United States v. Blalock ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5280
JIMMIE ROSS BLALOCK,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5295
LEE ROY BLALOCK, JR., a/k/a Pete,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-94-141)
Argued: April 5, 1996
Decided: May 20, 1996
Before MURNAGHAN and LUTTIG, Circuit Judges, and
MICHAEL, Senior United States District Judge for the Western
District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Anthony Wayne Harrison, Jr., HARRISON, NORTH,
COOKE & LANDRETH, Greensboro, North Carolina; Daniel Smith
Johnson, Winston-Salem, North Carolina, for Appellants. David Ber-
nard Smith, Assistant United States Attorney/Senior Litigation Coun-
sel, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.
Holton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants Jimmie Ross Blalock and Lee Roy Blalock, Jr., were
convicted by a jury of conspiring to possess and distribute marijuana.
On appeal, both Appellants have argued that the district court clearly
erred when it calculated the amount of drugs attributable to them and
when it enhanced their sentences for possession of a weapon. Lee Roy
Blalock has further contended that the district court erred when it
denied his motion for judgment of acquittal and when it held that the
Double Jeopardy Clause did not bar the government's prosecution of
him, and that the district court both clearly erred and abused its dis-
cretion when, pursuant to Rule 801(d)(2)(E) of the Federal Rules of
Evidence, it permitted testimony concerning an out-of-court statement
made by one of the conspirators. Finding their contentions lacking
merit, we affirm Appellants' convictions and sentences.
I.
On June 1, 1994, a federal grand jury returned an indictment charg-
ing Appellants with conspiring to possess and distribute more than
1,000 kilograms of marijuana in violation of 21 U.S.C.
2
§§ 841(b)(1)(A), 846 (Supp. 1996). Lee Roy Blalock filed a motion
to dismiss the indictment as it applied to him, arguing that he had
already been punished for his actions when he forfeited to the United
States $45,512 and a 1990 Cadillac in civil forfeiture proceedings and
that prosecution on the grounds stated in the indictment would there-
fore violate the Double Jeopardy Clause. The district court denied the
motion, holding that Blalock was not being punished twice for the
same offense: the civil forfeitures had occurred as a result of his
alleged violation of money laundering statutes, rather than as a result
of the drug offenses for which he had been indicted.
A jury trial commenced on October 3, 1994. The government pres-
ented evidence suggesting the existence of a conspiracy between Jim-
mie, Lee Roy, Robbie, and Adam Blalock, Dennis Gale, Pam
Beauchamp, Eddie Kyle, and possibly others, to obtain marijuana
from Mexico and elsewhere for local distribution. Witnesses called by
the government indicated that, over a period of several years, hun-
dreds of bales of marijuana were delivered to the conspirators and that
the marijuana frequently arrived in trucks that had been fitted with
secret compartments for just that purpose. On October 11, the jury
returned guilty verdicts against both defendants. Jimmie Blalock and
Lee Roy Blalock were subsequently sentenced to 200 months and 160
months in prison, respectively. The instant appeals followed.
II.
A.
On January 21, 1992, the United States initiated two civil forfeiture
actions pursuant to 18 U.S.C. § 981(a)(1)(A) against property owned
by Lee Roy Blalock: a 1990 Cadillac and $104,524 in United States
currency. The verified complaints alleged that both the car and the
currency were "property which was involved in and facilitated trans-
actions, or which represent[ed] the gross receipts obtained directly or
indirectly as a result of transactions, in violation of 18 U.S.C.
§§ 1956(a)(1) and 1957, and property traceable to such property."
Internal Revenue Service Special Agent Ted E. Warren filed the sup-
porting affidavits, stating a belief that Blalock had been involved in
the trafficking of large quantities of marijuana; that substantial
amounts of currency had been acquired as a result of that activity; and
3
that a loaded weapon, marijuana, and more than $104,000 in currency
had been found in Blalock's 1990 Cadillac after he was stopped for
speeding. The parties later entered a settlement, under which the vehi-
cle and $45,512 were forfeited to the United States and $59,012 was
returned to Blalock. Blalock asked the district court to dismiss the
subsequent criminal indictment, arguing that, in light of the civil for-
feiture, his prosecution on the conspiracy charges violated the Double
Jeopardy Clause of the Fifth Amendment.1 The district court rejected
that argument and refused to dismiss the indictment. We review the
matter de novo. Thomas v. Commissioner, I.R.S., 62 F.3d 97, 99 (4th
Cir. 1995).
The general principles governing such double jeopardy claims are
fairly well established. "[T]he Double Jeopardy Clause protects
against . . . multiple punishments for the same offense." United States
v. Halper, 490 U.S. 435, 440 (1989). The Halper Court observed that
"[t]he notion of punishment, as we commonly understand it, cuts
across the division between the civil and the criminal law," id. at 447-
48, and that a civil or criminal "sanction constitutes punishment when
the sanction as applied in the individual case serves the goals of
punishment"--namely, retribution or deterrence, id. at 448. To deter-
mine whether a civil sanction constitutes punishment, we must there-
fore determine whether the sanction may "fairly be characterized as
remedial," or instead only serves the purposes of deterrence or retri-
bution. Id. at 448-49. To determine whether a person is being pun-
ished twice for the same offense, we must apply the test announced
in Blockburger v. United States, 284 U.S. 299, 304 (1932), by asking
"whether each offense contains an element not contained in the other;
if not, they are the `same offense' and double jeopardy bars additional
punishment and successive prosecution." United States v. Dixon, ___
U.S. ___, 113 S. Ct. 2849, 2856 (1993).
The civil forfeiture complaints in the instant case alleged that the
property had been involved in violations of 18 U.S.C.
§§ 1956(a)(1)(A)(i), (B)(i) and 1957, thereby triggering the govern-
_________________________________________________________________
1 The Fifth Amendment states, in pertinent part, that "[n]o person shall
. . . be subject for the same offence to be twice put in jeopardy of life
or limb." U.S. Const. amend. V.
4
ment's right to seek forfeiture pursuant to 18 U.S.C. § 981(a)(1)(A).2
Section 1956(a)(1) provides:
Whoever, knowing that the property involved in a financial
transaction represents the proceeds of some form of unlaw-
ful activity, conducts or attempts to conduct such a financial
transaction which in fact involves the proceeds of specified
unlawful activity--
(A)(i) with the intent to promote the carrying on
of specified unlawful activity; or . . .
(B)(i) knowing that the transaction is designed in
whole or in part to conceal or disguise the
nature, the location, the source, the owner-
ship, or the control of the proceeds of
specified unlawful activity . . .
shall be sentenced to a fine of not more than $500,000 or
twice the value of the property involved in the transaction,
whichever is greater, or imprisonment for not more than
twenty years, or both.
§ 1956(a)(1) (Supp. 1996). Section 1957 makes it illegal for a person
"knowingly [to] engage[ ] or attempt[ ] to engage in a monetary trans-
action in criminally derived property that is of a value greater than
$10,000 and is derived from specified unlawful activity." § 1957(a)
(Supp. 1996).
Blalock's double jeopardy argument fails. Applying the
Blockburger test, it is clear that he was not punished twice for the
same offense. Section 1956 is a money-laundering statute (indeed, the
section is titled "Laundering of monetary instruments"). To prove a
violation of that statute, the government must show that
_________________________________________________________________
2 Section 981(a)(1)(A) provides, in pertinent part, that "[a]ny property,
real or personal, involved in a transaction or attempted transaction in vio-
lation of . . . section 1956 or 1957 of this title, or any property traceable
to such property," is subject to forfeiture to the United States.
§ 981(a)(1)(A) (Supp. 1996).
5
(1) the defendant conducted or attempted to conduct a finan-
cial transaction; (2) the property involved the proceeds of
specified unlawful activity; (3) the defendant knew that the
property involved represented the proceeds of some form of
unlawful activity; (4) the defendant engaged in the financial
transaction with the intent to promote the carrying on of
specified unlawful activity; or (5) while knowing that the
transaction was designed in whole or in part, to conceal or
disguise the nature, the location, the source, the ownership,
or the control of the proceeds of the unlawful activity.
United States v. Heaps, 39 F.3d 479, 483 (4th Cir. 1994). To prove
a violation of section 1957, the government must show "that the funds
or monetary instruments used in a transaction either themselves con-
stitute, or are derived from, the proceeds of specified criminal activ-
ity." United States v. Moore, 27 F.3d 969, 976 (4th Cir.), cert. denied,
___ U.S. ___, 115 S. Ct. 459 (1994). To support its section 846 con-
spiracy charge, however, the government was required to show that
Blalock knew of a conspiracy to distribute, or to possess with intent
to distribute, at least 1,000 kilograms of marijuana and that he volun-
tarily joined that conspiracy. United States v. Clark, 928 F.2d 639,
641-42 (4th Cir. 1991); 21 U.S.C. §§ 841, 846 (1981 & Supp. 1996)
(discussed infra). The civil and criminal charges clearly are composed
of one or more different elements. For example, while in the civil for-
feiture proceedings the government would have been required to
prove that Blalock had engaged or attempted to engage in a financial
transaction, no such proof was required to sustain the conspiracy
charge. Similarly, while in the criminal proceedings the government
was required to prove that the conspiracy involved at least 1,000 kilo-
grams of marijuana, no such proof would have been required in the
forfeiture proceedings. It does not matter whether, with respect to sev-
eral other elements, there was an "overlap of proof" in the two
actions. United States v. Felix, 503 U.S. 378, 386 (1992). Because the
civil and criminal proceedings involved one or more different ele-
ments of proof, the Double Jeopardy Clause afforded Blalock no pro-
tection from prosecution for the crimes of which he was ultimately
convicted.3
_________________________________________________________________
3 We should further note that, to the extent that the forfeited car and
currency were instrumentalities of Blalock's unlawful drug activity, the
6
B.
After the government rested its case, Lee Roy Blalock moved for
judgment of acquittal pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. Under Rule 29, a trial court is required to enter
judgment of acquittal "of one or more offenses charged in the indict-
ment or information . . . if the evidence is insufficient to sustain a
conviction of such offense or offenses." Fed. R. Crim. P. 29(a). The
district court denied the motion. Blalock believes the motion should
have been granted. "In reviewing the denial of a motion for acquittal,
we must determine whether, taking the evidence and all inferences
therefrom in the light most favorable to the government, there is sub-
stantial evidence which supports a determination of guilt beyond a
reasonable doubt." United States v. Whittington, 26 F.3d 456, 464 (4th
Cir. 1994).
Blalock was charged with conspiring, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846, to possess and distribute more than 1,000 kilo-
grams of marijuana in violation of 21 U.S.C. § 841(a)(1). Section
841(a)(1) makes it illegal for a person "knowingly or intentionally to
manufacture, distribute, or dispense, or possess with intent to manu-
facture, distribute, or dispense, a controlled substance." Section
841(b)(1)(A) (Supp. 1996) requires a sentence of not less than ten
years for individuals whose violation of section 841(a)(1) involves
1,000 kilograms or more of marijuana. Section 846 (Supp. 1996)
states that "[a]ny person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the same penal-
ties as those prescribed for the offense, the commission of which was
the object of the attempt or conspiracy."
"The essential elements of a § 846 conspiracy are (1) an agreement
between two or more persons to undertake conduct that would violate
_________________________________________________________________
forfeiture of those items did not constitute punishment for double jeop-
ardy purposes. See United States v. Cullen, 979 F.2d 992, 994-95 (4th
Cir. 1992) (stating that "[t]he removal of an instrument of [an] offense
is not primarily an act of punishment" but instead protects the larger
community from the threat of ongoing criminal activity, and that, conse-
quently, "the Double Jeopardy Clause does not apply to civil forfeitures
where the property itself has been an instrument of criminal activity").
7
the laws of the United States relating to controlled substances and (2)
the defendant's wilful joinder in that agreement." Clark, 928 F.2d at
641-42. Once the government has demonstrated that a conspiracy
existed, "the evidence need only establish a slight connection between
the defendant and the conspiracy to support conviction." United
States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied, 505
U.S. 1228 (1992). Indeed, a defendant may properly be convicted of
conspiracy even if he did not know his coconspirators or the details
of the conspiracy: he need only have known of the conspiracy's pur-
pose and have taken some action, however minor in the overall
scheme of the conspiracy, to participate therein. Id.We hold that the district court did not err when it denied Blalock's
motion for acquittal. The government presented evidence indicating
that, when bales of marijuana arrived, Pam Beauchamp--one of the
conspirators who kept written records of the conspirators' activities--
recorded the amount of marijuana delivered to Blalock using the ini-
tial "P," "Pete" being Lee Roy's nickname. Blalock was once seen
stuffing cash into paper bags with Jimmie, Adam, and Robbie
Blalock. On at least one occasion, Blalock relayed instructions to
Eddie Kyle concerning the routing of marijuana shipments. At
Blalock's request, Kyle dug up a buried vault containing numerous
packages of money. Blalock also asked Kyle whether he could install
secret compartments in a vehicle; members of the conspiracy fre-
quently used secret compartments to carry money and drugs. Such
evidence was more than sufficient to establish the requisite connec-
tion between Blalock and the conspiracy.
C.
Over Lee Roy Blalock's objection, Eddie Kyle was permitted to
testify that Pam Beauchamp had told him that, in the records she kept
concerning the receipt and distribution of marijuana, the letter "P"
stood for "Pete," Lee Roy's nickname. Blalock has contended that the
testimony was inadmissible hearsay and that he was unduly preju-
diced by its admission.
Rule 801(d)(2)(E) of the Federal Rules of Evidence excludes from
the hearsay rule statements made "by a coconspirator of a party dur-
ing the course and in furtherance of the conspiracy." To find that what
8
would otherwise be inadmissible hearsay is admissible under that
rule, a district court must find "(1) that there was a conspiracy involv-
ing the declarant and the party against whom admission of the evi-
dence is sought and (2) that the statements at issue were made during
the course of and in furtherance of that conspiracy." United States v.
Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992). The district court's
findings of fact in that regard are reviewed for clear error; its decision
to admit the statement as evidence is reviewed for an abuse of discre-
tion. Id. "Where there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous."
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
Blalock has not argued that Beauchamp was not one of the conspir-
ators; the evidence presented at Appellants' trial suggested that she
clearly was. Instead, Blalock has argued that Beauchamp's explana-
tion of the records to Kyle was not given "during the course and in
furtherance of the conspiracy." We conclude otherwise. The fact that
the records were being kept at the time the statement was made indi-
cates that the conspiracy was then underway; we therefore find that
the district court did not clearly err when it found that the statement
was made "during the [conspiracy's] course." Because we believe that
one permissible view of Beauchamp's statement is that she deemed
it useful to the conspiracy to educate Kyle, an occasional participant
therein, concerning the conspirators' practices and record-keeping
system, we similarly find no clear error in the district court's finding
that the statement was made "in furtherance of the conspiracy." Given
the obvious relevance of the statement to the question of Blalock's
guilt, we further hold that it was not an abuse of discretion to admit
the statement as evidence.
D.
The district court concluded that, for sentencing purposes,
17,702.63 pounds (8,029.91 kilograms) of marijuana were attributable
to Jimmie Blalock, and 16,740.63 pounds (7,593.55 kilograms) were
attributable to Lee Roy Blalock. Both Appellants have argued that the
district court erred when it made those calculations.
We review the findings of fact made by the district court during
sentencing only for clear error. United States v. Vinson, 886 F.2d 740,
9
742 (4th Cir. 1989), cert. denied, 493 U.S. 1062 (1990). When calcu-
lating the amount of drugs attributable to a person convicted of con-
spiracy, the district court may consider not only the conduct of the
defendant himself, but also the reasonably foreseeable conduct of the
defendant's coconspirators. U.S.S.G. § 1B1.3(a)(1)(B).
At trial, the government presented testimony indicating that, prior
to the government's raid of the conspirators' headquarters on Febru-
ary 1, 1990, between 36 and 48 shipments of marijuana arrived there,
with between 450 and 750 pounds arriving in each shipment. The dis-
trict court took the lower end of those two ranges, multiplied 36 by
450 and determined that 16,200 pounds (approximately 7,350 kilo-
grams) of marijuana were attributable to each Appellant. Other, smal-
ler amounts were attributed to one or both of them as well. Having
carefully reviewed the record, we find that the district court did not
clearly err when it made those calculations.
E.
Section 2D1.1(b)(1) of the Sentencing Guidelines provides that,
"[i]f a dangerous weapon (including a firearm) was possessed" during
the commission of a drug offense, then the defendant's base offense
level should be enhanced by two. The Application Notes elaborate
upon that provision:
The enhancement for weapon possession reflects the
increased danger of violence when drug traffickers possess
weapons. The adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon
was connected with the offense. For example, the enhance-
ment would not be applied if the defendant, arrested at his
residence, had an unloaded hunting rifle in the closet.
App. Note 3 (emphasis added). Both Appellants have contended that
the district court clearly erred when it enhanced their respective sen-
tences pursuant to that provision.
During the sentencing hearing, both men argued that the evidence
did not indicate that they had ever used or carried weapons while car-
10
rying on the activities for which they had been convicted. The district
court nevertheless held that enhancement was appropriate:
I will find that there were some 32 guns, seven of which
were loaded,4 inside the house at Fraternity [Church] Road
[the location where many of the drug shipments were
received and parcelled out for distribution]; that each of the
two defendants were in and out of the house, engaged in the
activities at the house of counting money, which the Court
has already found to be, from this evidence, in furtherance
of the conspiracy. And it occurs to the Court that I believe
there were surveillance lights and cameras around this
house.
The activities of drugs themselves would seem to cause one
to think that it was foreseeable that guns could be used,
when you're talking about hiding in secret compartments
and loads of marijuana. When you're talking about hiding
sums of money in the hundreds or $200,000, . . . it would
not be out of the range of foreseeability to find that a gun
was used in connection with the activities. And I will so find
that [enhancement] is appropriate as to Jimmie Blalock and
Lee Roy Blalock.
We may reject the district court's factual determinations in this regard
only if they are clearly erroneous. Brooks, 957 F.2d at 1148.
Because we do not believe it was "clearly improbable" that the
weapons found at the conspirators' headquarters would be used in fur-
therance of the conspiracy, we hold that the district court did not com-
mit clear error. The presence of thirty-two guns--a number of which
were loaded--on the property where many of Appellants' drug activi-
ties occurred is entirely different from the unloaded hunting rifle to
which the Application Notes make reference. We accordingly reject
Appellants' arguments to the contrary.
_________________________________________________________________
4 The Presentence Investigation Reports indicated that thirteen of the
guns were loaded.
11
III.
For the foregoing reasons, we uphold Appellants' convictions and
sentences.
AFFIRMED.
12