Jones v. US

• Decision Date: 29 December 1995
• Docket Number: No. 95-CO-505.,95-CO-505.
• Citation: 669 A.2d 724
• Parties: George E. JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

669 A.2d 724

George E. JONES, Appellant, v. UNITED STATES, Appellee.

No. 95-CO-505.

District of Columbia Court of Appeals.

Argued October 31, 1995.

Decided December 29, 1995.

Ed Wilhite, Washington, DC, for appellant.

Magdalena A. Bell, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black, Julie A. Grohovsky, and Jeanne M. Hauck, Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN, RUIZ and REID, Associate Judges.

RUIZ, Associate Judge:

George E. Jones, the appellant, brings this interlocutory appeal from the Superior Court's denial of his motion to dismiss an indictment. Jones argues that two counts of the indictment are vague, and that the government's prosecution on those counts is barred by the principles of double jeopardy and collateral estoppel. We hold that because Jones has never been placed in jeopardy in a proceeding related to the charged offenses, there is no valid claim of double jeopardy presented to this court that is appealable interlocutorily. Accordingly, we dismiss the appeal for want of jurisdiction.

I.

The grand jury indicted Jones on two counts of distribution of cocaine, and one count of unlawful possession of drug paraphernalia. The indictment named Mark Pride and Wanda Collins as Jones's co-defendants, charging each with one count of possession of cocaine. At the time of his arrest, Jones was on release under the supervision of the United States District Court for the District of Columbia, completing a sentence for conspiracy to distribute narcotics. See 18 U.S.C. § 3583 (1994) (governing imposition, modification, and revocation of supervised release). The United States Attorney for the District of Columbia elected to request a revocation of the supervised release based on these new offenses before they were tried in the District of Columbia Superior Court.

The district court held a full evidentiary hearing before the Honorable John G. Penn. Relying solely upon the charge of distribution of cocaine to Collins, the government argued that Jones's supervised release should be revoked and that Jones should be incarcerated for all or part of the remainder of his release time.¹ The government presented the testimony of the arresting officer, who stated that he witnessed three apparent drug transactions: two between Jones and Collins, and one between Jones and Pride. Judge Penn denied the petition for revocation, stating that the government had failed to prove a criminal violation by a preponderance of the evidence.² Jones then filed a motion to dismiss the indictment in Superior Court, claiming that prosecution of the indictment was unconstitutional. The trial court denied the motion.

Jones raises three issues on appeal. First, he argues that principles of double jeopardy bar prosecution in Superior Court of the two counts of distribution of a controlled substance presented to Judge Penn in the supervised release revocation proceeding. Second, he contends that the counts alleging the distribution of cocaine are so vague that they do not provide sufficient information to evaluate a Fifth Amendment double jeopardy claim or satisfy the Sixth Amendment right to notice. Third, Jones claims that even if the two distribution counts in the indictment were not entirely barred by double jeopardy principles, the government should be collaterally estopped from relitigating the facts determined in the district court hearing.

II.

Jones argues that the government initially placed him in jeopardy when it sought revocation of supervised release. A term of supervised release "is part of the sentence and is designated at the time of sentence to occur after the prisoner finishes serving a specific term of incarceration." United States v. Marmolejo, 915 F.2d 981, 982 (5th Cir.1990). Violations of release conditions can result in the execution of a sentence of incarceration for all or part of the term of release that had been imposed. 18 U.S.C. § 3583(e)(3). At the time of his arrest on the present charges, Jones had completed a term of incarceration from a federal conviction, and was serving a term of supervised release. Jones asserts that the court would have imposed a "sentence" of eighteen to twenty-four months in prison if the government had proven that he had distributed cocaine to Collins. Because the government has once litigated and failed to prove in the supervised release revocation proceeding that Jones committed the indicted offenses, Jones claims that a trial in Superior Court would be a "second prosecution" and would place him in jeopardy again for the same offense.

We disagree that trial in Superior Court would violate the constitutional protection against double jeopardy. We conclude that Jones was not placed in jeopardy for any of the present offenses at the district court hearing to revoke his supervised release, a hearing of a type which is closely analogous in form and purpose to a hearing to revoke probation or parole. The Supreme Court has stated that such hearings are not criminal prosecutions for purposes of due process, Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599-2600, 33 L.Ed.2d 484 (1972), and courts evaluating double-jeopardy claims have generally followed that rule. See Garcia v. United States, 769 F.2d 697, 700 (11th Cir.1985) (holding that jeopardy does not attach at a parole revocation hearing); Thompson v. Reivitz, 746 F.2d 397, 399-400 (7th Cir.1984) (holding that bar against double jeopardy does not preclude successive probation revocation hearings based on the same alleged violation), cert. denied, 471 U.S. 1103, 105 S.Ct. 2332, 85 L.Ed.2d 849 (1985). Indeed, this court has noted that "jeopardy does not attach `in parole, probation, or bond revocation hearings, because these proceedings are not designed to punish a defendant for violation of a criminal law.'" Hardy v. United States, 578 A.2d 178, 181 (D.C.1990) (quoting Eighteenth Annual Review of Criminal Procedure, 77 GEO.L.J. 489, 880 (1989)); see also United States v. Miller, 797 F.2d 336, 340-41 (6th Cir.1986) (holding that jeopardy did not attach during probation revocation hearing); United States v. Whitney, 649 F.2d 296, 298 (5th Cir.1981) (per curiam) (same).

A supervised release revocation hearing is the functional equivalent of a probation or parole revocation hearing. The same evidentiary rules apply, decisions are made according to similar guidelines and standards of proof, and the consequences that may result from a revocation are known to the defendant at the time of sentencing. See 18 U.S.C. § 3583(e)(3) (providing that determination of revocation of supervised release must be made "pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation"); United States v. Paskow, 11 F.3d 873, 881 & n. 9 (9th Cir.1993) (noting that supervised release and parole are virtually identical systems). Had Jones's supervised release been revoked, the punishment would not be a new sentence, but a continuation of an old sentence. Hardy, supra, 578 A.2d at 181. A supervised release revocation hearing, like a parole or a probation hearing, is a continuation of the earlier prosecution for the previous offense, and we thus hold that jeopardy on a new offense does not attach therein. Id.

III.

Ordinarily, this court has jurisdiction only over final orders and judgments of the Superior Court. D.C.Code § 11-721(a)(1) (1995). Because Jones appeals the denial of his motion to dismiss before a verdict or judgment has been entered, we must evaluate the court's jurisdiction in light of the collateral-order exception to the final-order rule, promulgated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Jones's double jeopardy, vagueness, and collateral estoppel claims must be evaluated individually to determine whether they qualify as collateral orders.

The collateral-order doctrine allows this court to review a small class of orders which satisfy the following criteria:

To come within this "narrow exception" to the rule against interlocutory appeals a trial court order must, at a minimum, meet three conditions. First, it "must conclusively determine the disputed question," second, it must "resolve an important issue completely separate from the merits of the action," third, it must "be effectively unreviewable on appeal from a final judgment."

Stein v. United States, 532 A.2d 641, 643 (D.C.1987) (quoting Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 1054-55, 79 L.Ed.2d 288 (1984)), cert. denied, 485 U.S. 1010, 108 S.Ct. 1477, 99 L.Ed.2d 705 (1988). In Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977), the Supreme Court established that a denial of a motion to dismiss based on double jeopardy is immediately appealable as a collateral order, because the right not to be tried twice is nullified once a defendant is put through the trial he had a right to avoid. Abney, supra, 431 U.S. at 662, 97 S.Ct. at 2041-42; Powers v. United States, 412 A.2d 1205, 1206 n. 2 (D.C.1980).

In addition to claiming that a trial on the charged offenses would violate the Double Jeopardy Clause, Jones claims that the indictment is so vague that it fails to provide an adequate basis to evaluate his Fifth Amendment double jeopardy concerns. Both claims implicate Jones's right not to be tried twice for the same offense. See Joseph v. United States, 597 A.2d 14, 22 (D.C. 1991) (stating that an indictment must be sufficiently clear to protect defendant's Fifth Amendment right against double jeopardy); Williams v. United States, 404 A.2d 189, 192-93 (D.C.1979) (quoting Hsu v. United States, 392 A.2d 972, 976-77 (D.C.1978)). As such, they would be immediately appealable....