Opinion
Case No. 1:00CR00104
February 5, 2004
Anthony P. Giorno and Rick A. Mountcastle, Abingdon and Roanoke, Virginia, for United States of America;
Anthony F. Anderson, Roanoke, Virginia, and Stephen J. Kalista, Big Stone Gap, Virginia, for Defendant Charles Wesley Gilmore
OPINION AND ORDER DENYING STAY
Defendant Charles Wesley Gilmore moved to dismiss Counts One, Two, Three, and Four of the indictment against him on the ground of double jeopardy. An order denying his motion was entered on January 29, 2004. On February 2, 2004, the scheduled first day of trial, Gilmore filed a Motion to Stay Proceedings Pending Appeal as to Counts One through Four and a Continuance of the Trial of the Remaining Counts in the Indictment. I will deny Gilmore's request for a stay and continue with the trial based on my finding that his double jeopardy arguments are wholly lacking in merit.
An opinion setting forth the reasons for the denial was entered February 4, 2004.
"[P]retrial orders rejecting claims of former jeopardy . . . constitute `final decisions' "subject to an interlocutory appeal. Abney v. United States, 431 U.S. 651, 658-62 (1977). "[A]ppellate courts, including [the Fourth Circuit], have developed a `dual jurisdiction' rule, which allows a district court to proceed with trial while a defendant pursues an Abney double jeopardy appeal, where the district court has concluded that the appeal is frivolous." United States v. Montgomery, 262 F.3d 233, 240 (4th Cir. 2001). "Frivolousness" under Abney has been defined as either "a perception that a claim that is manifestly `double jeopardy' in substantive content is wholly lacking in merit" or "a perception that a claim advanced as one of `double jeopardy' is manifestly not that in substantive content." United States v. Head, 697 F.2d 1200, 1204-05 (4th Cir. 1982).
Gilmore's motion to dismiss Count One is wholly lacking in merit because his previous charge of conspiracy to distribute cocaine alleged a different offense than his present charge, conspiracy to murder while engaging in or working in furtherance of a continuing criminal enterprise ("CCE"), and is thus not precluded by the Double Jeopardy Clause. See, e.g., United States v. Cole, 293 F.3d 153, 158 (4th Cir. 2002) (evaluating the totality of the circumstances, including "the substantive statutes alleged to have been violated," along with other factors, in order to determine whether successive conspiracy charges violate the Double Jeopardy Clause); United States v. McHan, 966 F.2d 134, 138 (4th Cir. 1992) (same); United States v. Ragins, 840 F.2d 1184, 1189 (4th Cir. 1988) (same).
Gilmore's arguments as to Counts Two, Three, and Four are also wholly lacking in merit because the Fourth Circuit has already held that CCE-murder and engaging in a CCE are two separate offenses, see United States v. NJB, 104 F.3d 630, 632-35 (4th Cir. 1997), and that using a prior conviction as a predicate act in a CCE prosecution does not violate the Double Jeopardy Clause, see United States v. Arnoldt, 947 F.2d 1120, 1127 (4th Cir. 1991) (upholding government's use of prior convictions as predicate acts in its successive RICO prosecution); McHan at 139-41 (rejecting pretrial double jeopardy claim challenging use of prior conspiracy conviction as one of the predicate acts for the CCE charge).
Since this court continues to retain jurisdiction, I will exercise my discretion not to stay the case. The case has been pending for some time, involves multiple defendants, and is otherwise ready for trial.
On January 12, 2004, I denied the defendant's Motion to Continue based on other grounds.
For the foregoing reasons, it is ORDERED that the defendant's motion to stay the proceedings [Doc. No. 1022] is DENIED.
The clerk is directed to certify copies of this Opinion and Order to counsel for the parties and to the clerk of the court of appeals.