United States v. Don Edward Smith, 981 F.2d 1252, 4th Cir. (1992)

981 F.
2d 1252
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Don Edward SMITH, Defendant-Appellant.
No. 91-5450.
United States Court of Appeals,

Fourth Circuit.
Argued: October 28, 1992
Decided: December 15, 1992
Appeal from the United States District Court for the Eastern District of
North Carolina, at Fayetteville. Malcolm J. Howard, District Judge.
Argued: Kathleen G. Sumner, Ronnie Monroe Mitchell, Harris, Mitchell,
Hancox & Vanstory, Fayetteville, North Carolina, for Appellant.
Jane H. Jolly, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
On Brief: Margaret Person Currin, United States Attorney, Raleigh, North
Carolina, for Appellee.
E.D.N.C.
AFFIRMED.
Before RUSSELL, WILKINSON, and LUTTIG, Circuit Judges.
PER CURIAM:
Appellant Don Edward Smith challenges on several grounds his convictions for
possession with intent to distribute crack cocaine, use of a firearm during and in
relation to a drug trafficking crime, and possession of a firearm by a convicted
felon. We discern no error by the district court, and therefore affirm.
I.
2
In October 1990, an undercover investigation by the Scotland County, North

Carolina Sheriff's Office led to the arrest of several individuals for attempting
to purchase two kilograms of cocaine. Those individuals implicated appellant,
Don Edward Smith, and police officers obtained and executed a search warrant
for Smith's apartment, in Fayetteville, North Carolina. See J.A. at 422-23C.
Their search revealed a loaded handgun, a set of Acculab digital scales, 24.5
grams of crack cocaine, vials, glass cooking pots, plastic baggies and paper
towels bearing crack cocaine residue, and $3,738 in cash. See id. at 422, 672,
682-91, 740. In a superseding indictment in the United States District Court for
the Middle District of North Carolina filed January 28, 1991, Smith and several
codefendants were charged with conspiracy to possess with intent to distribute
cocaine, conspiracy to distribute cocaine, and attempt to possess with intent to
distribute cocaine. See 21 U.S.C. 846. After a jury trial, Smith was acquitted.
On February 26, 1991, a grand jury in the United States District Court for the
Eastern District of North Carolina indicted Smith of possession with intent to
distribute crack cocaine, see 21 U.S.C. 841(a)(1), use of a firearm during and
in relation to a drug trafficking crime, see 18 U.S.C. 924(c), and possession of
a firearm by a convicted felon, see 18 U.S.C. 922(g).1 The district court
denied Smith's motion to dismiss the indictment, see J.A. at 554-59, 623-24,
and the jury convicted Smith of all three counts.
II.
4
Smith argues that the district court erred in denying his motion to dismiss the
indictment on double jeopardy or collateral estoppel grounds.2 His Middle
District of North Carolina acquittal of conspiracy and attempt charges, he
contends, bars his prosecution in the Eastern District of North Carolina for
possession with intent to distribute. We disagree.
Smith's emphasis on the Government's use of the evidence obtained from the
search of his apartment in both prosecutions is misplaced. In United States v.
Felix, 112 S. Ct. 1377, 1382 (1992), the Supreme Court rejected as "not
supportable" the "assumption that if the Government offers in evidence in one
prosecution acts of misconduct that might ultimately be charged as criminal
offenses in a second prosecution, the latter prosecution is barred under the
Double Jeopardy Clause." Even Grady v. Corbin, 495 U.S. 508 (1990), upon
which Smith relies heavily, expressly declined to adopt a "same evidence" test.
See id. at 521 & n.12. We thus reject Smith's contention that he was prosecuted
twice for the same offense: The Government prosecuted Smith in the Middle
District of North Carolina for his role in conspiring and attempting to purchase
two kilograms of cocaine and prosecuted him in the Eastern District of North
Carolina for possessing 24.5 grams of crack cocaine in his apartment. Although
the Government did use the evidence from Smith's apartment to bolster its
Middle District of North Carolina case, the Court warned in Felix: "[O]ur
precedents hold that a mere overlap in proof between two prosecutions does not
establish a double jeopardy violation." 112 S. Ct. at 1382 (emphasis added).
6
We also find unpersuasive Smith's focus on the Middle District of North

Carolina trial court's Pinkerton3 instruction: that the jury could find Smith
guilty of the underlying substantive crime if it found him guilty of conspiracy,
provided it found that the substantive offense had been committed by a member
of the conspiracy pursuant to a common plan and understanding, and that Smith
both belonged to the conspiracy at the time and reasonably could have foreseen
the commission of the substantive crime by his coconspirators. J.A. at 409.
Because the jury acquitted him in spite of this instruction, Smith contends, the
jury must also have acquitted him of the underlying substantive offense.
This argument misconstrues the instruction. Although the instruction permitted

the jury to hold Smith liable for foreseeable substantive acts of the conspiracy,
it also required the jury to first find both that there actually was a conspiracy
and that Smith was one of its members. The absence of either of those elements
would have required the jury to acquit. The jury in the Middle District of North
Carolina might simply have found no agreement between Smith and the other
defendants. Smith, therefore, cannot rely on collateral estoppel, because he has
not met his burden of showing that the jury necessarily decided the issue whose
relitigation he seeks to foreclose: his liability for the substantive act of
possession. See Dowling v. United States, 493 U.S. 342, 347-52 (1990). And as
Smith concedes, see Appellant's Br. at 7, the Supreme Court has firmly
established "the rule that a substantive crime, and a conspiracy to commit that
crime, are not the 'same offense' for double jeopardy purposes." Felix, 112 S.
Ct. at 1384; see also United States v. Bayer, 331 U.S. 532, 542-43 (1947);
Pinkerton, 328 U.S. at 643.4
III.
8
Smith contends that the district court committed reversible error by not
allowing him to bring before the jury the evidence of his prior acquittal.
Appellant's Br. at 19-20; see J.A. at 933. We disagree. "[E]vidence of a prior

acquittal is not relevant because it does not prove innocence but rather merely
indicates that the prior prosecution failed to meet its burden of proving beyond
a reasonable doubt at least one element of the crime." United States v. Kerley,
643 F.2d 299, 300-01 (5th Cir. Unit B Apr. 1981); see also United States v.
Sutton, 732 F.2d 1483, 1493 (10th Cir. 1984) ("[A] judgment of acquittal is
hearsay, and there is no exception to the hearsay rule for judgments of
acquittal."), cert. denied, 469 U.S. 1157 (1985). See generally Prince v.
Lockhart, 971 F.2d 118, 122 (8th Cir. 1992) (describing "general rule" that "a
judgment of acquittal is not usually admissible" and citing cases). Especially in
light of the "substantial deference" accorded to a district court's evidentiary
rulings, we conclude that the court did not abuse its discretion in excluding the
evidence. See United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992).
IV.
9
Smith also argues that there was insufficient evidence to support his conviction
under 18 U.S.C. 924(c)(1), which provides:
10
Whoever,
during and in relation to any ... drug trafficking crime ... for which he may
be prosecuted in a court of the United States, uses or carries a firearm, shall, in
addition to the punishment provided for such ... drug trafficking crime, be sentenced
to imprisonment for five years....
11
Smith contends that the Government failed to prove that he "use[d] or carrie[d]
a firearm" and failed to show a nexus between the gun and a drug trafficking
offense.
12
Viewing the evidence in the light most favorable to the Government, see, e.g.,
Glasser v. United States, 315 U.S. 60, 80 (1942), we conclude that a reasonable
jury could have found Smith guilty of the offense. When the police officers first
entered the apartment they noticed an ammunition clip from a semi-automatic
gun. Concerned, they questioned Smith, who replied, "There is a gun
underneath the couch." Id. at 663. The officers found the gun under a couch in
the living room, the same room in which they found Smith when they entered
his apartment. See J.A. at 657, 708. The gun was loaded when they found it,
and it sat approximately ten feet from the 24.5 grams of crack cocaine that they
found and approximately fifteen feet from the digital scales. See id. at 422, 672,
710. In Smith's kitchen, the officers found cooking pots, vials, plastic baggies,
and paper towels bearing crack cocaine residue. See id. at 422, 682-91. This
court has interpreted the 924(c)(1) nexus to require only that "the firearm [be]
present for protection and to facilitate the likelihood of success, whether or not
it is actually used." United States v. Brockington, 849 F.2d 872, 876 (4th Cir.
1988). A reasonable jury could have found that Smith had the gun for
protection and to facilitate his possession of crack cocaine with intent to
distribute.
V.
13
Finally, Smith challenges the district court's denial of his motion to suppress the
evidence obtained from the search of his apartment. See J.A. at 523-37, 552.
He contends that the magistrate issued the search warrant without probable
cause because the affidavit supporting the application for the warrant lacked
particularity and relied upon stale information. See Appellant's Br. at 27-28. We
disagree. The affidavit recounted several statements by Smith's Middle District
of North Carolina codefendants: that one of them had alerted Smith to a large
cocaine source, that the $46,000 discovered in the Scotland County sting
operation belonged to Smith, and that one of them had picked up $20,000 from
Smith's apartment and dropped off large sums of money there on other recent
occasions. See J.A. at 423C. The affidavit also described reports from the
security office of Smith's subdivision that two of the men arrested in the sting
operation had been seen going in and out of Smith's apartment and that traffic
was heavy to and from his address at night. See id . Under the "totality of the
circumstances," we cannot conclude that the magistrate issuing the warrant
lacked a substantial basis for finding probable cause. See Illinois v. Gates, 462
U.S. 213, 238-39 (1983); United States v. Williams, 974 F.2d 480, 481-82 (4th
Cir. 1992) (per curiam ).5 The district court properly denied Smith's motion to
suppress the evidence obtained from the search of his apartment.
CONCLUSION
14
For the reasons stated herein, we affirm the judgment of the district court.
AFFIRMED
On June 16, 1987 Smith pleaded guilty in New Jersey Superior Court to
possession of cocaine with intent to distribute and unlawful possession of a
handgun. See J.A. at 535-51
Under the Double Jeopardy Clause of the Fifth Amendment, no person shall
"be subject for the same offence to be twice put in jeopardy of life or limb."
U.S. Const. amend. V
3
4
See Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)

Although Smith argues that under Grady, he "need only show that any element
of the second prosecution requires proof of conduct already sanctioned in the
first prosecution," Appellant's Br. at 13, Felix indicates otherwise. "Faced with
the necessity of reconciling ... longstanding authority with our language in
Grady, we choose to adhere to the Bayer-Pinkerton line of cases dealing with
the distinction between conspiracy to commit an offense and the offense itself.
These are separate offenses for double jeopardy purposes." 112 S. Ct. at 1385
Similarly, we reject Smith's characterization of the evidence as "stale." The
police executed the warrant only 48 hours after arresting Smith's codefendants
for attempting to purchase cocaine with $46,000 that allegedly belonged to
Smith

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981 F.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

United States Court of Appeals,

In October 1990, an undercover investigation by the Scotland County, North

We also find unpersuasive Smith's focus on the Middle District of North

This argument misconstrues the instruction. Although the instruction permitted

Appellant's Br. at 19-20; see J.A. at 933. We disagree. "[E]vidence of a prior

See Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)

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