UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                   No. 97-4034

ALBERT SHAW NELSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                   No. 97-4741

ALBERT SHAW NELSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                     No. 97-4755
ELMORE MONCRIEFT, a/k/a Mo, a/k/a
El Mo,
Defendant-Appellant.

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

Submitted: June 16, 1998

Decided: October 26, 1998
Before WIDENER and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jerry M. Screen, Columbia, South Carolina; Debra Y. Chapman,
Columbia, South Carolina, for Appellants. J. Rene Josey, United
States Attorney, Marvin J. Caughman, Assistant United States Attor-
ney, Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This case arises from an extensive drug distribution ring operating
out of Miami, Florida. Beginning sometime in the mid-1980's Albert
Nelson, Jr., and other individuals began distributing cocaine to vari-
ous purchasers up and down the east coast. In 1990 Nelson was con-
victed of drug conspiracy charges in the Southern District of Georgia
for his drug activities in the Savannah, Georgia area between 1984
through 1989. In 1995, Nelson, Elmore Moncrieft, and others were
indicted in the District of South Carolina on drug conspiracy and
money laundering charges for activities occurring in South Carolina
between 1988 and 1995. After Nelson's unsuccessful attempt to have
the South Carolina indictment dismissed under the Double Jeopardy
Clause of the Fifth Amendment, see United States v. Nelson, No. 95-
5706, 1996 WL 460280 (4th Cir., Aug. 14, 1996) (unpublished), he
and Moncrieft were convicted of conspiracy to distribute cocaine,

                    2
crack cocaine, and marijuana, and conspiracy to launder drug pro-
ceeds in violation of 18 U.S.C. §§ 371, 846 (1994). This appeal fol-
lowed. Finding no merit to the numerous claims raised on appeal, we
affirm.

Nelson and Moncrieft both contend that the government presented
insufficient evidence to sustain their convictions. To sustain a convic-
tion, this court must find that the evidence, when viewed in a light
most favorable to the government, was sufficient for a rational trier
of fact to have found the essential elements of the crime beyond a rea-
sonable doubt. United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.
1993). Circumstantial as well as direct evidence is considered, and the
government is given the benefit of all reasonable inferences from the
facts proven to those sought to be established. United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

At trial the government presented evidence that Nelson used couri-
ers to deliver large quantities of cocaine to various purchasers in
South Carolina, Atlanta, and Philadelphia. The couriers would then
return to Florida and give Nelson the cash proceeds from the drug
sales. Richard Williams testified that while working for Nelson he
delivered cocaine to Moncrieft at his South Carolina ranch on at least
thirty separate occasions. During one delivery Williams telephoned
Nelson from Moncrieft's ranch and had Moncrieft speak directly with
Nelson about purchasing eight instead of five kilograms of cocaine.
There was also evidence that on one occasion Nelson personally
accompanied Mark Sears in delivering cocaine to Moncrieft's ranch.
Viewing this evidence in a light most favorable to the government, we
find that there was sufficient evidence from which a reasonable jury
could have found that Moncrieft and Nelson conspired to distribute
cocaine.1
_________________________________________________________________
1 While Delroy Beckford was not named in the indictment as a cocon-
spirator or otherwise, unless included as an unindicted coconspirator or
an unknown other person, we note that Beckford testified for the govern-
ment at the trial as to various drug transactions between himself and
Moncrieft. So there is ample evidence to sustain any implicit conviction
for the possession of crack by Moncrieft as coming from Beckford, as
there is for such a conspiracy. So far as Nelson may be said to have
adopted Moncrieft's argument, that argument is likewise without merit.

                    3
Nelson also asserts that there was insufficient evidence to sustain
his money laundering conviction. To sustain Nelson's conviction for
conspiracy to launder monetary instruments, the government must
prove that Nelson and another coconspirator agreed to structure a
financial transaction knowingly involving the proceeds of an unlawful
activity, to conceal the nature of the proceeds or to avoid reporting.
See United States v. Heater, 63 F.3d 311, 318-19 (4th Cir. 1995). Nel-
son alleges that his money laundering conviction can not stand
because the government failed to present sufficient evidence that he
engaged in a "financial transaction" within the meaning of the money
laundering statute in the state of South Carolina. The short answer to
Nelson's claim is that the government is not required to prove as an
element of conspiracy to launder drug proceeds that Nelson laundered
drug money in South Carolina.2 The evidence adduced at trial showed
that Nelson obtained hundreds of thousands of dollars from the sale
of cocaine and marijuana, and with the help of Ira Bowers used this
drug money to purchase between fifteen and twenty properties,
including thoroughbred horse farms in Kentucky and Florida and
rental properties in the Miami area. Thus the record contains evidence
more than ample to support the jury's conclusion that Nelson engaged
in a conspiracy to violate the federal money laundering laws.

Nelson next contends that the district court erred in denying his
motion for acquittal based on his alleged withdrawal from the con-
spiracy. A defendant claiming abandonment or withdrawal in a crimi-
nal conspiracy bears the burden of producing evidence that he acted
affirmatively to defeat or disavow the purpose of the conspiracy. If
the evidence of withdrawal is ambiguous or in dispute, as here, the
issue is one for the jury. See United States v. Urbanik, 801 F.2d 692,
697 (4th Cir. 1986); United States v. Wooten, 688 F.2d 941, 946 (4th
Cir. 1982). Nelson testified at trial that he informed his coconspirators
that he was withdrawing from the drug distribution conspiracy in Feb-
_________________________________________________________________
2 Nelson does not dispute that South Carolina was a proper venue for
this conspiracy charge. Had he made such an assertion, the government
would have been obligated to show that an overt act in furtherance of the
conspiracy occurred in South Carolina. See United States v. Cabrales,
___ U.S. ___, 66 U.S.L.W. 4423, 4423 (U.S. June 1, 1998). We note,
however, that the transportation of funds from South Carolina to Florida
made South Carolina a proper venue. See id. at 4425.

                    4
ruary 1990, one month prior to his arrest on conspiracy charges in the
Southern District of Georgia. As further evidence of his alleged with-
drawal he notes that in February 1990 he began providing substantial
assistance to law enforcement officials investigating his drug distribu-
tion activities. Contrary to Nelson's assertion, however, the govern-
ment presented evidence that he maintained his involvement in the
drug business after 1990. Richard Williams testified that prior to Nel-
son's arrest in 1990 Nelson told him that James Hanks would be tak-
ing over the distribution operation. The government also presented
evidence that while Nelson was incarcerated he made numerous
phone calls to Hanks. Finally, Drug Enforcement Agent Darryle
Snider testified that Nelson withheld information about the scope of
his drug activities at the time of his arrest in 1990. From this evidence
we believe a jury could reasonably find that Nelson continued his
drug distribution activities following his 1990 arrest. Accordingly, we
find that the district court correctly let the jury determine whether
Nelson withdrew from the conspiracy in 1990.

Nelson's next three claims deal with his prior conviction for drug
conspiracy charges in the Southern District of Georgia. First, he con-
tends that the district court erred in allowing the introduction of evi-
dence about his drug activities in the State of Georgia. A district
court's evidentiary rulings are entitled to substantial deference and
will not be reversed absent a clear abuse of discretion. United States
v. Moore, 27 F.3d 969, 974 (4th Cir. 1994). The district court permit-
ted the government to introduce evidence relating to Nelson's past
conviction in Georgia under Federal Rule of Evidence 404(b).3 The
Court explicitly cautioned the government to minimize the presenta-
tion of testimony about Nelson's criminal activities in Georgia, and
repeatedly instructed the jury that the Georgia conviction was a sepa-
rate matter that could not be considered as proof of his guilt for the
charged offenses. While we recognize, as did the district court, that
at times the government may have overstepped its bounds in present-
ing this evidence, we find that the evidence was properly admitted
_________________________________________________________________
3 Rule 404(b) provides that evidence of other crimes, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith, but is admissible for other purposes such as to
prove motive, opportunity, intent, preparation, plan or knowledge. See
Fed. R. Evid. 404(b).

                     5
under Rule 404(b). To the extent that the amount of evidence intro-
duced with respect to Nelson's Georgia drug activities may have prej-
udiced him, we find any error in the admission of this evidence was
rendered harmless by the overwhelming evidence of Nelson's guilt
and the numerous limiting instructions the district court gave the jury.
See United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (find-
ing error is harmless so long as we can say with fair assurance that
the judgment was not substantially swayed by the error).

Nelson next urges this Court to reconsider its prior determination
that Nelson's drug activities resulting in his 1990 conviction in the
Southern District of Georgia were not part of the same conspiracy for
which he was convicted in this case. The law of the case doctrine dic-
tates that this court follow its previous decision rejecting Nelson's
double jeopardy claim unless: (1) substantially different evidence was
produced at trial; (2) controlling authority has since made a contrary
decision of law applicable to the issue; or (3) our prior decision was
clearly erroneous and would work manifest injustice. See Sejman v.
Warner-Lambert Co., 845 F.2d 66, 69 (4th Cir. 1988). Having
reviewed the record, we find that the evidence adduced at trial was
not substantially different from the activity alleged in Nelson's indict-
ment. The references at trial to Nelson's drug activities in Georgia
were merely incidental to the testimony about the broader drug distri-
bution operation for which he was on trial. Therefore, we find no rea-
son to revisit our prior determination that the government did not
charge Nelson with the same offense twice within the meaning of the
Double Jeopardy Clause.

Nelson also contends that the district court erred in refusing to sub-
mit to the jury the issue of whether his Georgia drug activities were
part of the same conspiracy charged in this case. This court reviews
a district court's refusal to give a requested jury instruction for an
abuse of discretion. See United States v. Russell, 971 F.2d 1098, 1107
(4th Cir. 1992). In rejecting Nelson's request to submit the issue to
the jury, the district court recognized that the law of the case required
it to abide by this court's determination that Nelson's activities consti-
tuted two separate conspiracies. Accordingly, we find no abuse of dis-
cretion in the district court's refusal to give Nelson's requested
instruction.

                     6
Nelson next alleges that the government improperly used informa-
tion in his prosecution that it obtained from him as part of his plea
agreement in the Southern District of Georgia. Specifically, he con-
tends that FBI Agent James Skrak obtained DEA records from Nel-
son's Georgia conviction to locate and convince Richard Williams to
cooperate in the government's investigation in this case. Hence he
asserts that the district court should have stricken Williams' testimony
because it was obtained in violation of his earlier plea agreement, and
without Williams' testimony there was insufficient evidence to sus-
tain his conviction.

While it is true that evidence initially obtained unlawfully may be
admissible if later acquired through a lawful, independent source, see
Murray v. United States, 487 U.S. 533, 537 (1988), we find that the
government did not learn of Williams' identity through unlawful
means and thus the district court did not err in admitting Williams'
testimony. Nelson's plea agreement in the Southern District of Geor-
gia required him to fully and truthfully disclose to the government
everything he knew about drug trafficking. The agreement also
explicitly stated that if Nelson knowingly withheld evidence from
government investigators then the government was entitled use any
information he provided in a subsequent prosecution. In reaching our
previous decision that Nelson's drug activities in Georgia constituted
a separate conspiracy from the conspiracy charged in this case, we
recognized that the government was alleging that Nelson had failed
to disclose the full extent of his drug activities at the time of his con-
viction in the Southern District of Georgia. See Nelson, No. 95-5706,
1996 WL 460280 at *1. The government has now proven that Nelson
ran an extensive multi-state drug distribution ring that was in opera-
tion as early as 1988, two years prior to his conviction in Georgia.
Accordingly, the record convinces this court that Nelson failed to dis-
close to the government the full extent of his drug activities in accor-
dance with his plea agreement in the Southern District of Georgia.
Because Nelson failed to abide by the terms of that agreement, the
government was not restricted by that agreement from using informa-
tion obtained from Nelson in his prosecution in this case. Therefore,
we find no abuse of discretion in the district court's decision to admit
Williams' testimony in evidence.

                     7
We find no merit to Nelson's claim that the district court erred in
denying his motion to dismiss for vindictive prosecution. This court
reviews a district court's factual findings regarding prosecutorial mis-
conduct for clear error, and when there are no factual findings we
review such claims de novo. See United States v. McDonald, 61 F.3d
248, 253 (4th Cir. 1995). Nelson alleges that the government imper-
missibly retaliated against him by naming him in a third superseding
indictment after he filed his interlocutory appeal challenging his
indictment.4 This court will reverse a conviction that is the result of
a vindictive prosecution where the facts show an actual vindictiveness
or a sufficient likelihood of vindictiveness to warrant such a presump-
tion. See United States v. Goodwin, 457 U.S. 368, 373 (1982). Here,
the prosecution ultimately elected not to go forward on the third
superseding indictment. Therefore, Nelson has not demonstrated any
prejudice in support of his prosecutorial misconduct claim, see gener-
ally Darden v. Wainwright, 477 U.S. 168, 181 (1986), and fails to
show that his conviction was the result of a vindictive prosecution.
Even if Nelson could establish that the government acted with vindic-
tiveness in issuing the third superseding indictment, his failure to
allege that this indictment had any effect upon his conviction renders
his claim without merit. Finding no merit to his vindictive prosecution
claim, we find no error in the district court's decision not to hold an
evidentiary hearing on the issue.

Nelson asserts that a mistrial was warranted because the district
court's supplemental charge to the jury mischaracterized and improp-
erly stressed certain testimony from Agent Snider. Nelson's defense
at trial was that he had withdrawn from the conspiracy before May
17, 1990, and thus the statute of limitations had run before the gov-
ernment obtained an indictment charging him with the conspiracy. In
support of this defense Nelson called DEA Agent Snider as a witness
to testify about the substantial assistance Nelson provided law
enforcement officials following his arrest in the Southern District of
Georgia. On cross-examination, however, the government elicited
from Agent Snider that Nelson failed to disclose to Agent Snider the
names of numerous individuals involved in the drug distribution con-
spiracy for which he was on trial. During deliberations the jury asked
_________________________________________________________________
4 The third superseding indictment added a Continuing Criminal Enter-
prise and a forfeiture allegation against Nelson.

                    8
the court for clarification on the law concerning the statute of limita-
tions. The court then summarized the law concerning withdrawal
from a conspiracy and added:

          In order to find Nelson not guilty based on the issue of
          whether before May 17th, 1990, he withdrew from the con-
          spiracy, you must find that he totally and completely with-
          drew from the conspiracies before May 17th, 1990. During
          the trial you heard the testimony of the prosecution wit-
          nesses, including the testimony of DEA Agent Snider from
          Savannah Georgia, and you've also heard the testimony of
          the defendant, Nelson, and a couple of his witnesses on this
          issue. The true issue then before you becomes one of credi-
          bility. If you credit the Government witnesses and the testi-
          mony of DEA Agent Snider, you should conclude that
          Nelson did not totally and completely withdraw from the
          conspiracies in a timely and sufficient manner. On the other
          hand, if you credit the testimony of Nelson and a couple of
          his witnesses, you should find that he withdrew from the
          conspiracies before the statute of limitations began to run on
          May 17th, 1990.

(Supp. JA Vol. 1, 112-13).

A district court should respond to jury requests for supplemental
instructions so as to clear up any apparent confusion without creating
prejudice. United States v. United Medical & Surgical Supply Corp.,
989 F.2d 1390, 1407 (4th Cir. 1993). We review a district court's sup-
plemental instructions and its denial of a motion for a mistrial under
an abuse of discretion standard. United States v. Horton, 921 F.2d
540, 546 (4th Cir. 1990); United States v. West , 877 F.2d 281, 287-88
(4th Cir. 1989). We do not find that the district court's supplemental
instruction mischaracterized the evidence presented at trial. The
court's instruction appropriately outlined the relevant law and clari-
fied for the jury the parties' positions based on the evidence with
respect to Nelson's purported withdrawal from the conspiracy.
Accordingly, we find no abuse of discretion in the district court's
refusal to declare a mistrial based on the supplemental instruction.

Nelson's final claim is that the district court erroneously consid-
ered for sentencing purposes cocaine he distributed in Philadelphia

                     9
because these drugs were not specifically charged in his indictment.
He also alleges that his Georgia sentence encompassed his distribu-
tion activities in Philadelphia and thus the district court improperly
sentenced him for drugs he had already been sentenced for in the
Southern District of Georgia. This court reviews questions involving
legal interpretations of the guidelines de novo, see United States v.
Wessells, 936 F.2d 165, 168 (4th Cir. 1991), and factual determina-
tions underlying application of the guidelines for clear error. See
United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).

In determining the quantity of drugs attributable to a defendant
convicted on a drug conspiracy charge, a defendant is responsible for
all reasonable foreseeable drug distribution taken in furtherance of the
conspiracy. See United States v. Ellis, 975 F.2d 1061, 1067 (4th Cir.
1992) (citing United States Sentencing Guidelines Manual § 1B1.3).
A sentencing court may take into account quantities of drugs that
were not charged or otherwise specified in the indictment, so long as
it finds, by a preponderance of the evidence, that the conduct involv-
ing the additional amounts occurred and that it was part of the same
scheme or course of conduct as the counts of conviction. See United
States v. Williams, 977 F.2d 866, 870 (4th Cir. 1992). Therefore, Nel-
son's claim that the district court incorrectly considered the cocaine
he distributed in Philadelphia solely because it was not charged in the
indictment is without merit. In addition, the district court's finding
that Nelson had not previously been sentenced for his Philadelphia
drug activities was not clearly erroneous. Hence, the district court
properly considered drug amounts from Philadelphia for sentencing
purposes.

Accordingly, we affirm Appellants' convictions and Nelson's sen-
tence. 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

                    10
