U.S. v. MacDougall

• Decision Date: 22 May 1986
• Docket Number: Nos. 83-5249,s. 83-5249
• Citation: 790 F.2d 1135
• Parties: UNITED STATES of America, Appellee, v. Donald Bruce MacDOUGALL, Appellant. UNITED STATES of America, Appellee, v. Kenneth Wayne GUNN, Appellant. UNITED STATES of America, Appellee, v. Cleveland SANDERS, Appellant. UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant. UNITED STATES of America, Appellee, v. Cleveland SANDERS, Appellant. UNITED STATES of America, Appellee, v. Kenneth Wayne GUNN, Appellant. UNITED STATES of America, Appellee, v. Donald Bruce MacDOUGALL, Appellant. UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant. (L), 83-5250, 83-5251, 83-5255, 84-5048, 84-5065, 84-5066 and 84-5070.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1135

790 F.2d 1135

UNITED STATES of America, Appellee, v. Donald Bruce MacDOUGALL, Appellant.

UNITED STATES of America, Appellee, v. Kenneth Wayne GUNN, Appellant.

UNITED STATES of America, Appellee, v. Cleveland SANDERS, Appellant.

UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant.

UNITED STATES of America, Appellee, v. Cleveland SANDERS, Appellant.

UNITED STATES of America, Appellee, v. Kenneth Wayne GUNN, Appellant.

UNITED STATES of America, Appellee, v. Donald Bruce MacDOUGALL, Appellant.

UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant.

Nos. 83-5249(L), 83-5250, 83-5251, 83-5255, 84-5048,

84-5065, 84-5066 and 84-5070.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 9, 1985.

Decided May 22, 1986.

John K. Zwerling (J. Flowers Mark, Michael S. Lieberman, Zwerling, Mark, Ginsberg and Lieberman, P.C., Alexandria, Va. on brief), J. Edward Bell, Sumter, S.C., William B. Moffitt (Thomas Rawles Jones, Jr., Leora Kusher; Moffitt & Jones, Alexandria, Va., on brief); Larry G. Turner (Thomas W. Kurrus; Turner, Kurrus & Griscti, P.A., Gainesville, Fla., on brief), for appellants.

John F. DePue, Dept. of Justice, Washington, D.C. (Robert C. Jendron, Asst. U.S. Atty., Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.

SPROUSE, Circuit Judge:

Donald Bruce MacDougall, Kenneth Wayne Gunn, Cleveland Sanders and Michael Harvey appeal their convictions resulting from their involvement in a major drug smuggling and distribution conspiracy which operated along the east coast of the United States for several years. Appellants belonged to one of the three major organizations whose activities are relevant to this appeal. The appellants' organization separately and, on occasion, jointly with one or both of the other organizations imported and distributed large quantities of marijuana and hashish. The three conspiracies cumulatively grossed in excess of one hundred million dollars and involved more than one hundred persons. All four appellants assert that the double jeopardy clause of the federal Constitution bars their prosecution in this case. In addition, they challenge the procedure by which the district court handled their double jeopardy claims and the sufficiency of the evidence supporting several of their convictions. We affirm the convictions of MacDougall and Sanders; we remand the case of Michael Harvey for further proceedings; and, we reverse one of Gunn's convictions.

The appellants' convictions arose from an indictment in the United States District Court for the District of South Carolina. That indictment is South Carolina indictment number 166 and charged appellants and nineteen co-defendants with conspiracy and substantive controlled substances offenses. The appellants also raise points about several other indictments, principally South Carolina indictment number 165 and indictments number 31-A and 151 from the Eastern District of Virginia. (The indictments are referred to hereinafter by number.) All four appellants were convicted under indictment number 166 of conspiracy to import marijuana and hashish in violation of 21 U.S.C. Sec. 963 (Count One of the indictment). In addition, MacDougall was convicted of conspiracy to distribute the substances in violation of 21 U.S.C. Sec. 846 (Count Two), possession of marijuana with intent to distribute (Count Eight), and importation and possession of hashish with intent to distribute (Counts Thirteen and Fourteen). Sanders was convicted of conspiracy to distribute (Count Two) and importation and possession of hashish with intent to distribute (Counts Twenty-three and Twenty-four). Gunn was convicted of conspiracy to distribute (Count Two), and Harvey of importation of hashish (Count Thirteen). ¹

MacDougall, Sanders and Gunn were also indicted in the District of South Carolina on conspiracy and substantive counts in connection with the prosecution of the participants in another major drug conspiracy. ² In that indictment, number 165, the charges were either dismissed or disposed of by not guilty verdicts prior to trial in the instant case. The disposition of the 165 indictment charges forms the basis of MacDougall's, Gunn's, and Sanders' challenges to their present convictions on grounds that the prosecution in the instant case violated the constitutional prohibition against double jeopardy. In addition to his double jeopardy challenge, MacDougall attacks the sufficiency of the evidence underlying the convictions of conspiracy to import (Count One), importation of marijuana (Count Thirteen), and possession of marijuana with intent to distribute (Count Eight). Gunn contends that his indictment was the product of prosecutorial vindictiveness, and that there was insufficient evidence to convict him of Count Two, conspiracy to possess marijuana and hashish with intent to distribute. Sanders asserts that there was also insufficient evidence to convict him of conspiracy to import (Count One) and importation of hashish (Count Twenty-three).

Harvey's double jeopardy claim has a different basis. Prior to his indictment in this case, Harvey, pursuant to a plea agreement in a drug conspiracy prosecution in the Eastern District of Virginia, indictment number 31-A, pled guilty to a single substantive count and served six months in the penitentiary. In return for his plea, the United States Attorney for the Eastern District of Virginia agreed not to prosecute Harvey on other drug related charges pending in the Eastern District of Virginia. He contends that the prosecution in the Eastern District of Virginia barred his prosecution in this case on double jeopardy grounds. ³

All four defendants assert that the district court erred in not allowing the jury to determine the validity of their double jeopardy claims and in denying them a bill of particulars of the charges against them.

Thus, in this appeal we must determine whether: 1) the trial in this case violated the defendants' double jeopardy rights, including whether the trial court correctly ruled that the court and not the jury was to determine the issue of double jeopardy; 2) the district court committed error in the manner in which it caused Michael Harvey's double jeopardy claim to be framed and tried; 3) there was sufficient evidence to sustain all the convictions; and, 4) it erred in denying Gunn's assertion of prosecutorial vindictiveness and appellants' request for a bill of particulars.

The facts underlying the appellants' claims form a complicated pattern because of the size, and duration of and extensive personnel involvement in the drug smuggling and distribution operations and because of the level of cooperation among the organizations. One conspiracy to smuggle and distribute marijuana originated around the campus of the University of South Carolina in 1974. The scheme involved a number of fraternity brothers, their families and friends. Major figures in the drug smuggling operations who attended the University of South Carolina during the period 1970-74, included Leslie Riley, Michael Harvey's brother, Leon (Lee) Harvey, Barry Foy, and Thomas Rhoad. Rhoad and Foy became the leaders of a major east coast drug smuggling conspiracy which generated the charges handed down against MacDougall, Sanders and Gunn in indictment number 165, the other South Carolina prosecution. Leslie Riley and Leon Harvey teamed together in 1977 to form the conspiracy for which the defendants were convicted in this case under indictment 166. ⁴ The third organization involved in this appeal began when Julian Pernell and Barry Toombs entered into a smuggling and distribution partnership in 1973 in northern Virginia. ⁵ Pernell testified at the trial in this case that his and Toombs' organization was the largest marijuana and hashish distribution network on the east coast. Working independently and, on occasion, with each other and with the Pernell-Toombs organization, the Rhoad-Foy and Riley-Harvey organizations expanded to undertake dozens of multi-million dollar importation and distribution ventures. By 1983, when the government concluded the investigation of these illegal activities, the participants had created at least three major illicit drug operations involving smuggling and distribution activities from Florida to New England. Many of the smugglers and distributors had worked in more than one organization and the organizations themselves cooperated in numerous joint ventures.

The appellants contend that the level of cooperation demonstrates that there was, in fact, merely a single giant conspiracy for which they have been placed in jeopardy twice. Because we find that the evidence established the existence of separate conspiracies, we reject appellants' double jeopardy claims. We further hold that the district court was correct in deciding that double jeopardy claims are to be resolved by the court. We feel, however, that the district court committed reversible error in the manner in which it allowed the jury to be informed of Michael Harvey's double jeopardy defense before the court had decided the issue. Because we remand Harvey's case due to this error, we do not decide the question of whether Harvey's South Carolina prosecution was barred on double jeopardy grounds. We vacate his convictions and remand so that the district court may review its findings with respect to Harvey's double jeopardy claims and consider any motions regarding Harvey's plea agreement referred to it from the Eastern District of Virginia pursuant to the disposition of the pending appeal, No. 83-5256. Should the district court determine that the South Carolina prosecution of Harvey is not barred either on double jeopardy grounds or by the Virginia plea agreement, the government may proceed to retry him.

A proper...