Wilkett v. U.S.
| Decision Date | 24 June 1981 |
| Docket Number | 81-1295 and 81-1296,Nos. 81-1294,s. 81-1294 |
| Citation | 655 F.2d 1007 |
| Parties | James WILKETT, Thomas H. Conklin, Jr., and Joe F. Hoover, Defendants- Appellants, v. UNITED STATES of America, Plaintiff-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gene Stipe, Stipe, Gossett, Stipe, Harper & Estes, Oklahoma City, Okl. (Mitchell A. Lee, Stipe, Gossett, Stipe, Harper & Estes, Oklahoma City, Okl., with him on the brief), for defendant-appellant Wilkett.
William J. Skepnek, Linn, Helms, Kirk & Burkett, Oklahoma City, Okl. (William R. Burkett, Linn, Helms, Kirk & Burkett, Oklahoma City, Okl., with him on the brief), for defendant-appellant Conklin.
Carl D. Hughes, Hughes, Nelson & Blessington, Oklahoma City, Okl., for defendant-appellant Hoover.
James F. Robinson, Sp. Asst. U. S. Atty., Muskogee, Okl. (James E. Edmondson, U. S. Atty., Muskogee, Okl., with him on the brief), for plaintiff-appellee.
Before McWILLIAMS and DOYLE, Circuit Judges, and KERR *, District Judge.
We here consider three consolidated appeals, all of which involve the former jeopardy provision of the Fifth Amendment to the Constitution of the United States. The issue as to defendants-appellants Conklin and Hoover are similar, if not the same. The problems in the case of Wilkett are different from those present in the Conklin and Hoover cause. Therefore, the latter two defendants will be first considered and we will take up Wilkett thereafter.
The ultimate issue to be determined is whether the defendants are entitled to a ruling that further prosecution in the Eastern District of Oklahoma is precluded because of alleged former jeopardy which they contend arose from a prosecution in the Western District of Oklahoma.
Conklin, Hoover, Wilkett and the others, were charged with conspiring in the Western District to distribute a controlled substance in violation of 21 U.S.C. § 846. Wilkett was convicted by a jury; Conklin and Hoover were not convicted because after the completion of the government's case they moved for dismissal of the indictment which the court granted on grounds of lack of venue resulting from a failure to prove Conklin's and Hoover's involvement in the Western District activities.
The court in the Western District trial determined that there were distinct conspiracies in the Eastern and Western Districts and that there was sufficient evidence to support belief that Conklin and Hoover were involved in a separate but related conspiracy which took place in the Eastern District. Whether the judge in the Western District could have solved the problem by use of some other approach need not be considered. We need only review those matters which have been presented. We do notice the division of the conspiracy into two conspiracies one applicable to the Western District and the other applicable to the Eastern District. The effect of this is that the government is now precluded from using the overt acts which occurred in the west.
Very soon after this dismissal, Conklin and Hoover were indicted in the Eastern District, where they were charged with the new conspiracy. Wilkett was also named in this conspiracy, notwithstanding that he had been convicted in the Western District. All three defendants interposed former jeopardy contentions. Wilkett claimed that the attempted Eastern District prosecution of him was barred by his conviction in the Western District. Conklin and Hoover have claimed that the termination of their prosecution constituted an effective bar to the Eastern District effort, but the termination of their case was predicated on lack of venue. On the other hand, Wilkett contends that there was a final judgment on the merits in his case; that he has been adjudged guilty of a conspiracy which is indistinguishable from the new prosecution in the Eastern District.
Conklin and Hoover's main contention is that a further trial (in the Eastern District of Oklahoma) is barred because they have been placed in jeopardy as a result of the proceedings in the first trial. They point to:
a. That the indictment in the present trial is virtually the same as that in the first trial.
b. That the dismissal in the first trial, the granting of a motion, amounted to a judgment of acquittal and that this should be recognized as a foundation for a conclusion that there was double jeopardy.
c. That defendants took the initiative in seeking a dismissal because of prosecutorial over-reaching.
In the Western District case the court granted the motion to dismiss Conklin and Hoover and did so based on lack of venue, which resulted from the fact that their activities were restricted to the Eastern District.
The indictment in the Western District against Conklin and Hoover and the others had alleged a conspiracy to distribute a controlled substance. Conklin is a doctor of osteopathy and Hoover is a pharmacist. They were alleged to have been involved in writing and filling prescriptions for Dilaudid for the third defendant Wilkett. The assumption was that Wilkett was going to use the drug illegally to dope racehorses in the Eastern District. Wilkett did use the drug, but he distributed the drug throughout Oklahoma City in the Western District for human consumption.
The overt acts of Conklin and Hoover in writing and filling prescriptions occurred in the Eastern District. The government's original theory was that this activity of Conklin and Hoover was part of one large conspiracy; that some of the acts took place in the Western District and others occurred in the Eastern District.
Conklin and Hoover, from the start, advanced the proposition that the indictment in the Western District was improper on its face, in that it did not adequately plead that the crimes occurred in the Western District. When the judge was presented with this argument, he denied the motion and decided that the indictment's allegation that the conspiracy took place in the Western District, the Eastern District and elsewhere was sufficient. The judge stated that if at the end of the government's case there was a failure to prove formation of the conspiracy or the occurrence of an overt act in the Western District, the defendants could renew their motion.
The government succeeded in showing overt acts in the Western District, but was unable to prove that Conklin and Hoover were parties to the acts there. At the end of all the evidence therefor the motion for dismissal of the indictment was reargued and the trial court's order followed. 1
The motion for severance and dismissal of the defendants Hoover and Conklin was thus granted and the indictment against these two defendants was dismissed because of lack of proof of venue.
At the time of the order, no one took exception to the trial court's determination that there were two conspiracies. It assumed more importance when Conklin and Hoover were subsequently indicted in the Eastern District, where the resulting indictment was almost identical to the indictment in the Western District. The government apparently agreed that except for minor modifications the case which was presented against Conklin and Hoover in the Western District would be presented against them in the Eastern District.
On motion of the defendants for dismissal on the grounds of double jeopardy, the trial judge in the Eastern District concluded that under the same evidence test, United States v. Martinez, 562 F.2d 633 (10th Cir. 1977), the defendants had not sustained the burden of proving that the offense in the Western District was the same as that charged in the Eastern District. The Eastern District trial judge did state, however, that the matter would be reconsidered in light of the full trial record in the Eastern District.
The contention of appellants is that the conspiracy as charged and as tried to the jury in the Western District of Oklahoma included all of the available evidence of activities in both districts.
The view which we take is that the appellants were responsible for the dismissal, and that the dismissal was not predicated upon the merits of the case, that is, the insufficiency of the evidence to convict. Thus, there was not an adjudication of insufficiency of evidence whereby defendants were to be adjudged innocent. We do not, therefore, consider it necessary to decide whether there were two conspiracies or one.
The dismissal was predicated upon the failure of the proof to establish that Conklin and Hoover were part of a conspiracy in the Western District. Hence, there was a failure to establish venue. The provable acts which tied them to the conspiracy with the other defendants and Wilkett was their writing of prescriptions and filling them, and the furnishing of the narcotics. All of these acts took place in the Eastern District.
The appellants also seek to establish that their motion to dismiss in the Western District does not prevent their jeopardy contention. They say the motion to dismiss on their part was a matter of necessity brought on by prosecutorial over-reaching. They assert that the prosecution forced the jeopardy issue prior to dismissal and that it should have resolved the issue at pretrial.
We see no prosecutorial over-reaching. If there was any failure on the part of the government it certainly does not appear that it was any intentional effort to harass the defendants. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), is not applicable. The government was proceeding in the Western District on the theory that there was one conspiracy, and not, as the defendants assert, on the theory of there being two conspiracies with enough of an overlap in evidence to allow successful prosecution of only one.
In any event the defendants appear to now concede that lack...
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