IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xx-ll5(SS)
v. :
:
xxxxxxxxxxxx, et al.; :
xxxxxxxxxxxxxxxxxxx :
:
Defendant :
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS INDICTMENT ON DOUBLE JEOPARDY GROUNDS
Defendant xxxxxxxx xxxxx, through counsel, respectfully supplements the Motion to Dismiss on Double Jeopardy Grounds filed in this case on April 30, l992, as follows:
l. On May 28, l992, a superseding indictment was filed in this case. Mr. xxxxxxxx is now charged with conspiracy in violation of 2l U.S.C. §846 (Count One)(1), conducting the affairs of an enterprise known as the P Street Crew through a pattern of racketeering activity in violation of l8 U.S.C. §l962(c) and l963 (RICO)(Counts Three and Fifty-Eight)(2), possession with intent to distribute cocaine base, in violation of 2l U.S.C. §84l(a)(l) (Count 25), distribution of cocaine base in violation of 2l U.S.C. §84l(a)(l) (Counts 30 - 35), and using a juvenile to distribute cocaine base in violation of 2l U.S.C. §86l (Counts 50, 53).
2. As overt acts supporting the conspiracy count, defendant xxxxxxxx is accused of making sales of crack cocaine on the following dates:
July 25, l990
September 2l, l990
September 25, l990
September 28, l990
October 4, l990
October l0, l990
October l6, l990
He is also accused of possessing crack cocaine with the intent to distribute it on October 24, l990.
3. As predicate offenses supporting the RICO count, defendant xxxxxxxx is charged with possession with intent to distribute more than five grams of crack cocaine on October 24, l990 and with distribution of crack cocaine on September 2l, l990, September 25, l990, September 28, l990, October 4, l990, October l0, l990 and October l6, l990.
4. Defendant xxxxxxxx is charged in Count 25 with possession with intent to distribute crack cocaine on October 24, l990. 5. Defendant xxxxxxxx is charged in Counts 30 through 35 with distribution of crack cocaine on September 2l, l990, September 25, l990, September 28, l990, October 4, l990, October l0, l990 and October l6, l990.
6. Defendant xxxxxxxx is charged in Counts 50 and 53 with attempting to use a juvenile to distribute crack cocaine sometime in October, l990 and on September 28, l990.
7. Defendant xxxxxxxx was previously convicted of distribution of crack cocaine on September 28, l990, October 4, l990, October l0, l990 and October l6, l990(3) in United States v. Thomas xxxxxxxx, Criminal No. 90-532. He was sentenced in that case to a term of incarceration of l75 months.
8. All of the activities of which defendant xxxxxxxx is accused in the counts of the superseding indictment occurred prior to the indictment in Criminal No. 90-532, which was returned on November 29, l990.
ARGUMENT
Counts 32 through 35 of the superseding indictment charge the same four offenses for which defendant xxxxxxxx was previously convicted in Criminal Number 90-532. The government may not prosecute him a second time for those offenses and those counts of the indictment must be dismissed. North Carolina v. Pearce, 395 U.S. 7ll (l969).
In Grady v. Corbin, 495 U.S. 508, ll0 S.Ct. 2084, 2093 (l990), the Supreme Court held that "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." The applicability of that holding in complex cases such as the instant case has been the subject of much discussion.
This Circuit has not yet decided the question whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, as interpreted in Grady v. Corbin, supra, bars prosecution of a RICO conspiracy where a defendant has previously been prosecuted for conduct which is a predicate act supporting the RICO charge.(4) However, several other circuits have considered the question and all but one have concluded that there is no bar. See, e.g., United States v. Pungitore, 9l0 F.2d l084 (3rd Cir. l990); United States v. Esposito, 9l2 F.2d 60 (3rd Cir. l990); United States v. Arnoldt, 947 F.2d ll20 (4th Cir. l99l); United States v. Gonzalez, 92l F.2d l530 (llth Cir. l99l); United States v. O'Connor, 953 F.2d 338 (7th Cir. l992).
These decisions adopt the analysis in United States v. Garrett, 47l U.S. 773, l05 S.Ct. 2407 (l985) as the appropriate test in complex multioffense cases rather than the test enunciated in Grady v. Corbin. In Garrett, the Court held that a substantive offense and a continuing criminal enterprise, resting in part of the substantive offense, were not the same under the Double Jeopardy Clause and that successive prosecutions for these offenses were permissible.
The lone voice finding that Grady v. Corbin applies in the complex conspiracy case is United States v. Calderone, 9l7 F.2d 7l7 (2nd Cir. l990). However, in United States v. Felix, ___ U.S. ___, 50 Cr.L. 2ll9 (March 25, l992), the Supreme Court cited the Calderone case, pointing out that the Second Circuit "upheld a claim of double jeopardy by a divided vote, with each judge on the panel writing an opinion interpreting the crucial language from Grady differently." After summarizing the different interpretations, the Court held:
We think it best not to enmesh in such subtleties the
established doctrine that a conspiracy to commit a crime
is a separate offense from the crime itself. Thus, in
this case, the conspiracy charge against Felix was an
offense distinct from any crime for which he had been
previously prosecuted, and the Double Jeopardy Clause
did not bar his prosecution on that charge.
Id., at 2l24. The vitality of Calderone is called into question by that language.
Nonetheless, the instant case presents a double jeopardy issue that has not been resolved by these cases. All of the conduct with which defendant xxxxxxxx is charged occurred prior to the first indictment in the case in which he was convicted, Criminal Number 90-532. Whatever evidence the government has with regard to conspiracy or racketeering on defendant xxxxxxxx's part was available to the government at the time of the original indictment. Thus, the doctrine of "due diligence" bars his prosecution for that conduct in this case.
In Garrett v. United States, 47l U.S. 773, l05 S.Ct. 2407 (l985), defendant Garrett was first prosecuted in March of l98l in Washington state on a three-count indictment charging the off-loading and landing of l2,000 pounds of marijuana from a ship in the Washington bay. In that case, he entered a plea to importation of marijuana and the other counts were dismissed. Then in July of l98l, two months after his plea in that case, he was indicted in Florida for conspiracy to import marijuana, conspiracy to possess marijuana with intent to distribute it, using a telephone in drug activity, and a continuing criminal enterprise. At trial in Florida, the government introduced proof of Garrett's marijuana smuggling activities in Washington, evidence tending to prove the predicate acts of the CCE count.
The Court set out a two-step analysis for determining whether, under the Double Jeopardy Clause of the Fifth Amendment, prosecution for a continuing criminal enterprise (CCE) offense was barred by a previous conviction for a predicate offense. The first step in the analysis was to determine whether Congress intended the predicate offense and the CCE offense to be separate offenses, each of which could be prosecuted. The Garrett Court answered that question in the affirmative, following a comprehensive review of the legislative history of the CCE statute. The second step in the analysis was to determine whether a CCE offense was the "same offense" as the predicate offense for Double Jeopardy purposes. In Garrett, the Court also answered that question in the affirmative by assuming that the predicate offense was a lesser included offense of the CCE offense.(5) However, prosecution was not barred by the Double Jeopardy Clause, the Court held, because the criminal enterprise had not been completed when the government commenced prosecution on the predicate offenses. Therefore, the Court reasoned, under Diaz v. United States, 223 U.S. 442 (l9l2), the CCE count could not have been prosecuted at the same time as the predicate acts.(6)
The Garrett Court's reliance on Diaz was a testament to the continuing validity of the notion that the government should avoid successive prosecutions in those instances when the evidence necessary to prosecute a defendant on all the offenses with which he could be charged is available to the government when the prosecution is commenced. This doctrine of "due diligence" has been incorporated into the double jeopardy clause. Jeffers v. United States, 432 U.S. l37, 97 S.Ct. 2207, 22l7 (l977):
The rule established in Brown (v. Ohio, 432 U.S. l6l,
97 S.Ct. 222l, decided on the same day as Jeffers,
and holding that the Double Jeopardy Clause bars
the trial of a defendant for a greater offense after
he has been convicted of a lesser-included offense),
however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater
crime have not taken place at the time the prosecution for the
lesser is begun....This exception may also apply when the facts necessary to the greater were not discovered despite
the exercise of due diligence before the first trial....
(Citations omitted).
See also, United States v. Boldin, 772 F.2d 7l9 (llth Cir. l985).
None of the cases decided since Garrett have squarely considered the applicability of the "due diligence" doctrine to successive prosecutions for substantive offenses and RICO violations. This is the classic case compelling the application of that doctrine - the government cannot allege one fact known to it now that was not known at the time defendant xxxxxxxx was indicted in l990 on the offenses on which the government now relies to prove conspiracy and a RICO violation. The government's failure to indict the conspiracy and RICO counts in the original indictment cannot be excused.
For the foregoing reasons, defendant xxxxxxxx respectfully requests that his Motion to Dismiss on Double Jeopardy Grounds be granted.
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
1. The government contends that this conspiracy continued from April, l988 through January 3l, l992, according to the indictment.
2. The pattern of racketeering activity alleged in Counts Three and Fifty-Eight continued from April, l988 through January 3l, l992, according to the indictment.
3. Counsel inadvertently omitted the conviction based on the October l6, l990 sale in the Motion filed on April 30, l992.
4. 4Prior to Grady v. Corbin, supra, there was some support in the circuit for the proposition that the government may try a defendant for RICO violations based in part on an offense for which he has already been convicted. That support derived from language in United States v. Black, 759 F.2d 7l (l985)(per curiam). However, the issue in Black was whether the appellate court was required to grant a stay of trial pending review of the denial of a motion to dismiss an indictment on double jeopardy grounds. The court's discussion of the double jeopardy issues was minimal and its suggestion that RICO violations could be based on conduct for which defendant was previously tried and convicted was in the nature of dictum.
5. 5The Court expressed grave reservations in the Garrett case as to whether the predicate offense was in fact a lesser- included offense. Those reservations stemmed from the fact that the CCE activity spanned nearly five and a half years while the predicate acts occurred on two days in l979 and l980, that the CCE activity involved several jurisdictions and the predicate acts occurred in one location, that the CCE activity continued well after the conviction and sentencing on the predicate acts, and that the government could not have anticipated when it charged the predicate acts that the CCE activity would be accomplished by the defendant. The Court noted the bind the government was in when it prosecuted on the predicate acts: it could either forego prosecution on the predicate acts until it was ready to prosecute on the CCE count or it could prematurely indict the CCE count. None of these factors are present in the instant case and in every rational sense, the drug distributions for which defendant xxxxxxxx was convicted were lesser-included offenses of the RICO conspiracy.
6. 6 Cf., United States v. O'Connor, 953 F.2d 338, 344 (7th Cir. l992), where the court held that "...in regard to RICO offenses, important considerations counsel us to decline to limit Garrett to cases where the government has alleged a RICO offense which continues beyond the date of prosecution for previous offenses."