591 F.2d 1112 (5th Cir. 1979), 77-3072, United States v. Stricklin

Docket Nº:77-3072.
Citation:591 F.2d 1112
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jack Moody STRICKLIN, Jr., Defendant-Appellant.
Case Date:March 23, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1112

591 F.2d 1112 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jack Moody STRICKLIN, Jr., Defendant-Appellant.

No. 77-3072.

United States Court of Appeals, Fifth Circuit

March 23, 1979

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Lee A. Chagra, El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., James Kerr, LeRoy Morgan Jahn, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before COLEMAN, GEE and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This is an appeal by Jack Moody Stricklin, Jr., from the District Court's denial of his motion to dismiss an indictment handed down in El Paso, Texas, on double jeopardy grounds. The pretrial order rejecting Stricklin's claim that two previous indictments handed down in Tennessee and New Mexico resulted in former jeopardy is properly before us as a final decision within the meaning of 28 U.S.C. § 1291. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The issue in this case is whether the District Court correctly denied Stricklin's motion to dismiss. We affirm the District Court with respect to the substantive charges of importing and of aiding and abetting, as well as the importation conspiracy charge, but reverse and remand on the possession with intent to distribute conspiracy charge and the continuing criminal enterprise charge so that the District Court can rehear that part of the motion and apply the procedural standards set forth below.

I. The Indictments

The Tennessee indictment was returned against Stricklin on August 23, 1973. The District Court's order that the government supplement the indictment with a bill of particulars was complied with on January 21, 1975. The government charged that Stricklin conspired with thirty-nine co-defendants and others whose names were unknown to distribute and possess with intent to distribute marijuana, a schedule I non-narcotic controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and the predecessor of those statutes, 21 U.S.C. § 176a. It was also charged that the defendants and unknown coconspirators did unlawfully possess with intent to distribute and distribute marijuana in violation of first 21 U.S.C. § 176a and 18 U.S.C. § 2 and then 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The indictment charged that the conspiracy continued from on or about December, 1970, to August 23, 1973. The bill of particulars recited overt acts in El Paso, Texas; Murfreesboro, Tennessee; Lebanon, Tennessee; Dickson, Tennessee; Atlanta, Georgia; Nashville, Tennessee; Toronto, Canada; Louisville, Kentucky; Knoxville, Tennessee; Winchester, Tennessee; Orlando, Florida; Cookeville, Tennessee; and Tucson, Arizona, between May, 1971, and May, 1973.

The New Mexico indictment was returned against Stricklin on August 29, 1974. This indictment charged that Stricklin conspired with five codefendants and others whose names were unknown to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a). They were also charged with unlawful possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The indictment charged that the conspiracy took place on or about August 18, 1974, in the State and District of New Mexico, and elsewhere. The possession was alleged to have occurred on or about August 18, 1974, in New Mexico.

The original Texas indictment was returned against Stricklin on June 16, 1977, and a superceding indictment was returned on September 15, 1977. 1 The original indictment

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charged that Stricklin: (1) conspired with thirteen coconspirators and others whose names were unknown to import marijuana in violation of 21 U.S.C. §§ 952(a) and 963; (2) did import and cause to be imported marijuana in violation of 21 U.S.C. §§ 960(a)(1) and952(a); (3) conspired with thirteen coconspirators and others whose names were unknown to possess with intent to distribute marijuana in violation of21 U.S.C. §§ 841(a) (1) and 846; (4) aided and abetted two individuals (named as coconspirators) on three separate occasions in their unlawful possession of marijuana in violation of 21 U.S.C. § 841(a)(1) and thus violated 18 U.S.C. § 2; and (5) engaged in a continuing criminal enterprise by virtue of his marijuana transactions and thus violated 21 U.S.C. § 848. The importation conspiracy was alleged to have continued from on or before September, 1971, to on or about June 24, 1976, in the Western District of Texas, the States of New Mexico, Georgia, and Tennessee, the Republic of Mexico, and other places unknown to the grand jury. This conspiracy count recited fourteen overt acts in El Paso, Texas; Carlsbad, New Mexico; the Republic of Mexico; Magdalena, New Mexico; and the Western District of Texas, between September, 1971, and November, 1973. The substantive importation count alleged the Western District of Texas as the Locus criminis and July 18, 1972, as the approximate time that the offense occurred. The possession conspiracy was alleged to have taken place during the same time frame and in the same locations as the importation conspiracy. The twelve overt acts recited in support of the possession conspiracy were identical to twelve of the overt acts recited in the importation conspiracy count and thus covered the same time frame and area as did that count. The three aiding and abetting violations were alleged to have taken place in the Western District of Texas on June 22, 1972; July 5, 1972; and July 18, 1972. The original indictment lastly charged Stricklin with operating a continuing criminal enterprise by virtue of his status in the marijuana transactions recited in the previous counts; this enterprise was alleged to have operated from on or before June 18, 1972, until on or about June 24, 1976, in the Western District of Texas, the Republic of Mexico, the District of Columbia, New Mexico, North Carolina, Georgia, Minnesota, and other places unknown to the grand jury.

The superceding indictment was not prepared and filed until After the double jeopardy hearing where Stricklin had pointed out the apparent overlaps between the New Mexico indictment and the then pending Texas indictment. The superceding indictment charged Stricklin with essentially the same importation and possession conspiracies as charged in the original indictment, except that the names of five coconspirators were deleted and the reference to Tennessee as one of the locations for the conspiracies was omitted. Five overt acts were also eliminated from each conspiracy count, shortening the time span for the acts supporting the importation conspiracy to on or about December, 1971, to November, 1972, and for the acts supporting the possession conspiracy to on or about December, 1971,

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to October, 1972. The omission of these acts also deleted the references to Magdalena, New Mexico, one of the references to El Paso, Texas, and the references to two of the originally named coconspirators who were not included in the charging portions of the superceding indictment. Basically, the government simply carved out and discarded those specific references to those specific overlaps.

The Tennessee indictment was dismissed with prejudice on March 18, 1975, because of the government's failure to grant Stricklin a speedy trial in accord with his constitutional right under the Sixth Amendment. The New Mexico indictment resulted in a conviction on both counts on March 14, 1975, and Stricklin received a five year prison sentence. The Texas indictment was returned on June 16, 1977. On August 17, and 26, 1977, Stricklin moved before the District Court to dismiss the Texas indictment on the grounds that the Tennessee indictment, which was dismissed with prejudice, and the New Mexico indictment, which resulted in his conviction, had placed him in former jeopardy. A pretrial double jeopardy hearing took place on August 31, 1977; the government filed the superceding indictment on September 15, 1977; and the District Court issued an order denying Stricklin's motion on September 27, 1977. The District Court found that the four substantive counts pertaining to unlawful importation and possession with intent to distribute marijuana within the Western District of Texas presented no possible double jeopardy problem. With regard to the two conspiracy counts, the District Court found that a comparison of the Tennessee and New Mexico indictments with the superceding indictment in Texas, in light of the evidence obtained at the hearing, reflects that each alleges different transactions and overt acts and that, in any event, jeopardy had never attached in the Tennessee case. Concerning the continuing criminal enterprise count, the District Court found that the government did not have sufficient proof in either the Tennessee or New Mexico conspiracy case to sustain a conviction for a violation of 21 U.S.C. § 848, so that there was no double jeopardy bar to this subsequent prosecution for the greater offense. This appeal followed.

II. The Application of Abney

Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), held that the denial of a motion to dismiss an indictment on double jeopardy grounds results in an appealable final order. Thus, the double jeopardy issue may be decided and appealed Before a record of the trial on the challenged indictment is made. Abney may be applied without serious complexity where the indictments and the record from the previous trial are sufficiently explicit to provide for clear-cut determination of the double jeopardy claim. For example, where X is once indicted and tried for the murder of Y, a...

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