U.S. v. Eley, 91-8536

• Citation: 968 F.2d 1143
• Decision Date: 14 August 1992
• Docket Number: No. 91-8536,91-8536
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger Thomas ELEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1143

968 F.2d 1143

UNITED STATES of America, Plaintiff-Appellee, v. Roger Thomas ELEY, Defendant-Appellant.

No. 91-8536.

United States Court of Appeals, Eleventh Circuit.

Aug. 14, 1992.

Dale Jenkins, Darien, Ga.; Guy E. Davis, Jr.; and Jerome J. Froelich, Jr., McKenney & Froelich, Atlanta, Ga., for defendant-appellant.

W. Leon Barfield and H. Allen Moye, Asst. U.S. Attys., S.D. Ga., Atlanta, Ga., for plaintiff-appellee.

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

Before FAY and BIRCH, Circuit Judges, and KAUFMAN, ^* Senior District Judge.

FRANK A. KAUFMAN, Senior District Judge:

Roger T. Eley was indicted in 1989 by a federal grand jury for the Northern District of Georgia on charges of conspiracy to possess cocaine with the intent to distribute and of conspiracy to launder money. Eley was tried, convicted, and sentenced in the Spring of 1990, upon those conspiracy charges in the Northern District. On December 12, 1990 a federal grand jury for the Southern District of Georgia indicted Eley on charges of conspiracy to import cocaine, of conspiracy to launder money, and of possession with intent to distribute cocaine. Those latter charges arose out of the same course of conduct for which Eley had previously been tried and convicted in the Northern District.

The Northern District indictment, charging only conspiracies, related to the approximate period of 1985 to 1988, and involved, inter alia, contentions by the government that several persons delivered quantities of cocaine to Eley, who in turn delivered the cocaine to another co-defendant. The Southern District indictment, on the other hand, involved both charges of conspiracy and substantive crime. The substantive charges relating to Eley, which were alleged in that indictment, were that Eley possessed with intent to distribute: six kilograms of cocaine in January-February 1987 (Count 3); three kilograms of cocaine in June 1987 (Count 5); ten kilograms of cocaine in September 1987 (Count 6); and fifteen kilograms of cocaine in February 1988 (Count 7).

Eley moved to dismiss the Southern District indictment on double jeopardy grounds. A United States Magistrate Judge recommended dismissal of the two conspiracy counts but not the substantive possession counts. After Eley filed objections to the Magistrate Judge's Report, the District Judge, following oral argument, adopted the Magistrate Judge's Report and Recommendation. Eley, in this interlocutory appeal, contends that the failure of the court below, that is, the United States District Court for the Southern District of Georgia, to dismiss the indictment in its entirety subjects him to double jeopardy in violation of the Fifth Amendment to the United States Constitution. ¹

I.

The Northern District conspiracy charges were brought under 21 U.S.C. § 846, which provides:

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

During the trial in the Northern District, the government produced evidence that in early 1987 six kilograms of cocaine were delivered to Eley and another co-defendant. The Government has proffered that it will use that same evidence to prove Count 3 of the Southern District indictment. During the Northern District trial, a witness testified that he delivered to Eley three kilograms of cocaine on one occasion, ten kilograms on another occasion and fifteen kilograms on a third occasion. The Government states that it will use that evidence to prove Counts 5, 6 and 7 of the Southern District indictment.

Eley was sentenced, following his Northern District conviction under the Federal Sentencing Guidelines, to 420 months. That sentence level was reached because the District Court attributed to Eley all of the quantities of cocaine referred to in the preceding paragraph of this opinion.

The Southern District substantive charges are brought under 21 U.S.C. § 841(a)(1), which provides:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....

The gravamen of Eley's argument in this interlocutory appeal is that he is being prosecuted in the Southern District based upon the same evidence for which he was convicted, and upon which the length of his sentence was determined, in the Northern District. As the Government observes, the issues to be decided by this Court in this appeal are whether a prior conviction and a prior sentence for conspiracy precludes subsequent prosecution and sentencing for substantive offenses, the evidence of which was introduced and apparently relied upon in the prior prosecution, conviction and sentencing for the conspiracy.

II.

The Fifth Amendment to the United States Constitution provides in part that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. The Supreme Court has stated that the Double Jeopardy Clause consists of three separate constitutional 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.' " Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 2089, 109 L.Ed.2d 548 (1990) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)) (emphasis added).

The starting point for double jeopardy analysis has historically been application of the test enunciated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932): "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Id. (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911)).

More recently, in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), Justice Brennan wrote: "We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Eley asserts that Grady establishes "conduct proved or punished" as the proper standard by which double jeopardy protection should be measured. ²

The Supreme Court has recently clarified the application of Grady as it relates to cases involving multiple prosecutions for substantive offenses, on the one hand, and conspiracy to commit those offenses, on the other hand. In United States v. Felix, --- U.S. ----, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992), after discussing Grady and other cases predating Grady, Chief Justice Rehnquist stated:

But long antedating any of these cases, and not questioned in any of them, is the rule that a substantive crime, and a conspiracy to commit that crime, are not the "same offense" for double jeopardy purposes.... [W]e choose to adhere to the Bayer- Pinkerton line of cases dealing with the distinction between conspiracy to commit an offense and the offense itself. These are separate offenses for double jeopardy purposes.

Id. 112 S.Ct. at 1384. In United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947), the Supreme Court had observed that "the same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself." Id. at 542, 67 S.Ct. at 1399. Likewise, in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Court had written that "the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses ..." and as such double jeopardy was not a bar. Id. at 643, 66 S.Ct. at 1182.

In Felix, Chief Justice Rehnquist also alluded to the widely divergent interpretations of Grady among the circuits--a number of which are discussed by Eley in his brief in support of this appeal--and concluded:

We think it best not to enmesh in such subtleties the established doctrine that a conspiracy to commit a crime is a separate offense from the crime itself. Thus, in this case, the conspiracy charge against Felix was an offense distinct from any crime for which he had been previously prosecuted, and the Double Jeopardy Clause did not bar his prosecution on that charge.

Id. 112 S.Ct. at 1385. In sum, the Supreme Court has made it abundantly clear that whatever evidence is introduced in a trial on a substantive offense, later prosecution for conspiracy based upon the same evidence cannot amount to a double jeopardy violation because the conspiracy and the substantive offense are distinct. Herein the situation is reversed. The prior Northern District charges were for conspiracy. The pending Southern District charges involve substantive crimes. That, however, is a distinction without a difference.

Felix was charged in Missouri with attempting to manufacture methamphetamine in that state. To counter Felix's defense of lack of criminal intent, the prosecution introduced evidence that he had manufactured methamphetamine in Oklahoma earlier during the same year involved in the Missouri case. Felix was convicted of the attempt charge in Missouri. Subsequently, he was indicted in the Eastern District of Oklahoma upon charges of conspiracy to manufacture, possess and distribute methamphetamine. Among the overt acts alleged in support of the conspiracy charge, two relating to Felix were based upon...