United States v. Mungro , 365 F. App'x 494 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4628
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FREDRICK LAMONT MUNGRO, a/k/a Fred-Fred,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:04-cr-00018-RLV-CH-1)
Argued: December 4, 2009 Decided: February 18, 2010
Before WILKINSON and KING, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: William Robert Terpening, Peter Crane Anderson, ANDERSON
TERPENING, PLLC, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick Lamont Mungro appeals from his conviction by a
jury in North Carolina for conspiracy to possess with intent to
distribute cocaine base and cocaine powder. Mungro presents
three contentions: first, that the district court erred in
denying his motion for a new trial; second, that the court erred
in admitting prosecution evidence; and, third, that his
conviction contravenes the Fifth Amendment’s Double Jeopardy
Clause. As explained below, we reject these contentions and
affirm.
I.
A.
On April 26, 2004, Mungro was indicted, along with ten
others, by a grand jury in the Western District of North
Carolina. The indictment alleged a single offense against
Mungro: conspiracy to possess with intent to distribute at
least 50 grams of cocaine base (commonly known as “crack”), and
at least five kilograms of cocaine powder, in contravention of
21 U.S.C. § 846. According to the indictment, the conspiracy
involved drug trafficking in Catawba County, North Carolina,
from approximately 1995 to April 2004. After Mungro pleaded not
guilty, he was tried in September 2005. Before trial, Mungro
filed a motion in limine, seeking to exclude (1) evidence of his
2
participation in an earlier drug-trafficking conspiracy between
1993 and 1997, which ultimately led to his 1997 conviction in
federal court and his subsequent incarceration; and (2)
testimony regarding seven bags of marijuana and a set of hand
scales seized from Mungro’s vehicle in conjunction with his
arrest on the 2004 indictment. In addition, Mungro sought a
sequestration order from the trial court, pursuant to Federal
Rule of Evidence 615, prohibiting witnesses from hearing the
testimony of other witnesses and from discussing with one
another any matters relating to the trial.
On September 13, 2005, Mungro’s trial commenced and the
district court entered a formal Sequestration Order, which was
sent to the North Carolina jail where most of the witnesses in
Mungro’s case were being housed, with instructions that it be
distributed to the various trial witnesses. 1 After hearing
argument on Mungro’s motion in limine, the court rejected his
effort to exclude evidence. Regarding the earlier conspiracy
prosecution, the court ruled that the Government could introduce
evidence concerning Mungro’s involvement in the earlier
1
In pertinent part, the Sequestration Order prohibited any
witness or potential witness from hearing the testimony of any
other witness, from talking about prior trial testimony with any
witness, and from talking “with anyone who will be or may become
a witness about any subject related to this trial.” J.A. 1759.
(Citations herein to “J.A. ___” refer to the Joint Appendix
filed by the parties in this appeal.)
3
conspiracy offense, as it related to the origins of the
conspiracy charge in the indictment. The court acceded to
Mungro’s request, however, that a limiting instruction be given
to the jury with respect to such evidence. Thus, the court —
both during trial and after closing argument — gave the
following instruction, to which Mungro agreed:
Now, you will receive a special instruction now,
and later, with respect to defendant Frederick Lamont
Mungro. And that instruction is to the effect that he
may not be held accountable for any conduct before
January — on or about January 8, 1997. In other
words, the conduct of his, if any, to which you are
going to have reference with respect to holding him
accountable for the conspiracy, if at all, all that
conduct . . . would have had to have happened after
January 8th, 1997. . . . [A]s to Mr. Mungro, you are
instructed that you may only consider his conduct on —
that is after January 8, 1997.
J.A. 589-90. The court also ruled that evidence regarding the
seized marijuana and set of hand scales was admissible against
Mungro pursuant to Federal Rule of Evidence 404(b), as such
evidence demonstrated his intent to distribute a controlled
substance. The court gave a limiting instruction to the jury
with respect to that evidence as well.
In its case-in-chief, the prosecution presented several
convicted felons who testified to engaging in drug-trafficking
transactions with Mungro, including Warren England, Carlton
Terry, Jamario Allred, Jermaine Anthony, Ernest Squarles, Fred
Shuford, and Cameron Pope. The Government also presented the
4
testimony of two officers who had investigated Mungro. The
Government’s other evidence included Mungro’s telephone records,
as well as evidence regarding the marijuana and hand scales
seized from Mungro’s vehicle at his arrest. Following the
prosecution’s case-in-chief, Mungro presented several defense
witnesses, including his own testimony. His own testimony
included the assertion that most of the prosecution witnesses
were liars and that the marijuana seized from him was for
personal use. After hearing the evidence, arguments, and
instructions, the jury convicted Mungro of the § 846 conspiracy
offense and returned a special verdict finding him responsible
for at least 50 grams of crack.
B.
On April 27, 2006, seven months after his trial, Mungro
filed a motion for a new trial, pursuant to Federal Rule of
Criminal Procedure 33. 2 First, Mungro contended that he had
recently discovered evidence of witness perjury at trial and of
violations of the Sequestration Order. Second, Mungro claimed
that the Government had failed to disclose favorable and
material evidence to him before trial, in contravention of Brady
2
Rule 33(a) provides that, “[u]pon the defendant's motion,
the court may vacate any judgment and grant a new trial if the
interest of justice so requires.” A motion for new trial based
on newly discovered evidence must be filed within three years of
the verdict. See Fed. R. Crim. Proc. 33(b)(1).
5
v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150 (1972).
In support of his post-trial contentions, Mungro submitted
several affidavits of inmates who had been housed with
Government witnesses during his trial. First, he offered the
affidavit of Travis Connor, who asserted that he had observed
witnesses Anthony, Allred, and Shuford “reviewing discovery and
discussing their testimony.” J.A. 1818. Mungro also submitted
the similar affidavit of Wani Logan. Logan swore that, in
addition to the above-named witnesses, he had heard witness
Terry discussing Mungro’s trial with others. In addition, Logan
stated that he had “overhead Jamario Allred talking . . . about
how he was going to lie in the upcoming trial against Fred
Mungro,” because Allred was facing a fifteen-year sentence, and
would “do anything” to be released. Id. at 1825. Next, Mungro
submitted the affidavit of Bon Stroupe, who also stated that he
had seen and heard witnesses Anthony, Allred, Shuford, and Terry
reviewing discovery materials and discussing Mungro’s case.
Moreover, Stroupe asserted that he was Allred’s cellmate, and
that Allred had said he was going to “get his time cut” by
testifying against Mungro. Id. at 1828. Finally, Mungro
submitted the affidavit of Tim Davis, who swore that he
“personally witnessed” Anthony, Allred, Shuford, and Terry
6
discussing the Government’s case against Mungro during the
trial. Id. at 1831.
In support of his claim that the Government had failed to
turn over Brady and Giglio materials, Mungro relied on an
unsigned draft affidavit prepared for another inmate, Chris
Hayes. The Hayes draft recited that Hayes had been incarcerated
in a cell with witness Shuford, who had talked openly about
Mungro’s prosecution. Shuford purportedly told Hayes that three
potential Government witnesses — Dean Weaver, Chris Machichote,
and Sherwood Gaither — intended to lie about Mungro at trial.
According to the Hayes draft, after garnering this information,
Hayes contacted a North Carolina detective, David Woodward, and
an Assistant United States Attorney, Thomas O’Malley. Mungro
also secured and submitted an affidavit from Detective Woodward,
who stated that he and AUSA O’Malley met with Hayes prior to
Mungro’s trial. According to Woodward, Hayes informed them that
Dean Weaver intended to lie at Mungro’s trial. Although
Woodward explained that he found Hayes neither “credible [n]or
reliable,” he and AUSA O’Malley nevertheless met with Weaver,
whom they also deemed unreliable. J.A. 1836. In any event, the
Government did not call Weaver as a trial witness, but did not
inform Mungro of Hayes’s disclosures or the Weaver meeting.
Finally, Mungro supported his motion with an affidavit from
Weaver, stating that witness Allred had reported that he had
7
lied during Mungro’s trial in order to “work down his fifteen
year sentence.” Id. at 1839.
As a result of the new trial motion and its supporting
materials, the district court conducted a four-day evidentiary
hearing on Mungro’s new trial motion, beginning on February 22,
2007. During the hearing, Mungro called the five prisoners
whose affidavits he had submitted in support of his motion.
Their testimony tracked their affidavits (including the Hayes
draft), recounting instances of prosecution witnesses colluding
in jail to “get their stories straight” and to review discovery
materials. Hayes also testified about his pretrial interactions
with Detective Woodward and AUSA O’Malley, as did Detective
Woodward. In short, Mungro’s five witnesses accused four of the
Government’s trial witnesses — Allred, Anthony, Shuford, and
Terry — of violating the Sequestration Order and committing
perjury. In response, each of those prosecution witnesses
testified at the hearing. They explained that the Government
had instructed them not to talk about Mungro’s prosecution prior
to and during trial, denied having violated the Sequestration
Order, and maintained that they had not given perjured
testimony.
C.
By a comprehensive order of May 13, 2008, the district
court analyzed the contentions of the motion and the supporting
8
evidence, and denied the new trial request. See United States
v. Mungro, No. 5:04CR18-1-V (W.D.N.C. 2008) (the “Order”). 3 In
addressing the witnesses relied upon by Mungro, the court found
Chris Hayes’s testimony to “lack all credibility”; noted that
the credibility of both Wani Logan and Travis Connor was
“doubtful”; and deemed the testimony of Mungro’s remaining
witnesses to be “less compelling.” Order 5 n.4, 6. By
contrast, the court found the hearing testimony of Government
witness Fred Shuford to be especially credible, particularly
because he had little to gain from lying and his testimony “bore
the earmarks of truthfulness.” Id. at 6 n.6. In addition, the
court found that “[t]he weight of the totality of the evidence
of violations of the sequestration order is further weakened by
inconsistencies and apparent bias.” Id. at 7. According to the
court, “at most, the testimony of Connor, Davis, Stroupe, and
Hayes shows that the four government witnesses had the
opportunity to violate the Court’s sequestration order.” Id. at
8.
Moreover, the district court determined that, even if
Mungro could establish that the Sequestration Order had been
violated, he was not entitled to a new trial. Specifically, the
court found that the new evidence, even if true, was unlikely to
3
The district court’s Order can be found at J.A. 2921-57.
9
result in an acquittal of Mungro in a new trial. See Order 14.
For example, the court concluded that the bulk of the
inculpatory evidence against Mungro came from the testimony of
Carlton Terry and Ernest Squarles, whose testimony had been
corroborated by telephone records. The court observed that,
because Mungro had impeached Terry at trial with evidence
similar to that presented in his motion for a new trial, any
added impeachment value was minimal. Finally, the court
emphasized that Allred, Anthony, and Terry had testified to
purchasing differing quantities of drugs from Mungro in
different transactions. In short, the Order concluded that:
The evidence of sequestration order violations is weak
and adds little impeachment value to witnesses who
were already impeached at trial. Even as the Court
strains to examine any potential occurrence of
impropriety, it cannot conclude that this new evidence
would likely have led to the acquittal of the
Defendant. These three witnesses testified to
independent transactions with the Defendant, and to
the extent details of the transactions overlapped,
these details were either tangential or overwhelmed by
corroborative evidence.
Id. at 17 (footnote omitted).
Turning to the alleged Brady and Giglio violations, the
district court discussed whether the Government was obliged to
turn over the statements of Chris Hayes. The court credited
Detective Woodward over Hayes on the content of those
statements, finding that Hayes had a “poor reputation and
character for truthfulness,” as evidenced by his “zeal to
10
cooperate, sometimes at the expense of the truth.” Order 23;
see also id. 25 (“Hayes is willing to play fast and loose with
the truth.”). Accordingly, the court found that Hayes had
disclosed only that Dean Weaver was going to lie at trial, and
determined that the Government was able to derive from that
disclosure that Weaver “was not likely to be truthful.” Id. at
26. That determination, however, “had no direct relevance” to
Mungro’s prosecution, which rested primarily on the testimony of
Terry and Quarles, as well as Mungro’s telephone records. Id.
And the court rejected Mungro’s Brady contention to the extent
it was predicated on what might have been uncovered had Mungro
been advised of Weaver’s potential credibility problems before
trial. First, the court concluded that the Government’s
interviews with Hayes and Weaver did not lead to Brady or Giglio
materials, as those interviews did not provide “any grounds to
suspect that Weaver knew of any other witnesses who acted
improperly.” Id. at 28. Second, the court concluded that any
evidence that Weaver might have provided to Mungro was
immaterial because Weaver lacked credibility. See id. at 29.
Finally, the district court separately considered the
implications of the Government’s use of potentially perjured
testimony by Jamario Allred. See Order 32 (citing United States
v. Agurs, 427 U.S. 97 (1976)). The court concluded that the
allegations of perjury by Allred “substantially lack[ed]
11
credibility,” that the trial testimony of Allred was “both
tangential and impeached,” and that, once again, the “crux of
the case against Defendant came by way of testimony by Terry,
cell-phone records of Defendant, and the inability of the
Defendant to explain away his connections . . . with Terry.”
Id. at 36. Accordingly, as with the other bases for the new
trial motion, the court concluded that additional evidence of
alleged witness perjury would not have affected the result of
the trial. Consequently, the court denied Mungro’s request for
a new trial and sentenced him to life imprisonment. Mungro has
noticed this appeal, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We review for abuse of discretion a district court’s denial
of a motion for a new trial, even when predicated on a Brady or
Giglio violation. See United States v. Stokes, 261 F.3d 496,
502 (4th Cir. 2001). We “may not substitute [our] judgment for
that of the district court,” but, instead, “must determine
whether the court’s exercise of discretion . . . was arbitrary
or capricious.” United States v. Mason, 52 F.3d 1286, 1289 (4th
Cir. 1995). We also review for abuse of discretion a trial
court’s rulings on the admissibility of evidence. See United
States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). Indeed, a
12
trial court’s decision to admit evidence “will be upheld so long
as it is not arbitrary or irrational.” United States v. Hill,
322 F.3d 301, 306 (4th Cir. 2003) (internal quotation marks
omitted). Finally, we review unpreserved issues, including
those relating to the Double Jeopardy Clause of the Fifth
Amendment, for plain error only. See United States v. Jarvis, 7
F.3d 404, 410 (4th Cir. 1993).
III.
Mungro presents three contentions in this appeal. First,
he maintains that the district court erred in denying his motion
for a new trial. Second, he contends that the court abused its
discretion in admitting certain trial evidence. Finally, Mungro
asserts that his prosecution contravened the Double Jeopardy
Clause, in light of the drug conspiracy offense for which he was
convicted in 1997. We address these contentions in turn.
A.
Mungro’s first appellate contention, that the district
court erred in denying his motion for a new trial, has two
aspects. First, he maintains that the court should have awarded
a new trial on the basis of newly discovered evidence of witness
perjury and violations of the Sequestration Order, as shown at
the post-trial hearing. Second, Mungro maintains that the court
13
should have awarded him a new trial as a result of the pretrial
Brady and Giglio violations.
1.
We first address Mungro’s assertion that he was entitled to
a new trial on the basis of newly discovered evidence. We
utilize a five-part test in evaluating such a motion: (1) the
evidence must actually be newly discovered; (2) the court must
be able to infer due diligence on the part of the movant; (3)
the evidence must be more than merely cumulative or impeaching;
(4) the evidence must be material; and (5) the evidence must be
of the type that would “probably result in acquittal at a new
trial.” United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989). Notably, newly discovered evidence that lacks
credibility is unlikely to lead to an acquittal at a new trial.
See United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir.
2006).
Mungro asserts that a new trial was warranted by his post-
trial showing that multiple prosecution witnesses had violated
the Sequestration Order and presented perjured testimony. Under
our Chavis precedent, however, these allegations did not entitle
Mungro to a new trial. First, Mungro faces an insurmountable
hurdle with respect to the third Chavis factor, as his
allegation that the prosecution witnesses lied at trial is
merely cumulative and impeaching. Whether the prosecution’s
14
witnesses lied about their drug transactions with Mungro would
merely assist in impeaching those witnesses, not in disproving
whether Mungro actually engaged in such transactions. See
United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993)
(“This circuit has emphasized that new evidence going only to
the credibility of a witness does not generally warrant the
granting of a new trial.”). Moreover, as the Order explained,
Mungro’s allegations with respect to witness Carlton Terry were
simply cumulative, as Mungro had impeached Terry at trial with
evidence similar to that relied on in his new trial request.
See Order 15.
More significantly, Mungro cannot overcome the final hurdle
of the Chavis test, i.e., that the newly discovered evidence
would “probably result” in acquittal at a new trial. As the
district court concluded in its Order, Mungro’s prosecution was
primarily predicated on the evidence of Terry and Earnest
Squarles, and the corroboration of their testimony by telephone
records. Simply put, nothing advanced by Mungro in the new
trial proceedings would undercut Squarles’s testimony or the
corroborating telephone records. Moreover, the court
discredited the bulk of the evidence used by Mungro in support
of his new trial motion. That credibility determination stands
in stark contrast to the court’s finding, for example, that the
testimony of one of the Government’s witnesses at the new trial
15
hearing, Fred Shuford, bore the “earmarks of truthfulness.”
Order at 6 n.6. Finally, the court determined that the
indication of “overlap” in the drug transaction evidence against
Mungro was weak, as the alleged perjurers had testified to
different quantities of crack as part of different transactions.
In such circumstances, the court did not abuse its discretion in
denying the new trial motion, to the extent it was predicated on
newly discovered evidence of witness perjury and violations of
the Sequestration Order.
2.
We turn next to the second aspect of Mungro’s new trial
contention — that he was entitled to relief because the
Government contravened its Brady and Giglio obligations. To
secure a new trial on such grounds, Mungro had the burden of
showing that (1) the undisclosed evidence was favorable to him;
(2) the evidence was material; and (3) the prosecution possessed
the evidence yet failed to disclose it. See United States v.
Stokes, 261 F.3d 496, 502 (4th Cir. 2001). 4 To be “material,”
4
The Government points out that the Brady contention more
accurately involves the Government’s obligations under Giglio,
as Mungro would have used the sought-after evidence for
impeachment purposes. See Giglio v. United States, 405 U.S.
150, 154-55 (1972) (including impeachment evidence within scope
of Brady materials). Because Giglio was simply an extension of
the Brady rule, however, we are content to refer to this
contention as the “Brady contention.”
16
there must be a reasonable probability that disclosure of the
evidence in question would have produced a different outcome.
See id.According to Mungro, the Government contravened its Brady
obligations when it failed to disclose or fully investigate the
Hayes disclosure that several of its witnesses planned to lie at
trial. Mungro, however, is unable to overcome two significant
obstacles to his Brady contention: first, that the district
court found the evidence in support of the new trial motion,
including that of Hayes himself, to lack credibility; and,
second, that the supposed perjurer identified by Hayes, Dean
Weaver, did not testify at trial.
First, Mungro’s Brady contention fails with respect to the
materiality analysis, as the district court found that the
evidence in support of his new trial motion lacked credibility.
The Brady claim rests primarily on Hayes, whom the court found
to be entirely unreliable. The court explained that Hayes had
demonstrated a “zeal to cooperate,” even at the expense of the
truth, and that he had lied to the Government on prior
occasions. Order 23-25. In addition, the court emphasized that
Hayes’s testimony was not helpful to Mungro, as Hayes confirmed
that Mungro had been involved in drug transactions with Carlton
Terry. Id. at 26.
17
Second, the Brady contention fails because Weaver, the
alleged perjurer identified by Hayes, did not testify at
Mungro’s trial. 5 Indeed, the district court found that the
Government had never intended to use Weaver as a trial witness.
See Order 28 n.31. Rather, Weaver was on the prosecution’s
witness list as a potential witness against a codefendant who
pleaded guilty before trial. As such, even if Weaver intended
to lie at trial, Mungro failed to show how such a disclosure
would have aided his defense. Indeed, the prosecution’s case
against Mungro was predicated primarily on the testimony of
Terry and Squarles, as well as corroborating telephone records.
And Hayes’s statement that Weaver intended to lie simply does
not undercut that evidence. Simply put, Hayes’s disclosure, as
well as the Government’s determination that Hayes and Weaver
were unreliable, did not provide the prosecution with “any
grounds to suspect that Weaver knew of any other witnesses who
acted improperly.” Id. at 28. Finally, the court found that
Weaver, like Hayes, lacked credibility, and that any evidence
that Weaver might have provided the defense was thus immaterial.
In these circumstances, particularly on the evidence presented
5
In contrast to Mungro’s assertion about Hayes, the
district court found that Hayes had only revealed to Detective
Woodward and AUSA O’Malley that Dean Weaver — not other
Government witnesses — intended to lie at trial. See Order 26.
18
at the new trial hearing and the credibility determinations
subsequently made in the Order, the court did not abuse its
discretion in denying Mungro’s motion for a new trial.
B.
Mungro next contends that the district court abused its
discretion in admitting certain trial evidence. Rule 404(b)
provides that “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to
show action in conformity therewith.” Such evidence — commonly
called “similar act” evidence — may be admissible, however, “for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Fed. R. Evid. 404(b). Evidence sought to be
admitted under Rule 404(b) must also satisfy Rule 403, which
provides a limited bar to otherwise-admissible evidence. See
United States v. Siegel, 536 F.3d 306, 319 (4th Cir. 2008). 6 We
have articulated a four-prong test for assessing the
admissibility of evidence under Rule 404(b):
(1) the prior-act evidence must be relevant to an
issue other than character, such as intent; (2) it
must be necessary to prove an element of the crime
6
Pursuant to Rule 403, relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”
19
charged; (3) it must be reliable; and (4) . . . its
probative value must not be substantially outweighed
by its prejudicial nature.
United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)
(internal quotation marks omitted). Importantly, Rule 404(b) is
“an inclusive rule, admitting all evidence of other crimes or
acts except that which tends to prove only criminal
disposition.” United States v. Young, 248 F.3d 260, 271–72 (4th
Cir. 2001) (emphasis added) (internal quotation marks omitted).
Mungro maintains that the district court abused its
discretion in admitting evidence regarding the bags of marijuana
and set of hand scales seized from Mungro’s vehicle when he was
arrested. He argues, first, that this evidence was irrelevant,
and, second, that the prejudicial nature of the evidence
substantially outweighed its probative value. That Mungro
possessed individually bagged marijuana and the set of hand
scales, however, tends to prove his intent to distribute a
controlled substance, the absence of mistake, and his guilty
knowledge, which were at issue because Mungro was charged with
possession with intent to distribute controlled substances.
Mungro’s assertion, as he testified at trial, that he possessed
20
the marijuana for personal use only presented a credibility
issue for the jury, not an issue of admissibility. 7
Finally, on the Rule 403 balancing test, Mungro has failed
to show that the similar act evidence was unfairly prejudicial.
As the Government contends, evidence showing Mungro’s intent to
distribute marijuana — during the time frame and in the
geographic location of the alleged conspiracy — was probative of
his intent to possess and distribute other controlled
substances. Moreover, the district court properly gave a
limiting instruction to the jury, explaining that Mungro was not
being tried for a “marijuana charge,” and that any evidence that
Mungro possessed marijuana “should never be taken as indicating
directly whether the defendant committed the offense charged in
the indictment.” J.A. 458-59. Under these circumstances, the
court did not abuse its discretion in admitting evidence of the
marijuana and hand scales seized from Mungro upon his arrest.
7
It is also of no moment that the seven bags seized at
Mungro’s arrest contained marijuana, whereas Mungro was being
prosecuted for distributing crack and cocaine powder. See
United States v. Hawkins, 548 F.3d 1143, 1147 (8th Cir. 2008)
(ruling that Rule 404(b) evidence “need not involve the same
illegal drug as the charged offense” (internal quotation marks
omitted); United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.
1995) (concluding that prior marijuana conviction could be
admitted under Rule 404(b) in prosecution for distributing
cocaine and heroin).
21
C.
Finally, Mungro contends that his conviction contravenes
the Double Jeopardy Clause of the Fifth Amendment, which
“prohibits successive prosecution or multiple punishments for
‘the same offence.’” Witte v. United States, 515 U.S. 389, 391
(1995). 8 Thus, the Double Jeopardy Clause forbids the
prosecution from dividing “a single criminal conspiracy into
multiple violations of a conspiracy statute.” United States v.
Cole, 293 F.3d 153, 158 (4th Cir. 2002) (internal quotation
marks omitted). Mungro predicates this unpreserved contention
on the fact that he was convicted in 1997 for his involvement in
a crack conspiracy that took place between 1993 and 1997 (the
“first conspiracy”), and that the conspiracy alleged in the
indictment occurred between 1995 and April 2004 (the “second
conspiracy”). As a result of the “overlap” from 1995 to 1997,
Mungro contends that the district court “improperly permitted
[him] to be prosecuted twice for substantially the same crime.”
Br. of Appellant 62.
At trial, however, Mungro objected on double jeopardy
grounds only to the admission of certain evidence concerning the
two-year overlap. He did not, by contrast, move to dismiss the
8
The Double Jeopardy Clause provides: “nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V.
22
indictment or assert that his prosecution for the second
conspiracy somehow contravened the Double Jeopardy Clause. We
have already determined that a double jeopardy challenge must be
raised in the district court or it will be forfeited on appeal.
See United States v. Jarvis, 7 F.3d 404, 409 (4th Cir. 1993).
Because Mungro failed to preserve this issue in the district
court, we review it for plain error only. Id. at 410. Under
the plain error standard, Mungro bears the burden of showing
that (1) an error occurred, (2) the error was plain, and (3) it
affected his substantial rights. See United States v. Olano,
507 U.S. 725, 732 (1993). If he makes such a showing, the
correction of such error lies within our discretion, which we
“should not exercise . . . unless the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and alterations
omitted).
Under the plain error standard of review, Mungro’s double
jeopardy contention plainly lacks merit. In assessing whether
successive conspiracy charges constitute the “same offense” for
purposes of the Double Jeopardy Clause, we employ a “totality of
the circumstances" test that focuses on five factors: (1) the
time periods covered by the two conspiracies; (2) the places
where the conspiracies are alleged to have occurred; (3) the
persons charged as co-conspirators; (4) the overt acts allegedly
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committed in furtherance of the two conspiracies, or any other
descriptions of the offenses charged that indicate the nature or
scope of the activities being prosecuted; and (5) the
substantive statutes alleged. See United States v. Ragins, 840
F.2d 1184, 1888-89 (4th Cir. 1988).
The Government is correct in asserting that, under the
Ragins test, there is no indication that Mungro’s prosecution
was plainly inconsistent with the Double Jeopardy Clause.
First, although the conspiracies slightly overlap time-wise,
none of the overt acts alleged in the second conspiracy occurred
during the first conspiracy. On the third Ragins factor, Mungro
is the only common defendant among the sixteen defendants in the
first conspiracy and the eleven defendants in the second
conspiracy. 9 On the fourth Ragins factor, the Government
concedes that both conspiracies involved the distribution of
crack and powder cocaine, but maintains that the first
conspiracy involved a supplier from Georgia, whereas the second
conspiracy involved a supplier from North Carolina. In sum,
only two of the Ragins factors — the second and fifth — weigh
in Mungro’s favor, that is, both conspiracies concern criminal
9
The prosecution emphasizes, for example, that Mungro did
not even meet one of his primary coconspirators in the second
conspiracy (Carlton Terry) until he had been incarcerated for
the first conspiracy.
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activity in Catawba County and involve violations of 21 U.S.C.
§ 846.
In sum, our application of the Ragins factors in this
context does not suggest that Mungro’s conviction on the first
conspiracy was for the “same offence” as his prosecution for the
second conspiracy. Moreover, the jury was carefully instructed
on the limited time frame that it could consider regarding
Mungro’s alleged participation in the second conspiracy. See
J.A. 590 (“[A]s to Mr. Mungro, you are instructed that you may
only consider his conduct on — that is after January 8, 1997.”).
Under these circumstances, the district court did not err in
allowing Mungro’s prosecution on the second conspiracy to
proceed. As a result, plain error has not been shown, and the
double jeopardy contention must also be rejected.
IV.
Pursuant to the foregoing, we reject Mungro’s contentions
and affirm.
AFFIRMED
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