U.S. v. Dempsey, 85-3163

• Citation: 806 F.2d 766
• Decision Date: 25 November 1986
• Docket Number: No. 85-3163,85-3163
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael U. DEMPSEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 766

806 F.2d 766

UNITED STATES of America, Plaintiff-Appellee, v. Michael U. DEMPSEY, Defendant-Appellant.

No. 85-3163.

United States Court of Appeals,

Seventh Circuit.

Argued May 7, 1986.

Decided Nov. 25, 1986.

Lawrence J. Fleming, St. Louis, Mo., for defendant-appellant.

Thomas Coleman, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before COFFEY and EASTERBROOK, Circuit Judges, CAMPBELL, Senior District Judge. ^*

WILLIAM J. CAMPBELL, Senior District Judge.

In October, 1984 defendant-appellant Michael U. Dempsey was indicted in the Eastern District of Michigan (hereinafter the "Michigan indictment") for conspiring to possess marijuana with the intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The conspiracy was alleged to have taken place from January, 1974 through December, 1982 in the Eastern District of Michigan "and elsewhere." In February, 1985 Dempsey negotiated a guilty plea to this charge. Approximately seven months later, in September, 1985, Dempsey was again indicted for conspiring to possess and distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 846. This second indictment, the subject of the instant action, (and hereinafter referred to as the "second or Southern Illinois indictment") alleged acts covering a time period from April, 1977 to December, 1983 in the Southern District of Illinois "and elsewhere." Dempsey now brings this interlocutory appeal under the authority of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and Abney v. United States, 431 U.S. 651, 660, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977) claiming the district court erred when it refused to dismiss the second indictment under the Double Jeopardy Clause of the Fifth Amendment. He also claims the indictment was fatally vague and failed to specifically inform him of the illegal conduct which he is alleged to have committed, as required by the Sixth Amendment and Rule 7 of the Federal Rules of Criminal Procedure. For the reasons set forth below, we affirm.

We start with the well-established rule that, "In claiming double jeopardy based on more than one conspiracy prosecution, a defendant bears the burden of establishing that the prosecutions are for the same offense in law and in fact." U.S. v. Castro, 629 F.2d 456, 461 (7th Cir.1980). Defendant Dempsey claims his burden is merely to make a "nonfrivolous showing" that the two indictments cover the same conspiracy. Thereafter, the burden shifts to the government to show the two prosecutions are for separate offenses. (See, for example, U.S. v. Thomas, 759 F.2d 659 (8th Cir.1985), U.S. v. Stricklin, 591 F.2d 1112 (5th Cir.1979)). Still, the issue that remains is what constitutes a nonfrivolous showing and has Dempsey sufficiently made such a showing? The Thomas and Stricklin line of cases require a defendant to make a prima facie showing that the prosecutions cover the same conspiracy:

The defendant might make the necessary prima facie nonfrivolous showing of double jeopardy by reference to the indictments, as supplemented by a bill of particulars if appropriate and ordered, and other record material, alone. He might find it necessary to offer his own testimony at the pretrial hearing. If the latter course is followed, the defendant will not thereby waive the privilege against self-incrimination and his testimony may not subsequently be used against him at the trial on the merits. Stricklin, 591 F.2d at 1118.

As we recognized in Castro, defendant's burden, "... is not an easy one because '[b]y the nature of the crime, the precise bounds of a single conspiracy seldom will be clear from the indictment alone.' " Id at 461 (citing U.S. v. Marable, 578 F.2d 151, 153 (5th Cir.1978)). "... [c]ourts therefore will look to both the indictments and the evidence and consider such factors as whether the conspiracies involve the same time period, alleged co-conspirators and places, overt acts, and whether the two conspiracies depend on each other for success." Id. at 461. We recently stated:

"A defendant claiming that he has been subjected to double jeopardy bears the burden of establishing that both prosecutions are for the same offense.... The defendant must show that 'the evidence required to support a conviction on one indictment would have been sufficient to warrant a conviction on the other' indictment."

U.S. v. Roman, 728 F.2d 846, 857 (7th Cir.1984) (citing U.S. v. West, 670 F.2d 675 (7th Cir.1982)).

Dempsey claims he sustained his burden of proof on the double jeopardy issue by introducing evidence the marijuana he purchased from the Shure brothers in Michigan, the subject of the initial Michigan indictment, was ultimately transported to Southern Illinois, the location covered by the second, instant indictment. Dempsey notes Jack Barenfanger and Robert Picard, co-conspirators in the Michigan indictment, verified this concrete Michigan-Southern Illinois connection. He also points to a colloquy between himself and the Court of the Eastern District of Michigan in which he admitted the Michigan-Southern Illinois connection and his continuous dealings covering these locations during this time period.

It may very well be that defendant Dempsey was continuously involved in a conspiracy to purchase drugs in Michigan and distribute them in Illinois from the mid-1970's to the early 1980's. However, it is quite conceivable that this was not the only conspiracy he was involved in during this time period. Dempsey could have been purchasing drugs from the Shure brothers in Michigan in 1978, for example, and still have been purchasing additional drugs from independent sources or dealers in Southern Illinois during the same time period. Significantly, no person named in the Michigan indictment was named in the Southern Illinois indictment. Barenfanger failed to...