U.S. v. McKinley, 93-10754

• Decision Date: 03 October 1994
• Docket Number: No. 93-10754,93-10754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Joseph McKINLEY; Seamus Moley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 428

38 F.3d 428

UNITED STATES of America, Plaintiff-Appellee, v. Kevin Joseph McKINLEY; Seamus Moley, Defendants-Appellants.

No. 93-10754.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 14, 1994.

Decided Oct. 3, 1994.

David Taylor Shannon, Asst. Federal Public Defender, Tucson, AZ, for defendant-appellant Kevin Joseph McKinley.

D. Jesse Smith, Tucson, AZ, for defendant-appellant Seamus Moley.

Robert L. Miskell, Asst. U.S. Atty., Tucson, AZ, and Sean Connelly, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: HUG, SCHROEDER, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Kevin McKinley and Seamus Moley appeal the district court's order denying their motions to dismiss the indictment brought against them in Arizona. They assert that the indictment subjects them to double jeopardy and that it is vindictive. In it the grand jury has charged them with placing explosive materials in a motor vehicle employed in We determine that we and the district court lack jurisdiction over the double jeopardy claim because it is not ripe for review and that we have no jurisdiction to review the vindictive prosecution claim on interlocutory appeal.

interstate commerce (18 U.S.C. Sec. 33); shipping explosive materials in interstate commerce without a permit (18 U.S.C. Secs. 842(a)(3)(A), 844(a)); transporting explosive materials in interstate commerce with the knowledge and intent that they would be used to kill or injure members of the United Kingdom's military (18 U.S.C. Sec. 844(d)); knowingly and willfully possessing detonators in aid of the Irish Republican Army for use against the United Kingdom (18 U.S.C. Sec. 957); and receipt of explosives by a felon (18 U.S.C. Secs. 842(i)(1) and 844(a)).

BACKGROUND

According to the charges against them in the District of Arizona, McKinley and Moley engaged in a conspiracy to obtain weapons and explosives for the Provisional Irish Republican Army (PIRA). They were successful in obtaining 2900 detonators in Arizona. Those were shipped to the east coast on a Greyhound bus, and from there were sent on to the PIRA in the United Kingdom, where that organization used them in terrorist attacks. From January 1991 to January 1992 at least 35 unexploded detonators were found at bombsites throughout the United Kingdom.

McKinley and Moley were considerably less successful in their attempts to acquire a Stinger surface to air missile and some .50 caliber rifles because they wound up negotiating with government agents for those weapons. That debacle led to their prosecution for conspiracy and attempted weapons procurement in the Southern District of Florida where they were convicted of both the conspiracy and the attempt. United States v. McKinley, 995 F.2d 1020 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1405, 128 L.Ed.2d 77 (1994). The Eleventh Circuit affirmed the convictions, but vacated and remanded for resentencing, so that the district court could make the requisite findings that McKinley and Moley, beyond a reasonable doubt, conspired to commit a particular object of the multi-object conspiracy of which they were convicted before relying on that object in setting the guideline range. Id. at 1025-26. Thereafter, this prosecution ensued. While they were named only as unindicted coconspirators in a count which encompassed the conspiracy for which they had been prosecuted in Florida, they were indicted for the substantive offenses involving the 2900 detonators.

McKinley and Moley then asserted that double jeopardy and vindictive prosecution principles should bar the indictment. The district court disagreed. In so doing, it said that their claim was solely one of double punishment and that a claim of that sort was insufficient to result in a dismissal of the indictment. It also declined to dismiss on vindictive prosecution grounds. This interlocutory appeal ensued. We do not reach the merits because we find jurisdiction to be lacking.

JURISDICTION

In general, the district court had jurisdiction under 18 U.S.C. Sec. 3231. In general, we have interlocutory jurisdiction over the double jeopardy claim pursuant to 28 U.S.C. Sec. 1291 and Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2042, 52 L.Ed.2d 651 (1977). However, as discussed below, jurisdiction does not exist in this case because the double jeopardy claim is not ripe and the vindictive prosecution claim cannot be brought up on an interlocutory appeal.

A. The Motion to Dismiss on Double Jeopardy Grounds

McKinley and Moley contend that the Arizona indictment violates the double jeopardy protection against multiple punishments. They claim that the Arizona indictment should have been dismissed because (1) the substantive offenses with which they are now charged also formed the basis for one of the objects of the multiple-object conspiracy of which they were convicted and for which they were sentenced in Florida; and (2) the conduct which underlies the Arizona charges, their procurement of detonators, was introduced We determine that because the double jeopardy claim focuses on double punishment it is not ripe for review. McKinley and Moley have not been convicted, much less sentenced, in Arizona. Moreover, their Florida sentences have been vacated by the Eleventh Circuit, and resentencing upon remand has not occurred as yet because the Supreme Court only recently denied their petitions for certiorari regarding the Eleventh Circuit's decision. --- U.S. ----, 114 S.Ct. 1405, 128 L.Ed.2d 77 (1994). At present, therefore, no operative Florida sentence with which to compare the potential Arizona conviction and sentence exists, and no conviction or sentencing has occurred in Arizona.

to enhance their sentence in Florida. Both issues framed by them are, as they indicate, aimed at the multiple punishment branch of double jeopardy and not at multiple prosecution.

Neither the Florida nor the Arizona sentencing procedure has come to rest and we are unable to predict that any double punishment will ensue. It is true that at the Florida trial some reference was made to the detonators which are the subject of the Arizona indictment, but the evidence at that trial focused on the negotiations for the purchase of the Stinger missile. McKinley, 995 F.2d at 1022-23. The circumstances surrounding the purchase of the 2900 detonators, which form the crux of the charges in the Arizona indictment, were only admitted into evidence at the Florida trial to the extent that McKinley himself referenced them during negotiations with undercover agents in Florida for the purchase of the Stinger missile and other munitions, including more detonators.

At the first sentencing in Florida, the government also presented the testimony of Marvin Jameson concerning McKinley and Moley's acquisition of 2900 detonators in Arizona. Based upon that, among other things, the government sought an upward departure under United States Sentencing Commission, Guidelines Manual Sec. 5K2.15 (Nov. 1990) because McKinley and Moley's "actual and attempted procurement of detonators and their attempts to buy C-4, guns, mortars, and ammunition" were "committed in furtherance of the wide-spread and bloody terrorist violence of the Provisional Irish Republican Army." The district court declined to upwardly depart but imposed sentences at the upper end of the applicable guideline range, "[d]ue to the seriousness of the crimes" of which McKinley and Moley had been convicted. It gave no indication that it was punishing McKinley and Moley for the Arizona detonator purchase and shipment.

We certainly cannot predict what the ultimate evidence and result will be in the second Florida sentencing proceeding. "[O]nly when [the Florida sentence] is final can [this] court develop the full picture of defendants' claims to having already been 'punished'...." United States v. Amiel, 995 F.2d 367, 371 (2d Cir.1993). Since both proceedings--not just the instant prosecution--are incomplete, it would not only be premature but nearly impossible to evaluate McKinley and Moley's double punishment claim. Id. at 370. We do not eschew engaging in vaticination where there is basis to do so. That basis does not appear here.

There is some authority for considering double punishment claims before the second proceeding is complete. See United States v. McCormick (McCormick II), 992 F.2d 437, 439 (2d Cir.1993) (addressing double punishment argument before conviction or sentence in second prosecution); United States v. Eley, 968 F.2d 1143, 1147-48 (11th Cir.1992) (same); cf., United States v. Saccoccia, 18 F.3d 795, 799-800 & n. 3 (9th Cir.1994) (threshold issue regarding double punishment taken up before second conviction but issue itself deferred). But see, United States v. Koonce (Koonce II), 885 F.2d 720, 722 (10th Cir.1989) (claim not ripe until an arguably multiple sentence received); United States v. Caceda, 990 F.2d 707, 709 (2d Cir.1993) (possible double punishment claim must be raised at second sentencing), cert. denied, --- U.S. ----, 114 S.Ct. 312, 126 L.Ed.2d 259 (1993). However, there is no authority for considering double punishment claims when no sentencing proceeding is complete. Before a sentencing has come to rest the evidentiary, factual and legal bases for any punishment are so indeterminate that no proper comparison of the proceedings can

be undertaken. We therefore determine that the double jeopardy claim is not ripe, so we lack jurisdiction to review it at this time. See Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir.1990), ("Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction...."), cert. denied, --- U.S. ----, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991).

B. Vindictive Prosecution Claim

McKinley and...