USA. v. Arlt

• Decision Date: 20 March 2001
• Docket Number: No. 97-50588,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,97-50588
• Citation: 252 F.3d 1032
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. CHARLES WESLEY ARLT,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1032

252 F.3d 1032 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CHARLES WESLEY ARLT, DEFENDANT-APPELLANT.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 97-50588

Argued and Submitted March 20, 2001--San Francisco, California

Filed May 31, 2001

Kenneth M. Miller, Steward & Miller, Capistrano Beach, California, for the defendant-appellant.

Jean M. Mohrbacher, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding D.C. No. CR-91-00329-DT

Mary M. Schroeder, Chief Judge; and Stephen Reinhardt, Diarmuid F. O'Scannlain, Stephen S. Trott, Ferdinand F. Fernandez, Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber, M. Margaret McKeown, Kim McLane Wardlaw, and Johnnie B. Rawlinson, Circuit Judges.

The opinion of the court was delivered by: Reinhardt, Circuit Judge.

We heard this case en banc to resolve an intra-circuit conflict in our Double Jeopardy jurisprudence. Our cases have reached inconsistent results as to whether a defendant who has engaged in a single overall conspiracy to commit acts proscribed by more than one statute may be convicted and punished for committing two offenses, one under the general conspiracy statute 18 U.S.C. §§ 371, and the other under a specific conspiracy statute. To resolve the conflict, we must determine whether or not, when considering the elements of §§ 371, we should treat the specific offense that a defendant is alleged to have conspired to commit as an element of that statute. Answering the question in the affirmative would lead to the conclusion that a defendant may be tried and convicted under both the general conspiracy statute and a specific conspiracy statute when the substantive offense that is charged as the object of the §§ 371 conspiracy and the substantive offense that is the object of the other charged conspiracy are different. We conclude that we are required to hold that the specific offense designated as the object of the conspiracy in a §§ 371 indictment does constitute an element of the offense, and we therefore overrule our opinion holding to the contrary, United States v. Alerta, 96 F.3d 1230, 1239 (9th Cir. 1996), overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). It follows that the defendant's two conspiracy convictions in this case do not violate the Double Jeopardy Clause.¹

I.

Charles Wesley Arlt was charged with and convicted of participating in a conspiracy to supply massive quantities of a key ingredient used to manufacture methamphetamine, hydriodic acid. The indictment alleged, inter alia, that Arlt would deposit large sums of cash in a bank account held by a co-conspirator, Deanna Pierce. Ms. Pierce would use the funds to buy cashier's checks in the name of a front company and wire the money to an apparently legitimate hydriodic acid manufacturer, who would ship the acid to Arlt in 55 gallon drums labeled "Mining Fluid."²

Arlt was indicted along with six others in a twenty-two count indictment for participating in a conspiracy to manufacture methamphetamine, a conspiracy to commit an offense against the United States, identified in the applicable count as laundering money, and for the substantive offense of money laundering. The government did not contend that Arlt participated in two separate conspiracies -rather, it argued that the one conspiracy was penalized under two separate statutes. Arlt appealed his convictions to this court, alleging, inter alia, that he was denied the right to represent himself at trial. United States v. Arlt, 41 F.3d 516, 517 (9th Cir. 1994). We agreed and reversed. Id. at 524.

A second superseding indictment was filed against Arlt, charging him with nineteen separate counts for his activities in the methamphetamine operation. Only the first two counts, charging Arlt under two different conspiracy statutes, are relevant to this opinion. Count One alleges that Arlt conspired to "aid and abet the manufacture of 1 kilogram or more of . . . methamphetamine, . . . in violation of Title 21, United States Code, Sections 841(a)(1) and 846," and to "manufacture 1 kilogram or more of . . . methamphetamine, . . . in violation of Title 21, United States Code, Sections 841(a)(1) and 846." The first code provision cited, 21 U.S.C. §§ 841(a)(1), prohibits, inter alia, the manufacture of controlled substances, and the second provision, 21 U.S.C. §§ 846, penalizes conspiracies and attempts to commit certain drug offenses, such as §§ 841.

Count Two alleges that Arlt conspired to "launder monetary instruments, in violation of Title 18, United States Code, Sections 371 and 1956(a)(1)." The conspiracy provision cited, 18 U.S.C. §§ 371, makes it unlawful for "two or more persons" to, inter alia, "conspire . . . to commit any offense against the United States." The other provision cited, 18 U.S.C. §§ 1956(a)(1), prohibits money laundering.

After a jury trial, Arlt was again convicted, and again appeals. His appeal, which was initially argued before a three-judge panel of this court, raises fourteen separate issues, each of which, he asserts, constitutes a ground for reversal. At the request of the panel, we voted to hear the case en banc solely to resolve one of the issues -whether Arlt's conviction under both Counts One and Two subjected him to multiple punishments for the same offense in violation of the Double Jeopardy Clause. In view of our decision, we will return to the panel jurisdiction over the remaining issues.

II.

The Double Jeopardy Clause prohibits the imposition of multiple trials, multiple convictions and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 802 (1989). Its protections are limited by the interpretation the Supreme Court has given the term "same offense" for Double Jeopardy purposes, particularly in its holding that it is up to the legislature to determine what constitutes a "same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977). With respect to conspiracy charges, for example, the Court has held that the Clause is not violated by punishing a defendant separately for conspiracy to import marijuana and conspiracy to distribute marijuana, even though the defendant participated in only one conspiracy, the purpose of which was to import and distribute marijuana. Albernaz v. United States, 450 U.S. 333, 344 (1981). The Court reasoned that the two punishments were lawful because Congress intended separate punishments to be imposed for conspiracy to import and conspiracy to distribute. Id. In fact, the Court said that "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Id.

The question before us, then, is whether Congress intended that separate punishments be imposed for the two conspiracy counts, or whether the two statutory provisions indeed prohibit the "same offense." Whether the statutory provisions cover the "same offense" is a question that is"deceptively simple in appearance but virtually kaleidoscopic in application." Whalen, 445 U.S. at 700 (Rehnquist, J., dissenting).

Nothing in the legislative history of the enactment of §§ 846 or §§ 371 specifically addresses this question. United States v. Nakashian, 820 F.2d 549, 553 (2d Cir. 1987). Under the circumstances, the limited role available to circuit courts is to resolve the question of Congressional intent by application of a rule first set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). Blockburger explains 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.

Id. at 304. The Supreme Court's test "focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial." Illinois v. Vitale, 447 U.S. 410, 416 (1980).

Our precedent is in conflict as to what elements to compare when a defendant is charged with two conspiracies, one of which is a §§ 371 conspiracy: a conspiracy to commit any offense against the United States. The inconsistency arises when applying the test to the element of §§ 371 that requires proof of what it is that the defendant is alleged to have conspired to do. Specifically, is the element simply as stated in the text of §§ 371, "any offense against the United States," or is it the specific offense that the defendant is alleged to have conspired to commit (in this case, money laundering as defined by 18 U.S.C. §§ 1956(a)(1))?

In United States v. Cuevas, 847 F.2d 1417 (9th Cir. 1988), a defendant was charged in separate conspiracy counts under §§ 846 and §§ 371, the same conspiracy statutes at issue in this case. The general conspiracy charge, §§ 371, alleged that he had conspired to fail to report the export of currency. Id. at 1421. Applying the Blockburger test, we concluded in that case that Congress intended separate punishments for the two offenses, because the drug conspiracy required proof of an agreement to violate the drug laws, while the general conspiracy charged in the indictment required an agreement concerning failure to report currency. Id. at 1429. We did not consider the §§ 371 general conspiracy simply in terms of the element as described in the text of the statute -any offense against the United States. We considered instead that the element consisted of the specific substantive offense listed in the conspiracy count. In a subsequent case, relying on Cuevas, we reached the same conclusion. See United States v. Otis, 127...