966 F.2d 1446 (4th Cir. 1992), 91-5574, U.S. v. Smith

Docket Nº:91-5574, 91-5575.
Citation:966 F.2d 1446
Party Name:UNITED STATES of AMERICA, Plaintiff-Appellee, v. James Edward SMITH, a/k/a Smitty, a/k/a Dumptruck Smitty, Defendant-Appellant. UNITED STATES of AMERICA, Plaintiff-Appellee, v. Richard Leander SMITH, a/k/a Peter, Defendant-Appellant.
Case Date:June 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1446

966 F.2d 1446 (4th Cir. 1992)

UNITED STATES of AMERICA, Plaintiff-Appellee,

v.

James Edward SMITH, a/k/a Smitty, a/k/a Dumptruck Smitty, Defendant-Appellant.

UNITED STATES of AMERICA, Plaintiff-Appellee,

v.

Richard Leander SMITH, a/k/a Peter, Defendant-Appellant.

Nos. 91-5574, 91-5575.

United States Court of Appeals, Fourth Circuit

June 10, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued: March 6, 1992

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, District Judge.

E.D.Va.

AFFIRMED.

ARGUED: Gerald Thomas Zerkin, Gerald T. Zerkin & Associates, Richmond, Virginia, for Appellants. Thomas Ernest Booth, United States Department of Justice, Washington, D.C., for Appellee.

On Brief: Kelley H. Brandt, Robert Godfrey, Gerald T. Zerkin & Associates, Richmond, Virginia, for Appellants. Richard Cullen, United States Attorney, William G. Otis, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and MURRAY, Senior United States District Judge for the District of Maryland, sitting by designation.

PER CURIAM:

OPINION

Following a jury trial in the United States District Court for the Eastern District of Virginia, James E. Smith ("James") and Richard L. Smith ("Richard") were convicted of interstate travel to promote drug trafficking, 18 U.S.C. § 1952(a); possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1); and use of a telephone to facilitate drug trafficking, 21 U.S.C. § 843(b). James was also convicted of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g); and distribution of heroin, 21 U.S.C. § 841(a)(1). Richard was convicted of participation in a drug trafficking conspiracy; 21 U.S.C. § 846, distribution of heroin, 21 U.S.C. § 841(a)(1); and distribution of cocaine, 21 U.S.C. § 841(a)(1). 1 Evidence at trial indicated that James, while incarcerated on a drug-related conviction in the District of Columbia, had planned and managed a drug distribution operation in Richmond, Virginia. Richard participated in the buying and selling of drugs for the operation.

James and Richard appeal their convictions on a number of grounds. After a thorough review of the record, finding no reversible error, we affirm.

I.

On March 16, 1988, prior to any charges being filed in the present case, James pled guilty in the District of Columbia to a charge of distributing narcotics and was sentenced to a term of 35 years in prison. James argues that the presentation, in this case, of extensive evidence regarding the conduct that formed the basis of that prior conviction violated the Double Jeopardy clause of the Fifth Amendment. The evidence was admitted by the trial judge under Federal Rule of Evidence 404(b) as probative of James' "usual method of operation," his intent with respect to distribution, and his relationship with various witnesses who testified against him.

James' Double Jeopardy claim is based on the Supreme Court's decision in Grady v. Corbin, 495 U.S. 508, 109 L.Ed. 2d 548 (1990). In that case, the Court held that "the 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." Id., 109 L.Ed. 2d at 564. James argues that, in the present case, the Government used the conduct underlying his prior conviction as evidence to convict him of the present charges.

James overstates the holding in Grady. While the Government, in this case, uses prior offense conduct as evidence that James committed the present offense, the prior offense conduct is not an element of the present offense. As the above quoted language in Grady states, the Double Jeopardy clause is violated only when the Government uses a defendant's prior conduct "to establish an essential element of the offense charged." Id. The Grady Court cautioned, "This is not ... [a] 'same evidence' test." Id. This court has subsequently interpreted Grady, concluding that "Grady prohibits a successive prosecution only when the evidence of previously prosecuted conduct proves the 'entirety' of an essential element." United States v. Clark, 928 F.2d 639, 642 (4th Cir. 1991), petition for cert. filed, April 1, 1992. Clark noted that a broad interpretation of Grady, as urged by James, that would bar admission of previous offense conduct used merely as evidence of an element of the instant...

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