U.S. v. Rosenberg, Nos. 89-3070

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MIKVA, EDWARDS and WILLIAMS; MIKVA; STEPHEN F. WILLIAMS; HARRY T. EDWARDS
Citation888 F.2d 1406
Decision Date03 November 1989
Docket NumberNos. 89-3070
PartiesUNITED STATES of America, Appellant, v. Susan ROSENBERG, et al., Appellees. to 89-3072.

Page 1406

888 F.2d 1406
281 U.S.App.D.C. 209
UNITED STATES of America, Appellant,
v.
Susan ROSENBERG, et al., Appellees.
Nos. 89-3070 to 89-3072.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 8, 1989.
Decided Nov. 3, 1989.

Henry S. Hoberman, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Margaret Ellen, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

Rosemary Herbert, with whom James W. Klein was on the brief, for appellee in No. 89-3072.

Mary K. O'Melveny (appointed by this court), with whom Russell F. Canan, Washington, D.C., (appointed by this court), was on the joint brief for appellees in Nos. 89-3070 and 89-3071.

Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

Opinion dissenting in part and concurring in part filed by Circuit Judge HARRY T. EDWARDS.

MIKVA, Circuit Judge:

The appellees in this case were convicted in previous trials of conspiracy to possess unregistered firearms, explosives, and false identification. Subsequently, they were indicted on charges that they aided and abetted in the bombing of several Washington buildings during 1983 and 1984. The district court determined that the double jeopardy clause of the fifth amendment barred the subsequent prosecution of the appellees because the government planned to establish the appellees' liability for the bombings by using the same actual evidence that the government had used to convict the appellees of conspiracy in their earlier trials. Because we find no support for the use of a "same actual evidence" test in assessing whether successive prosecutions violate the double jeopardy clause, we reverse and remand. We note, however, that under established double jeopardy guidelines the government would be precluded from prosecuting the appellees for the substantive bombings charged if the sole theory of prosecution is vicarious liability under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

I. BACKGROUND

A. The Previous Trials

Appellees Blunk and Rosenberg were arrested in Cherry Hill, New Jersey on November 29, 1984, following an investigation that culminated in the police observing Blunk and Rosenberg unload a large quantity of explosives from a U-Haul trailer into a rented public storage area. After further investigation, the government obtained indictments against Blunk and Rosenberg. After a trial in the District Court for the District of New Jersey, they were convicted on nine counts of conspiracy to possess unregistered firearms, explosives, and false identification documents, as well as several substantive counts related to the overt acts charged in the conspiracy. Rosenberg and Blunk were sentenced to 58 years in prison.

Appellee Berkman was arrested on May 23, 1985 while driving toward Doylestown, Pennsylvania. At the time of Berkman's arrest, FBI agents searched Berkman's car and found firearms, false identification documents, and explosives. Berkman was subsequently indicted, tried, and convicted in the District Court for the Eastern District of Pennsylvania for conspiracy to possess--and substantive possession of--the firearms, explosives, and false identification papers. Berkman was sentenced to ten years in prison and five years probation.

Page 1408

B. The District of Columbia Indictments

The appellees were indicted in the District Court for the District of Columbia on four counts of bombing, during 1983 and 1984, the United States Capitol, the National War College Building at Fort McNair, the Computer Center at the Washington Navy Yard, and the Officer's Club at the Navy Yard (the "Washington bombings") in violation of 18 U.S.C. Secs. 844(f), 2. The appellees were also listed as unindicted co-conspirators in the conspiracy to carry out the foregoing bombings in violation of 18 U.S.C. Sec. 371. Because the government apparently has little evidence linking the three appellees directly to the bombings, it had planned to establish the appellees' guilt of the substantive bombing charges on a theory of vicarious liability, asking the jury to infer the appellees' guilt from their involvement in the conspiracy for which they remain unindicted. See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The government did not seek an indictment for conspiracy to bomb the aforementioned buildings in this case because the appellees had already been convicted of the same conspiracy in their earlier trials. Though the conspiracy counts in the earlier trials alleged the criminal objects of the conspiracy as possession of unregistered firearms, explosives, and false identification documents, the mere substitution of different criminal objects (the bombing of the buildings) does not change the conspiracy into a separate offense distinct from the one previously tried. Such a "pile on" use of conspiracy doctrine has long been precluded under federal law. See Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942).

C. The District Court's Decision

On April 11, 1989, Judge Harold H. Greene dismissed the District of Columbia indictments against the appellees on double jeopardy grounds. In his opinion, the district judge noted that the formal elements of the conspiracies of which the appellees had been convicted did not include the acts of bombing for which they were indicted in the District of Columbia District Court. Therefore, under his reading of the double jeopardy test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), appellees' double jeopardy argument would fail, because the statutory definitions of the two offenses indicate that each involves proof of an element that the other does not. Nonetheless, Judge Greene rejected the government's argument that the Blockburger test was the definitive inquiry in this case.

The district court determined that the facts of this case demanded an inquiry beyond the Blockburger "elements test" to see if the government's prosecution would be a double jeopardy violation. Under its reading of double jeopardy caselaw, the district court concluded that the government was barred from prosecuting the appellees for the substantive bombings charged in the District of Columbia indictments because the government planned to use the "same actual evidence" to prosecute the appellees in the District of Columbia that it had used to obtain the conspiracy convictions in the appellees' earlier trials. The district court reasoned that the same factors that render successive prosecutions violative of the double jeopardy clause in lesser-included offense cases obtain in this case:

In both instances (1) the evidence in the first trial is the same as that used in the second trial, (2) the evidence is necessarily identical, for at the second trial the offenses could not be proved without use of that evidence, and (3) thus one trial involves relitigation of the other trial in full.

United States v. Whitehorn, 710 F.Supp. 803, 848 (D.D.C.1989). The court acknowledged that few cases have applied what it termed the "same actual evidence" test outside of the lesser-included offense context because of the unique factual and procedural circumstances that must converge in order for the test appropriately to be applied:

This case ... is one of those presumably rare cases in which the government prosecutes a defendant for conspiracy in successive trials and is forced to reprove

Page 1409

the conspiracy in order to establish the defendant's guilt for aiding and abetting the substantive offense.

Id. at 850. The court specifically noted that there would be no double jeopardy problem if the government had independent, direct evidence of the appellees' guilt of the substantive offenses charged in the second prosecution. Id. at 850 n. 161. Here, however, the court found that the government would use all of the evidence in this prosecution that it had used to prosecute the appellees in their earlier trials. The judge determined that the small amount of "new evidence" the government planned to introduce to link the appellees to the Washington bombings was either cumulative of evidence used at the earlier trials or failed to tie the appellees directly to the bombings.

II. DOUBLE JEOPARDY AND SUCCESSIVE PROSECUTIONS

After reviewing all of the cases cited by the district court in support of its "same actual evidence" test, we conclude that despite some admittedly ambiguous language in these opinions, neither the Supreme Court nor this circuit has ever endorsed a double jeopardy test that looks to the actual evidence presented in successive prosecutions. We likewise conclude that the district court has misread the opinions of our sister circuits addressing double jeopardy in the context of successive prosecutions. In any case, to the extent that any other circuits have suggested that the application of a "same actual evidence" test is appropriate, we decline to follow them.

A. The Supreme Court

The Supreme Court has noted repeatedly that the double jeopardy clause has three functions: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The case sub judice concerns the double jeopardy clause's protection against successive prosecutions for the same offense. The protection against successive prosecution is rooted in the "constitutional policy of finality for the defendant's benefit." United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). The Court in Brown explained that this policy protects the accused from repeated litigation...

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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
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    ...some overt act in furtherance of the conspiracy was committed by any of the co-conspirators.' ") (quoting United States v. Rosenberg, 888 F.2d 1406, 1415 B. Sentencing Issues At Zambrano's sentencing, the district court found that he was responsible for all 15 kilograms of cocaine that were......
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    ...See United States v. Whitehorn, 710 F.Supp. 803, 835-41 (D.D.C.), rev'd on unrelated grounds sub nom. United States v. Rosenberg, 888 F.2d 1406 (D.C.Cir.1989). Appellants have likewise failed to demonstrate that the number of security officers present during the proceedings was disproportio......
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    ...the initial prosecution can be eliminated through proper application of the sentencing guidelines. 36 Cf. United States v. Rosenberg, 888 F.2d 1406, 1415 (D.C.Cir.1989) ("On remand, the government must be given an opportunity to argue for the existence of this 'due diligence' exception and ......
  • U.S. v. Kelly, No. 07-3032.
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    ...a firearm." Appellant relies on Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and United States v. Rosenberg, 888 F.2d 1406 (D.C.Cir.1989), for the proposition that the Double Jeopardy Clause serves a constitutional policy that "protects the accused from repeated litiga......
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20 cases
  • U.S. v. Gaviria, Nos. 95-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 1997
    ...some overt act in furtherance of the conspiracy was committed by any of the co-conspirators.' ") (quoting United States v. Rosenberg, 888 F.2d 1406, 1415 B. Sentencing Issues At Zambrano's sentencing, the district court found that he was responsible for all 15 kilograms of cocaine that were......
  • U.S. v. Childress, Nos. 90-3222
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 13, 1995
    ...See United States v. Whitehorn, 710 F.Supp. 803, 835-41 (D.D.C.), rev'd on unrelated grounds sub nom. United States v. Rosenberg, 888 F.2d 1406 (D.C.Cir.1989). Appellants have likewise failed to demonstrate that the number of security officers present during the proceedings was disproportio......
  • U.S. v. Tolliver, Nos. 93-3873
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 14, 1995
    ...the initial prosecution can be eliminated through proper application of the sentencing guidelines. 36 Cf. United States v. Rosenberg, 888 F.2d 1406, 1415 (D.C.Cir.1989) ("On remand, the government must be given an opportunity to argue for the existence of this 'due diligence' exception and ......
  • U.S. v. Kelly, No. 07-3032.
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    • January 13, 2009
    ...a firearm." Appellant relies on Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and United States v. Rosenberg, 888 F.2d 1406 (D.C.Cir.1989), for the proposition that the Double Jeopardy Clause serves a constitutional policy that "protects the accused from repeated litiga......
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