US v. Crumpler

• Decision Date: 10 June 1986
• Docket Number: No. H Cr 83-36.,H Cr 83-36.
• Parties: UNITED STATES of America, Plaintiff, v. Benjamin Legon CRUMPLER, Defendant.
• Court: U.S. District Court — Northern District of Indiana

636 F. Supp. 396

UNITED STATES of America, Plaintiff, v. Benjamin Legon CRUMPLER, Defendant.

No. H Cr 83-36.

United States District Court, N.D. Indiana, South Bend Division.

June 10, 1986.

William Grimmer, Asst. U.S. Atty., South Bend, Ind., for plaintiff.

Mark Krasnow, Miami, Fla., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

A.

The double jeopardy clause of the Fifth Amendment of the Constitution of the United States protects against a second prosecution for the same offense after acquittal.

In this case the original indictment was filed on July 7, 1983 and the full indictment is marked Appendix A^* and is attached hereto and incorporated herein.

On June 7, 1985 a superseding indictment was filed in this case in five counts charging only Benjamin Legon Crumpler and is attached as Appendix B.^* (It was conceded in open court by counsel for Crumpler that Counts IV and V of the superseding indictment filed on June 7, 1985 in this case were not subject to dismissal on double jeopardy grounds.)

The defendant, Benjamin Legon Crumpler, was also charged in an indictment filed in the Central District of Florida at Tampa on July 26, 1984 and is attached as Appendix C.^* There was a superseding indictment to correct only typographical errors in Tampa of which this court is familiar and that indictment is attached hereto, marked Appendix D,^* for purposes of clarity.

This court held an extensive evidentiary hearing in this case at the explicit request of the defendant, which hearing was held on February 10, 11, 12 and 13, 1986, and a full and complete transcript of the same has been prepared and filed totaling 681 pages, which transcript has been carefully examined by the court and has been available to both counsel for the government and counsel for the defendant. In addition to which this court, at the express request of defense counsel, heard final oral arguments on the 25th day of April, 1986, which oral arguments lasted approximately one and one-half hours.

The salient fact in this case that creates the double jeopardy argument of the defendant is this defendant's acquittal of the superseding indictment in Florida on May 21, 1985. He now argues here that the double jeopardy clause prohibits the prosecution of Counts I, II and III of the superseding indictment filed in this case.

A facial examination of the indictment upon which this defendant was acquitted in Florida and the indictment upon which he is currently charged in this district fails to reflect a double jeopardy preclusion.

In spite of this court's repeated requests and admonition both the defendant Crumpler and the United States of America, for reasons best known to each of them, declined to put before this court a transcript of the evidence in the case tried in Tampa, Florida. It is this court's belief that such failure must be primarily charged to the defendant since the defendant had the burden of proof on the double jeopardy issue in the hearing before this court. Nonetheless its absence presents serious problems to the proper disposition of this double jeopardy issue at this time.

Given this record with its apparent deficiencies this court must attempt to sort through the facts presented to determine whether in fact the present prosecution is for the same offense for which this defendant was acquitted in Tampa, Florida. The difficulty inheres in the nature of the offense and not in any conceptual problems with the double jeopardy clause. The application of the double jeopardy clause is clear and the kind of conceptual problems that are reflected most recently in United States v. Jefferson, 782 F.2d 697, (7th Cir. 1986) are not here present. The problem inheres in the factual nature of conspiracy and continuing criminal enterprise offenses. The court must make an extensive dissection of the factual record in this case before proceeding to the necessary conclusion under the Fifth Amendment of the Constitution of the United States.

Defendant was earlier charged in an indictment by the Southern District of Indiana in the mid-seventies. He fled the country and remained a fugitive until his arrest June 1, 1984.

On July 7, 1983, a United States Grand Jury, sitting in the Northern District of Indiana returned an indictment (hereinafter Indiana Indictment) against Benjamin Legon Crumpler (hereafter defendant). Forty other defendants were indicted as well.¹ Defendant was charged in Count Three with a violation of 21 U.S.C. §§ 952(a), 963, conspiring to import marijuana and cocaine into the United States, and in Count Four with a violation of 21 U.S.C. §§ 841, 846, conspiring to distribute and possess with the intent to distribute marijuana and cocaine. The dates on the original Indiana indictment read as follows: "Beginning during the early summer of 1977, the exact date being unknown to the Grand Jury, and continuing thereafter up to or about January 20, 1983, in the Northern District of Indiana and elsewhere." A superseding indictment was returned against the defendant on June 7, 1985, charging him in five counts: Count 1 charges him with a violation of 21 U.S.C. § 848, operating a Continuing Criminal Enterprise (hereafter CCE); Count 2 with a violation of 21 U.S.C. §§ 952(a), 963; Count 3 with a violation of 21 U.S.C. §§ 841(a)(1), 846; Count 4 with a violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; Count 5 with a violation of 18 U.S.C. §§ 1952, 2. The dates alleged in the superseding indictment read as follows: "From in or about March, 1978, and continuing thereafter up to and including in or about January, 1981, the exact dates being unknown to the Grand Jury, in the Northern District of Indiana and elsewhere." On June 11, 1985 defendant was arraigned on the superseding indictment and pled not guilty to all counts.

The defendant had also been indicted on July 26, 1984 by the Middle District of Florida (hereafter Tampa indictment) wherein he was charged with a violation of 21 U.S.C. § 848, CCE, as well as 21 U.S.C. §§ 841(a)(1), 846, 952, 963 and 18 U.S.C. § 2. Defendant was acquitted of all charges there on May 21, 1985. The time frame in the Tampa indictment read as follows: "On or beginning in or about the month of February, 1982, and continuing thereafter up to and including August, 1983, in the Middle District of Florida, and in diverse other districts," this defendant and others did engage in a CCE.

The defendant challenges the charges in the Indiana indictment alleged in Counts 1, 2, and 3 on the basis of double jeopardy. Defendant does not here contend that Counts 4 and 5 are impacted by the court's ruling on his Motion to Dismiss as Barred by Double Jeopardy.

This court held an evidentiary hearing on defendants' Motion to Dismiss. This court must decide this issue based solely on the record before it which includes all pleadings, affidavits, and the evidence adduced during that evidentiary hearing. This court does not have before it a copy of the transcript of the Tampa trial since neither side deemed it important enough to their case. Suffice it to say, that transcript is not before this court for the determination of the issue of double jeopardy.

At the evidentiary hearing, the defendant testified at great length on his own behalf and he called Jerome Frese, the former Chief Assistant United States Attorney involved with the Indiana indictment and prosecution in support of his motion. In opposition to the motion the government presented the following witnesses: Delbert Woodburn and Ernest S. Jacobsen, Chief Investigators from the Tampa indictment; William Tipping, Shelly White, George Anthony (Tony) Hicks (hereafter Tony Hicks) and Charles Kehm, all named as co-conspirators from the Indiana indictment. The parties have also entered into several stipulations.

It is the defendant's contention that all of his illegal smuggling activities from 1977 to 1983 was part of one overall scheme, a single overreaching conspiracy to smuggle and distribute drugs in the United States. The defendant testified to his massive participation and involvement in the crimes charged in the Indiana and Tampa indictments. However, he claims that the government was not aware of all of his activities. He contends that his organization and its overall plan to distribute and smuggle drugs to the United States continued in substantially the same form the entire time from 1977-1983 but for the shifting cast of players (the individuals participating in the activities)

B.

The following is a more specific summary of the facts before this court.

The defendant testified that he was involved in 25-30 overt acts giving rise to the charges in the Indiana indictment and in 10 overt acts giving rise to the charges in the Tampa indictment.

At different times under different agreements, with different objectives became involved with and associated with the following various individuals and their organizations for smuggling purposes: John Sharp, John Eddie, Thomas Fife, Ronald Markowski, John Arnold, Frank Brady, Stafford Morrison, Bill Baron, Charles Kehm, Norman Williams, and Francisco (Paco) Riveroll.

Defendant testified that his involvement with controlled substances in 1975 in the Southern District of Indiana was unrelated to any of his subsequent illegal drug activities. Defendant, while a fugitive, lived in Colombia, South America, where he became familar with drug smuggling activities and where he learned to speak Spanish fluently. Defendant testified that his first couple of smuggling ventures occurred in 1977 when he was approached to load a boat of marijuana. He said that John Arnold, Don Thone, Thomas Fife, John Eddie, Greg Poe, and a couple of others whose names he did not recall helped in the smuggling venture. The objective of the venture was to smuggle Colombian marijuana into the United States. This same group of individuals attempted another venture but was unsuccessful.

In March of 1978, Defendant was approached by a ...