U.S. v. Morris

• Decision Date: 10 September 1996
• Docket Number: 96-1252,Nos. 96-1251,s. 96-1251
• Citation: 99 F.3d 476
• Parties: -5496, 96-2 USTC P 50,607 UNITED STATES of America, Appellee, v. Irvin R. MORRIS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Stuart L. SMITH, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 476

99 F.3d 476

80 A.F.T.R.2d 97-5496, 96-2 USTC P 50,607

UNITED STATES of America, Appellee, v. Irvin R. MORRIS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Stuart L. SMITH, Defendant, Appellant.

Nos. 96-1251, 96-1252.

United States Court of Appeals First Circuit.

Heard Sept. 10, 1996.

Decided Nov. 6, 1996.

William Maselli, Auburn, ME, for appellant Morris.

Theodore A. Barone, with whom William F. Sullivan, Sullivan and Largey, and Perkins, Smith & Cohen were on brief, for appellant Smith.

F. Mark Terison, Assistant United States Attorney, Boston, MA, with whom Jay P. McCloskey, United States Attorney, and Jonathan A. Toof, Assistant United States Attorney, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

These interlocutory appeals question whether the acquittal of appellants Irvin R. Morris and Stuart L. Smith on charges of conspiracy to distribute marijuana bars the government from now prosecuting them on charges of conspiracy to defraud the Internal Revenue Service (IRS). The district court answered this question in the negative. Concluding, as we do, that neither double jeopardy nor collateral estoppel principles preclude continued prosecution of the tax conspiracy charge, we affirm.

I. Background

In 1994, a federal grand jury returned a three-count indictment against the appellants and seven other persons. ¹ Count 1 charged the appellants (and others) with conspiracy to distribute and to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) & 846 (1994). Count 2 sought criminal forfeiture of property used in or derived from the marijuana conspiracy. See 21 U.S.C. § 853 (1994). Count 3 charged the appellants (and others) with conspiracy to defraud the IRS in the determination and collection of income taxes, in violation of 18 U.S.C. § 371 (1994).

The district court severed count 3 and proceeded to trial on the other counts. The jury returned a "not guilty" verdict on count 1, putting an end to that charge and also eviscerating count 2. The appellants then moved to dismiss count 3 on double jeopardy and collateral estoppel grounds. The district court denied the motions. These interlocutory appeals ensued. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977) (holding that pretrial orders rejecting double jeopardy claims premised on successive prosecutions are immediately appealable). ² Inasmuch as the appeals challenge the district court's application of the law rather than its factfinding, our review is plenary.

II. Double Jeopardy

The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. The Clause has three aspects: it shields a defendant from a second prosecution for the same offense after either conviction or acquittal, and it also prohibits multiple punishments for the same offense. See United States v. Stoller, 78 F.3d 710, 714 (1st Cir.1996), cert. dismissed, --- U.S. ----, 117 S.Ct. 378, 136 L.Ed.2d 297 (1996); United States v. Caraballo-Cruz, 52 F.3d 390, 391 (1st Cir.1995); United States v. Rivera-Martinez, 931 F.2d 148, 152 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991). Here, the appellants invoke the Clause's protection against successive prosecutions. The resolution of their claim turns on whether the tax conspiracy is the same offense as the marijuana conspiracy for double jeopardy purposes.

The Supreme Court has authored a black-letter rule for use in determining when double jeopardy principles prohibit prosecution under two distinct statutory provisions: "where the same act or transaction constitutes a violation of [both] statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If the crimes charged are discrete offenses within the contemplation of Blockburger, the defendant may be prosecuted consecutively for them, even if the crimes arise out of the same conduct or nucleus of operative facts. See United States v. Parrilla-Tirado, 22 F.3d 368, 372 (1st Cir.1994). Thus, the Blockburger rule depends on statutory analysis, not on evidentiary comparisons.

Having carefully examined the record, we conclude, as did the court below, that the tax conspiracy and the marijuana conspiracy are separate offenses. To establish the tax conspiracy, the government must prove that the conspiracy existed, that the defendants agreed to participate in it, and that at least one overt act was perpetrated in furtherance of the goal of defrauding the United States. See United States v. Cambara, 902 F.2d 144, 146-47 (1st Cir.1990). To establish the marijuana conspiracy, the government had to prove that the conspiracy existed, that the defendants agreed to participate in it, and that they intended to possess and distribute marijuana. See United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.1993), cert. denied, 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994). Thus, the primary objects of the two conspiracies are different, and each of the charged crimes includes an element that the other does not.

These differences are brought home by parsing the indictment in this case. In respect to count 3, the government needs to prove at trial that the appellants specifically intended to defraud the IRS and that they undertook at least one overt act in furtherance of that conspiracy--proof that is extraneous to establishing the marijuana conspiracy. In respect to count 1, however, the government needed to prove at trial that the appellants intended to distribute marijuana--proof that is extraneous to establishing the tax conspiracy. On this basis, the two charges constitute distinct offenses under Blockburger. See, e.g., United States v. Gomez-Pabon, 911 F.2d 847, 861-62 (1st Cir.1990) (holding that a conspiracy to import cocaine and a conspiracy to possess cocaine with intent to distribute are distinct offenses because they differ "in what they specify as the proscribed object of the conspiracy"), cert. denied, 498 U.S. 1074, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991); United States v. Rodriguez, 858 F.2d 809, 817 (1st Cir.1988) (holding that conspiracy to distribute cocaine and aiding and abetting the possession of cocaine with intent to distribute are distinct offenses and may be charged separately even if both arise out of the same transaction because each requires proof of an element that the other does not). Hence, trying the appellants on count 3 will not violate the Double Jeopardy Clause.

The appellants decry this analysis as excessively technical. They hawk three separate, but related, rejoinders: (1) that the government will introduce at a future trial much the same evidence which it used in the previous trial; (2) that despite the proliferation of counts the government in fact alleged only a single conspiracy involving distribution of marijuana and concealment of the profits derived therefrom; and (3) that the district court misapplied this court's gloss on the test for determining when two separately charged conspiracies are deemed synonymous for double jeopardy purposes. These asseverations lack force.

1. Same Evidence. The Supreme Court has never endorsed a blanket rule prohibiting the government from using the same evidence to prove two different offenses against a single defendant. To be sure, at the high-water mark for double jeopardy protection the Court briefly adopted a "same conduct" test. See Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990). But the Court laid waste to Grady in fairly short order and confirmed that the performance of a Blockburger analysis completes the judicial task in a successive prosecution case. See United States v. Dixon, 509 U.S. 688, 712, 113 S.Ct. 2849, 2864, 125 L.Ed.2d 556 (1993) (overruling Grady ). Consequently, the appellants' "same evidence" argument fails.

2. Singularity of the Conspiracy. The appellants' assertion that the government alleged only one overarching conspiracy is no more than a play on words. Even if the transactions on which the charges rest are intertwined--the "best case" assumption for the appellants, and a matter on which we need not opine--this datum would not alter the outcome of a Blockburger inquiry. "It is well settled that a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause," and this tenet "is true even though the 'single transaction' is an agreement or conspiracy." Albernaz v. United States, 450 U.S. 333, 344 n. 3, 101 S.Ct. 1137, 1145 n. 3, 67 L.Ed.2d 275 (1981).

Whether a particular course of conduct involves one or more distinct offenses depends on congressional choice, and the Double Jeopardy Clause offers little limitation on that choice. See Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 2181-82, 57 L.Ed.2d 43 (1978). This principle readily disposes of the appellants' argument. As we already have shown, Congress defined the tax conspiracy and the marijuana conspiracy such that each requires proof of a fact that the other does not.

3. Segregating Distinct Conspiracies. Finally, the appellants urge us to find that they are shielded from prosecution for the tax conspiracy because of the imbrication between it and the marijuana conspiracy. In framing this exhortation the appellants pin their hopes on United States v. Booth, 673 F.2d 27, 29 (1st Cir.), cert. denied, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982), in which we set out a five-part test for determining whether two conspiracies are synonymous for double jeopardy purposes. Here, four-fifths of the test falls neatly into place: it...