Rashad v. Burt, 96-1040

• Decision Date: 14 March 1997
• Docket Number: No. 96-1040,96-1040
• Citation: 108 F.3d 677
• Parties: Dwight RASHAD, Petitioner-Appellee, v. Sherry BURT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 677

108 F.3d 677

Dwight RASHAD, Petitioner-Appellee, v. Sherry BURT, Respondent-Appellant.

No. 96-1040.

United States Court of Appeals Sixth Circuit.

Argued Oct. 23, 1996.

Decided March 14, 1997.

Daniel J. Blank (argued and briefed), Thay, Gross, Steinway & Bennett, Birmingham, MI, for Petitioner-Appellee.

Don W. Atkins (argued and briefed), Office of the Prosecuting Attorney, Detroit, MI, for Respondent-Appellant.

Before: MARTIN, Chief Judge; WELLFORD and MOORE, Circuit Judges.

MARTIN, C.J., delivered the opinion of the court, in which MOORE, J., joined. WELLFORD, J. (pp. 682-83), delivered a separate dissenting opinion.

BOYCE F. MARTIN, Jr., Chief Judge.

Dwight Rashad sought a writ of habeas corpus, alleging that his state court felony conviction for possession with intent to deliver over six hundred and fifty grams of cocaine after an earlier conviction for possession of the same substance violated his rights under the Double Jeopardy Clause of the Fifth Amendment. The district court found double jeopardy and issued the writ. We agree and affirm.

I.

Rashad's two convictions grew out of the execution of a single search warrant at a private home on September 7, 1988. On that date Detroit police conducted surveillance of a residence at 20219 Greydale in Detroit, Michigan. Their purpose was to execute a search warrant for drugs allegedly contained in the residence. During the surveillance, Rashad arrived at the house in a 1988 Lincoln automobile. Approximately ten minutes after Rashad, who was carrying a briefcase, entered the house by means of a key, the officers executed the search warrant.

After securing the premises and its occupants (Rashad, a woman, and an infant), police brought a drug detection dog into the residence. The dog reacted to a locked storage area in the basement in which police discovered and seized approximately five kilograms of cocaine, including several kilogram-sized bricks of cocaine that were wrapped in green paper, as well as packing material and narcotics paraphernalia.

Inside Rashad's briefcase, officers found a driver's license bearing Rashad's photograph, but a different name and address. The briefcase also contained a key ring which held keys to the front entrance and drug storage area of the house, and to the Lincoln automobile in which Rashad had arrived.

In the course of executing the search warrant, the narcotics dog alerted officers to the interior of Rashad's automobile, which was parked in the driveway of the residence. When cocaine residue was found within it, the vehicle was impounded for subsequent forfeiture and remained in police custody.

Approximately one week later, an informant indicated to police that cocaine was stored in a compartment in the Lincoln. On September 19, police obtained a search warrant for the car, and on September 22 a detailed search led to the discovery of a compartment in a rear quarter panel. In the compartment, officers found a plastic bag containing approximately 4850 grams of cocaine, including four separate kilogram packages wrapped in green paper bearing the initials XELA. Officers also found several bundles of heroin, a nine millimeter handgun, and a wallet containing Rashad's driver's license.

In April 1989, Rashad was tried before a jury on a charge of possession with intent to deliver greater than six hundred and fifty grams of cocaine in violation of Mich.Comp.Laws Ann. § 333.7401(2)(a)(i). That case arose out of the seizure of cocaine from the basement of the Greydale residence. The jury found Rashad guilty of a lesser included offense, possession of greater than six hundred fifty grams of cocaine, see Mich.Comp.Laws Ann. § 333.7403(2)(a)(i), and he was sentenced to forty to one hundred years imprisonment.

In an October bench trial, Rashad was tried on a charge of possession with intent to deliver over six hundred and fifty grams of cocaine (in violation of the same Michigan statute) in connection with the drugs which were found in the hidden compartment of the Lincoln. The defense moved to dismiss, claiming that the action was a successive prosecution for the same offense which violated the Double Jeopardy Clause of the Fifth Amendment. The court denied the motion, stating that the two prosecutions related to two separate transactions. At the close of the trial, Rashad was found guilty as charged, and sentenced to life imprisonment without the possibility of parole.

Rashad appealed this second conviction to the Michigan Court of Appeals on the ground that it violated the Double Jeopardy Clause of the Fifth Amendment. That court, in a June 1992 opinion, affirmed both convictions and specifically held that the trial for the cocaine found in the car was not barred by double jeopardy. In May of 1993, the Michigan Supreme Court denied Rashad's application for leave to appeal, with two judges dissenting.

In May 1994, Rashad filed a petition for the writ of habeas corpus in the United States District Court for the Eastern District of Michigan, claiming that his second conviction violated the Double Jeopardy Clause. The District Court accepted Rashad's argument and granted the writ of habeas corpus in November 1995. From that ruling, the State appeals.

II.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause has been interpreted as protecting criminal defendants from successive prosecutions for the same offense after acquittal or conviction, as well as from multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The question we must decide is whether Rashad's trial and conviction for the cocaine seized from the car constitutes a successive prosecution for an offense for which he was already tried--possession with intent to distribute the cocaine found in the residence. Rashad claims that it does, on the ground that the cocaine seized from the house and the car are parts of the same criminal transaction. The State, in contrast, asserts that the two stashes represent two separate offenses, and thus that Rashad's second prosecution is not barred by double jeopardy.

The traditional test for double jeopardy claims is the "same elements" test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (requiring the court to determine whether each charged offense "requires proof of an additional fact which the other does not"). The Blockburger test is designed to deal with the situation where closely connected conduct results in multiple charges under separate statutes. In a Blockburger case, the critical question is whether the multiple charges in reality constitute the same offense. Thus, the Blockburger test focuses on whether the statutory elements of the two crimes charged are duplicative. If the elements of the two statutes are substantially the same, then double jeopardy is violated by charging the defendant under both.

Although it plays a prominent role in double jeopardy analysis, the Blockburger test is insufficient where, as here, the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction. Indeed, multiple charges that satisfy the Blockburger standard, and thus may properly be joined in a single prosecution, may nevertheless violate double jeopardy if prosecuted successively. Jordan v. Commonwealth of Virginia, 653 F.2d 870, 873 (4th Cir.1980). As the Supreme Court has stated, "The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense." Brown, 432 U.S. at 166 n. 6, 97 S.Ct. at 2226. In Jordan, the Fourth Circuit articulated the need for a different standard:

Successive prosecutions implicate a component of double jeopardy protection not implicated in single prosecutions of joined charges such as those involved in Blockburger ...: the protection against retrial itself. In this component double jeopardy ... insures that having once "run the gauntlet" of criminal trial ..., 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.

Jordan, 653 F.2d at 873 (citing United States v. Wilson, 420 U.S. 332, 343-44, 95 S.Ct. 1013, 1021-22, 43 L.Ed.2d 232 (1975)).

The Blockburger standard, then, does not help us resolve a double jeopardy inquiry involving successive prosecutions. The concern in such a situation is whether a defendant is being prosecuted twice for the same act or transaction. The proper standard for determining if this has occurred, and thus if the two prosecutions violate double jeopardy, is to ask whether the actual evidence needed to convict the defendant in the first trial is the same as the evidence needed to obtain the second conviction. If the same evidence will serve for both convictions--irrespective of whether the convictions are under statutes that satisfy Blockburger 's "same elements" test--the second prosecution is barred by double jeopardy. ¹ See Jordan, 653 F.2d at 873 (citing Ex parte Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118 (1889)). Stated another way, successive prosecutions based on the same "fact situation" are barred by double jeopardy if the separate charges could have been joined and no significant additional fact was required in the second prosecution. Id. at 874.

Applying this standard to the present case demonstrates that Rashad's second prosecution did violate double jeopardy principles. Rashad's first prosecution charged him with possession with intent to distribute cocaine, and involved the drugs found in the Greydale residence. Rashad's second prosecution was also for possession with intent to distribute cocaine, and was...