U.S. v. Ramos-Hernandez

• Decision Date: 02 January 2002
• Docket Number: No. MO-00-CR-141-F(25).,MO-00-CR-141-F(25).
• Citation: 178 F.Supp.2d 713
• Parties: UNITED STATES of America v. Arnaldo RAMOS-HERNANDEZ, a/k/a Hippy, Defendant.
• Court: U.S. District Court — Western District of Texas

178 F.Supp.2d 713

UNITED STATES of America v.Arnaldo RAMOS-HERNANDEZ, a/k/a Hippy, Defendant.

No. MO-00-CR-141-F(25).

United States District Court, W.D. Texas, Midland-Odessa Division.

January 2, 2002.

COPYRIGHT MATERIAL OMITTED

Mark Roomberg, Assistant United States Attorney, Midland, TX, for United States.

Joseph (Sib) Abraham, Jr., El Paso, TX, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

FURGESON, District Judge.

Before the Court is the Report and Recommendation of the United States Magistrate Judge L. Stuart Platt, filed on November 9, 2001, in the above-captioned matter.The Defendant filed timely objections to the Report.After due consideration, the Court finds that the Magistrate Judge's Report and Recommendation should be ADOPTED IN ITS ENTIRETY.

STANDARD OF REVIEW

If there are no objections to a magistrate judge's report and recommendation, a district court is to review the report for findings and conclusions that are either clearly erroneous or contrary to law.¹However, a district court reviews de novo a magistrate judge's report and recommendation if either party makes specific objections within ten days of receipt of the report.²In the instant case, both the government and Defendant timely filed specific objections and therefore, the Court conducts a de novo review of the specifically identified portions of the Magistrate Judge's report.

FACTUAL AND PROCEDURAL HISTORY

Defendant was indicted in Pecos in a twenty-five count indictment.Count One of the Pecos Indictment alleged that Defendant and seventeen co-defendants engaged in a single conspiracy in violation of 21 U.S.C. § 846.It specifically charges the defendants with conspiring to import marijuana into the United States, in violation of 21 U.S.C. §§ 952and960, and to distribute and possess with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a).In Counts Two through Twenty, Defendant and various co-defendants were individually charged with possession with intent to distribute and aiding and abetting, in violation of 21 U.S.C. § 841(a)and18U.S.C. § 2.Count Twenty-One of the Pecos Indictment charged Defendant with engaging in a Continuing Criminal Enterprise("CCE").The CCE charge lists felony violations of 21 U.S.C. §§ 841(a)(1)and846 as predicate offenses.On October 2, 1998, Defendant pleaded guilty to operating a CCE, in violation of 21 U.S.C. § 848 and to money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and (2).

On September 29, 2000, Defendant was indicted in the Midland-Odessa Division in a multiple count indictment.The Midland Indictment charges Defendant and myriad co-defendants with numerous violations of Title 21, as well as other crimes.Defendant was charged in three of the twenty-four counts in the indictment.Count Two alleges a violation of 21 U.S.C. § 846, conspiracy to distribute and possess with intent to distribute marijuana, in violation of §§ 846and841(a).Count Three alleges a violation of 21 U.S.C. § 963, conspiracy to import marijuana, contrary to §§ 952(a)and960.And, Count Four alleges that Defendant violated 21 U.S.C. § 841(a)(1)and18U.S.C. § 2, possession with intent to distribute marijuana and aiding and abetting.

Defendant filed a Motion to Dismiss the Midland Indictment, arguing that the prosecution of Defendant in the instant case violates the Double Jeopardy Clause of the Fifth Amendment.Defendant claims that his CCE conviction in the Pecos Division bars prosecution of the offenses charged in the instant case.

The Court referred the Motion to United States Magistrate Judge L. Stuart Platt, who conducted a hearing on the issue of double jeopardy and filed the Findings of Fact and Recommendation currently before the Court.The Magistrate Judge found that the government failed to satisfy its burden of establishing that the Pecos and Midland indictments charge separate conspiracies and therefore, recommended dismissing of Counts Two and Three on double jeopardy grounds.The Magistrate Judge concluded that Count Four does not fall within the double jeopardy prohibition and recommended against dismissing that Count.

DISCUSSION

Both the government and Defendant object to the Magistrate Judge's Findings of Fact and Recommendation.The government objects to the following findings of the Magistrate Judge: that the Defendants in Counts Two and Three of the Midland Indictment overlap with the conspirators in the Pecos Indictment, that there is an overlap in the criminal conduct in Counts Two and Three of the Midland Indictment with criminal conduct in the Pecos Indictment, and that there is a "complete" overlap in the places in Counts Two and Three of the Midland Indictment with the places in the Pecos indictment.The government further objects to the Magistrate Judge's conclusions that Counts Two and Three of the Midland Indictment are lesser included offenses of the Pecos CCE charge and that those Counts violate the Double Jeopardy Clause.

Defendant objects to the Magistrate Judge's recommendation not to dismiss Count Four of the Midland indictment.Defendant objects to the Magistrate Judge's statement that "predicate offenses of a CCE are not lesser included offenses for purposes of the Double Jeopardy Clause" and to the conclusion that Count Four of the Midland Indictment does not violate the prohibition against double jeopardy.

The Fifth Amendment states that no person shall be "subject for the same offence to be twice put in jeopardy of life of limb ...."The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal.It protects against a second prosecution for the same offense after conviction.And, it protects against multiple punishments for the same offense."³Where successive prosecutions are at stake, the guarantee serves as a constitutional policy of finality for the benefit of the defendant.⁴The prohibition against double jeopardy protects the accused from attempts to relitigate the facts underlying a prior acquittal, as well as from attempts to secure additional punishment after a conviction.⁵

The Supreme Court enunciated the initial test for determining whether two offenses are the same for double jeopardy purposes in Blockburger v. United States.⁶The Court asks "whether the offense charged in the subsequent prosecution requires proof of a fact which the other does not."⁷If application of this test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, the subsequent prosecution is barred.⁸

The defendant bears the initial burden of establishing a prima facie claim of double jeopardy.⁹"If the defendant does so, the burden shifts to the government to demonstrate by a preponderance of the evidence that the indictment charges a crime separate from that for which the defendant previously was placed in jeopardy."¹⁰

I.Count Two of the Midland Indictment

Count Two of the Midland Indictment alleges that Defendant and his co-defendants violated 21 U.S.C. § 846 by conspiring to distribute and possess with intent to distribute marijuana in excess of 1,000 kilograms, in violation of 21 U.S.C. § 841(a).

Defendant claims that Count Two of the Midland Indictment violates the prohibition against double jeopardy because of Defendant's guilty plea to the CCE charge in the Pecos Indictment.The Court agrees.

To be convicted of engaging in a CCE, under 21 U.S.C. § 848, a defendant must (1) commit a felony violation of federal narcotics laws (2) as part of a continuing series of three or more related felony violations of federal narcotics laws (3) in concert with five or more other persons (4) for whom defendant is an organizer, manager, or supervisor, and (5) from which he derives substantial income or resources.¹¹

It is well settled that a guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy¹² and accordingly, that conspiracy is a lesser included offense of CCE.¹³Because conspiracy is a lesser included offense of CCE, it cannot support a separate conviction or sentence without violating the Double Jeopardy Clause of the Fifth Amendment.¹⁴

Even though conspiracy is a lesser included offense of CCE, Count 2 of the Midland Indictment will be barred on double jeopardy grounds only if the conspiracy alleged in that Count is the same as the § 846 conspiracy underlying the CCE count of the Pecos Indictment.As noted above, the defendant bears the burden of establishing a prima facie claim of double jeopardy.¹⁵If he does so, the burden shifts to the government to prove by a preponderance of the evidence that the indictment charges a crime separate from that for which the defendant previously was placed in jeopardy.¹⁶

The essential issue in the double jeopardy analysis respecting conspiracy is whether one or more than one agreement existed.¹⁷In United States v. Marable,¹⁸ the Fifth Circuit enumerated the following factors to determine whether alleged conspirators entered into a single agreement or multiple agreements: (1) time, (2) persons acting as conspirators, (3) statutory offenses charged in the indictments, (4) overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity that the government sought to punish in each case, and (5) places where the events alleged as part of the conspiracy took place.¹⁹No single factor in the analysis is determinative; rather, all five factors must be considered in combination.²⁰

Here, the Court finds that Defendant has established a prima facie claim of double jeopardy.Defendant demonstrated that in addition to the partial overlap in the time periods involved in the two indictments, there is substantial overlap in the statutory offenses charged, the scope of the activity described, and the places where the alleged events...