U.S. v. Deshaw
| Citation | 974 F.2d 667 |
| Decision Date | 14 October 1992 |
| Docket Number | No. 91-3131,91-3131 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ricou DESHAW, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Chris J. Mancini, Miami, Fla., for defendant-appellant.
Peter M. Thomson, Peter G. Strasser, Asst. U.S. Attys., and Harry Rosenberg, U.S. Atty., New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, Chief Judge, WILLIAMS and DUHE, Circuit Judges.
In this permitted interlocutory appeal Ricou Deshaw challenges the denial of his motion to dismiss the indictment against him on the grounds that it violates the double jeopardy clause of the fifth amendment. We affirm in part and reverse in part.
On June 1, 1989, a grand jury sitting in the Southern District of Alabama returned an eighteen count indictment against Deshaw and twenty-two other defendants. Drafted broadly, the indictment charged Deshaw with illegal conduct occurring from 1982 to 1989 "within the Southern District of Alabama, the Northern District of Alabama, the Middle District of Florida, the Southern District of Florida, the Eastern District of Louisiana," several foreign countries and elsewhere.
Deshaw was named in fourteen of the counts. Count two of the indictment charged Deshaw with engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. Of the seven predicate acts supporting the CCE charge, four involved the importation and possession with intent to distribute marihuana. Counts three and four, the conspiracy counts, charged Deshaw with conspiracy to import cocaine and marihuana, and conspiracy to possess with intent to distribute cocaine and marihuana in violation of 21 U.S.C. §§ 963 and 846, respectively. The remaining counts charged Deshaw with substantive offenses involving the importation and possession of cocaine as well as weapons violations.
Trial commenced on September 12, 1989 against five of the original twenty-two defendants. On October 17, 1989 the jury returned guilty verdicts for three of the defendants, acquitting Deshaw and one other defendant of all charges.
On July 19, 1990, a grand jury in the Eastern District of Louisiana returned an eleven count indictment against Deshaw and four other defendants for their involvement in the importation of marihuana into "the Eastern District of Louisiana and elsewhere" between May 1985 and April 1987. Count one charged Deshaw and his co-conspirators with the conduct of a racketeering enterprise in violation of 18 U.S.C. § 1962(d). The indictment alleged five predicate acts of racketeering, four of which charged Deshaw with violations surrounding the importation and possession of marihuana between May 1985 and January 1986.
Counts two and three, the conspiracy counts, charged Deshaw with engaging in a conspiracy to import 6,000 pounds of marihuana and to possess that marihuana with intent to distribute in violation of 21 U.S.C. §§ 963 and 846, respectively, between May 1985 and January 1986. Counts six through nine charged Deshaw with substantive violations of importation and possession with intent to distribute marihuana in violation of 21 U.S.C. §§ 841(a)(1), 952 and 960. Counts ten and eleven, the interstate travel violations, charged Deshaw with travelling between Belize and the Eastern District of Louisiana in aid of racketeering in violation of 18 U.S.C. § 1952.
The Louisiana enterprise allegedly consisted of about eighteen individuals. The government contends that these individuals would obtain marihuana in Belize and smuggle it into Louisiana by air drops from low altitudes over secluded waterways. A total of about 6,000 pounds of marihuana, 2,000 pounds per drop, was allegedly imported into the New Orleans area on three separate occasions: July, August, and December, 1985.
Deshaw moved to dismiss the Louisiana indictment on grounds that double jeopardy barred prosecution. In essence Deshaw argued that although the Louisiana grand jury drafted its indictment more narrowly--involving only marihuana--it charged the same conduct involved in the Alabama prosecution.
Following a hearing in which the parties submitted briefs to the court and the government presented in camera testimony, the district court denied Deshaw's motion to dismiss the indictment on double jeopardy grounds. Pursuant to Abney v. United States, 1 Deshaw timely appealed.
On appeal the district court's denial of a motion to dismiss the indictment on the ground of double jeopardy is reviewed de novo. 2 We accept the underlying factual findings of the district court unless clearly erroneous. 3
Deshaw contends that in view of his previous prosecution in Alabama, double jeopardy principles prevent his prosecution under the Louisiana indictment. Despite the "uncertain state of the Supreme Court's double jeopardy jurisprudence," 4 there remains a constant: the fifth amendment provides that no one shall "be subject for the same offence to be twice put in jeopardy of life or limb." 5 Thus, "the double jeopardy clause guarantees that the government, 'with all its resources and power [will] not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity....' " 6 In this case, Deshaw seeks protection from an alleged second prosecution for an offense of which he has already been acquitted.
The Supreme Court described the initial test for determining whether two offenses are the same for double jeopardy purposes in Blockburger v. United States. 7 We ask "whether the offense charged in the subsequent prosecution 'requires proof of a fact which the other does not.' " 8 If "application of [Blockburger] reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other ... the subsequent prosecution is barred." 9 As recognized by the Supreme Court, however, Blockburger does not constitute the entire double jeopardy inquiry in the context of successive prosecutions. 10 We also must test the second prosecution to determine whether it is barred under one of the narrowly defined exceptions enunciated in Ashe v. Swenson, 11 Harris v. Oklahoma, 12 and most recently, Grady v. Corbin. 13
We note that the defendant bears the initial burden of establishing a prima facie claim of double jeopardy. 14 If the defendant does so, the burden shifts to the government to demonstrate by a preponderance of the evidence that the indictment charges a crime separate from that for which the defendant previously was placed in jeopardy. 15 The district court found that Deshaw made the requisite showing, but concluded that the government had met its burden by proving that the Louisiana indictment charges him with conduct for which he has not previously been placed in jeopardy. We, in turn, examine Deshaw's double jeopardy contentions and the offenses charged in the Louisiana and Alabama indictments.
Count one of the Louisiana indictment charges Deshaw with the conduct of a RICO conspiracy from May 1985 to April 1987 in violation of 18 U.S.C. § 1962(d). Of the five predicate acts of racketeering charged, one involves conspiracy to import and distribute marihuana in violation of 21 U.S.C. § 963 and § 846, and three others involve the actual importation of marihuana into Louisiana during 1985. While the Alabama indictment did not charge a RICO violation, it did allege a 21 U.S.C. § 848 CCE charge which listed as predicate offenses the conspiracy to import marihuana, importation of marihuana, and possession of marihuana with intent to distribute. The Alabama indictment also charged § 963 and § 846 conspiracy to import and conspiracy to distribute marihuana counts. Deshaw claims that the Alabama CCE and conspiracy charges bar the subsequent Louisiana RICO charge. We are not so persuaded.
In the context of multiple punishment, we previously have held that a RICO charge is not a lesser included offense to a corresponding CCE charge. 16 RICO offenses require "proof of facts and elements not required to be proved under § 848, even though there is a substantial overlap in the proof offered to establish the crimes." 17 Thus, as the district court aptly noted, the earlier CCE prosecution does not bar the subsequent RICO prosecution in the case at bar.
The previous conspiracy charges present more of a problem. We have long held that the government may first prosecute a defendant for the predicate acts which form the basis of a RICO charge--including conspiracy charges--and subsequently prosecute him for a substantive violation of RICO under 18 U.S.C. § 1962(c). 18 The more difficult question, however, is whether prosecutions for importation and distribution conspiracies under 21 U.S.C. §§ 963 and 846 bar a subsequent prosecution for a RICO conspiracy charge under 18 U.S.C. § 1962(d) when based on the same conduct. 19 We hold that they do not. 20
For guidance we turn to the Supreme Court's opinion in Garrett v. United States 21 which employed a two-step analysis for determining whether successive prosecutions run afoul of double jeopardy constraints. The first step is to determine whether Congress "intended that each violation be a separate offense." 22 If Congress did not, there is no statutory grounds for two prosecutions and the double jeopardy analysis is complete. If Congress intended separate prosecutions, the second step is to determine whether the subsequent prosecuted offense constitutes the "same offence" within the meaning of the double jeopardy clause. 23
In concluding that Congress intended permitting an earlier conviction to serve as a predicate act in a later RICO prosecution, we have noted that RICO's statutory language reflects...
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