U.S. v. Hoyle, s. 95-3157

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: SILBERMAN; KAREN LeCRAFT HENDERSON
• Citation: 122 F.3d 48
• Parties: UNITED STATES of America, Appellee, v. Mark Dennard HOYLE, a/k/a Slim, a/k/a Markie, Appellant. to 95-3160.
• Docket Number: Nos. 95-3157,s. 95-3157
• Decision Date: 28 November 1997

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122 F.3d 48 326 U.S.App.D.C. 310 UNITED STATES of America, Appellee,
v.
Mark Dennard HOYLE, a/k/a Slim, a/k/a Markie, Appellant. Nos. 95-3157 to 95-3160. United States Court of Appeals,
District of Columbia Circuit. Argued April 23, 1997.
Decided Sept. 12, 1997.
Rehearing Denied Nov. 28, 1997.

Appeals from the United States District Court for the District of Columbia (Nos. 92cr0284-01, 92cr0284-02, 92cr0284-03 & 92cr0284-08).

Jensen E. Barber, Washington, DC, Vincent A. Jankoski, William J. Garber, and John J. Carney, all appointed by the court, argued the causes and filed the joint briefs for Appellant.

Andrew C. Phelan, Assistant U.S. Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney at the time the brief was filed, Washington, DC, John R. Fisher, Thomas C. Black, Washington,

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[326 U.S.App.D.C. 311] DC, Gregg A. Maisel, Rachel Adelman-Pierson, and Lynn C. Leibovitz, Assistant U.S. Attorneys, Washington, DC, were on the brief. Elizabeth Trosman, Assistant U.S. Attorney, Washington, DC, entered an appearance.

Before: SILBERMAN, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring opinion filed by Circuit Judge HENDERSON.

SILBERMAN, Circuit Judge:

Appellants were convicted of participating in a RICO conspiracy and engaging in a continuing criminal enterprise (CCE). They contend that the imposition of cumulative sentences for these two offenses violates the Fifth Amendment's prohibition against double jeopardy. We affirm appellants' convictions.

I.

Appellants are members of the so-called Newton Street Crew. They were found guilty after a five-month trial of a variety of offenses, including unlawful use of firearms, robbery, and murder relating to a conspiracy to distribute crack cocaine in the District of Columbia and Maryland. All four were shown to have been heavily involved in the organization's distribution of crack cocaine and use of violence, both to enforce organizational discipline and to eliminate competitors. Three of the four, Goldston, Hoyle, and McCollough, were further shown to have been leaders in the organization. They were each given multiple life sentences and assorted other prison terms. Although appellants raise numerous contentions on appeal, we think only one of these merits discussion. ¹ Hoyle, McCollough, and Goldston contend that it was an error of law for the district court to impose separate life sentences for violation of 18 U.S.C. § 1962(d) (1994) (RICO conspiracy) and 21 U.S.C. § 848 (1994) (CCE). ² They argue that RICO conspiracy is a lesser included offense of CCE, and, thus, the imposition of cumulative sentences for these two crimes violates the Fifth Amendment's prohibition against double jeopardy.

II.

Although the Double Jeopardy Clause literally protects against successive prosecutions for the same offense, it has been interpreted as also precluding multiple punishments for the same offense. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Under certain circumstances nominally separate offenses could be thought the same offense--thus implicating the clause. It is a matter of legislative intent. If the legislature intends that the two offenses be treated as the same offense, the Double Jeopardy Clause applies. If the legislature intends that the two offenses be distinct, it does not. When a defendant is charged with two offenses, the "Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).

In determining legislative, in this case congressional, intent, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), directs that we break down the elements of the two crimes and determine "whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182. If crime "A" has

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[326 U.S.App.D.C. 312] all the elements of crime "B"--even though "A" has additional ones that "B" does not--then "B" would be a lesser included offense within "A" and a defendant could not be charged with violation of "B" as well as "A" unless the legislature clearly indicated otherwise. United States v. Baker, 63 F.3d 1478, 1494 (9th Cir.1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 824, 133 L.Ed.2d 767 (1996).

Applying the Blockburger rule to determine whether RICO conspiracy is a lesser included offense incorporated within CCE, we observe that in order to make out a CCE violation the government must show that the defendant committed:"1) a felony violation of the federal narcotics law; 2) as part of a continuing series of violations; 3) in concert with five or more persons; 4) for whom the defendant is an organizer or supervisor; 5) from which he derives substantial income or resources." United States v. Grayson, 795 F.2d 278, 283-84 (3d Cir.1986). A "continuing series of violations" is defined as "at least three related felony narcotics violations, including the one charged." United States v. Hall, 93 F.3d 126, 129(4th Cir.1996), cert. denied,...