U.S. v. Inmon

• Decision Date: 28 November 1977
• Docket Number: No. 77-1205,77-1205
• Citation: 568 F.2d 326
• Parties: UNITED STATES of America v. INMON, Martel a/k/a Marty, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 326

568 F.2d 326

UNITED STATES of America v. INMON, Martel a/k/a Marty, Appellant.

No. 77-1205.

United States Court of Appeals Third Circuit.

Submitted Oct. 3, 1977.

Decided Nov. 28, 1977.

Blair A. Griffith, U. S. Atty., David B. Atkins, Asst. U. S. Atty., Edward J. Schwabenland, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

G. William Bills, Jr., Pittsburgh, Pa., for appellant.

Before GIBBONS and WEIS, Circuit Judges, and MEANOR, ^* District Judge.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal by Martel Inmon from the denial of his motion to dismiss an

                indictment on double jeopardy grounds.  1  The government has moved to dismiss the appeal as interlocutory.  That motion is denied since pretrial orders rejecting claims of former jeopardy are final decisions within the meaning of 28 U.S.C. § 1291.  Abney v. United States,431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. DiSilvio, 520 F.2d 247 (3d Cir. 1975).  On the merits of the appeal, we affirm the district court with respect to certain substantive charges in the indictment but reverse and remand on the conspiracy charge
                

I. THE CONSPIRACY CHARGE

A. Proceedings in the District Court

On July 14, 1976, two indictments were returned against Inmon. In No. 76-140 (Inmon I) the government charged that he conspired with nine co-defendants, one named but unindicted co-conspirator, and other co-conspirators whose names were unknown to distribute and possess, with intent to distribute, heroin, a narcotic drug and schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). In No. 76-141 (Inmon II) the government charged that he conspired with seventeen co-defendants, two named but unindicted co-conspirators, and other co-conspirators whose names were unknown to distribute and possess, with intent to distribute, heroin in violation of the same statute. ² In each indictment the locus criminis was Pittsburgh, Pennsylvania. Inmon I charged that the conspiracy continued from September 1, 1975, to April 4, 1976, while Inmon II charged a conspiracy between February 1, 1975, and July 14, 1976. Inmon I recited overt acts in Pittsburgh between October 10, 1975, and April 3, 1976; Inmon II recited overt acts in Pittsburgh between September 6, 1975, and July 13, 1976.

Although Inmon was the only conspirator charged in both indictments, the personnel of the alleged conspiracies overlapped. Herbert Segure, the unindicted co-conspirator named in Inmon I, was indicted in Inmon II. Alvin Clark and Roy Daviston, the unindicted co-conspirators named in Inmon II, were indicted in Inmon I. Both indictments referred to other unknown persons.

Of the twenty-three overt acts charged in Inmon I, Inmon was an alleged participant in twenty-one. Of the thirty-three overt acts charged in Inmon II, Inmon was an alleged participant in thirteen. The overt acts charged in both indictments suggest that Inmon played a central role in the heroin trade in Pittsburgh. Two affidavits in the record support this view. In August, 1975, the government sought to install a pen register device on the telephone of Arlene Stubbs, one of the co-defendants in Inmon II. The affiants, an Assistant United States Attorney and a Special Agent of the Drug Enforcement Administration, described her as Inmon's paramour and charged that her telephone was used by Inmon to facilitate heroin distribution. The DEA Special Agent continued:

For the reasons set forth below, I believe that Martel Inmon has been a significant Pittsburgh area narcotics trafficker for the past three years and that he presently controls the distribution of the major portion of all white heroin in the Greater Pittsburgh Area. Information received from various reliable sources (including Confidential Informants # 1, # 2 and # 3 described below) indicates that Inmon distributes as much as 1 pound of pure heroin every two weeks. It is my opinion, based on my investigation of narcotics trafficking in the Pittsburgh Area, as well as discussions with other knowledgable state and On November 9, 1976, Inmon pleaded guilty to the conspiracy charge in Inmon I and to one substantive charge in that indictment. On January 4, 1977, he moved before the district court to dismiss the Inmon II indictment because his guilty plea to Inmon I had placed him in former jeopardy. The district court denied the motion, and this appeal followed.

federal narcotics agents, that the Inmon organization controls at least 75% Of all the white heroin distributed in the Pittsburgh Area and is in direct competition with another large heroin organization, responsible for the distribution of brown heroin in Pittsburgh.

B. Discussion

This case requires the exploration of the procedural consequences of the rule of Abney v. United States, supra, and United States v. DiSilvio,supra, that the denial of a motion to dismiss an indictment on the ground of former jeopardy results in an appealable final order. The government, in a brief prepared before the decision in Abney, urged that we should overrule DiSilvio and that we should only review the rejection of double jeopardy claims after the completion of the second trial, when we would have the benefit of testimony against which to measure the identity of the former and later charges. That course would have avoided some of the procedural problems we now face. But, as the Supreme Court recognized in Abney, it would also have required that the defendant submit to the violation of his constitutional right not to be tried again for the same offense in order to raise the issue. Since that course is no longer open, we must face the procedural problems. As necessary consequences, the Abney-DiSilvio rule requires (1) that there must be a pretrial proceeding in which an appropriate record may be made to test a double jeopardy claim; (2) that there must be rules about going forward with proof, burden of persuasion, and weight of the evidence; and (3) that the procedure must take account of other constitutional rights, such as the privilege against self-incrimination.

In his motion to dismiss the Inmon II indictment Inmon brought forward a prima facie non-frivolous claim that the two indictments charged the same conspiracy. It had the same locus, the same objects, and several of the same participants. The conspiracy charged in Inmon I occurred during the time of the conspiracy charged in Inmon II. Inmon was a central figure in both. The government, nevertheless, contends that there were two separate conspiracies and that Inmon was separately, though centrally, involved in both. This is possible, but unlikely. In the district court, however, the government offered no evidence of the existence of separate conspiracies. It relied there as it relies here on the argument that a double jeopardy claim should not be considered until the end of the second trial, at least when the two indictments are not absolutely identical. Since that contention is foreclosed by the decision in Abney, some method for pretrial resolution of the conflict is therefore necessary.

These alternatives are available: we can hold that, when a defendant tenders a double jeopardy claim which the government resists, he has the burden of persuading the fact-finder that the two offenses are one; or we can hold that, when a defendant tenders a prima facie non-frivolous double jeopardy claim, the government has the burden of persuading the fact-finder that the indictments actually refer to separate offenses. Either alternative requires a determination of the appropriate evidentiary burden: preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt.

This case, in which the defendant has already pleaded guilty to one indictment, illustrates the impracticality of placing the evidentiary burden on him. Inmon would be required to prove facts establishing the charge of conspiracy to which he pleaded guilty and to prove facts establishing the second conspiracy as well. How he could do either, without access to the proof on which the government proposed to rely and without Undoubtedly, these practical difficulties, prompted the Second Circuit to rule in United States v. Mallah, 503 F.2d 971 (1974), that, while the defendant has the burden of going forward by putting his double jeopardy claim in issue, once he has made a non-frivolous showing, the burden of persuasion shifts to the government. In Mallah the double jeopardy claim was made after a trial on the first indictment and preserved during the second trial. The underlying facts, however, are quite similar to those in Inmon's case.

the ability to offer immunity to prospective witnesses, is not readily apparent. Even after a trial on the first indictment, the defendant would lack access to the government's proof of the second offense.

Here, the alleged two conspiracies occurred in the same general location at the same general time. One involved a large-scale narcotics ring; the known co-conspirators in the other transaction were foot soldiers. We know that a core member of the large-scale operation participated in both transactions, and that the narcotics business is such that it is likely that the foot soldiers were backed up by a larger organization. Moreover, Beverly Jalaba, one of the foot soldiers in Pacelli I, (United States v. Pacelli, 470 F.2d 67 (2 Cir. 1972)), was Pacelli's mistress; so close to Pacelli, it is also likely that she was close to his organization.

We think that these facts are sufficient to satisfy appellant's burden of going forward, of putting his double jeopardy rights at issue. At this point, the burden shifts to the government to rebut the presumption, which the facts in this case support, that Papadakos, Possas and Jalaba were part of the Pacelli/Sperling organization.

. . . We conclude . . . that the government has not rebutted the presumption raised by appellant, that the two conspiracies of which he has been...