United States v. Charles Riley, Jr. , 643 F. App'x 291 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES RILEY, JR., a/k/a New York,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George J. Hazel, District Judge.
(1:13-cr-00607-GJH-2)
Submitted: January 28, 2016 Decided: April 5, 2016
Before AGEE, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Peter J. Martinez, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Riley, Jr., appeals his drug convictions. Riley’s
first trial ended when the district court granted his motion for
a mistrial. In his second trial, the jury found him guilty of
three counts from his superseding indictment: Count 1,
conspiracy to distribute and possess with intent to distribute
cocaine, and Counts 2 and 3, possession with intent to
distribute cocaine and aiding and abetting. In Count 2 the jury
found him guilty of the lesser-included offense of distributing
an unspecified amount of cocaine (the indictment alleged 500
grams or more of cocaine). Riley was sentenced to 240 months of
imprisonment. Riley makes numerous claims on appeal. For the
reasons that follow, we affirm.
First, Riley alleges the counts from his original
indictment should have been dismissed with prejudice and
precluded from being charged in his superseding indictment. In
reviewing the district court’s denial of Riley’s motion to
dismiss the indictment, we review the district court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002).
We find no reversible error and note that Riley was not
prejudiced as a result of the government’s conduct during grand
jury proceedings, see Bank of Nova Scotia v. United States, 487
U.S. 250, 254 (1988) (finding that a district court may not
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dismiss an indictment for errors in grand jury proceedings
unless such errors prejudiced the defendant), as the Government
obtained a superseding indictment, free from earlier errors made
in the grand jury proceedings leading to the original
indictment. See United States v. Wills, 346 F.3d 476, 488 (4th
Cir. 2003) (noting that in the absence of prejudice, “courts
lack authority to review the sufficiency of the evidence
supporting an indictment, even when a mistake was mistakenly
made”) (citations omitted).
Next, Riley contends that the district court should have
granted his motion to suppress the evidence because officers
entered his home before the issuance of the search warrant. We
review the district court’s factual findings underlying a motion
to suppress for clear error and its legal conclusions de novo.
United States v. Williams, 740 F.3d 308, 311 (4th Cir. 2014).
Because the district court denied Riley’s motion below, we
construe the evidence in the light most favorable to the
Government. United States v. Foster, 634 F.3d 243, 246 (4th
Cir. 2011). The record is clear that officers did not take any
evidence prior to properly executing the search warrant at
Riley’s home. Thus, Riley’s claim fails under the Supreme
Court’s decision in Segura v. United States, 468 U.S. 796, 813–
16 (1984). In Segura the Court held that warrantless entry into
a home does not require the suppression of evidence later
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obtained from that home if that evidence was independently
discovered pursuant to a valid warrant. 468 U.S. at 813–14
(“Whether the initial entry [of a home] was illegal or not is
irrelevant to the admissibility of the challenged evidence
because there was an independent source for the warrant under
which that evidence was seized. Exclusion of evidence as
derivative or ‘fruit of the poisonous tree’ is not warranted
here because of that independent source.”).
Third, Riley alleges that the district court erred by
denying his motions to sever Counts 2 and 5 from the remaining
counts. Two or more offenses may be charged in the same
indictment when the offenses “are of the same or similar
character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.”
Fed. R. Crim. P. 8(a). In determining whether charges are based
on the same transaction or are part of a common plan, this Court
has interpreted the rule flexibly, requiring that the joined
offenses have a logical relationship to one another. United
States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005). This
Court reviews de novo whether the initial joinder of the
offenses was proper under Rule 8(a). United States v. Mouzone,
687 F.3d 207, 219 (4th Cir. 2012).
We note that Riley was not retried on Count 5, so this
claim is without merit. Count 2 was properly joined under Rule
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8(a), United States v. Hornsby, 666 F.3d 296, 309 (4th Cir.
2012) (“Where offenses are properly joined under Rule 8(a),
severance of the offenses is rare”), and we find no abuse of
discretion by the district court in denying Riley’s motions for
severance. United States v. Dinkins, 691 F.3d 358, 367 (4th
Cir. 2012) (providing review standard). Thus, this claim lacks
merit.
Next, Riley argues that submission of Count 2 to the jury
violated the Double Jeopardy Clause. Count 2 charged Riley with
distributing 500 grams or more of cocaine. Because less than
that amount of the drug was presented at trial, however, the
district court charged the jury — and the jury found — Riley
guilty for distributing an unspecified amount of cocaine, a
lesser-included offense of Count 2. We note this claim is
forfeited because Riley failed to raise his double jeopardy
claim in the district court, United States v. Jarvis, 7 F.3d
404, 409 (4th Cir. 1993), and Riley fails to show plain error in
any event. See United States v. Olano, 507 U.S. 725, 732 (1993)
(providing plain error test). Criminal Rule 31(c)(1) provides
that a defendant may be found guilty of an offense necessarily
included in the offense charged. Moreover, a court may submit
an uncharged lesser-included offense to the jury, and the jury
may convict on a lesser-included offense, if all the elements
are proven after it determines that the evidence is insufficient
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on the greater offense. United States v. Walkingeagle, 974 F.2d
551, 553-54 (4th Cir. 1992). Thus, this claim fails.
In his fifth claim Riley argues that the district court
erred by granting a mistrial in his first trial on the basis of
manifest necessity. We agree with the district court that Riley
failed to meet the challenging burden of showing that the
Government sought to goad him into seeking a mistrial, as
required for him to prevail on this claim. See United States v.
Smith, 441 F.3d 254, 265 (4th Cir. 2006) (finding that an
appellant bears the burden of proving specific intent to provoke
a mistrial); United States v. Wentz, 800 F.2d 1325, 1327 (4th
Cir. 1986) (noting where defendant obtains a mistrial, “the
conditions for invocation of the double jeopardy bar are
strict”). We find no abuse of discretion regarding the district
court’s factual findings in this regard. See United States v.
Johnson, 55 F.3d 976, 978 (4th Cir. 1995) (providing standard).
Finally, Riley contends that his second trial violated the
Fifth Amendment’s Double Jeopardy Clause. We review questions
of double jeopardy de novo, United States v. Studifin, 240 F.3d
415, 418 (4th Cir. 2001), but with regard to the more specific
question of whether the Government intentionally provoked a
mistrial, this Court reviews factual findings for clear error.
Johnson, 55 F.3d at 978. We conclude that the district court’s
factual and legal conclusions on the matter were not erroneous.
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Oregon v. Kennedy, 456 U.S. 667, 675-78 (1982); Wentz, 800 F.2d
at 1327.
Accordingly, because Riley’s claims fail on appeal, we
affirm his convictions. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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