U.S. v. Rodgers

• Decision Date: 17 March 1994
• Docket Number: 93-2174,Nos. 93-2169,s. 93-2169
• Citation: 18 F.3d 1425
• Parties: UNITED STATES of America, Appellee, v. Alfred Leotis RODGERS, Appellant. UNITED STATES of America, Appellee, v. Michael Reed RODGERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1425

18 F.3d 1425

UNITED STATES of America, Appellee, v. Alfred Leotis RODGERS, Appellant.

UNITED STATES of America, Appellee, v. Michael Reed RODGERS, Appellant.

Nos. 93-2169, 93-2174.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 11, 1993.

Decided March 17, 1994.

Before BOWMAN, Circuit Judge, JOHN R. GIBSON, ^* Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Alfred Leotis Rodgers and Michael Reed Rodgers appeal their criminal convictions, contending that the district court ¹ erred in denying their motions to dismiss, in which they asserted double jeopardy and prosecutorial vindictiveness. Additionally, Michael contends that the district court erred in denying his motion to sever, and Alfred contends that the district court erred in failing to sustain his objections to the presentence investigation report (PSR). We affirm.

I. Background

In March of 1992, the government charged Alfred Rodgers, Michael Rodgers, and six others in a multicount indictment alleging a drug distribution conspiracy and individual counts of possession. Count I alleged a conspiracy among the defendants spanning from January 1, 1988, to February 29, 1992, and listed 16 separate overt acts alleged to have been committed in furtherance of the conspiracy. See 21 U.S.C. Sec. 846. Count II charged Michael with possession with the intent to distribute cocaine and cocaine base (crack), and count III charged Alfred, among others, with possession with the intent to distribute cocaine and crack. See 21 U.S.C. Sec. 841. The remaining counts, IV through XI, recited charges against the other six defendants, but not against Michael and Alfred.

Four of the coconspirators pled guilty before trial, two remained fugitives, and Alfred and Michael proceeded to trial on July 7, 1992. Following trial, the jury returned a verdict finding Michael and Alfred not guilty on the possession charges (counts II and III), but the jury was unable to reach a decision on the conspiracy charge (count I). Consequently, the district court dismissed the counts of possession against Michael and Alfred and declared a mistrial on the conspiracy charge.

The government filed its first superseding indictment on July 21, 1992, naming Michael, Alfred, and the two remaining fugitives as defendants. The superseding indictment recharged the conspiracy count, recharged the possession and gun charges against the fugitives and, for the first time, charged Michael and Alfred with using a firearm during and in relation to a drug trafficking crime. See 18 U.S.C. Sec. 924(c). Also for the first time, the indictment charged Michael with aiding and abetting Theresa Bolden Slade to possess with the intent to distribute cocaine. See 21 U.S.C. Sec. 841; 18 U.S.C. Sec. 2.

The government filed a second superseding indictment on October 21, 1992, which extended the length of the conspiracy from February 29, 1992, to September 30, 1992, and included seven new charges against Alfred for distributing crack during that period. The second superseding indictment also recharged the aiding and abetting and firearm counts that were new in the first superseding indictment. Alfred and Michael filed a motion to dismiss the indictment, citing double jeopardy and prosecutorial retaliation as grounds for dismissal, and Michael filed a motion to sever his trial from the other defendants. The district court denied both motions, and the case proceeded to a second trial.

Following the second trial, the jury found Michael guilty on all counts against him (conspiracy, aiding and abetting Theresa Slade to possess with intent to distribute, and using a firearm). The court sentenced Michael to 35 years of imprisonment to be followed by a five-year term of supervised release. The jury found Alfred guilty of conspiracy and the seven new counts of distribution, but not guilty of using a firearm in relation to the drug trafficking crime. The court sentenced Alfred to life imprisonment. This appeal followed.

II. Discussion

A. Double Jeopardy

Alfred and Michael contend that the district court erred in denying their motions to dismiss based upon double jeopardy. They assert that the conspiracy count litigated in the second trial involved the same conduct and the same evidence used in the first trial, which resulted in an acquittal of the possession with intent charges, and they claim that this violates the Double Jeopardy Clause.

We begin with a review of double jeopardy principles. The Double Jeopardy Clause bars a second prosecution of the same offense. See U.S. Const. amend. V. The critical issue in determining whether or not two crimes are the "same offense" is whether they consist of the same elements. The "same-elements" test, as enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), focuses "on the offenses and whether each offense requires proof of a fact that the other does not." United States v. Cerone, 830 F.2d 938, 944 (8th Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988). In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), overruled by United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2864, 125 L.Ed.2d 556 (1993), the Supreme Court announced a "same-conduct" test to be applied in addition to the "same-elements" test. The "same-conduct" test provided that if "the government, to establish an essential element of an offense charged in [a second] prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted," then the second prosecution is barred. Grady, 495 U.S. at 521, 110 S.Ct. at 2093. But in Dixon, the Court expressly overruled Grady's same-conduct test, calling it "a mistake." --- U.S. at ----, 113 S.Ct. at 2864. As demonstrated in Dixon, the Supreme Court now has returned to the same-elements test as the sole standard by which to determine whether there has been a double jeopardy violation. Id. at ---- - ----, 113 S.Ct. at 2859-64.

Applying the same-elements test here, we must compare the elements of a conspiracy to possess with intent to distribute or to distribute cocaine and crack with the elements of possession with intent to distribute. To prove a conspiracy under 21 U.S.C. Sec. 846, the government must establish that an agreement to engage in distributing drugs existed between two or more people, including the defendant. United States v. Frayer, 9 F.3d 1367, 1373 n. 3 (8th Cir.1993); United States v. Aranda, 963 F.2d 211, 214 n. 3 (8th Cir.1992). The government does not need to prove an overt act in furtherance of the conspiracy to prove a conspiracy under section 846. United States v. Horne, 4 F.3d 579, 589 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1121, 127 L.Ed.2d 430 (1994); United States v. Abdullah, 947 F.2d 306, 310 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1969, 118 L.Ed.2d 569 (1992). To prove possession with intent to distribute, the government must demonstrate that the defendant knowingly possessed and intended to distribute an illegal drug. Frayer, 9 F.3d at 1373 n. 3; United States v. Cortez, 935 F.2d 135, 143 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 945, 117 L.Ed.2d 114 (1992). No agreement with another need be shown. Because the conspiracy charge contains an element (the agreement) which the possession with intent to distribute charge does not require, each of these offenses consists of different elements, and therefore, double jeopardy does not prevent a conspiracy prosecution after a prosecution for possession with intent to distribute. Frayer, 9 F.3d at 1373. Clearly there was no double jeopardy bar preventing the government from reprosecuting the conspiracy charge in this case.

The double jeopardy clause has a collateral estoppel effect that may bar a later prosecution for a separate offense where the government has lost an earlier prosecution involving the same facts. Dixon, --- U.S. at ----, 113 S.Ct. at 2860. But contrary to Michael and Alfred's contention, the collateral estoppel effect of their acquittal on the prior possession with intent charges does not bar prosecution of the conspiracy charge. The collateral estoppel effect only prevented the government from relitigating the fact of possession on the dates alleged in the original indictment. The government did not attempt to relitigate that fact, and it was not necessary to do so in order to prove the conspiracy charge.

Finally, the defendants complain that the government used the same evidence against them at both trials. There is no "same-evidence" test to prohibit the government from using the same evidence to prove two different offenses. Even Grady's same-conduct test (now overruled) did not amount to a same-evidence test. 495 U.S. at 521, 110 S.Ct. at 2093. Therefore, we find that the district court did not err in refusing to dismiss the second superseding indictment on the ground of double jeopardy. We are bound by Dixon to follow the "same-elements" test, and to the extent our prior cases rely on Grady's "same-conduct" test, they are no longer authoritative because of the Supreme Court's later overruling of Grady.

B. Vindictive Prosecution

Alfred and Michael also sought dismissal of the second superseding indictment based upon prosecutorial vindictiveness demonstrated, they contend, by the government's decision to add new charges (the gun charges and aiding and abetting Theresa Slade) upon reindictment following the first trial. The district court found no vindictiveness and denied the motion to dismiss.

A prosecutor's discretion to charge is very broad but cannot be based upon vindictiveness or exercised in retaliation for a defendant's exercise of a legal right. See United States v. Jacobs, 4 F.3d 603, 604 (8th Cir.1993); United States v. Punelli, 892 F.2d 1364, 1371 (8th Cir.1990). A defendant may demonstrate prosecutorial vindictiveness by proving through...