900 F.2d 742 (4th Cir. 1990), 89-5591, United States v. Blackwell

Docket Nº:89-5591.
Citation:900 F.2d 742
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jay BLACKWELL, a/k/a Tiny; Lawrence Dean Lenihan, a/k/a Chitlin; Larry William White, Defendants-Appellants.
Case Date:April 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 742

900 F.2d 742 (4th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Timothy Jay BLACKWELL, a/k/a Tiny; Lawrence Dean Lenihan,

a/k/a Chitlin; Larry William White, Defendants-Appellants.

No. 89-5591.

United States Court of Appeals, Fourth Circuit

April 9, 1990

Argued Jan. 12, 1990.

Rehearing and Rehearing In Banc Denied July 24, 1990.

Page 743

Terry Goodwin Harn, argued, G. Nicholas Herman, and Steven A. Bernholz, on brief, Coleman, Bernholz, Gledhill & Hargrave, Chapel Hill, N.C., for appellants.

Harry L. Hobgood, Asst. U.S. Atty., argued and Robert H. Edmunds Jr., U.S. Atty., Greensboro, N.C., on brief, for appellee.

Before CHAPMAN and WILKINS, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.

RICHARD L. WILLIAMS, District Judge:

This is an interlocutory appeal from the denial of the appellants' motions to dismiss the indictment for violation of the double jeopardy clause of the fifth amendment and for improper venue. Because the district court was correct in concluding that the protection offered criminal defendants by the double jeopardy clause is not implicated by the pending prosecution, we affirm the denial of that part of the appellants' motions. Because we do not have interlocutory jurisdiction over the venue question, we decline to review the merits of that issue at this time.

Page 744

I.

Appellants Timothy Jay Blackwell, Lawrence Dean Lenihan, and Larry William White are members of the Durham chapter of the Hells Angels Motorcycle Club. On November 30, 1987, they were named as defendants in a two-count indictment in the Middle District of North Carolina (the North Carolina indictment). Count One charged them with distributing plastic explosives and blasting caps in violation of 18 U.S.C. Secs. 2, 842(a)(3)(B), and 844(a). Count Two charged them with possession of an unregistered destructive device in violation of 26 U.S.C. Secs. 5861(d) and 5871, and 18 U.S.C. Sec. 2.

On December 15, 1987, these defendants were indicted in the Western District of Kentucky along with the national president of the Hells Angels, sixteen other members of Hells Angels chapters, the Hells Angels corporation, and the Church of the Angels (the Kentucky indictment). All of them were charged with conspiring to transport and possess firearms and explosives, and some of the defendants who are not parties to this appeal were also charged with various substantive offenses. The alleged motive of the conspiracy was to kill members and destroy property of the rival Outlaws Motorcycle Club in retaliation for the August 12, 1986, murder of a Hells Angels Motorcycle Club member in Louisville, Kentucky. As overt acts committed in furtherance of the conspiracy, the indictment alleged that the defendants engaged in a national effort to obtain deadly weapons and explosives over the fourteen months following the Louisville killing.

Specifically with regard to appellants, the indictment alleges that Anthony Tait, a paid informant for the FBI, discussed the planned retaliation with Lenihan, the president of the Durham, North Carolina, chapter of the Hells Angels, on February 7, 1987. Lenihan stated that the Durham chapter could help Tait get some explosives, and set up a meeting between Tait and Timothy Blackwell, the chapter's treasurer and another of the appellants here, to discuss what was available. To follow up on the meeting with Blackwell, Tait met with Larry White, the third appellant here, to finalize the planned transfer. On or about April 21, 1987, White and Blackwell delivered plastic explosives and blasting caps to Tait, who turned them over to agents of the Bureau of Alcohol, Tobacco and Firearms.

The appellants moved on February 28, 1988, to transfer the North Carolina indictment to the Western District of Kentucky pursuant to Rule 21(b). They claimed that a single trial of the two consolidated indictments would be more convenient. The government did not oppose the motion, and on March 8, 1988, the case was so transferred.

On June 20, 1988, a superseding indictment was filed for the original Kentucky charges that did not alter the conspiracy count or subject the appellants to additional substantive charges. On July 18, 1988, the appellants were severed from the rest of the defendants to the Kentucky indictment, and their trial was postponed until after the trial of some of their codefendants was completed. Several of the Kentucky codefendants were convicted on October 28, 1988. Some, including the Hells Angels president, were convicted on the conspiracy count while others were found guilty on some of the substantive counts included in that indictment. On December 6, 1988, the government moved to dismiss the conspiracy charge pending against the appellants and recommended that the Kentucky district court return the transferred substantive explosives charges to the Middle District of North Carolina. This motion was granted on January 30, 1989, and the substantive charges were transferred back to North Carolina.

After the case returned to North Carolina, the appellants moved to dismiss the pending charges on the grounds of improper venue and double jeopardy. The district court denied this motion on April 25, 1989. The defendants filed an interlocutory appeal on their double jeopardy motion pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and the district court certified the venue question for this appeal.

Page 745

II.

The appellants' first argument is that the dismissal with prejudice of the conspiracy charge in the Western District of Kentucky triggers the protection of the double jeopardy clause of the fifth amendment and bars the prosecution of the charges currently pending in the Middle District of North Carolina.

The double jeopardy clause states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The primary guarantee offered by this constitutional provision is its protection against being subjected to successive prosecutions for the same criminal offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). This aspect of the double jeopardy protection gives finality to the criminal process, and "guarantees that an accused who has once stood the ordeal of criminal prosecution ... shall not be required to 'run the gauntlet' of trial again for the same alleged misconduct." United States v. Ragins, 840 F.2d 1184, 1188 (4th Cir.1988); see also Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957).

Given the recognized purpose of this aspect of the double jeopardy clause, it is not...

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