U.S. v. Jones, s. 74--1466

Decision Date23 December 1975
Docket Number74--1468,Nos. 74--1466,s. 74--1466
Citation527 F.2d 817,174 U.S.App.D.C. 34
PartiesUNITED STATES of America v. Gary E. JONES, Appellant. UNITED STATES of America v. Robert BRYANT, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Marsha E. Swiss, Washington, D.C. (appointed by this court), for appellants.

Jeffrey T. Demerath, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Charles E. Wagner and Nicholas Gilman, Asst. U.S. Attys., were on the brief for appellee. David T. Stitt, Asst. U.S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before MOORE, * Senior Circuit Judge for the Second Circuit, and WRIGHT and MacKINNON, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

Dissenting opinion filed by Circuit Judge J. SKELLY WRIGHT.

MacKINNON, Circuit Judge:

Appellants Jones and Bryant were indicted for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (Count 1), possession of heroin in violation of D.C.Code § 33--402 (Count 2), destruction of evidence in violation of D.C.Code § 23--591(d) (Count 3), and maintaining a common nuisance in violation of D.C.Code § 33--416 (Count 4). All counts of the indictment were tried in a single proceeding in the United States District Court for the District of Columbia, as authorized by D.C.Code § 11--502(3). The fourth count was dismissed by the Government at the close of its evidence (Tr. 306). The remaining counts were submitted to the jury which returned verdicts of not guilty on Count 1 and guilty on Counts 2 and 3 with respect to each appellant. Each was sentenced to concurrent terms of imprisonment of 20 months to five years for possession of heroin and one to three years for destruction of evidence (Tr. 468, 473). We affirm.

I.

On August 3, 1973, two Metropolitan Police officers were conducting a covert surveillance on a locked and boarded-up building located in Northeast Washington. They observed several persons approach the front door, ring a buzzer, place a quantity of money through a hole in the door, wait a few seconds, put a hand through the door again, and receive something which was placed in a pocket (Tr. 68--69, 126--27). The officers then went back to their station and returned with several other officers to execute a search warrant. Groups of officers approached the front and rear of the building, announced their purpose, and upon receiving no response, forced their way inside. Appellant Bryant was arrested in a hallway, and appellant Jones was found in a locked room containing a toilet and several buckets of acid.

While the raid was taking place, two other officers entered the basement of the building, located the drain pipe leading to the toilet and removed a section of the pipe. Shortly thereafter, a stream of water and acid, 108 tissue paper rolls sealed in cellophane and containing powder, and approximately $131 in torn currency emerged from the pipe (Tr. 73, 83). Tests on the powder in the rolls disclosed that they contained heroin (Tr. 177) with an estimated street value of $10 each (Tr. 291).

II.

For the first time, appellants argue on this appeal that their prosecution and sentence in the United States District Court under D.C.Code § 33--402 denied them equal protection and is forbidden by D.C.Code § 33--424. The Government urges us not to consider appellants' claim since they failed to make a record by raising the point in the District Court. 1 However, the issue raised presents solely a question of law which would not be materially illuminated by the development of a further record in the trial court. 2 We therefore turn to the merits of appellants' argument.

The indictment joined charges against appellants for violations of both the federal narcotics statutes and the District of Columbia Code. Possession of heroin with intent to distribute is prohibited by 21 U.S.C. § 841(a) 3 and is punishable by imprisonment for not more than 15 years, a fine of up to $25,000 and a mandatory special parole term of three years. These penalties are doubled in the event of a prior felony conviction under any law of the United States relating to narcotics. 21 U.S.C. § 841(b). Simple possession is made unlawful under federal law by 21 U.S.C. § 844 4 and is punishable by imprisonment of not more than one year and a fine of up to $5,000. Once again the maximum penalties are doubled in the case of repeat offenders.

In contrast, the D.C.Code establishes only a single generalized crime of possession of narcotics. D.C.Code § 33--402(a) provides:

(a) It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.

Section 33--423 makes this offense punishable by imprisonment for not more than one year. In the case of anyone who has previously been convicted of a violation of the federal or D.C. narcotics laws, the maximum penalty is increased to $5,000 or 10 years. Both appellants had been convicted of prior narcotics offenses under the D.C.Code and thus were subject to the increased maximum penalties.

Appellants are correct in pointing out that the inclusion in the indictment of charges under the D.C.Code allowed a considerably greater maximum penalty for simple possession following a prior conviction than would have been available had they been charged and convicted (following a prior conviction) of simple possession under the federal statute. However, we have held that Congress, in the exercise of its powers over the District of Columbia, can enact laws which are substantially identical to national legislation but which provide different penalties. See United States v. McDonald, 156 U.S.App.D.C. 338, 343, 348, 481 F.2d 513, 518, 523 (1973). The United States Attorney has discretion to determine which of the applicable statutes will form the basis for the prosecution. United States v. Greene, 160 U.S.App.D.C. 21, 27, 489 F.2d 1145, 1151 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1975); Hutcherson v. United States, 120 U.S.App.D.C. 274, 277, 345 F.2d 964, 967, cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965).

The joinder of charges under federal and D.C. statutes in a single indictment to be tried in the U.S. District Court is specifically authorized by D.C.Code § 11--502(3). 5 We have held on several occasions that in the absence of a specific federal statute superseding prosecution on the local offenses, a defendant whose acts constitute violations of both statutory schemes can, under the statute, properly be the subject of a single trial in the District Court under a joint indictment. United States v. Shepard, 169 U.S.App.D.C. 353, 515 F.2d 1324 (1975); United States v. Caldwell (No. 72--1513, Dec. 31, 1974) (Slip op. at 65 n. 176); United States v. Knight, 166 U.S.App.D.C. 21, 509 F.2d 354 (1974). The only constraint on such a prosecution is that where the federal and local offenses are identical or where one would be a lesser included offense of the other, the defendant may ultimately be sentenced under only one statutory scheme. See Shepard, supra; Knight, supra ('What is impermissible is not the joinder of offense for trial . . . but the joinder of judgments even with concurrent sentences.'509 F.2d at 363); United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972). The offenses charged in Counts 1 (the U.S.Code offense) and 2 (the D.C.Code offense) of the instant indictment fall within this latter restriction; but appellants were convicted and sentenced only under Counts 2 and 3, both of which were charged under the D.C.Code, so there was no 'impermissible . . . joinder of judgments' in this case.

Appellants' equal protection arguments can be readily dismissed on the basis of our opinion in Shepard, see 169 U.S.App.D.C. at 365 n.25, 515 F.2d at 1335 n.25. Since successive prosecutions on identical or lesser included D.C. and federal offenses emanate from the same sovereignty, they are precluded by double jeopardy considerations. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); United States v. Knight, 166 U.S.App.D.C. 21, 27, 509 F.2d 354, 360 (1974). Appellants were thus subject to only a single trial on Counts 1 and 2 and were required to conduct only one defense; such proceedings did not violate due process or equal protection.

The equal protection argument advanced by the dissent overlooks this capacity of federal courts in the District of Columbia to join violations of federal law and the D.C.Code in one trial. See D.C.Code § 11--502(3) (1973). The dissent's argument is that a defendant in the District of Columbia is denied the equal protection of the law by being subjected to the risk of a heavier penalty than offenders in other federal jurisdictions 6: that is, while a defendant in the District may be prosecuted on both local and federal charges arising from the same offense and thereby conceivably receive a lengthier sentence than if he were prosecuted on federal charges alone, a double prosecution on state and federal charges is unlikely to occur in other federal jurisdictions. We must disagree with this conclusion.

Initially, we observe that, even assuming that the situation is as the dissent has described it, no violation of equal protection exists. Such a classification based on location is proper: in United States v. Antelope, 523 F.2d 400 (9th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3281 (Nov. 3, 1975) (No. 75--661), the Ninth Circuit recently found that it was permissible for Congress to provide by statute that crimes on Indian reservations which encompass several states may be punished under the differing laws of the separate states. Thus, different offenders committing the same crime on different parts of the same federal reservation might be punished...

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