USA. v. Warneke, s. 99-1927

• Decision Date: 09 December 1999
• Docket Number: 99-1928 and 99-1961,Nos. 99-1927,s. 99-1927
• Citation: 199 F.3d 906
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARL J. WARNEKE, HARVEY E. POWERS, and ALLEN J. MCVAY, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 906

199 F.3d 906 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARL J. WARNEKE, HARVEY E. POWERS, and ALLEN J. MCVAY, Defendants-Appellants.

Nos. 99-1927, 99-1928 and 99-1961

In the United States Court of Appeals For the Seventh Circuit

Argued November 9, 1999

Decided December 9, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97-CR-98--J.P. Stadtmueller, Chief Judge.

Before COFFEY, MANION, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

In May of 1997, 17 alleged members of the Outlaws Motorcycle Club were indicted on, among other things, racketeering charges. The indictment listed 34 predicate acts of racketeering activity, including allegations of robbery, murders, arson, drug distribution, and transportation of explosives in interstate commerce. The three defendants on this appeal-- Carl Warneke, Harvey Powers, and Allen McVay-- were among the indictees.

Most of the defendants, including our three, were ordered into detention when arrested soon after the indictment was returned. But no trial was held. The indictment was dismissed 17 months later in October of 1998 by Chief Judge J.P. Stadtmueller. Because the dismissal was based on technical grounds that were easily curable, the judge ordered the defendants to remain in custody for a short time (not to exceed 30 days) pending the return of a superseding indictment. As expected, the defendants were re-charged when a superseding indictment was handed up in November of 1998. The new indictment was virtually identical to the one it replaced. When the superseding indictment was returned, 12 of the original defendants, including our 3, had been in custody for all 17 months that the case was pending. Subsequently the defendants moved to dismiss the superseding indictment, claiming that their constitutional rights against double jeopardy were violated. They argued that the time spent in custody before the return of the second indictment was punishment, and therefore the Double Jeopardy Clause prevented the government from punishing them again through the return of the superseding indictment and their continued detention.

Magistrate Judge William E. Callahan, Jr., to whom the defendants' motion was referred, concluded that the 17-month incarceration did not violate the Double Jeopardy Clause (or the Due Process Clause). He concluded that although the government was responsible for some of the delay, the main reason the case moved slowly was its "massive nature and complex scope." The magistrate judge's recommendation to Chief Judge Stadtmueller to deny the motion to dismiss was accepted. The defendants appeal.

The denial of a motion to dismiss on double jeopardy grounds is appealable. Abney v. United States, 431 U.S. 651 (1977). But this appeal can't leave the starting gate.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969), holds that the double jeopardy guarantee consists of three separate constitutional protections: it protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. The only ground that conceivably fits here is the last one, and that's not a very good fit at all. But the defendants try to wedge into that niche based on a novel reading of Department of Revenue of Montana v. Kurth Range, 511 U.S. 767 (1994).

The defendants claim that the Double Jeopardy Clause's prohibition against multiple punishment can be applied in cases where a defendant has never been prosecuted. Unfortunately, that's too much of an argument for Kurth Ranch to carry.

In Kurth Ranch, the defendants were convicted and sentenced after pleading guilty to drug charges. Later, the State of Montana sought to impose a drug tax on the defendants based on the same criminal conduct. The Supreme Court held that Montana's drug tax was "the functional equivalent of a successive criminal prosecution," 511 U.S. at 784, and so the Court concluded that the double jeopardy clause precluded the imposition of the tax penalty after the underlying drug prosecutions were wrapped up.

The analytical approach employed in Kurth Ranch, which actually came from United States v. Harper, 490 U.S. 435 (1989), was jettisoned in Hudson v. United States, 522 U.S. 93 (1997), but that's the least of the defendants' problems. The bigger problem is that Kurth Ranch did nothing to alter the "fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy." Serfass v. United States, 420 U.S. 377, 393 (1975). In Kurth Ranch the Supreme Court held that the imposition of a drug tax against a convicted defendant constituted a second punishment, but the Court never suggested that the tax would be prohibited absent the prior "attachment" of jeopardy. Similarly, if the tax had been levied prior to the drug prosecution, the Supreme Court would then have had to determine whether the taxing procedure resulted in the attachment of jeopardy.

Pretrial detention does not trigger the attachment of "jeopardy" so as to invoke the protection of the Double Jeopardy Clause. See United States v. Grisanti, 4 F.3d 173 (2d Cir. 1993). And, the statute authorizing pretrial detention, 18 U.S.C. sec. 3142, is remedial, not punitive. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that detention pursuant to 18 U.S.C. sec. 3142(e) did not, on its face, even violate the Due Process Clause because it...