U.S. v. Thornton

• Decision Date: 29 September 1992
• Docket Number: No. 91-3032,91-3032
• Citation: 972 F.2d 764
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George THORNTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 764

972 F.2d 764

UNITED STATES of America, Plaintiff-Appellee, v. George THORNTON, Defendant-Appellant.

No. 91-3032.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 19, 1992.

Decided Aug. 11, 1992.

Rehearing Denied Sept. 29, 1992.

Frederick J. Hess, U.S. Atty., Office of the U.S. Atty., Criminal Div., Fairview Heights, Ill., Michael C. Carr, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Benton, Ill., for U.S.

Paul Morris (argued), Stephen H. Rosen, Coral Gables, Fla., for Thornton.

Before EASTERBROOK and RIPPLE, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

On May 23, 1986, an eighteen-count indictment was filed in the Western District of Pennsylvania. The indictment charged George Thornton and others known and unknown with conspiracy to possess with intent to distribute more than 1,000 pounds of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. According to the indictment and the allegations at trial, this conspiracy ran from March 1, 1981, to approximately May 14, 1981. This indictment also charged Thornton with three other counts of various related substantive offenses. A jury tried and acquitted Thornton of all charges.

Then, a little over one year later, on September 29, 1987, a two-count indictment was filed in the Southern District of Illinois charging Thornton with conspiracy to knowingly and intentionally distribute more than 1,000 pounds of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. This indictment alleged that the conspiracy spanned from March 1980 through June 1987.

Thornton moved to dismiss the conspiracy charge under the Illinois indictment on double jeopardy grounds, arguing that the prosecution under the Illinois indictment puts him twice in jeopardy for the conspiracy alleged in the Pennsylvania indictment. The district court denied this motion. We affirm.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." This means that the United States cannot twice prosecute the same person for the same offense. Deciphering what constitutes prosecution for the same offense for purposes of double jeopardy is not an easy task. And, the Supreme Court and this court have recognized that this task becomes even more difficult when we move from single layered crimes such as bank robberies to prosecution for multilayered crimes such as conspiracies which expand over time and place. See United States v. Felix, --- U.S. ----, 112 S.Ct. 1377, 1385, 118 L.Ed.2d 25 (1992); United States v. O'Connor, 953 F.2d 338 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1979, 118 L.Ed.2d 578 (1992). The reason for the added complexity is that it is difficult to apply double jeopardy's notions of finality to crimes which have no easily discernable boundaries with regard to time, place, persons, and objectives.

Both the Supreme Court and this court have recently faced the task of applying double jeopardy's notions of finality to continuing, multilayered crimes. The Supreme Court in Felix and this court in O'Connor addressed whether it violated double jeopardy to prosecute for underlying substantive crimes and then to later prosecute the defendant for multilayered crimes which Both Felix and O'Connor indicate that the multilayered, continuing, criminal conduct at issue in those cases was distinct from the underlying substantive offenses, meaning that the government could prosecute persons in two separate proceedings for the underlying substantive conduct and the multilayered, continuing criminal conduct without violating the United States Constitution's protections against double jeopardy. See Felix, --- U.S. ----, 112 S.Ct. at 1384-85; O'Connor, 953 F.2d at 344-45. This conclusion, however, says nothing about when it constitutes double jeopardy to prosecute the same person for conspiracy under the same statute for what may be one or two separate agreements. And, for a discussion more directly applicable to this decision we turn to United States v. Castro, 629 F.2d 456 (7th Cir.1980). In Castro we held that the double jeopardy clause prohibits the government from arbitrarily subdividing one conspiracy into several and then prosecuting a person multiple times for what essentially constitutes one conspiracy. Castro, 629 F.2d at 461. The rationale underlying this proposition is simple: the double jeopardy clause prohibits multiple prosecutions for the same offense, and because the agreement is the sine qua non of conspiracy, if the government twice prosecutes an individual under the same statute for what essentially constitutes one agreement, this must constitute prosecution for the same offense in violation of double jeopardy. See United States v. Chiattello, 804 F.2d 415, 418 (7th Cir.1986). Indeed, the Felix decision, which emphasizes that the essence of conspiracy is the agreement, supports this principle. See Felix, --- U.S. at ----, 112 S.Ct. at 1384.

                somehow involve these underlying crimes.   More specifically, the Supreme Court in Felix addressed whether it violated double jeopardy to first prosecute Felix for attempting to manufacture methamphetamine in Missouri and then later prosecute Felix for conspiracy to manufacture, possess, and distribute methamphetamine where some of the alleged overt acts in the conspiracy case were based on the attempt charge in Missouri.   The Court held it did not.  Felix, --- U.S. at ----, 112 S.Ct. at 1385.   Likewise, in O'Connor, a decision which preceded Felix, this court addressed whether it violated double jeopardy to first prosecute for substantive offenses and then later rely on these substantive offenses as predicate acts in a prosecution for engaging in a pattern of racketeering activity under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c).   We held that it did not.  O'Connor, 953 F.2d at 344-45
                

The government, however, seems to be arguing for a deviation from the principles set forth in Castro. The government has taken great pains to emphasize that the conspiracy alleged in the Pennsylvania indictment lasted only a few months, involved many fewer people, and was therefore much smaller in scope than the conspiracy alleged in the Illinois indictment, which involved some forty plus coconspirators, trafficking to numerous states, and encompassed a seven-to-nine-year time frame. Moreover, the government emphasized in the hearing before the district judge that the agent involved in the Pennsylvania indictment knew nothing about the activities alleged in the Illinois indictment. It appears that in making such arguments the government is implying that even assuming that the Pennsylvania indictment charged the same conspiracy as the Illinois indictment, there is no double jeopardy problem because the first-charged conspiracy was only a small subset of the later-charged conspiracy and because the government did not know that this was one conspiracy. We must remember, however, the double jeopardy clause imposes limits on a defendant's criminal exposure. In order to stay true to these finality requirements, the government cannot reprosecute a defendant for the same offense whenever it obtains broader evidence of criminal culpability.

We now move to the question at the heart of this case: whether there has been a sufficient showing that both prosecutions alleged the same conspiracy. The first issue we confront in this context is who bears the burden of proof. We indicated in In Castro we held that in order to determine if the government's prosecution of two conspiracies violates double jeopardy, courts should look at the indictments and other evidence to determine whether the two alleged conspiracies contain an overlap in time, alleged coconspirators, overt acts and/or places. Castro, 629 F.2d at 461. And, in other decisions this court has also looked to such factors as whether the conspiracies mutually support each other, whether the modus operandi are similar, and the specific nature of the objectives embodied in each conspiracy. See United States v. Cerro, 775 F.2d 908, 914 (7th Cir.1985) (indicated that mutual support is relevant to the single versus double conspiracy analysis); Chiattello, 804 F.2d at 419 (focused on the specific objectives of the criminal agreements and the modus operandi in achieving these objectives in concluding that the subsequent prosecution constituted a prosecution for a separate conspiracy). Thornton argues that he has demonstrated an overlap in conspirators, place, and time. Thornton, therefore, argues that he has made a prima facia showing that the prosecution under the Illinois indictment constitutes double jeopardy.

                Castro that this burden belongs to the defendant.  Castro, 629 F.2d at 461.   We further explained in United States v. Dempsey, 806 F.2d 766, 768 (7th Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 497 (1987), that the defendant bears the burden of making a prima facie showing that the two indictments cover the same offense, and thereafter the burden shifts to the government to demonstrate that it has not twice prosecuted the defendant for the same conspiracy.  Id
                

In order to understand Thornton's argument we first look to the scope of the conspiracy alleged in the Illinois indictment. The Illinois indictment alleges a broad conspiracy to knowingly and intentionally distribute more than 1,000 pounds of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment alleges that over forty persons participated in this conspiracy (the "Lanier conspiracy," "Lanier network," or "Lanier operation") over a seven-year period beginning around March 1980 and continuing until about June 1987. Moreover, the indictment alleges that the conspirators' activities spanned numerous states including Illinois, Kentucky, Missouri, Pennsylvania,...