Jordan v. Com. of Va., 78-6540

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before BUTZNER, PHILLIPS and MURNAGHAN; JAMES DICKSON PHILLIPS
• Citation: 653 F.2d 870
• Parties: Jerry Lee JORDAN, Appellee, v. COMMONWEALTH OF VIRGINIA, Appellant.
• Docket Number: No. 78-6540,78-6540
• Decision Date: 02 June 1980

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653 F.2d 870 Jerry Lee JORDAN, Appellee,
v.
COMMONWEALTH OF VIRGINIA, Appellant. No. 78-6540. United States Court of Appeals,
Fourth Circuit. Argued Nov. 8, 1979.
Decided June 2, 1980.

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Robert E. Bradenham, II, Asst. Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Va., Richmond, Va., on brief), for appellant.

Lewis E. Goodman, Jr., Danville, Va., for appellee.

Before BUTZNER, PHILLIPS and MURNAGHAN, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

Jordan sought a writ of habeas corpus, alleging that his state court felony conviction for possession of a controlled narcotic substance after an earlier misdemeanor conviction for obtaining the same substance with a forged prescription violated his rights under the Double Jeopardy Clause. The district court found double jeopardy and issued the writ. We agree and affirm.

I

Jordan's two successive convictions grew out of his conduct over a period of a few minutes on May 6, 1976. On that date he entered a drug store in the Commonwealth of Virginia and obtained a quantity of the drug Eskatrol by presenting a forged prescription to the pharmacist. Alerted by the pharmacist, another drug store employee followed Jordan into a nearby parking lot and observed him there still in possession of the Eskatrol. Information of this conduct communicated to the authorities led to the issuance on May 10 of two warrants for Jordan's arrest. One charged him with the misdemeanor offense of obtaining a drug by presenting a forged prescription; ¹ the

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other with the felony offense of possession of a "controlled substance." ² On July 26 Jordan was tried on a not guilty plea and convicted of the misdemeanor offense of obtaining the drug with a forged prescription, ³ and on the same day probable cause was found on the felony possession charge. On September 7 the grand jury returned a true bill on the felony possession charge, specifically identifying the possession as that observed in the parking lot on March 6.

At his trial on the felony charge on September 20, Jordan entered a plea of not guilty and raised the double jeopardy defense in bar of the prosecution. The jeopardy plea was heard with the case on the merits. The Commonwealth's case consisted of the testimony of the pharmacist, the employee who followed Jordan to the parking lot, and the officer who arrested Jordan under both warrants. The pharmacist testified to the transaction in which Jordan obtained the Eskatrol and identified the prescription, which was introduced in evidence. The other drug store employee testified that she followed Jordan into the parking lot and there saw the Eskatrol pills in his possession. The arresting officer read a statement made to him by Jordan admitting that he obtained the Eskatrol by using a forged prescription. The Commonwealth rested its case on this evidence. The double jeopardy plea was then argued and rejected, and Jordan was found guilty.

Following an unsuccessful appeal to the Supreme Court of Virginia on the double jeopardy claim, Jordan sought and obtained habeas relief in the district court, and this appeal by the Commonwealth resulted.

II

The Commonwealth essentially bases its justification for the two prosecutions and convictions upon the "two offense" test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and particularly the application of that test in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). ⁴ It contends that these decisions, rightly applied to the facts of this case, reveal that the multiple prosecutions of Jordan were not for the "same offense," and so did not violate the Double Jeopardy Clause. We disagree.

Where closely connected conduct gives rise to prosecution on multiple charges under separate statutes, the critical double jeopardy question is likely to be, as it is here, whether the charges are for the "same offense" within contemplation of the Clause. To resolve this question Blockburger provides an analytical test that can be dispositive:

(W)hen the same act or transaction constitutes a violation of two distinct statutory

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provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

284 U.S. at 304, 52 S.Ct. at 182.

If this test is not satisfied, i. e., if the offenses charged are revealed by it to be "only one," double jeopardy results from the prosecution of multiple charges whether they are joined in a single prosecution or are successively prosecuted. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). But the exact converse of this does not follow; multiple charges that satisfy the Blockburger test so that they may properly be joined in a single prosecution may nevertheless violate double jeopardy if prosecuted successively. For when successive prosecutions are involved, "(t)he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense." Id. at 166 n.6, 97 S.Ct. at 2226.

In consequence, even if we accept the Commonwealth's contention that under a Blockburger analysis the two prosecutions of Jordan were for "two offenses," ⁵ that does not end the inquiry in this successive prosecution case. Accordingly, we pass the question whether a pure Blockburger analysis would reveal two offenses here, ⁶ and proceed to analysis under the more appropriate test for successive prosecutions.

The reason for application of a different test is plain and well-settled. Successive prosecutions implicate a component of double jeopardy protection not implicated in single prosecutions of joined charges such as those involved in Blockburger and Gore : the protection against re-trial itself. In this component double jeopardy vindicates principles of finality and repose of former judgments and of fundamental fairness that simply are not involved in a joined charge prosecution. Basically it insures that having once "run the gauntlet" of criminal trial to judgment either of conviction or acquittal, a person shall not be required to run essentially the same gauntlet again. It protects not only against multiple punishments but against multiple trials for the same offense. See United States v. Wilson, 420 U.S. 332, 343-44, 95 S.Ct. 1013, 1021-22, 43 L.Ed.2d 232 (1975); Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957); United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916). Because an additional...