U.S. v. Benefield, 88-8211

Citation874 F.2d 1503
Decision Date08 June 1989
Docket NumberNo. 88-8211,88-8211
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Herbert Steve BENEFIELD, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

William L. Summers and Todd T. Armanini, Cleveland, Ohio, for defendant-appellant.

Wilmer Parker, III, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, Chief Judge, HILL, Circuit Judge, and MARCUS *, District Judge.

MARCUS, District Judge:

Defendant Herbert Steven Benefield appeals from the district court's denial of his amended motion to dismiss Count I of the Indictment and its failure to conduct a pretrial evidentiary hearing on his nonfrivolous double jeopardy claim. On this record, we hold that the district court erred in refusing the request for a hearing and we remand for that purpose.

I. Facts
a. Galveston Indictment

On November 6, 1986, the defendant was indicted in the United States District Court for the Southern District of Texas, Galveston Division, for conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846. Count I specifically charged:

From on or about August 1, 1986, until on or about September 23, 1986, in the Galveston Division of the Southern District of Texas, and within the jurisdiction of this Court, and elsewhere, ROBERT STEPHEN GASSOWAY, RANDALL DARREL FRNKA, STEVEN JESS BLACKWELL, HERBERT STEVEN BENEFIELD, RANDY NEIL SIMONEAUX, MICHAEL ROBERT BLITZ, JAMES NATHAN STUCKEY and CARLOS MANUEL RUBIO, defendants herein, did willfully, knowingly and intentionally combine, conspire, confederate and agree with persons known and unknown to the grand jury, to possess with intent to distribute approximately seven hundred sixty-one (761) gross pounds of marijuana, a Schedule I controlled substance. (Violation: Title 21, United States Code, Section 846).

Defendant Benefield appeared with counsel before the district court in the Southern District of Texas and entered a plea of guilty to Count I of the Galveston Indictment. He was subsequently sentenced to imprisonment for four years and, upon motion of the government, Count III of the Galveston Indictment was dismissed. 1

b. Atlanta Indictment

This appeal arises from a second indictment, filed on November 3, 1987, in the United States District Court for the Northern District of Georgia, Atlanta Division, charging Benefield, along with thirteen co-defendants, with conspiracy to possess marijuana and cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846. 2 Count I of the Atlanta Indictment broadly alleges that the conspiracy took place between January 1984 and November 3, 1987. The count specifically charges defendant Benefield, along with others--including James Nathan Stuckey--with conspiracy to possess with intent to distribute in excess of 100 kilograms of marijuana and 500 grams of cocaine, Schedule I and Schedule II controlled substances. It alleges that Benefield, Stuckey and others obtained multi-kilogram quantities of marijuana which had been imported into the United States from Mexico and elsewhere, and that Crumbley purchased multi-kilogram quantities of marijuana from Benefield. This conspiracy is said to have involved numerous other named and unnamed individuals "who aided and assisted each other in traveling in interstate commerce from the Atlanta, Georgia area to Texas and elsewhere, and who obtained multiple-kilogram quantities of marijuana which they transported in private vehicles from the southwestern United States to the Atlanta, Georgia, area." Finally, the charge recounts that an object of the conspiracy was to possess with intent to distribute and to distribute marijuana and cocaine in the Northern District of Georgia and elsewhere.

On January 29, 1988, defendant filed an Amended Motion to Dismiss the Atlanta Indictment, claiming that the Atlanta Indictment charged him with the same conspiracy for which he was convicted in Galveston, Texas and, therefore, that the Atlanta Indictment should be barred by the Fifth Amendment double jeopardy clause. The defendant requested an evidentiary hearing on his double jeopardy claim. The United States Magistrate recommended that defendant's motion to dismiss be denied. On March 28, 1988, the district court held a pretrial conference whereupon defense counsel again asked for an evidentiary hearing and requested more time to obtain the transcript of the plea colloquy in Texas. Counsel reported that he had ordered but had not yet received the transcript. Although the district court stated specifically that it did not find the double jeopardy claim to be frivolous, and that it was willing to review any written materials submitted before the impending trial, it denied defendant's request for a hearing. And on March 31, 1989, the district court entered its order adopting the Magistrate's Report and denying the motion to dismiss.

II. Double Jeopardy

A denial of a motion to dismiss based on double jeopardy grounds is an appealable final order. See, e.g., Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977); United States v. Henry, 661 F.2d 894, 896 n. 3 (5th Cir. Unit B 1981) 3, cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853 (1982). Moreover, as a question of law, a district court's double jeopardy ruling is subject to de novo review by the appellate court.

It is well settled that to support a claim of double jeopardy, a defendant must show that the two offenses charged are in law and fact the same offense. United States v. Marable, 578 F.2d 151, 153 (5th Cir.1978). The gist of the crime of conspiracy, and the characteristic which defines its breadth, is the unlawful agreement. Id. at 153. At its core, the determination as to whether the government can prosecute a defendant for more than one conspiracy turns on whether there exists more than one unlawful agreement. Id. The commission of crimes at different times does not necessarily prove that the crimes were carried out pursuant to more than one agreement. See United States v. Kalish, 690 F.2d 1144, 1151 (5th Cir.1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983). "A single agreement to commit several crimes constitutes one conspiracy." United States v. Broce, --- U.S. ----, 109 S.Ct. 757, 763, 102 L.Ed.2d 927 (1989).

When a defendant moves to dismiss an indictment on double jeopardy grounds, it is undisputed that he bears the burden of making a prima facie nonfrivolous claim. United States v. Stricklin, 591 F.2d 1112, 1117-18 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). Once the defendant has met this initial burden, the government must prove by a preponderance of the evidence that the two indictments charge separate crimes. United States v. Loyd, 743 F.2d 1555, 1563 (11th Cir.1984); United States v. Garcia, 721 F.2d 721, 723 (11th Cir.1983). How the government sets about this task will undoubtedly vary from case to case. In some instances, a close textual analysis of the two charges may refute the claim. Because it is often difficult to identify the specific objects and particular parties to an unlawful agreement, the courts may look to extrinsic evidence, beyond the four corners of the charging instruments, in order to determine a conspiracy's scope. See Kalish, 690 F.2d at 1151. An examination of whatever materials the government may choose to proffer--such as a DEA Six Report or an affidavit or a transcript of a judicial proceeding--may be sufficient. Where, however, the proffered materials fail to establish that two separate crimes are charged, an evidentiary hearing may be required. In such cases, the government may meet its burden by presenting further evidence or testimony to the trial court. See United States v. Atkins, 834 F.2d 426, 440 (5th Cir.1987) ("[W]here vague allegations suggest the reasonable possibility of a double jeopardy violation but do not prove one, a court ... must consider evidence outside the indictments when it is offered."). 4 What remains constant in each case, however, is that the government's burden of persuasion is met by a preponderance of the evidence.

In the case at bar, the defendant was charged in both the Atlanta and Galveston Indictments with conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 846. In United States v. Marable, the Fifth Circuit underscored the difficulty in identifying the parameters of section 846 conspiracies:

Prosecutions under 21 U.S.C.A. Sec. 846, the general drug conspiracy statute ..., present an even greater need for defining the bounds of a conspiracy from an examination of the record than do prosecutions under the general criminal conspiracy statute, 18 U.S.C.A. Sec. 371.... [A] Section 846 indictment is sufficient if it alleges a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy. Thus, because a section 846 indictment may be tightly drawn, the court must look to the record to determine whether constituent elements of the two conspiracies charged indicate that the government has twice placed the defendant in jeopardy.

Marable, 578 F.2d at 153-54 (citations omitted). In Marable, the Court enumerated a set of factors to help determine whether there is but a single conspiracy:

(1) time, (2) persons acting as co-conspirators, (3) the statutory offenses charged in the indictments, (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case, and (5) places where the events alleged as part of the conspiracy took place.

Marable, 578 F.2d at 154, (cited in United States v. Loyd, 743 F.2d at...

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