously been discussed, the circuit court concluded that the

evidence of an unindicted co-conspirator’s drug transactions with others not identified in

the indictment is admissible for the trier of fact’s consideration in determining the amount

of controlled substances attributable to a defendant under W. Va. Code § 60A-4-414(b).

In addition, the circuit court also concluded that such attribution is subject to the knowing

and foreseeability principles contained in Pinkerton v. United States, 328 U.S. 640 (1946)

and its progeny, and we agree.

              Pinkerton has been described as the “leading case” on the issue of vicarious

conspirator liability. United States v. Collado, 975 F.2d 985, 993 n.7 (3d Cir. 1992). In

Pinkerton, the United States Supreme Court affirmed the substantive convictions of a co-

conspirator even though there was no evidence that the co-conspirator participated directly

in the commission of the substantive offenses. Pinkerton v. United States, 328 U.S. 640

(1946). The Supreme Court acknowledged, however, that for such liability to be imposed,

the act of the co-conspirator must be done “in furtherance of the conspiracy” and must be

“reasonably foreseen as a necessary or natural consequence of the unlawful agreement.”

Pinkerton at 647-48. “The idea behind the Pinkerton doctrine is that the conspirators are

each other’s agents; and a principal is bound by the acts of his agents within the scope of

the agency.” United States v. Aramony, 88 F.3d 1369, 1379 (4th Cir. 1996) (quoting United


                                             13
States v. Manzella, 791 F.2d 1263, 1267 (7th Cir. 1986)). When determining the quantity

of drugs attributable to an individual defendant involved in a drug conspiracy, the Fourth

Circuit has recognized that “a trial court is obliged to ‘instruct a jury to use Pinkerton

principles.’ United States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008).

             We hold that for purposes of the trier of fact’s determination under W. Va.

Code § 60A-4-414(f) as to the amount of controlled substances attributable to a defendant

for purposes of W. Va. Code § 60A-4-414(b), the admissibility of evidence of an unindicted

co-conspirator’s drug transactions with others who are not named or identified in the

indictment is subject to the knowing and foreseeable principles outlined in Pinkerton v.

United States, 328 U.S. 640 (1946) and its progeny.

             The reformulated certified question asked:

                    For purposes of the trier of fact’s determination under
                    West Virginia Code § 60A-4-414(f), is evidence of an
                    unindicted co-conspirator’s drug transactions with
                    others not named or identified in the indictment
                    admissible for consideration in determining the amount
                    of controlled substances attributable to the Defendant
                    for purposes of West Virginia Code § 60A-4-414(b)
                    subject to the knowing and foreseeable principles
                    outlined in Pinkerton v. United States, 328 U.S. 640
                    (1946) and its progeny?


We answer the reformulated certified question in the affirmative.

                           D. “Conflict of Interest”

             The last question certified by the circuit court relates to whether counsel for

a defendant who is charged with conspiracy in violation of W. Va. Code § 60A-4-414(b)


                                            14
may continue to represent similarly situated, but separately indicted defendants who were

not named in the defendant’s indictment but who are alleged to have had separate

conspiracies with the same named unindicted co-conspirator as identified in the

defendant’s indictment.

              “The Sixth Amendment of the United States Constitution and Article III,

Section 14 of the West Virginia Constitution both guarantee to the criminally accused the

right to counsel.” State ex rel. Humphries v. McBride, 220 W. Va. 362, 366, 647 S.E.2d

798, 802 (2007) (per curiam). “Where a constitutional right to counsel exists under W. Va.

Const. art. III, § 14, there is a correlative right to representation that is free from conflicts

of interest.” Syl. Pt. 2, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988). Rule 1.7

of the West Virginia Rules of Professional Conduct governs conflicts of interest with

current clients. Rule 1.7 provides, in pertinent part:

              (a) Except as provided in paragraph (b), a lawyer shall not
                  represent a client if the representation involves a concurrent
                  conflict of interest. A concurrent conflict of interest exists
                  if:
                  (1) the representation of one client will be directly adverse
                      to another client; or
                  (2) there is a significant risk that the representation of one
                      or more clients will be materially limited by the
                      lawyer’s responsibilities to another client, a former
                      client or a third person or by a personal interest of the
                      lawyer.

              The fourth question contemplates a scenario in which the State may use

evidence of drug transactions involving persons who are represented by the same attorney

and are both alleged to have obtained controlled substances from the same supplier. As


                                               15
the circuit court correctly noted, there is a likelihood that counsel “will be forced to choose

between clients at trial” if one or more of counsel’s clients are called to testify. By way of

example, one client may possess knowledge or information that would be helpful to his or

her own case, but the same information may be harmful to another client. Further,

testimony from the various clients may not only be sought by the State. The petitioner

raises the possibility that he may need to subpoena “every individual” that transacted with

the unindicted co-conspirator in an effort to defend himself. However, providing testimony

at trial is not the only concern.     Counsel may also be navigating plea offers for these

various clients.

               The representation of one client need not be directly adverse to another client.

A conflict exists if there is a “significant risk” that the representation of one or more clients

will be materially limited by the lawyer’s responsibilities to another client. Rule 1.7, West

Virginia Rules of Professional Conduct. The scenario contemplated in this question poses

a significant risk that the representation of one client will be materially limited by the

lawyer’s responsibilities to another client. Given this Court’s answers to the preceding

questions and for the reasons stated herein, this Court finds that such representation would

result in a conflict of interest. 4

               The reformulated certified question asked:

               Where an indictment charges a conspiracy in violation of West
               Virginia Code § 60A-4-414(b) involving the defendant and
               only one other named, but indicted co-conspirator, may

       4
        Petitioner concedes that if this Court answered any of the preceding certified
questions in the affirmative, then a conflict of interest would exist.
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              counsel for the defendant continue to represent similarly
              situated, but separately indicted defendants who were not
              named in the defendant’s indictment but who are alleged to
              have had separate conspiracies with the same, named
              unindicted co-conspirator as identified in the defendant’s
              indictment when the State seeks to offer evidence in the
              defendant’s trial of drug transactions between the named,
              unindicted co-conspirator and the other separately indicted
              individuals for consideration in determining the quantity of
              controlled substance attributable to the defendant under West
              Virginia Code § 60A-4-414(f)?

We answer the reformulated certified question in the negative.


                                  IV. CONCLUSION

              Having answered the reformulated certified questions, we remand this case

to the Circuit Court of Fayette County for further proceedings consistent with this opinion.

                                                             Certified questions answered.




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