U.S. v. Martin

Citation574 F.2d 1359
Decision Date16 June 1978
Docket NumberNo. 77-2884,77-2884
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas Clinton MARTIN and Thomas Ray Martin, Defendants-Appellants. Summary Calendar. *
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Lawrence S. Katz, Miami Beach, Fla., for defendants-appellants.

J. V. Eskenazi, U. S. Atty., Karen L. Atkinson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GODBOLD and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Appellants, father and son, were convicted upon a bench trial of a conspiracy to import marijuana into the United States from the Bahamas and to possess marijuana with intent to distribute it, in violation of 21 U.S.C. § 963. On appeal, they contend that the district court erred in denying their motions to dismiss the indictment on grounds of former jeopardy; and that their convictions were obtained in violation of the federal policy against multiple prosecutions for the same offense. Finding no merit in these contentions, we affirm the judgments appealed from.

The appellants pleaded guilty in a Bahamian court to charges of conspiracy to import dangerous drugs (marijuana) into the Bahamas, conspiracy to export dangerous drugs from the Bahamas, and possession of dangerous drugs. After serving prison terms and paying fines in the Bahamas, appellants returned to the United States to answer to its indictment.

The Bahamian convictions resulted from the same general set of facts as those charged in the United States although the indictments vary in some details, such as the dates when the conspiracies began and ended. But that does not in itself establish former jeopardy.

To sustain a defense of former jeopardy based on the Fifth Amendment it must be shown that:

1. Both tribunals derived their authority and jurisdiction from the same sovereign; and 2. Both prosecutions were for the same offense. Brown v. United States, 5 Cir. 1977, 551 F.2d 619, 620; United States v. Vaughan, 5 Cir. 1974, 491 F.2d 1096. Successive prosecutions by the federal Government and a State for the same offense are permissible, because they are separate sovereigns. United States v. Vaughan, supra. This rule has been reiterated by the Supreme Court in several cases, notably Bartkus v. Illinois, 1959, 359 U.S. 121, 128-29, 79 S.Ct. 676, 681, 3 L.Ed.2d 684, and Abbate v. United States, 1959, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729. See also United States v. Wheeler, 1978, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 holding that a conviction by a Navajo Tribal Court did not bar a subsequent conviction on the same facts in a federal court since they were not arms of the same sovereign.

The Bahama Islands are in no respect under the sovereignty of the United States. They are an independent commonwealth. The rule of Abbate applies a fortiori.

Moreover, though the offenses charged may be considered to originate in the same plan, they were not identical: a conspiracy to import marijuana into and export it from the Bahamas is not the same as a conspiracy to import marijuana into the United States and to possess marijuana with intent to distribute it, as charged in the federal indictment. Each of these offenses obviously would require proof of some facts that would not be necessary as to the others.

Appellants contend that, because of concerted action between the Bahamian government and the United States, their successive convictions should be treated as if they were obtained by the same sovereign. In Bartkus the Supreme Court observed that such a conclusion might result where there had been federal-state cooperation on a prosecution if the cooperation were so extensive that the state court system was merely a tool for the federal government. 359 U.S. at 123-24, 79 S.Ct. at 678.

We need not decide whether Bartkus extends to joint efforts of the United States and another national sovereign, for there was no joint effort at prosecution here. The Bahamian prosecutions resulted from the fortuitous discovery of a cache of marijuana while their police were investigating a helicopter crash and the later confessions obtained from appellants. Appellants testified below that no United States agents had any part in obtaining these confessions, nor does it appear that the United States Government contributed in any substantial way to appellants' Bahamian convictions.

The Constitution of the United States has not adopted the doctrine of international double jeopardy. See Bartkus, supra, 359 U.S. at 128, note 9, 79 S.Ct. at 680-681, 3 L.Ed.2d at 690, rejecting both international double jeopardy and notions of restraint due to comity, cf. United States v. Furlong, 1820, 18 U.S. (5 Wheat.) 184, 197, 5 L.Ed.2d 64, which dealt with the offenses of piracy, which it defined as robbery committed on the seas, and murder on the seas. The Court there observed, "Robbery on the seas is considered as an offence within the criminal jurisdiction of all nations." 18 U.S. (5 Wheat.) at 197. It concluded that, therefore, a plea of autrefois acquit relative to that offense would be good in any civilized state but that the rule with regard to murder was otherwise. A conspiracy to import marijuana into the Bahamas and a separate conspiracy to import...

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10 cases
  • State v. Moeller
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...those raised by the defendant Moeller, thereby permitting successive state-federal or federal-state prosecutions. See United States v. Martin, 574 F.2d 1359 (5th Cir. 1978); United States v. Frumento, 563 F.2d 1083 (3d Cir. 1977); United States v. Cordova, 537 F.2d 1073 (9th Cir. 1976); Uni......
  • U.S. v. Malatesta
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 8, 1978
    ...5 Cir. 1974, 491 F.2d 1096. See also United States v. Wheeler, 1978, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303; United States v. Martin, 5 Cir. 1978, 574 F.2d 1359, 1360; Hill v. Beto, 5 Cir. 1968, 390 F.2d 640, Cert. denied, 1968, 393 U.S. 1007, 89 S.Ct. 491, 21 L.Ed.2d 472. Nor did the ......
  • U.S. v. Rashed
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 21, 1999
    ...United States v. Richardson, 580 F.2d 946, 947 (9th Cir.1978) (Guatemalan proceedings no bar to U.S. charges); United States v. Martin, 574 F.2d 1359, 1360 (5th Cir.1978) (stating that "[t]he Constitution of the United States has not adopted the doctrine of international double jeopardy" an......
  • U.S. v. Fossler
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 20, 1979
    ...(8th Cir.), Cert. denied sub nom. Mitchell v. United States, --- U.S. ----, 99 S.Ct. 263, 58 L.Ed.2d 246 (1978); United States v. Martin, 574 F.2d 1359, 1360-61 (5th Cir.), Cert. denied,--- U.S. ----, 99 S.Ct. 456, 58 L.Ed.2d 425 Fossler finally contends, and we agree, that the District Cou......
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