U.S. v. McCormick

• Decision Date: 28 April 1993
• Docket Number: D,854,Nos. 694,s. 694
• Citation: 992 F.2d 437
• Parties: UNITED STATES of America, Appellee-Cross-Appellant, v. John W.S. McCORMICK, Defendant-Appellant-Cross-Appellee. ockets 92-1470, 92-1482.
• Court: U.S. Court of Appeals — Second Circuit

Page 437

992 F.2d 437

61 USLW 2720

UNITED STATES of America, Appellee-Cross-Appellant, v. John W.S. McCORMICK, Defendant-Appellant-Cross-Appellee.

Nos. 694, 854, Dockets 92-1470, 92-1482.

United States Court of Appeals Second Circuit.

Argued Feb. 18, 1993.

Decided April 28, 1993.

Bobbi C. Sternheim, New York City (Barry M. Fallick, Rochman Platzer Fallick Rosmarin & Sternheim, of counsel), for defendant-appellant-cross-appellee.

John M. Conroy, Asst. U.S. Atty., Burlington, VT (Charles A. Caruso, U.S. Atty., David V. Kirby, Chief, Crim. Div., of counsel), for appellee-cross-appellant.

Before: OAKES, ALTIMARI and MAHONEY, Circuit Judges.

OAKES, Circuit Judge:

This appeal raises the question whether the Double Jeopardy Clause prohibits the

                conviction and imposition of a sentence for an offense where the same offense was used in a prior proceeding to increase the defendant's offense level under the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines").   Defendant John McCormick appeals and the government cross-appeals an order by the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, granting in part and denying in part a motion by McCormick to dismiss a 41-count indictment on double jeopardy grounds.   The district court determined that those counts, and only those counts, of the Vermont indictment that had been used to determine McCormick's sentence in a separate Connecticut proceeding had to be dismissed.  United States v. McCormick, 798 F.Supp. 203 (D.Vt.1992).   For the reasons set forth below, we affirm
                

BACKGROUND

McCormick was charged in the District of Connecticut with bank fraud and related crimes in a 31-count indictment. The loss resulting from these crimes totaled approximately $75,000. A few months later, McCormick was charged in the District of Vermont with bank fraud, mail fraud, and related crimes in a 41-count superseding indictment. The losses resulting from these alleged crimes exceeded $4 million. Following a jury trial, McCormick was convicted on all counts in the Connecticut indictment.

At sentencing, the government filed a sentencing memorandum describing not only McCormick's fraudulent conduct in Connecticut but similar schemes to defraud that allegedly took place in other states, including Vermont. These other schemes were offered as relevant conduct pursuant to Guidelines § 1B1.3(a)(2). This section directs the sentencing court, when determining the amount of loss for the purpose of calculating the offense level for fraud, to consider acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction...." U.S.S.G. § 1B1.3(a)(2). Accordingly, the government argued that the loss arising from McCormick's conduct fell between the $2 1/2 million to $5 million range, calling for a 13-level increase from the base offense level of six for fraud convictions. See U.S.S.G. § 2F1.1(b)(1)(N). ¹

In the government's communications with the Connecticut district court concerning sentencing, the government addressed the possibility several times that the use of the Vermont conduct in sentencing would preclude further prosecution of McCormick in Vermont for that conduct. For example, the United States Attorney's Office for the District of Connecticut represented in a letter to the court that "[a] sentence based in part on the Vermont conduct will have the effect of barring further prosecution on the Vermont charges." The letter further stated that, if the district court accepted the offense level enhancement based on the Vermont conduct, the "United States Attorney's Office for the District of Vermont feels that although such a sentence would preclude the defendant's conviction on additional felony counts in their District, the ends of justice will have been served...." At the sentencing hearing, the government partially retreated from these statements, claiming that the U.S. Attorney's Office in Vermont was unsure whether it would be barred from further proceedings but that it would "not be likely to pursue their charges...."

The Connecticut court accepted the government's argument and increased McCormick's offense level by 13. Moreover, the court added two more offense points for "more than minimal planning," pursuant to U.S.S.G. § 2F1.1(b)(2), creating a total offense level of 21. The Guidelines sentencing range based on an offense level of 21 and a criminal history category of I, McCormick's category, is 37 to 46 months. The court sentenced McCormick to the top of this range, ordering him to serve concurrent terms of 46 months on each count of the conviction, in addition to a 3 year term of supervised release and restitution. This court by summary order affirmed McCormick's sentence, thus holding that the district court in Connecticut did not err by considering the Vermont frauds in calculating McCormick's Following the Connecticut sentencing, McCormick submitted a motion to the Vermont District Court requesting that the Vermont indictment be dismissed on the grounds that prosecution would violate the Double Jeopardy Clause of the Fifth Amendment. The district court found that further prosecution was barred by the Double Jeopardy Clause only on those counts that were used by the Connecticut court in raising the offense level. On appeal, McCormick argues that all counts should be covered by the Double Jeopardy Clause and, on cross-appeal, the government challenges the district court's finding that there is any double jeopardy problem at all.

sentence. United States v. McCormick, 969 F.2d 1042 (2d Cir.1992) (Table).

DISCUSSION

The Double Jeopardy Clause provides that no one shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Clause protects against both a subsequent prosecution for the same offense after acquittal or conviction as well as multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); see also Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873) ("[T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it."). At issue in this case is whether the prosecution of conduct that has already been used to determine a Guidelines offense level violates the multiple punishments prong of the Double Jeopardy Clause.

Few courts have addressed this particular question. The district court and McCormick rely on the reasoning of United States v. Koonce, 945 F.2d 1145 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1695, 118 L.Ed.2d 406 and cert. denied, --- U.S. ----, 112 S.Ct. 1705, 118 L.Ed.2d 413 (1992). The Koonce court identified three issues to be considered in determining whether the Double Jeopardy Clause prohibited the defendant's prosecution for possession of a controlled substance in the District of Utah, given that the drug possession had already been used to increase the defendant's offense level in sentencing for a separate offense in the District of South Dakota. The court considered whether increasing the offense level in light of the related conduct is "punishment" within the meaning of the Double Jeopardy Clause, whether Congress intended a defendant to be subjected to two punishments for that conduct, and whether the imposition of concurrent rather than consecutive sentences avoids double jeopardy issues. The court ultimately found that prosecution on the possession charge in Utah would violate the defendant's constitutional rights.

The district court in Vermont applied the Koonce analysis to McCormick's case and found that the Double Jeopardy Clause would be violated if McCormick were punished additionally for any of the counts that the Connecticut court considered in raising McCormick's offense level. We agree with the district court's analysis and findings: prosecution of McCormick in Vermont for conduct that was already incorporated into his Connecticut sentence would be a second punishment, Congress did not intend to allow multiple punishments for this type of conduct, and the availability of concurrent sentences does not eliminate this double jeopardy problem.

Application of the first part of the Koonce analysis is straight-forward and resolves McCormick's contention that the district court should have granted his motion to dismiss every count of the Vermont indictment. McCormick was punished for the Vermont conduct that was taken into account by the Connecticut court when it determined the amount of loss for which McCormick was responsible. The government requested that the court take this conduct into account, the court explicitly stated that it was taking the conduct into account, and the ultimate sentence reflects part of McCormick's Vermont conduct. Thus, any further prosecution of McCormick for this conduct would subject him to the possibility of multiple punishments for the same conduct. However, those counts of the indictment that did not affect the Connecticut court's Guidelines calculations are not similarly barred from use.

McCormick offers no evidence that the Connecticut court did in fact incorporate the counts that were not dismissed into its calculations and, therefore, prosecution for those counts cannot constitute a second punishment in violation of the Double Jeopardy Clause.

The second step of the Koonce analysis, determining whether Congress intended to allow the same conduct to be punished under both the Guidelines and a subsequent prosecution, raises the most difficult issue of this case. To begin with, Congress may authorize several penalties for the same act. The multiple punishments prong of the Double Jeopardy Clause limits prosecutorial and judicial action but does not prevent the legislature from assigning multiple punishments for the same conduct. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53...