UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 98-4887
COLEEN ALLIEFIER SEXTON, a/k/a
Lynn Carraway, a/k/a Colleen
Sexton,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 98-4893
JERRY JEFFERSON SEXTON, a/k/a Jim
Smith, a/k/a George Thompson,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-97-361)

Submitted: June 30, 1999

Decided: September 24, 1999

Before NIEMEYER and KING, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

J. Joseph Condon, Jr., Charleston, South Carolina; Ann Briks Walsh,
Assistant Federal Public Defender, Charleston, South Carolina, for
Appellants. J. Rene Josey, United States Attorney, Sean Kittrell,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Jerry and Coleen Sexton appeal the district court's order granting
in part and denying in part their motions to dismiss the indictment
against them based on the alleged violation of their double jeopardy
rights. Finding no error, we affirm.

The basic facts of this case are straightforward and undisputed. The
Sextons were arrested in Virginia on March 31, 1996. Subsequent
searches of their persons and vehicle resulted in the seizure of approx-
imately 668 grams of cocaine, 21 grams of amphetamines, and three
firearms. The Sextons were ultimately convicted of various drug and
firearms offenses in the Western District of Virginia, and this court
affirmed their convictions and sentences.1 The search of the Sextons'
vehicle also resulted in the discovery of a receipt for a storage facility
in South Carolina. Law enforcement officers in South Carolina
obtained a search warrant for the storage facility and a trailer Jerry
Sexton had parked on the property. During the search, officers seized
approximately 24 grams of cocaine, drug paraphernalia, ten firearms,
a silencer, and 5,000 rounds of ammunition. The Sextons were then
_________________________________________________________________
1 See United States v. Sexton, Nos. 97-4862/4863 (4th Cir. May 10,
1999).

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indicted in South Carolina on additional drug and firearms charges.
They sought to have the district court in South Carolina dismiss this
indictment, alleging that their double jeopardy rights were being vio-
lated because the items seized at the storage facility were used against
them during their trial in Virginia. The district court in South Carolina
dismissed two of the counts in the indictment, finding that they vio-
lated the Sextons' double jeopardy rights. The court denied the Sex-
tons' motions as to the other counts, finding that the charges were
based on different facts and circumstances.

We review the district court's order denying the Sextons' double
jeopardy claims de novo. See United States v. Imngren, 98 F.3d 811,
813 (4th Cir. 1996). The Sextons bear the initial burden of raising the
double jeopardy issue and making a non-frivolous showing that the
South Carolina indictment charges them with offenses for which they
were previously placed in jeopardy. See United States v. Ragins, 840
F.2d 1184, 1191-92 (4th Cir. 1988). We find that the Sextons have
satisfied this requirement, and, therefore, the burden shifts to the Gov-
ernment to show by a preponderance of the evidence that the South
Carolina indictment charges separate offenses. See Ragins, 840 F.2d
at 1192. We find that the Government satisfied its burden.

In short, the Sextons were charged in the Virginia indictment with
possession of cocaine and amphetamines with intent to distribute on
the day of their arrest; carrying a firearm during and in relation to a
drug trafficking offense on the day of their arrest; 2 conspiring to pos-
sess with intent to distribute and to distribute cocaine and marijuana
from 1994 until the date of their arrest; conspiring to use or carry fire-
arms during and in relation to drug trafficking offenses from 1994
until the date of their arrest; and possession of an unregistered fire-
arm, which had been seized during the search of their vehicle. In addi-
tion, Jerry Sexton was charged with being a felon and a fugitive in
possession of firearms on the date of his arrest. The remaining counts
of the South Carolina indictment charge the Sextons with using or
carrying firearms during drug trafficking offenses in South Carolina
between February and April 1996. In addition, Jerry Sexton is
charged with being a felon and a fugitive in possession of the firearms
found at the storage facility and possession of an unregistered
_________________________________________________________________
2 See 18 U.S.C. § 924(c) (1994).

                    3
machine gun, which was also found during the search of the storage
facility.

During the Sextons' trial in Virginia, the prosecutor introduced evi-
dence concerning the firearms discovered in South Carolina and vari-
ous drug transactions, some involving firearms, which also occurred
in South Carolina. The Sextons allege that this evidence was used to
obtain their Virginia convictions and, therefore, cannot be used to
support the charges in the South Carolina indictment. We disagree.

The transcript of the Virginia trial clearly shows that the South
Carolina evidence was introduced solely for the purpose of establish-
ing that the conspiracies existed, and the district judge gave a proper
limiting instruction. Contrary to the Sextons' allegations, the conspir-
acies did not serve as the predicate offenses for the § 924(c) or the
felon/fugitive in possession charges. The prosecutor in the Virginia
trial made it clear, both during trial and in closing argument, that the
drugs and firearms which formed the bases of these charges were only
those which were discovered on the Sextons' persons and in their
vehicle at the time of their arrest. The prosecutor in South Carolina
informed the district court there that the § 924(c) and the
felon/fugitive in possession charges in South Carolina were based
solely on the drugs and firearms found at the storage facility and on
drug transactions which occurred in South Carolina.

In conclusion, our review of the record shows that the § 924(c) and
the felon/fugitive convictions in Virginia were based solely on evi-
dence obtained at the time of the Sextons' arrest and not on any South
Carolina evidence. Although the § 924(c) and felon/fugitive in pos-
session charges in South Carolina may be based on some of the evi-
dence which was used to obtain the conspiracy convictions in
Virginia, these are different offenses,3 and nothing in the Constitution
prohibits the Government from using the same evidence to prove dif-
ferent offenses. See United States v. Williams , 155 F.3d 418, 420-22
(4th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 626 (1998). We reject
_________________________________________________________________
3 See United States v. Felix, 503 U.S. 378, 387-92 (1992) (substantive
offense and conspiracy to commit that offense are not the same offense
for double jeopardy purposes). Of course, the conspiracies and the
felon/fugitive in possession charges are clearly different offenses.

                    4
Jerry Sexton's claim that the Government's "failure" to indict him in
Virginia for the machine gun found in South Carolina somehow acts
as an acquittal under an estoppel theory. Sexton cites no authority to
support this position, nor can we find any.

Accordingly, we affirm the district court's order granting in part
and denying in part the Sextons' motions to dismiss the South Caro-
lina indictment. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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