Opinion
MO-00-CR-141 (25)
November 9, 2001
Mark Roomberg, Midland, TX, Attorney for United States.
Joseph (Sib) Abraham, Jr., El Paso, TX, Attorney for Defendant.
FINDINGS OF FACT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS INDICTMENT
BEFORE THE COURT is the Defendant's Motion to Dismiss Indictment, filed July 30, 2001, the Defendant's Corrected Memorandum of Points and Authorities in Support of Motion to Dismiss Indictment, filed August 2, 2001, the Government's Response to Defendant's Motion to Dismiss, filed August 29, 2001, and the Defendant's Reply to the Government's Response to Defendant's Motion to Dismiss Indictment, filed October 16, 2001. A hearing was held October 31, 2001. For the reasons discussed below, it will be the Recommendation of the undersigned United States Magistrate Judge that the Defendant's Motion to Dismiss Indictment should be GRANTED in part and DENIED in part.
DISCUSSION
In his Motion, the Defendant moves to dismiss Counts Two, Three, and Four of the indictment filed in this case. The Defendant contends this indictment violates the Double Jeopardy Clause of the Fifth Amendment.
On October 2, 1998, the Defendant pled guilty to violating Title 21 U.S.C. § 848 operating a Continuing Criminal Enterprise (CCE) and Title 18 § 1956(a)(1)(B)(I) and (2) money laundering in case number P-98-CR-019-F (Pecos indictment). The Defendant argues that the CCE conviction bars the prosecution of the offenses in this case. The CCE count in the Pecos indictment charged the Defendant, along with 17 others, with a violation of Title 21 U.S.C. § 841 (a)(1) alleging distribution and possession with the intent to distribute marijuana and § 846 conspiracy to distribute marijuana, which were part of a continuing series of such violations, which violations were undertaken by the Defendant in concert with five or more other persons with respect to whom the Defendant occupied a position of organizer, supervisor, and manager, and from which the Defendant obtained substantial income and resources. The CCE offense began in or about 1993 and continued until May 14, 1998, the date of the Pecos indictment. Moreover, the § 846 conspiracy charge included a conspiracy to import marijuana in violation of Title 21 U.S.C. § 952 and § 960, as well as a conspiracy to distribute and possess with the intent to distribute marijuana in violation of Title 21 U.S.C. § 841 (a)(1).
Title 21 U.S.C. § 952 and § 960 are the substantive importation violation statutes, while § 963 is the conspiracy to import statute. Section 963 was not alleged by citation, but was alleged in the words of the indictment wherein it says the Defendant and others, "willfully and knowingly did combine, conspire, confederate, and agree together, and with each other, to commit offenses against the United States, that is, to import marijuana in violation of Title 21, United States Code, Sections 952 and 960 . . ." In other words, § 952 and § 960 were part of the alleged objectives of the conspiracy.
On September 29, 2000, the Defendant, along with 31 others, was named in an indictment returned by a federal grand jury sitting in the Midland-Odessa Division of the Western District. In the Midland indictment, Count Two charges the Defendant with a violation of title 21 U.S.C. § 846 conspiracy to distribute marijuana in excess of 1,000 kilograms. Count Three charges the Defendant with a violation of Title 21 U.S.C. § 963 conspiracy to import more than 1,000 kilograms of marijuana into the United States from the Republic of Mexico contrary to Title 21 U.S.C. § 952 (a) and 960. The two conspiracies alleged in the Midland indictment spanned dates from on or about January 17, 1996 to September 29, 2000, the date of the Midland indictment. Count Four charges the Defendant with a violation of Title 21 U.S.C. § 841 (a)(1) aiding and abetting, and knowingly distributing or possessing with intent to distribute 100 kilograms or more, but less than 1,000 kilograms of marijuana on January 17, 1996.
The Fifth Amendment of the United States Constitution provides that no one shall "be subject for the same offence to be twice put in jeopardy of life or limb." Thus, "the double jeopardy clause guarantees that the government, "with all of its resources and power [will] not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity. . . ." United States v. Levy, 803 F.2d 1390, 1393 (5th Cir. 1986) (quoting Green v. United States, 355 U.S. 184, 187-88 (1957)); see also United States v. Juarez-Fierro, 935 F.2d 672, 675 (5th Cir. 1991) (asserting that the Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against repeated prosecutions for the same offense).
The test for determining whether two offenses are the same for double-jeopardy purposes is whether the offense charged in the subsequent prosecution requires proof of a fact which the other does not." United States v. Rodriguez, 948 F.2d 914, 917 (5th Cir. 1991). The Defendant bears the initial burden of establishing a prima facie claim of double jeopardy. Levy 803 F.2d at 1393. If the Defendant does so, the burden shifts to the Government to demonstrate by a preponderance of the evidence that the indictment charges a crime separate from that for which the Defendant previously was placed in jeopardy.
Count Two
Count Two of the Midland indictment charges that from on or about January 17, 1996 to on or about September 29, 2000, in the Western District of Texas and elsewhere, the Defendant did combine, conspire, confederate and agree with the other defendants, and with others known and unknown to the grand jury to distribute and possess with intent to distribute marijuana in violation of Title 21 U.S.C. § 846. The Defendant argues that the conspiracy in the Midland indictment is "part and parcel" of the CCE conviction in the Pecos indictment.
In Jeffers v. United States, 432 U.S. 137, 155-56, 97 S.Ct. 2207, 2218-19, 53 L.Ed.2d 1268 (1977), the Supreme Court held that drug conspiracy as defined by 21 U.S.C. § 846 or § 963 is a lesser-included offense of a § 848 continuing criminal enterprise. See also Rutledge v. United States, 517 U.S. 292, 299-300, 116 S.Ct. 1241, 1247, 134 L.Ed.2d 419 (1996). The CCE offense requires that the defendant commit a predicate offense, that the predicate offense is part of a continuing series of predicate offenses undertaken by the defendant in concert with five or more other persons, that the defendant occupies a position of an organizer or manager or supervisory position, and that the defendant obtains substantial income or resources from the continuing series of violations. 21 U.S.C. § 848 (c). The Fifth Circuit has adopted the view that a conspiracy is a lesser-included offense of § 848. United States v. Brito, 136 F.3d 397, 408 (5th Cir. 1998); United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997); United States v. Devine, 934 F.2d 1325, 1342 (5th Cir. 1991); United States v. Michel, 588 F.2d 986, 999 (5th Cir. 1979), cert. denied. Furthermore, the Fifth Circuit explained that a conspiracy is a lesser-included offense of § 848 because the "in concert" requirement of § 848 has been interpreted to "encompass the agreement required to prove a § 846 conspiracy." Michel, 588 F.2d at 999.
The conspiracy provisions of the Controlled Substances and Controlled Substances Import and Export Acts proscribe conspiracy to commit any of the offenses defined in those acts. 21 U.S.C. § 846 and § 963. Similarly, the crime of continuing criminal enterprise, as defined in the Controlled Substances Act and construed by the Supreme Court in Jeffers, includes as one of its elements a conspiracy to violate the provisions of the Controlled Substances or Controlled Substances Import and Export Acts. § 848(b).
Before the Court can decide whether the conspiracy charged in the Midland indictment is a lesser-included offense of the Pecos CCE charge, the Court must determine whether the underlying conspiracy of the CCE charge is the same conspiracy charged in Count Two of the Midland indictment. The Defendant has made a showing that there is an overlap in the statutory offenses charged in the Pecos and Midland indictments, as well as an overlap in time between the conspiracies alleged in both indictments. Furthermore, the Defendant has demonstrated that both indictments have a similar recitation of conspiratorial activities, as well as a showing of parallels in the locations of the alleged activities. The Court views this as adequate to establish a prima facie showing that the two conspiracies are the same, thereby, establishing a prima facie claim of double jeopardy. Therefore, the conspiracy alleged in Count Two will be barred unless the government can prove by a preponderance of the evidence that the Count Two conspiracy in the Midland indictment and the underlying conspiracy of the CCE count in the Pecos indictment are factually distinct. U.S. v. Delgado, 256 F.3d 264, 272 (5th Cir. 2001).
The Court will review in greater detail infra the application of the Defendant's facts in light of the Marable factors and the government's burden.
The Fifth Circuit has stated:
The essential issue in the double jeopardy analysis respecting conspiracy is whether one, or more than one, agreement existed. United States v. Deshaw, 974 F.2d 667, 673 (5th Cir. 1992)). To determine whether the alleged conspirators entered into more than one agreement, we evaluate five factors: 1) time; 2) persons acting as co-conspirators; 3) the statutory offenses charged in the indictments; 4) the overt acts charged by the government or any other description of the offense that indicates the nature and scope of the activity that the government sought to punish in each case; and 5) places where the events alleged as part of the conspiracy took place. Id. at 673-74 (citing United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978)). "No one factor of the Marable analysis is determinative; rather all five factors must be considered in combination." United States v. Cihak, 137 F.3d 252, 258 (5th Cir. 1998).Delgado, 256 F.3d at 272. Moreover, a double jeopardy claim in the context of a narcotics conspiracy, requires the evidence to show that "the participants shared a continuing, common illegal goal and that the operations of the conspiracy followed unbroken, repetitive pattern." United States v. Henry, 661 F.2d 894, 896 (5th Cir. 1981).
Applying the Marable factors, the Court concludes that the government has not satisfied its burden of establishing that the Pecos and Midland indictments charge separate crimes.
(1) Time
The Pecos indictment concerned a conspiracy that ranged from 1993 to May 1997, while the Midland indictment involved a conspiracy beginning in January 1996 up to September 2000. Therefore, there is an overlap of the time frames.
(2) Persons Acting as Co-conspirators
Seemingly, there is no overlap between the individuals indicted with the Defendant in the Midland and Pecos indictments. Although the cast of conspirators changes, the Defendant remains a central figure in both the indictments. Furthermore, both indictments specifically allege that the respective conspiracies involved "others." Therefore, this does not rule out the probability that those named in the Midland indictment were the "others" named in the Pecos indictment.
Additionally, the Government suggests that the Defendant's role is different in the respective conspiracies indicted. The Defendant is accused of being the manager/organizer of the conspiracy in the Pecos indictment. Whereas, in the Midland indictment, the Defendant is accused of being a driver recruiter and receiver/purchaser of marijuana. However, if the conspiracies indicted in Pecos and Midland are one in the same, but the Midland indictment covers a much broader description of the overall conspiracy, it would be logical to conclude that the Defendant's role in the Pecos segment of the overall conspiracy would be viewed differently from within that segment versus his role in the larger conspiracy. Regardless, the Fifth Circuit has asserted that "a mere shuffling of personnel in an otherwise on-going operation with an apparent continuity will not, alone, suffice to create multiple conspiracies." United States v. Levy, 803 F.2d 1390, 1395 (5th Cir. 1986); United States v. Nichols, 741 F.2d 767, 772 (5th Cir. 1984).
(3) Statutory Offenses
The statutory offenses charged in Count Two of the Midland case and a predicate offense in the CCE charge of the Pecos matter are the same, conspiracy to distribute and possession with intent to distribute marijuana in violation of § 846.
(4) Overt Acts or Other Description of the Offense Charged
Both indictments have a similar recitation of the conspiratorial activities. The Pecos indictment charged that marijuana was imported into the Western District of Texas from Mexico by using automobiles to smuggle and pick up loads. The Pecos indictment further charged that these loads were picked up by couriers who were recruited and paid to drive the loads. Furthermore, it was part of the conspiracy to promote, sell and push marijuana. The Midland indictment also charged that automobiles were used to transport marijuana imported from Mexico to the United States through the Western District of Texas. In addition, the Midland indictment charged that the Defendant was responsible for transporting the marijuana and for getting the payments from the marijuana purchasers.
(5) Places
There are parallels in the locations of the activities. The marijuana in the Pecos indictment entered the Western District via Mexico at points within the Big Bend region of Texas, including Redford and Presidio. The loads were then sent to the Midland-Odessa area, and then to other distributors elsewhere. The marijuana in the Midland indictment entered the Western District via the Ojinaga, Chihuahau, Mexico, region at points within the Big Bend region of Texas, including Redford and Presidio. The loads were then sent to other distributors. The locations of the "other" distributors were named in the Midland indictment: other locations in the Western District of Texas, the Northern District of Texas, the District of Kansas, and elsewhere.
The examination of the conspiracies in light of the five factors supports a finding of a single conspiracy. Moreover, the operations of the single conspiracy seemed to have followed an unbroken, repetitive pattern. Therefore, Count Three of the Midland indictment is considered a lesser-included offense of the CCE charge. Accordingly, Count Three of the Midland indictment would be barred on double jeopardy grounds.
Count Three
Count Three of the Midland indictment charges the Defendant with violating Title 21 U.S.C. § 963 conspiracy to import marijuana. Specifically, Count Three alleges that on or about January 17, 1996 to September 29, 2000, in the Western District of Texas and elsewhere, the Defendant conspired to import more than 1,000 kilograms of marijuana into the United States from the Republic of Mexico, contrary to Title 21 U.S.C. § 952 (a) and § 960.
The Defendant has pled guilty to a violation of Title 21 U.S.C. § 848 continuing criminal enterprise, charged in the Pecos indictment. The CCE charged was based upon violations of § 841(a)(l) and § 846. The Defendant argues that the CCE charge in the Pecos indictment bars Count Three on double jeopardy grounds. The government contends that the CCE charge relied upon violations of § 846 and § 841, not on a § 963 importation conspiracy violation. The government further argues that because the CCE conviction did not require proof of importation, Count Three does not fall within the double jeopardy prohibition.
As stated above, the CCE charge in the Pecos indictment was based upon a violation of § 846, which was charged in Count I. The Count I § 846 charge alleged a single conspiracy and incorporated by reference allegations of two substantive violations as overt acts: conspiracy to import marijuana in violation of Title 21 U.S.C. § 952 and § 960, and conspiracy to distribute and possess with the intent to distribute marijuana in violation of Title 21 U.S.C. § 841 (a)(1). Because the Count I § 846 charge incorporated importation and possession with intent to distribute, the CCE count also incorporates these violations for the CCE charge is based upon the Count I § 846 charge. However, the government contends that the CCE count did not rely on an importation violation.
Apparently, the government believes that the failure to cite Title 21 U.S.C. § 963 in Count I means conspiracy to import was not charged in Count I of the Pecos case. However, Count I clearly states it includes an allegation the defendants conspired to import marijuana in violation of Title 21 U.S.C. § 952 and § 960. Quoting a portion of the Pecos indictment, Count I, Defendant and others, "willfully and knowingly did combine, conspire, confederate, and agree together, and with each other, to commit offenses against the United States, that is, to import marijuana in violation of Title 21, United States Code, Sections 952 and 960 . . ." In addition, the Pecos indictment alleged that the Defendant conspired to possess with intent to distribute marijuana in violation of Title 21 U.S.C. § 846. In other words, Count I, alleged two distinct objectives to the conspiracy to violate Title 21.
The Fifth Circuit has established "that a single conspiracy may have several objectives and when a conspiracy to violate two or more statutes is alleged, the jury may return a verdict of guilty if they find beyond a reasonable doubt that a conspiracy to violate any one of the statutes existed." United States v. Elam, 678 F.2d 1234, 1250 (5th Cir. 1982). Moreover, a conspiracy is a single cnme no matter how diverse its objectives. United States v. Sherrod, 964 F.2d 1501, 1513 (5th Cir. 1992) (citing Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561 (1919)). In this scenario, the Pecos indictment in Count I charged the Defendant with a single conspiracy in violation of § 846. The conspiracy entailed two objectives which violated two separate statutes: conspiracy to import marijuana in violation of Title 21 U.S.C. § 952 and § 960, and conspiracy to distribute and possess with the intent to distribute marijuana in violation of Title 21 U.S.C. § 841 (a)(1). Thus, the Defendant was accused of one conspiracy under § 846 to violate two statutes. Therefore, the conspiracy underlying the CCE charge and Count Three both allege conspiracies to import marijuana.
The court must determine whether the two alleged conspiracies are the same. As discussed above, the government has not satisfied its burden of establishing that the Pecos and Midland indictments charge separate conspiracies. In addition, the Fifth Circuit has held that a § 846 or § 963 conspiracy is a lesser-included offense of § 848. United States v. Michel, 588 F.2d 986, 999 (5th Cir.), cert. denied. Because the conspiracy alleged in Count Three of the Midland indictment and the CCE charge of the Pecos matter are part of the same conspiracy, the importation conspiracy charge in Count Three constitutes a lesser-included offense of the CCE charge in the Pecos indictment. Therefore, double jeopardy applies and the Defendant should not be punished under the CCE charge from Pecos and Count Three of the Midland indictment.
Count Four
Count Four of the Midland indictment charges that on or about January 17, 1996, in the Western District of Texas, and elsewhere, the Defendant, the listed defendants and others, aided and abetted by each other, knowingly did distribute or possess 100 kilograms or more, but less than 1,000 kilograms of marijuana with the intent to distribute in violation of Title 21 U.S.C. § 841 (a)(1) and Title 18 U.S.C. § 2.
The Defendant argues that an offense actually relied upon to establish a continuing criminal enterprise under § 848 is a lesser included offense under that section. The Defendant contends that the Pecos indictment and the Midland indictment, for which he was already convicted and serving time, pertain to the same conspiracy. As such, the Defendant argues that the violation of§ 841(a)(1) charged in the Midland indictment is a lesser-included offense of the § 848 CCE charge of the Pecos indictment. The Defendant contends that Count Four of the Midland indictment is barred on double jeopardy grounds because he cannot be tried subsequently for a lesser-included offense of the Pecos § 848 charge. The government argues that the charge alleging aiding and abetting the possession with intent to distribute does not fall within the double jeopardy prohibition because the substantive crime and the conspiracy to commit that crime are not the same offense for double jeopardy purposes. Although the court disagrees with the government's reasoning, the court does agree that Count Four does not fall within the double jeopardy prohibition.
Under Title 21 U.S.C. § 848, the continuing criminal enterprise provision, the government must prove that the Defendant committed a predicate offense violating a specified drug law. 21 U.S.C. § 848 (c)(1); see also United States v. Hicks, 945 F.2d 107, 109 n. 1 (5th Cir. 1991). The Supreme Court has declared that:
[T]he language, structure, and legislative history of the Comprehensive Drug Abuse, Prevention and Control Act of 1970 . . . show in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses.Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2412, 85 L.Ed.2d 764 (1985). Contrary to the Defendant's argument that an offense relied upon to establish a continuing criminal enterprise under § 848 is a lesser-included offense under that section, the Fifth Circuit has held that predicate offenses of a CCE are not lesser-included offenses of a CCE for purposes of the double jeopardy clause. United States v. Guthrie, 789 F.2d 356, 358-59 (5th Cir. 1986) (en banc); see also United States v. Devine, 934 F.2d 1325, 1344 (5th Cir. 1991); see also United States v. Deshaw, 974 F.2d 667, 675-76 (5th Cir. 1992). Thus, the Fifth Circuit has held that although conspiracy constitutes a lesser-included offense of § 848, a substantive offense does not constitute a lesser-included offense of § 848. Michel, 588 F.2d at 999; Guthrie, 789 F.2d at 358-59. The CCE charge in the Pecos indictment was predicated upon violations of § 846 and § 841(a)(1). Even though the Defendant pled guilty to the CCE charge, the underlying § 841 substantive count is not considered a lesser-included offense. Accordingly, Count Four of the Midland indictment does not fall within the double jeopardy prohibition.
CONCLUSION/RECOMMENDATION
For the reasons discussed above, Count Two and Count Three of the Midland indictment should be dismissed on double jeopardy grounds. Count Four of the Midland indictment does not fall within the double jeopardy prohibition, and thus, should not be dismissed. Accordingly, it is the Recommendation of the undersigned that the District Judge GRANT the Defendant's Motion to Dismiss the Indictment in part and DENY in part the Motion as set forth above.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of this Proposed Findings of Fact and Recommendation on all parties by mailing a copy to each of them by Regular Mail. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to this report must serve and file written objections within ten (10) days after being served with a copy unless the time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made; the District Court need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on the Magistrate Judge and on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendation contained in this report shall bar the party from a de novo determination by the District Court. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in this report within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Serv. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).