U.S. v. Boldin, 84-8672
| Decision Date | 27 September 1985 |
| Docket Number | No. 84-8672,84-8672 |
| Citation | 772 F.2d 719 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles Donald BOLDIN, Lewis Crump, John Oscar Luck, Johnny Ray Moore, Jack W. Scarborough, Leonard Bonnell Steele, and Luis Rosendo Escobar, Defendants- Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Craig A. Gillen, Asst. U.S. Atty., Steven R. Wisebram, Atlanta, Ga., for U.S.
John Oliver Ellis, Jr., Federal Public Defender, Atlanta, Ga., for Scarborough.
P. Bruce Kirwan, Atlanta, Ga., for Steele.
Gino P. Negretti, Miami, Fla., for Escobar.
Eric Welch, Atlanta, Ga., for Moore.
Bobby D. Wilson, Atlanta, Ga., for Boldin.
Appeals from the United States District Court for the Northern District of Georgia.
Before VANCE and HATCHETT, Circuit Judges, and LYNNE *, District Judge.
This appeal requires that we determine whether the present prosecution of the appellants on Title 21 drug charges (substantive and conspiracy), RICO substantive charges, RICO conspiracy charges, Travel Act charges, and continuing criminal enterprise charges is barred because the appellants were formerly put in jeopardy or should have been prosecuted in earlier cases. Finding no double jeopardy bar, we affirm.
On January 19, 1984, a federal grand jury returned an indictment against thirty individuals for violation of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C.A. Sec. 1962(c) and (d) (RICO), alleging substantive violations of and conspiracy to violate the statute, as well as various other substantive charges. 1 Appellants, Charles Boldin, Lewis Crump, Jack Scarborough, Leonard Steele, Luis Escobar, John Luck, and Johnny Moore filed motions to dismiss the RICO conspiracy and RICO substantive counts on the ground of double jeopardy. 2 Scarborough and Boldin also moved to dismiss the continuing criminal enterprise counts based on double jeopardy. Additionally, Boldin moved to dismiss the Travel Act count on the ground of double jeopardy. The magistrate denied the motions to dismiss the RICO conspiracy and RICO substantive counts without an evidentiary hearing, but held an evidentiary hearing on the continuing criminal enterprise counts. On July 17, 1984, the magistrate recommended denial of the motions to dismiss the continuing criminal enterprise counts.
On August 14, 1984, the district court adopted the magistrate's denial of requests for an evidentiary hearing on the RICO counts and the denial of motions to dismiss as to all counts. Upon the filing of appeals, court proceedings were stayed and appellants' trials were severed. Appellants appeal the district court's denial of their motions to dismiss based on double jeopardy grounds, the district court's failure to conduct an evidentiary hearing on the RICO charges, and the district court's manner of conducting the evidentiary hearing on the continuing criminal enterprise charges.
The indictment in this case (CR 84-14A) arises from four factual situations: (1) the prosecution of Scarborough and Steele in the Eastern District of Tennessee; (2) the prosecution of Boldin, Crump, Luck, and Moore in the Northern District of Georgia, Rome Division; (3) the prosecution of Escobar in the Northern District of Georgia, Gainesville Division; and (4) the investigations by federal and state drug enforcement officials in Tennessee and Georgia in 1982 and 1983.
The government prosecuted Scarborough and Steele for drug smuggling activities in the Rockwood, Tennessee, area for the period June 1 to July 11, 1982. See United States v. Steele, 727 F.2d 580, 583-85 (6th Cir.1984). During its investigation of the Rockwood, Tennessee, activities of Scarborough and others, the grand jury called Boldin as a witness. At that time, the government knew that Boldin had installed booster rockets used on the airplane that The prosecution in the Northern District of Georgia, Rome Division, began with the arrest of Luck, Crump, Boldin, Moore, and others
brought into Tennessee 1,254 pounds of cocaine, seized on July 11, 1982. Although the grand jury questioned Boldin about his relationship with Scarborough and others, Boldin was not indicted. After a trial which began on November 1, 1982, the jury convicted Scarborough of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. The jury convicted Steele of conspiracy to possess cocaine with intent to distribute.
at or in close proximity of the LaFayette Municipal Airport in LaFayette, Georgia, in the early morning hours of October 25, 1982. A recently-landed plane and four automobiles were seized, and two of the automobiles seized on the airstrip contained duffle bags filled with 633 pounds of cocaine, wrapped in numerous plastic bags.
United States v. Luck, 560 F.Supp. 258, 260 (N.D.Ga.1983). The grand jury indicted these persons on October 28, 1982. Trial began December 1, 1982, and ended January 18, 1983, with the jury convicting Luck, Crump, and Moore of conspiracy to import, importation, conspiracy to possess, and possession of cocaine. The jury convicted Boldin of importing cocaine, but acquitted him of conspiracy to import, conspiracy to possess, and possession.
A grand jury indicted Luis Escobar in the United States District Court for the Northern District of Georgia, Gainesville Division for conspiracy to import marijuana and cocaine, and possession of cocaine with intent to distribute. A jury convicted Escobar on both counts.
These charges and convictions must be reviewed to determine whether the charges in this case are barred, in whole or in part, as to each appellant.
All appellants contend that the district court erred in denying their motions to dismiss on double jeopardy grounds. 3 Specifically, appellants assert that the following counts are barred by double jeopardy Boldin: Counts I, II, VIII, XXXV, and XXXVII.
Crump: Unspecified counts.
Escobar: Counts I, II, and LIV.
Luck: Counts I, II, and XII.
Moore: Counts I and II.
Scarborough: Counts I, II, and VI.
Steele: Counts I and II. 4
Appellants also contend that the magistrate erred in the manner in which he conducted the evidentiary hearing on the CCE counts and erred in failing to hold an evidentiary hearing on the RICO counts. Additionally, Boldin claims that the Travel Act charges, Counts XXXV and XXXVII, are barred by collateral estoppel.
The double jeopardy clause of the fifth amendment forbids that "any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. Double jeopardy renders unconstitutional a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In determining whether the double jeopardy clause bars retrial,
[t]he applicable rule is that where the same act or transactions constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Appellants were formerly prosecuted for conspiracy to import (21 U.S.C.A. Sec. 963), importation (21 U.S.C.A. Sec. 952), possession with intent to distribute (21 U.S.C.A. Sec. 841(a)(1)), and conspiracy to possess with intent to distribute (21 U.S.C.A. Sec. 846). 5 They argue that the RICO counts in this case are barred by double jeopardy: (1) the same facts were used in their former prosecution for conspiracy to possess with intent to distribute and the present RICO counts; and (2) retrial for the conspiracy and substantive offenses of importation and possession constitutes multiple prosecutions for the same offense because they are lesser-included offenses of the RICO provisions.
The principal authority in this circuit defining when offenses may or may not be proved by the same evidence is United States v. Phillips, 664 F.2d 971, 1004-15 (5th Cir. Unit B 1981), cert. denied, sub nom. Meinster v. United States, 457 U.S. 1136, 102 S.Ct. 208, 73 L.Ed.2d 1354 (1982). In Phillips the court decided whether a RICO prosecution was barred on double jeopardy grounds where a defendant had been previously convicted of violating the continuing criminal enterprise statute. As to the present and prior conspiracy prosecutions in that case, the Phillips court noted that
determining whether two conspiracies are in fact the same requires a more detailed inquiry than that required with respect to other offenses under the Blockburger test because the precise bounds of a single conspiracy are more difficult to determine.
United States v. Phillips, 664 F.2d at 1006 (footnote omitted). To test conspiracies for a double jeopardy violation, we must use the test applied by Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), and adopted by the Phillips court. In holding that a single narcotics conspiracy or agreement...
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