United States v. Chagra, Crim. No. 80-00165-S.

• Decision Date: 30 July 1980
• Docket Number: Crim. No. 80-00165-S.
• Citation: 494 F. Supp. 908
• Parties: UNITED STATES of America v. Jamiel CHAGRA et al.
• Court: U.S. District Court — District of Massachusetts

494 F. Supp. 908

UNITED STATES of America v. Jamiel CHAGRA et al.

Crim. No. 80-00165-S.

United States District Court, D. Massachusetts.

July 30, 1980.

Martin Boudreau, Dept. of Justice, Boston, Mass., for United States.

Annette R. Quintana and Oscar B. Goodman, Las Vegas, Nev., for defendants.

SKINNER, District Judge.

The defendant moves to dismiss this indictment charging conspiracy to import, importation, conspiracy to possess for distribution and possession for distribution of a quantity of marijuana. All of these charges relate to the alleged illegal importation of marijuana at Folly Cove, Gloucester, Massachusetts during the period July 22-25, 1975 and its subsequent distribution. The attendant conspiracies are alleged to have continued for the entire calendar year 1975.

Defendant Chagra asserts that prosecution of this indictment is barred by his prior conviction in the United States District Court for the Western District of Texas, El Paso Division, for engaging in a continuing series of violations of the Controlled Substances Act, 21 U.S.C. § 801 et seq. in violation of 21 U.S.C. § 848. United States v. Chagra, Criminal No. EP-79-CR-91.¹ The period included in the alleged continuing offense was from April 1, 1974 to April 8, 1978. The series of offenses charged include numerous incidents of illegal importation and possession of marijuana and cocaine on various dates in 1974, 1976, 1977 and 1978. The events charged in the present indictment were not mentioned in the Texas indictment. The defendant apparently concedes that no evidence of his alleged 1975 activity was introduced in the trial of that case.

The events alleged in the present indictment fall squarely within the period of continuous violations charged in the Texas indictment and fit equally squarely within the description of the continuous illegal conduct therein; namely, violations of 21 U.S.C. §§ 841, 846 and 952, and specifically trafficking in marijuana and cocaine.

Conspiracies to violate these sections are lesser included offenses under § 848. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Under the principles affirmed in that case, there can be no doubt that the substantive violations of §§ 841 and 952 are also lesser included offenses. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Court in Jeffers held further that, absent special circumstances constituting a waiver of the defense, conviction of the greater crime (§ 848) barred prosecution of lesser included offenses on the ground of double jeopardy.

Even though the Massachusetts crimes were not specified, the Texas indictment referred to "divers other places to the grand jurors unknown." Evidence of the Massachusetts violations was admissible to establish the continuing series of violations alleged in the indictment. United States v. Bergdoll, 412 F.Supp. 1308, 1318 (D.Del. 1976). Although the indictment refers to a continuing series of violations, the statute actually prohibits engaging "in a continuing criminal enterprise." Continuity is a material element of the crime charged. The charge, and presumably the evidence, concerned violations in 1974 and 1976, 1977 and 1978. The jury's verdict of guilt of the continuing offense necessarily imports a finding that the defendant was engaging in a criminal enterprise during 1975. Evidence of the acts charged in the present case was not necessary to support that finding, but would have been admissible cumulative evidence.

This motion thus raises the following very narrow issue:

Does a conviction under 21 U.S.C. § 848 bar a subsequent prosecution for lesser included crimes committed within the alleged period of the continuing criminal enterprise, evidence of which would have been admissible as cumulative evidence in the trial of the § 848 indictment but was not offered by the prosecution?

In most cases dealing with successive prosecutions for greater and lesser included offenses, the courts were dealing with a single event and basically identical evidence in each case; e. g., murder/assault and battery; robbery/assault; robbery/larceny from the person, etc. In Jeffers, supra, the court dealt with identical evidence on both charges and to a lesser extent, so did the Court in Brown, supra. In United States v. Stricklin, 591 F.2d 1112 (5th Cir. 1979), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979), the court appeared to restrict the bar of double jeopardy in successive prosecutions under § 846 and § 848 (in either chronological order or simultaneously) to charges involving evidence substantially identical to that actually introduced in the prior trial.²

In the present case, however, where the greater crime is a continuing offense, and was prosecuted first, there is an argument in principle and some persuasive authority for a broader application of the bar. In the first place, the jury has already, by necessary implication, found that the defendant was engaged in a criminal enterprise which included the importation and distribution of marijuana during the year 1975. The finding of continuity was material under § 848, and a necessary predicate to the imposition of the very serious penalties imposed under § 848. Furthermore, while I have found no cases on forfeiture, the defendant's present conviction would appear to warrant forfeiture of his profits from the importation and possession of marijuana at Folly Cove and its subsequent distribution. Under the statute, it would appear to be the defendant's status as an entrepreneur which warrants the forfeiture of profits, whether or not they were derived from the specific violations established in the criminal case. The defendant has in short suffered the same jeopardy in terms of potential penalty and potential forfeiture as he would have if the evidence of the Massachusetts cases had been introduced in the Texas case. The underlying purpose of the constitutional prohibition against multiple prosecution has equal application in principle to these related cases regardless of the election or failure of the government to introduce evidence of the Massachusetts cases in the Texas trial.

Authority on the point is scarce and ancient, but in my view persuasive. In Ex parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), it was held that conviction of cohabiting with more than one woman between October 15, 1885 and May 13, 1888 barred a subsequent prosecution for adultery with one of the same women said to have occurred on May 14, 1888. It does not appear that evidence of intercourse was introduced in the earlier offense. The Court quoted 131 U.S. at 188, 9 S.Ct. at p. 676, from Morey v. Commonwealth, 108 Mass. 433, 435 (1871):

The test is not, whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense.

The court at p. 189 also quotes Wharton's Treatise on Criminal Law, Vol. 1, § 560, as follows:

An acquittal or conviction for a greater offence is a bar to a subsequent indictment for a minor offence included in the former, wherever, under the indictment for the greater offence, the defendant could have been convicted of the less;

The rule is stated in substantially the same terms in Wharton Criminal Law and Procedure (Anderson), 1957, § 148.

The government's knowledge of the offense subsequently prosecuted at the time of the prior trial is apparently immaterial, as conceded by the Assistant United States Attorney in argument before me. The only exception to this rule, if it is an exception, occurs ". . . when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. Citations . . . 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." Jeffers v. United States, 432 U.S. at 151-2, 97 S.Ct. at 2216-17. In the present case the greater offense was tried first and the exception does not apply.

Accordingly, I conclude that prosecution...