UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 97-4484
KLYNE MILTON MCMAHAN, JR., a/k/a
J.R., a/k/a John Adams, a/k/a Mike
McMahon,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-96-203)

Submitted: August 11, 1998

Decided: September 2, 1998

Before ERVIN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jennifer T. Staton, J.T. STATON, P.C., Norfolk, Virginia, for Appel-
lant. Helen F. Fahey, United States Attorney, Fernando Groene,
Assistant United States Attorney, Kent P. Porter, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Klyne Milton McMahan, Jr., appeals his conviction and sentence
for conspiracy to obstruct justice, in violation of 18 U.S.C. §§ 2, 371,
1503 (1994). We affirm.

In November 1996, McMahan was named in one count of an
eleven count indictment along with his brother, Fred McMahan
("Fred"), his nephew Christopher Woodard, and other conspirators
"known and unknown" that charged conspiracy to obstruct justice by
attempting to prevent the forfeiture of several properties through false
and misleading statements and claims. In August 1993, McMahan
was indicted for a drug distribution conspiracy beginning in or about
1979 and continuing through January 1991, to which he pleaded
guilty. In that indictment, the Government sought forfeiture of several
properties obtained by McMahan in Kentucky. Finding that the prop-
erties either constituted proceeds derived from drug trafficking activi-
ties or facilitated such activities, the district court ordered the
forfeiture of the properties pursuant to 21 U.S.C.§ 853(a) (1994).1
Notice was provided to persons potentially having an interest in the
forfeited properties and several petitions were filed challenging the
forfeitures.2
_________________________________________________________________
1 The forfeited properties were obtained and used to provide security
and protection to marijuana fields adjacent to McMahan's farm, to culti-
vate marijuana seedlings, to process harvested marijuana, and to impress
McMahan's girlfriend.
2 Nancy Landi filed a petition as the titled owner for the properties
known as the "C.J. Gray Place" and the "Equitable Property;" Christo-
pher Woodard filed a petition as the titled owner for the "Lake House;"
Sonja Woodard, McMahan's sister, filed a petition as the titled owner for
the "Roberts Place;" Klyne Milton McMahan, Sr., filed a petition for the
"Rose Place" and the "Humphrey's Place," though he was not the titled
owner; and Monica Napieralski filed a petition as the titled owner of the
"Field's Place."

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At trial, the Government presented evidence that while serving his
sentence for the 1993 drug conspiracy conviction, McMahan devised
and implemented a plan to fight the forfeitures. McMahan began by
writing his brother Fred3 and insisting that they develop a plan to fight
the forfeitures. Through numerous letters and phone calls, McMahan
directed Fred and the persons filing the petitions challenging the for-
feitures ("petitioners") on how to fight the forfeitures. Fred testified
that McMahan told the petitioners the stories they needed to tell to
justify their ownership claims and to make it look like the properties
were purchased by the people who held the titles. These stories were
also told to the attorneys filing the petitions on behalf of the petition-
ers. Fred further testified that his job was to coordinate the attorneys
for the petitioners and make sure that each petitioner remained a part
of the plan. The record also establishes that McMahan kept an exten-
sive written record of the stories he wanted the petitioners to tell to
avoid inconsistencies.

Also at trial, Monica Napieralski testified that following several
phone calls and letters from McMahan, McMahan convinced her that
she could win the forfeiture action if she asserted that she had danced
for the money used to buy the property. Napieralski paid no money
for the property even though it was titled in her name. Nancy Landi
also testified that McMahan instructed her on what to say about how
she purchased the properties but was not to say that the purchase
money came from McMahan. Chris Woodard testified that the prop-
erty he asserted ownership over had been purchased by McMahan and
put into Woodard's name. Woodard admitted that some of the facts
in his petition were supplied by McMahan and that the facts were not
true.

On appeal, McMahan first asserts that the district court improperly
denied his motions for continuance prior to trial and at trial. We
review denial of a continuance for abuse of discretion. See United
States v. Bakker, 925 F.2d 728, 735 (4th Cir. 1991). Abuse of discre-
tion will only be found when the denial was an "`unreasoning and
arbitrary insistence on expeditiousness in the face of a justifiable
_________________________________________________________________
3 Fred McMahan was a licensed and practicing attorney in Florida who
assisted McMahan in the marijuana business and received money from
McMahan to attend law school.

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request for delay.'" Id. (quoting Morris v. Slappy, 461 U.S. 1, 11-12
(1983)).

McMahan claims that a continuance was necessary given the vol-
ume of records and because he had several out of state witnesses for
which he could not get addresses. The court concluded that the volu-
minous record and potentially large amount of witnesses did not merit
a continuance and noted that McMahan had been through the discov-
ery material twice before in previous litigation and could assist his
counsel. Also, McMahan's attorney admitted that she had had com-
plete access to the documents, received a summary sheet of the evi-
dence numbered by series and logged by number, and had seventy
days in which to go through the material. McMahan fails to show that
counsel was unable to prepare for trial or that he was prejudiced in
any way. Thus, the district court did not abuse its discretion in deny-
ing McMahan's motion for a continuance.

McMahan next asserts that the district court erred by denying his
motion to dismiss on double jeopardy grounds. McMahan claims that
his 1993 indictment for drug conspiracy constitutes the same offense
as the present indictment for conspiracy to obstruct justice.

In analyzing double jeopardy claims involving conspiracy charges
this court applies a "totality of circumstances" test. See United States
v. Ragins, 840 F.2d 1184, 1188 (4th Cir. 1988). To determine whether
two conspiracies constitute the same offense, we consider the follow-
ing five factors: (1) the time periods of the conspiracies; (2) the
place where the conspiracies occurred; (3) the charged co-
conspirators; (4) the overt acts done in furtherance of the conspira-
cies; and (5) the substantive statutes involved. Id. at 1189.

We find that the two conspiracies were not the same. First, the
record shows that there is no overlap in the time periods of the con-
spiracies. The 1993 indictment involved two charges. The first count
involved drug trafficking conspiracy operating from 1979 to January
1991. The second count involved a money laundering conspiracy
operating from December 1983 to March 1991. The present indict-
ment, however, charges a conspiracy to obstruct justice from April
1993 to 1996.

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Second, the activities underlying the 1993 indictment took place in
Virginia, Kentucky, Florida, Texas, Arizona, and Colorado. The
activities underlying the present indictment were also conducted in
Virginia, Kentucky, and Florida. However, other significant conduct
underlying the present indictment occurred in Tennessee and Illinois.
Thus, the obstruction of justice conspiracy encompassed different
areas.

Third, there is virtually no overlap in the named co-conspirators.
The only co-conspirator named in both conspiracies is McMahan.

Fourth, the two conspiracies had separate purposes involving dif-
ferent overt acts. The 1993 indictment involved a drug conspiracy
with the primary purpose of making money through the distribution
of marijuana and cocaine and a money laundering conspiracy intent
on concealing drug proceeds through the purchasing of real estate and
investing in businesses. The overt acts involved growing, harvesting,
transporting, purchasing, and distributing marijuana, as well as the
purchase of properties with drug proceeds. The present indictment
involves a conspiracy to obstruct justice by preventing the seizure and
forfeiture of property obtained through drug proceeds. The overt acts
in this conspiracy involve written and oral communications between
McMahan and the other co-conspirators concerning forfeiture litiga-
tion and the filing of false and perjurious petitions. Though the earlier
conspiracies provide context for the current conspiracy, the overt acts
in each are different. See, e.g., United States v. Mullins, 22 F.3d 1365,
1373 (6th Cir. 1994) (proof of the underlying offense is relevant to
the defendant's motive in obstruction of justice cases).

Finally, the substantive statutes involved also differ. The 1993
indictment involved violations of 21 U.S.C. #8E8E # 841, 846 (1994), and
18 U.S.C. §§ 371, 1956(1)(B)(i) (1994). Whereas the present indict-
ment involves the violation of 18 U.S.C. §§ 371, 1503 (1994).
Because the specific nature and scope of the conspiracies as well as
their time frames differ, we find that McMahan was not placed in
double jeopardy.

McMahan next asserts that the evidence was insufficient to support
his conviction of conspiracy to obstruct justice. We must affirm
McMahan's conviction "if there is substantial evidence, taking the

                    5
view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942). Viewed in the light most favor-
able to the Government, the evidence at trial showed that McMahan
associated and agreed with others to prevent forfeiture of the Ken-
tucky properties. The evidence at trial--including testimony of co-
conspirators, along with several letters written by McMahan--is suf-
ficient to sustain his conviction of conspiracy to obstruct justice.

McMahan next asserts that the district court erred in enhancing his
offense level four levels for his role as a leader or organizer of five
or more people pursuant to U. S. Sentencing Guidelines Manual
§ 3B1.1 (1997) ("USSG"). The evidence at trial showed that McMa-
han, through his brother Fred, devised, organized and controlled from
prison a plan to challenge the forfeiture of the Kentucky properties
that involved five or more people. Thus, the district court's four-level
enhancement was not clearly erroneous. See United States v. Borden,
10 F.3d 1058, 1063 (4th Cir. 1993).

McMahan next asserts that the district court erred by applying a
two-level enhancement for obstruction of justice due to McMahan's
false testimony at trial pursuant to USSG § 3C1.1. "In determining
that a defendant has obstructed justice, it is preferable for the district
court to make specific findings that the defendant testified
`(1) falsely, (2) as to a material fact, and (3) willfully in order to
obstruct justice, not merely inaccurately as the result of confusion or
a faulty memory.'" United States v. Cook, 76 F.3d 596, 605 (4th Cir.
1996) (quoting United States v. Thompson, 962 F.2d 1069, 1071
(D.C. Cir. 1992)).

The record shows that the district court found that McMahan com-
mitted perjury during his trial testimony when McMahan testified that
he bought the Kentucky properties with money he earned from shoe-
ing horses and that he had no interest in the "Lake House," which was
purchased by Jerry Berry with $40,000 provided by McMahan. The
district court based this determination on the fact that there was no
evidence at trial that McMahan had any legitimate income during the
time period in which the properties were purchased. Further, the dis-
trict court found that the funds given to Berry were part of the consid-
eration of the purchase of that property. McMahan's testimony was
intended to affect the outcome of the trial. Therefore, we conclude

                     6
that the district court did not clearly err in applying a two-level
enhancement for obstruction of justice.

Finally, McMahan asserts that the district court improperly ordered
his sentence to run consecutively with his previously imposed federal
sentences. Under USSG § 5G1.3(a):

          If the instant offense was committed while the defendant
          was serving a term of imprisonment . . . or after sentencing
          for, but before commencing service of, such term of impris-
          onment, the sentence for the instant offense shall be
          imposed to run consecutively to the undischarged term of
          imprisonment.

Thus, because McMahan committed the crime while serving a term
of imprisonment, the district court properly imposed the current sen-
tence consecutively to McMahan's undischarged sentence.

Accordingly, we affirm McMahan's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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