U.S. v. Ragins

• Decision Date: 08 March 1988
• Docket Number: No. 87-5084,87-5084
• Citation: 840 F.2d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles S. RAGINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1184

840 F.2d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Charles S. RAGINS, Defendant-Appellant.

No. 87-5084.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 4, 1987.

Decided March 8, 1988.

Clifford Scott, New York City, (Luther J. Battiste, III, Johnson, Toal & Battiste, P.A., Columbia, S.C., on brief), for defendant-appellant.

Eric William Ruschky, Asst. U.S. Atty. (Vinton D. Lide, U.S. Atty., Columbia, S.C., on brief), for plaintiff-appellee.

Before PHILLIPS, SPROUSE, and ERVIN, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

Charles Ragins appeals the denial of his pre-trial motion to dismiss, on double jeopardy grounds, an indictment returned against him charging conspiracy and substantive offenses related to illegal immigrations. ¹ We affirm the district court's refusal to dismiss the substantive counts of the indictment, but reverse and remand for further proceedings respecting the conspiracy charge.

I

On March 5, 1986, Charles Ragins, Wildred Knight and others were indicted by a federal grand jury in the District of South Carolina. The indictment (first indictment) contained eight separate counts of conspiracy to make false statements regarding marriage and residence to the Immigration and Naturalization Service (INS), in violation of 18 U.S.C. Sec. 1546, and to conceal from the INS material facts regarding marriage and residence, in violation of 18 U.S.C. Sec. 1001. The conspiracies were alleged to have taken place "in the District of South Carolina and elsewhere," at various times between January 4, 1983 and November 21, 1984. Each conspiracy involved a scheme to obtain an immigration visa for a person of Jamaican nationality by means of a fraudulent marriage to an American citizen.

Wildred Knight was charged as a defendant in all of the eight conspiracies, but his cast of co-conspirators varied. Count I alleged that Knight had conspired with Barbara Beckford Burgess and "others to the Grand Jury unknown"; Counts II and III, that he had conspired with Leonard Fred Bhagwandat and "others to the Grand Jury unknown"; and count IX, that he had conspired with Charles Ragins, Preston Gass, and Salome Burgess. In the four remaining conspiracy counts Knight was alleged to have conspired simply with "others to the Grand Jury unknown." The indictment also contained two counts charging Knight and others with the substantive offense of possessing an identification document with intent to defraud the United States, in violation of 18 U.S.C. Sec. 1028(a)(4).

Ragins was specifically named as a defendant in only two of the first indictment's ten Counts--Counts IX and X, which involved the marriage of Salome Graham and Solomon Burgess. Count IX charged Ragins, Knight and two others--Preston Gass and Salome Graham--with conspiring to violate 18 U.S.C. Secs. 1546 and 1001; Count X charged Ragins, Knight and Gass with the substantive offense of possessing an identification document with intent to defraud the United States in violation of 18 U.S.C. Sec. 1028(a)(4).

Two weeks before trial, Wildred Knight pled guilty to the conspiracy charges in Counts II and IX, and disclosed that Ragins, who at that point had been charged in only one of the eight conspiracies--the conspiracy charged in Count IX--had also been involved in the conspiracies charged in Counts I and IV. Rather than obtaining a superseding indictment charging Ragins with the additional offenses, the government chose to proceed to trial against him under the original indictment. The case was tried to a jury, which acquitted Ragins on both counts.

On April 8, 1987, the federal grand jury returned a second indictment charging Ragins with offenses based on his participation in several other allegedly fraudulent marriages. The second indictment, which is the subject of this appeal, contains three counts. Count I charges Ragins, Eloise Davis, and "others to the Grand Jury known and unknown" with a continuing conspiracy to violate the same statutory provisions charged in the first indictment, 18 U.S.C. Secs. 1546 and 1001. The second indictment sets out twenty overt acts in furtherance of this conspiracy, which is alleged to have existed from on or before January 4, 1983 through May 30, 1984, in the District of South Carolina and elsewhere. Eleven of these overt acts were also alleged as overt acts in the conspiracies charged in the earlier indictment. The instant indictment also contains two substantive offenses: Count II charges both Ragins and Davis with possession of an identification document with intent to defraud the United States, in violation of 18 U.S.C. Sec. 1028(a)(4), and Count III charges Ragins alone with aiding and abetting others in the violation of the same statute.

Before trial, Ragins moved to dismiss the indictment on the basis of double jeopardy, contending that it accused him of the same offenses for which he was acquitted in the earlier trial. The district court denied the motion to dismiss, and Ragins took this interlocutory appeal.

II

The Double Jeopardy Clause of the fifth amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." There are two distinct components to this constitutional guarantee. The first provides protection against the imposition of cumulative punishments for the "same offense" in a single criminal trial; the second against being subjected to successive prosecutions for the "same offense," without regard to the actual imposition of punishment. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Ragins argues that the instant indictment violates the second of these guarantees because it subjects him to reprosecution for offenses of which he was acquitted in 1986. The critical question, then, is whether any or all of the offenses charged against him here are the "same offenses" as those charged against him in the earlier indictment.

It is important at the outset to recognize that different "same offense" tests apply depending on the particular context in which the double jeopardy plea is asserted. Where the plea is against the imposition of cumulative sentences for multiple convictions obtained at a single criminal trial, double jeopardy's role is limited to assuring that the sentencing court does not exceed its legislative authorization by imposing more than one punishment for something the legislature has defined as a single crime. Brown, 432 U.S. at 165, 97 S.Ct. at 2225; see Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). In this context, the established test for determining whether two offenses are the "same" is that first set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Blockburger test, which is essentially one of legislative intent, focuses on the formal elements of the two crimes, finding them to be different offenses if each requires proof of a fact which the other does not. Id.

Where, on the other hand, the plea is against successive prosecutions, double jeopardy serves the additional purpose of providing criminal defendants with a measure of finality and repose. Brown, 432 U.S. at 165, 97 S.Ct. at 2225; see United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion). In this aspect, double jeopardy guarantees that an accused who has once stood the ordeal of criminal prosecution through to judgment--whether of conviction or acquittal--shall not be required to "run the gauntlet" of trial again for the same alleged misconduct. Green v. United States, 355 U.S. 184, 187-90, 78 S.Ct. 221, 223-26, 2 L.Ed.2d 199 (1957); see Jordan v. Virginia, 653 F.2d 870, 873 (4th Cir.1980); United States v. Sabella, 272 F.2d 206, 211-12 (2d Cir.1959). Given the multiplicity of offenses that may arise from a single criminal transaction, the formalistic Blockburger test, with its narrow focus on the technical elements of the offenses charged, is inadequate to vindicate this constitutional guarantee against retrial. The general test for determining whether successive prosecutions involve the "same offense" is therefore a more flexible and pragmatic one, which focuses not on the formal elements of the two offenses but rather on the proof actually utilized to establish them. Under this "same evidence" test, the second prosecution is barred by double jeopardy if the evidence actually used to prosecute the first offense would suffice to convict of the second offense as charged. Jordan, 653 F.2d at 873-74; see In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118 (1889), quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871); Sabella, 272 F.2d at 211.

In most instances, the "same evidence" test, pragmatically applied, provides adequate protection against successive prosecutions. In conspiracy cases, however, the peculiar characteristics of the offense itself present special problems that require application of an even more flexible test. The gist of the crime of conspiracy is the agreement to commit unlawful acts. Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289-90, 43 L.Ed.2d 616 (1975). But the same conspiracy may be established by different aggregations of proof, for a single agreement may continue for an extended period of time and involve the commission of numerous criminal acts. Strict application of the "same evidence" test to successive conspiracy charges would therefore permit the government to subject an accused to repeated prosecutions for what is in reality the same criminal conspiracy, simply by selecting a different set of overt acts for each indictment. For this reason, this circuit, along with most others, has adopted a multi-pronged "totality of the circumstances" test to determine whether two successive conspiracy counts charge the "same...