U.S. v. Okolie

• Citation: 3 F.3d 287
• Decision Date: 08 October 1993
• Docket Number: No. 92-3149,92-3149
• Parties: UNITED STATES of America, Appellee, v. Michael Lenox OKOLIE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 287

3 F.3d 287

UNITED STATES of America, Appellee, v. Michael Lenox OKOLIE, Appellant.

No. 92-3149.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1993.

Decided Aug. 25, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 8, 1993.

John W. Hall, Little Rock, AR, argued for appellant.

Howard J. Marcus, Asst. U.S. Atty., St. Louis, MO, argued for appellee.

Before BOWMAN and MAGILL, Circuit Judges, and HENDREN, ^* District Judge.

HENDREN, District Judge.

This appeal follows from the entry of a conditional guilty plea by Michael Lenox Okolie and the judgment of the district court ¹ adjudging Okolie guilty and sentencing him to be imprisoned for a period of 121 months. The indictment in this case was filed in the Eastern District of Missouri on October 23, 1991, charging Michael Okolie and his wife, Marie Carmelle Okolie, with one count of conspiracy to distribute cocaine in violation of 21 U.S.C. sections 841(a) & (b) and 846 between March 1989 and March 1991. Michael Okolie was also charged with two counts of money laundering in violation of 18 U.S.C. section 1956(a)(1)(A)(i) and (2) based on wire transfers of currency allegedly committed on March 28, 1990 and August 8, 1990. On May 4, 1992, Okolie entered a conditional plea of guilty, reserving the right to appeal the denial of his motion to dismiss, wherein he asserted a violation of the double jeopardy clause of the Fifth Amendment.

Prior to the indictment in this case, on July 27, 1990, Okolie, along with twelve other persons, was indicted in the Southern District of Florida for conspiracy to distribute heroin and cocaine from in or about December 1986, to on or about July 26, 1990, in Dade County, Florida "and elsewhere." Okolie was also charged with distributing heroin in Dade County on May 24, 1990.

The Florida indictment contained no allegations of overt acts committed in furtherance of the conspiracy. The principal focus of the investigation that led to the indictment was an illegal narcotics operation in Miami headed by Sam Manko, the lead defendant in that case. Manko was also charged with conducting a continuing criminal enterprise during the same period as the conspiracy.

The motion to dismiss was initially considered by United States Magistrate Judge Carol E. Jackson pursuant to an order of the district court referring all pre-trial matters for appropriate disposition under 28 U.S.C. section 636(b). The magistrate judge, in her report and recommendation, recommended that Okolie's motion to dismiss be denied, relying upon the analysis set forth in Kotteakos v. United States, 328 U.S. 750, 769, 66 S.Ct. 1239, 1250, 90 L.Ed. 1557 (1946) and followed by this Circuit in United States v. Snider, 720 F.2d 985, 988 (8th Cir.1983), as well as the factors set forth in United States v. Thomas, 759 F.2d 659, 662 (8th Cir.1985). Magistrate Jackson concluded that the Missouri indictment alleged a conspiracy that is separate and distinct from the conspiracy for which Okolie was convicted in Florida. The district court accepted the magistrate's recommendation and ordered that the motion to dismiss based on double jeopardy be denied. For the reasons discussed below, we affirm.

On appeal, Michael Lenox Okolie contends that the district court erred in denying his motion to dismiss on double jeopardy grounds because the charges alleged in the Missouri indictment and the charge for which he was convicted in Florida were based on a single conspiracy. He claims that the magistrate and the district court erred in (1) applying the wrong legal standard in determining that Okolie's claim was "frivolous"; (2) failing to shift the burden to the government to prove two separate conspiracies; and (3) deciding the double jeopardy issue without the benefit of an evidentiary hearing.

It is well settled that the double jeopardy clause of the Fifth Amendment prohibits the subdivision of a single criminal conspiracy into multiple violations. Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942); United States v. Brown, 926 F.2d 779 (8th Cir.1991); United States v. Kienzle, 896 F.2d 326, 328 (8th Cir.1990). In order to support a claim of double jeopardy, a defendant must show that the two offenses charged are in law and fact the same offense. United States v. Benefield, 874 F.2d 1503, 1505 (11th Cir.1989); United States v. Marable, 578 F.2d 151, 153 (5th Cir.1978). The defendant bears the initial burden of showing a non-frivolous claim of double jeopardy. United States v. Thomas, 759 F.2d at 662. Once the defendant has made that initial showing, the burden shifts to the government to show by a preponderance of the evidence that the two conspiracy indictments charge two separate offenses. United States v. Tercero, 580 F.2d 312, 315 n. 12 (8th Cir.1978). On appeal, this court reviews the issue of double jeopardy de novo. United States v. Benefield, 874 F.2d at 1505.

Okolie first contends that the magistrate erred in applying the "same evidence" test enunciated in United States v. Young, 503 F.2d 1072, 1075-76 (3rd Cir.1974) and United States v. Mallah, 503 F.2d 971, 985 (2nd Cir.1974) as opposed to the totality of the circumstances test set forth by this court in United States v. Thomas, 759 F.2d at 662. Okolie claims that by basing her report and recommendation on the examination of the two indictments and the evidence submitted from the Florida trial and the evidence that the government planned to present at the trial of the Missouri case, the magistrate and the district court required nothing of the government by way of proof or explanation.

Under the "same evidence" test, offenses are the "same" for purposes of the double jeopardy guarantee when the evidence required to support a conviction upon one of the indictments could have been sufficient to warrant a conviction upon the other. United States v. Mallah, 503 F.2d 971 at 985 (quoting United States v. Kramer, 289 F.2d 909, 913 (2nd Cir.1961)). In United States v. Tercero, 580 F.2d at 314-315, this court noted that the efficacy of the "same evidence" test has been questioned in regard to criminal conspiracy cases. The court reasoned that the government often has many overt acts and co-conspirators which it can charge in an indictment and is able to choose one set of overt acts in one indictment and a different set of overt acts in another indictment which results in repeated prosecutions for what is in reality the same criminal conspiracy. United States v. Tercero, 580 F.2d at 314-15. See also United States v. Ragins, 840 F.2d 1184, 1188 (4th Cir.1988). The courts have now adopted the "totality of the circumstances" test to determine whether multiple conspiracies exist. Under this test, the court considers the following five factors: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place. United States v. Thomas, 759 F.2d at 662. See also United States v. Standefer, 948 F.2d 426, 431 (8th Cir.1991); United States v. Kienzle, 896 F.2d 326, 328-29 (8th Cir.1990).

Although the magistrate did not specifically use the term "totality of the circumstances", we are convinced that she applied the correct test. In fact, her report and recommendation liberally cited to United States v. Thomas and included a detailed analysis of the factors set forth in that case.

In analyzing the first factor concerning time, we note that the conspiracy in the Southern District of Florida was alleged to have occurred from December 1986 to July 25, 1990, while the conspiracy in the Eastern District of Missouri was alleged to have spanned from March 1989 to March 1991. Although there is a partial overlap between the two conspiracies of approximately sixteen months, the Missouri conspiracy continued for almost eight months after the Florida indictment was returned. Such a period of time is significant as it is indicative of a separate and ongoing agreement.

Second, we examine the identity of the alleged co-conspirators. The Florida indictment charges twelve persons as being co-conspirators with Okolie, while the Missouri indictment charges only one, Marie Carmelle Okolie, the appellant's wife. Mrs. Okolie was not indicted in the Florida indictment. Also, Joseph Dawson-Otoo, who was one of the defendants in the Florida case, is only named as an unindicted co-conspirator in one of the twenty-seven overt acts listed in the Missouri indictment. Therefore, with the exception of Okolie, the persons actually indicted in the two cases are not the same. See United States v. Tanner, 860 F.2d 864, 867 (8th Cir.1988). Clearly, the...