United States v. Livingston , 63 F. App'x 106 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4950
DENNEVER LIVINGSTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., District Judge.
(CR-97-39)
Submitted: April 8, 2003
Decided: April 17, 2003
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank W. Dunham, Jr., Federal Public Defender, Walter B. Dalton,
Assistant Federal Public Defender, Norfolk, Virginia, for Appellant.
Fernando Groene, OFFICE OF THE UNITED STATES ATTOR-
NEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LIVINGSTON
OPINION
PER CURIAM:
Dennever Livingston was convicted of conspiracy to possess with
intent to distribute and to distribute marijuana, possession with intent
to distribute marijuana, conspiracy to launder money, six substantive
counts of money laundering, and six counts of money laundering to
promote drug trafficking. He was sentenced to 360 months on the
drug conspiracy charge, and concurrent 240 month sentences on each
of the other counts of conviction. In Livingston’s first appeal, we held
that the money laundering counts and the money laundering in fur-
therance of drug trafficking counts were based on the same evidence
and were duplicitous. We therefore remanded in part to the district
court to vacate the convictions, sentences, and assessments as to the
six counts of money laundering in furtherance of drug trafficking.
United States v. Stewart, 256 F.3d 231, 248 (4th Cir. 2001), cert.
denied, 535 U.S. 977 (2002).
During the resentencing hearing, Livingston argued that all of the
money laundering counts and the drug conspiracy count should also
be dismissed because of spillover prejudice from the dismissed
counts. The district court rejected this argument and imposed the
same sentences as to the remaining counts. Livingston timely noted
an appeal.
His counsel filed a brief pursuant to Anders v. California, 386 U.S.
738, 744 (1967), stating that there were no meritorious issues for
appeal, but asserting that the district court erred in determining that
Livingston suffered no spillover prejudice from the dismissed counts.
Livingston has filed a pro se brief, asserting that his convictions were
tainted by spillover prejudice, that the indictment was duplicitous, and
that his conviction was based on elements not proscribed by Con-
gress, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).
The latter two issues asserted by Livingston are not properly before
this Court. See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)
(mandate rule "forecloses relitigation of issues expressly or impliedly
decided by the appellate court") (internal quotation omitted). Living-
ston’s challenge to the duplicitous nature of the charges was found
UNITED STATES v. LIVINGSTON 3
meritorious during his initial appeal, and the six duplicitous convic-
tions and sentences were vacated. The Apprendi claim was fully
addressed in our prior opinion, in which we found no plain error.
Stewart, 256 F.3d at 252.
The only remaining issue is whether any of Livingston’s other con-
victions should have been vacated due to prejudicial spillover from
evidence supporting the six dismissed counts of money laundering in
furtherance of drug trafficking. We have fully considered this claim
and find that Livingston’s remaining convictions were not affected by
any spillover prejudice. See United States v. Rooney, 37 F.3d 847, 855
(2d Cir. 1994). The evidence in support of the reversed counts and the
remaining counts was identical. See United States v. Odom, 858 F.2d
664, 666-67 (11th Cir. 1988) (Where the reversed and the remaining
counts are "premised on essentially the same facts . . . evidence rele-
vant and admissible as to one set was equally relevant and admissible
as to the other; [a]ny ‘spillover’ which may have occurred therefore
was not prejudicial."); United States v. Bailey, 859 F.2d 1265, 1273
n.1 (7th Cir. 1988). Additionally, as this court determined in Living-
ston’s first appeal, the government’s evidence was sufficient to sup-
port the convictions on the money laundering charges and the drug
conspiracy charge. Stewart, 256 F.3d at 249-51; see United States v.
Gjurashaj, 706 F.2d 395, 400 (2d Cir. 1983) (rejecting claim of preju-
dicial spillover based on the strength of the government’s evidence on
remaining counts). Moreover, because the evidence as to both sets of
money laundering charges was identical, the evidence on the reversed
counts would not "have tended to incite or arouse the jury into con-
victing the defendant on the remaining counts." Rooney, 37 F.3d at
855. Because all these factors weigh against a finding of spillover
prejudice to Livingston, we affirm the district court’s refusal to vacate
any of Livingston’s other convictions. Accordingly, we affirm Living-
ston’s remaining convictions and sentences.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
4 UNITED STATES v. LIVINGSTON
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED