U.S. v. Daniels, 88-1511

• Decision Date: 23 September 1988
• Docket Number: No. 88-1511,88-1511
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald R. DANIELS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1392

857 F.2d 1392

UNITED STATES of America, Plaintiff-Appellee, v. Donald R. DANIELS, Defendant-Appellant.

No. 88-1511.

United States Court of Appeals Tenth Circuit.

Sept. 23, 1988.

John S. Morgan, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellee.

Philip K. Blough II, Tulsa, Okl., for defendant-appellant.

Before HOLLOWAY, Chief Judge, and BRORBY and McWILLIAMS, Circuit judges.

McWILLIAMS, Circuit Judge.

In a one-count indictment filed on June 4, 1987, Donald Daniels and Larry Kochevar were charged with conspiracy to manufacture amphetamine in violation of 21 U.S.C. Sec. 846. Daniels filed a motion to dismiss based on double jeopardy grounds. After several hearings, the district court denied Daniels' motion. ^* Daniels appeals. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). We affirm.

The basis for Daniels' double jeopardy argument is that on August 19, 1986, he pled guilty to another charge of conspiring to manufacture amphetamines and was sentenced to four years imprisonment. Daniels' position is that the present indictment charges the same offense to which he earlier pled guilty, and that, accordingly, prosecution under the present indictment violates the Double Jeopardy Clause of the Fifth Amendment.

The government's position is that the conspiracy charged in the present indictment is a different conspiracy from the one to which Daniels previously pled guilty, and hence, there being two distinct conspiracies--not one continuing conspiracy--the double jeopardy argument is unavailing.

On January 9, 1986, Daniels was charged with his brother, John Daniels, and four others with conspiracy to manufacture amphetamines. Kochevar, Daniels' co-defendant in the instant case, was not named as a co-defendant in the first indictment. That particular conspiracy was alleged to have existed from January, 1981 through January, 1986. As indicated, Daniels pled guilty to that charge on August 19, 1986.

The present indictment was filed on June 4, 1987, and charges Daniels and Kochevar (and no one else) with conspiring to manufacture amphetamines from June 1, 1985 through June 30, 1986. Both indictments were filed in the United States District Court for the Northern District of Oklahoma, and each set forth different overt acts.

It is agreed that if two charges of conspiracy are in fact based on a defendant's participation in a single conspiracy, the former jeopardy clause bars the second prosecution. Wilkett v. United States, 655 F.2d 1007, 1014 (10th Cir.1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). As indicated, the government's position is that although the instant indictment charges a violation of the same statute as did the earlier indictment, the present indictment is based on a different set of facts than the earlier indictment and represents a separate and distinct conspiracy from the earlier one. Daniels argues that it was but one conspiracy.

In ruling on Daniels' motion to dismiss, the district court had before it a transcript of grand jury proceedings in the instant case as well as testimony adduced at trial on the first indictment, some of the defendants, although not Daniels, having gone to trial. Also, several witnesses testified at the hearing on the motion to dismiss. Based thereon, the district court found that Daniels' conspiracy with his brother and others,...