U.S. v. Bendis

• Decision Date: 01 June 1982
• Docket Number: 80-1302 and 80-1310,Nos. 80-1301,s. 80-1301
• Citation: 681 F.2d 561
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert I. BENDIS, Andrew D'Amato, Armand Mucci, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 561

681 F.2d 561

UNITED STATES of America, Plaintiff-Appellee, v. Robert I. BENDIS, Andrew D'Amato, Armand Mucci, Defendants-Appellants.

Nos. 80-1301, 80-1302 and 80-1310.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1981.

Decided Sept. 15, 1981.

As Amended May 24, 1982.

Rehearing and Rehearing En Banc Denied June 1, 1982.

William C. McCorriston, Goodsill, Anderson & Quinn, Honolulu, Hawaii, for Bendis.

William Sandkuhler, III, Honolulu, Hawaii, for D'Amato.

Peter C. Wolff, Hart & Wolff, Honolulu, Hawaii, for Mucci.

William C. Bryson, Dept. of Justice, Washington, D. C. (argued), for plaintiff-appellee; Daniel A. Bent, Asst. U. S. Atty., Honolulu, Hawaii, on brief.

Appeal from United States District Court for the District of Hawaii.

Before GOODWIN, HUG and POOLE, Circuit Judges.

POOLE, Circuit Judge:

These are interlocutory appeals from the orders of the district court denying appellants' motions to dismiss an indictment returned against them in the District of Hawaii. Appellants contend that the Hawaii indictment is barred by the Double Jeopardy Clause of the Fifth Amendment, is the product of vindictive prosecution and should be dismissed due to delay and allegedly improper introduction of evidence before the grand jury. We have jurisdiction only as to the double jeopardy and vindictive prosecution claims. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (double jeopardy); United States v. Griffin, 617 F.2d 1342 (9th Cir.), cert. denied, 449 U.S. 863, 101 S.Ct. 167, 66 L.Ed.2d 80 (1980), (vindictive prosecution). We affirm the district court orders refusing to dismiss the indictment on these bases and dismiss the appeal in all other respects for want of jurisdiction.

I

On January 14, 1980, a five-count indictment was returned in the District of Hawaii charging appellants and Mark Iuteri ¹ as follows: Count One charges a conspiracy between March 2 and May 2, 1977 to cause interstate travel and use of wire communication in furtherance of a scheme to defraud, in violation of 18 U.S.C. § 371 (the substantive statutory offenses are 18 U.S.C. §§ 1343, 2314); Count Two charges appellants with using wire communication in furtherance of a scheme to defraud Hawaii building contractor Michael Leong, in violation of 18 U.S.C. §§ 1343, 2; Count Three charges appellants with inducing interstate travel by Leong in furtherance of a scheme to defraud him, in violation of 18 U.S.C. §§ 2314, 2; Count Four charges appellants and Iuteri with inducing interstate travel by James Kealoha in furtherance of a scheme to defraud him, in violation of 18 U.S.C. §§ 2314, 2; Count Five charges appellants and Iuteri with transporting in interstate commerce a check for $12,500.00 while knowing the check to have been taken by fraud, in violation of 18 U.S.C. §§ 2314, 2.

Prior to this indictment, appellants, along with Alfredo Proc, Larry Mangiamelli and Phillip Kitzer, were convicted on various charges arising from an indictment returned in the District of Kansas. Each appellant was convicted on count two of that Kansas indictment, which charged a conspiracy from June 6 to 17, 1977 to transport a $110,000.00 money order in commerce, in violation of 18 U.S.C. § 371 (the substantive offense charged is 18 U.S.C. § 2314). Appellants Bendis and Mucci were also convicted on count three of that indictment, which charged unlawful transfer in commerce of a $110,000.00 money order procured by fraud, in violation of 18 U.S.C. § 2314. Two remaining counts of the Kansas indictment did not charge appellants.

On February 22, 1980, appellant D'Amato filed a motion to dismiss the Hawaii indictment as barred by the Double Jeopardy Clause of the Fifth Amendment. He contended that count one of the Hawaii indictment charges the same conspiracy tried in count two of the Kansas indictment.

Shortly thereafter, Bendis filed a similar motion, adding also that the indictment had to be dismissed because of vindictive prosecution, impermissible delay both before and after indictment and improper introduction of evidence before the grand jury. All appellants joined in Bendis' motion.

On April 10, 1980, the district court denied the motions to dismiss on all bases save double jeopardy. Five days later, the court denied the motion to dismiss on double jeopardy grounds. After reviewing the trial transcript from the Kansas proceeding, and a proffer by Hawaii prosecutors of the evidence that they expected to produce at trial, the court concluded that the conspiracy charged in Hawaii was distinct from that tried in Kansas and therefore the Double Jeopardy Clause was not a bar. The court's ruling was without prejudice to the right of the appellants to renew their double jeopardy claim when the actual evidence produced at the Hawaii trial is available for examination.

On motion of appellants, the district court stayed further proceedings to permit interlocutory presentation of the double jeopardy claim to this court.

II

The Double Jeopardy Clause prohibits subdivision of a single criminal conspiracy into multiple violations of one conspiracy statute. Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). To sustain a double jeopardy claim, the Hawaii prosecution under count one must be indistinguishable "in law and fact" from the Kansas conspiracy charge. Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911); United States v. Burkett, 612 F.2d 449, 451 (9th Cir. 1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 853 (1980). Both counts charge conspiracies under the general federal conspiracy statute, 18 U.S.C. § 371.

A.

This circuit has held that it is appellants' burden to establish that two conspiracies charged are the same. See Sanchez v. United States, 341 F.2d 225, 227 (9th Cir.), cert. denied, 382 U.S. 856, 86 S.Ct. 109, 15 L.Ed.2d 94 (1965). But the nature of the appellant's burden is necessarily different in this interlocutory appeal. The second trial has not yet occurred and the government is in the better position to know what it expects to prove at that trial. Sanchez did not have to consider this problem because it arose after the second trial was completed.

The Second, Third and Fifth Circuits hold that in an Abney appeal such as this, when a defendant puts double jeopardy in issue with a non-frivolous showing that an indictment charges the same offense as that for which he was formerly placed in jeopardy, the "burden of proof" ² or "burden of persuasion" ³ is on the government to establish by a preponderance of the evidence separate conspiracies. As an evidentiary concept, the burden of persuasion generally does not shift and would appear to rest always with the defendant on a double jeopardy claim. See J. Wigmore, Evidence § 2489, p. 285 (3d ed. 1940); Sanchez v. United States, supra, 341 F.2d at 227 (burden is on defendant to establish double jeopardy). But we agree with the principle in these cases that once the defendant makes a non-frivolous showing of former jeopardy, the government must tender to the court evidence indicating that separate conspiracies are charged. While this appears more properly characterized as a burden to go forward with the evidence, it may in practical effect amount to a burden to persuade the court. In this case, the government assumed its burden to go forward.

B.

The primary constitutional test used to determine whether two counts in the same or subsequent indictments charge the same offense is the "same evidence" or "Blockburger " test, developed in the early Supreme Court cases of Gavieres v. United States, supra, 220 U.S. at 342, 31 S.Ct. at 422, and Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See Illinois v. Vitale, 447 U.S. 410, 415-16, 100 S.Ct. 2260, 2264-65, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). This test analyzes the essential elements of the crimes charged in the two counts. "If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes...." Brown v. Ohio, supra, 432 U.S. at 166, 97 S.Ct. at 2226, quoting, Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1293 n.17, 43 L.Ed.2d 616 (1976).

Providing the double jeopardy protection recognized in Braverman presents a peculiar problem and requires application of a different test. The essence of the crime of conspiracy is the agreement to commit unlawful acts. Iannelli v. United States, supra, 420 U.S. at 777, 95 S.Ct. at 1289. Braverman instructs that when there is only one agreement, there is only one violation of the general federal conspiracy statute. 317 U.S. at 52-53, 63 S.Ct. at 101. This remains true even though the conspiratorial agreement may encompass diverse criminal objectives which would violate several statutes. Id. Blockburger analyzes similarities or distinctions in the proof the government must offer to obtain convictions on multiple counts. Yet strict, uncritical application of Blockburger to multiple conspiracy charges under the same statute could result in no double jeopardy protection at all for defendants so charged. Minor variations in the overt acts charged in the separate counts, or in the underlying objects allegedly embraced in the conspiracy, might facially satisfy Blockburger. See generally United States v. Tercero, 580 F.2d 312 (8th Cir. 1978); United States v. Marable, 578 F.2d 151 (5th Cir. 1978); Short v. United States, 91 F.2d 614 (4th Cir. 1937). Across the board application of Blockburger would sanction artful crafting of conspiracy charges which could permit the government to subdivide one criminal conspiracy into multiple violations of a single statute, a result which Braverman forbids.

Because of the functional inadequacy of the Blockburger...