U.S. v. McHan

• Decision Date: 01 June 1992
• Docket Number: No. 91-5187,91-5187
• Citation: 966 F.2d 134
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles William McHAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 134

966 F.2d 134

UNITED STATES of America, Plaintiff-Appellee, v. Charles William McHAN, Defendant-Appellant.

No. 91-5187.

United States Court of Appeals Fourth Circuit.

Argued Feb. 5, 1992.

Decided May 4, 1992.

As Amended June 1, 1992.

Sean Patrick Devereux, Whaley, Hay, Pitts, Hugenschmidt, Master, Devereux & Belser, P.A., Asheville, N.C., argued, for defendant-appellant.

Max O. Cogburn, B. Frederic Williams, Jr., Asst. U.S. Attys., argued (Thomas J. Ashcraft, U.S. Atty., Asheville, N.C., on brief), for plaintiff-appellee.

Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.

NIEMEYER, Circuit Judge:

In this interlocutory appeal Charles William McHan, invoking the Double Jeopardy Clause of the Fifth Amendment, attempts to bar his prosecution under Count 1 of the indictment in this case for his role in a 1984-86 conspiracy and under Count 16 for his role in a continuing criminal enterprise during the period 1984-88 because he pled guilty in 1988 to an indictment charging him with a drug conspiracy in March-May 1988. He contends (1) that the 1988 conspiracy for which he had already pled guilty is in fact part of the 1984-86 conspiracy charged in Count 1 and (2) that the same 1988 conspiracy is also an element of the continuing criminal enterprise charged in Count 16. Because this double jeopardy argument is not a frivolous one, we exercise our jurisdiction. See Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977). However, for the reasons that follow, we conclude that the 1984-86 conspiracy is a separate and distinct offense from the 1988 conspiracy and that McHan's participation in each of the conspiracies, even though alleged to be predicate acts of a continuing criminal enterprise, constitute separate offenses. Consequently we hold that McHan's guilty plea to the 1988 conspiracy charge does not bar prosecution for the 1984-86 conspiracy and the continuing criminal enterprise.

I

Intending to arrange a regular supply of marijuana for distribution in Murphy, North Carolina, Charles McHan traveled to El Paso, Texas, in the spring of 1988 to be introduced by Paul Posey to a source of supply. The source turned out to be an undercover officer of the Drug Enforcement Agency, and McHan was arrested after making a sample purchase of 200 pounds of marijuana for $100,000. He and his confederates, Paul Cunningham, Elliott Jones, and Larry Tankersley, were indicted on July 8, 1988, for conspiracy to possess with intent to distribute and to distribute over 1,000 kilograms of marijuana, "in or about March 1988, and continuously thereafter, until on or about May 4, 1988, within the Western District of North Carolina and elsewhere," in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment described the conspiracy's object "to transport to and distribute in and from ... North Carolina 2000 pounds per month of marijuana," and overt acts included the preparations in Murphy, North Carolina, and El Paso, Texas, for establishing a source of supply in Texas for marijuana, as well as the completed sample purchase. Pursuant to a plea agreement, McHan pled guilty on September 20, 1988, to the lesser included offense of conspiracy to possess with intent to distribute 200 pounds of marijuana, the amount actually purchased by him. For its part, the government agreed that "prosecution in the Southern District of Texas will not be reinstituted concerning the facts alleged in this indictment."

Later, when McHan learned that the government was considering using the conspiracy as a predicate to a continuing criminal enterprise (CCE) charge, he tried to withdraw the guilty plea on the grounds that it was coerced and that he was unaware that his conviction might be used as a CCE predicate offense. The district court denied his motion to withdraw the plea and we affirmed in United States v. McHan, 920 F.2d 244 (4th Cir.1990).

A second indictment was filed on September 13, 1990, in 17 counts. ¹ Count 1 alleged a marijuana distribution conspiracy from November 1984 to November 1986 among McHan, Posey, Cunningham, Jones, James Boruff, Francis Hamilton, and Richard Stover in violation of 21 U.S.C. § 846. Counts 2-12 alleged substantive offenses during the summer of 1985 involving the same individuals. Counts 13-15 alleged tax evasion. Count 16 alleged a continuing criminal enterprise involving the "doing, causing, facilitating, and aiding and abetting [of] the importation, possession with intent to distribute, and distribution of marijuana" from November 1984 to May 1988 in the Western District of North Carolina and elsewhere in violation of 21 U.S.C. § 848. The indictment did not identify the "five or more other persons" of the enterprise. See 21 U.S.C. § 848(c)(2). Finally, Count 17 alleged a forfeiture of property based on the CCE charge.

Trial on the second indictment has not proceeded smoothly. Initially, it began on March 26, 1991, and Posey, the government's confidential informant who had helped set up the sting in 1988, gave testimony about McHan's total operation, as well as about the sting in 1988 that resulted in McHan's prior conviction for the 1988 conspiracy. Shortly after the trial began, the government and McHan reached a plea agreement which was accepted by the court. When McHan's wife refused to agree to the forfeiture of certain property, a condition in the plea agreement, a second trial was scheduled. Thereafter, Posey, one of the government's important witnesses, was killed. ² Immediately before the impanelment of a jury for the second trial, McHan's attorneys moved to dismiss Counts 1 and 16, the conspiracy and CCE charges, and McHan acting pro se moved to dismiss the entire indictment, contending that the charges subject McHan to consecutive prosecutions for the "same offense" in violation of the Double Jeopardy Clause of the Fifth Amendment.

After two days of hearings on the motions, the district court denied them and ordered any interlocutory appeal to be taken expeditiously. McHan appealed the court's order only to the extent that it refused to dismiss Counts 1 and 16. Because the government preferred to try all charges at one time, the district court has agreed to continue trial until conclusion of the appeal.

II

McHan first contends that the conspiracy in 1988, to which he pled guilty, and the conspiracy in 1984-86 charged in Count 1 of the present indictment are merely two parts of one continuous conspiracy that the government has improperly divided, and that his guilty plea to the 1988 conspiracy charge bars the current prosecution for any other aspect of the same conspiracy because of the Double Jeopardy Clause of the Fifth Amendment.

The Fifth Amendment provides that no one shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Because this clause includes a bar against successive prosecutions for the same offense, see, e.g., North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969), it forbids "the division of a single conspiracy into multiple violations of a conspiracy statute." United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir.1986). To determine whether two charged conspiracies are in fact "the same offense" for double jeopardy analysis, the court considers the degree of overlap in

(1) the time periods covered by the alleged conspiracies; (2) the places where the conspiracies are alleged to have occurred; (3) the persons charged as co-conspirators; (4) the overt acts alleged to have been committed in furtherance of the conspiracies, or any other descriptions of the offenses charged which indicate the nature and scope of the activities being prosecuted; and (5) the substantive statutes alleged to have been violated.

United States v. Ragins, 840 F.2d 1184, 1189 (4th Cir.1988). But these factors are not to be rigidly applied. They provide a discipline of analysis, to be flexibly applied, to determine whether two conspiracy counts in fact charge one offense. Thus, other characteristics of the charged conspiracies may be relevant, such as "the relationship between the activities of the conspiracies," MacDougall, 790 F.2d at 1145, or their "method of operation," Ragins, 840 F.2d at 1192. Moreover, no set degree of overlap need be shown, and the relative weights of the factors may vary from case to case. Cf. MacDougall, 790 F.2d at 1145 (considering the identities of co-conspirators and the relationship between conspiracies of primary importance for that case).

Once a defendant makes a "non-frivolous" showing that two charged conspiracies are one, the government must establish that they are indeed two. Ragins, 840 F.2d at 1192. The defendant's initial burden may be carried by pointing out, on the basis of the factors to be applied, substantial overlaps in the two charged conspiracies, and he may rely on the face of the indictments or on other evidence. See id. As the burden shifts to the government to demonstrate by a preponderance of the evidence that in fact two offenses are charged, the government too may rely on the indictments or on other evidence that is appropriately considered by the court on preliminary motions committed to the court for resolution. See id. While the district court's factual conclusions are reviewed on a clearly-erroneous standard, its legal conclusions are reviewed de novo.

In support of McHan's contention that Count 1 charges the same conspiracy to which he pled guilty in 1988, McHan points out, relying on both the indictments and the testimony of now-deceased co-conspirators Posey and Cunningham, that as presented by the government both conspiracies concern the purchase of marijuana in South Texas, its transportation to Murphy, North Carolina, and its subsequent distribution there; both involved McHan, Posey, Cunningham and Jones; and both are alleged to have violated 21 U.S.C. § 846. According to McHan, any apparent hiatus between the...