United States v. Black, Crim. No. 83-321.

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Thomas Dyson, Washington, D.C., for Fred B. Black
• Citation: 605 F. Supp. 1027
• Parties: UNITED STATES of America v. Fred B. BLACK, Jr., et al.
• Docket Number: Crim. No. 83-321.
• Decision Date: 25 March 1985

605 F. Supp. 1027

UNITED STATES of America
v.
Fred B. BLACK, Jr., et al.

Crim. No. 83-321.

United States District Court, District of Columbia.

March 25, 1985.

605 F. Supp. 1028

Roger Adelman, Paul Knight, Asst. U.S. Attys., Washington, D.C., for U.S.

Thomas Dyson, Washington, D.C., for Fred B. Black.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

On March 19, 1985, the defendant Fred B. Black, Jr. filed a motion to dismiss Counts 8 through 25 and 27, 28, 30, 32, 34, 36 and 37 of this indictment in their entirety, and to dismiss certain overt acts contained in Count 2. The defendant asserts that the evidence supporting these substantive counts and overt acts is substantially the same as that used to obtain recent convictions against him under a separate indictment for conspiracy to distribute controlled substances, 21 U.S.C. § 846, and violation of the Travel Act, 18 U.S.C. § 1952,¹ and that his prosecution on the enumerated counts and overt acts of this indictment would therefore violate the Double Jeopardy Clause of the Fifth Amendment.

On March 22, 1985 the Court heard oral argument on defendant's motion, denying the motion at the conclusion of the parties' presentations. Thereupon, the defendant, in open court, filed a motion to stay trial of this case, scheduled to commence on March 26, 1985, pending appeal of the denial of his double jeopardy motion. Defendant's motion to stay was taken under advisement. Later that day the Court issued two orders, one embodying the oral ruling on defendant's motion to dismiss counts and strike overt acts, the other denying defendant's motion to stay. The reasons for both rulings are now set forth below.

A. Motion to Dismiss Substantive Counts and Strike Overt Acts

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court recognized that the Double Jeopardy Clause embodies essentially three guarantees: (1) It protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishment for the same offense. Id. at 717, 89 S.Ct. at 2076. In this case the defendant raises the second of these guarantees. The defendant maintains that where essentially the same evidence underlies two separate judicial criminal proceedings, the successive prosecution bar of the Double Jeopardy Clause is violated even if the successively prosecuted offenses have technically different elements. As part of this argument the defendant asserts that the familiar Blockburger test for determining whether two offenses are really distinct from one another by examining their statutory provision and considering whether each "requires proof of a fact which the other does not," is totally inapplicable to successive prosecution cases. This contention, however, is mistaken. In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and again more recently in Illinois v. Vitale,

605 F. Supp. 1029

447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the Supreme Court expressly embraced the Blockburger rule in connection with a successive prosecution claim under the Double Jeopardy Clause. Brown, 432 U.S. at 166, 97 S.Ct. at 2225; Vitale, 447 U.S. at 416, 100 S.Ct. at 2265

The real issue raised by the defendant is not the applicability of the Blockburger test to successive prosecution cases, but whether, despite satisfaction of the Blockburger test, other standards for protecting against double jeopardy through successive prosecution have been met.

In Brown v. Ohio, supra, the Supreme Court did note that the Blockburger test is not the only standard for determining whether successive prosecutions violate the double jeopardy clause, and that successive prosecutions may be barred in some circumstances where the second prosecution involves issues and evidence also involved in the first trial. 432 U.S. at 166 n. 6, 97 S.Ct. at 2226 n. 6. An examination of the few circumstances under which the Supreme Court has identified a double jeopardy problem other than through a Blockburger-type analysis indicates the extremely limited circumstances under which the actual evidence adduced at an earlier trial may be considered for double jeopardy purposes, and their inapplicability to the present case. Thus, in In Re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), the Supreme Court held that a Mormon convicted of unlawful cohabitation with two women could not be subsequently tried for adultery on the grounds that he was lawfully married to only one of the women. The Court held that, although neither marriage nor sexual intercourse was strictly necessary to prove unlawful cohabitation, as they obviously were for adultery, it was well known that the unlawful cohabitation statute was aimed against polygamy, with the strong presumption of sexual intercourse attaching to living together as man and wife. Id. at 188-89, 9 S.Ct. at 676. Therefore, under the particular circumstances of that case the Court suggested that adultery should be regarded as a lesser-included offense, an "incident" of the cohabitation, despite the technical variance of the elements of the offenses. Id. at 188-90, 9 S.Ct. at 676-77.

Recently, under somewhat different circumstances, the Supreme Court has recognized that it may be appropriate to look at the evidence presented at an earlier trial, or to be presented at a subsequent one, to determine if one offense is a lesser-included offense of the other, although comparison of their bare statutory provisions would not reveal them as such. In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the defendant struck and killed two children with his automobile. He was first found guilty under a provision of the Illinois Vehicle Code which made it unlawful to fail to reduce speed to avoid a collision. The defendant then challenged a subsequent attempt to try him for involuntary manslaughter, which required a showing of "reckless operation of a motor vehicle in a manner likely to cause death or great bodily harm." The Supreme Court held in Vitale that even if recklessness under the statute could be demonstrated by evidence other than failing to slow down, if that was in fact what the prosecution intended to prove, a substantial double jeopardy problem was presented. Id. at 420, 100 S.Ct. at 2267.² See also Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (double jeopardy bars prosecution for robbery after felony-murder conviction for killing occurring in course of robbery since every element of robbery had to be proven to sustain felony-murder conviction).³

605 F. Supp. 1030

An analysis of the cases set forth above makes evident that the per se rule advocated by the defendant, prohibiting any overlap of evidence from an earlier trial from being introduced in a later trial for a separate offense, has never been adopted by the Supreme Court or this Circuit. The defendant raises no contention, under Blockburger or Vitale, that the substantive counts which he seeks to dismiss here are actually lesser-included offenses of his conviction for conspiracy to distribute narcotics under 21 U.S.C. § 846, and no such conclusion would be warranted.

Moreover, even the decisions in Jordan v. Commonwealth of Virginia, 653 F.2d 870 (4th Cir.1980), and United States v. Sabella, 272 F.2d 206 (2d Cir.1959), cited by the defendant, do not support the motion here. Jordan and Sabella stand for the proposition that the double jeopardy clause prohibits a second prosecution which utilizes evidence adduced in an earlier prosecution, where the same evidence would support a conviction in both. Jordan, 653 at 873-74; Sabella, 272 F.2d at 210. In Counts 11 through 18 of this indictment defendant Black is charged with...