U.S. v. Booth, s. 81-1703

Decision Date19 March 1982
Docket NumberNos. 81-1703,s. 81-1703
Citation673 F.2d 27
PartiesUNITED STATES of America, Appellee, v. Michael BOOTH, a/k/a Dennis Allen Harper, Larry Joseph Lancelotti, a/k/a Mark J. Garvey, Gregory Lee Lancelotti, a/k/a John Bunyan, Irving F. Imoberstag, Jacob Shnurman, a/k/a William L. Standley, Bradford Eldo Rush, Randall Collins, a/k/a James Lawrence, Jeffrey Allen Brown, a/k/a John Albert Black, and Robert Lawler, a/k/a Robert T. Jefferies, Defendants, Appellants. to 81-1711.
CourtU.S. Court of Appeals — First Circuit

Arthur W. Tifford, Miami, Fla., for defendant, appellant Booth.

Jay P. McCloskey, Asst. U. S. Atty., Bangor, Me., with whom Richard S. Cohen, U. S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, TIMBERS, Circuit Judge, * BREYER, Circuit Judge.

TIMBERS, Circuit Judge.

On this appeal from an order entered in the District of Maine, Edward T. Gignoux, Chief Judge, the principal question presented is whether the district court correctly denied appellants' motions to dismiss the conspiracy count of an indictment as to them on the ground of double jeopardy. We hold that it did. We affirm. 1

I.

On November 9, 1979, appellant Booth and eighteen others were indicted in the Southern District of Florida on six counts which charged a marijuana smuggling operation. Count I, the count pertinent to this appeal, charged Booth, from some time prior to June 1973 to the date of the filing of the indictment, with conspiring to possess marijuana with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1976).

On October 20, 1980, Maine state police officers arrested Booth on Whitmore Neck, Deer Isle, Maine, and seized twenty-five tons of marijuana nearby. On October 29, 1980, Booth and twenty-three others were indicted in the District of Maine on charges of conspiring to possess marijuana with intent to distribute it, in violation of 21 U.S.C. §§ 841(b)(6) and 846 (1976) (Count I), and on charges of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(6) (1976) (Count II). The Maine indictment charged a conspiracy from on or about March 19, 1980 to October 20, 1980.

On November 24, 1980, a superseding indictment was returned in Florida. Count I remained the same, but the time of the continuing criminal enterprise charged in Count VI was extended to November 24, 1980. After a jury trial which began April 28, 1981, Booth was convicted on June 19, 1981 of the conspiracy charged in Count I of the Florida indictment.

On July 14, 1981, Booth moved to dismiss Count I of the Maine indictment on the ground of double jeopardy. On September 11, 1981, Judge Gignoux denied this motion from the bench in a reasoned opinion. 2 From the order entered on the opinion of Judge Gignoux, appellants have taken the instant appeal.

The appeal is properly before us at this time. A pretrial order denying a motion to dismiss an indictment on the ground of double jeopardy is appealable as a final order under 28 U.S.C. § 1291 (1976). Abney v. United States, 431 U.S. 651, 659 (1977).

II.

In Brown v. Ohio, 432 U.S. 161, 166 (1977), the Supreme Court reaffirmed the use of the "same evidence" test previously articulated in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether two offenses are the "same offense" for double jeopardy purposes. As the Fifth Circuit explained in United States v. Marable, 578 F.2d 151, 153 (5th Cir. 1978), the test is "whether proof of the matter set out in a second indictment is admissible as evidence under the first indictment and, if it is, whether a conviction could have been properly sustained on such evidence."

The same evidence test has been applied somewhat differently in conspiracy cases because of the possibility that the government literally could comply with it while actually carving up a single conspiracy to commit several crimes into separate prosecutions. We have indicated five factors to be considered in deciding whether two conspiracies charged actually are the same: (1) the time during which the activities occurred; (2) the persons involved in the conspiracies; (3) the places involved; (4) whether the same evidence was used to prove the two conspiracies; and (5) whether the same statutory provision was involved in both conspiracies. United States v. Chagra, 653 F.2d 26, 29 (1st Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1252, 71 L.Ed.2d 445 (1982). 3

Applying these factors here, we hold that Judge Gignoux properly denied the motions to dismiss the conspiracy count of the indictment. First, the time periods in the two indictments are completely different. The Florida indictment charged a conspiracy from some time prior to June 1973 to November 9, 1979. The Maine indictment charges a conspiracy from on or about March 19, 1980 to October 20, 1980.

Second, of the twenty-four defendants charged in the Maine indictment and the nineteen defendants charged in the Florida indictment, only ten defendants are common to both. Thus the persons involved in the two conspiracies are substantially different. See United States v. DeFillipo, 590 F.2d 1228, 1234 & n.7 (2d Cir.) (no double jeopardy problem when, in a case where one indictment charged seven persons and the other six, four overlapped), cert. denied, 442 U.S. 920 (1979); United States v. Martinez, 562 F.2d 633, 638 (10th Cir. 1977).

Third, the places where the events charged as part of the two conspiracies took place are entirely different. We find too attenuated appellants' claim that the Florida conspiracy encompassed the Maine conspiracy because the Florida indictment charged a conspiracy in the Southern District of Florida "and elsewhere." In United States v. Chagra, supra, we rejected a similar claim where the earlier indictment charged conduct in Texas and in "divers other places to the grand jurors unknown." 653 F.2d at 29. Furthermore, the overt acts charged in the two indictments here involved occurred in different places. Those charged in the Florida indictment occurred in Florida; those charged in the Maine indictment occurred in Maine.

Fourth, although evidence of the Maine conspiracy was introduced at the trial of the Florida conspiracy, this evidence was introduced for the limited purpose of demonstrating intent and knowledge through evidence of subsequent similar acts. The evidence was not introduced to show a continuing conspiracy in Maine. Admission of evidence to show intent is permitted by Rule 404(b) of the Federal Rules of Evidence. United States v. DeFillipo, supra, 590 F.2d at 1240.

Fifth, although here the statutory offense charged-conspiracy to possess marijuana with intent to distribute it-is the same in both the Florida and Maine indictments, this in itself is insufficient to support a claim of double jeopardy in view of the other significant differences referred to above. United States v. Chagra, supra, 653 F.2d at 29 ("a claim of double jeopardy ordinarily could not be sustained even if the offenses charged in the two indictments had been the same"); United States v. Johnson, 612 F.2d 843, 846-47 (4th Cir. 1979).

We hold that Judge Gignoux properly denied the motions to dismiss the conspiracy count of the indictment on the ground of double jeopardy.

III.

Booth further argues that Count I should have been dismissed on the ground of due process, citing the so-called Petite policy which was first stated in Petite v. United States, 361 U.S. 529 (1960) (per curiam). In that case the government's motion for an order vacating a judgment of conviction was granted on the ground that it was a federal policy "that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions." The government represented that the policy was...

To continue reading

Request your trial
51 cases
  • United States v. Almonte-Núñez, No. 15-2070
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 18, 2020
    ...the government to prove by preponderance of the evidence that the indictments charge separate offenses." (quoting United States v. Booth, 673 F.2d 27, 30-31 (1st Cir. 1982) )); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).2 Almonte has not shown plain error.III.We concl......
  • U.S. v. Garcia-Rosa, GARCIA-ROS
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 2, 1988
    ...was used to prove the two conspiracies; (e) whether the same statutory provision was involved in both conspiracies. See United States v. Booth, 673 F.2d 27, 29 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). We now apply this test to the facts of this As regar......
  • U.S. v. Salerno
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 31, 1989
    ...as separate for double jeopardy purposes), cert. denied, 442 U.S. 920, 99 S.Ct. 2844, 61 L.Ed.2d 288 (1979); United States v. Booth, 673 F.2d 27, 30 (1st Cir.) (same), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982). Accordingly, and especially since we review the trial co......
  • U.S.A. v. Collazo-Aponte
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 4, 1999
    ...the same evidence was used to prove the two conspiracies; and (5) whether the same statutory provision was involved in both conspiracies." Id.; see also United States v. Hart, 933 F.2d 80, 85-6 (1st Cir. 1991); United States v. Gomez-Pabon, 911 F.2d 847, 860-61 (1st Cir. 1990). Once a defen......
  • Request a trial to view additional results
1 books & journal articles
  • Contemplating the successive prosecution phenomenon in the federal system.
    • United States
    • Journal of Criminal Law and Criminology Vol. 85 No. 3, January 1995
    • January 1, 1995
    ...(A) (2) (b). (35) Moreover, because it is a federal prosecutorial policy, not a matter of constitutional law, see United States v. Booth, 673 F.2d 27, 30 (1st Cir. 1982), it creates no enforceable right for the accused. See United States v. Harrison, 918 F.2d 469, 475 (5th Cir. 1990); Booth......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT