U.S. v. Wheeler

• Citation: 535 F.3d 446
• Decision Date: 01 August 2008
• Docket Number: No. 05-3140.,05-3140.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James L. WHEELER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

535 F.3d 446

UNITED STATES of America, Plaintiff-Appellee, v. James L. WHEELER, Defendant-Appellant.

No. 05-3140.

United States Court of Appeals, Sixth Circuit.

Argued: April 24, 2008.

Decided and Filed: August 1, 2008.

ARGUED:

Gary W. Crim, Law Office, Dayton, Ohio, for Appellant. Joseph R. Wilson, Assistant United States Attorney, Toledo, Ohio, for Appellee.

ON BRIEF:

Gary W. Crim, Law Office, Dayton, Ohio, for Appellant. Joseph R. Wilson, Ava M. Rotell Dustin, Assistant United States Attorneys, Toledo, Ohio, for Appellee.

Joseph R. Wilson, Asst. U.S. Attorney, Ava M.R. Dustin, U.S. Attorney's Office for the Western Division, Toledo, OH, for Plaintiff-Appellee.

Gary W. Crim, Dayton, OH, for Defendant-Appellant.

Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

This case is part of a consolidated appeal involving thirteen defendants who were members of the Outlaw Motorcycle Club ("OMC"), an international motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau of Investigation and state law enforcement agencies began an investigation into the Green region of the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with various federal offenses, including Racketeer Influenced and Corrupt Organizations Act ("RICO"), drug trafficking, and firearms offenses. The defendants were tried together before an anonymous jury.

Defendant James "Frank" Wheeler was formerly the head of the Indianapolis chapter and Green region of the OMC. Wheeler later served as president of the entire international OMC organization. Following trial, Wheeler was convicted on one count of substantive RICO, in violation of 18 U.S.C. § 1962(c), one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d), and one count of conspiracy to possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846. On January 5, 2005, Wheeler was sentenced to life imprisonment on the substantive RICO and drug conspiracy counts, to run concurrently, and to 20 years' imprisonment on the RICO conspiracy count, to run consecutively.

Wheeler raises two issues on appeal: (1) that his indictment for the substantive RICO, RICO conspiracy, and drug conspiracy offenses violated the Double Jeopardy Clause because of an earlier prosecution; and (2) that his sentence was improperly imposed for various reasons.¹ Because Wheeler's indictment for the substantive RICO and RICO conspiracy offenses violated the Double Jeopardy Clause, we reverse those convictions and sentences. We affirm, however, Wheeler's conviction and sentence for the drug conspiracy.

I.

Prior to the instant prosecution in the Northern District of Ohio, Wheeler was indicted in the Middle District of Florida for offenses that stemmed from his association with the OMC. The Florida indictment consisted of six counts, four of which charged one substantive RICO count under 18 U.S.C. § 1962(c), one RICO conspiracy count under 18 U.S.C. § 1962(d), and two counts of drug conspiracy under 21 U.S.C. § 846. Though Wheeler was convicted of the substantive RICO and RICO conspiracy offenses, he was acquitted on one drug conspiracy count (Count 3) and the second drug conspiracy count was dismissed (Count 4).

Subsequent to his indictment in Florida, a grand jury returned the instant indictment against Wheeler in the Northern District of Ohio, charging Wheeler with one count each of substantive RICO (Count 1), RICO conspiracy (Count 2), drug conspiracy (Count 3), and firearms conspiracy under 18 U.S.C. § 924(o) (Count 4). Based on the Florida prosecution, Wheeler filed a motion in the district court contending that his indictment in Ohio for the substantive RICO, RICO conspiracy, and drug conspiracy offenses placed him in jeopardy twice for the same crimes. After hearing oral argument, the district court denied Wheeler's motion, concluding that each indictment charged Wheeler with separate crimes. Following trial, Wheeler was found guilty of the substantive RICO, RICO conspiracy, and drug conspiracy offenses, but acquitted of the firearms conspiracy. On appeal, Wheeler again claims that double jeopardy precluded his prosecution in Ohio for both RICO offenses and the drug conspiracy offense. We review these claims de novo. United States v. Dakota, 197 F.3d 821, 826 (6th Cir.1999).

II.

Because Wheeler was placed in jeopardy twice for the same substantive RICO and RICO conspiracy crimes, we vacate those convictions. See U.S. Const. Amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb"). In United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir.1983), this court set out a "totality of the circumstances" test to address a double jeopardy claim in the context of successive RICO conspiracy prosecutions. The test consisted of five factors: "(1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicates the nature and scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place." Id. The Sinito court explained that "[w]here several of these factors differ between the conspiracies, the conclusion follows that the alleged illegal conspiracies are separate and distinct offenses." Id. at 1256-57.

Although Sinito did not involve a successive prosecution for the substantive RICO offense, a similar analysis should be applied, as other courts have recognized. In United States v. Russotti, 717 F.2d 27, 32-33 (2d Cir.1983), the Second Circuit faced the question of whether a successive prosecution for both the substantive RICO offense and the RICO conspiracy offense violated the Double Jeopardy Clause. The court determined that double jeopardy is implicated in successive RICO prosecutions only if both the enterprise and the pattern of racketeering activity alleged in each indictment are the same. The court explained that

it is neither the enterprise standing alone nor the pattern of racketeering activity by itself which RICO criminalizes. Rather, the combination of these two elements is the object of punishment under RICO. Therefore, in order for the present indictment to give rise to a valid claim of double jeopardy, both the enterprise and the pattern of activity alleged in the [previous] indictment must be the same as those alleged in the [instant] indictment.

Id. at 33 (citations omitted); see also United States v. DeCologero, 364 F.3d 12, 18 (1st Cir.2004) ("Every circuit to have examined the issue has agreed that double jeopardy only bars successive RICO charges involving both the same enterprise and the same pattern of racketeering activity."). In evaluating whether the pattern of racketeering activity alleged in each indictment was the same, the Second Circuit adopted a five factor "totality of the circumstances" test similar to the test set out in Sinito: "(1) the time of the various activities charged as parts of separate patterns; (2) the identity of the persons involved in the activities under each charge; (3) the statutory offenses charged as racketeering activities in each charge; (4) the nature and scope of the activity the government seeks to punish under each charge; and (5) the places where the corrupt activity took place under each charge." Russotti, 717 F.2d at 33 (quoting United States v. Dean, 647 F.2d 779, 788 (8th Cir.1981)). The court noted that the fourth factor is "most significant." 717 F.2d at 34.

In this case, both Wheeler and the government agree that the same enterprise was implicated in the Florida and Ohio RICO prosecutions. Indeed, both indictments alleged that Wheeler and others engaged in a pattern of racketeering activity through the OMC enterprise. Thus, the only question this court must address is whether each indictment charged the same pattern of racketeering activity. And because the Sinito test essentially mirrors the five-factor test expressed in Russotti, Wheeler's double jeopardy arguments for both the substantive RICO offense and the RICO conspiracy offense can be analyzed at the same time. For the reasons stated below, the Sinito and Russotti factors indicate that Wheeler was indicted for the same "pattern of racketeering activity" in the Florida and Ohio prosecutions. Accordingly, Wheeler's substantive RICO and RICO conspiracy charges unconstitutionally placed him in double jeopardy.

With respect to the first factor, the time periods covered by the two indictments overlap significantly. The Florida indictment alleged conduct occurring between 1990 and 2004, and the Ohio indictment alleged conduct occurring between 1988 and 2003. It is true, as the government argues, that much of the conduct alleged of Wheeler in the Florida indictment occurred between 1994 and 1995. Conversely, the Ohio indictment charged Wheeler with racketeering acts that generally occurred between 2000 and 2002. Even so, Racketeering Act 16 in the Florida indictment charged Wheeler with conduct that occurred in 2002, the year that Wheeler also allegedly committed Racketeering Act 15 of the Ohio indictment. And Racketeering Act 1(A) of the Ohio indictment charged a drug conspiracy—of which Wheeler was alleged to be part—that began in 1990 and carried through to the time of the indictment, April 2003. This time period obviously includes 1994 and 1995, the years that much of the conduct alleged of Wheeler in the Florida indictment took place. Finally, for purposes of the RICO conspiracy convictions, many of the predicate acts allegedly perpetrated by Wheeler's co-conspirators in the Ohio...