United States v. Manning ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-16
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL MANNING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:07-cr-00081-JBF-JEB-2)
Argued: December 3, 2009 Decided: January 21, 2010
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jon Michael Babineau, RIDDICK BABINEAU, PC, Suffolk,
Virginia; Lawrence Hunter Woodward, Jr., SHUTTLEWORTH, RULOFF,
SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for
Appellant. Brian James Samuels, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Dana
J. Boente, United States Attorney, Alexandria, Virginia; Eric M.
Hurt, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The question in this case is whether a superseding
indictment for Samuel Manning’s involvement in a drug conspiracy
violates the Double Jeopardy Clause because of his prior
conviction for participating in a separately charged drug
conspiracy. The district court determined by a preponderance of
the evidence that these two conspiracies were separate and
distinct and held accordingly that the government was not barred
from prosecuting him in this case. We review the district
court’s factual finding for clear error. United States v. McHan,
966 F.2d 134, 138-39 (4th Cir. 1992).
On September 11, 2006, a grand jury returned an indictment
charging Manning and four co-defendants with, among other
things, conspiring to distribute cocaine, cocaine base, and
heroin under the leadership of Kasine Powers (the “Powers
Conspiracy”). On November 9, 2006, Manning pled guilty to the
conspiracy charge and a related count and was subsequently
sentenced to 120 months imprisonment.
On August 14, 2007, a grand jury returned a superseding
indictment charging Manning with, among other things, conspiring
to distribute cocaine base with Donald Smith (the “Smith
Conspiracy”). Manning filed a motion to dismiss the superseding
indictment on Double Jeopardy grounds. Following an evidentiary
hearing, the district court denied the motion. This
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interlocutory appeal followed pursuant to Abney v. United
States, 431 U.S. 651, 662 (1977).
The district court applied this court’s precedent in
United States v. Ragins, 840 F.2d 1184, 1188-89 (4th Cir. 1998)
to the letter -- determining whether the two conspiracies were
in fact the same conspiracy under the totality of the
circumstances. In the court’s view, Manning made a non-
frivolous showing that the two conspiracies were the same: the
time periods of the two conspiracies overlapped, both
conspiracies occurred in Newport News, Virginia, and both
involved cocaine base. But the court ultimately determined that
the two conspiracies were separate by a preponderance of the
evidence. It emphasized four factors. First, the participants
in the two conspiracies were, apart from Manning, unique.
Second, Manning’s personal involvement in the Powers Conspiracy
dealt with heroin, but his involvement in the Smith Conspiracy
dealt with cocaine base. Third, Manning’s participation in the
Smith Conspiracy predated his involvement in the Powers
Conspiracy. Fourth, the two conspiracies differed in scope and
organization; while the Smith Conspiracy was simply an agreement
between Manning and Smith to distribute cocaine base, the Powers
Conspiracy consisted of a large network of individuals who
distributed various drugs for Kasine Powers.
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In light of these factors, it was not clear error for the
district court to find that the two conspiracies were separate
and distinct. Accordingly, the judgment of the district court
is
AFFIRMED.
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