United States v. Lois McClung ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4055
LOIS ANN MCCLUNG,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4056
STEPHANIE LANE MCCLUNG,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4367
LOIS ANN MCCLUNG,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-97-31)
Argued: October 30, 1998
Decided: January 28, 1999
Before WILKINS and NIEMEYER, Circuit Judges, and
FRIEDMAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Walter Franklin Green, IV, GREEN & O'DONNELL,
Harrisonburg, Virginia, for Appellant Stephanie McClung; Danita
Sue Alt, Harrisonburg, Virginia, for Appellant Lois McClung. Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Vir-
ginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States
Attorney, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants Lois Ann McClung and Stephanie Lane McClung were
convicted by a jury of conspiracy to distribute marijuana in violation
of Title 21, United States Code Section 846. The jury also convicted
Lois McClung of money laundering in violation of Title 18, United
States Code Sections 1957 and 2.* Through a subsequent special ver-
dict, the jury found that certain real and personal property of Appel-
lants was subject to forfeiture pursuant to Title 21, United States Code
_________________________________________________________________
*A third family member, Jeffrey Preston McClung, was convicted of
similar offenses in the same trial, but had not been sentenced at the time
of oral argument.
2
Section 853. Lois McClung appeals her convictions for money laun-
dering and conspiracy to distribute marijuana, and the corresponding
forfeiture of real and personal property. Stephanie McClung appeals
her conviction for conspiracy to distribute marijuana. Finding no
error, we affirm.
I.
On April 23, 1997, the Grand Jury returned a multiple count indict-
ment charging Appellants and others with crimes relating to the distri-
bution of marijuana, money laundering, and criminal forfeiture.
During the period of the alleged drug activity, Lois McClung resided
with her children, Angela, Stephanie and Jeffrey, in the family home.
The charges resulted in part from the execution of a search warrant
at Appellants' residence on September 14, 1995. Pursuant to the war-
rant, police officers searched the residence for drugs, drug parapher-
nalia, and documents or anything related to the distribution of
controlled substances.
Among the items recovered during the search were marijuana and
marijuana stems, marijuana smoking devices, a triple beam scale and
approximately 74 firearms. A combination safe located in the base-
ment of the house contained white containers with red tops. Each of
the containers held psilocybin mushrooms, United States currency, or
additional marijuana smoking pipes. Marijuana buds and a jar of
coins were also found in the safe.
The police officers seized approximately $820 in United States cur-
rency and an envelope marked "Stephanie" containing another $600
from a nightstand in one of the upstairs bedrooms. No marijuana or
drug paraphernalia was found on the first floor of the house. Testi-
mony at trial established that the children stayed upstairs in the house
while Lois McClung and her companion lived downstairs. The chil-
dren were responsible for their own cleaning and laundry. Lois
McClung did not carry on any activities that would have placed her
in the children's rooms.
The jury retired to deliberate at 5:45 p.m. on Saturday, September
27, 1997, and returned a guilty verdict later the same evening. The
jury was then released and instructed to return on Monday to consider
3
the forfeiture issues. On September 29, 1997, the jury returned a spe-
cial verdict forfeiting Appellants' rights, title and interest in certain
real and personal property to the United States. Lois McClung filed
a motion for judgement of acquittal on October 6, 1997, and Stepha-
nie McClung filed a similar motion on October 7, 1997. Both motions
were denied by the district court on October 21, 1997, and the Appel-
lants were sentenced on January 9, 1998.
II.
Appellants raise numerous issues on appeal, some jointly and oth-
ers individually. Since it is difficult to determine which issue has been
raised by whom, the court will address all issues as if raised by both
Appellants unless the record clearly indicates otherwise. Although
Appellants raise nine separate issues, the assignments of error are bet-
ter organized and treated as the following six issues. First, Lois
McClung claims the evidence was insufficient to support a conviction
of either money laundering or conspiracy to distribute marijuana, or
to support forfeiture of her house and approximately $24,000 in
United States currency seized from the basement safe. Next, Stepha-
nie McClung claims the district court erred in allowing the presenta-
tion in the federal prosecution of the same evidence on which she was
acquitted for possession of marijuana in previous state court proceed-
ings. Appellants further assign error to four district court actions: (1)
the denial of a post-verdict motion for a mistrial, and failure to inves-
tigate alleged jury misconduct; (2) the refusal to allow testimony of
a witness called by the defense; (3) the crafting of an answer to a
question by the jury; and (4) allowing the bailiff to converse and
interact with the jury.
A.
Lois McClung submits that the evidence was insufficient to support
a conviction of either money laundering or conspiracy to distribute
marijuana. She further contends that the evidence was insufficient to
support forfeiture of her property interests. When assessing the suffi-
ciency of the evidence of a criminal conviction on direct review, the
jury verdict "must be sustained if there is substantial evidence, taking
the view most favorable to the Government, to support it." See
Jackson v. Virginia, 443 U.S. 307 (1979); Glasser v. United States,
4
315 U.S. 60, 80 (1942); see also United States v. Hudgins, 120 F.3d
483, 486 (4th Cir. 1997). The Government is afforded all reasonable
inferences which flow from the circumstantial and direct evidence
brought before the district court. United States v. Burgos, 94 F.3d
849, 858 (4th Cir. 1996) (en banc), cert. denied , ___ U.S. ___, 117
S.Ct. 1087 (1997). In reviewing the sufficiency of the evidence, this
court does not weigh the evidence nor consider the credibility of wit-
nesses. See United States v. Arrington, 719 F.2d 701, 704 (4th Cir.
1983).
Lois McClung's sufficiency of the evidence claim is unavailing.
The record contains ample evidence which supports her convictions,
not only from Government witnesses and exhibits, but also in the
form of testimony from Appellant and her son, Jeffrey McClung. Tes-
timony presented at trial established that as early as 1993, between
fifteen and twenty marijuana sales were made from the McClung resi-
dence on an average weekend night. Marijuana buds, psilocybin
mushrooms and approximately $24,000 in United States currency
were found in a locked combination safe in the basement. The safe
gave off a "fairly strong" odor of marijuana when opened. Jeffrey
McClung and Lois McClung were the only two individuals who knew
the combination to the safe.
Lois McClung and Jeffrey McClung gave contradictory statements
about the origins of the money in the safe. At trial, Lois McClung tes-
tified that she periodically placed money in the safe when the contri-
butions for monthly expenses from the other occupants of the house
exceeded the actual bills. Jeffrey McClung had previously told the
police that the money in the safe belonged to his mother, but that he
put it in the safe to keep her from gambling it away. A Government
witness testified that he saw Jeffrey McClung take money from the
safe, and that there were drugs in the safe at the time. Contradictory
statements were also given about $2,300 in United States currency
found in Jeffrey McClung's bedroom. Lois McClung was aware that
Jeffrey McClung possessed a large sum of money, and claimed that
it came from her pawn shop operation. Jeffrey McClung admitted the
$2,300 constituted proceeds of marijuana sales, and stated that he had
not held a legitimate job for two years prior to the search.
In addition, the record contains evidence of numerous monetary
transactions made by or with the assistance of Lois McClung to
5
accomplish the purchase of a Toyota four-wheel drive vehicle for Jef-
frey McClung in October 1994. Again, Lois McClung and Jeffrey
McClung offered contradictory statements concerning the money
used for the vehicle's purchase. According to Lois McClung, part of
the money came from a certificate of deposit she cashed, and the rest
from Jeffrey McClung through the sale of his car. Jeffrey McClung
stated the entire sum came from Lois McClung. Yet at trial, a sub-
distributor for Jeffrey McClung testified that he was told by Jeffrey
McClung the Toyota had been purchased for cash with the joint pro-
ceeds of their marijuana sales.
Thus, taking the evidence in the light most favorable to the Gov-
ernment, we conclude that a rational jury could have found Lois
McClung guilty of money laundering and conspiracy to distribute
marijuana. See Burgos, 94 F.3d at 861 ("[A] defendant's connection
to the conspiracy merely need be "slight."). Turning to Lois
McClung's claim that the evidence was insufficient to support forfei-
ture of her house and the currency in the basement safe, we find the
evidence as reviewed above sufficient for a rational jury to have
returned a verdict in favor of the Government on the forfeiture issue.
B.
Stephanie McClung argues that her acquittal for possession of mar-
ijuana in state court precluded the presentation of the same evidence
in the federal proceedings. Stephanie McClung's argument is ambigu-
ous at best, referencing collateral estoppel, double jeopardy, and issue
preclusion, without setting forth a strong basis for any argument.
The difficulty with Stephanie McClung's argument, if it is indeed
one of collateral estoppel, is that one need not have had constructive
possession of marijuana to be involved in a conspiracy to distribute
marijuana. In addition, the rather bare statement in Appellant's brief
that "Stephanie was faced with identical evidence and facts that . . .
failed to convict her in State criminal proceedings," lends itself to an
argument of double jeopardy, but no such argument was made.
The double jeopardy clause provides that no person shall "be sub-
ject for the same offence to be twice put in jeopardy of life or limb."
U.S. CONST. amend. V. However, as the United States Supreme Court
6
noted in United States v. Felix, 503 U.S. 378, 389-90 (1992), the dou-
ble jeopardy clause does not bar a prosecution for conspiracy merely
because some of the alleged overt acts of the conspiracy have already
been prosecuted. See, e.g., United States v. Bayer, 331 U.S. 532(1947) (Court-martial conviction did not bar subsequent federal pros-
ecution for conspiracy based on same underlying incidents);
Pinkerton v. United States, 328 U.S. 640, 643 (1946) ("[T]he commis-
sion of the substantive offense and a conspiracy to commit it are sepa-
rate and distinct offenses ... [a]nd the plea of double jeopardy is no
defense to a conviction for both offenses"). See also United States v.
Williams, 155 F.3d 418, 420 (4th Cir. 1998). Furthermore, the Courts
have long held that an individual may be prosecuted for virtually
identical offenses in both the state and federal sovereigns. "An act
denounced as a crime by both national and state sovereignties is an
offense against the peace and dignity of both and may be punished by
each." United States v. Lanza, 260 U.S. 377, 382 (1922). See also
United States v. Iaquinta, 674 F.2d 260, 264 n.9 (4th Cir. 1982).
There is no evidence before the Court relating to the state court
proceedings, or supporting arguments of double jeopardy or collateral
estoppel. We find Appellant's argument indiscernible and without
merit.
C.
Appellants jointly assign error to the district court's denial of a
post-verdict motion for a mistrial based on an alleged undisclosed,
indirect relationship between a juror and a defense witness. We
review the district court's denial of a motion for a mistrial for abuse
of discretion. United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.)
(Denial of motion for mistrial "will be disturbed only under the most
extraordinary of circumstances."), cert. denied, ___ U.S. ___, 117
S.Ct. 2525 (1997). In order to demonstrate an abuse of discretion, the
defendants must show prejudice. United States v. West, 877 F.2d 281,
288 (4th Cir. 1989).
Appellants contend that one of the jurors failed to disclose an indi-
rect relationship with a defense witness, Mark Semones ("Semones"),
during voir dire. The record does not establish when Appellants'
counsel first learned of the alleged relationship, and Appellants did
7
not offer any evidence regarding the relationship in the district court.
Semones testified third in a series of eight witnesses on Saturday,
September 27, 1997. All of the testimony was completed by 12:15
p.m., and the jury retired to deliberate at 5:45 p.m.
On Monday morning, a conference was held in chambers to discuss
the proposed charge for the forfeiture deliberations. Juror truthfulness
in response to voir dire questions was not discussed or even men-
tioned. Later the same day while deliberating the forfeiture issue, the
jury requested a dictionary. A second conference was held to discuss
the jury's request. During the conference, the district court informed
counsel that the jury had expressed concern about retribution. The
court's comment prompted counsel for Jeffrey McClung to state, "we
have a juror on there where we didn't discover until over the weekend
who did not respond truthfully to the questions you asked him about
knowing the parties." Appellants then moved for a mistrial.
Counsel offered a confusing rendition of the alleged relationship
between the juror and the witness, never establishing precisely what
the relationship was. The district court overruled Appellants' motion
based on its suspicion of the timing in which the motion was made,
and the fact that the information related to the court came from indi-
viduals with an obvious bias or prejudice. Appellants failed to note
an objection to the district court's ruling.
Where juror bias is timely reported to the court before the jury has
retired to deliberate, the court has the opportunity take the appropriate
action, such as seating an alternate juror. See United States v. Hayden,
85 F.3d 153 (4th Cir. 1996). In this case, the district court was faced
with a belated revelation of possible juror bias which was unsup-
ported by evidence. Appellants had ample time to discover any possi-
ble bias and disclose the same to the court before the jury retired to
deliberate. The witness in question testified third in a series of eight
witnesses on the final morning of trial. Testimony concluded shortly
after noon, and the jury did not retire until 5:45 p.m. It is suspicious
that Appellants failed to communicate the information to their counsel
prior to the case being sent to the jury.
Furthermore, Appellants have failed to show they were prejudiced
by the district court's decision. Appellants argue on appeal that the
8
district court should have examined the juror to determine whether the
juror had a bias or prejudice towards Appellants. Appellants errone-
ously submit that the district court refused to question the juror during
the proceedings in lower court. Appellants made no such request of
the court. "Where an attack is made upon the integrity of the trial by
reason of alleged misconduct on the part of a juror in failing to dis-
close information pertinent to the issue of prejudice, the defendant's
burden of proof must be sustained not as a matter of speculation, but
as a demonstrable reality." United States v. Whiting, 538 F.2d 220,
223 (8th Cir. 1976). Appellants offer nothing more than speculation
that the juror was prejudiced. The circumstances relating to the denial
of the motion for mistrial are not so extraordinary that we must dis-
turb the district court's ruling.
D.
Appellants next argue that the district court refused to give the
defense adequate time to present its case to the jury. The Government
contends that the district court simply foreclosed duplicative reexami-
nation of a witness, and therefore committed no error. A defendant is
entitled to the opportunity to present competent, relevant evidence on
the issues being tried. See United States v. Hamling, 418 U.S. 87, 125
(1974). The district court, however, "retains considerable latitude
even with admittedly relevant evidence in rejecting that which is
cumulative...." Id. at 127. Thus, evidentiary rulings foreclosing dupli-
cative or cumulative testimony will be disturbed only for abuse of dis-
cretion. Id.; see also United States v. Hassan-El, 5 F.3d 726, 731 (4th
Cir. 1993) (Reasonable limitations on presentation of evidence per-
missible.).
The testimony about which Appellants complain relates to serial
numbers on "buy money" used by narcotics detectives in controlled
buys of marijuana from Jeffrey McClung. Two Government witnesses
were thoroughly examined by the Government and cross-examined by
counsel for Lois McClung on the issue during the course of the Gov-
ernment's case. Both witnesses testified that the serial numbers on the
"buy money" were recorded before each purchase, and one witness
testified that only one bill from a controlled buy was located in the
safe during the search of the McClung residence.
9
During Appellants' case in chief, counsel for Lois McClung
attempted to elicit the same testimony relating to the "buy money"
from the same two witnesses. Out of the presence of the jury, counsel
was provided an opportunity to explain to the court the theory neces-
sitating repetition of the serial numbers. The court noted the evidence
was already before the jury, and declined to permit further examina-
tion. Counsel for both the Government and Appellants were cautioned
about duplicative testimony and evidence, and the proceedings con-
tinued.
Counsel for Lois McClung thoroughly cross-examined the Govern-
ment witnesses on the "buy money" and the procedures used by the
police officers during the controlled buys from Jeffrey McClung. By
reiterating the testimony on the serial numbers, counsel sought to
establish on direct examination that the single bill from the "buy
money" could have been placed in the safe when Jeffrey McClung
gave his monthly contribution to the household. The district court
noted that the evidence on which counsel relied for the theory was
already before the court. Based on the record, we find the district
court was well within its discretion to foreclose cumulative testimony
relating to the "buy money" serial numbers.
E.
Appellants next submit that the district court erred in crafting an
answer to the jury's question regarding whether knowledge only con-
stitutes conspiracy. The necessity, extent, and character of supple-
mental jury instructions are a matter within the discretion of the
district court, United States v. Horton, 921 F.2d 540, 547 (4th Cir.
1990), cert. denied, 501 U.S. 1234 (1991), and we review the district
court's decision to give a supplemental instruction and the specific
words chosen for abuse of that discretion. United States v. Smith, 62
F.3d 641, 646 (4th Cir. 1995), citing Horton, 921 F.2d at 546. In
reviewing the district court's response, we inquire as to whether the
instruction responded to the jury's question "fairly and accurately
without creating prejudice." Smith, 62 F.3d at 646, citing United
States v. United Medical and Surgical Supply Corp. , 989 F.2d 1390,
1407 (4th Cir.1993). An error requires reversal only if it is prejudicial
in the context of the record as a whole. United Medical, 989 F.2d at
1407.
10
The jury retired to deliberate at 5:45 p.m. on Saturday, September
27, 1997. During the course of the jury's deliberations, four questions
were submitted to the court, the first three of which passed without
incident. The fourth question submitted by the jury posed the ques-
tion, "Does knowledge constitute conspiracy?". Appellants' counsel,
based on their interpretation of the jury's question, recommended a
one word reply - "no". The Government suggested repeating the por-
tion of the charge that set forth the elements of conspiracy. The dis-
trict court declined to simply answer "no" because it was not a proper
statement of the law. Instead, the court answered the question by
repeating the elements of conspiracy. In writing the court responded,
"Conspiracy requires proof beyond a reasonable doubt after consider-
ation of all the evidence of two elements as follows: First, that the
conspiracy described in the indictment was willfully formed and was
existing at or about the time alleged. Second, that the accused know-
ingly became a member of a conspiracy."
Counsel for Lois McClung agreed with the answer provided to the
jury, while counsel for Stephanie McClung did not agree. When a
party fails to note an objection to a ruling at trial, appellate review of
the issue is forfeited. See United States v. Maxton, 940 F.2d 103, 105
(4th Cir.), cert. denied, 502 U.S. 949 (1991). Regardless, we are of
the opinion that the district court fairly and accurately responded to
the jury's question by providing the jury with the elements of conspir-
acy. The instruction was a correct statement of the law, and the dis-
trict court did not abuse its discretion either in giving the
supplemental instruction or in the wording of the instruction.
F.
Appellant's final assignment of error rests with interaction and
conversation between the bailiff and the jury which"violat[ed] the
sanctity of the jury." Nothing in the record documents that such inter-
action ever occurred, nor does Appellants' argument constitute any-
thing more than a vague, unsupported allegation. Appellants failed to
either make an objection or bring the alleged interaction to the atten-
tion of the district court. We find Appellants' argument completely
lacking in merit.
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III.
For the reasons stated herein, we AFFIRM the judgment of the dis-
trict court.
AFFIRMED
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