UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Anthony Wayne Harrison, Jr., HARRISON, NORTH,

COOKE & LANDRETH, Greensboro, North Carolina; Daniel Smith

Johnson, Winston-Salem, North Carolina, for Appellants. David Bernard Smith, Assistant United States Attorney/Senior Litigation Counsel, Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.

Holton, Jr., United States Attorney, Greensboro, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 discretion 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 charging Appellants with conspiring to possess and distribute more than

1,000 kilograms of marijuana in violation of 21 U.S.C.

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§§ 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 therefore 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 presented evidence suggesting the existence of a conspiracy between Jimmie, 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, hundreds 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 transactions, 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 supporting 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

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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 vehicle 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 forfeiture, 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 determine whether a civil sanction constitutes punishment, we must therefore determine whether the sanction may "fairly be characterized as

remedial," or instead only serves the purposes of deterrence or retribution. Id. at 448-49. To determine whether a person is being punished 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-

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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.

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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 unlawful 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 ownership, 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 transaction 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

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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 violation 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).

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(1) the defendant conducted or attempted to conduct a financial 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 constitute, or are derived from, the proceeds of specified criminal activity." 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 conspiracy 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 voluntarily 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 forfeiture 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 kilograms of marijuana, no such proof would have been required in the

forfeiture proceedings. It does not matter whether, with respect to several 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 elements of proof, the Double Jeopardy Clause afforded Blalock no protection from prosecution for the crimes of which he was ultimately

convicted.3

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3 We should further note that, to the extent that the forfeited car and

currency were instrumentalities of Blalock's unlawful drug activity, the

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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 indictment 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 substantial 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 kilograms 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 manufacture, 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 penalties 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

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forfeiture of those items did not constitute punishment for double jeopardy 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, consequently, "the Double Jeopardy Clause does not apply to civil forfeitures

where the property itself has been an instrument of criminal activity").

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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 purpose 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 initial "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 frequently used secret compartments to carry money and drugs. Such

evidence was more than sufficient to establish the requisite connection 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 prejudiced 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 during the course and in furtherance of the conspiracy." To find that what

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would otherwise be inadmissible hearsay is admissible under that

rule, a district court must find "(1) that there was a conspiracy involving the declarant and the party against whom admission of the evidence 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 discretion. 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 conspirators; the evidence presented at Appellants' trial suggested that she

clearly was. Instead, Blalock has argued that Beauchamp's explanation 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 indicates 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,

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742 (4th Cir. 1989), cert. denied, 493 U.S. 1062 (1990). When calculating the amount of drugs attributable to a person convicted of conspiracy, 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 February 1, 1990, between 36 and 48 shipments of marijuana arrived there,

with between 450 and 750 pounds arriving in each shipment. The district court took the lower end of those two ranges, multiplied 36 by

450 and determined that 16,200 pounds (approximately 7,350 kilograms) of marijuana were attributable to each Appellant. Other, smaller 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 enhancement 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 sentences 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-

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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 furtherance of the conspiracy, we hold that the district court did not commit clear error. The presence of thirty-two guns--a number of which

were loaded--on the property where many of Appellants' drug activities occurred is entirely different from the unloaded hunting rifle to

which the Application Notes make reference. We accordingly reject

Appellants' arguments to the contrary.

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4 The Presentence Investigation Reports indicated that thirteen of the

guns were loaded.

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III.

For the foregoing reasons, we uphold Appellants' convictions and

sentences.

AFFIRMED.

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