U.S. v. Wittie, 93-2245

• Decision Date: 23 June 1994
• Docket Number: No. 93-2245,93-2245
• Citation: 25 F.3d 250
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Steven Kurt WITTIE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 250

25 F.3d 250

UNITED STATES of America, Plaintiff-Appellant, v. Steven Kurt WITTIE, Defendant-Appellee.

No. 93-2245.

United States Court of Appeals Fifth Circuit.

June 23, 1994.

Peggy M. Ronca, Paula C. Offenhauser, Asst. U.S. Attys., Lawrence D. Finder, U.S. Atty., Houston, TX, for appellant.

Thomas S. Berg, Roland E. Dahlin, II, Federal Public Defender, David Gerger, Asst. Federal Public Defender, Houston, TX, for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM and WIENER, Circuit Judges; KAUFMAN, ^* District Judge.

WIENER, Circuit Judge:

Plaintiff-Appellant the United States (the government) appeals the district court's dismissal of its two-count indictment that charged Defendant-Appellee Steven Kurt Witte ¹ with conspiracy and attempt to import 1,091 kilograms of cocaine into the United States. The district court dismissed the indictment on grounds that punishment for the indicted offense would violate the multiple punishments prong of the Double Jeopardy Clause of the Fifth Amendment through inclusion of the indicted offense in relevant conduct at sentencing for a related offense to determine Witte's base offense level. We disagree with the district court's conclusion that Witte would be subjected to impermissible multiple punishments for the same offense and therefore reverse and remand.

I FACTS AND PROCEEDINGS

In August 1989, undercover DEA Agent Roger Norman negotiated with Dennis Mason in Tucson, Arizona to transport marijuana from Mexico into the United States. The negotiations were unsuccessful, but discussions between Norman and Mason resumed in Houston in June 1990. At that time, Witte, Mason, and Tom Pokorny planned to import marijuana from Mexico and cocaine from Guatemala. Both the Mexico deal and the Guatemala deal were going on simultaneously. Norman's job would be to fly the contraband into the United States.

In July 1990, the Mexican marijuana source advised that cocaine might be added to the shipment if there were room on the plane or if marijuana were not available. The following month, Norman was told that the Mexicans were ready with 4,400 pounds of marijuana. Once Norman learned the coordinates of the airstrip, arrangements were made to have the participants arrested in Mexico. On August 12, 1990, Mason and four others were apprehended. Instead of marijuana, 591 kilograms of cocaine were seized. The following day, while still undercover, Norman met Witte to explain that the pilots had been unable to land in Mexico because police had shown up at the airstrip.

Witte, Mason, and Pokorny were not charged with conspiracy and attempt to import cocaine at the time because Mason was incarcerated in Mexico and Pokorny's whereabouts were under investigation. All contact between Witte and Norman ceased until January 1991.

Norman next contacted Witte in January 1991 and asked Witte if he were interested in purchasing 1000 pounds of marijuana from Norman. Witte answered affirmatively, and said that he would call Norman to tell him whether he could raise the $50,000 downpayment. Witte telephoned three days later from Denver, Colorado stating that he had the downpayment. Witte asked Norman--who still had possession of Witte's horse trailer from the prior activities--to return the trailer so that it could be used as a load vehicle for the marijuana. Witte stated that he would bring from Denver a motor home owned by Sam Kelly to use as a second load vehicle.

On February 7, 1991, Witte met Norman in Houston and informed him that he could only come up with half of the downpayment. Norman agreed to give Witte 1000 pounds of marijuana for $25,000 in downpayment and to allow Witte three days to obtain the balance. Witte introduced Norman to Kelly and showed Kelly's motor home and its various hidden compartments to Norman. Fellow undercover officers took the motor home and trailer to load the marijuana, at which time Witte and Kelly took Norman to Witte's hotel room to view the money. The two vehicles arrived loaded with approximately 375 pounds of marijuana. ² Witte and Kelly took possession and were promptly arrested.

The government indicted Witte for (1) conspiring to possess with intent to distribute more than 100 kilograms of marijuana ³ and (2) aiding and abetting possession with intent to distribute marijuana (collectively, the marijuana offense). ⁴ The charges resulted from the January-February 1991 "reverse-buy" of marijuana. Facing a statutory range of 5-40 years, ⁵ Witte entered a Rule 11(e)(1)(B) plea agreement with the government.

Witte pleaded guilty to the substantive count of aiding and abetting possession with intent to distribute marijuana and agreed to cooperate with the government by providing truthful and complete information concerning the charged offense as well as any others about which he might be questioned. The government agreed to dismiss count one of the indictment--conspiracy to possess with intent to distribute in excess of 100 kilos of marijuana from January 25, 1991 through February 8, 1991--and to file a Sec. 5K1.1 motion if Witte's cooperation amounted to substantial assistance. Although not expressed in the recitation of terms of the agreement, the government states that Witte was also promised a recommendation to a three-year cap if he brought in Pokorny, who was involved in the cocaine offense. Although Witte did not assist the government in locating Pokorny, Witte's cooperation did cause his co-defendant in the marijuana offense, Sam Kelly, to plead guilty.

At sentencing, the district court found that the marijuana and cocaine offenses were part of the "same course of conduct." Over objections by both Witte and the government, the court included the cocaine in relevant conduct to determine Witte's base offense level. ⁶ The government urged the court to accept the parties' position that the cocaine deal was not relevant to the marijuana deal. The government argued against inclusion of the cocaine because it planned to indict Witte later for the cocaine offense. If the cocaine were not included in relevant conduct, the government could seek consecutive sentences for the cocaine and marijuana offenses. On the other hand, Witte objected to inclusion of the cocaine because he hoped for a shorter sentence: if only the 375 pounds of marijuana were considered, the Guideline range would be 63 to 78 months rather than 292 to 365 months.

Witte's base offense level was pegged at 40, with a Guideline range of 292 to 365 months. From that base offense level, Witte received a 2-level increase for his aggravating role in the offense and an offsetting 2-level decrease for acceptance of responsibility. The court granted the government's Sec. 5K1.1 motion for downward departure based on Witte's substantial assistance. By virtue of that departure, Witte was sentenced to 144 months--148 months below the minimum sentence of 292 months under the pre-departure Guideline range. Witte appealed, but the appeal was dismissed due to Witte's failure to file a brief.

The government then indicted Witte and co-defendant Pokorny on two additional counts: (1) conspiring to import cocaine ⁷ and (2) aiding and abetting in the attempt to import cocaine ⁸ (collectively, the cocaine offense). ⁹ The indictment alleges that, between August 1989 and August 1990, Witte tried to import about 1,091 kilograms of cocaine from Central America. Witte moved to dismiss, arguing that he had already been punished for the cocaine offense because the cocaine was included in relevant conduct at sentencing for the marijuana offense. Witte also argued that the indictment breached the plea agreement.

The district court dismissed the indictment on grounds that punishment for the indicted offense would violate the multiple punishments prong of the Double Jeopardy Clause of the Fifth Amendment because the indicted offense had been included in relevant conduct at sentencing for the marijuana offense to determine Witte's base offense level. The court's conclusion on the breach of the plea agreement issue is not so clear, but it does not appear that the indictment was dismissed on that basis. ¹⁰ The government timely appealed the dismissal of the indictment.

II ANALYSIS

A. Double Jeopardy

1. Standard of Review

We review de novo the dismissal of the cocaine indictment on grounds of double jeopardy. ¹¹

2. Multiple Punishments Prohibited?

The Double Jeopardy Clause provides that no one shall "be subject for the same offense to be twice put in jeopardy of life or limb." ¹² The Supreme Court has left no doubt that the clause protects defendants from both multiple prosecutions and multiple punishments for the "same offense." ¹³ Witte argues that the government's present attempt to punish him for the cocaine offense violates double jeopardy's multiple punishments prong: he has already been "punished" for the cocaine offense charged in the subject indictment.

At the outset, we note the importance of distinguishing double jeopardy's prohibition of multiple prosecutions from its protection against impermissible multiple punishments. Although multiple prosecutions, i.e., more than one prosecution by the same sovereign for the same offense, always violate double jeopardy, ¹⁴ multiple punishments for the same offense may or may not violate double jeopardy. That is because Congress (or a state legislature) determines the scope of the constitutional protection in the multiple punishments context. If the legislature intended to impose multiple punishments for the same offense, imposition of such sentences does not violate the Constitution. ¹⁵ The purpose of the Double Jeopardy Clause in the multiple punishments context is to ensure that the punishment assessed does not exceed that authorized by the legislature (either the length of the sentence or the number of times that the sentence is imposed). ¹⁶

For purposes of double jeopardy, the drugs...