### The Honorable George F. Gunn, Jr., United States Distric t 1 

### Judge for the Eastern District of Missouri. ___________ No. 95-3877

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Norman Everett Black, * * Appellant. *

___________ Submitted: April 9, 1996 Filed: July 12, 1996

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

___________ WOLLMAN, Circuit Judge.

After a jury found Norman Everett Black guilty of distribution o f marijuana, possessionwith intent to distribute marijuana, and possession with intent to distri bute 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 las t count, all to be served concurrently. Black appeals his conviction an d sentence, raising several issues. We affirm.

I.

On Januar y 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 actua l address of Black's 2 

### apartment was 2201 South 13th Street and not 2301 South 13t h Street. Detective Strehl was unavailable to testify at th e

3 

### evidentiary hearing and at trial. -2- depart ment had been conducting a surveillance of Black because the y suspe cted that he was involved in a drug operation. Detectives Emmet t Gelhot and Steven Strehl identified themselves as police officers an d informed Black that t hey 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
. Accord ing to Detective Gelhot, Black identified himself as Dobson Case ; gave the address of his apartment as 2301 South 13th Street; and signed th e consent form "D. Case." At this point, three other officers arrived at th e scene, and the entire group proceeded to Black's apartment.

De tective Gelhot testified that Black voluntarily led the officer s to his apartment, which the officers believed was located at 2301 Sout h 13th Stree t, 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
sce ne, corroborated Gelhot's testimony. Jeff Baudo, the buildin g maintenance man, provided a different version of events. He testified tha t the police officers a sked 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 restrainin g Black at the time. Neither Detective Gelhot nor Detective Ehrhard recalle d 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 Honorab le Frederick R. Buckles, United States Magistrate 4 

### Judge for the Eastern District of Missouri. -3- and a t riple beam scale. After the officers again advised Black of hi s Miranda rights, Black stated that he was the sole resident of the apartmen t 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 wa s Norman Everett Black.

In a c omplaint filed on January 17, 1992, Black was charged wit h possession of cocaine with intent to distribute. On January 22, 1992, the complai nt was dismissed, and Black was released from custody after h e orallyagreed to cooperate with the government. As a condition of th e agreement, Black was required to check in with Detectives Strehl and Gelho t every d ay. Black honored the agreement for two days, but then left St
. Louis without informing the officers. In February 1992, Black was indicte d bya grand jury. On June 26, 1992, the $11,000 seized during the search of Black's apartment was forfeited to the government pursuant to a n admini strative forfeiture proceeding. Black did not contest th e forfei ture. In March 1995, Black was arrested in New York and a superseding indictment was filed. Black filed n umerous 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's 4
recom mendations that the motions be denied. Following a jury trial i n which he was convicted, Black appeals.

II.

Black rai ses 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 conte nds that the indictment violates the Double Jeopardy Clau se of the Fifth Amendment because he was previously subjected t o jeopardy by the forfeiture of his property for the same offenses.

Black's claim is foreclosed by the Supreme Court's recent decisio n in United States v. Ursery , No. 95-345, 1996 WL 340815 (U.S. June 24 , 1996), which holds that civil forfeitures generally "do not constitut e `punishmen t' for purposes of the Double Jeopardy Clause." Id. at *2
. Following the framework set out in United States v. One Assortment of 89 Firear ms , 465 U.S. 354 (1984), the Court concluded that forfeitur e pro ceedings under 21 U.S.C. § 881 and 18 U.S.C. § 981 are neithe r punishment nor crimin al for purposes of double jeopardy. Ursery , at *10. Thus, Black's double jeopardy claim fails.

B. Consent to Search

Black nex t asserts that the district court erred in finding that he voluntarily consented to the search of his apart ment. Whether consent was vol untarilygiven depends on the totality of the circumstances. Unite d States v. Heath , 58 F.3d 1271, 1276 (8th Cir.), cert. denied , 116 S. Ct. 240 (1995). We review a district court's findin g of consent to search for clear error. Id.

Black contends that the district court erred in discrediting th e tes timonygiven by Baudo, the apartment's maintenance man. Because th e district court is in a better position to assess the credibility of th e witnesses, its determinations regarding credibility are "virtuall y unreviewable on appeal." Id. at 1275.

### -5- The district court was confronted with conflicting accounts of th e events that occurred prior to the search of Blac k'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 th e apa rtment searched was not the apartment described in the consent form
. We disagree. First, Detective Gelhot testified that it was Black who gave the addre ss of 2301 South 13th Street instead of the correct address o f 2201 South 13th Street. Detective Gelhot stated that when Black wa s confronted with the e rror, 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 searche d the wrong apartment, because no apartment existed at 2301 South 13t h Street. The record contained evidence that this mistake was common -- eve n the apartment lease c ontained the incorrect address. In addition, of the fou r numbers listed in the address, the only number present on th e apa rtment building was "0." The rest of the numbers were missing
. Furthermore, on prior occasions, the officers had seen Black enter th e apa rtment that was searched. Finally, during the incident in question , Black led the officer s to the correct apartment, used his key to open the apartment door, and gave the officers oral consent to search. In thes e 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 distric t court abused its discretion in allowing the government to refer to him as "the Jamaican," thereb y prejudicing the jury against him. The record reveals that Sammy Lewis, a confidential informant who testified for the government, knew Black only
as "Dic kie" or "the Jamaican." The record supported the government' s contention that "the

### -6-

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) (n o prejudice when references identifying defendant as Jamaican did not imply that he was involved in c riminal enterprise because of his ethnic origin). Thus, the district court did not abuse it s discretion in allowin g the witnesses to refer to Black as "the Jamaican."

D. Sentence Enhancement

Black also asserts that the district court erred in enhancing hi s sentence by four levels for obstruction of justi ce and for his role in the offe nse. We review a district court's factual findings relied on t o 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 of ficers and had fled the jurisdiction. The district court als o assessed a two-level enhancement because Black was the supervisor of a dru g operation involving three or more individuals. Our review of the record satis fies us that the district court committed no error, for there wa s ample evidence to support the sentencing enhancements.

III.

We have examined the remainder of Bl ack'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.