UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4055

LOIS ANN MCCLUNG,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4056

STEPHANIE LANE MCCLUNG,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4367

LOIS ANN MCCLUNG,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Harrisonburg.

James H. Michael, Jr., Senior District Judge.

(CR-97-31)

Argued: October 30, 1998

Decided: January 28, 1999
Before WILKINS and NIEMEYER, Circuit Judges, and

FRIEDMAN, United States District Judge for the

Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Walter Franklin Green, IV, GREEN & O'DONNELL,

Harrisonburg, Virginia, for Appellant Stephanie McClung; Danita

Sue Alt, Harrisonburg, Virginia, for Appellant Lois McClung. Ray B.

Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States

Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Lois Ann McClung and Stephanie Lane McClung were

convicted by a jury of conspiracy to distribute marijuana in violation

of Title 21, United States Code Section 846. The jury also convicted

Lois McClung of money laundering in violation of Title 18, United

States Code Sections 1957 and 2.* Through a subsequent special verdict, the jury found that certain real and personal property of Appellants was subject to forfeiture pursuant to Title 21, United States Code

_________________________________________________________________

*A third family member, Jeffrey Preston McClung, was convicted of

similar offenses in the same trial, but had not been sentenced at the time

of oral argument.

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Section 853. Lois McClung appeals her convictions for money laundering and conspiracy to distribute marijuana, and the corresponding

forfeiture of real and personal property. Stephanie McClung appeals

her conviction for conspiracy to distribute marijuana. Finding no

error, we affirm.

I.

On April 23, 1997, the Grand Jury returned a multiple count indictment charging Appellants and others with crimes relating to the distribution of marijuana, money laundering, and criminal forfeiture.

During the period of the alleged drug activity, Lois McClung resided

with her children, Angela, Stephanie and Jeffrey, in the family home.

The charges resulted in part from the execution of a search warrant

at Appellants' residence on September 14, 1995. Pursuant to the warrant, police officers searched the residence for drugs, drug paraphernalia, and documents or anything related to the distribution of

controlled substances.

Among the items recovered during the search were marijuana and

marijuana stems, marijuana smoking devices, a triple beam scale and

approximately 74 firearms. A combination safe located in the basement of the house contained white containers with red tops. Each of

the containers held psilocybin mushrooms, United States currency, or

additional marijuana smoking pipes. Marijuana buds and a jar of

coins were also found in the safe.

The police officers seized approximately $820 in United States currency and an envelope marked "Stephanie" containing another $600

from a nightstand in one of the upstairs bedrooms. No marijuana or

drug paraphernalia was found on the first floor of the house. Testimony at trial established that the children stayed upstairs in the house

while Lois McClung and her companion lived downstairs. The children were responsible for their own cleaning and laundry. Lois

McClung did not carry on any activities that would have placed her

in the children's rooms.

The jury retired to deliberate at 5:45 p.m. on Saturday, September

27, 1997, and returned a guilty verdict later the same evening. The

jury was then released and instructed to return on Monday to consider

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the forfeiture issues. On September 29, 1997, the jury returned a special verdict forfeiting Appellants' rights, title and interest in certain

real and personal property to the United States. Lois McClung filed

a motion for judgement of acquittal on October 6, 1997, and Stephanie McClung filed a similar motion on October 7, 1997. Both motions

were denied by the district court on October 21, 1997, and the Appellants were sentenced on January 9, 1998.

II.

Appellants raise numerous issues on appeal, some jointly and others individually. Since it is difficult to determine which issue has been

raised by whom, the court will address all issues as if raised by both

Appellants unless the record clearly indicates otherwise. Although

Appellants raise nine separate issues, the assignments of error are better organized and treated as the following six issues. First, Lois

McClung claims the evidence was insufficient to support a conviction

of either money laundering or conspiracy to distribute marijuana, or

to support forfeiture of her house and approximately $24,000 in

United States currency seized from the basement safe. Next, Stephanie McClung claims the district court erred in allowing the presentation in the federal prosecution of the same evidence on which she was

acquitted for possession of marijuana in previous state court proceedings. Appellants further assign error to four district court actions: (1)

the denial of a post-verdict motion for a mistrial, and failure to investigate alleged jury misconduct; (2) the refusal to allow testimony of

a witness called by the defense; (3) the crafting of an answer to a

question by the jury; and (4) allowing the bailiff to converse and

interact with the jury.

A.

Lois McClung submits that the evidence was insufficient to support

a conviction of either money laundering or conspiracy to distribute

marijuana. She further contends that the evidence was insufficient to

support forfeiture of her property interests. When assessing the sufficiency of the evidence of a criminal conviction on direct review, the

jury verdict "must be sustained if there is substantial evidence, taking

the view most favorable to the Government, to support it." See

Jackson v. Virginia, 443 U.S. 307 (1979); Glasser v. United States,

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315 U.S. 60, 80 (1942); see also United States v. Hudgins, 120 F.3d

483, 486 (4th Cir. 1997). The Government is afforded all reasonable

inferences which flow from the circumstantial and direct evidence

brought before the district court. United States v. Burgos, 94 F.3d

849, 858 (4th Cir. 1996) (en banc), cert. denied , ___ U.S. ___, 117

S.Ct. 1087 (1997). In reviewing the sufficiency of the evidence, this

court does not weigh the evidence nor consider the credibility of witnesses. See United States v. Arrington, 719 F.2d 701, 704 (4th Cir.

1983).

Lois McClung's sufficiency of the evidence claim is unavailing.

The record contains ample evidence which supports her convictions,

not only from Government witnesses and exhibits, but also in the

form of testimony from Appellant and her son, Jeffrey McClung. Testimony presented at trial established that as early as 1993, between

fifteen and twenty marijuana sales were made from the McClung residence on an average weekend night. Marijuana buds, psilocybin

mushrooms and approximately $24,000 in United States currency

were found in a locked combination safe in the basement. The safe

gave off a "fairly strong" odor of marijuana when opened. Jeffrey

McClung and Lois McClung were the only two individuals who knew

the combination to the safe.

Lois McClung and Jeffrey McClung gave contradictory statements

about the origins of the money in the safe. At trial, Lois McClung testified that she periodically placed money in the safe when the contributions for monthly expenses from the other occupants of the house

exceeded the actual bills. Jeffrey McClung had previously told the

police that the money in the safe belonged to his mother, but that he

put it in the safe to keep her from gambling it away. A Government

witness testified that he saw Jeffrey McClung take money from the

safe, and that there were drugs in the safe at the time. Contradictory

statements were also given about $2,300 in United States currency

found in Jeffrey McClung's bedroom. Lois McClung was aware that

Jeffrey McClung possessed a large sum of money, and claimed that

it came from her pawn shop operation. Jeffrey McClung admitted the

$2,300 constituted proceeds of marijuana sales, and stated that he had

not held a legitimate job for two years prior to the search.

In addition, the record contains evidence of numerous monetary

transactions made by or with the assistance of Lois McClung to

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accomplish the purchase of a Toyota four-wheel drive vehicle for Jeffrey McClung in October 1994. Again, Lois McClung and Jeffrey

McClung offered contradictory statements concerning the money

used for the vehicle's purchase. According to Lois McClung, part of

the money came from a certificate of deposit she cashed, and the rest

from Jeffrey McClung through the sale of his car. Jeffrey McClung

stated the entire sum came from Lois McClung. Yet at trial, a subdistributor for Jeffrey McClung testified that he was told by Jeffrey

McClung the Toyota had been purchased for cash with the joint proceeds of their marijuana sales.

Thus, taking the evidence in the light most favorable to the Government, we conclude that a rational jury could have found Lois

McClung guilty of money laundering and conspiracy to distribute

marijuana. See Burgos, 94 F.3d at 861 ("[A] defendant's connection

to the conspiracy merely need be "slight."). Turning to Lois

McClung's claim that the evidence was insufficient to support forfeiture of her house and the currency in the basement safe, we find the

evidence as reviewed above sufficient for a rational jury to have

returned a verdict in favor of the Government on the forfeiture issue.

B.

Stephanie McClung argues that her acquittal for possession of marijuana in state court precluded the presentation of the same evidence

in the federal proceedings. Stephanie McClung's argument is ambiguous at best, referencing collateral estoppel, double jeopardy, and issue

preclusion, without setting forth a strong basis for any argument.

The difficulty with Stephanie McClung's argument, if it is indeed

one of collateral estoppel, is that one need not have had constructive

possession of marijuana to be involved in a conspiracy to distribute

marijuana. In addition, the rather bare statement in Appellant's brief

that "Stephanie was faced with identical evidence and facts that . . .

failed to convict her in State criminal proceedings," lends itself to an

argument of double jeopardy, but no such argument was made.

The double jeopardy clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."

U.S. CONST. amend. V. However, as the United States Supreme Court

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noted in United States v. Felix, 503 U.S. 378, 389-90 (1992), the double jeopardy clause does not bar a prosecution for conspiracy merely

because some of the alleged overt acts of the conspiracy have already

been prosecuted. See, e.g., United States v. Bayer, 331 U.S. 532

(1947) (Court-martial conviction did not bar subsequent federal prosecution for conspiracy based on same underlying incidents);

Pinkerton v. United States, 328 U.S. 640, 643 (1946) ("[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses ... [a]nd the plea of double jeopardy is no

defense to a conviction for both offenses"). See also United States v.

Williams, 155 F.3d 418, 420 (4th Cir. 1998). Furthermore, the Courts

have long held that an individual may be prosecuted for virtually

identical offenses in both the state and federal sovereigns. "An act

denounced as a crime by both national and state sovereignties is an

offense against the peace and dignity of both and may be punished by

each." United States v. Lanza, 260 U.S. 377, 382 (1922). See also

United States v. Iaquinta, 674 F.2d 260, 264 n.9 (4th Cir. 1982).

There is no evidence before the Court relating to the state court

proceedings, or supporting arguments of double jeopardy or collateral

estoppel. We find Appellant's argument indiscernible and without

merit.

C.

Appellants jointly assign error to the district court's denial of a

post-verdict motion for a mistrial based on an alleged undisclosed,

indirect relationship between a juror and a defense witness. We

review the district court's denial of a motion for a mistrial for abuse

of discretion. United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir.)

(Denial of motion for mistrial "will be disturbed only under the most

extraordinary of circumstances."), cert. denied, ___ U.S. ___, 117

S.Ct. 2525 (1997). In order to demonstrate an abuse of discretion, the

defendants must show prejudice. United States v. West, 877 F.2d 281,

288 (4th Cir. 1989).

Appellants contend that one of the jurors failed to disclose an indirect relationship with a defense witness, Mark Semones ("Semones"),

during voir dire. The record does not establish when Appellants'

counsel first learned of the alleged relationship, and Appellants did

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not offer any evidence regarding the relationship in the district court.

Semones testified third in a series of eight witnesses on Saturday,

September 27, 1997. All of the testimony was completed by 12:15

p.m., and the jury retired to deliberate at 5:45 p.m.

On Monday morning, a conference was held in chambers to discuss

the proposed charge for the forfeiture deliberations. Juror truthfulness

in response to voir dire questions was not discussed or even mentioned. Later the same day while deliberating the forfeiture issue, the

jury requested a dictionary. A second conference was held to discuss

the jury's request. During the conference, the district court informed

counsel that the jury had expressed concern about retribution. The

court's comment prompted counsel for Jeffrey McClung to state, "we

have a juror on there where we didn't discover until over the weekend

who did not respond truthfully to the questions you asked him about

knowing the parties." Appellants then moved for a mistrial.

Counsel offered a confusing rendition of the alleged relationship

between the juror and the witness, never establishing precisely what

the relationship was. The district court overruled Appellants' motion

based on its suspicion of the timing in which the motion was made,

and the fact that the information related to the court came from individuals with an obvious bias or prejudice. Appellants failed to note

an objection to the district court's ruling.

Where juror bias is timely reported to the court before the jury has

retired to deliberate, the court has the opportunity take the appropriate

action, such as seating an alternate juror. See United States v. Hayden,

85 F.3d 153 (4th Cir. 1996). In this case, the district court was faced

with a belated revelation of possible juror bias which was unsupported by evidence. Appellants had ample time to discover any possible bias and disclose the same to the court before the jury retired to

deliberate. The witness in question testified third in a series of eight

witnesses on the final morning of trial. Testimony concluded shortly

after noon, and the jury did not retire until 5:45 p.m. It is suspicious

that Appellants failed to communicate the information to their counsel

prior to the case being sent to the jury.

Furthermore, Appellants have failed to show they were prejudiced

by the district court's decision. Appellants argue on appeal that the

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district court should have examined the juror to determine whether the

juror had a bias or prejudice towards Appellants. Appellants erroneously submit that the district court refused to question the juror during

the proceedings in lower court. Appellants made no such request of

the court. "Where an attack is made upon the integrity of the trial by

reason of alleged misconduct on the part of a juror in failing to disclose information pertinent to the issue of prejudice, the defendant's

burden of proof must be sustained not as a matter of speculation, but

as a demonstrable reality." United States v. Whiting, 538 F.2d 220,

223 (8th Cir. 1976). Appellants offer nothing more than speculation

that the juror was prejudiced. The circumstances relating to the denial

of the motion for mistrial are not so extraordinary that we must disturb the district court's ruling.

D.

Appellants next argue that the district court refused to give the

defense adequate time to present its case to the jury. The Government

contends that the district court simply foreclosed duplicative reexamination of a witness, and therefore committed no error. A defendant is

entitled to the opportunity to present competent, relevant evidence on

the issues being tried. See United States v. Hamling, 418 U.S. 87, 125

(1974). The district court, however, "retains considerable latitude

even with admittedly relevant evidence in rejecting that which is

cumulative...." Id. at 127. Thus, evidentiary rulings foreclosing duplicative or cumulative testimony will be disturbed only for abuse of discretion. Id.; see also United States v. Hassan-El, 5 F.3d 726, 731 (4th

Cir. 1993) (Reasonable limitations on presentation of evidence permissible.).

The testimony about which Appellants complain relates to serial

numbers on "buy money" used by narcotics detectives in controlled

buys of marijuana from Jeffrey McClung. Two Government witnesses

were thoroughly examined by the Government and cross-examined by

counsel for Lois McClung on the issue during the course of the Government's case. Both witnesses testified that the serial numbers on the

"buy money" were recorded before each purchase, and one witness

testified that only one bill from a controlled buy was located in the

safe during the search of the McClung residence.

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During Appellants' case in chief, counsel for Lois McClung

attempted to elicit the same testimony relating to the "buy money"

from the same two witnesses. Out of the presence of the jury, counsel

was provided an opportunity to explain to the court the theory necessitating repetition of the serial numbers. The court noted the evidence

was already before the jury, and declined to permit further examination. Counsel for both the Government and Appellants were cautioned

about duplicative testimony and evidence, and the proceedings continued.

Counsel for Lois McClung thoroughly cross-examined the Government witnesses on the "buy money" and the procedures used by the

police officers during the controlled buys from Jeffrey McClung. By

reiterating the testimony on the serial numbers, counsel sought to

establish on direct examination that the single bill from the "buy

money" could have been placed in the safe when Jeffrey McClung

gave his monthly contribution to the household. The district court

noted that the evidence on which counsel relied for the theory was

already before the court. Based on the record, we find the district

court was well within its discretion to foreclose cumulative testimony

relating to the "buy money" serial numbers.

E.

Appellants next submit that the district court erred in crafting an

answer to the jury's question regarding whether knowledge only constitutes conspiracy. The necessity, extent, and character of supplemental jury instructions are a matter within the discretion of the

district court, United States v. Horton, 921 F.2d 540, 547 (4th Cir.

1990), cert. denied, 501 U.S. 1234 (1991), and we review the district

court's decision to give a supplemental instruction and the specific

words chosen for abuse of that discretion. United States v. Smith, 62

F.3d 641, 646 (4th Cir. 1995), citing Horton, 921 F.2d at 546. In

reviewing the district court's response, we inquire as to whether the

instruction responded to the jury's question "fairly and accurately

without creating prejudice." Smith, 62 F.3d at 646, citing United

States v. United Medical and Surgical Supply Corp. , 989 F.2d 1390,

1407 (4th Cir.1993). An error requires reversal only if it is prejudicial

in the context of the record as a whole. United Medical, 989 F.2d at

1407.

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The jury retired to deliberate at 5:45 p.m. on Saturday, September

27, 1997. During the course of the jury's deliberations, four questions

were submitted to the court, the first three of which passed without

incident. The fourth question submitted by the jury posed the question, "Does knowledge constitute conspiracy?". Appellants' counsel,

based on their interpretation of the jury's question, recommended a

one word reply - "no". The Government suggested repeating the portion of the charge that set forth the elements of conspiracy. The district court declined to simply answer "no" because it was not a proper

statement of the law. Instead, the court answered the question by

repeating the elements of conspiracy. In writing the court responded,

"Conspiracy requires proof beyond a reasonable doubt after consideration of all the evidence of two elements as follows: First, that the

conspiracy described in the indictment was willfully formed and was

existing at or about the time alleged. Second, that the accused knowingly became a member of a conspiracy."

Counsel for Lois McClung agreed with the answer provided to the

jury, while counsel for Stephanie McClung did not agree. When a

party fails to note an objection to a ruling at trial, appellate review of

the issue is forfeited. See United States v. Maxton, 940 F.2d 103, 105

(4th Cir.), cert. denied, 502 U.S. 949 (1991). Regardless, we are of

the opinion that the district court fairly and accurately responded to

the jury's question by providing the jury with the elements of conspiracy. The instruction was a correct statement of the law, and the district court did not abuse its discretion either in giving the

supplemental instruction or in the wording of the instruction.

F.

Appellant's final assignment of error rests with interaction and

conversation between the bailiff and the jury which"violat[ed] the

sanctity of the jury." Nothing in the record documents that such interaction ever occurred, nor does Appellants' argument constitute anything more than a vague, unsupported allegation. Appellants failed to

either make an objection or bring the alleged interaction to the attention of the district court. We find Appellants' argument completely

lacking in merit.

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III.

For the reasons stated herein, we AFFIRM the judgment of the district court.

AFFIRMED

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