Opinion
No. 97-4205
ARGUED May 11, 1998
DECIDED June 29, 1998
Appeal from the United States District Court for the Southern District of Illinois.
No. 92-CR-40004-JLF — James L. Foreman, Judge.
Ralph M. Friederich (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.
John Dale Stobbs, II, East Alton, IL, Paul G. Prendergast (argued), Mounds, IL, for Defendant-Appellant.
Before Bauer, Flaum, and Manion, Circuit Judges.
Norberto Laurel pleaded guilty to conspiring to distribute cocaine in violation of 21 U.S.C. § 846. This case would be a routine drug prosecution but for the fact that two grand juries in two federal districts indicted him for the same criminal conspiracy. Laurel — apparently unaware of the existence of a second conspiracy indictment in the Southern District of Illinois — pleaded guilty to a charge of cocaine possession in the Central District of Illinois in exchange for a dismissal of the conspiracy indictment in that district; after the plea was entered, the U.S. Attorney for the Southern District commenced a prosecution on the conspiracy charge. Laurel then pleaded guilty to the conspiracy charge in the Southern District but reserved the right to appeal the district court's refusal to dismiss the indictment. This case gives us significant pause — most notably because hints of an undisclosed agreement between the two U.S. Attorney's offices surfaced at oral argument — but we must affirm the district court's denials of Laurel's motions to dismiss the Southern District indictment.
I.
On January 29, 1992, a grand jury in the Southern District of Illinois indicted Norberto Laurel on one count of conspiring to possess and distribute over five kilograms of cocaine. The conduct underlying this charge, according to the indictment, occurred "in Williamson County, in the Southern District of Illinois, and elsewhere," from May 1987 through August 1990. A warrant for Laurel's arrest issued one day following his indictment, but the indictment was briefly kept under seal until February 4.
Meanwhile, Laurel's criminal activities had also drawn the attention of federal prosecutors in the Central District of Illinois. A grand jury in the Central District returned a one-count indictment on October 7, 1992, charging Laurel with conspiracy to possess and distribute cocaine. This indictment alleged that the charged conspiracy commenced around Fall 1988 and continued until about November 1989 "within the Central District of Illinois and elsewhere." This time period is subsumed within the three-year period covered by the Southern District indictment, and no one contests the fact that these two indictments covered the same conspiracy. The record does not indicate whether the Central District prosecutors were aware of the Southern District indictment at this time.
As we discuss infra, however, the Central District prosecutors later became aware of the Southern District charge before commencing plea negotiations in late 1994. Counsel for the Government — Assistant United States Attorney Ralph Friederich of the Southern District of Illinois — acknowledged at oral argument that, shortly after Laurel's arrest and transfer to the Central District in 1994, he notified the Central District prosecutors of the conspiracy charge that Laurel faced in the Southern District.
An arrest warrant was issued on the second indictment, as well, and Laurel was arrested in Texas in November 1994 on this warrant before he could be apprehended on the Southern District's warrant. Consequently, he was transferred to the Central District to face the conspiracy charge in that jurisdiction. The Southern District warrant apparently remained outstanding throughout all of this time, and no detainer was filed despite the fact that counsel for the Government — a prosecutor from the Southern District — stated at oral argument that he knew of Laurel's arrest and transfer to the Central District soon after it occurred. In September 1996, Laurel negotiated a plea agreement in the Central District whereby he pleaded guilty to a cocaine possession charge in exchange for the Central District's promise to dismiss its 1992 conspiracy charge. He received a sentence of ten years imprisonment.
In order to complete this bargain, the Central District prosecutors dismissed the 1992 conspiracy indictment and re-indicted Laurel on the possession charge. As we discuss infra at 6, dismissing the conspiracy indictment had the additional effect of obviating any double jeopardy bar to prosecuting Laurel on the Southern District's conspiracy charge.
Even after Laurel pleaded guilty, Southern District prosecutors did not exactly spring into action. The United States Attorney for the Southern District of Illinois represented in his brief that, for some undisclosed reason, his office did not become aware "of the disposition" of the Central District prosecution until January 1997. This narrow representation, though, does not tell the whole story. Counsel for the Government admitted at oral argument that Southern District prosecutors knew that Laurel was arrested and incarcerated in the Central District contemporaneously with those events and that some unspecified degree of communication occurred between Central and Southern District prosecutors soon after Laurel's arrest in November 1994. No explanation has been offered why the Southern District waited until Laurel pleaded guilty in September 1996 before acting in any way upon its 1992 conspiracy indictment, or why the Central District prosecutors did not inform Laurel of this outstanding charge while negotiating his plea agreement.
Regardless of the reason, Laurel claims that he did not learn of the existence of the Southern District conspiracy charge until March 1997. On May 5, 1997, Laurel was arraigned in the Southern District on the 1992 conspiracy charge. He eventually filed motions to dismiss the indictment on three grounds, asserting that prosecution on the Southern District conspiracy charge violated (1) the Fifth Amendment's Double Jeopardy Clause, (2) his plea agreement in the Central District, and (3) the Speedy Trial Clause of the Sixth Amendment. The district court rejected these three motions without holding evidentiary hearings, and Laurel pleaded guilty to the conspiracy charge subject to his right to appeal the denial of his motions to dismiss the indictment. Judge Foreman sentenced Laurel to 151 months imprisonment, less thirty-seven months already served, to run concurrently with his ten-year sentence in the Central District.
The record does not disclose how he became aware of the Southern District charge at that time.
II.
At oral argument, the Government for the first time revealed that prosecutors from both the Central and Southern Districts conferred about Laurel's charges before he pleaded guilty to the possession charge in the Central District. The Government could not, however, make any representations regarding the content or frequency of those contacts among prosecutors from the two districts; Laurel was not able to develop any record on this point, in part because the trial court did not hold an evidentiary hearing on Laurel's motions to dismiss the indictment. Even with a record supporting his claims of collusion, we could not grant Laurel relief in this case because his attacks are directed at the plea agreement he entered in the Central District — a case that is not before us. On the case and record that is before us, we must affirm the district court's denial of Laurel's three motions to dismiss the Southern District indictment. We address each of these motions in turn.
On appeal, Laurel does not ask us to remand the case for an evidentiary hearing. He asks us instead to dismiss the indictments based on the same record that was before the district court.
A. Double Jeopardy
Laurel first argues that the district court should have dismissed the Southern District indictment as violative of his rights under the Fifth Amendment's Double Jeopardy Clause. He contends that the Southern District's conspiracy charge and the Central District's possession charge constitute the "same offense" for double jeopardy purposes. The Presentence Investigation Report (PSI) in the instant case pointedly admitted the overlap between the criminal conduct comprising the two charges: "The defendant also pled guilty to possession with intent to distribute cocaine in the Central District of Illinois in 1996, which was determined to be a part of the same course of conduct as the criminal conspiracy charged in the Southern District of Illinois." PSI at 16; see also id. at 5 ("Defendant Laurel was subsequently charged with possession with intent to deliver cocaine in U.S. District Court in the Central District of Illinois and pleaded guilty to this offense conduct. This offense conduct is considered to be a part of the same common scheme or plan that the defendant was engaged in during his cocaine trafficking in southern Illinois."). Laurel argues that the Double Jeopardy Clause bars a second prosecution based on the same criminal conduct, even though the crimes flowing from that conduct to which he pleaded guilty — possession in the Central District and conspiracy in the Southern District — are different.
The Supreme Court has squarely rejected the double jeopardy argument that Laurel advances. In Blockburger v. United States, 284 U.S. 299, 304 (1932), the Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." The Court briefly veered away from the Blockburger test in Grady v. Corbin, 495 U.S. 508 (1990), and toward the sort of "same conduct" approach favored by Laurel. This was a short-lived experiment, however, and the Court overruled Grady just three years later in United States v. Dixon, 509 U.S. 688, 704 (1993); see also Kurzawa v. Jordan, No. 96-3299, slip op. at 5 (7th Cir. May 29, 1998). Laurel cannot establish a double jeopardy violation simply because there might be an overlap in relevant evidence between the possession and conspiracy charges. Under the Blockburger test for double jeopardy violations, conspiracy to possess and distribute cocaine is a different offense than possession of cocaine because a conspiracy requires an agreement among confederates, which is not a requisite element of the possession charge, and does not require physical possession at all. See United States v. Felix, 503 U.S. 378, 389 (1992) (reiterating the long-standing rule that "a substantive crime and conspiracy to commit that crime are not the `same offence' for double jeopardy purposes").
Laurel labors mightily to point out the flaws in Blockburger's "same elements" test, as well as the ways in which Dixon did not truly disavow the "same conduct" test of Grady. We do not find his protestations persuasive in light of the Supreme Court's express statements to the contrary. Even if we sympathized with Laurel's position, it is not our role to correct the Supreme Court's mistakes. See, e.g., State Oil Co. v. Khan, 118 S. Ct. 275, 284 (1997) ("[I]t is this Court's prerogative alone to overrule one of its precedents."). Thus, we affirm the district court's refusal to dismiss the Southern District indictment on double jeopardy grounds.
B. Breach of the Central District Plea Agreement
Laurel's second argument on appeal raises questions about the Government's conduct in this case. He entered into a plea agreement in the Central District allegedly without knowledge of his outstanding charge on the same conspiracy in the Southern District. At oral argument, Assistant United States Attorney Ralph Friederich from the Southern District admitted that he had consulted with the Assistant U.S. Attorney prosecuting Laurel in the Central District soon after Laurel was arrested. Among other things, Friederich provided his colleague with the name of the case agent handling Laurel's case in the Southern District. The district court never held an evidentiary hearing on Laurel's motions to dismiss the indictment, and no affidavits were submitted in support of those motions; thus, we have no record of the content or timing of the two districts' communications.
On appeal, Laurel argues that the Southern District prosecution violated his plea agreement in the Central District because he was unaware of the Southern District charge when he entered into the first plea agreement. At oral argument, the Government's response to Laurel's predicament was "So what?" Putting aside this seemingly flippant retort and underscoring the Government's responsibility to conduct plea negotiations in good faith, we must conclude that Laurel is not entitled to relief. It appears that Laurel's arguments are better addressed to a district court in the Central District regarding the propriety of his plea agreement in that district. That agreement unambiguously binds only the U.S. Attorney for the Central District, so we cannot say that other districts would violate that plea agreement by prosecuting Laurel on charges relating to the same conduct. We therefore affirm the district court's conclusion that the Southern District prosecution did not constitute a breach of the plea agreement in the Central District.
Plea agreements are contracts — unique contracts, to be sure — and we interpret their meanings in light of ordinary contract principles. See, e.g., United States v. Ramunno, 133 F.3d 476, 484 (7th Cir. 1998). Laurel argues that his plea agreement in the Central District barred any further prosecution on the criminal conduct underlying that plea. In fact, however, the plain language of the agreement specifically contradicts the expansive interpretation urged by Laurel:
This plea agreement is binding only upon the United States Attorney for the Central District of Illinois. It does not bind any United States Attorney outside the Central District of Illinois, nor does it bind any state or local prosecutor. In addition, the plea agreement does not bind the Tax Division of the United States Department of Justice or the Internal Revenue Service of the United States Department of the Treasury.
In addition, the agreement provides that "[t]he Government agrees to bring no additional criminal charges in the Central District of Illinois against the defendant relating to or arising from the offenses charged in this Information." This language convincingly demonstrates that the agreement binds only the United States Attorney for the Central District. The agreement does not bar prosecutors in other state and federal jurisdictions from bringing charges relating to the criminal conduct underlying the Central District possession charge and guilty plea.
We have refused to find breaches of plea agreements in similar situations in which the agreements utilized this sort of clear language. The defendant in United States v. Ingram, 979 F.2d 1179, 1182-83 (7th Cir. 1992), cert. denied, 507 U.S. 997 (1993), conspired to possess and distribute methamphetamine in both Colorado and Wisconsin. He pleaded guilty to a lesser offense in the District of Colorado, and his plea agreement stated, in relevant part, that "the United States Attorney's Office for the District of Colorado . . . further agrees not to file any additional criminal charges in the District of Colorado which are known to this office arising from Mr. Ingram's criminal activities in the District of Colorado." When he was indicted on a conspiracy charge in the Western District of Wisconsin relating to the same course of conduct, he claimed that the second charge violated his earlier plea agreement in Colorado. We rejected that argument and noted that the explicit language of the agreement prohibited only the filing of criminal charges in the District of Colorado arising from criminal conduct in the District of Colorado. See id. at 1185. We reaffirmed this holding in United States v. Prewitt, 34 F.3d 436, 441 (7th Cir. 1994), in which we held that indicting the defendant in the Southern District of Indiana was not precluded by an earlier plea agreement in the Northern District of Indiana concerning the same criminal conduct. The Northern District agreement, we stated, did not bar prosecution in the Southern District because it expressly precluded only the U.S. Attorney for the Northern District of Indiana from filing further charges. Id.
Laurel seeks support from the Fourth Circuit's decision in United States v. Harvey, 791 F.2d 294 (4th Cir. 1986), but that opinion actually bolsters the Government's position in this case. The court in Harvey held that the scope of a plea agreement was ambiguous when the agreement generally referred to obligations assumed by "the Government," but mentioned a specific federal district only once: "The Eastern District of Virginia further agrees not to prosecute [the defendant] for any other possible violations of criminal law arising from the offenses set out in the indictment or in the investigation giving rise to those charges." Id. at 296 n. 1. The court held that the agreement was ambiguous regarding whether further prosecution was barred only in the Eastern District of Virginia or in any federal district by the Government. See id. at 303. Importantly, however, the court noted that the ambiguity could have been cured if the agreement had utilized specific language such as that used in the instant case:
Had the agreement said what it could easily have said, "the Government further agrees that defendant will not be prosecuted in the Eastern District of Virginia (or "by the office of the United States Attorney for the Eastern District of Virginia") . . .," it would have said unambiguously what the Government contends it unambiguously said as actually written.
Id. at 301. Laurel's plea agreement closely tracks Harvey's suggested language: "This plea agreement is binding only upon the United States Attorney for the Central District of Illinois" and "The government agrees to bring no additional criminal charges in the Central District of Illinois. . . ." Thus, Laurel's reliance on Harvey actually undermines his claim.
In essence, Laurel is complaining that he was sandbagged by the United States Attorney for the Central District of Illinois. He argues that the Central District prosecutors knew about the identical conspiracy indictment he faced in the Southern District; that accusation seemed to be confirmed by the Government's representations at oral argument in this case. Laurel argues in this appeal that the Central District prosecutors overreached by failing to disclose the existence of the Southern District indictment while negotiating the plea agreement in the Central District. This is a different claim than the one over which we have jurisdiction presently: that the Southern District prosecution, in and of itself, violated the Central District plea agreement. The serious allegations of prosecutorial misconduct must be addressed squarely to a district court in the Central District rather than through the backdoor of this proceeding. We conclude that the prosecution of Laurel in the Southern District did not violate the terms of his plea agreement in the Central District.
Laurel has never attempted to revoke his guilty plea in the Central District (most likely because he received a very favorable deal through that plea).
C. Speedy Trial
Finally, Laurel contends that the long delay between his indictment and appearance before the court in the Southern District violated his Sixth Amendment right to a speedy trial. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ."). The Supreme Court has explained the purposes of this constitutional right: "The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." United States v. MacDonald, 456 U.S. 1, 8 (1982). The passage of time can also prejudice an accused's ability to present a defense, although that interest is redressed primarily through the Due Process Clause and statutes of limitations. See id. This type of prejudice is, though, considered in one of the four factors that the Supreme Court has directed courts to balance when evaluating Sixth Amendment speedy trial claims. Other considerations in this inquiry include "whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, [and] whether, in due course, the defendant asserted his right to a speedy trial . . . ." Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).
But see generally Doggett v. United States, 505 U.S. 647, 655 (1992) (finding a Sixth Amendment violation despite the defendant's inability to demonstrate prejudice to his defense because "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify").
A review of these factors in the instant case does not support Laurel's claim of a Sixth Amendment violation. As a threshold matter, a speedy trial claim requires an uncommonly long pre-trial delay. See Barker, 407 U.S. at 530 ("Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance."). Approximately sixty-eight months elapsed between the Southern District's issuance of a warrant for Laurel's arrest in January 1992 and his expected trial date in that district in late September 1997; he entered a guilty plea in the Southern District just before trial on September 29, 1997. This delay greatly exceeds the twelve-month, see United States v. Jackson, 542 F.2d 403, 407 (7th Cir. 1976), and eighteen-month, see United States v. Ashford, 924 F.2d 1416, 1421 (7th Cir.), cert. denied, 502 U.S. 828 (1991), delays that we have held presumptively prejudicial in prior cases.
"We note that, as the term is used in this threshold context, `presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry." Doggett, 505 U.S. at 652 n. 1. The Supreme Court's test, however, does not provide any sort of guiding principle in identifying the point of presumptive prejudice. Compare, e.g., United States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120, 1127 (7th Cir. 1984) (stating that a delay of eight months was presumptively prejudicial), cert. denied, 471 U.S. 1056 (1985), with Hogan v. McBride, 74 F.3d 144, 145 (7th Cir. 1996) (holding that a pre-trial delay of eight months was not presumptively prejudicial).
Although his pre-trial delay satisfies the Supreme Court's threshold requirement, Laurel's claim falters on the other relevant grounds. The Southern District "had a constitutional duty to make a diligent, good-faith effort" to locate, arrest, and bring Laurel to trial. Smith v. Hooey, 393 U.S. 374, 383 (1969). One of the salient factors in the Sixth Amendment inquiry, therefore, is the reason for delays in this process; delays attributable to the defendant cannot support a speedy trial claim. See United States v. Mitchell, 957 F.2d 465, 469 (7th Cir. 1992). The Southern District's arrest warrant issued on January 30, 1992, at which time Laurel was living in Mexico. He was arrested on the Central District's warrant in Texas in November 1994. The 1992-1994 period during which Laurel evaded arrest is not attributable to the Southern District prosecutors. Similarly, the period of delay encompassing Laurel's 1994 arrest, his transfer to the Central District, his pre-trial incarceration, and his eventual plea agreement in the Central District in September 1996 is not attributable to the Southern District prosecutors without some showing of a bad-faith motive on their part for allowing the Central District prosecution to proceed first. See United States v. Kimberlin, 805 F.2d 210, 225-26 (7th Cir. 1986) (finding no speedy trial violation when 14 months of a 19-month delay was caused by the incarceration and disposition of charges against the defendant in another jurisdiction), cert. denied, 483 U.S. 1023 (1987); cf. 18 U.S.C. § 3161(h)(1)(D) (excluding the time required to dispose of other charges against a defendant from the computation of the date on which a trial must commence under the Speedy Trial Act).
Thus, the only delay attributable to the Southern District was the period from September 1996 following his guilty plea and sentencing in the Central District until September 29, 1997, the date of Laurel's guilty plea in the Southern District. Laurel does not attribute any sort of nefarious motive to the Southern District prosecutors' delay in bringing him before the district court during this time. For instance, he does not suggest that the delay was created intentionally in order to provide the prosecutors with a tactical advantage at trial. See, e.g., Barker, 407 U.S. at 531 ("A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government."). Rather, while we cannot conclusively know on this record, it seems that the delay resulted from governmental negligence. This is certainly time chargeable to the Southern District prosecutors, but it does not weigh against them as heavily as an affirmatively hostile motive. See id. at 531 ("A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.").
The third factor we must consider is Laurel's assertion of his right to a speedy trial. According to Laurel, he only learned of the existence of the Southern District indictment in March 1997. He was arraigned in the Southern District on May 5, 1997. Laurel appears to have been assigned both late June and late July trial dates, but he received extensions from those dates in order to review the discovery in the case and to permit the appointment of new defense counsel. In addition, he formally waived his right to a jury trial in late July. Nowhere in the course of these pre-trial proceedings, though, did he raise any speedy trial concerns. Indeed, he did not assert his Sixth Amendment speedy trial right until he filed a motion to dismiss the indictment on that ground on August 27, 1997. This may not have been an inordinate delay, but it is important to note that Laurel's assertion of his right to a speedy trial came after he was assigned at least two trial dates, and it preceded the expected commencement of his trial by only one month. Such a tardy assertion does not demonstrate any particular enthusiasm on Laurel's part to obtain a speedy trial. See Jones v. Morris, 590 F.2d 684, 686 (7th Cir.) (noting that the defendant did not appear "overly anxious" to assert his right to a speedy trial when he waited "until it became apparent that trial was imminent" to make such a claim), cert. denied, 440 U.S. 965 (1979).
In fact, the district court specifically noted in two separate orders that extending the trial date did not impinge on Laurel's right to a speedy trial: "The Court finds that the ends of justice outweigh the best interests of the public and the defendant in a speedy trial." If Laurel needed any prompting to raise a speedy trial objection, he surely had it (twice).
Finally, we must analyze the extent, if any, to which the post-indictment delay prejudiced Laurel. In Barker, 407 U.S. at 532, the Supreme Court identified three facets of the definition of prejudice in this context: (1) oppressive pre-trial incarceration, (2) anxiety and concern of the accused, and (3) impairment of the defendant's ability to mount a defense at trial. None of these concerns is implicated by the delay in this case. First, during the entire time he awaited trial in the Southern District, Laurel was serving a ten-year prison sentence imposed in the Central District. It is therefore impossible to call his pre-trial incarceration "oppressive," inasmuch as he would have been in the same position at that time even if he had not been facing a criminal charge in the Southern District. Second, Laurel admitted that he did not even learn of the Southern District indictment until March 1997 — only months before his anticipated trial date(s) on that charge. This alone serves to minimize any anxiety he might have felt during the pre-trial delay attributable to the Southern District indictment. During the six months that he "knowingly" awaited trial in the Southern District, Laurel did not endure anxiety and concern distinguishable in length or degree from that felt by others accused of federal crimes. Third, Laurel does not point to any exculpatory evidence that was lost or any other aspect of his defense that was impaired by the pre-trial delay. Furthermore, any intangible prejudice caused by lost witness memories would have been minimal in light of the Government's anticipated reliance on proffer interviews from the early 1990's, in which at least three of Laurel's co-conspirators provided details of his involvement in the charged conspiracy while their memories were fresh. Thus, Laurel has not demonstrated that he suffered prejudice as defined by the Supreme Court in Barker.
Under the Barker multi-factor balancing test, Laurel cannot establish a Sixth Amendment violation. After subtracting the time during which Laurel was a fugitive in Mexico and awaiting trial in the Central District, the Southern District is only responsible for a pre-trial delay of less than one year. Laurel does not suggest that the Southern District prosecutors intentionally engineered this delay in order to gain a tactical advantage or for some other malevolent purpose. Laurel's failure to assert his speedy trial rights until one month before the anticipated commencement of his trial did not help his claim. The fact that he suffered no prejudice as a result of the delay also damages his position. We conclude that the district court properly refused to dismiss the indictment as a violation of Laurel's Sixth Amendment right to a speedy trial.
Some of the one-year delay between Laurel's guilty pleas in the Central and Southern Districts was caused by trial extensions attributable to him.
III.
For the foregoing reasons, we affirm the district court's denial of Laurel's three motions to dismiss the instant indictment.