UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4239

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHARLES RILEY, JR., a/k/a New York,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. George J. Hazel, District Judge. 

(1:13-cr-00607-GJH-2)

Submitted: January 28, 2016 Decided: April 5, 2016

Before AGEE, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda, 

Maryland, for Appellant. Rod J. Rosenstein, United States 

Attorney, Peter J. Martinez, Assistant United States Attorney, 

Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Charles Riley, Jr., appeals his drug convictions. Riley’s 

first trial ended when the district court granted his motion for 

a mistrial. In his second trial, the jury found him guilty of 

three counts from his superseding indictment: Count 1, 

conspiracy to distribute and possess with intent to distribute 

cocaine, and Counts 2 and 3, possession with intent to 

distribute cocaine and aiding and abetting. In Count 2 the jury 

found him guilty of the lesser-included offense of distributing 

an unspecified amount of cocaine (the indictment alleged 500 

grams or more of cocaine). Riley was sentenced to 240 months of 

imprisonment. Riley makes numerous claims on appeal. For the 

reasons that follow, we affirm.

First, Riley alleges the counts from his original 

indictment should have been dismissed with prejudice and 

precluded from being charged in his superseding indictment. In 

reviewing the district court’s denial of Riley’s motion to 

dismiss the indictment, we review the district court’s factual 

findings for clear error and its legal conclusions de novo. 

United States v. Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002). 

We find no reversible error and note that Riley was not 

prejudiced as a result of the government’s conduct during grand 

jury proceedings, see Bank of Nova Scotia v. United States, 487 

U.S. 250, 254 (1988) (finding that a district court may not 
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dismiss an indictment for errors in grand jury proceedings 

unless such errors prejudiced the defendant), as the Government 

obtained a superseding indictment, free from earlier errors made 

in the grand jury proceedings leading to the original 

indictment. See United States v. Wills, 346 F.3d 476, 488 (4th 

Cir. 2003) (noting that in the absence of prejudice, “courts 

lack authority to review the sufficiency of the evidence 

supporting an indictment, even when a mistake was mistakenly 

made”) (citations omitted).

Next, Riley contends that the district court should have 

granted his motion to suppress the evidence because officers 

entered his home before the issuance of the search warrant. We 

review the district court’s factual findings underlying a motion 

to suppress for clear error and its legal conclusions de novo.

United States v. Williams, 740 F.3d 308, 311 (4th Cir. 2014). 

Because the district court denied Riley’s motion below, we

construe the evidence in the light most favorable to the 

Government. United States v. Foster, 634 F.3d 243, 246 (4th 

Cir. 2011). The record is clear that officers did not take any 

evidence prior to properly executing the search warrant at 

Riley’s home. Thus, Riley’s claim fails under the Supreme 

Court’s decision in Segura v. United States, 468 U.S. 796, 813–

16 (1984). In Segura the Court held that warrantless entry into 

a home does not require the suppression of evidence later 
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obtained from that home if that evidence was independently 

discovered pursuant to a valid warrant. 468 U.S. at 813–14

(“Whether the initial entry [of a home] was illegal or not is 

irrelevant to the admissibility of the challenged evidence 

because there was an independent source for the warrant under 

which that evidence was seized. Exclusion of evidence as 

derivative or ‘fruit of the poisonous tree’ is not warranted 

here because of that independent source.”).

Third, Riley alleges that the district court erred by 

denying his motions to sever Counts 2 and 5 from the remaining 

counts. Two or more offenses may be charged in the same 

indictment when the offenses “are of the same or similar 

character, or are based on the same act or transaction, or are 

connected with or constitute parts of a common scheme or plan.” 

Fed. R. Crim. P. 8(a). In determining whether charges are based 

on the same transaction or are part of a common plan, this Court 

has interpreted the rule flexibly, requiring that the joined 

offenses have a logical relationship to one another. United 

States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005). This 

Court reviews de novo whether the initial joinder of the 

offenses was proper under Rule 8(a). United States v. Mouzone, 

687 F.3d 207, 219 (4th Cir. 2012). 

We note that Riley was not retried on Count 5, so this 

claim is without merit. Count 2 was properly joined under Rule 
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8(a), United States v. Hornsby, 666 F.3d 296, 309 (4th Cir. 

2012) (“Where offenses are properly joined under Rule 8(a), 

severance of the offenses is rare”), and we find no abuse of 

discretion by the district court in denying Riley’s motions for 

severance. United States v. Dinkins, 691 F.3d 358, 367 (4th 

Cir. 2012) (providing review standard). Thus, this claim lacks 

merit.

Next, Riley argues that submission of Count 2 to the jury 

violated the Double Jeopardy Clause. Count 2 charged Riley with 

distributing 500 grams or more of cocaine. Because less than 

that amount of the drug was presented at trial, however, the 

district court charged the jury — and the jury found — Riley 

guilty for distributing an unspecified amount of cocaine, a 

lesser-included offense of Count 2. We note this claim is 

forfeited because Riley failed to raise his double jeopardy 

claim in the district court, United States v. Jarvis, 7 F.3d 

404, 409 (4th Cir. 1993), and Riley fails to show plain error in 

any event. See United States v. Olano, 507 U.S. 725, 732 (1993) 

(providing plain error test). Criminal Rule 31(c)(1) provides 

that a defendant may be found guilty of an offense necessarily 

included in the offense charged. Moreover, a court may submit 

an uncharged lesser-included offense to the jury, and the jury 

may convict on a lesser-included offense, if all the elements 

are proven after it determines that the evidence is insufficient 
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on the greater offense. United States v. Walkingeagle, 974 F.2d 

551, 553-54 (4th Cir. 1992). Thus, this claim fails.

In his fifth claim Riley argues that the district court 

erred by granting a mistrial in his first trial on the basis of 

manifest necessity. We agree with the district court that Riley 

failed to meet the challenging burden of showing that the 

Government sought to goad him into seeking a mistrial, as 

required for him to prevail on this claim. See United States v. 

Smith, 441 F.3d 254, 265 (4th Cir. 2006) (finding that an

appellant bears the burden of proving specific intent to provoke 

a mistrial); United States v. Wentz, 800 F.2d 1325, 1327 (4th 

Cir. 1986) (noting where defendant obtains a mistrial, “the 

conditions for invocation of the double jeopardy bar are 

strict”). We find no abuse of discretion regarding the district 

court’s factual findings in this regard. See United States v. 

Johnson, 55 F.3d 976, 978 (4th Cir. 1995) (providing standard).

Finally, Riley contends that his second trial violated the 

Fifth Amendment’s Double Jeopardy Clause. We review questions 

of double jeopardy de novo, United States v. Studifin, 240 F.3d 

415, 418 (4th Cir. 2001), but with regard to the more specific 

question of whether the Government intentionally provoked a 

mistrial, this Court reviews factual findings for clear error.

Johnson, 55 F.3d at 978. We conclude that the district court’s 

factual and legal conclusions on the matter were not erroneous. 
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Oregon v. Kennedy, 456 U.S. 667, 675-78 (1982); Wentz, 800 F.2d 

at 1327. 

Accordingly, because Riley’s claims fail on appeal, we 

affirm his convictions. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED