U.S. v. Stoddard
| Decision Date | 22 April 1997 |
| Docket Number | No. 96-30095,96-30095 |
| Citation | 111 F.3d 1450 |
| Parties | -2250, 97-2 USTC P 50,574, 97 Cal. Daily Op. Serv. 2907, 97 Daily Journal D.A.R. 5122 UNITED STATES of America, Plaintiff-Appellee, v. Roy Brooks STODDARD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark E. Vovos, Spokane, WA, for defendant-appellant.
Earl A. Hicks, Assistant United States Attorney, Spokane, WA, for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Chief District Judge, Presiding. D.C. No. CR-95-00237-1-WFN.
Before: JOHN T. NOONAN Jr., THOMPSON and KLEINFELD, Circuit Judges.
In 1995, Roy Brooks Stoddard was charged with various crimes related to a conspiracy to grow, produce, and distribute marijuana. Stoddard moved to dismiss one of the charges as barred by double jeopardy, and several other charges as barred by collateral estoppel. The district court rejected Stoddard's motion, and Stoddard filed this interlocutory appeal.
We have jurisdiction over Stoddard's appeal under the Abney exception to 28 U.S.C. § 1291, 1 and we reverse.
In analyzing the double jeopardy and collateral estoppel issues, we must look back to 1990. On September 7, 1990, Stoddard and two codefendants, Walter Edward Zachman and Roger Karl Lokken, were indicted by a federal grand jury. Count 9 of the 1990 Indictment charged Stoddard, Zachman, and Lokken with violating 21 U.S.C. §§ 841(a)(1) and 846 between May, 1989 and August 30, 1990, by knowingly conspiring to: (1) possess, with the intent to distribute, marijuana; and (2) distribute marijuana. Count 10 of the 1990 Indictment charged Stoddard, Zachman, and Lokken with knowingly attempting to possess, with the intent to distribute, over 100 kilograms of marijuana on August 31, 1990, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
The 1990 case went to trial. During trial, Ramon Lopez, a confidential government informant, testified that Stoddard asked Lopez to obtain between 300 to 500 pounds of marijuana in the spring of 1989. Stoddard told Lopez he was apprehensive about engaging in the sale with a stranger. Stoddard suggested instead that his friend, Zachman, buy a smaller amount of marijuana as a test-with the understanding that, if the test-purchase was consummated, Stoddard and Zachman would purchase 500 pounds of marijuana per week. Lopez agreed to make arrangements for Zachman to meet with undercover agent Ruben Garcia, who posed as a marijuana supplier. Between May 24, 1989 and June 14, 1989, Garcia and Zachman negotiated the terms for buying up to 1,000 pounds of marijuana per week.
On May 25, 1989, Garcia met Zachman at the airport in Wenatchee, Washington to show Zachman a sample of marijuana. On June 2, 1989, in Seattle, Garcia showed Zachman 500 pounds of marijuana. Negotiations then broke down between Garcia and Zachman.
Several months later, Stoddard told Lopez that he was again interested in buying large quantities of marijuana. To prove he had the money to make a large purchase, Zachman guided Lopez to Lokken's mountain cabin where he showed Lopez $100,000 in Canadian currency. Zachman indicated he was interested in buying 500 pounds of marijuana.
On August 31, 1990, Stoddard dropped Zachman off at a store where he was picked up by Lopez. Lopez drove Zachman to a hotel where Zachman negotiated the sale with undercover DEA agent Eric Levy. Zachman then went to Stoddard's truck in Wenatchee, Washington, and took out a paper bag containing $74,000. When he returned to the hotel and paid for the marijuana, he was arrested. The government subsequently arrested Stoddard and Lokken.
After trial, a jury acquitted Stoddard on all ten counts of the 1990 Indictment, including the marijuana conspiracy and possession charges.
On November 7, 1995, Stoddard, Zachman, Lokken, and fifteen other defendants were charged in a 42-count indictment. Count 2 of the 1995 Indictment charged Stoddard and his codefendants with knowingly conspiring to manufacture, possess with intent to distribute, and distribute marijuana between January 1, 1985 and October 12, 1995. Counts 40-42 of the 1995 Indictment charged Stoddard and his wife, Jacqueline L. Stoddard, with willfully making and subscribing false income tax returns for the tax years ending in 1989, 1990, and 1991.
The government began its second investigation of Stoddard and his codefendants in May of 1992, when border patrol agents arrested a suspected illegal alien at the Canada-United States border. The alien told government officials that he and four other couriers routinely transported marijuana from the United States to Canada for Stoddard. 2 According to the alien, the couriers also drove the Canadian cash proceeds from the sale of marijuana back into the United States. The courier stated that, from late May 1991 to November 24, 1991, he had driven loads of marijuana to Canada on a biweekly basis. After November 24, 1991, he drove loads to Canada every two to three weeks.
The courier also led the government to the home of Jerry Montgomery and Susan Piccardo, two people he stated were involved in Stoddard's operation. Montgomery and Piccardo subsequently agreed to cooperate with the government. They told the government that Stoddard had grown marijuana in Tonasket, Washington since 1985. According to Montgomery, Lokken and Zachman had delivered a load of marijuana to Montana in the winter of 1987. In September, 1991, Montgomery twice picked up marijuana for Stoddard.
Later in 1991, Stoddard financed and supplied equipment to Montgomery to grow marijuana. Both Stoddard and Lokken took a share of Montgomery's profits from the sale of Montgomery's marijuana crop. Lokken himself grew marijuana, and on several occasions, replanted the marijuana starts produced by Montgomery.
Montgomery described several conversations with Stoddard during which Stoddard told him the names and activities of several other marijuana growers and sellers involved in the alleged conspiracy. Montgomery was also present at several discussions between Stoddard and his alleged coconspirators during which the manufacture, transport, and sale of marijuana were discussed.
Montgomery told officials that Stoddard had traveled to Nevada to exchange Canadian currency for Federal Reserve Notes. Montgomery believed that Stoddard instituted all of the conspiracy's procedures for exchanging marijuana for Canadian currency. Montgomery and Piccardo stated that they had exchanged thousands of dollars in Canadian currency for Stoddard on several occasions. Both Lokken and Stoddard often backpacked or otherwise transported marijuana into Canada.
In May 1992, government officials found another one of the couriers who transported marijuana for Stoddard. That courier told government agents that Stoddard had been trafficking in marijuana since 1985. The government subsequently spoke with others who either grew marijuana for Stoddard or transported Canadian currency proceeds from marijuana sales. These people described a scheme in which Stoddard bought marijuana from local growers, smuggled it into Canada, sold it, and converted the proceeds into American dollars.
Stoddard contends that, because he was acquitted of Counts 9 and 10 of the 1990 Indictment, the government was barred by double jeopardy from charging him with conspiracy to manufacture and distribute marijuana in Count 2 of the 1995 Indictment. 3 We review de novo whether Stoddard's double jeopardy rights were violated. See United States v. Scarano, 76 F.3d 1471, 1474 (9th Cir.1996).
The double jeopardy clause provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S.Const., amend. V. The clause bars the government from dividing a single conspiracy into separate charges and pursuing successive prosecutions against a defendant. United States v. Guzman, 852 F.2d 1117, 1119 (9th Cir.1988). "[T]o determine whether two conspiracy counts charge the same offense and so place the defendant in double jeopardy," we consider five factors: (1) the differences in the periods of time covered by the alleged conspiracies; (2) the places where the conspiracies were alleged to occur; (3) the persons charged as coconspirators; (4) the overt acts alleged to have been committed; and (5) the statutes alleged to have been violated. Guzman, 852 F.2d at 1120.
The 1990 Indictment charged Stoddard with a marijuana distribution conspiracy during the time span between May 1989 and August 31, 1990. The 1995 Indictment also charged Stoddard with a marijuana distribution conspiracy, but stated that the conspiracy occurred between January 1, 1985 and October 12, 1995.
The 1995 Indictment implies that Stoddard and his coconspirators entered into an agreement in 1985 that spawned a series of activities beginning in 1985 and ending in 1995. Pursuant to the 1990 Indictment, however, Stoddard was already charged and tried for the conspiracy's activities during the fifteen-month period between May 1989 and August 1990. We conclude, therefore, that there was a significant time overlap between the 1990 and 1995 conspiracies. 4
All of the overt acts of the 1990 conspiracy took place in Wenatchee, Washington, other places in Okonogan County, Washington, and the Western District of Washington. During the trial for the 1990 conspiracy, the government also mentioned California and Mexico as the locations where Stoddard's marijuana supply originated. The government asserted in the trial on the 1990 Indictment that Canadian currency may have been used to purchase the marijuana, but did not otherwise link the 1990 conspiracy to Canada.
The government admits that some of the overt acts of...
To continue reading
Request your trial
-
U.S. v. Montgomery
...(4) the overt acts alleged to have been committed; and (5) the statutes alleged to have been violated. United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir.1997) (citation and internal quotation marks The defendant has the burden of showing that the two conspiracies charged are actually ......
-
U.S. v. Smith
...district court. Typically, whether a defendant's double jeopardy rights have been violated is reviewed de novo. United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir.1997). However, Bates did not clearly raise the multiplicity of sentences issue below. Though Bates claims that he raised t......
-
United States v. Thomas
...beyond a reasonable doubt. See, e.g., United States v. Alvarez, 358 F.3d 1194, 1204 n. 3. (9th Cir.2004); United States v. Stoddard, 111 F.3d 1450, 1458 n. 11 (9th Cir.1997). Thus, the only question is whether the redacted passages would have undermined the reliability of Beny–A so as to de......
-
United States v. Najera-Gordillo, 2:05-cr-0383 MCE DAD P
...range between Najera's first and second sentencing hearings." (Id.)6. Movant also cites to the decisions in United States v. Stoddard, 111 F.3d 1450 (9th Cir. 1997), in which the defendant was charged with conspiracy after having been acquitted of strikingly similar charges five years earli......