UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5706

ALBERT SHAW NELSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Court Judge.
(CR-95-333)

Argued: April 1, 1996

Decided: August 14, 1996

Before RUSSELL, WIDENER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: W. Gaston Fairey, FAIREY, PARISE & MILLS, P.A.,
Columbia, South Carolina, for Appellant. Marvin Jennings Caugh-
man, Assistant United States Attorney, Columbia, South Carolina, for
Appellee. ON BRIEF: Margaret B. Seymour, United States Attorney,
Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this interlocutory appeal, Albert Shaw Nelson, invoking the
Double Jeopardy Clause of the Fifth Amendment, seeks to dismiss a
pending federal indictment against him in the United States District
Court for the District of South Carolina, Columbia Division, for con-
spiracy to distribute cocaine, crack cocaine and marijuana in violation
of 21 U.S.C. §§ 841(a)(1) and 846; conspiracy to launder drug pro-
ceeds in violation of 18 U.S.C. § 371; and maintaining a continuing
criminal enterprise in violation of 21 U.S.C. § 848. Nelson also seeks
to bar the Government from proceeding on a forfeiture action pursu-
ant to 21 U.S.C. §§ 848 and 853 for the above violations. Nelson con-
tends (1) that a previous federal conviction for drug conspiracy in
Savannah, Georgia, bars the present federal indictment in South Caro-
lina because both involved the same conduct, and (2) that a prior for-
feiture of three pieces of his real property constitutes a double
jeopardy bar to the current indictment. Finding that Nelson had not
previously been placed in jeopardy either by having pled guilty to the
Savannah conspiracy, or by the previous forfeiture, we affirm the dis-
trict court's denial of Nelson's motion to dismiss based on double
jeopardy.

I.

In October 1989, a federal indictment in Savannah, Georgia (here-
inafter, the "Savannah indictment"), named Nelson as an "assistant"
to the principal supplier of a Savannah drug trafficking ring headed
by Byron Thompson. Following Nelson's arrest in March 1990, he
began providing information to federal authorities regarding his
involvement with the Savannah ring.

The organization, centered in Miami, Florida, was responsible for
delivering over 500 grams of cocaine to Savannah and other counties

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in Georgia. The primary actors supplying the Savannah ring were
Nelson and Yves Pierre ("Pierre") in Florida, and Byron Thompson
was the principal distributor in Savannah. Richard Williams acted as
courier for Nelson and Pierre, delivering cocaine to Thompson and
returning the proceeds to them in Florida. Nelson portrayed himself
as a mere conduit for collecting and receiving the proceeds from the
distribution of drugs in and around Savannah.

The Savannah indictment specifically focused on Nelson's assist-
ing Pierre in supplying drugs to Thompson in Savannah during the
years 1984 to 1989. In May 1992, Nelson pled guilty to the conspir-
acy count in the Savannah indictment and was incarcerated for 58
months with five years supervised release. Pursuant to a negotiated
settlement and criminal forfeiture action as part of the Savannah pros-
ecution, Nelson forfeited three pieces of real property in South Flor-
ida. Nelson was released in 1994 and was serving supervised release
when the 1995 federal indictment in South Carolina issued.

Subsequent government drug interdiction investigations uncovered
that Nelson played a greater role in drug trafficking than he had
revealed to the Savannah authorities. Apparently, Nelson had failed
to disclose his involvement with additional drug trafficking rings in
areas other than those covered by the Savannah indictment. As it turns
out, Nelson was a sophisticated supplier who oversaw drug manufac-
turing, distribution, and sales operations in Florida, Georgia, Pennsyl-
vania, and South Carolina. Further federal grand jury testimony in
South Carolina enabled the government to name Nelson as a "king-
pin" of the organization. Nelson was the principal supplier of Elmore
Moncrieft who operated a drug trafficking ring in South Carolina. The
government also contends that following his Savannah conviction,
Nelson continued to manage drug transactions from his jail cell in
Georgia.

In May 1995, a grand jury in the United States District Court for
the District of South Carolina, Columbia Division, (hereinafter, the
"South Carolina indictment") indicted Nelson, Moncrieft, and others
with one count of conspiracy to distribute cocaine, crack cocaine and
marijuana, and with one count of conspiracy to launder drug pro-
ceeds. A third superseding indictment also charged Nelson with a
continuing criminal enterprise ("CCE") count and sought forfeiture of

                    3
the assets gained from his drug sales. This federal indictment covered
activities occurring in South Carolina between 1988 and 1995. During
this time, Nelson allegedly provided his co-conspirators with 138
kilograms of cocaine and received payment of approximately two
million dollars.

Nelson moved to dismiss the South Carolina indictment on double
jeopardy grounds. The district court issued a written order denying
the motions. Nelson brought this interlocutory appeal.

II.

The Double Jeopardy Clause of the Fifth Amendment provides that
no person shall "be subject for the same offense to be twice put in
jeopardy of life or limb." The Clause protects against three distinct
abuses: "a second prosecution for the same offense after acquittal; a
second prosecution for the same offense after conviction; and multi-
ple punishments for the same offense." United States v. Halper, 490
U.S. 435, 440 (1989). Nelson claims the district court erred in deny-
ing his motion to dismiss the South Carolina indictment under the
Double Jeopardy Clause for two reasons. First, he contends that his
previous drug conspiracy conviction in Savannah bars the present
prosecution for conspiracy in South Carolina because he was involved
in but one conspiracy. Thus, he argues that he is facing a second pros-
ecution for the same offense. Second, Nelson contends that the court-
ordered forfeiture of three pieces of his real property as part of the
previous Savannah prosecution bars the Government from now prose-
cuting him for the present underlying crimes, or for any similar acts
committed in South Carolina.

When determining whether a defendant is being placed in jeopardy
a second time following a prior conviction or prosecution, the factual
determinations of the district court are reviewed under a clearly erro-
neous standard, United States v. Lurz, 666 F.2d 69, 74 (4th Cir. 1981),
cert. denied, 459 U.S. 843 (1982); and its legal conclusions are
reviewed de novo, United States v. McHan , 966 F.2d 134, 138 (4th
Cir. 1992).

A.

Nelson first contends that his prior conspiracy conviction in Savan-
nah bars the Government from prosecuting him under the South Caro-

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lina indictment. Both the Savannah and South Carolina indictments
charge the offense of conspiracy to distribute cocaine. Nelson asserts
that he was involved in a single continuous conspiracy that encom-
passed all of his drug trafficking activities along the eastern seaboard.
He argues that he was tried and convicted for this drug conspiracy in
Savannah, and that the pending South Carolina indictment constitutes
a second prosecution for the same offense. We must determine there-
fore, whether the successive conspiracy counts charge the "same
offense" within the meaning of the Double Jeopardy Clause.

This court evaluates double jeopardy claims regarding successive
conspiracy counts pursuant to the following five-part totality of the
circumstances test:

          (1) the time periods in which the conspiracies are alleged
          to have occurred;

          (2) the places in which the conspiracies are alleged to have
          occurred;

          (3) the persons allegedly acting as co-conspirators;

          (4) the substantive statutes alleged to have been violated;

          (5) the overt acts alleged to have been committed in fur-
          therance of the conspiracies, or any other descriptions of the
          conspiracies charged which indicate their nature and scope.

United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir. 1986).
The district court followed this test and concluded that Nelson was
involved in separate and distinct conspiracies. Nelson maintains the
district court misapplied the MacDougall factors because the South
Carolina indictment charges crimes that were a sub-part of his overall
scheme to distribute cocaine to multiple locations throughout the
southeast.

Nelson argues that the overlapping time periods of the two alleged
conspiracies coupled with his using the same courier (Williams) to
deliver cocaine and crack cocaine from the same source city--Miami

                     5
--supports his single conspiracy theory. Nelson's cursory presenta-
tion of the Savannah conspiracy and the alleged South Carolina con-
spiracy as a single continuous conspiracy is misleading because the
South Carolina conspiracy fails to encompass the entirety of the
Savannah conspiracy, and the South Carolina indictment does not
charge Nelson a second time for identical criminal conduct. Thus, for
the reasons that follow we conclude Nelson was involved in separate
conspiracies to violate the narcotics laws.

The Savannah indictment establishes that the Savannah conspiracy
began no later than March 1, 1984, and lasted until and including Sep-
tember 26, 1989. Conversely, the South Carolina indictment charges
the South Carolina conspiracy began in "at least" 1988 and continued
until September 19, 1995. The South Carolina conspiracy began
approximately four years after the beginning of the Savannah conspir-
acy and ended almost six years later. For the most part, the conspira-
cies occurred over distinct and identifiable time periods.

The fact that the two conspiracies temporarily overlap during 1988
and 1989 is insignificant. The South Carolina indictment charges Nel-
son with six overt acts of receiving approximately $664,000 in drug
proceeds from drug distributions in South Carolina during the months
of March, May, June, and September 1988, and in May and June of
1989. Nelson, however, was not charged with participating in any
overt acts in Savannah in 1988. And the one substantive act constitut-
ing his participation in the Savannah conspiracy to which he did plead
guilty occurred on August 9, 1989. Thus, the dates of the overt acts
attest to the fact that Nelson participated in the Savannah and South
Carolina conspiracies at specifically identifiable and distinct times.

The locations in which each conspiracy occurred also differ. The
Savannah indictment identified Nelson as having engaged in drug
trafficking activities "in Chatham County within the Southern District
of Georgia, Fulton, Clayton and Dekalb Counties within the Northern
District of Georgia, the Southern District of Florida, and elsewhere
. . . ." Joint Appendix at 16. The pending South Carolina indictment,
on the other hand, charges Nelson with conspiring to ship drugs and
money into and out of Bamberg, Barnwell, and Orangeburg Counties,
South Carolina. The South Carolina indictment charges no conduct in

                    6
Savannah. Thus, the locations in which each conspiracy occurred are
geographically distinct.

Nonetheless Nelson contends that the phrase "and elsewhere" in the
Savannah indictment encompassed his alleged criminal acts in South
Carolina. We disagree. The phrase is a term of construction used fre-
quently in indictments. Its use in the Savannah indictment accounted
for and referenced all conduct known and unknown to the Govern-
ment specifically relating to the Savannah conspiracy. The phrase
"and elsewhere" does not serve to contemplate all of Nelson's alleged
past and future criminal activity in South Carolina.

As to named co-conspirators, the persons identified in the South
Carolina conspiracy are persons not even named in the Savannah con-
spiracy. Nelson's name is the only one to appear in both indictments.

Nonetheless, Nelson argues that he used the same courier, Wil-
liams, to deliver cocaine to his Savannah and South Carolina distribu-
tors. Despite the fact that the same courier occasionally facilitated
drug transactions and collected drug money in both Savannah and
South Carolina on the same route, the individuals with whom the cou-
rier dealt--the principals, the substantive players, the contacts and the
buyers--were different in each state and changed over the time peri-
ods. The mere use of the same courier to deliver drugs to completely
different persons on the same trip along the eastern seaboard does not
manifest one conspiracy.

The separateness of the conspiracies is underscored further by the
fact that the substantive statutes alleged to have been violated in
South Carolina differ from those to which Nelson pled guilty in
Savannah. In South Carolina, Nelson is charged with money launder-
ing in addition to the conspiracy charge and conspiring to possess and
to distribute marijuana, cocaine and cocaine base. In Savannah, Nel-
son was charged with only conspiring to distribute cocaine and
cocaine base. He was not charged with money laundering. Addition-
ally, none of the co-defendants' substantive offenses as charged in the
Savannah indictment are related to, or identical to those with which
Nelson is charged in South Carolina.

Finally, in Savannah, Nelson's overt act consisted of a phone call
he made to Thompson to discuss payment of a cocaine shipment. In

                     7
South Carolina, Nelson is alleged to have received approximately
$2,000,000 for providing his South Carolina distributors with 138
kilograms of cocaine between the years 1988 and 1995. None of the
specific deliveries constituting the 138 kilograms sold in South Caro-
lina nor the money collected from those sales was referenced in the
Savannah indictment.

By comparing evidence from Nelson's Savannah conviction with
grand jury testimony from the pending case, and by following
MacDougall, it is apparent that there were two separate agreements
among distinct groups of participants to commit separate and inde-
pendent violations of the narcotics laws. The alleged similarities,
which Nelson cites, do not affirmatively constitute a sufficient over-
lapping of key actors, methods, and goals. United States v. Leavis,
853 F.2d 215, 218 (4th Cir. 1988). Therefore, it was not clear error
for the district court to have found that Nelson participated in multiple
conspiracies and that the pending South Carolina conspiracy charge
is a different conspiracy offense than that to which Nelson pled guilty
in 1992.

B.

Nelson next contends that when he forfeited his three parcels of
real property as part of the Savannah prosecution, he forfeited all
assets and proceeds resulting from all of his drug activities from 1984
until November 1992, when the forfeiture was initiated. Thus, Nelson
argues that double jeopardy bars the South Carolina indictment
because the Savannah forfeiture constitutes a punishment for all drug
trafficking that occurred prior to November 1992, a period that
includes the present indictment. We disagree.

In Savannah, Nelson pled guilty to one count of conspiracy to dis-
tribute cocaine in violation of 21 U.S.C. § 846. As part of the Savan-
nah prosecution, the government initiated a criminal forfeiture action
against Nelson pursuant to 21 U.S.C. § 853(a)(1). Under § 853(a)(1),
the government can initiate forfeiture proceedings against "any person
convicted of a [drug violation] punishable by imprisonment for more
than one year . . . ." The government can seek forfeiture only of pro-

                    8
ceeds, which includes "any property constituting, or derived from,
any proceeds the person obtained, directly or indirectly."*

The Preliminary Order of Forfeiture, filed December 17, 1992
identified Nelson's property as "proceeds derived directly or indi-
rectly from the unlawful drug activities charged in Count I of the
[Savannah] indictment." Count I identified Nelson as having engaged
in unlawful drug activities between March 1, 1984, and September
26, 1989. Count I also identified the primary places of activity as hav-
ing occurred "in Chatham County within the Southern District of
Georgia, Fulton, Clayton, and Dekalb Counties within the Northern
District of Georgia, the Southern District of Florida and elsewhere
. . . ." Joint Appendix at 16. The Consent Decree for Forfeiture,
which Nelson signed on November 23, 1992, identified the properties
Nelson forfeited as those:

          properties constituting or derived from the proceeds which
          [Nelson] obtained directly or indirectly as a result of his
          intentional and unlawful conspiracy to distribute and to pos-
          sess with intent to distribute in excess of 500 grams of
          cocaine and five grams of cocaine base in violation of 21
          U.S.C. § 846 and 18 U.S.C. § 2.

Joint Appendix at 101. Irrespective of the issuing date of the forfei-
ture, the Preliminary Order of Forfeiture and the Consent Decree for
Forfeiture, taken together, support our conclusion that the forfeiture
was properly initiated under § 853(a)(1) in response only to that crim-
inal conduct in which Nelson participated in Savannah between 1984
and 1989. We also conclude that the term "and elsewhere" as used in
Count I of the Savannah indictment did not contemplate Nelson's
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*Section 853(a)(1) reads:

          (a) Any person convicted of a violation of this subchapter or
          subchapter II of this chapter punishable by imprisonment for
          more than one year shall forfeit to the United States, irrespective
          of any provision of State law--

          (1) any property constituting, or derived from, any pro-
          ceeds the person obtained, directly or indirectly, as the result
          of such violations . . . .

                    9
drug activities in South Carolina during the period 1989 to 1992 with
respect to the criminal forfeiture.

Because the government secured the 1992 Savannah forfeiture in
response to Nelson's criminal conduct in Savannah, and because the
Savannah conspiracy involved conduct different from that alleged in
the South Carolina indictment, Nelson's right against double jeopardy
has not been violated by the instant South Carolina indictment.

III.

For the foregoing reasons the decision and order of the district
court denying Nelson's motion to dismiss is

AFFIRMED.

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