The Honorable George F. Gunn, Jr., United States District

1

Judge for the Eastern District of Missouri.

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No. 95-3877

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Norman Everett Black, *

*

Appellant. *

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 Submitted: April 9, 1996

 Filed: July 12, 1996

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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit

Judges.

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WOLLMAN, Circuit Judge.

After a jury found Norman Everett Black guilty of distribution of

marijuana, possession with intent to distribute marijuana, and possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1),

the district court sentenced him to sixty months' imprisonment on each of 1

the first two counts and ninety-seven months' imprisonment on the last

count, all to be served concurrently. Black appeals his conviction and

sentence, raising several issues. We affirm.

I.

On January 17, 1992, Black was stopped by two police officers as he

was walking in south St. Louis. The St. Louis police
 The officers later learned that the actual address of Black's 2

apartment was 2201 South 13th Street and not 2301 South 13th

Street.

 Detective Strehl was unavailable to testify at the

3

evidentiary hearing and at trial.

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department had been conducting a surveillance of Black because they

suspected that he was involved in a drug operation. Detectives Emmett

Gelhot and Steven Strehl identified themselves as police officers and

informed Black that they had been investigating him. They gave Black his

Miranda rights and requested Black's permission to search his apartment,

which was located in the vicinity. Detective Gelhot testified that Black

orally consented to the search and agreed to sign a consent-to-search form.

According to Detective Gelhot, Black identified himself as Dobson Case;

gave the address of his apartment as 2301 South 13th Street; and signed the

consent form "D. Case." At this point, three other officers arrived at the

scene, and the entire group proceeded to Black's apartment.

Detective Gelhot testified that Black voluntarily led the officers

to his apartment, which the officers believed was located at 2301 South

13th Street, and used his own keys to unlock the door. Detective Robert 2

Ehrhard, who was part of the latter group of detectives to arrive at the

scene, corroborated Gelhot's testimony. Jeff Baudo, the building

maintenance man, provided a different version of events. He testified that

the police officers asked him where Black lived. Baudo further testified

that he gave keys to the police officers and that they opened the door of

the apartment. Baudo also testified that the officers were restraining

Black at the time. Neither Detective Gelhot nor Detective Ehrhard recalled

Baudo's presence at the scene.3

Black was arrested after the officers discovered various items in his

apartment, including cocaine, marijuana, $11,000 in cash,
 The Honorable Frederick R. Buckles, United States Magistrate 4

Judge for the Eastern District of Missouri.

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and a triple beam scale. After the officers again advised Black of his

Miranda rights, Black stated that he was the sole resident of the apartment

and admitted that he owned the items found during the search. Black told

the officers that the $11,000 was proceeds from drug transactions, that he

had been selling drugs in St. Louis for approximately one year, and that

his sources were in New York. He also admitted that his true name was

Norman Everett Black.

In a complaint filed on January 17, 1992, Black was charged with

possession of cocaine with intent to distribute. On January 22, 1992, the

complaint was dismissed, and Black was released from custody after he

orally agreed to cooperate with the government. As a condition of the

agreement, Black was required to check in with Detectives Strehl and Gelhot

every day. Black honored the agreement for two days, but then left St.

Louis without informing the officers. In February 1992, Black was indicted

by a grand jury. On June 26, 1992, the $11,000 seized during the search

of Black's apartment was forfeited to the government pursuant to an

administrative forfeiture proceeding. Black did not contest the

forfeiture. In March 1995, Black was arrested in New York and a

superseding indictment was filed. Black filed numerous pre-trial motions,

including a motion to dismiss on double jeopardy grounds and a motion to

suppress evidence. The district court adopted the magistrate judge's4

recommendations that the motions be denied. Following a jury trial in

which he was convicted, Black appeals.

II.

Black raises twelve issues in this appeal, only four of which merit

discussion. 
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A. Double Jeopardy Claim

Black argues that the district court erred in failing to dismiss the

indictment. He contends that the indictment violates the Double Jeopardy

Clause of the Fifth Amendment because he was previously subjected to

jeopardy by the forfeiture of his property for the same offenses.

Black's claim is foreclosed by the Supreme Court's recent decision

in United States v. Ursery, No. 95-345, 1996 WL 340815 (U.S. June 24,

1996), which holds that civil forfeitures generally "do not constitute

`punishment' for purposes of the Double Jeopardy Clause." Id. at *2.

Following the framework set out in United States v. One Assortment of 89

Firearms, 465 U.S. 354 (1984), the Court concluded that forfeiture

proceedings under 21 U.S.C. § 881 and 18 U.S.C. § 981 are neither

punishment nor criminal for purposes of double jeopardy. Ursery, at *10.

Thus, Black's double jeopardy claim fails.

B. Consent to Search

Black next asserts that the district court erred in finding that he

voluntarily consented to the search of his apartment. Whether consent was

voluntarily given depends on the totality of the circumstances. United

States v. Heath, 58 F.3d 1271, 1276 (8th Cir.), cert. denied, 116 S. Ct.

240 (1995). We review a district court's finding of consent to search for

clear error. Id.

Black contends that the district court erred in discrediting the

testimony given by Baudo, the apartment's maintenance man. Because the

district court is in a better position to assess the credibility of the

witnesses, its determinations regarding credibility are "virtually

unreviewable on appeal." Id. at 1275.
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The district court was confronted with conflicting accounts of the

events that occurred prior to the search of Black's apartment and chose to

credit the officers' testimony over that given by Baudo. We find no clear

error in its decision to do so.

Black also contends that the search was unreasonable because the

apartment searched was not the apartment described in the consent form.

We disagree. First, Detective Gelhot testified that it was Black who gave

the address of 2301 South 13th Street instead of the correct address of

2201 South 13th Street. Detective Gelhot stated that when Black was

confronted with the error, he "expressed ignorance" regarding the correct

address and continued to believe that the correct address was 2301 South

13th Street. Moreover, there was no possibility that the officers searched

the wrong apartment, because no apartment existed at 2301 South 13th

Street. The record contained evidence that this mistake was common -- even

the apartment lease contained the incorrect address. In addition, of the

four numbers listed in the address, the only number present on the

apartment building was "0." The rest of the numbers were missing.

Furthermore, on prior occasions, the officers had seen Black enter the

apartment that was searched. Finally, during the incident in question,

Black led the officers to the correct apartment, used his key to open the

apartment door, and gave the officers oral consent to search. In these

circumstances, the search of the apartment at 2201 South 13th Street was

entirely reasonable.

C. Reference to Black as "the Jamaican"

Black next contends that the district court abused its discretion in

allowing the government to refer to him as "the Jamaican," thereby

prejudicing the jury against him. The record reveals that Sammy Lewis, a

confidential informant who testified for the government, knew Black only

as "Dickie" or "the Jamaican." The record supported the government's

contention that "the
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Jamaican" was merely a nickname that Black went by. In addition, none of

the statements referring to Black as "the Jamaican" were used in a

prejudicial manner. See United States v. James, 30 F.3d 84, 85 (8th Cir.

1994) (per curiam) (no prejudice when references identifying defendant as

Jamaican did not imply that he was involved in criminal enterprise because

of his ethnic origin). Thus, the district court did not abuse its

discretion in allowing the witnesses to refer to Black as "the Jamaican."

D. Sentence Enhancement

Black also asserts that the district court erred in enhancing his

sentence by four levels for obstruction of justice and for his role in the

offense. We review a district court's factual findings relied on to

enhance a defendant's sentence for clear error. United States v. Pena, 67

F.3d 153, 156-57 (8th Cir. 1995). The district court imposed a two-level

increase for obstruction of justice because Black had given a false name

to the officers and had fled the jurisdiction. The district court also

assessed a two-level enhancement because Black was the supervisor of a drug

operation involving three or more individuals. Our review of the record

satisfies us that the district court committed no error, for there was

ample evidence to support the sentencing enhancements.

III.

We have examined the remainder of Black's claims and find them to be

without merit. The conviction and sentence are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.