U.S. v. Felix

• Decision Date: 28 February 1991
• Docket Number: No. 89-7058,89-7058
• Citation: 926 F.2d 1522
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Dennis FELIX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1522

926 F.2d 1522

UNITED STATES of America, Plaintiff-Appellee, v. Frank Dennis FELIX, Defendant-Appellant.

No. 89-7058.

United States Court of Appeals, Tenth Circuit.

Feb. 28, 1991.

John Raley, U.S. Atty., and Paul G. Hess, Asst. U.S. Atty., Muskogee, Okl., for plaintiff-appellee.

Scott M. Anderson, Dallas, Tex., for defendant-appellant.

Before HOLLOWAY, Chief Judge, SEYMOUR and ANDERSON, Circuit Judges.

HOLLOWAY, Chief Judge.

In No. 89-7058, defendant Felix appeals his conviction in the United States District Court, Eastern District of Oklahoma, on various counts of a multi-count indictment charging him, inter alia, with conspiracy, manufacture, and possession with intent to distribute methamphetamine. He alleges that this conviction forced him to "run the gauntlet" again following a previous conviction in the United States District Court, Western District of Missouri, for a single count of attempt-to-manufacture methamphetamine, in violation of the protections afforded by the Double Jeopardy Clause as recently construed in Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548

(1990). We agree that Felix has shown that his conviction on several counts in the Oklahoma trial entailed impermissible successive prosecutions for conduct underlying his Missouri conviction, and therefore we reverse his conviction on particular counts as enumerated below.

I

Defendant Felix was convicted following a jury trial in the Eastern District of Oklahoma for violations of 21 U.S.C. Secs. 846 and 841(a)(1) ("the Oklahoma trial"). ¹ He had previously been convicted in the Western District of Missouri on a single count of attempt-to-manufacture methamphetamine, in violation of Secs. 841(a)(1) and 846, ("the Missouri trial"). ² Both convictions arose from the following course of conduct and events:

Sometime in the Spring of 1987, a meeting (or meetings) between defendant Felix and unindicted co-conspirator Paul Roach resulted in an agreement whereby Felix would provide financing and other support to Roach, in exchange for Roach's instruction and assistance in "cooking" methamphetamine. A laboratory for the illegal enterprise was established in mobile trailers parked on an oil lease near Beggs, Oklahoma.

Felix and Roach obtained the chemicals and equipment for the Beggs lab in Tulsa, from George Dwinnells, a DEA confidential informant operating out of Tulsa Scientific, a chemical company. As a result of information provided by Dwinnells, the DEA seized the unattended Beggs lab on July 13, 1987, while a "cook" was in progress. Seized at the site were methamphetamine oil, illegal precursor chemicals, manufacturing equipment, and other evidence, some of which inculpated Felix.

Shortly thereafter, Felix phoned Dwinnells and arranged a meeting in a Tulsa bar. At the bar, under the observation of DEA agents, Felix ordered more chemicals and equipment from Dwinnells, secured by a $7,500 down payment. At Felix' behest Felix was tried before a jury on the attempt-to-manufacture charge in Springfield, Missouri on November 30, 1987 and convicted. Before his April 1989 Oklahoma jury trial, Felix moved to dismiss the instant indictment on double jeopardy grounds arising from the Missouri conviction. See Defendant Felix' Plea of Double Jeopardy and Motion To Dismiss The Indictment, TR. Vol I, Tab 2. The trial judge in the Eastern District of Oklahoma denied Felix' motion by Order, dated March 20, 1989, holding:

Dwinnells transported the newly purchased chemicals and equipment by trailer to a hotel in Joplin, Missouri. Under the watchful eyes of the DEA, tipped off by Dwinnells, a controlled transfer of the trailer and its contents to Felix occurred. He was arrested shortly thereafter.

The Sec. 846 offense in this indictment is for Conspiracy to Manufacture, in the Eastern District of Oklahoma.... None of the other substantive counts charge Attempting To Manufacture, and they are all alleged to have occurred in the Eastern District of Oklahoma. The court finds the offenses herein are separate and distinct from defendant's conviction in Missouri, and his double jeopardy argument is without merit.

TR. Vol. I, Tab 24, at 9 (emphasis in original).

II

On appeal, Felix raises only one issue--that he was subjected to double jeopardy in violation of the Fifth Amendment, specifically the guarantee against being twice put on trial for the same offense. He premises this claim of error on the denial of his motion to dismiss based on double jeopardy grounds. For reasons given below, we are convinced that the Double Jeopardy Clause as interpreted recently in Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), requires the reversal of most of Felix' convictions. The trial judge did not have the benefit of that recent opinion.

The Double Jeopardy Clause affords three guarantees: "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." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Moreover, "it has long been understood that separate statutory crimes need not be identical--either in constituent elements or in actual proof--in order to be the same within the meaning of the constitutional prohibition." Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). It is the second protection that Felix relies upon, namely, that he not be forced to undergo successive prosecutions for the same conduct.

General double jeopardy analysis earlier focused on the so-called traditional "Blockburger test" which states that:

[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 a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The focus of that test is on the elements of the crimes, and "[i]f 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 n. 17, 43 L.Ed.2d 616 (1975) (citation omitted).

Recently, two significant opinions from the Supreme Court have shaped the double jeopardy analysis--first, Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), decided January 10, and second, the Grady case decided on May 29, 1990. Grady in particular makes clear that the Double Jeopardy Clause protections extend beyond the limitations expressed in the much earlier Blockburger test.

In Dowling, the defendant had been convicted of bank robbery in part on the basis The Court rejected a claim that the Double Jeopardy Clause and the Due Process Clause barred the use of Mrs. Henry's testimony at the bank robbery trial in light of the earlier acquittal. Writing for the majority, Justice White made clear that "The issue is the inadmissibility of Henry's testimony." The majority rejected Dowling's reliance on the double jeopardy principles established in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), because in the Dowling case, the prior acquittal "did not determine an ultimate issue in the present case."

of testimony of Mrs. Henry. Although she was not involved in the bank incident itself, her testimony supported the government's modus operandi evidence and established a link between Dowling and an alleged accomplice at the bank. There the bank robber had worn a mask and carried a small pistol. Mrs. Henry testified that during a burglary attempt at her home two weeks earlier, she had unmasked a man that she said was Dowling. The man she struggled with was similarly, although not identically, masked and armed as the bank robber. In a previous trial for burglary where Mrs. Henry testified as an eyewitness, Dowling had been acquitted.

Dowling's holding rests on two basic reasons. First, there was a lower standard of proof applicable to the use of Ms. Henry's modus operandi evidence than in the first trial involving Dowling. A jury might reasonably conclude that Dowling was the masked man who entered Mrs. Henry's home and give Rule 404(b) application to the evidence, even if it did not believe beyond a reasonable doubt that Dowling committed the crimes charged in the first trial. Second, the Court deemed the evidence admissible because Dowling had not demonstrated that his acquittal in his first trial represented a jury determination that he was not one of the men who entered Mrs. Henry's home sufficient to justify application of Ashe's collateral estoppel protection. 110 S.Ct. at 674. Dowling had actually not disputed his identity and instead argued that he was merely in Mrs. Henry's home to retrieve money from an individual in the house. Thus, there was not the sharp determination of an issue in favor of Dowling as there was in Ashe.

Grady v. Corbin is a Double Jeopardy Clause application of much broader scope. In Grady, defendant Corbin, who had been drinking, drove his car across the center line and struck two oncoming vehicles, killing one person and injuring another. Although the assistant district attorney had responded to the accident and started an investigation, nevertheless, Corbin was issued two uniform traffic tickets for misdemeanor driving while intoxicated ("DWI") and failing to keep right of the median. Despite the investigation, Corbin's trial on the traffic tickets proceeded unimpeded. When the traffic court case was called, the prosecuting attorney was unaware that a death was involved and failed to object to the imposition of a minimal sentence after Corbin pled guilty.

Two months later, a...