U.S. v. Marable

• Decision Date: 14 August 1978
• Docket Number: No. 77-5412,77-5412
• Citation: 578 F.2d 151
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin MARABLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 151

578 F.2d 151

UNITED STATES of America, Plaintiff-Appellee, v. Melvin MARABLE, Defendant-Appellant.

No. 77-5412.

United States Court of Appeals, Fifth Circuit.

Aug. 14, 1978.

David B. Byrne, Jr., Montgomery, Ala., Herbert Shafer, Atlanta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., Robert A. Boas, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, COLEMAN ^*, and CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The defendant Melvin Marable appeals his conviction after trial to a jury for conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C.A. § 846, and to distribute it, in violation of 21 U.S.C.A. § 841(a)(1). This court recently affirmed an earlier conviction of Marable for conspiracy to possess and to distribute heroin. United States v. Marable, 574 F.2d 224 (5th Cir. 1978). On the present appeal Marable contends that the government arbitrarily has carved a single conspiracy to deal in narcotics into separate heroin and cocaine conspiracies in violation of his fifth amendment right against twice being placed in jeopardy for the same offense. We agree and reverse.

The government's proof in the heroin conspiracy trial established that Clarence Cole and Marable arranged sales of heroin for their cocaine customer, Detective Johnny Turner, who unknown to them was an undercover DEA Agent. Co-defendant Cole, who pled guilty, and Detective Turner testified against Marable in both trials. The government presented to the jury portions of Marable's own testimony from the heroin conspiracy trial in the trial on the cocaine conspiracy charge. During July 1976, conspiratorial negotiations involving cocaine and heroin went on simultaneously. The major events proven in Marable's trial on the heroin conspiracy charge which we discussed in our earlier opinion affirming that conviction, 574 F.2d at 224, were also central to the government's proof against Marable in the trial on the cocaine conspiracy charge.

To support a claim of double jeopardy, a defendant must show that the two offenses charged are in law and fact the same offense. The test most often used in resolving the question of identity of offenses in double jeopardy analysis is whether proof of the matter set out in a second indictment is admissible as evidence under the first indictment and, if it is, whether a conviction could have been properly sustained on such evidence. See, e. g., Morgan v. Devine, 237 U.S. 632, 640, 35 S.Ct. 712, 714, 59 L.Ed. 1153, 1156 (1919); Gavieres v. United States, 220 U.S. 338, 343, 31 S.Ct. 421, 422, 55 L.Ed. 489, 490 (1911); Bacom v. Sullivan, 200 F.2d 70, 71 (5th Cir. 1952), cert. denied, 345 U.S. 910, 73 S.Ct. 651, 97 L.Ed. 1345 (1953). Testing whether two alleged conspiracies are in fact the same calls upon us to make an inquiry into the record more detailed than that required with respect to other offenses under the "same evidence" test, cf. United States v. Ruigomez, 576 F.2d 1149, No. 77-5391 (5th Cir., 1978), because, by the nature of the crime, the precise bounds of a single conspiracy seldom will be clear from the indictment alone. The gist of the crime of conspiracy and the characteristic which defines its breadth is the unlawful agreement. As the Supreme Court stated in Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101-02, 87 L.Ed. 23, 28 (1942),

when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.

Thus, to determine whether the government can prosecute a defendant for more than one conspiracy, we must determine whether there was more than one agreement.

In conspiracy cases, proof of the illegal agreement or common purpose is not always clear and frequently may depend on inferences from circumstantial evidence. United States v. Becker, 569 F.2d 951 (5th Cir., 1978). Applying the usual "same evidence" test in such situations could allow many separate prosecutions in all but the most limited and precise short-term conspiracies. The majority of conspiracies will involve agreements to undertake a series of actions. To allow one or two of these acts to serve as the basis for several separate prosecutions would enable the construction of multiple conspiracy prosecutions from a single agreement contrary to the principle in Braverman that under a single conspiracy statute only one offense of conspiracy can occur from a single agreement.

Prosecutions under 21 U.S.C.A. § 846, the general drug conspiracy statute charged in the case at bar and in Marable's earlier heroin conspiracy trial, present an even greater need for defining the bounds of a conspiracy from an examination of the record than do prosecutions under the general criminal conspiracy statute, 18 U.S.C.A. § 371. While 18 U.S.C.A. § 371 requires proof of an overt act in furtherance of a conspiracy to support a conviction, we have held that because the language of 21 U.S.C.A. § 846 and its sister statute, 21 U.S.C.A. § 963 (conspiracy to import), does not refer to an overt act, the government need not allege and prove an overt act to sustain a conviction. United States v. Thomas, 567 F.2d 638, 641 (5th Cir. 1978). Cf. United States v. Johnson, 575 F.2d 1347 (5th Cir., 1978). An indictment is sufficient if it charges the offense in the words of the statute, Grene v. United States, 360 F.2d 585, 586 (5th Cir.), cert. denied, 385 U.S. 978, 87 S.Ct. 522, 17 L.Ed.2d 449 (1966); therefore, a Section 846 indictment is sufficient if it alleges a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy. United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). Thus, because a Section 846 indictment may be tightly drawn, the court must look to the record to determine whether constituent elements of the two conspiracies charged indicate that the government has twice placed the defendant in jeopardy.

We seek to determine whether the evidence in the case now on appeal and in the case leading to Marable's earlier conviction describes a single agreement to deal broadly in drugs or whether it describes two conspiracies, one to deal in cocaine, the other to deal in heroin, sufficiently discrete that separate prosecution does not violate the Double Jeopardy Clause. Our examination of the record focuses upon these elements: (1) time, (2) persons acting as co-conspirators, (3) the statutory offenses charged in the indictments, (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case, and (5) places where the events alleged as part of the conspiracy took place. Cf. Arnold v. United States, 336 F.2d 347 (9th Cir. 1964), cert. denied, 380 U.S. 982, 85 S.Ct. 1348, 14 L.Ed. 275 (1965); Short v. United States, 91 F.2d 614 (4th Cir. 1937). Obviously, the existence of the same events as crucial parts of the proof of conspiracy in each case cuts across each of these factors and tends to show the existence of a single agreement.

The time periods during which each conspiracy allegedly took place are very nearly the same. According to the indictments, the conspiracy with which Marable was charged in his first trial began on or about July 14, 1976, and continued until on or about August 20, 1976. The indictment which resulted in the conviction now on...