U.S. v. Maza

• Citation: 983 F.2d 1004
• Decision Date: 16 February 1993
• Docket Number: No. 91-3557,91-3557
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ralph MAZA a/k/a Rafael Maza, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1004

983 F.2d 1004

UNITED STATES of America, Plaintiff-Appellant, v. Ralph MAZA a/k/a Rafael Maza, Defendant-Appellee.

No. 91-3557.

United States Court of Appeals Eleventh Circuit.

Feb. 16, 1993.

Joseph K. Ruddy, Karla Spaulding, Asst. U.S. Attys., Tampa, FL, for plaintiff-appellant.

L. Michael Roffino, Coral Gables, FL, for defendant-appellee.

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

Before FAY and EDMONDSON, Circuit Judges, and HILL, Senior Circuit Judge.

FAY, Circuit Judge:

The United States appeals the dismissal of Count Four of its indictment against the Defendant-Appellee, Ralph Maza, charging him with a violation of 21 U.S.C. § 848, the Continuing Criminal Enterprise (CCE) statute. Maza moved for dismissal of this count on the ground that it violated his Fifth Amendment rights under the Double Jeopardy Clause because he previously had been indicted and convicted, in the Southern District of Florida, of a violation of 21 U.S.C. § 846. Section 846, Maza argues, is a lesser included offense of § 848; therefore, Count Four is double jeopardy barred unless the government shows that this second prosecution is based on newly discovered evidence pursuant to the due diligence exception to the double jeopardy rule set out in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and its progeny.

Relying on our recent decision in United States v. Gonzalez, 921 F.2d 1530 (11th Cir.1991), the District Court rejected Maza's double jeopardy argument. 764 F.Supp. 1451. Nevertheless, it held that the government's failure to bring the CCE charge in the first prosecution constituted a failure to exercise due diligence which precluded the government from bringing the CCE charge in a second proceeding pursuant to our decision in United States v. Boldin, 772 F.2d 719 (11th Cir.1985), modified 779 F.2d 618 (1986), cert. denied 475 U.S. 1048, 1098, 1110, 106 S.Ct. 1269, 1498, 1520, 89 L.Ed.2d 577, 899, 917 (1986). We affirm the holding that Count Four is not barred by double jeopardy; however, because we find the trial court erred in construing Boldin and the due diligence exception, we reverse and remand this case with instructions to the District Court to reinstate Count Four.

I. BACKGROUND

On October 12, 1989, Ralph Maza was arrested at his residence in Miami and officers seized 22 kilograms of cocaine from his garage. Following his arrest Maza confessed that for some period of time he had allowed his garage to be used to store cocaine in exchange for payment of $50 per kilogram. ¹ Maza's arrest was a product of cooperation between federal officials conducting separate but overlapping investigations. In the case at bar, government agents were investigating a large scale cocaine trafficking network in middle Florida and had already charged numerous members of the organization. As of the summer of 1989 the government knew that cocaine imported by this organization was transported to and stored in Miami at the home of someone known as "the painter." R2-634-13. The identity of "the painter" was unknown. Id.

After "debriefing" by government agents in Tampa, a cooperating defendant, Jones, was sent to assist federal agents conducting Operation Greenback in Miami, a separate investigation. Id. As a part of his cooperation Jones was to assist Operation Greenback agents in locating "various residences and businesses," one of which was "the painter's" house. R2-634-14. Jones identified Maza's house as that of "the painter." It was put under surveillance, and Maza's arrest soon followed. Id. at 13-14.

Maza was then charged in the Southern District of Florida, along with two other defendants, ² with (I) possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1); (II) conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846; and (III) knowingly and willfully conducting or attempting to conduct a financial transaction involving the proceeds of narcotics trafficking, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and (2). ³ R1-579 (Exhibit B). Maza pled guilty to the second of these counts ⁴ and was sentenced to ten years and one month of incarceration, to be followed by five years supervised release. Id. (Exhibit C). ⁵ Maza is currently serving this sentence.

On July 18, 1990, after his conviction in the Southern District, Maza was indicted in the Middle District of Florida in connection with the on-going investigation of the drug ring there. See Second Superseding Indictment, R1-366. Count Four of this indictment charges Maza with violating 21 U.S.C. § 848 (CCE), id. at 12-14, and with various substantive offenses relating to narcotics importation and distribution. Id. at 17-22. The predicate acts alleged to support Count Four are violations of 21 U.S.C. § 952 (importation), and 21 U.S.C. § 952 and 963 (importation and attempt or conspiracy to import). ⁶

On February 20, 1991, Maza moved to dismiss Count Four on the ground that his earlier conspiracy conviction barred the CCE charge because it was a lesser included offense of the CCE. Therefore, he argued, to avoid double jeopardy, the government must show that it had new evidence of a separate conspiracy which it could not, through the exercise of due diligence, have discovered at the time of his first prosecution. The crux of his argument is that both charges are based on the same conduct.

In response, the government asserted that it was not relying on the earlier prosecution as it was now charging a conspiracy to import rather than a conspiracy to possess with intent to distribute. The government asserted: "In the case at bar, the government can, and will, establish that the defendant, Maza, was a co-conspirator in the importation of cocaine, a conspiratorial agreement that was not set forth in the [earlier] indictment." R1-561-12-13. The government's response was somewhat ambiguous as to whether the importation conspiracy charged was factually, as well as legally, distinct from that with which Maza had already been charged. It appeared possible that the government was trying to hold Maza liable for an importation conspiracy based on no more than his agreement to store cocaine in his garage.

The District Court ordered an evidentiary hearing on Maza's motion to dismiss, citing precedent of this Circuit holding that where a defendant has made a prima facie showing that double jeopardy would apply the government must present some evidence to show that the second charge is based on "a separate," or "newly discovered," conspiracy. See, e.g., Boldin, 772 F.2d at 731. Although the order for a hearing and the authority cited suggests the District Court found that double jeopardy would bar Count Four unless the government offered evidence of a separate conspiracy, the Court did not so hold. Instead, the court held that our decision in Gonzalez, which limited application of the Supreme Court's opinion in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) to "single act crimes," "disposed of" Maza's argument that the § 846 conspiracy charge was a lesser included offense of the CCE charge. On this basis the court found Count Four was not double jeopardy barred. R1-590-7. Because the court summarily rejected the lesser included offense argument it did not analyze or discuss the government's evidence of a separate conspiracy.

Despite its ruling that this prosecution was not barred by double jeopardy, the District Court thought it was relevant to the resolution of Maza's motion that the prosecutors in both districts "had precisely the same evidence against the defendant...." R1-590-8. ⁷ "The government has conceded that the prosecutor in the Southern District had available to him all of the information which was relied upon by the prosecutor in this District, but failed to charge the defendant with a CCE violation." Id. Believing that Boldin compelled dismissal under these circumstances, the court held that the government's "lack of due diligence ... bars the prosecution in this case." Id. We find the trial court misinterpreted our opinion in Boldin and thereby misapplied the due diligence rule. Accordingly, we reverse this ruling. We discuss the double jeopardy issue to eliminate any possible confusion surrounding its application.

II. ANALYSIS

This case requires us to launch into an examination of the Double Jeopardy Clause of the Fifth Amendment, "the decisional law [of which] is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). While these waters are not uncharted, neither is the course easy to follow. The issue raised is whether the Double Jeopardy Clause requires the government to charge, in one proceeding, all of the crimes it has reason to believe a defendant has committed. We find in this case that it does not. Unfortunately, there are no fixed stars to guide us in distinguishing one case from the other--only dim lights--because the resolution depends upon defining what constitutes a "separate conspiracy." This is an endeavor that entails sailing perilously close to the "single transaction" test the Supreme Court has thus far persistently disavowed, even though some form of such a test runs like an invisible current through many of the Court's decisions. In contrast to the difficulties posed by deciding what constitutes a "separate" conspiracy, the due diligence exception is relatively straightforward and so we turn to that issue first.

Due Diligence

The due diligence exception was created to permit a second prosecution in those cases in which the Double Jeopardy Clause would otherwise bar it. The exception was articulated in dicta in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) where the Court announced the general rule that...