United States v. Susan Rosenberg , 888 F.2d 1406 ( 1989 )

STEPHEN F. WILLIAMS, Circuit Judge,

concurring.

I concur in the opinion of the court but write separately to make clear why I believe the government cannot proceed on the theory established in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), that every conspirator is liable for all substantive offenses committed pursuant to the conspiracy.

The Supreme Court stated the authoritative test for double jeopardy in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

As each charge (in order to survive a double jeopardy attack) must entail proof of a fact not needed for the other,¹ conviction of a lesser included offense bars prosecution for the greater, and vice versa. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

The reference to the “require[d] proof of a fact” carries an ambiguity. Looked at in the raw, it might seem to bar successive prosecutions for two crimes if, because the defendant managed to compress his criminal conduct, witnesses could not intelligibly describe one without describing the other. This is clearly not what the Court has meant. Thus Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), allowed successive prosecutions for defendant’s simultaneous commission of the (old-fashioned sounding) crimes of insulting a public official and of being drunk or boisterous in a public place. See also Jones v. Thomas, — U.S. -, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) (applying the same principle to substantially simultaneous murder and robbery).

Instead, a “fact” is “require[d]” to be proved if it is one the jury must find in order to convict. Cf. Pryor v. Rose, 724 F.2d 525, 529-30 (6th Cir.1984) (en banc) (examining jury charge to determine facts of which proof was required). Thus in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the Court reviewed successive prosecutions arising out of Vitale’s driving in an automobile accident that killed two small children. He was first convicted of careless failure to reduce speed. The state then sought to prosecute him for manslaughter. The Court considered three possibilities. One, Illinois law might allow the state to secure a conviction for manslaughter only by showing careless failure to slow; the second prosecution would be barred. Two, Illinois law might allow a manslaughter conviction on grounds other than failure to slow, and the state would be able to establish one of those alternatives; the second prosecution would be permissible. Three, Illinois law might allow a manslaughter conviction on grounds besides failure to slow, but the state “may find it necessary to prove a failure to slow”; it could not then secure a second conviction. 447 U.S. at 419-20, 100 S.Ct. at 2267.

The test could in some instances pose nice questions as to the level of generality at which the necessary “facts” are to be defined. In Vitale, for example, would there be no double jeopardy problem if under Illinois law the court could properly charge the carelessness component of manslaughter in generic terms rather than specifically requiring a finding of failure to slow? Happily, no such problem is posed by the present case, where, if the government proceeds on Pinkerton’s theory of vicarious liability, the court must charge the jury in precisely the terms that conspiracy law uses to define the prior offense.

Conviction on the Pinkerton theory would “require[ ] proof of a fact” required for the defendants’ conspiracy convictions. (And, as we shall see, the conspiracy charges did not require proof of any legally relevant fact in addition to the ones needed for the substantive bombings.) A charge instructing the jury under Pinkerton shows how a defendant’s membership in the conspiracy becomes part of the facts necessary for the substantive conviction:

If you find that the defendant is guilty of conspiracy as charged in Count One, you may also find the defendant guilty of a substantive offense as charged in any other count of the indictment, provided that you find that the essential elements of that count as defined in these instructions have been established beyond reasonable doubt, and provided that you also find beyond reasonable doubt,

First, that the offense defined in the substantive count was committed pursuant to the conspiracy, and

Second, that the defendant was a member of the conspiracy at the time the substantive offense was committed.

Under the conditions just defined a defendant may be found guilty of a substantive count even though he did not participate in the acts constituting the offense as defined in the substantive count. The reason for this is that a co-conspirator committing a substantive offense pursuant to a conspiracy is held to be the agent of the other co-conspirators.

United States v. Zabic, 745 F.2d 464, 474 (7th Cir.1984) (emphasis added).

As the charge demonstrates, the Pinkerton theory alters the necessary elements of the offense. Without the Pinkerton charge, the jury is told to impose liability only if it finds that the defendant “participate^] in the acts constituting the offense.” With Pinkerton, the jury is expressly told that it need not make this finding. The elements of the offense are respecified as (1) the defendant’s membership in the conspiracy, and (2) commission of the substantive offense by any members) acting pursuant to the conspiracy.

The first of those facts, of course, is the essential one needed for defendants’ prior convictions for conspiracy (conceded by the government to have been the same conspiracy in both charges). As a result, the conspiracy conviction did not require “proof of a fact which [the present charge] does not,” unless the overt act necessary for conspiracy conviction counts for Blockburger purposes.² But Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), tells us that it cannot do so. There the Court held that a conspiracy did not multiply as its objects multiplied, that a single agreement to commit several crimes supported only one conspiracy conviction. The Court stated that the defendants “collaborated in the illicit manufacture, transportation, and distribution of distilled spirits, involving the violations of statute mentioned in the several counts of the indictment.” Id. at 50-51, 63 S.Ct. at 100. Thus it appears that overt acts were committed in violation of several (perhaps all) of the seven statutes that identified the seven purposes of the conspiracy. Yet the Braverman Court was unwilling to say that the proliferation of overt acts, one for each criminal purpose, would satisfy the Blockburger requirement that each charge “require proof of a fact which the other does not.” An overt act, then, is not material for Blockburger purposes. This is hardly surprising, as the act need not itself be criminal, and may be quite trivial (however important it is to protect people from punishment for merely harbouring joint criminal intent). Thus, as the conspiracy convictions required proof of no material fact that is not essential for conviction of the bombings on the Pinkerton theory, they are lesser included offenses under Blockburger.

The government contends that the second prosecution should be allowed since, in the abstract realm of the statute books, the elements of conspiracy and of the substantive offenses seem totally dissimilar. But that is not the Blockburger approach, which looks to the facts the government is required to establish in the real world. The government’s position involves this curiosity: prosecution of the defendants under Pinkerton would be barred if the Pinkerton principle were explicitly codified in a statute. That it arises from judicial construction should make no difference.

Nothing in today’s holding disables the government from introducing the defendants’ participation in the conspiracy as tending to prove that they either directly participated in the substantive offenses or aided and abetted their commission. In the absence of a Pinkerton charge the agreement to conspire will not be a fact necessary for liability; any conviction will be consistent with Blockburger. See Pereira v. United States, 347 U.S. 1, 9-12, 74 S.Ct. 358, 363-65, 98 L.Ed. 435 (1954); United States v. McCullah, 745 F.2d 350, 355 (6th Cir.1984).

The strongest argument against our result might be a claim that it unravels Pinkerton itself. That decision upheld separate punishments both for conspiracy and for substantive offenses committed by other members of the conspiracy, even for the defendant whose guilt of the substantive offense was based solely on his membership in the conspiracy. Since the double jeopardy clause and the Blockburger test normally apply as much to successive prosecutions as to multiple punishments, today’s decision might seem inconsistent with that result.

But despite the Court’s general use of the same doctrine in both contexts, its function is quite different in the two. Because the legislature could always impose a longer sentence for any offense, the only question in cases of multiple sentences is the meaning of the criminal statutes. See Brown, 432 U.S. at 165, 97 S.Ct. at 2225 (“Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.”) In that context Blockburger is only a presumption that can be overcome by clearly manifested legislative intent, as it was in Missouri v. Hunter, 459 U.S. 359, 368, 103 5.Ct. 673, 679, 74 L.Ed.2d 535 (1983).³

In contrast, the prohibition against successive prosecutions lies at the core of the double jeopardy clause. It arises, as Judge Friendly pointed out in United States v. Sabella, 272 F.2d 206, 211 (2nd Cir.1959), “from the ancient pleas of autrefois acquit and autrefois convict,” pleas not available to a defendant merely asserting overlap in a multi-count indictment. And its consequences are different: it “serves ‘a constitutional policy of finality for the defendant’s benefit,’ ” Brown, 432 U.S. at 165, 97 S.Ct. at 2225, and protects him from “having to 'run the gantlet’ a second time,” id. at 166-67 n. 6, 97 S.Ct. at 2226 n. 6. Congress cannot change its effect by greater clarity as to intended punishments. See Gore v. United States, 357 U.S. 386, 392-93, 78 S.Ct. 1280, 1284-85, 2 L.Ed.2d 1405 (1958).

Second, Pinkerton itself never explained the aspect of the decision critical here — allowing multiple punishments both for conspiracy and a substantive crime where the defendant’s liability for the second derives solely from his membership in the conspiracy. In so far as it discussed double jeopardy, it lumped together both the defendant who was active in the substantive offenses and the one who was not. As to the latter, of course, it went on to establish what we have referred to as the Pinkerton theory — that he could be convicted for the substantive offense solely on the basis of his membership in the conspiracy. But it never addressed the peculiar double jeopardy issue raised by his dual punishment, namely the point that a finding of his membership in the conspiracy was a necessary element of his conviction for the substantive offense (and that his conspiracy conviction required no additional element other than proof of an overt act, which there was satisfied by the substantive offenses themselves). As we have seen, this makes the former a lesser-included offense within the latter, in violation of Blockburger. At least one court has noted both the difficulty of reconciling this aspect of Pinkerton with Blockburger and the Pinkerton Court’s failure to address the issue. United States v. Larkin, 605 F.2d 1360, 1367 & n. 19 (5th Cir.1979), modified in part, 611 F.2d 585 (5th Cir.1980).

The result in Pinkerton forecloses a double jeopardy claim in the context of consecutive sentences. See United States v. Cerone, 830 F.2d 938, 945 (8th Cir.1987); United States v. Wylie, 625 F.2d 1371, 1382 n. 15 (9th Cir.1980) (dictum). In effect the outcome is an instance of a judicial construction overriding the Blockburger presumption (though oddly without an explanation). But that is not reason enough to extend Pinkerton to the case of successive prosecutions, where Blockburger itself should control as usual. While one circuit court has extended Pinkerton to successive prosecutions, United States v. Marden, 872 F.2d 123, 126 (5th Cir.1989), it did so without either addressing the issue in terms of Blockburger or acknowledging that Pinkerton did not involve a successive prosecution. We respectfully, but I think correctly, part company with the Marden court.

1 . I.e., the "set” of elements of each crime must contain an element not included in the set of elements of the other.

2 . The Washington bombings were not charged as overt acts in the first trials. That overt acts not involving the Washington bombings were "necessary" for the first convictions was due, of course, to the government’s not charging any overt act involving those bombings. Had it relied on such an overt act, the overlap in offenses would be indisputably fatal.

3 . Given the function of double jeopardy for multiple punishment cases, it is not clear why the Supreme Court need have any role in the matter for state cases, other than to correct state court decisions mistakenly applying the federal clause, as it did in Missouri v. Hunter. Compare id. at 369-74, 103 S.Ct. at 679-82 (Marshall, J„ dissenting) (asserting that the Blockburger test is of constitutional dimension even in multiple punishment cases).