U.S. v. Chagra

• Decision Date: 21 August 1981
• Docket Number: No. 80-1708,80-1708
• Citation: 653 F.2d 26
• Parties: UNITED STATES of America, Appellant, v. Jamiel CHAGRA, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 26

653 F.2d 26

UNITED STATES of America, Appellant, v. Jamiel CHAGRA, Defendant, Appellee.

No. 80-1708.

United States Court of Appeals, First Circuit.

Argued May 8, 1981.

Decided June 30, 1981.

Rehearing and Rehearing En Banc Denied Aug. 21, 1981.

Janis M. Berry, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for appellant.

Oscar B. Goodman, Las Vegas, Nev., for appellee.

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

BREYER, Circuit Judge.

This case involves a series of "double jeopardy" questions arising out of defendant's conviction in Texas for violating 21 U.S.C. § 848, which imposes heavy penalties upon those who engage in a drug-related "continuing criminal enterprise." Does an indictment under § 848 charge a single continuing offense that encompasses all drug-related felonies that might have been used to prove that defendant was engaged in the "enterprise"? If so, does a conviction bar a subsequent prosecution for drug-related felonies that might have been, but were not, used to prove the § 848 violation? The district court answered these questions affirmatively and dismissed a four count indictment charging defendant with conspiracy to import, importing, conspiracy to possess, and possessing marijuana all in Massachusetts. United States v. Chagra, 494 F.Supp. 908 (D. Mass. 1980), as modified at September 29, 1980 hearing, at transcript pages 7-9. We disagree with the district court and reverse its dismissal of the indictment.

I.

Section 848 states that a person "who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment" of 10 years to life, a fine of up to $100,000 and forfeiture of all profits from the enterprise. It then defines the violation more specifically: A person engages in a continuing criminal enterprise if (1) he violates any felony provision of the Comprehensive Drug Abuse Prevention and Control Act or the Controlled Substances Import and Export Act, and (2) the violation is part of a continuing series of violations undertaken in concert with five or more other persons, he organizes, manages or supervises those others, and he derives substantial income from the activity. ¹ The courts have defined "continuing series" to mean three or more violations. United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979). Thus, the statute is aimed at drug ring managers or "kingpins", and it defines their role in terms of supervising others while engaged in three or more drug felonies.

The government indicted Chagra, the defendant, in the Western District of Texas on July 31, 1979. ² The first three counts of the indictment charged conspiracies to import marijuana and cocaine and possession of cocaine, all in 1977. The fourth count charged a violation of § 848. It alleged that Chagra committed fourteen relevant underlying drug felonies between April 1974 and April 1978, in concert with at least five other persons whom he organized, managed or supervised. These fourteen consisted of those charged in the first three counts and eleven others, seven of which took place in 1977 or 1978, one of which took place on December 30, 1976, and three of which took place in 1974. After trial, Chagra was convicted on counts three and four. He was sentenced to thirty years imprisonment on count four (the § 848 count). ³ His appeal from that conviction is currently pending.

In May 1980, Chagra, together with twenty other persons, was indicted in Massachusetts for offenses centered upon the importing of 54,000 pounds of marijuana at Folly Cove, Gloucester in July 1975. Counts one and three of the four count indictment against Chagra charged him with conspiring to import and to distribute marijuana during 1975. Counts two and four charged him with importing and possessing marijuana at Folly Cove in July 1975.

In July 1980, the district court considered defendant's motion to dismiss the Massachusetts indictment on grounds of double jeopardy. The court agreed with the government that these charges and the Texas charges were different: the facts alleged were different, the times of the specific actions charged were different, the evidence was different. Nonetheless, the court reasoned that the events charged in Massachusetts "fall squarely within the period of continuous violations charged in the Texas indictment." Moreover, the Texas indictment referred to violations committed in "divers other places to the grand jurors unknown." And, evidence of the Massachusetts violations might have been admitted in Texas to show additional felonies underlying the § 848 charge. Therefore, the court severed and continued counts one and three (the conspiracy counts). The court proceeded with counts two and four, reasoning that they could not have been charged in Texas because venue would not have been proper there; but subsequently, the district judge changed his mind about the importance of lack of venue. Then, to simplify the case, while expediting appeal, the parties agreed to conduct a bench trial. The court found Chagra guilty on counts two and four and sentenced him; it then vacated that determination; it also vacated the order severing counts one and three; and it dismissed all four counts on grounds of double jeopardy. The government appeals from this latter determination.

II.

The "double jeopardy" clause of the fifth amendment states "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The issue here is whether the Texas and Massachusetts proceedings involve "the same offence". We hold that they do not.

As an initial matter, a common sense reading of the two indictments, together with the facts as stipulated and the record of the Texas proceedings as described, suggests that the two sets of charges do not grow out of a single criminal act, occurrence, episode or transaction. See Brown v. Ohio, 432 U.S. 161, 170, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) (Brennan, J., concurring). For one thing, the times during which specific activities allegedly occurred differed. The Massachusetts violations all took place in 1975. The Texas offenses took place in 1977, 1978, in December 1976 and in 1974. For another thing, those involved in the two offenses are different. With the exception of Chagra himself, none of the twenty-one persons mentioned in the Massachusetts indictment were referred to in any part of the Texas indictment. Further, the places differ. The Texas indictment does not refer to Massachusetts, nor is there any reason to believe that the cryptic phrase, "divers other places to the grand jurors unknown", masked an overlap of geographical areas. See United States v. Papa, 533 F.2d 815, 822 (2d Cir. 1976). In addition, the evidence used to prove the offenses differed. Apart from a passing reference to Massachusetts (which the district court found insignificant) no evidence about the Massachusetts offense was introduced into the Texas proceeding; and, a reading of the stipulated Massachusetts facts indicates that evidence of the Texas offenses did not help to prove the Massachusetts charges.

Given these differences, a claim of double jeopardy ordinarily could not be sustained even if the offenses charged in the two indictments had been the same. If, for example, conspiracies to possess, or to distribute, or to import, controlled substances had been charged in both indictments, the factors set out above indicate they would have been considered separate, free-standing conspiracies, for which separate indictments, trials and punishments are proper. United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978); United States v. Stricklin, 591 F.2d 1112, 1122-23 (5th Cir. 1979); United States v. Papa, supra. The fact that the offenses charged here arise under different statutory provisions would ordinarily weaken the case for "double jeopardy" still further, see United States v. Marable, supra.

Defendant here, however, argues that the special relation between § 848 and the drug felonies that potentially underlie a § 848 charge creates double jeopardy where otherwise none would exist. He argues that these latter violations are all "lesser included offenses" in the § 848 "continuing criminal enterprise". The government, he argues, cannot indict him for both the "enterprise" and any contemporaneous offenses that might have constituted a part of that enterprise, whether or not those lesser offenses were "free standing" in relation to each other. See United States v. Mannino, 635 F.2d 110 (2d Cir. 1980).

Essentially, defendant is making a "unit of prosecution" point. It has long been the law that a prosecutor cannot divide a continuing crime into bits and prosecute separately for each. In 1777, for example, Lord Mansfield held that a statute prohibiting working on Sunday allowed the Crown to convict a baker only once for baking four loaves of bread on one Sunday; it could seek only one penalty of five shillings; it could not convict him four times, once for each loaf, and fine him one pound. Crepps v. Durden, 2 Cowper's Reports 640, 98 Eng.Rep. 1283 (K.B.1777). In the nineteenth century, the Supreme Court held that the federal government could prosecute a Mormon only once for cohabiting for three years straight with more than one woman as his wife; it could not prosecute him three times, once for each year. In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1887). Just as the man who steals $100 from a billfold can be prosecuted once for the $100 theft and not ten times for ten $10 thefts, so, in defendant's view, he can be prosecuted only once for all those violations so interrelated that they make up a single "continuing criminal enterprise". The very fact that the Massachusetts violation might have been introduced into the Texas proceeding shows that it bears the necessary relation to the other violations ⁴ that were introduced as underlying...