UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-16

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

SAMUEL MANNING, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Newport News. Jerome B. Friedman, 

District Judge. (4:07-cr-00081-JBF-JEB-2) 

Argued: December 3, 2009 Decided: January 21, 2010 

Before WILKINSON, SHEDD, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Jon Michael Babineau, RIDDICK BABINEAU, PC, Suffolk, 

Virginia; Lawrence Hunter Woodward, Jr., SHUTTLEWORTH, RULOFF, 

SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for 

Appellant. Brian James Samuels, OFFICE OF THE UNITED STATES 

ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Dana 

J. Boente, United States Attorney, Alexandria, Virginia; Eric M. 

Hurt, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Newport News, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 The question in this case is whether a superseding 

indictment for Samuel Manning’s involvement in a drug conspiracy 

violates the Double Jeopardy Clause because of his prior 

conviction for participating in a separately charged drug 

conspiracy. The district court determined by a preponderance of 

the evidence that these two conspiracies were separate and 

distinct and held accordingly that the government was not barred 

from prosecuting him in this case. We review the district 

court’s factual finding for clear error. United States v. McHan, 

966 F.2d 134, 138-39 (4th Cir. 1992). 

 On September 11, 2006, a grand jury returned an indictment 

charging Manning and four co-defendants with, among other 

things, conspiring to distribute cocaine, cocaine base, and 

heroin under the leadership of Kasine Powers (the “Powers 

Conspiracy”). On November 9, 2006, Manning pled guilty to the 

conspiracy charge and a related count and was subsequently 

sentenced to 120 months imprisonment. 

 On August 14, 2007, a grand jury returned a superseding 

indictment charging Manning with, among other things, conspiring 

to distribute cocaine base with Donald Smith (the “Smith 

Conspiracy”). Manning filed a motion to dismiss the superseding 

indictment on Double Jeopardy grounds. Following an evidentiary 

hearing, the district court denied the motion. This 

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interlocutory appeal followed pursuant to Abney v. United 

States, 431 U.S. 651, 662 (1977). 

 The district court applied this court’s precedent in 

United States v. Ragins, 840 F.2d 1184, 1188-89 (4th Cir. 1998) 

to the letter -- determining whether the two conspiracies were 

in fact the same conspiracy under the totality of the 

circumstances. In the court’s view, Manning made a nonfrivolous showing that the two conspiracies were the same: the 

time periods of the two conspiracies overlapped, both 

conspiracies occurred in Newport News, Virginia, and both 

involved cocaine base. But the court ultimately determined that 

the two conspiracies were separate by a preponderance of the 

evidence. It emphasized four factors. First, the participants 

in the two conspiracies were, apart from Manning, unique. 

Second, Manning’s personal involvement in the Powers Conspiracy 

dealt with heroin, but his involvement in the Smith Conspiracy 

dealt with cocaine base. Third, Manning’s participation in the 

Smith Conspiracy predated his involvement in the Powers 

Conspiracy. Fourth, the two conspiracies differed in scope and 

organization; while the Smith Conspiracy was simply an agreement 

between Manning and Smith to distribute cocaine base, the Powers 

Conspiracy consisted of a large network of individuals who 

distributed various drugs for Kasine Powers. 

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 In light of these factors, it was not clear error for the 

district court to find that the two conspiracies were separate 

and distinct. Accordingly, the judgment of the district court 

is 

AFFIRMED.