U.S. v. Clark
| Decision Date | 20 March 1991 |
| Docket Number | Nos. 90-5771,s. 90-5771 |
| Citation | 928 F.2d 639 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Thomas CLARK, a/k/a J.T., a/k/a Steady, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juan Pablo MARTINEZ, a/k/a Paul Martinez, a/k/a Juan Paul Martinez, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jerry Winslow CLARK, Defendant-Appellant. to 90-5773. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Bradley E. Berrane, Grafton, Va., for defendant-appellant Jerry Clark.
Oscar H. Blayton, Hampton, Va., for defendant-appellant James Clark.
James S. Ellenson, Newport News, Va., for defendant-appellant Martinez.
Robert B. Wilson, V, Sp. Asst. U.S. Atty., Norfolk, Va., argued (Henry E. Hudson, U.S. Atty., Robert E. Bradenham, II, Robert J. Seidel, Jr., Asst. U.S. Attys., Norfolk, Va., on the brief), for plaintiff-appellee.
Before RUSSELL and PHILLIPS, Circuit Judges, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.
After being found in constructive possession of a suitcase containing cocaine and heroin in the Norfolk (Virginia) International Airport on October 17, 1988, Jerry W. Clark was arrested, tried and convicted in the United States District Court for the Eastern District of Virginia on one count of possession of cocaine with the intent to distribute and one count of possession of heroin with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). The convictions were affirmed by this court. United States v. Clark, 891 F.2d 501 (4th Cir.1989).
On August 1, 1989, seven months after being convicted for possession of cocaine and heroin with the intent to distribute, Clark was indicted for conspiring with others--including appellants James Thomas Clark and Juan Pablo Martinez--to distribute cocaine and heroin and to possess cocaine and heroin for the purpose of distributing, in violation of 21 U.S.C. Sec. 846. Clark's possession of drugs at the airport, the same conduct for which he had been convicted earlier, was alleged as overt act number 18 in the conspiracy indictment and evidence about the airport incident was introduced at trial.
Prior to the conspiracy trial, Clark moved to dismiss claiming that the prosecution was based in part upon the same conduct as the earlier charge and, therefore, was barred by the Double Jeopardy Clause. Clark also moved to suppress evidence about the suitcase and its contents, contending as he had in the first trial and on appeal before this court that they had been improperly seized. Both motions were denied by the district court and Clark contends the denials were error. Clark also contends that the government's evidence was insufficient to show an adequate chain of custody regarding a drug exhibit and that the chemist should not have been allowed to identify the questioned substance as being cocaine. Further, Clark asserts that the district judge held him accountable under the sentencing guidelines for more drugs than he reasonably could have foreseen would be the object of the conspiracy.
Co-defendant James Clark contends that the trial judge should have granted his pretrial motion to sever trial of two tax counts from the indictment. Co-defendant Martinez contends he was denied the opportunity to examine a witness at his sentencing hearing. Both James Clark and Martinez claim their motions for separate trials should have been granted.
Finding no merit in any of these claims, we affirm the convictions.
After this case was tried, the United States Supreme Court decided Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), in which it held that "[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 110 S.Ct. at 2093. In the present case, the same conduct which constituted the substantive possession of heroin and cocaine with intent to distribute offenses for which Clark was convicted in 1988, was alleged and proved as an overt act in the 1990 conspiracy prosecution.
The question we must decide is whether evidence of the airport drug possession--"conduct that constitutes an offense for which the defendant has already been prosecuted"--"establish[ed] an essential element" of the conspiracy charge.
This circuit has not directly addressed the issue whether an overt act is an essential element of a conspiracy charge under 21 U.S.C. Sec. 846. Other than the Ninth Circuit, however, every circuit considering the question has held that, unlike the general conspiracy statute, 18 U.S.C. Sec. 371, it is unnecessary to allege or prove an overt act in a Sec. 846 prosecution. See United States v. De Jesus, 520 F.2d 298 (1st Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 126, 46 L.Ed.2d 94 (1975); United States v. Bermudez, 526 F.2d 89, 94 (2d Cir.1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976); United States v. Bey, 736 F.2d 891, 893-95 (3d Cir.1984); United States v. Mann, 615 F.2d 668, 671 (5th Cir.1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1694, 68 L.Ed.2d 193 (1981); United States v. Dempsey, 733 F.2d 392, 396 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984); United States v. Umentum, 547 F.2d 987, 990 (7th Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1677, 52 L.Ed.2d 376 (1977); United States v. Francis, 916 F.2d 464, 466 (8th Cir.1990); United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir. 1988); United States v. Yonn, 702 F.2d 1341, 1348 n. 6 (11th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct. 283, 78 L.Ed.2d 261 (1983); United States v. Pumphrey, 831 F.2d 307, 308 (D.C.Cir.1987); but see United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir.1980).
Neither the statute nor its legislative history suggests that an overt act is an element of a Sec. 846 conspiracy. Nor is there a constitutional requirement that an overt act be proved in conspiracy prosecutions when not required by statute. United States v. Bey, supra, at 894-95. We, therefore, adopt the view of the great majority of circuits and hold that it is unnecessary either to allege or prove an overt act in a conspiracy charged under 21 U.S.C. Sec. 846.
The essential elements of a Sec. 846 conspiracy are (1) an agreement between two or more persons to undertake conduct that would violate the laws of the United States relating to controlled substances and (2) the defendant's wilful joinder in that agreement. Standing alone, evidence of Clark's October 17th possession of cocaine and heroin shows neither an agreement nor a joinder with others. Viewed in context with other evidence, however, it allowed the jury to infer his participation in a drug conspiracy. The question, then, is whether Grady prohibits a successive prosecution when evidence of previously prosecuted conduct merely tends to prove an essential element of the second charge, or whether Grady prohibits a successive prosecution only when the evidence of previously prosecuted conduct proves the "entirety" of an essential element.
On this issue, we agree with Judge Newman's analysis in his concurring opinion in United States v. Calderone, 917 F.2d 717 (2d Cir.1990):
I think we are obliged to apply Grady in a way that gives the "element" component significance. That means barring the second prosecution only when the conduct previously prosecuted is to be used to "establish" the element of the second crime, which I think must mean "constitute the entirety of" the element. If Grady is read more broadly, that is, if the second prosecution is barred whenever the previously prosecuted conduct is to be used only as evidence of an element of the second offense, then we would almost be applying a "same evidence" test. Instead, I think it more likely that the Supreme Court expected Grady to apply only when the conduct prosecuted at the first trial is or may constitute the entirety of an element of the offense at the second trial.
917 F.2d at 724 (emphasis in the original).
As Judge Newman went on to observe, the Supreme Court earlier in the same term had decided Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), a case the Grady majority did not claim to overrule. In Dowling, a defendant who had been tried and acquitted of breaking into an apartment and robbing a woman was charged with bank robbery. Pursuant to Rule 404(b) (identity), Federal Rules of Evidence, the woman who had been robbed was allowed to testify about her encounter with Dowling, the same conduct for which Dowling had been previously prosecuted. She described his small handgun and his mask, then related how the mask had come off during their struggle. The testimony, standing alone, did not prove any of the essential elements of bank robbery, but when viewed in the light of other evidence, tended to identify Dowling as the masked person who, earlier, had used a small handgun to rob a bank. The Court found no double jeopardy violation in Dowling.
Judge Newman's reading of the Grady prohibition accords Grady a workable co-existence with Dowling and with Rule 404(b) which, without that reading, would be of the doubtful vitality that Justice O'Connor feared in her Grady dissent. 1
We hold, therefore, that evidence of Clark's airport possession of cocaine and heroin did not "establish an essential element" of the Sec. 846 conspiracy charge.
Jerry Clark complains that he should not have been held accountable at sentencing for those drugs possessed or distributed by his brother, James, because "there is no evidence to show that the distribution of all the drugs was within the scope of the defendant's agreement."
The evidence showed that Jerry Clark made trips to New York to pay for drugs...
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