U.S. v. Jarvis, 91-5169

Decision Date19 October 1993
Docket NumberNo. 91-5169,91-5169
Citation7 F.3d 404
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Douglas JARVIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Howard Mark Miller, St. Clair, Miller & Marx, P.C., Norfolk, VA, argued, for defendant-appellant.

Laura Marie Everhart, Asst. U.S. Atty., Norfolk, VA, argued (Richard Cullen, U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and HALL and PHILLIPS, Circuit Judges.

OPINION

ERVIN, Chief Judge:

Following trial by jury, Douglas Jarvis was convicted of one count of conspiracy to traffic in cocaine, 21 U.S.C. § 846; seven counts of possessing with intent to distribute cocaine, 21 U.S.C. § 841(a)(1); and five counts of travelling in interstate commerce to promote an unlawful activity, 18 U.S.C. § 1952(a)(3). His direct appeal presents three questions for decision: (1) whether the district court plainly erred by allowing Jarvis to proceed to trial on charges of conspiracy to distribute cocaine, in violation of the Double Jeopardy Clause of the Fifth Amendment; (2) whether the district court erred by failing to require the Government to prove that its case against Jarvis did not derive in part from testimony provided by Jarvis pursuant to a grant of immunity from prosecution; and (3) whether Jarvis was denied the effective assistance of counsel by his lawyer's failure to raise the foregoing immunity and double jeopardy defenses by motion.

Because we hold that Jarvis's conspiracy prosecution was undertaken in violation of the Double Jeopardy Clause, infecting the proceedings below with plain error, we vacate and remand his conviction and sentence on that count. After careful analysis of Jarvis's immunity agreement with the Government, we conclude that the agreement contemplated transactional, not use, immunity. A thorough review of the record reveals that the transactions thereby immunized were neither charged in the instant indictment nor prosecuted in the proceedings below. Accordingly, we hold that the district court did not err by failing to afford Jarvis a hearing at which the origins of the Government's case could be explored. Because we dispose of Jarvis's appeal through our analysis of his first two assignments of error, we decline to address his ineffective-assistance-of-counsel claim. We therefore affirm his twelve remaining convictions.

I

The issues presented by this appeal rest upon procedural history of some complexity, which for clarity's sake we describe in three parts.

A

In January 1987 Catherine Marie Parker was introduced to Douglas Jarvis at a night club in Virginia Beach, Virginia. One week later Parker obtained one-eighth of an ounce of cocaine from Jarvis. Parker and Jarvis began meeting regularly to use cocaine, with Jarvis supplying the drug. Their meetings continued until July 1988, when Parker introduced Jarvis to one Whitney, a high school friend of Parker's. Jarvis told Whitney that he was searching for a new cocaine source, being no longer in contact with his former Virginia Beach supplier. Whitney informed Jarvis that she was living in Miami with Anibal Duarte, a cocaine dealer. Several days later, in an attempt to purchase cocaine from Duarte, Jarvis and Parker travelled to Florida. Duarte refused to meet with them on this journey.

In August 1988 Duarte contacted Parker and told her that he was now willing to sell cocaine to Jarvis, with Parker acting as intermediary. Later that month Jarvis sent Parker to Florida with $12,000, with which Parker purchased one-half kilogram of cocaine from Duarte. Parker returned to Virginia, where she delivered the cocaine to Jarvis. Following a second unsuccessful attempt to purchase cocaine from his new Florida connection, Jarvis had no further contact with Duarte until December 1988, when Jarvis invited him to Virginia. Jarvis introduced Duarte to his associates Alan Scott, Vaden Lee Williams, and Patricia Fruetel, who indicated that they were interested in purchasing kilogram quantities of cocaine from Duarte.

Beginning in January 1989, Jarvis began making regular trips to Florida, during which he purchased kilogram quantities of cocaine from Duarte. These trips took place in March 1989, during the summer of 1989, and, finally, in January 1990. Tony Joliff, an associate of Jarvis, also travelled to Florida in January, February, and March, 1989 at Jarvis's direction to obtain cocaine from Duarte. Scott, Williams, and Fruetel travelled to Florida at various times throughout this period, both in Jarvis's company and at his behest.

On January 19, 1990, Jarvis and Parker travelled to Florida to purchase cocaine from Duarte. Being unable to make arrangements with his usual supplier, Duarte contacted another cocaine dealer in Fort Lauderdale. Unbeknownst to Duarte, this individual, who already had been arrested himself, was cooperating with law enforcement authorities. After a number of telephone conversations, Duarte arranged a meeting with the arrested dealer. Jarvis and Duarte met with the cooperating dealer and two undercover Drug Enforcement Administration ("DEA") agents at a hotel in Fort Lauderdale on January 22, 1990. Following negotiations regarding the quantity of cocaine to be purchased and related financial matters, cocaine and money were exchanged, and Jarvis and Duarte were arrested. Jarvis was detained. Duarte, who agreed to cooperate with the Government, was released on bond.

In April 1990 Williams and Fruetel travelled to Florida in an attempt to purchase cocaine from Duarte. Duarte, now working with the DEA, introduced Williams and Fruetel to an undercover DEA agent. A cocaine transaction was arranged, and Williams and Fruetel were arrested by Florida authorities on April 4, 1990.

On June 27, 1990, a grand jury in the Southern District of Florida returned an indictment charging Jarvis with (1) one count of conspiring to possess with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. § 846; and (2) one count of conspiring to possess and of actually possessing with intent to distribute five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The conspiracies charged in both counts were alleged to have begun on January 19, 1990 and ended on January 22, 1990. In November 1990 Jarvis was convicted of the first conspiracy count and acquitted of both the conspiracy and substantive portions of the second count. The Court of Appeals for the Eleventh Circuit affirmed Jarvis's conspiracy conviction on October 21, 1992, United States v. Jarvis, 978 F.2d 720 (11th Cir.1992) (unpublished opinion), and the Supreme Court denied certiorari, Jarvis v. United States, --- U.S. ----, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993).

B

In February 1988, before most of the events described above occurred, Jarvis contacted authorities in the Federal Bureau of Investigation's Eastern District of Virginia offices and offered to provide the Bureau with information about the narcotics-distribution activities of various individuals in the Norfolk/Virginia Beach area. In exchange for this information, FBI agents promised that if, in the course of sharing his knowledge with them, Jarvis admitted his own involvement in past crimes, he would not be prosecuted for them. Specifically, in an FBI memorandum dated February 11, 1988, Special Agent Robert J. Arnold advised Jarvis that the Bureau's interviews with him were being conducted predicated upon the condition of

[h]is providing complete and truthful details regarding all of his narcotics activities in return for his not being prosecuted by the Norfolk, Virginia, Police Department, or the Federal Government in the Eastern District of Virginia for any activities which he relates to the interviewers during the interview.

Most of the information Jarvis related to the FBI dealt with marijuana and cocaine distribution by various persons in the late 1970s and early 1980s. In the course of his testimony, Jarvis identified three individuals who either bought cocaine or marijuana from him or used the drugs with him during those years. Although Jarvis admitted to the authorities that he was still a cocaine user, the last cocaine sales he admitted to having made occurred prior to April 1987.

C

On April 25, 1991, a grand jury in the Eastern District of Virginia returned a forty-count indictment against Jarvis and four other defendants. Jarvis was charged with (1) one count of conspiring to distribute in excess of five kilograms of cocaine, 21 U.S.C. § 846; (2) ten counts of possessing with intent to distribute cocaine, 21 U.S.C. § 841(a)(1); and (3) six counts of travelling in interstate commerce with intent to promote or facilitate the promotion of an unlawful activity, 18 U.S.C. § 1952(a)(3). Jarvis's codefendants all entered guilty pleas on the remaining twenty-three counts.

On July 8, 1991 the district court held a hearing to entertain pretrial motions by the defendants. Jarvis's counsel moved the court for a continuance, on the ground that he had enjoyed no access to the transcripts from Jarvis's previous trial in the Southern District of Florida. This motion was denied. Jarvis's trial commenced on July 10, 1991. On July 16, 1991, the Government rested and the district court denied Jarvis's motion for judgment of acquittal on the basis of his immunity agreement with the Federal Bureau of Investigation. On July 19, 1991, Jarvis was found guilty of (1) the single 21 U.S.C. § 846 conspiracy count; (2) seven of the ten 21 U.S.C. § 841(a)(1) counts; and (3) five of the six 18 U.S.C. § 1952(a)(3) counts lodged against him in the indictment. On October 9, 1991, the district court sentenced Jarvis to 262 months' imprisonment on the conspiracy count, to be followed by ten years of supervised release. He was sentenced to equal or lesser terms on the twelve substantive counts. The court ordered all the sentences to run concurrently with one another and...

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