                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4239


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES RILEY, JR., a/k/a New York,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      George J. Hazel, District Judge.
(1:13-cr-00607-GJH-2)


Submitted:   January 28, 2016             Decided:   April 5, 2016


Before AGEE, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Peter J. Martinez, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Charles Riley, Jr., appeals his drug convictions.                             Riley’s

first trial ended when the district court granted his motion for

a mistrial.        In his second trial, the jury found him guilty of

three   counts      from     his    superseding        indictment:               Count     1,

conspiracy to distribute and possess with intent to distribute

cocaine,     and    Counts    2     and     3,     possession           with    intent     to

distribute cocaine and aiding and abetting.                       In Count 2 the jury

found him guilty of the lesser-included offense of distributing

an unspecified amount of cocaine (the indictment alleged 500

grams or more of cocaine).           Riley was sentenced to 240 months of

imprisonment.        Riley makes numerous claims on appeal.                        For the

reasons that follow, we affirm.

     First,        Riley   alleges         the     counts        from     his     original

indictment       should    have     been        dismissed        with     prejudice       and

precluded from being charged in his superseding indictment.                                In

reviewing    the     district      court’s       denial     of    Riley’s        motion    to

dismiss the indictment, we review the district court’s factual

findings    for    clear   error     and    its    legal     conclusions          de    novo.

United States v. Pasquantino, 305 F.3d 291, 294 (4th Cir. 2002).

We   find   no     reversible      error     and    note     that        Riley    was     not

prejudiced as a result of the government’s conduct during grand

jury proceedings, see Bank of Nova Scotia v. United States, 487

U.S. 250, 254 (1988) (finding that a district court may not

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dismiss      an    indictment     for    errors        in    grand    jury     proceedings

unless such errors prejudiced the defendant), as the Government

obtained a superseding indictment, free from earlier errors made

in     the    grand     jury     proceedings           leading       to      the    original

indictment.         See United States v. Wills, 346 F.3d 476, 488 (4th

Cir. 2003) (noting that in the absence of prejudice, “courts

lack    authority       to    review     the        sufficiency       of     the    evidence

supporting an indictment, even when a mistake was mistakenly

made”) (citations omitted).

       Next, Riley contends that the district court should have

granted his motion to suppress the evidence because officers

entered his home before the issuance of the search warrant.                                  We

review the district court’s factual findings underlying a motion

to suppress for clear error and its legal conclusions de novo.

United States v. Williams, 740 F.3d 308, 311 (4th Cir. 2014).

Because      the    district     court    denied        Riley’s      motion        below,   we

construe      the     evidence    in     the       light     most    favorable       to     the

Government.          United States v. Foster, 634 F.3d 243, 246 (4th

Cir. 2011).         The record is clear that officers did not take any

evidence      prior    to     properly    executing          the    search     warrant      at

Riley’s      home.      Thus,    Riley’s       claim        fails    under    the    Supreme

Court’s decision in Segura v. United States, 468 U.S. 796, 813–

16 (1984).         In Segura the Court held that warrantless entry into

a    home    does    not     require    the        suppression      of     evidence       later

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obtained   from     that       home    if   that      evidence      was    independently

discovered pursuant to a valid warrant.                         468 U.S. at 813–14

(“Whether the initial entry [of a home] was illegal or not is

irrelevant     to     the      admissibility       of    the    challenged       evidence

because there was an independent source for the warrant under

which   that   evidence         was    seized.          Exclusion     of    evidence      as

derivative or ‘fruit of the poisonous tree’ is not warranted

here because of that independent source.”).

     Third,    Riley        alleges     that    the      district     court      erred   by

denying his motions to sever Counts 2 and 5 from the remaining

counts.      Two    or      more   offenses      may     be    charged     in    the   same

indictment     when      the    offenses       “are     of    the   same    or    similar

character, or are based on the same act or transaction, or are

connected with or constitute parts of a common scheme or plan.”

Fed. R. Crim. P. 8(a).             In determining whether charges are based

on the same transaction or are part of a common plan, this Court

has interpreted the rule flexibly, requiring that the joined

offenses have a logical relationship to one another.                               United

States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005).                                 This

Court   reviews     de      novo      whether    the     initial     joinder      of     the

offenses was proper under Rule 8(a).                     United States v. Mouzone,

687 F.3d 207, 219 (4th Cir. 2012).

     We note that Riley was not retried on Count 5, so this

claim is without merit.               Count 2 was properly joined under Rule

                                            4
8(a), United States v. Hornsby, 666 F.3d 296, 309 (4th Cir.

2012)    (“Where    offenses      are   properly      joined   under     Rule   8(a),

severance of the offenses is rare”), and we find no abuse of

discretion by the district court in denying Riley’s motions for

severance.        United States v. Dinkins, 691 F.3d 358, 367 (4th

Cir. 2012) (providing review standard).                 Thus, this claim lacks

merit.

     Next, Riley argues that submission of Count 2 to the jury

violated the Double Jeopardy Clause.                 Count 2 charged Riley with

distributing 500 grams or more of cocaine.                     Because less than

that amount of the drug was presented at trial, however, the

district court charged the jury — and the jury found — Riley

guilty    for    distributing      an   unspecified      amount     of   cocaine,   a

lesser-included      offense      of    Count   2.     We   note    this    claim   is

forfeited       because   Riley    failed     to   raise    his    double   jeopardy

claim in the district court, United States v. Jarvis, 7 F.3d

404, 409 (4th Cir. 1993), and Riley fails to show plain error in

any event.       See United States v. Olano, 507 U.S. 725, 732 (1993)

(providing plain error test).               Criminal Rule 31(c)(1) provides

that a defendant may be found guilty of an offense necessarily

included in the offense charged.                Moreover, a court may submit

an uncharged lesser-included offense to the jury, and the jury

may convict on a lesser-included offense, if all the elements

are proven after it determines that the evidence is insufficient

                                          5
on the greater offense.            United States v. Walkingeagle, 974 F.2d

551, 553-54 (4th Cir. 1992).              Thus, this claim fails.

       In his fifth claim Riley argues that the district court

erred by granting a mistrial in his first trial on the basis of

manifest necessity.           We agree with the district court that Riley

failed   to    meet     the      challenging        burden     of    showing       that    the

Government       sought    to     goad    him      into     seeking       a    mistrial,    as

required for him to prevail on this claim.                         See United States v.

Smith,   441     F.3d     254,    265     (4th      Cir.    2006)     (finding      that    an

appellant bears the burden of proving specific intent to provoke

a mistrial); United States v. Wentz, 800 F.2d 1325, 1327 (4th

Cir.   1986)     (noting      where      defendant        obtains     a       mistrial,   “the

conditions       for    invocation        of       the    double    jeopardy        bar    are

strict”).      We find no abuse of discretion regarding the district

court’s factual findings in this regard.                       See United States v.

Johnson, 55 F.3d 976, 978 (4th Cir. 1995) (providing standard).

       Finally, Riley contends that his second trial violated the

Fifth Amendment’s Double Jeopardy Clause.                          We review questions

of double jeopardy de novo, United States v. Studifin, 240 F.3d

415, 418 (4th Cir. 2001), but with regard to the more specific

question    of    whether        the    Government         intentionally         provoked    a

mistrial, this Court reviews factual findings for clear error.

Johnson, 55 F.3d at 978.               We conclude that the district court’s

factual and legal conclusions on the matter were not erroneous.

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Oregon v. Kennedy, 456 U.S. 667, 675-78 (1982); Wentz, 800 F.2d

at 1327.

     Accordingly,    because    Riley’s   claims     fail   on    appeal,    we

affirm his convictions.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials   before   this   court   and   argument    would      not   aid   the

decisional process.

                                                                       AFFIRMED




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