US v. Mintz

• Decision Date: 06 October 1992
• Docket Number: No. 91-40045-01-04.,91-40045-01-04.
• Parties: UNITED STATES of America, Plaintiff, v. Michael MINTZ, Paul Silvers, Merrill Crawford, and Samuel Walker, Defendants.
• Court: U.S. District Court — District of Kansas

804 F. Supp. 229

UNITED STATES of America, Plaintiff, v. Michael MINTZ, Paul Silvers, Merrill Crawford, and Samuel Walker, Defendants.

No. 91-40045-01-04.

United States District Court, D. Kansas.

October 6, 1992.

Lee Thompson, U.S. Atty., Wichita, Kan., D. Kan., Gregory G. Hough and Richard L. Hathaway, Asst. U.S. Attys., Topeka, Kan., for plaintiff.

Gregory E. Skinner, Asst. Federal Public Defender, Topeka, Kan., for defendant Mintz.

McCullough, Wareheim & LaBunker, PA, Donald Hoffman, Tilton & Hoffman, F.G. Manzanares, Topeka, Kan., Borg & Lombardino, Kew Gardens, N.Y., for Paul Silvers.

William K. Rork, John C. Humpage, Topeka, Kan., for defendant Crawford.

Joseph D. Johnson, Topeka, Kan., for defendant Walker.

Jeannine Herron, Topeka, Kan., for defendant Wolfe.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on motions by Paul Silvers and Michael Mintz to dismiss the conspiracy charges against them on the basis of double jeopardy (Docs. 115 and 116). Both defendants contend the conspiracy charged in this case is part of an overall conspiracy charged and ultimately dismissed with prejudice in their case in Florida. Mintz and Silvers pled guilty in Florida to conspiracy to import marijuana, and Count III, the conspiracy to possess with the intent to distribute marijuana, was dismissed with prejudice.¹ Because the court finds the conspiracy to possess with intent to distribute marijuana charged in Kansas and the conspiracy to possess with intent to distribute marijuana charged and ultimately dismissed in Florida are so interdependent as to constitute one conspiracy, the conspiracy charged in Count 1 of the current indictment must be dismissed as to Michael Mintz and Paul Silvers.

In analyzing the double jeopardy issue, the United States Supreme Court has ruled that the district courts must first apply the traditional Blockburger test. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This test is essentially whether the statutory elements of the offense are the same or whether one offense is a lesser included offense of the other. Application of the test to the facts of this case would not lead to a conclusion that the defendant was being put in jeopardy twice for the same offense.

In Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), however, the Court specifically addressed multiple prosecution situations and stated, "the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S. at 521, 110 S.Ct. at 2093.

The Tenth Circuit's statement of the law in cases where conspiracy is the offense in question is particularly instructive. See United States v. Sasser, 974 F.2d 1544, (10th Cir.1992). If the defendant is charged for participation in two conspiracies, which in fact are a single conspiracy, double jeopardy bars the subsequent prosecution. 974 F.2d at 1549. The court must look to the interdependence of the conduct alleged and "`the focal point of the analysis is whether the alleged co-conspirators were united in a common unlawful goal or purpose.'" Id., 974 F.2d at 1550 (quoting United States v. Daily, 921 F.2d 994, 1007 (10th Cir.1990)). The court in Daily also stated that the interdependence of the multiple conspiracies involves a determination of "whether the activities of alleged co-conspirators in one aspect of the charged scheme were necessary or advantageous to the success of the activities of co-conspirators in another aspect of the charged scheme, or the success of the venture as a whole." Daily, 921 F.2d at 1007.

In the instant case, the defendants contend the overall scheme was to import good quality Jamaican marijuana into Florida. The defendants would mix the Jamaican marijuana with poor quality Kansas marijuana, which they would harvest from wild growing Kansas marijuana fields. The marijuana would then be sold in New York. In addition, some of the Kansas marijuana would be sold to help finance the importation of the Jamaican marijuana.

The government contends that the conspiracy charged in Florida involved only the Jamaican marijuana. The conspiracy charged in Kansas involved different co-conspirators, Mintz and Silvers being the only common denominators, and the purpose was to find wild growing Kansas marijuana to harvest. The government contends that no facts regarding the Florida conspiracy will be used to prove the Kansas conspiracy, and although there are similarities between the two charged conspiracies, there is no interdependence.

The court finds the government's distinctions to be without merit. The evidence at...