People v. Hermiz ( 1999 )

597 N.W.2d 218 (1999) 235 Mich. App. 248

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Issam T. HERMIZ, Defendant-Appellee.
People of the State of Michigan, Plaintiff-Appellant,
v.
Najah Konja, Defendant-Appellee.

Docket Nos. 210277, 210278.

Court of Appeals of Michigan.

Submitted December 1, 1998, at Detroit. Decided April 13, 1999, at 9:10 a.m. Released for Publication July 27, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Daniel L. Lemisch, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, for the people.

Michael J. McCarthy, Redford, for Issam T. Hermiz.

Richard M. Lustig, Birmingham, for Najah Komjah.

Before: McDONALD, P.J., and JANSEN and TALBOT, JJ.

PER CURIAM.

The prosecution appeals as of right from an amended opinion and order dismissing the charges brought against defendants in the Oakland Circuit Court. We affirm.

In October 1989, defendants and seven other persons were indicted in the United States District Court for the Middle District of Florida for conspiring to possess with intent to distribute five kilograms or more of a mixture containing cocaine, 21 U.S.C. § 841(a)(1). In July 1990, defendants were convicted as charged and sentenced to 211 months' imprisonment. In the same month, an Oakland County grand jury indicted defendants and seven other persons^[1] for conspiring to possess with intent to deliver over 650 grams of a mixture containing cocaine, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i), and M.C.L. § 750.157a; M.S.A. § 28.354(1). Following separate jury trials, defendants were convicted as charged and sentenced to life in prison without parole.

Before their respective trials, defendants each moved to quash the indictment on double jeopardy grounds. The trial court did not immediately rule on defendants' motions. Instead, on March 19, 1992, after the conclusion of both trials and a one-day evidentiary hearing, it issued a written opinion and order denying defendants' motions to quash. Applying the five-part "totality of the circumstances" test described in United States v. Thomas, 759 F.2d 659, 662 (C.A.8, 1985), the trial court found that a single conspiracy formed the basis for both indictments. Nevertheless, relying on People v. Cooper, 398 Mich. 450, 460-461, 247 N.W.2d 866 (1976), it determined that the state prosecution did not violate defendants' double jeopardy rights because Michigan's interests were not satisfied by the federal prosecution. In making its ruling, the trial court indicated that the prosecution bore the burden of proving the existence of multiple conspiracies.

Both defendants appealed to this Court as of right. In defendant Hermiz' case, a panel of this Court applied the "same transaction" test and concluded that the state prosecution did not constitute a double jeopardy violation. See People v. Hermiz, 207 Mich.App. 449, 451-452, 526 N.W.2d 1 (1994). In particular, the Hermiz Court explained that it was "not convinced that the various criminal conspiracies that took place in the states of Florida and Michigan occurred in a continuous time sequence or reflected a single intent and goal." Id. at 451, 526 N.W.2d 1. In defendant Konja's case, a different panel of this Court affirmed the trial court's order on the same basis. See People v. Konja, unpublished opinion per curiam of the Court of Appeals, issued June 20, 1995 (Docket No. 150596). Both defendants then sought leave to appeal to the Michigan Supreme Court. Hermiz' application was granted;^[2] Konja's was held in abeyance pending the outcome of Hermiz' appeal.

In the Supreme Court, a majority of the justices agreed that Hermiz' double jeopardy rights were not violated by the Michigan prosecution. In the lead opinion, Justice Weaver, joined by two other justices, reasoned that although the prosecution had failed to establish in the trial court that the federal and state offenses were distinct, there was no double jeopardy violation because the two prosecutions were brought by different sovereigns. See People v. Mezy, 453 Mich. 269, 277-281, 551 N.W.2d 389 (1996) (Weaver, J.). Chief Justice Brickley, on the other hand, explained that he would have upheld the result reached by the lower courts on the ground that the evidence showed that the two offenses were distinct See id. at 287, 551 N.W.2d 389 (Brickley, C.J.). Neither Justice Weaver nor Chief Justice Brickley addressed the "same transaction" test relied on by the Court of Appeals.

Despite the majority's conclusion that there was no double jeopardy violation, all seven justices agreed that defendant Hermiz was entitled to relief on appeal in the form of a remand to the trial court for consideration of whether the state prosecution violated M.C.L. § 333.7409; M.S.A. § 14.15(7409). See Mezy, supra at 282-285 (Weaver, J.), 286 (Brickley, C.J.), 288-289 (Levin, J.), 551 N.W.2d 389. Section 7409 provides:

If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

The justices also agreed that, on remand, the trial court should use the five-part "totality of the circumstances" test to "make a determination of whether there were multiple conspiracies." See id. at 284-285 (Weaver, J.), 286 (Brickley, C.J.), 294 (Levin, J.), 551 N.W.2d 389. The lead opinion described the inquiry as follows:

In order to determine what the extent of the agreement is, so that we may determine whether there are two conspiracies or only one, we will use the same "totality of the circumstances" test used in constitutional double jeopardy analysis. This test includes the following factors: 1) time, 2) persons acting as co-conspirators, 3) the statutory offenses charged in the indictments, 4) the overt acts charged by the government or any other description of the offenses charged that indicate the nature and scope of the activity that the government sought to punish in each case, and 5) places where the events alleged as part of the conspiracy took place. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement each with a separate object. United States v. Thomas, supra. [Mezy, supra at 285, 551 N.W.2d 389.]

Finally, the Court explained that the defendant, rather than the prosecution, should bear the burden of establishing the existence of a bar to prosecution under § 7409. See Mezy, supra at 282-283 (Weaver, J.), 286 (Brickley, C.J.), 296 (Levin, J.), 551 N.W.2d 389.

In lieu of granting defendant Konja's application for leave to appeal, the Supreme Court remanded his case to the trial court for consideration of the same issue. See People v. Konja, 453 Mich. 953, 564 N.W.2d 890 (1996).

On remand, defendants argued that they could meet their burdens of production and persuasion by relying on the existing record. The trial court agreed, and expressly adopted its findings from the March 19, 1992, opinion and order. In the 1992 order, the trial court applied the "totality of the circumstances" test and found that a single conspiracy formed the basis for both indictments.^[3] Accordingly, the trial court dismissed the charges against defendants on the ground that the state prosecution was barred by § 7409.

The prosecution appealed as of right to this Court and the cases were consolidated. We will address both cases together because the facts and arguments with respect to each defendant are nearly identical.

The prosecution first argues that the trial court's opinion on remand was in violation of the "law of the case" doctrine. We disagree. The law of the case doctrine provides that "an appellate court's determination of law will not be differently decided on a subsequent appeal in the same case if the facts remain materially the same." People v. Kozyra, 219 Mich.App. 422, 433, 556 N.W.2d 512 (1996). The determination of an appellate court is likewise binding on lower courts. See People v. Whisenant, 384 Mich. 693, 702-703, 187 N.W.2d 229 (1971).

Specifically, the prosecution argues that the trial court was bound by the previous rulings of this Court that the state and federal indictments arose from "distinct conspiracies." As noted, this Court previously held in both cases that the conspiracies were distinct for double jeopardy purposes under the "same transaction" test. With full knowledge of these rulings, the Supreme Court subsequently ordered the trial court to determine on remand whether there were multiple conspiracies under the "totality of the circumstances" test. "Where a case is taken on appeal to a higher appellate court, the law of the case announced in the higher appellate court supersedes that set forth in the intermediate appellate court." Johnson v. White, 430 Mich. 47, 53, 420 N.W.2d 87 (1988). Accordingly, the prosecution's argument is without merit.

The prosecution next argues that the trial court erred in its determination that a single conspiracy formed the basis for both indictments. We disagree. As an initial matter, we must address the standard of review. The prosecution contends that the propriety of the trial court's application of § 7409 presents a question of law to be reviewed de novo. This would be true if our resolution of the issue turned on a question of statutory interpretation. See, e.g., People v. McIntire, 232 Mich.App. 71, 84, 591 N.W.2d 231 (1998). In this instance, however, the question before the trial court was factual in nature. The Supreme Court instructed the trial court to determine, as a matter of fact, whether there were multiple conspiracies. Accordingly, our review is for clear error. MCR 2.613(C); MCR 6.001(D). A finding of fact is considered "clearly erroneous" if, after review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made. People v. Gistover, 189 Mich.App. 44, 46, 472 N.W.2d 27 (1991).

Given the standard of review, it is not our task on appeal to engage in an application of the "totality of the circumstances" test de novo. Nevertheless, because the prosecution's argument on appeal is framed in terms of the various factors of that test, we will address each factor individually. The first factor is "time." Here, the federal indictment charged that defendants and others conspired to possess with intent to deliver cocaine "[b]etween on or about the Spring of 1987 and continuing to and including on or about June 23, 1989." The state indictment charged that defendants and others conspired to possess with intent to deliver cocaine "from on or about January, 1985, to on or about August 1989, said dates being approximate." Thus, although the state indictment alleged a conspiracy of longer duration, the period in the state indictment completely encompassed the period in the federal indictment. The trial court cited this fact as evidence weighing in favor of finding a single conspiracy. On appeal, the prosecution notes the difference in duration, but offers nothing to dispute the trial court's logic.

The second factor to be considered in the "totality of the circumstances" test is the "persons acting as coconspirators." Here, only defendants and Mezy were named as defendants in both indictments. After acknowledging this fact, the trial court noted that Ed Ballo (who was named as a defendant on the federal indictment) testified against defendants in the state case. The trial court also noted that Fernando Nino, Gabriel Nino, and Hector Alvarez (three other persons named as defendants in the federal indictment) were "repeatedly mentioned in the [state] indictment and surrounding exhibits." Accordingly, the trial court concluded that the same actors were involved in the activities charged in both indictments. Without addressing the specific facts cited by the trial court, the prosecution merely states in its argument on appeal that "[t]he sparsity [sic] of common co-conspirators is indicative of the fact that two separate conspiracies existed." Having said this, the prosecution again offers nothing to dispute the trial court's logic.

The third factor is "the statutory offenses charged in the indictments." The prosecution concedes that the statutory offenses charged in both indictments were "similar."

The fourth factor involves analysis of the descriptions of the offenses charged for purposes of determining the nature and scope of the activity sought to be punished in each case. With respect to this factor, the prosecution argues in conclusory fashion that the overt acts listed in the state indictment describe a conspiracy to deliver drugs in Michigan while the activities listed in the federal indictment describe a conspiracy to distribute drugs in Florida. Although both indictments describe activities related to the distribution of drugs and activities taking place in Florida and Michigan, the conclusion urged by the prosecution is not readily apparent. When the trial court analyzed this factor, it went beyond the face of the indictments themselves to consider information from a wide variety of sources. The prosecution, however, fails to address these additional sources of information in its argument on appeal.

The final factor is the "places where the events alleged as part of the conspiracy took place." In its opinion and order, the trial court noted that it was "clear" that "the primary places involved [in both indictments] are Southeastern Michigan and Florida." The prosecution, on the other hand, concludes in its argument on appeal that "[v]irtually all the criminal activity in the federal case took place in Florida." Once again, in so doing, the prosecution fails to explain the basis for its conclusion.

In sum, the prosecution has offered nothing in its rather perfunctory argument on appeal that would indicate "clear error" on the part of the trial court. As the appellant, it was required to do more than merely announce its position and leave it to this Court to discover and rationalize the basis for its claims. See People v. Norman, 184 Mich.App. 255, 260, 457 N.W.2d 136 (1990); People v. Heard, 31 Mich.App. 439, 447, 188 N.W.2d 24 (1971), rev'd on other grounds 388 Mich. 182, 200 N.W.2d 73 (1972). After reviewing the record, we are not left with a definite and firm conviction that a mistake has been made. Gistover, supra at 46, 472 N.W.2d 27. Accordingly, we hold that the trial court did not err as alleged.

Affirmed.

NOTES

[1] Although both indictments named a total of nine persons, only defendant Hermiz, defendant Konja, and Basil Mezy, were named as defendants in both indictments.

[2] In the Supreme Court, defendant Hermiz' appeal was consolidated with an appeal by codefendant Basil Mezy, who was tried with defendant Konja.

[3] In effect, the trial court's decision on remand amounted to nothing more than an acknowledgment that its earlier finding remained valid despite the shift in the burden of proof to defendants.