UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4238

JACKIE MCGEORGE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4239

RONALD LEE JONES, a/k/a Crow

McGeorge,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4240

NORMA MARIE UNDERWOOD,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

(CR-97-51)

Argued: December 4, 1998

Decided: February 12, 1999
Before WILKINSON, Chief Judge, KING, Circuit Judge,

and WILLIAMS, United States District Judge for the

District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Robert Cromwell, VOGEL & CROMWELL,

L.L.C., Roanoke, Virginia, for Appellant Underwood; Raphael Ellis

Ferris, RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN,

Roanoke, Virginia, for Appellant McGeorge; Mark Claytor, Salem,

Virginia, for Appellant Jones. Joseph William Hooge Mott, Assistant

United States Attorney, Roanoke, Virginia, for Appellee. ON

BRIEF: Robert P. Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jackie McGeorge, Ronald Lee Jones, and Norma Marie Underwood were convicted by a jury of a variety of felonies relating to a

cocaine conspiracy. On appeal, they raise challenges to their convictions and sentences. For the reasons below, we affirm the judgment

of the district court.

I.

After the June 1994 arrest of Anthony Payton, a major cocaine supplier operating in Roanoke, Virginia, the Drug Enforcement Adminis-

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tration (DEA) Task Force began investigating the operations of Mac

Brothers Complete Car Care, Inc. (Mac Brothers). Mac Brothers was

owned and operated by appellants McGeorge and Jones. Payton had

begun supplying cocaine to McGeorge and Jones in January 1994. At

trial, Payton testified that appellant Underwood, a secretary employed

at Mac Brothers, had accompanied McGeorge on occasion to conduct

cocaine transactions with Payton.

Following Payton's arrest, the Mac Brothers operation was forced

to find another supplier. During the summer of 1994, Underwood

made trips to a supplier in Richmond to retrieve cocaine for the Mac

Brothers operation. Her former boyfriend, Donald Willis, testified

that Underwood told him of the drug runs and that Underwood suggested that they steal from the Mac Brothers operation. Underwood

proposed faking a robbery of drugs or money during one of her trips

to Richmond. In order to make it a convincing fake, Underwood proposed that Willis shoot her during the robbery. Willis, however,

declined Underwood's invitation.

Also during the summer of 1994, Ronald Tucker, a mechanic at the

Mac Brothers business, approached the Roanoke City police with

information about the illegal activities of Jones and McGeorge. With

the aid of the Roanoke Police and the DEA Task Force, Tucker made

two controlled buys under police surveillance at the Mac Brothers

establishment.

During 1995, the DEA Task Force learned of arrests in Jamaica

which gave it reason to believe that the Mac Brothers operation was

being supplied by sources in Jamaica. In the summer of 1995, the

DEA Task Force used Mary Stores to make two controlled buys of

cocaine from the Mac Brothers business. A surveillance tape captured

Stores' second buy. Shortly after the buys, officers obtained a search

warrant for the Mac Brothers building. On August 14, 1995, the warrant was executed in the presence of Jones and McGeorge. Several

firearms were discovered during the search. Among them, a .357

magnum revolver was found in an office desk drawer next to a prescription bottle for Ronald Lee Jones.

While the search was underway, Underwood arrived at the business. She consented to the search of her purse and home. Her purse

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contained notes with the name and phone numbers of key players suspected in the conspiracy, including Doris Lynch, a mule used by the

Mac Brothers operation to smuggle cocaine into the United States

from Jamaica. It also contained flight schedules and a bottle of Inositol, commonly used by drug dealers for cutting cocaine. In her apartment, officers found an ounce of cocaine, scales commonly used for

weighing drugs, Jamaican currency, boarding passes in Underwood's

name for flights to Jamaica, and money wires in her name totaling

approximately $8,600 to Kingston, Jamaica.

On May 20, 1997, a federal grand jury in the Western District of

Virginia indicted McGeorge, Jones, Underwood, and four other

defendants on ten counts, including conspiracy to import and distribute cocaine as well as substantive drug and firearms counts. Prior to

trial, McGeorge and Jones moved to dismiss two conspiracy counts

on double jeopardy grounds based upon their prior prosecution and

conviction of a cocaine conspiracy in the Eastern District of Virginia.

The district court denied the motion and the case proceeded to a jury

trial.

The jury convicted McGeorge of conspiracy to possess with intent

to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846, and marijuana possession, id. § 844; he was sentenced to 168 months in prison. Jones

was convicted of conspiracy to possess with intent to distribute

cocaine, conspiracy to import cocaine, id.§§ 952(a), 963, distribution

of cocaine, id. § 841(a)(1), and two counts of possession of a firearm

by a felon, 18 U.S.C. § 922(g)(1). He was sentenced to 360 months

in prison. Underwood was convicted of conspiracy to import and possess with intent to distribute cocaine and simple possession of

cocaine, 21 U.S.C. § 844. She was sentenced to 151 months imprisonment. McGeorge, Jones, and Underwood appeal.

II.

McGeorge and Jones first argue that their prosecutions for conspiracy in this case violate the Double Jeopardy Clause of the Fifth

Amendment because they were previously prosecuted in the Eastern

District of Virginia for a conspiracy to distribute cocaine. They argue

that the conspiracy in the Eastern District and the conspiracy charged

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here are in fact a single conspiracy: one headed by McGeorge and

Jones to distribute cocaine in Virginia during 1994 and 1995.

We disagree. In United States v. MacDougall, this circuit adopted

a five-factor, totality-of-the-circumstances test to determine whether

a single conspiracy or multiple conspiracies exist for double jeopardy

purposes. 790 F.2d 1135, 1144 (4th Cir. 1986). Under this test, we

consider

1) [the] time periods in which the alleged activities of the

conspiracy occurred; 2) the statutory offenses charged in the

indictments; 3) the places where the alleged activities

occurred; 4) the persons acting as co-conspirators; and

5) the overt acts or any other descriptions of the offenses

charged which indicate the nature and scope of the activities

to be prosecuted.

Id. These factors are to be applied flexibly to determine whether the

charged conspiracies are in fact a single offense. United States v.

McHan, 966 F.2d 134, 138 (4th Cir. 1992).

An application of these factors to the facts of the conspiracy

charged in this case and the one previously prosecuted in the Eastern

District demonstrates that the two prosecutions deal with different

conspiracies. It is true that the statutory drug conspiracy offenses in

each case are similar. There may also be some small overlap in time

between the events in the Eastern District, which began sometime

during the summer of 1995 and extended until March 1996, and those

here, which started by January 1994 and ended in August 1995.

Yet we are persuaded that there are sufficient dissimilarities to

indicate the existence of two separate conspiracies. First, the two conspiracies occurred in two different locations. The Eastern District conspiracy dealt with the sale of drugs in Hampton, Virginia. The

conspiracy at issue in this case, however, deals with the distribution

of drugs in Roanoke -- a city almost 250 miles away from Hampton.

Second, the two conspiracies had different sources for their supply of

cocaine. The Eastern District conspiracy received the bulk of its

cocaine from Florida, while the evidence in this case tied much of the

cocaine to Jamaica and Richmond. Third, the players in the two con-

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spiracies differed significantly. The Eastern District indictment named

McGeorge, Jones, and Gregory Simms as defendants, and Lynch as

an unindicted co-conspirator. The Western District indictment again

named McGeorge, Jones, and Lynch, but also named five other defendants not named in the Eastern District conspiracy. In addition,

Lynch's involvement in the Western District conspiracy was limited

to a single trip to Jamaica and Lynch testified at trial that she did not

know any of the participants in the Western District conspiracy other

than McGeorge and Jones. Finally, the organizational scope and

activities of the two operations illustrate that two different conspiracies existed. The Roanoke conspiracy masked itself as a legitimate

car-wash company with a vast organizational structure, including

relationships with international drug suppliers and a number of local

distributors. The Eastern District conspiracy, by contrast, had a smaller organizational structure and was narrowly focused, dealing primarily with one drug dealer. Given these differences, we hold that

two separate conspiracies existed and that McGeorge and Jones' prosecution in this case is consistent with the Fifth Amendment.

III.

Jones next challenges his conviction of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). To prove a violation of section 922(g)(1), the government must show that Jones "voluntarily and intentionally possessed a firearm." United States v.

Langley, 62 F.3d 602, 604 (4th Cir. 1995) (en banc). Jones argues that

the evidence adduced at trial was insufficient to support a jury finding

that he possessed the .357 caliber revolver found in the office drawer

at the Mac Brothers business. He argues that although he had access

to the premises, he did not have exclusive possession of the building

and therefore the jury could not conclude beyond a reasonable doubt

that he -- and not someone else with access -- possessed the weapon.

We hold that the jury had sufficient evidence to determine that

Jones possessed the handgun. To establish possession for purposes of

section 922(g)(1), the government must show actual or constructive

possession. United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992)

("[T]o establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself or the premises or vehicle in which the contraband is

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concealed." (internal quotation marks omitted) (alteration in original)). Such possession may be singular or joint , id., and may be

proved by circumstantial evidence, United States v. Rahman, 83 F.3d

89, 94 (4th Cir. 1996). The question is whether Jones "was aware of

the firearm[ ] contained in the [drawer] and also had a right of physical access to th[e] firearm[ ]." United States v. Mills, 29 F.3d 545, 550

(10th Cir. 1994).

Here, Jones was co-owner of the Mac Brothers business. He ran the

legitimate and illegitimate operations that were centered at the Mac

Brothers business. Jones used the office in which the gun was found

to conduct his affairs, including drug transactions. Although Jones

claimed not to occupy the office exclusively, a prescription drug bottle bearing his name was found in the desk drawer next to the firearm.

Viewing this evidence in the light most favorable to the government,

a jury could conclude beyond a reasonable doubt that Jones possessed

the firearm for purposes of section 922(g)(1).

IV.

Underwood challenges the sufficiency of the evidence supporting

her conviction for conspiring to import cocaine. To prove a conspiracy to import cocaine, the government must prove that 1) there was

an agreement to import cocaine, 2) the defendant knew of the conspiracy, and 3) the defendant knowingly and voluntarily became part of

the conspiracy. See United States v. Burgos, 94 F.3d 849, 857 (4th

Cir. 1996) (en banc). Underwood admits that the evidence was sufficient to show that she worked at the Mac Brothers business and that

she became a part of a conspiracy to distribute cocaine, but claims the

evidence was insufficient to show beyond a reasonable doubt that she

knew of the conspiracy to import cocaine. She claims that all of the

evidence tying her to Jamaica is consistent with legitimate purposes.

Thus, the jury was left only to speculate that Underwood knew of the

illegal purposes for the trips to Jamaica.

We disagree. The government presented sufficient evidence at trial

that tied Underwood to the Mac Brothers' activities in Jamaica and

from which a jury could conclude that she was aware of the importation of cocaine. That evidence indicated that Underwood wired

approximately $8,600 to Jamaica, she possessed Jamaican currency,

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and she took multiple trips to Jamaica. Additionally, Underwood had

the name and number of Lynch, a mule who smuggled cocaine into

the United States from Jamaica. Moreover, Underwood's former boyfriend, Willis, testified that Underwood repeatedly acquired drugs for

the Mac Brothers operation. The evidence below also demonstrated

that Underwood, as a secretary for Mac Brothers, was at the center

of the illegal operation. Given all of this, a reasonable jury could find

beyond a reasonable doubt that Underwood knew of the illegal conspiracy to import cocaine.

V.

Underwood also challenges the sufficiency of the evidence supporting her sentence. The district court attributed 10 kilograms to the

conspiracy, estimating that the conspiracy handled one-half kilogram

of cocaine per month from January 1994 to August 1995. The court

also attributed the entire amount of cocaine to Underwood because

she was at the nerve center of the operation. Underwood argues that

she should not be responsible for the entire quantity attributed to the

conspiracy because she did not know or participate in the full scope

of the conspiracy. Nor, she asserts, was that scope reasonably foreseeable as a necessary or natural consequence of the conspiracy. Thus,

for her subordinate role only a fraction of the 10 kilograms should be

attributed to her.

We find no error. For sentencing purposes in a conspiracy case, a

trial court should look at all jointly undertaken criminal conduct,

including the acts of the defendant and all reasonably foreseeable acts

of others taken in furtherance of the jointly undertaken activity.

U.S.S.G. § 1B1.3(a)(1)(B). Here, Underwood was at the center of the

illegal operations of the conspiracy -- receiving calls for the business

and setting up drug deals. She arranged trips to Jamaica and took

them herself. In her purse were the names and telephone numbers of

co-conspirators. In her bedroom were scales, cocaine cutting agents,

and cocaine. Given all of this, the trial court did commit clear error

by finding that she was at the "nerve center" of the operation and that

the entire amount of the conspiracy was foreseeable and attributable

to her.

Nor was the amount of drugs attributed to Underwood without evidentiary support. In drug conspiracy cases, the government must

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prove by a preponderance of the evidence the amount attributed to

each defendant. United States v. Gilliam, 987 F.2d 1009, 1013 (4th

Cir. 1993). The presentence report in this case attributed 31.2 kilograms to the conspiracy based upon the testimony of participants and

reasonable inferences from the physical evidence. The trial court conservatively attributed 10 kilograms to the conspiracy, noting that "[i]t

very well may be a whole lot more than that." The district court's

finding is not clearly erroneous and it therefore must stand.

VI.

For the foregoing reasons, the judgment of the district court is

hereby

AFFIRMED.

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