U.S. v. Claiborne

• Citation: 92 F.Supp.2d 503
• Decision Date: 14 April 2000
• Docket Number: No. Crim.A. 3:99CR297.,Crim.A. 3:99CR297.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Beverly A. CLAIBORNE, Jr., Defendant.

Page 503

92 F.Supp.2d 503

UNITED STATES of America v. Beverly A. CLAIBORNE, Jr., Defendant.

No. Crim.A. 3:99CR297.

United States District Court, E.D. Virginia, Richmond Division.

April 14, 2000.

COPYRIGHT MATERIAL OMITTED

David Maguire, U.S. Attorney's Office, Richmond, VA, for United States.

D. Gregory Carr, Bowen, Bryant, Champlin & Carr, Richmond, VA, Cary B. Bowen, Bowen, Bryant, Champlin & Carr, Richmond, VA, for defendant Claiborne.

MEMORANDUM OPINION

WILLIAMS, Senior District Judge.

This matter is before the Court on the defendant's Motion to Dismiss the Indictment due to Double Jeopardy and a Violation of the Petite policy and the defendant's Motion in Limine to exclude from the indictment several alleged overt acts in furtherance of the conspiracy because the defendant was a juvenile at the time of the alleged acts. For the reasons stated below, both motions are denied.

I. FACTUAL BACKGROUND

The defendant, Beverly Claiborne, is charged in a twelve-count Superceding Indictment as follows: Count One, Conspiracy, in violation of Title 21 U.S.C. § 846; Counts Two through Six, Possession with Intent to Distribute Crack, in violation of Title 21 U.S.C. § 841(a)(1); Count Seven, Possession with Intent to Distribute Heroin, in violation of Title 21 U.S.C. § 841(a)(1); Count Eight, Distribution of Heroin, in violation of Title 21 U.S.C. § 841(a)(1); Count Nine, Murder in Aid of Racketeering Activity, in violation of Title 18 U.S.C. § 1959(a)(1); Count Ten, Murder in Aid of Drug Trafficking, in violation of Title 21 U.S.C. § 848(e); Count Eleven, Use of Firearm During Crime of Violence, in violation of Title 18 U.S.C. § 924(c); and Count Twelve, Murder During Crime of Drug Trafficking, in violation of Title 18 U.S.C. 924(j). The victim of the murder that occurred on or about August 7, 1998, alleged in Counts Nine, Ten, and Twelve, was D'Antonio Johnson.

The defendant is allegedly a member of a violent drug gang named the "17th Street Boys." The November 3, 1999 Superceding Indictment alleges that:

[i]n the vicinity of 17th Street, Boston Avenue and Albany Avenue in the Blackwell area of Richmond, Virginia, the "17th Street Boys" operated and controlled an open air drug market, where drug users would either walk or drive up to purchase cocaine base, commonly known as "crack," powder cocaine, and heroin. From 1993 to the present, the defendant and conspirators distributed more that [sic] one hundred kilos of crack and three kilos of heroin.

(Superceding Indictment, Count One, ¶ 2). This amount of drugs has a street value of approximately $10 million dollars. See Tom Campbell, Drug Conspiracy Indictment Unsealed. Five or Six Defendants are in Custody, Richmond Times Dispatch, Sept. 25, 1999, at B6. The Superceding Indictment further alleges that in order "[t]o further their drug trafficking activities, the defendant and conspirators committed numerous acts of violence and threats of violence upon drug users, rival gang members, residents and anyone who interfered with their drug activities." (Superceding Indictment, Count One, ¶ 3).

The United States is presently seeking a life sentence for the charges against Beverly Claiborne.¹ The defendant was previously tried and acquitted of charges relating to the same events in the Circuit Court for the City of Richmond, Manchester Division, on January 7, 1999. In the Commonwealth of Virginia ("Virginia" or the "Commonwealth") system, the defendant was charged with the first degree murder of D'Antonio Johnson, in violation of Va. Code § 18.2-32; use of a firearm in the commission of murder, in violation of Va. Code § 18.2-53.1; and conspiracy to distribute heroin, in violation of Va.Code § 18.2-22. The case was prosecuted by Pamela Evans, Esquire, Deputy Commonwealth Attorney for the City of Richmond. At the conclusion of the Commonwealth's case, the trial judge, the Honorable James B. Wilkinson, struck the evidence on the drug conspiracy charge and dismissed that charge. The jury subsequently found the defendant not guilty of the remaining murder and firearm charges.

During the same time period as defendant Beverly Claiborne's trial in the Circuit Court for the City of Richmond, specifically January 19-21, 1997, the United States tried Kenneth Montgomery, allegedly also a member of the "17th Street Boys," in this Court. Montgomery was tried on several charges, including the same conspiracy charge that defendant Claiborne is currently facing, the New Years Eve 1995 murder of John Henry White,² and other related charges. Montgomery was found guilty by a federal jury and is serving a life sentence. Montgomery was never tried in state court.

Following his acquittal in the Circuit Court for the City of Richmond on January 7, 1999, the defendant was released from custody and remained free until he was arrested on his initial federal indictment in September 1999.³ On November 3, 1999, the United States superceded the original indictment, with only Beverly Claiborne as a defendant, and added the various murder charges for the murder of D'Antonio Johnson.

II. LEGAL ANALYSIS

A. The Motion to Dismiss the Superceding Indictment due to Double Jeopardy and a Violation of the Petite Policy

The defendant filed a motion to dismiss the November 3, 1999 Superceding Indictment, arguing that federal prosecution on the charges on which he was already tried and acquitted in the Circuit Court for the City of Richmond amounts to a violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and a violation of the Petite policy of the United States Department of Justice, as outlined in the United States Attorney's Manual § 9-2.031. Although the Court feels that the defendant's Double Jeopardy claim has considerable merit, the Court is reluctant to create a new exception to the dual sovereignty doctrine which allows for federal and state prosecutions without implicating the Double Jeopardy bar. Additionally, under current law, the Assistant Attorney General's decision to waive the Petite policy does not have any Constitutional implications and does not confer any rights on the criminal defendant. U.S. v. Sobral, 149 F.3d 1172, 1998 WL 276263, at *4 (4th Cir.1998) (unpublished opinion); see also United States Attorney's Manual § 9-2.031(F) [hereinafter Manual]. Accordingly, the defendant's motion to dismiss is denied.

1. The Legal Setting

The Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." A well-settled exception to the Double Jeopardy bar is the dual sovereignty doctrine which holds that "the Constitution does not deny the State and Federal Governments the power to prosecute for the same acts." Rinaldi v. U.S., 434 U.S. 22, 28, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977).

In applying the dual sovereignty doctrine, then, the crucial determination is whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns. This determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power.... Thus the [Supreme] Court has uniformly held that the States are separate sovereigns with respect to the Federal Government because each State's power to prosecute derives from its `inherent sovereignty,' [preserved to it by the Tenth Amendment], and not from the Federal Government.

Heath v. Alabama, 474 U.S. 82, 88-89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (citations omitted).

Currently, the only recognized exception to the dual sovereignty doctrine is the "sham prosecution" exception. This exception applies when federal and state prosecutors are alleged to have manipulated the system in order to achieve the equivalent of a second prosecution in the same sovereign. See Bartkus v. Illinois, 359 U.S. 121, 122-24, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). To fit under the "sham prosecution" exception, the federal prosecution of Beverly Claiborne would have to be proved to be "a sham and a cover for a [state] prosecution, and thereby in essential fact another [state] prosecution." Bartkus, 359 U.S. at 124, 79 S.Ct. 676. If a "sham prosecution" were shown, then the dual sovereignty doctrine would not apply and the defendant's federal charges would be barred by Double Jeopardy.

In direct response to the Supreme Court's creation of the dual sovereignty doctrine, the United States Department of Justice formulated an internal policy, referred to as the Petite policy. Rinaldi, 434 U.S. at 28, 98 S.Ct. 81 (citations omitted). The Petite policy "establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding." Manual § 9-2.031(A). See also Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960) (granting the federal government's motion to vacate a judgment in the district court where the conspiracy to make false statements to an agency of the United States indictment against the defendant arose from the same acts and transactions as a different indictment for suborning perjury). The Petite policy further provides:

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain...