United States v. Mungro

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4628

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

FREDRICK LAMONT MUNGRO, a/k/a Fred-Fred,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:04-cr-00018-RLV-CH-1)

Argued: December 4, 2009 Decided: February 18, 2010

Before WILKINSON and KING, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: William Robert Terpening, Peter Crane Anderson, ANDERSON
TERPENING, PLLC, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Frederick Lamont Mungro appeals from his conviction by a

jury in North Carolina for conspiracy to possess with intent to

distribute cocaine base and cocaine powder. Mungro presents

three contentions: first, that the district court erred in

denying his motion for a new trial; second, that the court erred

in admitting prosecution evidence; and, third, that his

conviction contravenes the Fifth Amendment’s Double Jeopardy

Clause. As explained below, we reject these contentions and

affirm.

I.

A.

On April 26, 2004, Mungro was indicted, along with ten

others, by a grand jury in the Western District of North

Carolina. The indictment alleged a single offense against

Mungro: conspiracy to possess with intent to distribute at

least 50 grams of cocaine base (commonly known as “crack”), and

at least five kilograms of cocaine powder, in contravention of

21 U.S.C. § 846. According to the indictment, the conspiracy

involved drug trafficking in Catawba County, North Carolina,

from approximately 1995 to April 2004. After Mungro pleaded not

guilty, he was tried in September 2005. Before trial, Mungro

filed a motion in limine, seeking to exclude (1) evidence of his

2
participation in an earlier drug-trafficking conspiracy between

1993 and 1997, which ultimately led to his 1997 conviction in

federal court and his subsequent incarceration; and (2)

testimony regarding seven bags of marijuana and a set of hand

scales seized from Mungro’s vehicle in conjunction with his

arrest on the 2004 indictment. In addition, Mungro sought a

sequestration order from the trial court, pursuant to Federal

Rule of Evidence 615, prohibiting witnesses from hearing the

testimony of other witnesses and from discussing with one

another any matters relating to the trial.

On September 13, 2005, Mungro’s trial commenced and the

district court entered a formal Sequestration Order, which was

sent to the North Carolina jail where most of the witnesses in

Mungro’s case were being housed, with instructions that it be

distributed to the various trial witnesses. 1 After hearing

argument on Mungro’s motion in limine, the court rejected his

effort to exclude evidence. Regarding the earlier conspiracy

prosecution, the court ruled that the Government could introduce

evidence concerning Mungro’s involvement in the earlier

1
In pertinent part, the Sequestration Order prohibited any
witness or potential witness from hearing the testimony of any
other witness, from talking about prior trial testimony with any
witness, and from talking “with anyone who will be or may become
a witness about any subject related to this trial.” J.A. 1759.
(Citations herein to “J.A. ___” refer to the Joint Appendix
filed by the parties in this appeal.)

3
conspiracy offense, as it related to the origins of the

conspiracy charge in the indictment. The court acceded to

Mungro’s request, however, that a limiting instruction be given

to the jury with respect to such evidence. Thus, the court —

both during trial and after closing argument — gave the

following instruction, to which Mungro agreed:

Now, you will receive a special instruction now,
and later, with respect to defendant Frederick Lamont
Mungro. And that instruction is to the effect that he
may not be held accountable for any conduct before
January — on or about January 8, 1997. In other
words, the conduct of his, if any, to which you are
going to have reference with respect to holding him
accountable for the conspiracy, if at all, all that
conduct . . . would have had to have happened after
January 8th, 1997. . . . [A]s to Mr. Mungro, you are
instructed that you may only consider his conduct on —
that is after January 8, 1997.

J.A. 589-90. The court also ruled that evidence regarding the

seized marijuana and set of hand scales was admissible against

Mungro pursuant to Federal Rule of Evidence 404(b), as such

evidence demonstrated his intent to distribute a controlled

substance. The court gave a limiting instruction to the jury

with respect to that evidence as well.

In its case-in-chief, the prosecution presented several

convicted felons who testified to engaging in drug-trafficking

transactions with Mungro, including Warren England, Carlton

Terry, Jamario Allred, Jermaine Anthony, Ernest Squarles, Fred

Shuford, and Cameron Pope. The Government also presented the

4
testimony of two officers who had investigated Mungro. The

Government’s other evidence included Mungro’s telephone records,

as well as evidence regarding the marijuana and hand scales

seized from Mungro’s vehicle at his arrest. Following the

prosecution’s case-in-chief, Mungro presented several defense

witnesses, including his own testimony. His own testimony

included the assertion that most of the prosecution witnesses

were liars and that the marijuana seized from him was for

personal use. After hearing the evidence, arguments, and

instructions, the jury convicted Mungro of the § 846 conspiracy

offense and returned a special verdict finding him responsible

for at least 50 grams of crack.

B.

On April 27, 2006, seven months after his trial, Mungro

filed a motion for a new trial, pursuant to Federal Rule of

Criminal Procedure 33. 2 First, Mungro contended that he had

recently discovered evidence of witness perjury at trial and of

violations of the Sequestration Order. Second, Mungro claimed

that the Government had failed to disclose favorable and

material evidence to him before trial, in contravention of Brady

2
Rule 33(a) provides that, “[u]pon the defendant's motion,
the court may vacate any judgment and grant a new trial if the
interest of justice so requires.” A motion for new trial based
on newly discovered evidence must be filed within three years of
the verdict. See Fed. R. Crim. Proc. 33(b)(1).

5
v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,

405 U.S. 150 (1972).

In support of his post-trial contentions, Mungro submitted

several affidavits of inmates who had been housed with

Government witnesses during his trial. First, he offered the

affidavit of Travis Connor, who asserted that he had observed

witnesses Anthony, Allred, and Shuford “reviewing discovery and

discussing their testimony.” J.A. 1818. Mungro also submitted

the similar affidavit of Wani Logan. Logan swore that, in

addition to the above-named witnesses, he had heard witness

Terry discussing Mungro’s trial with others. In addition, Logan

stated that he had “overhead Jamario Allred talking . . . about

how he was going to lie in the upcoming trial against Fred

Mungro,” because Allred was facing a fifteen-year sentence, and

would “do anything” to be released. Id. at 1825. Next, Mungro

submitted the affidavit of Bon Stroupe, who also stated that he

had seen and heard witnesses Anthony, Allred, Shuford, and Terry

reviewing discovery materials and discussing Mungro’s case.

Moreover, Stroupe asserted that he was Allred’s cellmate, and

that Allred had said he was going to “get his time cut” by

testifying against Mungro. Id. at 1828. Finally, Mungro

submitted the affidavit of Tim Davis, who swore that he

“personally witnessed” Anthony, Allred, Shuford, and Terry

6
discussing the Government’s case against Mungro during the

trial. Id. at 1831.

In support of his claim that the Government had failed to

turn over Brady and Giglio materials, Mungro relied on an

unsigned draft affidavit prepared for another inmate, Chris

Hayes. The Hayes draft recited that Hayes had been incarcerated

in a cell with witness Shuford, who had talked openly about

Mungro’s prosecution. Shuford purportedly told Hayes that three

potential Government witnesses — Dean Weaver, Chris Machichote,

and Sherwood Gaither — intended to lie about Mungro at trial.

According to the Hayes draft, after garnering this information,

Hayes contacted a North Carolina detective, David Woodward, and

an Assistant United States Attorney, Thomas O’Malley. Mungro

also secured and submitted an affidavit from Detective Woodward,

who stated that he and AUSA O’Malley met with Hayes prior to

Mungro’s trial. According to Woodward, Hayes informed them that

Dean Weaver intended to lie at Mungro’s trial. Although

Woodward explained that he found Hayes neither “credible [n]or

reliable,” he and AUSA O’Malley nevertheless met with Weaver,

whom they also deemed unreliable. J.A. 1836. In any event, the

Government did not call Weaver as a trial witness, but did not

inform Mungro of Hayes’s disclosures or the Weaver meeting.

Finally, Mungro supported his motion with an affidavit from

Weaver, stating that witness Allred had reported that he had

7
lied during Mungro’s trial in order to “work down his fifteen

year sentence.” Id. at 1839.

As a result of the new trial motion and its supporting

materials, the district court conducted a four-day evidentiary

hearing on Mungro’s new trial motion, beginning on February 22,

2007. During the hearing, Mungro called the five prisoners

whose affidavits he had submitted in support of his motion.

Their testimony tracked their affidavits (including the Hayes

draft), recounting instances of prosecution witnesses colluding

in jail to “get their stories straight” and to review discovery

materials. Hayes also testified about his pretrial interactions

with Detective Woodward and AUSA O’Malley, as did Detective

Woodward. In short, Mungro’s five witnesses accused four of the

Government’s trial witnesses — Allred, Anthony, Shuford, and

Terry — of violating the Sequestration Order and committing

perjury. In response, each of those prosecution witnesses

testified at the hearing. They explained that the Government

had instructed them not to talk about Mungro’s prosecution prior

to and during trial, denied having violated the Sequestration

Order, and maintained that they had not given perjured

testimony.

C.

By a comprehensive order of May 13, 2008, the district

court analyzed the contentions of the motion and the supporting

8
evidence, and denied the new trial request. See United States

v. Mungro, No. 5:04CR18-1-V (W.D.N.C. 2008) (the “Order”). 3 In

addressing the witnesses relied upon by Mungro, the court found

Chris Hayes’s testimony to “lack all credibility”; noted that

the credibility of both Wani Logan and Travis Connor was

“doubtful”; and deemed the testimony of Mungro’s remaining

witnesses to be “less compelling.” Order 5 n.4, 6. By

contrast, the court found the hearing testimony of Government

witness Fred Shuford to be especially credible, particularly

because he had little to gain from lying and his testimony “bore

the earmarks of truthfulness.” Id. at 6 n.6. In addition, the

court found that “[t]he weight of the totality of the evidence

of violations of the sequestration order is further weakened by

inconsistencies and apparent bias.” Id. at 7. According to the

court, “at most, the testimony of Connor, Davis, Stroupe, and

Hayes shows that the four government witnesses had the

opportunity to violate the Court’s sequestration order.” Id. at

8.

Moreover, the district court determined that, even if

Mungro could establish that the Sequestration Order had been

violated, he was not entitled to a new trial. Specifically, the

court found that the new evidence, even if true, was unlikely to

3
The district court’s Order can be found at J.A. 2921-57.

9
result in an acquittal of Mungro in a new trial. See Order 14.

For example, the court concluded that the bulk of the

inculpatory evidence against Mungro came from the testimony of

Carlton Terry and Ernest Squarles, whose testimony had been

corroborated by telephone records. The court observed that,

because Mungro had impeached Terry at trial with evidence

similar to that presented in his motion for a new trial, any

added impeachment value was minimal. Finally, the court

emphasized that Allred, Anthony, and Terry had testified to

purchasing differing quantities of drugs from Mungro in

different transactions. In short, the Order concluded that:

The evidence of sequestration order violations is weak
and adds little impeachment value to witnesses who
were already impeached at trial. Even as the Court
strains to examine any potential occurrence of
impropriety, it cannot conclude that this new evidence
would likely have led to the acquittal of the
Defendant. These three witnesses testified to
independent transactions with the Defendant, and to
the extent details of the transactions overlapped,
these details were either tangential or overwhelmed by
corroborative evidence.

Id. at 17 (footnote omitted).

Turning to the alleged Brady and Giglio violations, the

district court discussed whether the Government was obliged to

turn over the statements of Chris Hayes. The court credited

Detective Woodward over Hayes on the content of those

statements, finding that Hayes had a “poor reputation and

character for truthfulness,” as evidenced by his “zeal to

10
cooperate, sometimes at the expense of the truth.” Order 23;

see also id. 25 (“Hayes is willing to play fast and loose with

the truth.”). Accordingly, the court found that Hayes had

disclosed only that Dean Weaver was going to lie at trial, and

determined that the Government was able to derive from that

disclosure that Weaver “was not likely to be truthful.” Id. at

26. That determination, however, “had no direct relevance” to

Mungro’s prosecution, which rested primarily on the testimony of

Terry and Quarles, as well as Mungro’s telephone records. Id.

And the court rejected Mungro’s Brady contention to the extent

it was predicated on what might have been uncovered had Mungro

been advised of Weaver’s potential credibility problems before

trial. First, the court concluded that the Government’s

interviews with Hayes and Weaver did not lead to Brady or Giglio

materials, as those interviews did not provide “any grounds to

suspect that Weaver knew of any other witnesses who acted

improperly.” Id. at 28. Second, the court concluded that any

evidence that Weaver might have provided to Mungro was

immaterial because Weaver lacked credibility. See id. at 29.

Finally, the district court separately considered the

implications of the Government’s use of potentially perjured

testimony by Jamario Allred. See Order 32 (citing United States

v. Agurs, 427 U.S. 97 (1976)). The court concluded that the

allegations of perjury by Allred “substantially lack[ed]

11
credibility,” that the trial testimony of Allred was “both

tangential and impeached,” and that, once again, the “crux of

the case against Defendant came by way of testimony by Terry,

cell-phone records of Defendant, and the inability of the

Defendant to explain away his connections . . . with Terry.”

Id. at 36. Accordingly, as with the other bases for the new

trial motion, the court concluded that additional evidence of

alleged witness perjury would not have affected the result of

the trial. Consequently, the court denied Mungro’s request for

a new trial and sentenced him to life imprisonment. Mungro has

noticed this appeal, and we possess jurisdiction pursuant to 28

U.S.C. § 1291.

II.

We review for abuse of discretion a district court’s denial

of a motion for a new trial, even when predicated on a Brady or

Giglio violation. See United States v. Stokes, 261 F.3d 496,

502 (4th Cir. 2001). We “may not substitute [our] judgment for

that of the district court,” but, instead, “must determine

whether the court’s exercise of discretion . . . was arbitrary

or capricious.” United States v. Mason, 52 F.3d 1286, 1289 (4th

Cir. 1995). We also review for abuse of discretion a trial

court’s rulings on the admissibility of evidence. See United

States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). Indeed, a

12
trial court’s decision to admit evidence “will be upheld so long

as it is not arbitrary or irrational.” United States v. Hill,

322 F.3d 301, 306 (4th Cir. 2003) (internal quotation marks

omitted). Finally, we review unpreserved issues, including

those relating to the Double Jeopardy Clause of the Fifth

Amendment, for plain error only. See United States v. Jarvis, 7

F.3d 404, 410 (4th Cir. 1993).

III.

Mungro presents three contentions in this appeal. First,

he maintains that the district court erred in denying his motion

for a new trial. Second, he contends that the court abused its

discretion in admitting certain trial evidence. Finally, Mungro

asserts that his prosecution contravened the Double Jeopardy

Clause, in light of the drug conspiracy offense for which he was

convicted in 1997. We address these contentions in turn.

A.

Mungro’s first appellate contention, that the district

court erred in denying his motion for a new trial, has two

aspects. First, he maintains that the court should have awarded

a new trial on the basis of newly discovered evidence of witness

perjury and violations of the Sequestration Order, as shown at

the post-trial hearing. Second, Mungro maintains that the court

13
should have awarded him a new trial as a result of the pretrial

Brady and Giglio violations.

1.

We first address Mungro’s assertion that he was entitled to

a new trial on the basis of newly discovered evidence. We

utilize a five-part test in evaluating such a motion: (1) the

evidence must actually be newly discovered; (2) the court must

be able to infer due diligence on the part of the movant; (3)

the evidence must be more than merely cumulative or impeaching;

(4) the evidence must be material; and (5) the evidence must be

of the type that would “probably result in acquittal at a new

trial.” United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989). Notably, newly discovered evidence that lacks

credibility is unlikely to lead to an acquittal at a new trial.

See United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir.

2006).

Mungro asserts that a new trial was warranted by his post-

trial showing that multiple prosecution witnesses had violated

the Sequestration Order and presented perjured testimony. Under

our Chavis precedent, however, these allegations did not entitle

Mungro to a new trial. First, Mungro faces an insurmountable

hurdle with respect to the third Chavis factor, as his

allegation that the prosecution witnesses lied at trial is

merely cumulative and impeaching. Whether the prosecution’s

14
witnesses lied about their drug transactions with Mungro would

merely assist in impeaching those witnesses, not in disproving

whether Mungro actually engaged in such transactions. See

United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993)

(“This circuit has emphasized that new evidence going only to

the credibility of a witness does not generally warrant the

granting of a new trial.”). Moreover, as the Order explained,

Mungro’s allegations with respect to witness Carlton Terry were

simply cumulative, as Mungro had impeached Terry at trial with

evidence similar to that relied on in his new trial request.

See Order 15.

More significantly, Mungro cannot overcome the final hurdle

of the Chavis test, i.e., that the newly discovered evidence

would “probably result” in acquittal at a new trial. As the

district court concluded in its Order, Mungro’s prosecution was

primarily predicated on the evidence of Terry and Earnest

Squarles, and the corroboration of their testimony by telephone

records. Simply put, nothing advanced by Mungro in the new

trial proceedings would undercut Squarles’s testimony or the

corroborating telephone records. Moreover, the court

discredited the bulk of the evidence used by Mungro in support

of his new trial motion. That credibility determination stands

in stark contrast to the court’s finding, for example, that the

testimony of one of the Government’s witnesses at the new trial

15
hearing, Fred Shuford, bore the “earmarks of truthfulness.”

Order at 6 n.6. Finally, the court determined that the

indication of “overlap” in the drug transaction evidence against

Mungro was weak, as the alleged perjurers had testified to

different quantities of crack as part of different transactions.

In such circumstances, the court did not abuse its discretion in

denying the new trial motion, to the extent it was predicated on

newly discovered evidence of witness perjury and violations of

the Sequestration Order.

2.

We turn next to the second aspect of Mungro’s new trial

contention — that he was entitled to relief because the

Government contravened its Brady and Giglio obligations. To

secure a new trial on such grounds, Mungro had the burden of

showing that (1) the undisclosed evidence was favorable to him;

(2) the evidence was material; and (3) the prosecution possessed

the evidence yet failed to disclose it. See United States v.

Stokes, 261 F.3d 496, 502 (4th Cir. 2001). 4 To be “material,”

4
The Government points out that the Brady contention more
accurately involves the Government’s obligations under Giglio,
as Mungro would have used the sought-after evidence for
impeachment purposes. See Giglio v. United States, 405 U.S.
150, 154-55 (1972) (including impeachment evidence within scope
of Brady materials). Because Giglio was simply an extension of
the Brady rule, however, we are content to refer to this
contention as the “Brady contention.”

16
there must be a reasonable probability that disclosure of the

evidence in question would have produced a different outcome.

See id.

According to Mungro, the Government contravened its Brady

obligations when it failed to disclose or fully investigate the

Hayes disclosure that several of its witnesses planned to lie at

trial. Mungro, however, is unable to overcome two significant

obstacles to his Brady contention: first, that the district

court found the evidence in support of the new trial motion,

including that of Hayes himself, to lack credibility; and,

second, that the supposed perjurer identified by Hayes, Dean

Weaver, did not testify at trial.

First, Mungro’s Brady contention fails with respect to the

materiality analysis, as the district court found that the

evidence in support of his new trial motion lacked credibility.

The Brady claim rests primarily on Hayes, whom the court found

to be entirely unreliable. The court explained that Hayes had

demonstrated a “zeal to cooperate,” even at the expense of the

truth, and that he had lied to the Government on prior

occasions. Order 23-25. In addition, the court emphasized that

Hayes’s testimony was not helpful to Mungro, as Hayes confirmed

that Mungro had been involved in drug transactions with Carlton

Terry. Id. at 26.

17
 Second, the Brady contention fails because Weaver, the

alleged perjurer identified by Hayes, did not testify at

Mungro’s trial. 5 Indeed, the district court found that the

Government had never intended to use Weaver as a trial witness.

See Order 28 n.31. Rather, Weaver was on the prosecution’s

witness list as a potential witness against a codefendant who

pleaded guilty before trial. As such, even if Weaver intended

to lie at trial, Mungro failed to show how such a disclosure

would have aided his defense. Indeed, the prosecution’s case

against Mungro was predicated primarily on the testimony of

Terry and Squarles, as well as corroborating telephone records.

And Hayes’s statement that Weaver intended to lie simply does

not undercut that evidence. Simply put, Hayes’s disclosure, as

well as the Government’s determination that Hayes and Weaver

were unreliable, did not provide the prosecution with “any

grounds to suspect that Weaver knew of any other witnesses who

acted improperly.” Id. at 28. Finally, the court found that

Weaver, like Hayes, lacked credibility, and that any evidence

that Weaver might have provided the defense was thus immaterial.

In these circumstances, particularly on the evidence presented

5
In contrast to Mungro’s assertion about Hayes, the
district court found that Hayes had only revealed to Detective
Woodward and AUSA O’Malley that Dean Weaver — not other
Government witnesses — intended to lie at trial. See Order 26.

18
at the new trial hearing and the credibility determinations

subsequently made in the Order, the court did not abuse its

discretion in denying Mungro’s motion for a new trial.

B.

Mungro next contends that the district court abused its

discretion in admitting certain trial evidence. Rule 404(b)

provides that “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to

show action in conformity therewith.” Such evidence — commonly

called “similar act” evidence — may be admissible, however, “for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b). Evidence sought to be

admitted under Rule 404(b) must also satisfy Rule 403, which

provides a limited bar to otherwise-admissible evidence. See

United States v. Siegel, 536 F.3d 306, 319 (4th Cir. 2008). 6 We

have articulated a four-prong test for assessing the

admissibility of evidence under Rule 404(b):

(1) the prior-act evidence must be relevant to an
issue other than character, such as intent; (2) it
must be necessary to prove an element of the crime

6
Pursuant to Rule 403, relevant evidence “may be excluded
if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”

19
 charged; (3) it must be reliable; and (4) . . . its
probative value must not be substantially outweighed
by its prejudicial nature.

United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)

(internal quotation marks omitted). Importantly, Rule 404(b) is

“an inclusive rule, admitting all evidence of other crimes or

acts except that which tends to prove only criminal

disposition.” United States v. Young, 248 F.3d 260, 271–72 (4th

Cir. 2001) (emphasis added) (internal quotation marks omitted).

Mungro maintains that the district court abused its

discretion in admitting evidence regarding the bags of marijuana

and set of hand scales seized from Mungro’s vehicle when he was

arrested. He argues, first, that this evidence was irrelevant,

and, second, that the prejudicial nature of the evidence

substantially outweighed its probative value. That Mungro

possessed individually bagged marijuana and the set of hand

scales, however, tends to prove his intent to distribute a

controlled substance, the absence of mistake, and his guilty

knowledge, which were at issue because Mungro was charged with

possession with intent to distribute controlled substances.

Mungro’s assertion, as he testified at trial, that he possessed

20
the marijuana for personal use only presented a credibility

issue for the jury, not an issue of admissibility. 7

Finally, on the Rule 403 balancing test, Mungro has failed

to show that the similar act evidence was unfairly prejudicial.

As the Government contends, evidence showing Mungro’s intent to

distribute marijuana — during the time frame and in the

geographic location of the alleged conspiracy — was probative of

his intent to possess and distribute other controlled

substances. Moreover, the district court properly gave a

limiting instruction to the jury, explaining that Mungro was not

being tried for a “marijuana charge,” and that any evidence that

Mungro possessed marijuana “should never be taken as indicating

directly whether the defendant committed the offense charged in

the indictment.” J.A. 458-59. Under these circumstances, the

court did not abuse its discretion in admitting evidence of the

marijuana and hand scales seized from Mungro upon his arrest.

7
It is also of no moment that the seven bags seized at
Mungro’s arrest contained marijuana, whereas Mungro was being
prosecuted for distributing crack and cocaine powder. See
United States v. Hawkins, 548 F.3d 1143, 1147 (8th Cir. 2008)
(ruling that Rule 404(b) evidence “need not involve the same
illegal drug as the charged offense” (internal quotation marks
omitted); United States v. Hernandez, 84 F.3d 931, 935 (7th Cir.
1995) (concluding that prior marijuana conviction could be
admitted under Rule 404(b) in prosecution for distributing
cocaine and heroin).

21
 C.

Finally, Mungro contends that his conviction contravenes

the Double Jeopardy Clause of the Fifth Amendment, which

“prohibits successive prosecution or multiple punishments for

‘the same offence.’” Witte v. United States, 515 U.S. 389, 391

(1995). 8 Thus, the Double Jeopardy Clause forbids the

prosecution from dividing “a single criminal conspiracy into

multiple violations of a conspiracy statute.” United States v.

Cole, 293 F.3d 153, 158 (4th Cir. 2002) (internal quotation

marks omitted). Mungro predicates this unpreserved contention

on the fact that he was convicted in 1997 for his involvement in

a crack conspiracy that took place between 1993 and 1997 (the

“first conspiracy”), and that the conspiracy alleged in the

indictment occurred between 1995 and April 2004 (the “second

conspiracy”). As a result of the “overlap” from 1995 to 1997,

Mungro contends that the district court “improperly permitted

[him] to be prosecuted twice for substantially the same crime.”

Br. of Appellant 62.

At trial, however, Mungro objected on double jeopardy

grounds only to the admission of certain evidence concerning the

two-year overlap. He did not, by contrast, move to dismiss the

8
The Double Jeopardy Clause provides: “nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V.

22
indictment or assert that his prosecution for the second

conspiracy somehow contravened the Double Jeopardy Clause. We

have already determined that a double jeopardy challenge must be

raised in the district court or it will be forfeited on appeal.

See United States v. Jarvis, 7 F.3d 404, 409 (4th Cir. 1993).

Because Mungro failed to preserve this issue in the district

court, we review it for plain error only. Id. at 410. Under

the plain error standard, Mungro bears the burden of showing

that (1) an error occurred, (2) the error was plain, and (3) it

affected his substantial rights. See United States v. Olano,

507 U.S. 725, 732 (1993). If he makes such a showing, the

correction of such error lies within our discretion, which we

“should not exercise . . . unless the error seriously affects

the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks and alterations

omitted).

Under the plain error standard of review, Mungro’s double

jeopardy contention plainly lacks merit. In assessing whether

successive conspiracy charges constitute the “same offense” for

purposes of the Double Jeopardy Clause, we employ a “totality of

the circumstances" test that focuses on five factors: (1) the

time periods covered by the two conspiracies; (2) the places

where the conspiracies are alleged to have occurred; (3) the

persons charged as co-conspirators; (4) the overt acts allegedly

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committed in furtherance of the two conspiracies, or any other

descriptions of the offenses charged that indicate the nature or

scope of the activities being prosecuted; and (5) the

substantive statutes alleged. See United States v. Ragins, 840

F.2d 1184, 1888-89 (4th Cir. 1988).

The Government is correct in asserting that, under the

Ragins test, there is no indication that Mungro’s prosecution

was plainly inconsistent with the Double Jeopardy Clause.

First, although the conspiracies slightly overlap time-wise,

none of the overt acts alleged in the second conspiracy occurred

during the first conspiracy. On the third Ragins factor, Mungro

is the only common defendant among the sixteen defendants in the

first conspiracy and the eleven defendants in the second

conspiracy. 9 On the fourth Ragins factor, the Government

concedes that both conspiracies involved the distribution of

crack and powder cocaine, but maintains that the first

conspiracy involved a supplier from Georgia, whereas the second

conspiracy involved a supplier from North Carolina. In sum,

only two of the Ragins factors — the second and fifth — weigh

in Mungro’s favor, that is, both conspiracies concern criminal

9
The prosecution emphasizes, for example, that Mungro did
not even meet one of his primary coconspirators in the second
conspiracy (Carlton Terry) until he had been incarcerated for
the first conspiracy.

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activity in Catawba County and involve violations of 21 U.S.C.

§ 846.

In sum, our application of the Ragins factors in this

context does not suggest that Mungro’s conviction on the first

conspiracy was for the “same offence” as his prosecution for the

second conspiracy. Moreover, the jury was carefully instructed

on the limited time frame that it could consider regarding

Mungro’s alleged participation in the second conspiracy. See

J.A. 590 (“[A]s to Mr. Mungro, you are instructed that you may

only consider his conduct on — that is after January 8, 1997.”).

Under these circumstances, the district court did not err in

allowing Mungro’s prosecution on the second conspiracy to

proceed. As a result, plain error has not been shown, and the

double jeopardy contention must also be rejected.

IV.

Pursuant to the foregoing, we reject Mungro’s contentions

and affirm.

AFFIRMED

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