U.S. v. Nyhuis, s. 91-3628

Decision Date02 December 1993
Docket NumberNos. 91-3628,91-3629,s. 91-3628
Citation8 F.3d 731
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Douglas NYHUIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anicia Marivel RIPOLL, a/k/a Anicia Goodman, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

B. Robert Ohle, St. Petersburg, FL, and Stephen J. Bronis, Miami, FL, for defendants-appellants.

Robert W. Genzman, Rick Jancha, U.S. Attys., Orlando, FL, Karla Spaulding, and David P. Rhodes, Asst. U.S. Attys., Tampa, FL, for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

CARNES, Circuit Judge:

After a joint trial, Douglas Nyhuis and Anicia Goodman appeal their convictions and sentences which resulted from their involvement in a cocaine importation and distribution conspiracy operating inside and outside the United States. Nyhuis was convicted on one count of conspiracy to possess with intent to distribute and to distribute greater than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Goodman was convicted on one count of aiding and abetting the importation of 1500 kilograms of cocaine in violation of 21 U.S.C. §§ 963 and 960(b)(1)(B).

Between them, Nyhuis and Goodman raise seven issues, four of which warrant no discussion. The three issues that do warrant discussion are: 1) Nyhuis's contention that the district court erred in denying his motion to dismiss the indictment returned in the Middle District of Florida on grounds that he was being prosecuted and punished a second time for the same offense in violation of the Double Jeopardy Clause, the first time having been a conviction and sentence in the Western District of Michigan for operating a continuing criminal enterprise; 2) Nyhuis's contention that the district court erred in denying his motion to dismiss the Florida indictment on the grounds that the prosecution violated the terms of immunity he had been granted after his Michigan plea agreement; and 3) Goodman's contention that the district court erroneously considered her extraneous criminal conduct in concluding that her role in this crime was that of an "organizer or leader" under U.S.S.G. § 3B1.1(a). 1 We will discuss these three contentions in the order stated, and conclude that the convictions and sentences of Nyhuis and Goodman are due to be affirmed.

I. NYHUIS'S DOUBLE JEOPARDY CLAIMS

Under a Michigan indictment, Nyhuis was convicted of being a member of a continuing criminal enterprise (CCE) involving the distribution of marijuana. Under the Florida indictment in this case, he was convicted of conspiracy to distribute cocaine. Nyhuis contends that the Michigan and Florida activities were simply two parts of the same conspiracy that existed throughout the entire period of 1983 to 1989, and that he has been convicted twice for his involvement in this single conspiracy. To support this contention, Nyhuis argues that the source of the marijuana and the cocaine was the same throughout the conspiracy and that many of the parties involved in the marijuana CCE were also involved in the conspiracy to distribute cocaine. According to Nyhuis, the Government's use of evidence of his marijuana distribution activities in its Florida cocaine case lends further support for his contention. Nyhuis also argues that because conspiracy is a lesser included offense of CCE, the Florida cocaine conspiracy charge merges into the Michigan marijuana CCE conviction so that separate convictions for the two are barred by the Double Jeopardy Clause. Nyhuis also raises a multiple punishment challenge, contending that because the district court in Michigan considered Nyhuis's involvement in the cocaine conspiracy when it fashioned his sentence for the marijuana CCE conviction, he has been punished twice for this conduct.

A. THE FACTS
1. Nyhuis's Michigan Prosecution For Marijuana Activities

From 1983 to 1989, Nyhuis was involved in marijuana distribution in the Western District of Michigan. In the Michigan operation, Nyhuis was essentially a wholesaler who received shipments of marijuana from Florida and then allocated the goods to his retail distributors. Sometime in 1984, Nyhuis began obtaining his marijuana supply from Florida drug kingpin George Marian through a mutual friend, James Muth. After the Marian marijuana supply line dried up in 1985, Muth continued to supply Nyhuis through the use of sources other than the Marian organization.

Two counts of a twenty-six count indictment returned in the Western District of Michigan in December of 1989 charged Nyhuis with: conspiracy to distribute and possess with intent to distribute marijuana (count one); and operation of a continuing criminal enterprise ("CCE") involving marijuana between January 1985 and October 1987 (count twenty-six). Various counts of the indictment also charged nineteen others, including James Muth; however, George Marian was not named in the indictment. The object of the conspiracy was "to make money from the unlawful distribution and sale of marihuana," with the alleged overt acts occurring principally in Michigan and Florida.

Pursuant to a plea agreement executed on December 13, 1989, Nyhuis pleaded guilty to the CCE count, and the conspiracy count against him was dismissed. Under the terms of the agreement, the Government committed to making a recommendation of a ten-year sentence for Nyhuis. The plea agreement also contained the following clause:

The government agrees not to bring additional criminal charges against the defendant in the Western District of Michigan arising out of his involvement in the distribution of marijuana and those transactions disclosed by the defendant in the proffer already made to the government.

The day after the agreement was executed, Nyhuis testified before a Michigan grand jury. Unfortunately for Nyhuis, he elected to conceal from the Government and the grand jury both his involvement in the cocaine trade and his relationship with George Marian. The Government independently developed evidence that indicated that Nyhuis had been less than candid with the Government and in his grand jury testimony. As a consequence, Nyhuis's plea agreement was renegotiated upward to include a fifteen-year sentence recommendation. The Government did not seek a superseding indictment to incorporate Nyhuis's cocaine activities, and the Michigan district court granted a defense motion in limine prohibiting Nyhuis from being asked about his cocaine activities in his testimony at the trial of his codefendants in Michigan. After being fully informed of Nyhuis's criminal activities--both marijuana and cocaine--the district court in Michigan in July of 1990 sentenced Nyhuis to fourteen years in prison. Two days after his sentencing, Nyhuis again testified before a Michigan grand jury and this time he gave a full account of his marijuana and cocaine dealings with George Marian and others.

2. Nyhuis's Florida Prosecution For Cocaine Activities

In December of 1990, in the Middle District of Florida, an indictment was returned against twenty-three defendants, including Nyhuis and drug kingpin George Marian, for conduct relating to the importation and distribution of cocaine that had occurred from March 1985 through October 1989. Marian himself was charged with operating a CCE for the importation and distribution of cocaine. Nyhuis, named in only one count of the twenty-one count indictment, was charged with conspiring with George Marian and others to possess with intent to distribute and to distribute in excess of 5 kilograms of cocaine hydrochloride. The objects of the conspiracy included possession with intent to distribute and distribution of large quantities of cocaine outside the United States and inside, including within "Florida, Michigan, California, Washington, and elsewhere." The overt acts section of that count specifically charged that in March of 1989 Nyhuis sent a courier from Michigan to pick up cocaine from George Marian in Florida and deliver it to Nyhuis in Michigan. It also charged that in July or August of 1989, Nyhuis facilitated a transaction involving the purchase of cocaine from George Marian in Florida and its transportation to Michigan.

The three key witnesses who testified against Nyhuis at the Florida trial were George Marian and Nyhuis's two cocaine couriers. Marian testified that Nyhuis contacted him in March of 1989 to reestablish their drug trafficking relationship. Marian also stated that he agreed to obtain for Nyhuis "small amount[s]" of cocaine in one kilogram installments. In addition, the two couriers employed by Nyhuis also testified regarding Nyhuis's conduct in connection with the two overt acts in which Nyhuis was named. Nyhuis was convicted of conspiracy to possess with intent to distribute and conspiracy to distribute cocaine.

B. DOUBLE JEOPARDY ANALYSIS AFTER DIXON

"The Double Jeopardy Clause affords the defendant three basic protections. The Clause protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." United States v. Cochran, 883 F.2d 1012, 1016 (11th Cir.1989). "A denial of a motion to dismiss based on double jeopardy grounds is ... a question of law, [and] a district court's double jeopardy ruling is subject to de novo review by the appellate court." United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989). We have also observed that "[w]hen a defendant moves to dismiss an indictment on double jeopardy grounds, it is undisputed that he bears the burden of making a prima facie nonfrivolous claim." Id.. Once this threshold is crossed, "the government must prove by a preponderance of the evidence that the two indictments charge separate crimes." Id. Where the defendant is...

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