U.S. v. Wallace

• Decision Date: 13 June 1978
• Docket Number: Nos. 77-1558,77-1526,77-1567 and 77-1698,s. 77-1558
• Parties: UNITED STATES of America, Appellee, v. Robert WALLACE, Appellant. UNITED STATES of America, Appellee, v. Don MITCHELL, Appellant. UNITED STATES of America, Appellee, v. Gerald DIXON, Appellant. UNITED STATES of America, Appellee, v. Thomas FORTENBERRY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 735

578 F.2d 735

UNITED STATES of America, Appellee, v. Robert WALLACE, Appellant.

UNITED STATES of America, Appellee, v. Don MITCHELL, Appellant.

UNITED STATES of America, Appellee, v. Gerald DIXON, Appellant.

UNITED STATES of America, Appellee, v. Thomas FORTENBERRY, Appellant.

Nos. 77-1558, 77-1526, 77-1567 and 77-1698.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 15, 1978.

Decided June 13, 1978.

Rehearing and Rehearing En Banc Denied in No. 77-1526 July 6, 1978.

Rehearing and Rehearing En Banc Denied in Nos. 77-1588,

77-1567 and 77-1698

July 17, 1978.

John F. Forster, Jr., Little Rock, Ark., for appellants Mitchell, Dixon and Fortenberry; Ronald J. Waska, Houston, Tex., for appellant Wallace; Fred T. Bennett, Houston, Tex., and Donald H. Smith, Pine Bluff, Ark., on the brief.

Wilbur H. Dillahunty, U. S. Atty., and Don N. Curdie, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before GIBSON, Chief Judge, STEPHENSON, Circuit Judge, and BECKER, Senior District Judge. ^*

GIBSON, Chief Judge.

This case involves an unsuccessful scheme for the sale of approximately 205 pounds of marijuana, which culminated in the criminal convictions under both Arkansas and federal law of Robert Wallace, Don Mitchell, Gerald Dixon and Thomas Fortenberry. All four defendants appeal their federal convictions.

On January 14, 1976, Trooper Jerry Roberts of the Arkansas State Police discussed a possible purchase of marijuana with several of the defendants at Dixon's Exxon Service Station in Sheridan, Arkansas. During the first discussion on that date, Mitchell and Dixon, CB aficionados who generally identified themselves to Roberts by their "handles," "Fiddlefoot" and "Snake," explained their drug business and expressed an unwillingness to handle small quantities of drugs. They stated that it was their preference and usual habit to deal in marijuana in minimum lots of 300 pounds. Roberts indicated that he would be interested in buying 300 pounds of marijuana at $150 per pound. Later that day, Mitchell and Dixon introduced Roberts to their "money man," Thomas Fortenberry, who discussed the payment and delivery details of the proposed sale with Roberts. When Roberts objected to certain aspects of the plan offered by defendants, Fortenberry suggested that Roberts secure the purchase money of $45,000 in a safe deposit box or bank account. On the following day, Roberts explained his position to officials at the National Bank of Commerce in Pine Bluff, Arkansas, and asked for their help in setting up a dummy account for $45,000. With their cooperation, he obtained a checking account number and two signature cards for a joint checking account. Fortenberry subsequently signed the signature cards in Roberts's presence at the bank.

Satisfied with the arrangement, defendants told Roberts to expect delivery of his 300 pounds of marijuana within the near future. For a variety of reasons which are not germane to this appeal, the marijuana did not arrive in the near future. Roberts kept in close contact with defendants by telephone until March 29, 1976, when a shipment of approximately 200 pounds of marijuana finally reached Sheridan, Arkansas. It was delivered to Roberts at Dixon's Exxon Service Station by defendants Wallace and Crisp, who were introduced to Roberts by Fortenberry as "our people from Texas (who) are here with the stuff." Wallace and Crisp had driven from Texas to Arkansas in a wrecker, towing a Lincoln Continental containing 205 pounds of marijuana. All defendants except Mitchell were present when the delivery was made to Roberts at Dixon's Exxon Station. Fortenberry explained Mitchell's absence by saying that Mitchell was in Texas working on another deal. Fortenberry and Roberts discussed doing regular business in the future at the rate of two 300-pound shipments of marijuana per week. Wallace, Fortenberry, Dixon and Crisp were then placed under arrest by Arkansas State Police. Mitchell was arrested later.

Mitchell, Wallace, Fortenberry, Dixon and Crisp were all charged by way of felony information in Grant County, Arkansas, with possessing approximately 205 pounds of marijuana in violation of Ark.Stat.Ann. § 82-2617 (1976). Their trial was set to commence on November 18, 1976, before Henry Means, Circuit Judge of the Seventh Judicial District of Arkansas. On the evening of November 17, 1976, Judge Means telephoned John Cole, the prosecuting attorney for Grant County, and informed him that he had conferred with defense counsel and had decided that Mitchell, Wallace, Fortenberry and Dixon, all of whom were willing to plead guilty, deserved probation and $1000 fines. Crisp, who was refusing to plead guilty, would go to trial. Cole objected unsuccessfully to the ex parte manner in which the case was being handled. Judge Means placed a second telephone call to Cole later the same evening. During this later conversation, a conference call in which the attorney representing Crisp and Wallace participated, Judge Means informed Cole of some changes in the proposed pleas and punishments. Means told Cole that he had decided to increase Wallace's fine from $1000 to $2000 "in order to justify it" and to dismiss Crisp's case, since Crisp had not been deeply involved in the case and was already on federal probation in Texas for possession of marijuana. In response to Cole's objections, the judge simply replied: "You can object all you want to tomorrow on the record."

Cole did object on the record on the following day when Judge Means dismissed the case against Crisp and allowed the other four defendants to plead guilty. Cole was held in contempt of court for his strong objections to Judge Means's disposition of the case. ¹ Mitchell, Dixon and Fortenberry were placed on probation for five years and fined $1000 each; Wallace was placed on probation for five years and fined $2000. On this same day, November 18, 1976, Cole also spoke to W. H. Dillahunty, the United States Attorney in Little Rock, Arkansas, about Judge Means's disposition of the case. Cole believed that Means's handling of the case had violated Rule 25.3(a) of the Arkansas Rules of Criminal Procedure, which forbids a judge from participating in plea discussions. Cole asked Dillahunty to take the case and determine whether there was federal involvement. Dillahunty agreed to have his office look into it, but cautioned Cole that because of the Department of Justice policy against dual prosecutions, he would be unable to proceed formally with the case without approval from the Department of Justice. The matter was then submitted to the Department of Justice. On December 20, 1976, Dillahunty received a letter from the Department of Justice advising him that the Attorney General of the United States had waived the application of the Petite policy against dual prosecution and had authorized indictments against all five defendants. Dillahunty submitted the case to a federal grand jury, and a three-count indictment was handed down on January 21, 1977. Count I charged all five defendants with violating 21 U.S.C. § 846 by conspiring to violate 21 U.S.C. § 841(a) "by possessing with intent to distribute and by distributing marijuana * * * ." Count II charged Wallace, Dixon, Fortenberry and Crisp with possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a). Count III charged Mitchell with aiding and abetting the other four defendants in their possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2.

Defendants Wallace and Crisp successfully moved for severance. Motions by all defendants for change of venue were also granted. Dixon, Fortenberry and Mitchell were tried jointly to a jury in Memphis, Tennessee, in March 1977. All three were convicted as charged. Dixon and Mitchell were each sentenced to two concurrent 20-month terms of imprisonment, to be followed by two-year special parole terms. Fortenberry was sentenced to 22 months imprisonment, to be followed by a two-year special parole term. In a separate jury trial held in Memphis in May 1977, Wallace was also convicted on all counts. He was sentenced to two concurrent three-year terms of imprisonment and a special parole term of two years. At yet another trial in Memphis, Crisp was acquitted. ² Wallace, Mitchell, Dixon and Fortenberry appeal.

All defendants challenge the validity of their federal convictions on the basis that the United States undertook their prosecution in violation of the Department of Justice policy against dual prosecution. For the reasons set forth below, we find this contention to be lacking in both factual and legal support.

The concept of "dual sovereignty," which inheres in our federal system, recognizes that state and federal governments have legitimate, although not necessarily identical, interests in the prosecution of a person for acts made criminal under the laws of both. Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 84, 54 L.Ed.2d 207 (1977). Under this concept, the problem of double jeopardy is avoided, because one act may constitute separate and distinct offenses against both state and federal governments. Turley v. Wyrick, 554 F.2d 840, 841 (8th Cir. 1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978). Thus, successive federal-state prosecutions do not run afoul of the due process clause of the fourteenth amendment, Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and successive state-federal prosecutions are not barred by the double jeopardy clause of the fifth amendment. Rinaldi v. United States, supra; Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959).

Although dual federal and state prosecutions are not prohibited by our Constitution, the Supreme Court has nonetheless expressed repeated concern over the unfairness and potential for abuse associated with successive prosecutions based on the same conduct. See ...