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United States v. McClure

United States Court of Appeals, Fifth Circuit

April 25, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
RODERRETE DEWRAYNE MCCLURE, Defendant-Appellant

         Appeals from the United States District Court for the Eastern District of Texas

          Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.

          JAMES E. GRAVES, JR., Circuit Judge:

         Roderrete Dewrayne McClure appeals the denial of his motion to dismiss his indictment for narcotics trafficking, contending that prosecution of the charges is barred by the terms of a 2012 plea agreement (the "2012 Plea Agreement" or "Plea Agreement") he entered into with the Government. Pursuant to that agreement, McClure pled guilty to a violation of 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. Information leading to that charge was obtained during the course of the Government's investigation of McClure for public corruption and narcotics trafficking, which eventually gave rise to the charges in the challenged indictment. We agree with the district court that the instant charges are based on a separate and distinct course of conduct from the § 922(g)(1) offense to which McClure pleaded guilty. Therefore, we AFFIRM.

         I. BACKGROUND

         A. Federal Investigation of Public Corruption and Drug Trafficking Conspiracy

         Between August 2009 and August 2010, McClure conspired with then City Marshal of Tenaha, Texas, Fred Walker, to steal drugs on several occasions from the evidence room of the Tenaha Marshal's Office in order to distribute them for sale. Dallas area resident Tracy Fortman later joined the conspiracy.[1] Concerned about detection, McClure and Walker staged a burglary of the evidence room in August 2010, planting evidence to make it appear that members of a Mexican drug cartel had committed the burglary. They stole drugs and guns, but dumped the guns in a creek outside of Tenaha. Walker then notified an investigator with the Shelby County District Attorney's Office about the burglary. Further investigation led authorities to suspect the burglary was staged.

         The FBI became involved after Walker in November 2010 forwarded to FBI Special Agent Stewart Fillmore two identical extortion letters he and McClure received at their respective residences. The letters were signed by "Jack Frost, " who purported to be a DEA agent and threatened to expose the theft and drug trafficking conspiracy unless Walker and McClure each gave him $70, 000. Agent Fillmore began investigating and by the summer of 2011 concluded that the letters had been written by Tracy Fortman.

         After being confronted by authorities, Fortman admitted that he wrote the letters because he needed the money due to his lack of success in moving the drugs McClure and Walker provided him. Fortman provided details about the conspiracy and the staged burglary. In addition, he showed Agent Fillmore a photograph of a "well-stocked" gun cabinet in McClure's home. By that time, Agent Fillmore knew that McClure was a convicted felon.

         Shortly before interviewing Fortman, Agent Fillmore also interviewed McClure about the alleged burglary of the Tenaha City Marshal's office. During that interview, McClure, who ran a computer business in Tenaha, volunteered that, at Walker's request, he had installed recording equipment at the Marshal's Office and City Hall and that he kept copies of secret recordings on computers and hard drives in his home.

         Based on this information, agents obtained a search warrant for McClure's home on August 15, 2011. During execution of the warrant, agents seized several computers and other electronic devices, as well as 13 firearms, a body armor vest, and more than 1, 000 rounds of ammunition. Upon questioning, McClure admitted his involvement with the narcotics trafficking scheme, including the staged burglary to cover up the theft of the drugs.

         B. The § 922(g) Case ("the Lufkin Gun Case")

         Two days later, on August 17, 2011, the United States Attorney's Office for the Eastern District of Texas, Lufkin Division, obtained an indictment against McClure charging a violation of 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. While the case was proceeding to trial, the Government filed a notice of intent to offer Rule 404(b) evidence of the guns stolen from the Tenaha Marshal's Office, which McClure had admitted he and Walker disposed of in a creek outside Tenaha. At a hearing, the district court excluded the evidence on Rule 403 grounds, finding that it concerned "this other crime which is still under investigation" and was merely "peripheral" to the § 922(g) charge; thus the evidence was substantially more prejudicial than probative.

         Shortly thereafter, on February 14, 2012, McClure pleaded guilty to a single count of being a felon in possession of a firearm. In pertinent part, the 2012 Plea Agreement provided:

8. GOVERNMENT'S AGREEMENT: The United States Attorney for the Eastern District of Texas agrees not to prosecute the defendant for any additional non-tax-related charges based upon the conduct underlying ...

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