U.S. v. Cruce, 92-1843
| Decision Date | 03 May 1994 |
| Docket Number | No. 92-1843,92-1843 |
| Citation | 21 F.3d 70 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James R. CRUCE and Thomas A. Burger, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bruce C. Houdek, James, Millert, Houdek & Tyrl, Kansas City, MO, for Cruce.
Paul D. Stickney, Asst. Federal Public Defender, Ira Kirkendoll, Federal Public Defender, Dallas, TX, for Burger.
Robert W. Blair, Atty., U.S. Dept. of Justice, Dallas, TX, for appellee.
Appeals from the United States District Court for the Northern District of Texas.
Before GOLDBERG, JOLLY, and BARKSDALE, Circuit Judges.
Cruce and Burger face a criminal prosecution, which they seek to bar on grounds of double jeopardy. They have been previously convicted and sentenced in Kansas for a bank-fraud conspiracy involving a savings and loan. They now stand indicted in Texas for a bank-fraud conspiracy affecting the same institution. They contend that the Texas prosecution is barred by the Double Jeopardy Clause because the conduct that now constitutes the basis for the Texas prosecution was previously considered in Kansas as relevant conduct under the Sentencing Guidelines. We hold that the Double Jeopardy Clause does not bar punishment of the Texas conspiracy offense. This is true for the simple reason that the Texas offense is separate and distinct from the Kansas offense. Accordingly, we affirm the district court's ruling denying the defendants' motion to dismiss the indictment and remand the case for further prosecution.
James Cruce was the president and a director of Peoples Heritage Federal Savings and Loan Association ("Peoples Heritage"). Thomas Burger was executive vice-president, chief lending officer, and a director of Peoples Heritage. Cruce and Burger engaged in various schemes at the expense of Peoples Heritage and its federal insurer, the Federal Home Loan Bank Board (the "FHLBB").
In Kansas, on January 10, 1991, a federal grand jury returned two indictments against Cruce and Burger for various crimes concerning their dealings with Peoples Heritage and the FHLBB from 1984 through 1990. The first Kansas indictment charged Cruce and Burger, along with four other defendants, 1 with a bank-fraud conspiracy under 18 U.S.C. Sec. 371 and 18 U.S.C. Sec. 1344, and making false statements to the government in violation of 18 U.S.C. Sec. 1001. The second Kansas indictment charged Cruce, Burger, and five other defendants 2 with conspiracy to commit bank fraud under 18 U.S.C. Sec. 371, bank fraud under 18 U.S.C. Sec. 1344, aiding and abetting under 18 U.S.C. Sec. 2, and making false statements to the government in violation of 18 U.S.C. Sec. 1001. In exchange for Cruce's and Burger's guilty pleas to the conspiracy and bank-fraud counts charged in the second Kansas indictment, the government dropped all the counts in the first Kansas indictment and the remaining counts in the second indictment.
The Kansas district court adopted the presentence reports in setting Cruce's and Burger's sentences. The presentence reports included a $6.5 million transaction known as the "Flower Mound Loan." This transaction occurred in Texas and was not listed in the Kansas indictments. Cruce and Burger each received the maximum offense level of 24, which U.S.S.G. Secs. 2F1.1(a) and (b) provide for losses in excess of $80 million caused by fraud. The presentence reports then enhanced both Cruce's and Burger's offense levels by four points under U.S.S.G. Sec. 3B1.1 because of each defendant's extensive involvement in the broad conspiracy that caused severe damage to the savings and loan and its federal insurer. Other adjustments resulted in offense levels of 34 for Cruce and 33 for Burger. These offense levels, in turn, resulted in prison terms of 168 months for Cruce and 144 months for Burger. Cruce and Burger also received fines of $8 million and $6 million, respectively.
On December 12, 1991, a federal grand jury in Dallas, Texas, returned an indictment against Cruce and Burger. The Texas indictment focuses on a conspiracy encompassing three bribe and kickback transactions--including the Flower Mound Loan--that Cruce and Burger allegedly effected with James McClain from 1984 to 1986, as officers of Peoples Heritage. The indictment charged conspiracy under 18 U.S.C. Sec. 371, unlawful receipt under 18 U.S.C. Sec. 215(a), bank fraud under 18 U.S.C. Sec. 1344, wire fraud under 18 U.S.C. Sec. 1343, and misapplication of funds under 18 U.S.C. Sec. 657. Cruce and Burger filed motions to dismiss the Texas indictment on double jeopardy grounds, arguing that the Texas proceeding would result in a second punishment for the conspiracy encompassing the Flower Mound Loan conduct that had been reflected in the Kansas presentence report. The district court denied the motions, and Cruce and Burger filed this appeal.
In this case, we address the Double Jeopardy Clause as it bars a second punishment for a crime that has already been once punished. The criminal conduct that was not charged or prosecuted in the Kansas case was nevertheless used, as relevant conduct under the Sentencing Guidelines, to enhance the punishment for the Kansas offense. Now, the same conduct is the subject of this Texas indictment. We must determine whether a punishment in this case would constitute a second punishment barred by the Double Jeopardy Clause.
The text of the Double Jeopardy Clause provides, "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V (emphasis added). The Supreme Court has interpreted the Clause as providing protections against multiple prosecutions and 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). In applying the protections against a second prosecution and a second punishment, the traditional focal point of double jeopardy analysis has been the "offense" for which the defendant is prosecuted and punished--not the conduct criminalized by, or related to, that offense. In Gavieres v. United States, 220 U.S. 338, 345, 31 S.Ct. 421, 423, 55 L.Ed. 489 (1911), the Supreme Court held that even though the defendant only made one statement, double jeopardy principles did not preclude a second prosecution for that statement simply because the same conduct was involved. This was so because the same conduct constituted two separate "offenses" under the same elements test. Id. Similarly, in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court provided that even though the defendant only made one sale of narcotics, double jeopardy principles did not preclude a second punishment for the same conduct because that conduct constituted two separate "offenses" under the same elements test. Thus, the focal point of the double jeopardy protections against a second prosecution in Gavieres and a second punishment in Blockburger was the "offense" for which the defendants were prosecuted, convicted, and punished--not the conduct encompassed by those offenses. 3
Because the Double Jeopardy Clause focuses on the "offense" for which the defendant is prosecuted and convicted, the intent of the legislature is important because it is the legislature that defines the "offense" and prescribes the punishment for that offense. See Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). 4 In interpreting these statutes, we use the Blockburger rule of construction under which we presume that when the legislature writes two criminal statutes, and each statute contains an independent element from the other statute, it intends to define two separate offenses that generally entail two punishments. See Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983). 5 Once established, the Blockburger presumption, at least with respect to separate punishments for separate offenses, can only be overcome by a "clear indication of contrary legislative intent." Id. at 367, 103 S.Ct. at 679.
In the instant case, we first determine that Cruce and Burger have established a prima facie double jeopardy challenge that the Texas indictment charges an offense that encompasses conduct considered in setting sentence for the Kansas offenses. Second, we hold that the Double Jeopardy Clause continues to focus on the Kansas and Texas offenses instead of any conduct related to those offenses. Third, we hold that the Kansas conspiracy offense is a separate offense from the Texas conspiracy offense, thus, evoking the presumption that Congress intended a separate punishment for each. Fourth, we hold that Congress has not (in the Sentencing Guidelines) evinced the clear intent necessary to preclude punishment for a separate and distinct offense, even though the underlying conduct has been used previously to enhance another sentence. In making these determinations, we review Cruce and Burger's legal challenge de novo. United States v. Deshaw, 974 F.2d 667, 669 (5th Cir.1992).
In order to establish a double jeopardy claim, the defendant must first present a prima facie claim that double jeopardy principles have been violated. See generally United States v. Goff, 847 F.2d 149, 169 (5th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988); United States v. Stricklin, 591 F.2d 1112, 1118 (5th Cir.1979), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). Once the defendant proffers sufficient proof to support a nonfrivolous claim, the burden shifts to the government to show that double jeopardy principles do not bar the proceeding. Id. at 1118-19.
Cruce and Burger contend that they have met the burden of establishing a nonfrivolous double jeopardy claim by showing...
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