U.S. v. Dunbar

• Decision Date: 26 March 1979
• Docket Number: 78-5050,Nos. 78-1602,s. 78-1602
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William George DUNBAR, M.D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1190

591 F.2d 1190

UNITED STATES of America, Plaintiff-Appellee, v. William George DUNBAR, M.D., Defendant-Appellant.

Nos. 78-1602, 78-5050.

United States Court of Appeals, Fifth Circuit.

March 26, 1979.

Randall M. Clark, Brunswick, Ga., for defendant-appellant.

Wm. T. Moore, Jr., U. S. Atty., Katherine L. Henry, William H. McAbee, Asst. U. S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before WISDOM, COLEMAN and RONEY, Circuit Judges.

COLEMAN, Circuit Judge.

In United States v. Dunbar, 590 F.2d 1340, we affirmed the conviction of Dr. William George Dunbar on an indictment charging a Conspiracy to possess Methaqualone with intent to distribute. In that case, the jury verdict of guilty was returned on December 22, 1977. Notice of appeal was filed the next day. Dunbar, however, was not sentenced until January 19, 1978, necessitating the filing of an amended notice of appeal.

In another indictment, the grand jury had charged Dr. Dunbar with five counts of distributing Schedule II controlled substances by means of prescriptions not in the usual course of professional practice for a legitimate medical purpose, 21 U.S.C. § 841(a)(1).

On December 27, 1977, five days after his conviction in the conspiracy case (No. 78-5037), Dr. Dunbar pleaded that conviction as double jeopardy, barring prosecution on the pending indictment, arguing that the same evidence used to convict him in the conspiracy trial would be used against him in the trial for the substantive offenses. On December 30, Dunbar filed papers evidencing his desire to appeal the "overruling of his former jeopardy plea", although the record contains no written order evidencing that this unfavorable action had been taken.

Trial on the possession indictment was set for January 3. At 8:30 that morning, Dunbar filed a "plea in bar" asserting that the government was "collaterally estopped" in the forthcoming trial from using the evidence which had been used in the previous trial on the conspiracy indictment. At 9:00 the trial judge denied that motion. At the same time he issued a detailed order which overruled the plea of former jeopardy and disposed of various other defense motions. Dunbar immediately filed a notice of appeal from this denial of his prior jeopardy plea. Instead of halting the trial so that Dunbar could pursue his appeal on the double jeopardy issue, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the trial judge thought that the motion was "without merit" and began the trial at 11:35 o'clock. ¹ The trial ended the next day with a jury verdict of guilty on all five counts.

Dunbar had not sought a writ of mandamus or prohibition in an effort to halt the

trial. In fact, on March 3 Dr. Dunbar's appeal on the double jeopardy issue was dismissed for failure to docket. He then moved to reinstate it, and that motion was granted by a judge of this Court. That reinstated appeal was docketed as No. 78-1602. The subsequent appeal from the judgment of conviction was docketed as No. 78-5050.

NO. 78-1602, THE APPEAL ON THE PRIOR JEOPARDY ISSUE

A dominant factor in this interlocking procedural situation is that there can be no doubt, absolutely no doubt, that Dunbar's double jeopardy plea was totally devoid of merit. As far as we are aware, no court in this country has ever held that a defendant may not be indicted and tried once for a conspiracy and thereafter tried for the crime of distributing controlled substances, especially where, as here, the drug named in the conspiracy count is not the same as the drugs specified in the substantive counts. But cf. Abbate v. United States, 359 U.S. 187, 196-201, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (Brennan, J., concurring). A conspiracy to commit a crime and the crime itself are separate offenses and a defendant may be tried in separate trials for these offenses. E. g., Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Ballard, 5 Cir. 1978, 586 F.2d 1060, 1064-66; King v. United States, 5 Cir. 1978, 565 F.2d 356; Curtis v. United States, 5 Cir. 1977, 546 F.2d 1188, Cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). A defendant is not placed in double jeopardy when the same witnesses testify in the second trial and much of the same evidence is introduced. E. g., Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954); King v. United States, 5 Cir. 1978, 565 F.2d 356.

In United States v. Smith, 5 Cir. 1978, 574 F.2d 308, we dealt with a claim nearly identical to that raised by Dr. Dunbar. There we stated:

The double jeopardy clause provides three related 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.

United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975), Quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Appellant seeks to invoke the second of these protections. In support of his double jeopardy claim, appellant notes that of the 74 overt acts alleged in this indictment, 5 relate to attempts to bribe or enlist the aid of state officials in obtaining marijuana. Since these acts had also been alleged to support his earlier marijuana conspiracy conviction, appellant argues that the present prosecution is for the "same offense" charged in his previous marijuana trial.

The classic test for determining whether two offenses are "the same" for double jeopardy purposes was announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger requires that each offense be examined to ascertain "whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182; Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). Under the Blockburger test, also known as the "same evidence" rule, it is possible for a single criminal act or conspiracy to give rise to multiple separate offenses. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (defendant convicted and received consecutive prison terms for three separate offenses arising out of single narcotics sale); United States v. Houltin, 525 F.2d 943 (5th Cir. 1976) (single conspiratorial agreement violated two specific conspiracy statutes; defendant's consecutive sentences affirmed), Vacated on other grounds sub nom. Croucher v. United 574 F.2d at 309-10.

States, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 745 (1977). Application of the test focuses on the statutory elements of the offenses charged. "If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975). A cursory examination of the offenses involved here reveals that they are not the same.

We have also dealt with the collateral estoppel component of the double jeopardy clause, which, by Dunbar's citations of authority, is apparently the precise argument that he advances. In Hardwick v. Doolittle, 5 Cir. 1977, 558 F.2d 292, we stated:

A second prosecution for the "same offense" also occurs when the state attempts to relitigate issues of fact necessarily determined in a defendant's favor at a prior trial. Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The collateral estoppel component of the double jeopardy clause, Id. at 445, 90 S.Ct. 1189, therefore prohibits the state from relitigating an issue against a particular defendant unless "taking into account the pleadings, evidence, charge, and other relevant matter, . . . a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration," Id. at 444, 90 S.Ct. at 1194 (citation omitted); See Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972). In the instant case, however, no factfindings favorable to appellant were necessarily part of the first jury's verdict: he was convicted on both counts of the original indictment. In retrying him on those counts, the state did not seek to deny him the benefit of a previous favorable verdict. And because the two other counts of the second indictment were additional charges, appellant cannot claim that the first jury implicitly acquitted him of those charges. Cf. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (jury returned no verdict on greater offense, but convicted on lesser included offense; Held, defendant may not be retried for greater offense after conviction is overturned, the jury having implicitly acquitted him of that greater offense). Finally, since the double jeopardy clause does not require the state to join in a single proceeding all charges arising from one criminal episode or transaction, compare Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), With id. at 448-460, 90 S.Ct. 1189 (Brennan, J., concurring), the fact that the state did not try appellant on all four counts at the first trial does not by itself show that appellant was twice put in jeopardy.

558 F.2d at 298.

Thus, Dunbar's double jeopardy plea had no merit. Indeed, it was both frivolous and dilatory.

The Judgment of the District Court overruling the pleas of double jeopardy and

collateral estoppel is Affirmed. NO. 78-5050, THE APPEAL

FROM THE CONVICTION ON THE SUBSTANTIVE OFFENSES

This disposition of the former jeopardy plea does not settle the...