U.S. v. Ahmed
| Citation | 980 F.2d 161 |
| Decision Date | 25 November 1992 |
| Docket Number | D,No. 147,147 |
| Parties | UNITED STATES of America, Appellee, v. Yahya M. AHMED, also known as Yaha M. Ahmaed, also known as Ahmed M. Yahya, Defendant-Appellant. ocket 92-1225. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel A. Abady, New York City (Henry L. Saurborn, Jr., Kurzman Karelsen & Frank, of counsel), for appellant.
Celeste L. Koeleveld, Asst. U.S. Atty., S.D. New York, New York City (Otto G. Obermaier, U.S. Atty., Paul G. Gardephe, Asst. U.S. Atty., S.D. New York, of counsel), for appellee.
Before: MESKILL, Chief Judge, LUMBARD and CARDAMONE, Circuit Judges.
Yahya M. Ahmed appeals from the denial of a motion to dismiss his indictment on double jeopardy grounds in the United States District Court for the Southern District of New York, Edelstein, J. We must decide whether evidence of a failure to appear in court, introduced to show consciousness of guilt in a narcotics trial, bars a later prosecution for bail jumping. We answer this question in the negative.
Ahmed also appeals from Judge Edelstein's refusal to recuse himself. Since that ruling, however, Judge Edelstein directed the clerk of court to reassign the case to a different judge. Therefore, the recusal issue is moot.
On November 19, 1987, Ahmed was charged in the United States District Court for the District of Maryland in a two count indictment with conspiracy to possess heroin with the intent to distribute and with possession of heroin with the intent to distribute pursuant to 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), respectively. Ahmed was subsequently arrested in New York on January 25, 1988 and presented before On March 30, 1990 federal agents arrested Ahmed at Newark International Airport. He was transferred to the District of Maryland and was tried on the narcotics charges. At trial, prosecutors introduced evidence of Ahmed's failure to appear to show consciousness of guilt. The narcotics charges were eventually dismissed due to insufficient evidence. Ahmed was then removed to the Southern District of New York to face the bail jumping charge.
Magistrate Judge Dolinger in the Southern District of New York. Ahmed posted bail after a hearing. He was ordered to appear in the District of Maryland on February 8, 1988 to face the narcotics charges. Ahmed failed to appear, and a bench warrant for his arrest was issued by Magistrate Judge Dolinger in New York. On July 27, 1989 a grand jury in the Southern District of New York indicted Ahmed for violating the bail jumping statute, 18 U.S.C. § 3146
At the pretrial hearing, Ahmed moved to dismiss the indictment as violative of the Fifth Amendment Double Jeopardy Clause, and for Judge Edelstein to recuse himself from the case. Judge Edelstein entered an order denying both motions. United States v. Ahmed, 788 F.Supp. 196 (S.D.N.Y.1992). Subsequently, Judge Edelstein directed the clerk of court to reassign the case to a different judge. Since the issue regarding Judge Edelstein's recusal is now moot, we will address only the double jeopardy claim.
Generally, a federal court of appeals may only review appeals from final decisions of the district court. 28 U.S.C. § 1291. However, the Supreme Court has held that this Court has appellate jurisdiction to hear an interlocutory appeal of a double jeopardy claim as a "collateral order" exception to the final judgment rule. Abney v. United States, 431 U.S. 651, 656-62, 97 S.Ct. 2034, 2038-42, 52 L.Ed.2d 651 (1977). See also United States v. Romero, 967 F.2d 63, 65 (2d Cir.1992). Therefore, this appeal is properly before us.
The Fifth Amendment mandates: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Courts must engage in a two step inquiry to determine whether a subsequent prosecution violates the Double Jeopardy Clause. First, a court will apply the traditional test enunciated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). That test prohibits separate prosecutions where offenses have identical statutory elements or where one is a lesser included offense of the other. Id. In this case, Ahmed was charged with separate offenses in each proceeding. In the Maryland trial, Ahmed was charged with narcotics offenses. While the prosecution in that trial introduced evidence relating to Ahmed's failure to appear in order to show consciousness of guilt of the narcotics offenses, he was not charged with failure to appear. In the New York prosecution, Ahmed is being charged only with jumping bail. Since the Maryland and New York charges have entirely different operative facts, Blockburger does not bar the New York trial.
Having survived the Blockburger test, we look to the more recent case of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), for additional guidance. In Grady, the Supreme Court concluded 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. at 521, 110 S.Ct. at 2093. Ahmed asserts that his bail jumping prosecution is barred by the Double Jeopardy Clause because evidence of his failure to appear was introduced at his Maryland narcotics trial to show consciousness of guilt. He claims that the use of this evidence in the instant bail jumping case would violate the "same conduct" double jeopardy test in Grady. We disagree.
In Grady, the defendant, Thomas Corbin, allegedly intoxicated, drove his automobile The Supreme Court more recently clarified its position on the Double Jeopardy Clause in similar circumstances in United States v. Felix, --- U.S. ----, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992). In that case, the defendant, Felix, was tried and convicted in the Western District of Missouri for attempting to manufacture methamphetamine. At that trial, in order to prove Felix's criminal intent, the prosecution introduced evidence that Felix had manufactured methamphetamine in Oklahoma earlier that year. Felix was convicted of these charges, and was then indicted in the Eastern District of Oklahoma for offenses related to manufacture, possession and intent to distribute methamphetamine in Oklahoma. At the Oklahoma trial, the prosecution to prove these crimes introduced much of the same evidence as it did to show criminal intent at the Missouri trial. Felix was also convicted on these charges. In upholding the jury verdict, the...
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