U.S. v. Sanchez, 90-5749

• Decision Date: 30 September 1993
• Docket Number: No. 90-5749,90-5749
• Citation: 3 F.3d 366
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael SANCHEZ and Luis Sanchez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 366

3 F.3d 366

UNITED STATES of America, Plaintiff-Appellee, v. Rafael SANCHEZ and Luis Sanchez, Defendants-Appellants.

No. 90-5749.

United States Court of Appeals Eleventh Circuit.

Sept. 30, 1993.

Roy E. Black, Black & Furci, P.A., Miami, FL, for defendants-appellants.

Frank H. Tamen, Asst. U.S. Atty., Kathleen M. Salyer, Linda Collins Hertz, and Mary K. Butler, Asst. U.S. Atty., Miami, FL, for appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before FAY and EDMONDSON, Circuit Judges, and HILL, Senior Circuit Judge.

PER CURIAM:

Appellants, defendants in the District Court, petitioned for rehearing with a suggestion for rehearing en banc. At the time of such petition, Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), stood as controlling precedent. Although we applied Grady to appellants' benefit, appellants' petition for rehearing argued that Grady afforded them more relief than we found appropriate. Now, Grady has been overruled. United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993). Consequently, there is no merit in appellants' petition for rehearing urging an extension of Grady. The same is DENIED.

Our mandate, delayed by appellants' timely petition for rehearing, has not issued. In light of Dixon, and before the decision becomes final, it is properly the subject of our sua sponte reconsideration. ¹ Upon such reconsideration, the court ORDERS as follows:

Section IIB of the opinion, 992 F.2d 1143 (11th Cir.1993), is deleted. In its stead we substitute the following:

In Dixon, the Supreme Court renounced the "same-conduct" test enunciated in Grady ² and reaffirmed the analysis in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which focused on the elements of the crime rather than the conduct comprising the offense. Dixon, --- U.S. at ----, 113 S.Ct. at 2860-61. The question now before the court is whether, under the Dixon/Blockburger standard, any of the offenses in the second indictment required proof of a statutory element which was not required for any one offense charged in the Puerto Rico prosecution.

At least in cases of cumulative punishment, Blockburger has been considered a yardstick of legislative intent. See e.g., Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The circumstances of this case do not lend themselves, however, to the Blockburger analysis of legislative intent. The statutes under which Rafael and Luis Sanchez were charged were drafted by two distinct legislatures, albeit, as we have seen, legislatures of the same sovereign. In this case, we can draw no conclusions from an application of Blockburger's legislative intent analysis--or, at best, the most tenuous conclusions--for the Congress and the Puerto Rico legislature hardly intended the statutes each drafted to share space in the same criminal code.

Despite the awkward fit between Blockburger and this case, the larger lesson drawn from the Supreme Court's recent overturning of Grady and reassertion of Blockburger is that the double jeopardy clause will not bar either cumulative punishment or successive prosecution where each charged offense differs in one substantive respect from each other charge. As announced in Dixon, "[the inquiry is] whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." Dixon, --- U.S. at ----, 113 S.Ct. at 2856. As the test now stands, it is difficult to see many circumstances under which the double jeopardy clause will place any check on a prosecutor who displays a minimum degree of care in crafting indictments.

Applying the "same-elements" test to this case, we are satisfied that the four Florida district court charges which we upheld in the original panel opinion under the more rigorous Grady standard are clearly sustainable under the looser Dixon/Blockburger approach. In the original opinion, we overturned the single charge of murder for hire on double jeopardy grounds because we found that the charge required proof of the same conduct as was prosecuted in the attempted murder charge. However, under the "same-elements"...