U.S. v. Bennett

• Citation: 44 F.3d 1364
• Decision Date: 13 February 1995
• Docket Number: Nos. 93-3958,93-3984 and 93-3988,93-3959,s. 93-3958
• Parties: UNITED STATES of America, Appellee, v. Delores BENNETT, Appellant. UNITED STATES of America, Appellee, v. Noble Laverne BENNETT, also known as Turtle, also known as Little Brother, Appellant. UNITED STATES of America, Appellee, v. George DIXON, also known as Willie Mack, also known as Dick, also known as Big Brother, Appellant. UNITED STATES of America, Appellee, v. Darryl GILLESPIE, also known as Hawk, also known as Hawkeye, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1364

44 F.3d 1364

UNITED STATES of America, Appellee, v. Delores BENNETT, Appellant.

UNITED STATES of America, Appellee, v. Noble Laverne BENNETT, also known as Turtle, also known as

Little Brother, Appellant.

UNITED STATES of America, Appellee, v. George DIXON, also known as Willie Mack, also known as Dick, also known as Big Brother, Appellant.

UNITED STATES of America, Appellee, v. Darryl GILLESPIE, also known as Hawk, also known as Hawkeye,

Appellant.

Nos. 93-3958, 93-3959, 93-3984 and 93-3988.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1994.

Decided Jan. 4, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied

Feb. 13, 1995 in No. 93-3958.

Dorothy Danforth, St. Louis, MO, argued, for Delores Bennett.

James Martin, St. Louis, MO, argued, for Noble Bennett.

Burton Shostak, St. Louis, MO, argued, for George Dixon.

Lawrence Fleming, St. Louis, MO, argued, for Darryl Gillespie.

Sam Bertolet, Asst. U.S. Atty., St. Louis, MO, argued (Dean Hoag, Asst. U.S. Atty., on the brief), for appellee.

Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.

This is an interlocutory appeal from an order of the district court ¹ denying defendants' motion to dismiss an indictment returned against them. Appellants argue that the indictment is barred by the Double Jeopardy Clause of the Fifth Amendment. We hold that the charges alleged in the indictment are not the "same offence" as the charges on which appellants were previously indicted, and we therefore affirm the judgment.

I.

On April 21, 1989, appellants Noble Bennett, Delores Bennett, George Dixon, Darryl Gillespie, and thirty-one others were indicted and charged with conspiracy to distribute heroin from 1984 to 1989, substantive drug offenses, and tax offenses (Bennett I ). Noble Bennett, the alleged ringleader of the conspiracy, was charged with one count of continuing criminal enterprise (CCE), 21 U.S.C. Sec. 848, one count of conspiracy to distribute heroin, 21 U.S.C. Sec. 846, two counts of distribution of heroin, 21 U.S.C. Sec. 841, two counts of tax fraud, 26 U.S.C. Secs. 7201, 7206(1), and one count of conspiracy to commit tax fraud, 18 U.S.C. Sec. 371. Delores Bennett was charged with one count of conspiracy to distribute heroin, 21 U.S.C. Sec. 846, two counts of tax fraud, 26 U.S.C. Secs. 7201, 7206(1), and one count of conspiracy to commit tax fraud, 18 U.S.C. Sec. 371. George Dixon was charged with one count of CCE, 21 U.S.C. Sec. 848, one count of conspiracy to distribute heroin, 21 U.S.C. Sec. 846, two counts of distribution of heroin, 21 U.S.C. Sec. 841, three counts of tax fraud, 26 U.S.C. Sec. 7206(1), and one count of conspiracy to commit tax fraud, 18 U.S.C. Sec. 371. Darryl Gillespie was charged with one count of conspiracy to distribute heroin, 18 U.S.C. Sec. 846. ²

The trial of Noble Bennett, Delores Bennett, Dixon, and others in Bennett I began on May 7, 1990. On May 8, 1990, after the jury was sworn, but before any evidence was heard, the court declared a mistrial because of a television news report that had aired the previous evening which revealed certain facts not mentioned in the indictment. The district court immediately rescheduled a new trial and denied the defendants' motions to dismiss based on double jeopardy. On appeal, we held that the government's attempt to retry the defendants was barred on grounds of double jeopardy and ordered the case dismissed because there was no "manifest necessity" for the district court's sua sponte declaration of a mistrial. United States v. Dixon, 913 F.2d 1305 (8th Cir.1990).

On November 15, 1990, appellants and four others were charged in the instant two-count indictment under the Racketeer Influenced and Corrupt Organizations Act (RICO) (Bennett II ). Count I alleges that from 1977 to 1989, appellants participated in an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c). Count II charges each of the appellants with conspiracy to violate RICO, in violation of 18 U.S.C. Sec. 1962(d). More specifically, the indictment charges appellants with conducting or participating, and conspiring to conduct or participate, in the conduct of a drug enterprise's (the "Bennett enterprise") affairs through a pattern of racketeering involving the predicate acts of drug possession and distribution, conspiracy, murder, and investment of drug proceeds.

Appellants filed motions to dismiss the Bennett II indictment, alleging that prosecution of the RICO charges is violative of the Double Jeopardy Clause. The district court denied the motions, and this interlocutory appeal followed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, see Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977), and now affirm.

II.

Appellants Noble Bennett, Dixon, and Gillespie contend that the district court erred in denying their motions to dismiss because the RICO charges alleged in Bennett II and the conspiracy offenses for which they were charged in Bennett I both involve an attempt by the government to prosecute the same conspiracy. Delores Bennett argues that the prior conspiracy to distribute heroin charge is a lesser included offense of the RICO charges alleged in the instant indictment. Gillespie also argues that double jeopardy bars the current prosecution because it will result in a second punishment of conduct for which he was previously punished in Bennett I. We address each of these arguments in turn. ³

III.

The Double Jeopardy Clause of the Fifth Amendment declares: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life and limb...." U.S. Const. amend. V. Under this clause, a defendant is protected from both successive prosecutions and multiple punishments for the same criminal offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993). The clause further prohibits the government from subdividing "a single criminal conspiracy into multiple violations of one conspiracy statute." United States v. Thomas, 759 F.2d 659, 661 (8th Cir.1985); United States v. Kienzle, 896 F.2d 326, 328 (8th Cir.1990) (both citing Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942)). ⁴

In order to support a claim of double jeopardy, a defendant must show that the two offenses charged are in law and fact the same offense. United States v. Okolie, 3 F.3d 287, 289 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1203, 127 L.Ed.2d 551 (1994); see also United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989). The defendant bears the initial burden of showing a non-frivolous claim of double jeopardy. Okolie, 3 F.3d at 289. Once the defendant has met this threshold requirement, the burden shifts to the government to show by a preponderance of the evidence that the two indictments at issue involve two separate offenses. Id. On appeal, the district court's denial of a motion to dismiss an indictment on the grounds of double jeopardy is reviewed de novo. United States v. Ivory, 29 F.3d 1307, 1310 (8th Cir.1994).

A.

Appellants Noble Bennett and George Dixon were formerly prosecuted for two offenses that are relevant to their double jeopardy argument: 1) conspiracy to distribute heroin from 1984-89, in violation of 21 U.S.C. Secs. 841(a)(1), 846; and 2) CCE, in violation of 21 U.S.C. Sec. 848. Darryl Gillespie asserts his double jeopardy claim in light of his guilty plea in Bennett I to one count of conspiracy to distribute heroin. All contend that the district court erred in applying the "same elements" or "Blockburger" test in considering their double jeopardy claims, as opposed to the "totality of the circumstances" test enunciated by this court in United States v. Tercero, 580 F.2d 312 (8th Cir.1978) and United States v. Thomas, 759 F.2d 659 (8th Cir.1985).

More specifically, the gravamen of appellants' claims is that the drug conspiracies for which they were prosecuted in Bennett I fall within, or are completely subsumed under, the larger more unified RICO conspiracy ⁵ alleged in the present indictment. Stated otherwise, appellants contend that the government is attempting to twice prosecute a single long-term narcotics conspiracy. Appellants argue that because the previous conspiracy charges involve essentially the same time periods, co-conspirators, scope of activities, and location as the current RICO conspiracy, there is only a single long-term conspiracy. Thus, they argue, the totality of the circumstances test prohibits the successive prosecution of this same criminal conspiracy. ⁶ Even assuming that appellants were involved in a single long-term narcotics conspiracy, we conclude that appellants' reliance on the totality of the circumstances test is misplaced and that prosecution of the RICO charges is not barred by double jeopardy.

In Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), the Court held that a single agreement with multiple objectives involving separate substantive offenses is only a single conspiracy that is punishable only once under a single conspiracy statute. Id. at 54, 63 S.Ct. at 102. The Court stated that "[t]he single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute, § 37 of the Criminal Code." Id. The Court distinguished the situation in Braverman, however, from a charge involving "a single act which violates two statutes." Id. (distinguishing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

In applying the Braverman rule against subdividing a single conspiracy into multiple violations of a single conspiracy statute, we have recognized that the same elements test is of questionable value in analyzing the propriety of successive conspiracy prosecutions. Thomas, 759...