U.S. v. Crosby

• Citation: 20 F.3d 480
• Decision Date: 15 September 1994
• Docket Number: Nos. 92-3029,92-3068 and 92-3239,s. 92-3029
• Parties: UNITED STATES of America, Appellee, v. Ronald Bruce CROSBY, a/k/a Bruce R. Crosby, Appellant. UNITED STATES of America, Appellee, v. Jeffrey W. WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Bernard WILLIAMS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 480

20 F.3d 480

305 U.S.App.D.C. 290

UNITED STATES of America, Appellee, v. Ronald Bruce CROSBY, a/k/a Bruce R. Crosby, Appellant.

UNITED STATES of America, Appellee, v. Jeffrey W. WILLIAMS, Appellant.

UNITED STATES of America, Appellee, v. Bernard WILLIAMS, Appellant.

Nos. 92-3029, 92-3068 and 92-3239.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 25, 1993.

Decided April 8, 1994.

Rehearing and Suggestion for Rehearing In Banc

Denied Sept. 15, 1994, ^*

Appeals from the United States District Court for the District of Columbia (Criminal Nos. 91-559-08 91-559-07 & 91-559-12).

Sara Kopecki, of the bar of the Supreme Court of Virginia, pro hac vice, by special leave of court, argued the cause, for appellant Crosby. With her on the brief was Jensen E. Barber (appointed by this court).

Ralph D. Martin (appointed by this court), argued the cause, for appellant Bernard Williams.

Jonathan Zucker (appointed by this court), argued the cause, for appellant Jeffrey Williams.

Elizabeth H. Danello, Asst. U.S. Atty., argued the cause, for appellee. With her on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Roy W. McLeese, III and Russell D. Duncan, Asst. U.S. Attys.

Before: BUCKLEY, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

In this interlocutory appeal, Ronald Crosby, Jeffrey Williams and Bernard Williams challenge the denial of their motions to dismiss certain counts of an extensive indictment charging twenty-four individuals with numerous drug-related crimes. All three appellants assert the Double Jeopardy Clause of the Fifth Amendment bars their prosecution under Count 1 and Count 2 of the indictment, which charge them with, respectively, a substantive violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c), and engaging in a RICO conspiracy in violation of 18 U.S.C. Sec. 1962(d), because they were previously prosecuted for some or all of the criminal activity alleged in those counts. In addition, appellant Jeffrey Williams raises a similar double jeopardy challenge to Count 4 of the indictment, which charges him with conducting a "Continuing Criminal Enterprise" (CCE) in violation of 21 U.S.C. Sec. 848, and appellant Crosby asserts that Counts 1 and 2 should be dismissed for the additional reason that they violate the terms of earlier plea agreements. For the reasons set out below, we conclude that the district judge correctly rejected the appellants' double jeopardy arguments and that we lack jurisdiction to consider Crosby's interlocutory challenge based on the alleged plea agreement violations.

I.

On October 23, 1991, a superseding indictment (Indictment) was filed, charging 24 individuals with committing crimes in connection with the "R Street Organization," an alleged Washington, D.C. narcotics operation. The indictment identifies Crosby and J. Williams each as a "leader" and B. Williams as a "lieutenant" in the organization. Indictment at 6. This appeal concerns only Counts 1, 2 and 4 of the indictment as they relate to the three appellants.

Count 1 and Count 2 of the indictment charge each of the appellants with, respectively, substantive RICO and RICO conspiracy offenses, in violation of 18 U.S.C. Sec. 1962(c) and (d). ¹ "Criminal liability under RICO is premised on the commission of a 'pattern of racketeering activity,' defined by the statute as engaging in two or more related predicate acts of racketeering within a 10-year period." Alexander v. United States, --- U.S. ----, ----, 113 S.Ct. 2766, 2777, 125 L.Ed.2d 441 (1993) (Souter, J., concurring) (quoting 18 U.S.C. Sec. 1961(5)). Each of the appellants is charged with a common predicate act, namely conspiring with his 23 co-defendants to possess with intent to distribute cocaine, phencyclidine (PCP), cocaine base, heroin and marijuana between May 1983 and March 26, 1991, in violation of 21 U.S.C. Sec. 846. Indictment at 9-11. In addition, Crosby is charged with three specific predicate acts, each of which has been previously prosecuted; ² B. Williams is charged with five additional predicate acts, four of which have been previously prosecuted; ³ and J. Williams is charged with 13 specific predicate offenses, only one of which was previously prosecuted. ⁴ Among the predicates with which B. Williams and J. Williams are charged is possession with intent to distribute 500 grams of cocaine on September 12, 1990, for which each was arrested and indicted in 1990. On January 15, 1991 they were convicted of both conspiracy and substantive possession counts based on that misconduct. Crosby has been incarcerated since February 1989 and both Williamses have been incarcerated since their September 1990 arrests.

Count 4 of the indictment charges J. Williams with engaging in a CCE from May 1983 to March 26, 1991, in violation of 21 U.S.C. Sec. 848. ⁵ "A person has engaged in a CCE under 21 U.S.C. Sec. 848(c) if '(1) [he committed] a predicate offense violating a specified drug law (2) as part of a "continuing series" of drug violations (3) that occurred while [he] was acting in concert with five or more other people (4) to whom [he] occupied the position of an organizer or manager and from which series [he] (5) obtained substantial income or resources.' " United States v. Harris, 959 F.2d 246, 252 (D.C.Cir.) (quoting United States v. Markowski, 772 F.2d 358, 360-61 (7th Cir.1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1202, 89 L.Ed.2d 316 (1986)) (footnote omitted), cert. denied, Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 362, 364, 121 L.Ed.2d 275 (1992). To satisfy the CCE statute's requirement of "a continuing series of [narcotics] violations," the indictment charges J. Williams with sixteen predicate offenses. ⁶

Each defendant filed a motion with the district court to dismiss Counts 1 and 2 and J. Williams's motion sought dismissal of Count 4 as well. ⁷ The appellants' motions offered substantially the same arguments for dismissal that are raised on appeal. Crosby argued that (1) the Double Jeopardy Clause precludes a RICO prosecution based on the three predicate offenses already prosecuted and that the single unprosecuted predicate offense is insufficient by itself to establish a RICO "pattern" and (2) double jeopardy aside, the RICO prosecution violates terms of earlier plea agreements with the Government. B. Williams asserted his RICO prosecution under Counts 1 and 2 constitutes double jeopardy because the misconduct alleged in those counts is equivalent to the conspiracy of which he and J. Williams were convicted in 1991. J. Williams adopted B. Williams's ground for dismissal and argued that it should preclude his prosecution for CCE under Count 4 as well. The district court rejected each defendant's challenge by written order. ⁸ Each defendant then filed an interlocutory appeal challenging the court's denial of his motion. We affirm the trial court's disposition of those motions.

II.

The Double Jeopardy Clause states: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The double jeopardy guarantee "has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). To claim benefit of the guarantee, "a defendant must show that the two offenses charged are in law and fact the same offense." United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989). Our disposition of the double jeopardy challenges here is governed by the Supreme Court's opinion in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985).

In Garrett, the Supreme Court considered a defendant's claim that his prosecution for CCE in the Northern District of Florida, after an earlier guilty plea in the Western District of Washington to one of the alleged CCE predicates (marijuana smuggling), constituted double jeopardy. The Supreme Court analyzed the double jeopardy claim in two steps. First, the Court inquired whether Congress intended CCE to be a separate offense that may be prosecuted separately from its predicates and, having concluded that it did, next considered whether the successive prosecutions of the predicate and of the CCE offenses were constitutional under the Double Jeopardy Clause and held that they were. We undertake the same analysis, and reach the same conclusions, here.

The Supreme Court's decision in Garrett conclusively established that Congress intended CCE to be a separate offense from its predicate acts based on the language and history of the CCE statute. See 471 U.S. at 778-86, 105 S.Ct. at 2411-15. We find the statutory language and legislative history of RICO dictate a similar conclusion. ⁹ First, RICO itself defines "pattern of racketeering activity" to include "at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment ) after the commission of a prior act of racketeering activity." 18 U.S.C. Sec. 1961(5) (emphasis added). The highlighted statutory language at least suggests that Congress expressly contemplated that a RICO defendant might be incarcerated for one or more of the predicate offenses before being prosecuted for the RICO violation. Further, Congress's "Statement of Findings and Purpose" reinforces this intent, indicating that RICO was enacted to supplement rather than replace the existing predicate crimes and penalties. See Organized Crime Control Act...