U.S. v. Cruz

• Decision Date: 06 January 1978
• Docket Number: No. 78-1008,78-1008
• Citation: 568 F.2d 781
• Parties: UNITED STATES of America, Appellee, v. Herminio CRUZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 781

568 F.2d 781

UNITED STATES of America, Appellee, v. Herminio CRUZ, Defendant, Appellant.

No. 78-1008.

United States Court of Appeals, First Circuit.

Argued Jan. 6, 1978.

Decided Jan. 6, 1978.

David P. Twomey, Asst. U. S. Atty., Boston, Mass., on appellee's motion for summary affirmance, with whom Edward F. Harrington, U. S. Atty., and Walter B. Prince, Asst. U. S. Atty., Boston, Mass., were on memorandum in support thereof.

Allan A. Ackerman, Chicago, Ill., for defendant, appellant in opposition thereto.

Before COFFIN, Chief Judge, and CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The district court denied Herminio Cruz's pretrial motion to dismiss on double jeopardy grounds an indictment pending against him and others for conspiracy to distribute heroin under 21 U.S.C. § 846, and Cruz now brings this interlocutory appeal under authority of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The district court's ruling and Cruz's appeal were both entered on January 5, 1978, and on the same day, after our regular sitting, this court heard the Assistant United States Attorney and Mr. Cruz's counsel argue the former's motion for an expedited appeal. We were told that Cruz was scheduled to go to trial on January 9, 1978. Asserting that Cruz's double jeopardy claim was frivolous, the Government urged us to affirm summarily the district court's denial of the motion under our Local Rule 12. ¹ Alternatively, should we feel unable to decide the appeal summarily, the Government asked us to stay the impending trial. Cruz, while willing to expedite the appeal beyond the normal course, argued that his claim was substantial, and urged that we both stay the trial and allow him several weeks within which to brief and argue his appeal more fully.

After the argument on January 5, and after receiving among other papers, Cruz's motion to dismiss, which incorporates substantial supporting memoranda, and the Government's memorandum of law, we decided to afford the parties an opportunity to present further argument, this time addressing directly the Government's motion for summary affirmance. It was our view that if the Government could sustain its position that the double-jeopardy claim was without substance, the public interest dictated that the interlocutory appeal be terminated without delay so that the trial could proceed. ² On the other hand, were we to determine, as a threshold matter, that the appeal was substantial, we believed that we should then provide for a more extended briefing schedule prior to a final hearing, recognizing that this would force the Government either to sever Cruz as a defendant if it wished to proceed immediately, or else delay the trial for some period of time. Argument was accordingly heard on January 6 on the issue of the substantiality of Cruz's double jeopardy claim.

Cruz's claim is predicated on the fact of his having been indicted and, on December 30, 1977, convicted, in another district, of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) on the basis of the same conduct underlying the pending indictment. He contends that subjecting him to another trial for conspiracy to distribute heroin, where his participation in the conspiracy involved only the conduct for which he was convicted under § 841, violated the fifth amendment's prohibition against double jeopardy. He argues both that the possession charge must be regarded as a lesser included offense of the conspiracy, conviction for which bars subsequent prosecution for the greater offense, and that under the circumstances of this case the two offenses are too closely related to permit successive trials, especially where the defendant himself did not force the Government to bring separate proceedings.

The Government responds to both arguments by referring to numerous cases holding that separate prosecutions for a conspiracy and an underlying offense do not violate double jeopardy. See Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Bayer v. United States, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Sarno, 456 F.2d 875 (1st Cir. 1972). The Government further points out that in Bayer the Court upheld successive trials, first on the substantive offense and subsequently on the conspiracy charge. In the light of this strong precedent, the Government contends that Cruz's double jeopardy claim is frivolous.

The law seems well settled that a charge of possession of heroin with intent to distribute cannot be regarded as a lesser included offense of a conspiracy to distribute heroin. As appellant conceded at argument on this motion, at least in this circuit proof of any overt acts is unnecessary to make out a violation of the conspiracy statute in question, 21 U.S.C. § 846. United States v. DeJesus, 520 F.2d 298, 301 (1st Cir. 1975), cert. denied, 423 U.S. 865, 96 S.Ct. 126, 46 L.Ed.2d 94 (1976). The essence of the crime is the conspirators' agreement to act in concert to distribute narcotics. Id.; see United States v. Dreyer, 533 F.2d 112, 117 n. 6 (3d Cir. 1976); United States v. Cortwright, 528 F.2d 168, 172 n. 1 (7th Cir. 1975); United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). The underlying offense that may evince a conspirator's participation in the agreement does not constitute an element of the crime of conspiracy. An agreement is necessary to make out a conspiracy, but not possession, while proof of possession is unnecessary to make out a conspiracy. As between § 841 and § 846, then, it must be said that "each (provision) requires proof of a fact which the other does not." Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Nor does Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), indicate to the contrary, in spite of appellant's assertions. Jeffers suggests that § 846 may be regarded as a lesser included offense of 21 U.S.C. § 848's prohibition of a continuing criminal enterprise to distribute narcotics. The basis of that ruling, however, was that both offenses have as necessary elements concerted action on the part of the participants. Nothing in that opinion suggests that because the elements of § 846 might be embraced by another concerted action offense, § 846 includes the elements of the underlying offense that is the object of the conspiracy.

Cruz also argues that even if § 841 may not be regarded as a lesser included offense of § 846 so as to be a bar to imposition of multiple punishments for the two offenses, separate successive trials on these two charges violates double jeopardy. He relies heavily on the following remarks in Brown :

"The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. Thus...