U.S. v. Mintz, s. 92-3387

• Decision Date: 22 February 1994
• Docket Number: Nos. 92-3387,92-3388 and 92-3420,s. 92-3387
• Citation: 16 F.3d 1101
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Michael M. MINTZ and Paul Silvers, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1101

16 F.3d 1101

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Michael M. MINTZ and Paul Silvers, Defendants-Appellants,

Cross-Appellees.

Nos. 92-3387, 92-3388 and 92-3420.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 1994.

Marilyn M. Trubey, Branch Chief, Federal Public Defender's Office (Charles D. Anderson, Federal Public Defender, with her on the briefs), Topeka, Kansas, for Defendant-Appellant/Cross-Appellee Michael M. Mintz.

F.G. Manzanares, Topeka, Kansas, for Defendant-Appellant/Cross-Appellee Paul Silvers.

Gregory G. Hough, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff-Appellee/Cross-Appellant.

Before TACHA, SETH, and ALDISERT ^*, Circuit Judges.

SETH, Circuit Judge.

Appellants/Cross-Appellees Michael M. Mintz and Paul Silvers were indicted in the United States District Court for the Southern District of Florida on three counts: conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952(a) and 963, importation of marijuana in violation of 21 U.S.C. Secs. 952(a), and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 ("Florida conspiracy"). These charges arise from the importation and sale of 632.9 pounds of Jamaican marijuana to an undercover agent in Florida. On September 11, 1991, both Mintz and Silvers pled guilty to Count 1, conspiracy to import, and the other charges were dismissed with prejudice. Subsequently, both Mintz and Silvers were sentenced to 121 months imprisonment with five years supervised release and were fined.

Also on September 11, 1991, Defendants were indicted in the United States District Court for the District of Kansas on two counts: conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 ("Kansas conspiracy"), and possession with intent to distribute more than 1,000 plants in violation of 21 U.S.C. Sec. 841(a)(1). These charges arise from the harvesting and sale of marijuana from fields in Kansas.

Defendants moved to have both Kansas counts dismissed on double jeopardy grounds, claiming that their activities in Florida and those in Kansas were part of one continuing conspiracy. The United States District Court for the District of Kansas dismissed Count 1, conspiracy to possess with intent to distribute, but not Count 2, possession of marijuana with intent to distribute. Defendants appeal the court's refusal to dismiss Count 2. The Government cross-appeals, challenging the court's dismissal of Count 1. The Government also argues that Defendants improperly appealed the refusal to dismiss Count 2 and therefore seeks to have the appeal dismissed. This argument is without merit as this interlocutory appeal was properly brought pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). See also United States v. Holland, 956 F.2d 990 (10th Cir.1992) (Jeopardy attached to conspiracy count which had been dismissed with prejudice.). As to the remaining issues on appeal, we affirm the district court.

Mintz testified that his primary goal in selling both the Kansas and Jamaican marijuana was to raise money in order to repurchase his failing cosmetic business. Silvers, who had made deliveries for Mintz' cosmetics business, participated in both the Kansas and Florida endeavors. However, a factual dispute exists as to whether the ultimate plan was a joint venture to mix the two types of marijuana for sale in New York.

The conduct giving rise to the Kansas charges involved a plan to harvest "wild" marijuana in Kansas which would be sold in New York. In the Kansas indictment the Government contends that the conspiracy lasted from July 1990 to September 1990. The Defendants do not dispute this.

In August of 1990, Silvers introduced Mintz to Sam Walker who then arranged a meeting in New York between them and Sandra Wolfe to discuss the possibility of harvesting "wild" marijuana in Kansas. Mintz and Silvers eventually flew to Kansas and set up an operation to harvest and sell the Kansas marijuana. Mintz used a credit card to finance the plan which included renting a house to process the marijuana, and flying others in from New York and Florida to steal, process, and eventually transport the marijuana to New York. Mintz claims that approximately 300 pounds of marijuana were transported to New York. The proceeds from the sales were used to pay the people who harvested the marijuana, as a payment towards repurchasing the cosmetic business, living expenses, and according to Silvers' affidavit to "make and [sic] advanced payment to a person who was going to transport the marijuana from Jamaica to Florida." R.O.A., Vol. IV., No. 403.

Additionally, Defendants were involved in the transfer of higher quality marijuana from Jamaica into Florida which was also to be sold in New York. The Government claims that the Florida conspiracy occurred October 6 to October 25, 1990, but Defendants claim that plans for the importation of Jamaican marijuana began as early as May or June of 1990.

Mintz had previously dealt with contacts in Jamaica in order to import marijuana. Once Mintz decided he needed to raise money to save his business in the summer of 1990, he attempted to rekindle the relationship, but his contacts would not front the drugs without a payment. He was unable to work out an arrangement until October 1990 when the Drug Enforcement Administration ("DEA") was conducting an undercover investigation and John Craig put Mintz in touch with a contact, undercover DEA Special Agent Prevatt. After an initial meeting between Prevatt and Mintz, they then met with Silvers on October 17, 1990 to discuss Prevatt's delivery of marijuana. Silvers later gave Prevatt $20,040 as an initial payment for the transportation of 4,000 pounds of marijuana from Jamaica. On October 25, 1990, Craig loaded 632.9 pounds of marijuana onto a boat in Jamaica manned by four undercover agents. Mintz and Silvers were subsequently arrested.

Pursuant to the Florida plea agreement, Mintz assisted the DEA in two ongoing investigations. Mintz' bond was revoked when he "consummated a 750 pound marijuana transaction unbeknownst to law enforcement." Gov't. Brief at 9. Prior to the Florida sentencing on March 3, 1992, the Kansas United States Attorney's office had contacted the Florida United States Attorney's office about a Rule 20 transfer in order to consolidate the two cases. The two offices corresponded and Mintz offered two proffers seeking consolidation in Florida. However, nothing was ever finalized and due to Mintz' bond revocation, the final proffer was rejected and the two prosecutions proceeded independently of each other.

The first issue on appeal is whether the court erred in dismissing the Kansas conspiracy based on double jeopardy grounds due to the dismissal with prejudice of the Florida conspiracy. The second issue is whether double jeopardy bars the Kansas possession with intent to distribute charge based on the sentence given in Florida.

The protection guaranteed by the Double Jeopardy Clause of the Constitution "applies both to successive punishments and to successive prosecutions for the same criminal offense." United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). We review the district court's legal conclusion regarding double jeopardy de novo. United States v. Cardall, 885 F.2d 656, 665 (10th Cir.1989). We review the underlying factual findings using the clearly erroneous standard. United States v. Jones, 816 F.2d 1483, 1486 (10th Cir.1987). The Defendants carry the burden of proving double jeopardy. United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir.1991). The Defendants must prove "in fact and in law" that only one conspiracy existed in order to prevail on their double jeopardy claim. United States v. Daniels, 857 F.2d 1392, 1394 (10th Cir.1988).

Issue 1:

To determine if the two charges would violate the Double Jeopardy Clause, we apply the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Generally the Blockburger test "provides that offenses charged are identical in law and fact only if the facts alleged in one would sustain a conviction if offered in support of the other." United States v. Puckett, 692 F.2d 663, 667 (10th Cir.1982). In a double jeopardy analysis involving conspiracies, the court must determine whether the two transactions were interdependent and whether the Defendants were "united in a common unlawful goal or purpose." United States v. Sasser, 974 F.2d 1544, 1550 (10th Cir.1992) (quoting United States v. Daily, 921 F.2d 994, 1007 (10th Cir.1990)).

The district court found that the Kansas transactions and the Florida transactions "are so interdependent as to constitute one conspiracy." United States v. Mintz, 804 F.Supp. 229, 230 (D.Kan.1992). Although the court stated that under a pure Blockburger test the conspiracies were not one offense, the court relied on Sasser and Daily to find one conspiracy.

In its Order, the court mentioned Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which required a second step of analysis, the "same conduct" test, in determining double jeopardy problems. However, the Supreme Court recently overruled Grady in Dixon, stating that Grady lacked constitutional roots and was impractical to apply. Dixon, --- U.S. at ---- - ----, 113 S.Ct. at 2863-64. We asked the parties to address Dixon at oral argument; however, we find that the overruling of Grady does not affect the district court's decision since the court did not rely on Grady, but rather followed the analysis of Sasser, which was unaffected by Dixon.

Defendants contend that the court acted properly in dismissing the Kansas conspiracy count because they proved the existence of only one conspiracy through affidavits from Harold Borg (Silvers'...