IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xx-ll5(SS)
v. :
:
xxxxxxxxxxx, et al.; :
xxxxxxxxxxxxxxx :
:
Defendant :
MOTION TO DISMISS ON DOUBLE JEOPARDY GROUNDS
Defendant xxxxxxx x. xxxxxxxxx, through counsel, respectfully
moves the court to dismiss the indictment as against him, and as grounds for this Motion, shows the court:
l. Defendant xxxxxxxxxx is charged in two counts of the indictment, with conspiracy and with engaging in a continuing criminal enterprise (Counts I and II). As substantive acts supporting those charges, he is accused of making sales of crack cocaine on the following dates:
7/25/90
9/2l/90
9/25/90
9/28/90
l0/4/90
l0/l0/90
l0/24/90
2. Mr. xxxxxxxxxx was previously convicted of the sales on 9/28/90, l0/4/90 and l0/l0/90 in United States v. xxxxxxxxxx, Criminal No. 90-532. He was sentenced on those convictions on June 3, l99l.
3. The other sales allegedly made by defendant xxxxxxxxxx in furtherance of Count I, the conspiracy count, and Count II, the continuing criminal enterprise count, were completed before he was indicted in Criminal No. 90-532 on November 29, l990.
4. Because the government had in its possession all of the evidence it now relies upon in order to prosecute defendant xxxxxxxxxx on the two counts with which he is charged in the instant indictment, the government is barred from prosecuting him for conduct for which he has already been convicted pursuant to the original indictment or for conduct which the government could have charged in the original indictment. Brown v. Ohio, 432 U.S. l6l (l977); Illinois v. Vitale, 447 U.S. 4l0 (l980); Grady v. Corbin, ll0 S.Ct. 2084 (l990); United States v. Rosenberg, 888 F.2d l406 (D.C. Cir. l989); Mitchell v. Cody, 783 F.2d 669 (6th Cir.), cert. denied l07 S.Ct. 75 (l986); United States v. Marable, 578 F.2d l5l (5th Cir. l978).
4. In Garrett v. United States, 47l U.S. 773 (l985), the Court held that the offense of continuing criminal enterprise (CCE) was different from the substantive predicate offenses making up the criminal enterprise and that conviction on a substantive offense did not bar prosecution for the CCE offense. Very recently, in United States v. Felix, 50 CrL 2ll9 (March 25, l992), the Court held that conviction on a substantive count did not bar subsequent prosecution for a conspiracy where that count was an overt act of the conspiracy. However, neither of these cases involved a situation like the instant case, where all of the conduct of which defendant xxxxxxxxxx is accused had occurred prior to the prosecution on the substantive offenses. That fact distinguishes defendant xxxxxxxxxx's case from those of Garrett and Felix. The government cannot elect to prosecute a defendant piecemeal, for its own tactical advantage, without running afoul of the other precedent cited in paragraph 3 above. Grady v. Corbin, supra, is especially illustrative. In that case, the Court held that the Double Jeopardy Clause bars a prosecution where the government, in order to establish an element of a charged offense, proves conduct that constitutes an offense for which the defendant has already been convicted. Id., 495 U.S. at 52l.
5. Felix and Garrett remove CCE and conspiracy prosecutions from that general rule in some instances. However, given the lack of any rational reason for the government's election to prosecute defendant xxxxxxxxxx for some sales completed prior to his original indictment, to forego prosecution on other sales allegedly made by him, and to forego prosecution for CCE or conspiracy, this case is not one for application of any exception to the general rule.
For the foregoing reasons, defendant xxxxxxxxxx respectfully requests the court to dismiss the indictment as to him.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500