U.S. v. Ruigomez

• Decision Date: 21 July 1978
• Docket Number: No. 77-5391,77-5391
• Citation: 576 F.2d 1149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis RUIGOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1149

576 F.2d 1149

UNITED STATES of America, Plaintiff-Appellee, v. Luis RUIGOMEZ, Defendant-Appellant.

No. 77-5391.

United States Court of Appeals,

Fifth Circuit.

July 21, 1978.

Daniel V. Alfaro, Albert R. Huerta, Juan P. Gonzalez, Corpus Christi, Tex., for defendant-appellant.

J. A. Canales, U. S. Atty., James R. Gough, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before MORGAN and GEE, Circuit Judges, and KING, ^* District Judge.

GEE, Circuit Judge:

In October of 1975, Luis Ruigomez, Jr. was indicted for several violations of federal narcotics laws, including one charge of conspiracy to possess marijuana with intent to distribute. In 1976, following his trial and acquittal on these charges, the government secured a second indictment against him on an identical conspiracy count, supported by facts similar to those alleged in the previous indictment, and on an additional count of conspiring to distribute marijuana. At his second trial Ruigomez was convicted on the former count, and he now appeals that conviction as the product of double jeopardy, claiming that the government impermissibly carved two conspiracies out of one. See United States v. Moore, 522 F.2d 1068, 1078 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976); United States v. O'Dell, 462 F.2d 224, 226-27 n.2 (6th Cir. 1972); Dryden v. United States, 403 F.2d 1008, 1009 (5th Cir. 1968).

The 1976 indictment alleged that in February or March of 1974, ¹ Fred Brulloths sold large quantities of marijuana to appellant and Alberto Lopez, Jr. in separate transactions, the marijuana having been bought from Reynaldo Alvarez and stored in a warehouse rented jointly by Brulloths and Ruigomez. The relevant count of the 1975 indictment had implicated appellant in two drug deals. The first, which allegedly took place in July and August of 1974, involved an agreement between Brulloths and Kenneth Burnstine by which the latter was to fly a shipment of marijuana from the interior of Mexico to the northern part of that country, where the contraband would be picked up for transportation across the border. In connection with this scheme, appellant allegedly delivered to Brulloths a suitcase of money earmarked as Burnstine's payment. The second transaction set forth in the 1975 indictment allegedly occurred in August and September of 1974, when Burnstine again agreed to pilot a plane loaded with marijuana, this time the flight's destination being Fredericksburg, Texas. According to the indictment, Ruigomez was present when Burnstine received his pay and also allowed one of the other co-conspirators to use his car during negotiations.

The government argues that differing overt acts were alleged in the indictments, ² urging us to resolve the double jeopardy question by means of the "same offense" test, which focuses upon the similarity or dissimilarity of the evidence adduced in the multiple prosecutions. See United States v. Papa, 533 F.2d 815, 820 (2d Cir.), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976); United States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975); United States v. McCall, 489 F.2d 359, 362-63 (2d Cir. 1973), cert. denied, 419 U.S. 849, 95 S.Ct. 88, 42 L.Ed.2d 79 (1974); Dryden v. United States, 403 F.2d at 1009. We decline to apply that test in cases such as this one, however, because it would permit the government arbitrarily to split unitary narcotics conspiracies and to initiate as many prosecutions. See United States v. Papa, 533 F.2d at 820; United States v. Mallah, 503 F.2d at 985; United States v. Young, 503 F.2d 1072, 1075 (3d Cir. 1974); United States v. McCall, 489 F.2d at 362-63. We think the relevant question is, instead, whether the particular transactions alleged in the indictments were within a larger, unified conspiracy.

Conspiracies to traffic in drugs are ordinarily of the continuing sort: once the parties have agreed to the criminal enterprise, the day-to-day operations of buying, transporting, and selling are handled without the necessity of renewing the underlying consensual arrangement. See United States v. Gonzalez, 491 F.2d 1202, 1206 (5th Cir. 1974). There is considerable evidence in this case that Brulloths, Ruigomez, and others were involved in a single, continuing conspiracy to purchase and distribute marijuana. Most of this evidence comes from Brulloths himself, who was convicted under the 1975 indictment and was an unindicted co-conspirator under the 1976 indictment, having turned state's witness. At the double jeopardy hearing below, and at the trial itself, Brulloths testified to...