710 F.2d 1426 (10th Cir. 1983), 82-2458, United States v. Genser

Docket Nº:82-2458.
Citation:710 F.2d 1426
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Howard Eric GENSER, Defendant-Appellant.
Case Date:May 24, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1426

710 F.2d 1426 (10th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Howard Eric GENSER, Defendant-Appellant.

No. 82-2458.

United States Court of Appeals, Tenth Circuit

May 24, 1983

Rehearing Denied Aug. 1, 1983.

Joseph Saint-Veltri, Denver, Colo., for defendant-appellant.

J. Stephen Miller, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.

Before HOLLOWAY, DOYLE, and SEYMOUR, Circuit Judges.

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SEYMOUR, Circuit Judge.

This appeal raises an issue of successive prosecutions under the Controlled Substances Act, 21 U.S.C. Sec. 841(a)(1) (1976), in violation of the Double Jeopardy Clause of the Fifth Amendment. Defendant Genser's direct appeal of the lower court's denial of his motion to dismiss on double jeopardy grounds is brought under the doctrine of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). See United States v. Hines, 689 F.2d 934 (10th Cir.1982). For the reasons set out below, we reverse.

Genser was originally indicted on June 17, 1982, and charged with four counts of "knowingly and intentionally dispens[ing] a controlled substance, to wit: Cocaine, a Schedule II narcotic substance, all in violation of Title 21, United States Code, Section 841(a)(1)," and one count of conspiracy to do the same. As we will discuss more fully, the crime of dispensing controlled substances under section 841(a)(1) is applicable only to "practitioners." Genser is not a "practitioner," and was not one at the time of the alleged offenses.

After the second Government witness had begun her testimony at Genser's non-jury trial on the first indictment, Genser objected to further testimony absent evidence that he was a practitioner and moved to dismiss. 1 The Government conceded that it could not offer such evidence. 2 It argued that proof of one's status as a practitioner was unnecessary to prove illegal dispensing. Alternatively, it contended that distributing was an included offense of dispensing, and that the trial should proceed on that basis. The Government insisted that the indictment was sufficient under its alternative theory to charge the offense of distribution. The trial court disagreed and dismissed the case.

Subsequent to the dismissal, a second indictment was entered against Genser. It was identical to the first, except that the word "distribute" was substituted for the word "dispense." Genser moved to dismiss the second indictment on double jeopardy grounds. The motion was denied, and this appeal followed.

Before we turn to Genser's double jeopardy argument, we must first consider the nature of the trial court's dismissal on the first indictment. In United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the Supreme Court identified as one of the "venerable principles of double jeopardy jurisprudence" the proposition that "[t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict ... poses no bar to further prosecution on the same charge." Id. 437 U.S. at 90-91, 98 S.Ct. at 2193 (citation omitted). The Court stated that

"[T]he defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant."

Id. at 98-99, 98 S.Ct. at 2198; cf. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) (dismissal during trial of information for failure to sufficiently charge offense did not bar reindictment and second trial for same offense). A trial court's decision terminating trial for lack of evidence, however, does present a bar to subsequent prosecution for the same offense. Scott, 437 U.S. at 91, 98 S.Ct. at 2193-94; United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 575, 97 S.Ct. 1349, 1355, 1356-57, 51 L.Ed.2d 642 (1977). The inquiry is whether " 'the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor] ... of some or all of the factual elements

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of the offense charged.' " Scott, 437 U.S. at 97, 98 S.Ct. at 2197 (quoting Martin Linen, 430 U.S. at 571, 97 S.Ct. at 1355)).

In the case before us, the Government does not argue that the trial court's dismissal of the first action was on other than factual grounds. Indeed, the Government conceded in its brief opposing Genser's motion to dismiss the second indictment that

"[a]lthough the case was 'dismissed,' it is clear from the record that the decision was a factual one--a recognition that the government was unable to prove that the defendant was a dispenser as defined by statute. Thus, the government is of the view that United States v. Scott ..., which holds that jeopardy may not attach to legal dismissals as opposed to factual acquittals, has no applicability here."

Rec., vol. I, at 29 n. 1. Accordingly, we must determine whether the Double Jeopardy Clause protects Genser from a second prosecution.

The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause " 'protect[s] an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.' " Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). The provision applies if the offense charged and tried in the first prosecution is identical in law to that charged in the second. Bell v. Kansas, 452 F.2d 783, 791-92 (10th Cir.1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2421, 32 L.Ed.2d 674 (1972); see North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court established the following test: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182 (emphasis added). The Court has affirmed the vitality of the Blockburger test time and again. E.g., Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981); Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187 (1977).

The Court has made clear that each offense must contain an element extraneous to the other offense in order to satisfy the Blockburger test. In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), Brown had been convicted of joyriding in violation of an Ohio statute. He was subsequently convicted under a second Ohio statute for auto theft. Under state law, joyriding was a lesser included offense of auto theft; the only element present in a charge of auto theft that was not present in a joyriding charge was one of intent. Id. at 167, 97 S.Ct. at 2226. The second prosecution required proof of an additional element not found in the first. Nevertheless, the two offenses constituted " 'the same statutory offense' " under the Double Jeopardy Clause and the Blockburger test. Id. at 168, 167 n. 6, 97 S.Ct. at 2226 n. 6. The Court held that prosecution for the lesser included offense barred a later prosecution for the greater.

In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the defendant argued that he was the victim of successive prosecutions for a lesser included offense and a greater...

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