United States v. Jerry Prusan and David Vives , 967 F.2d 57 ( 1992 )

JON O. NEWMAN,

Circuit Judge, dissenting:

Jerry Prusan and David Vives bought some guns in Florida and sold them to customers in Puerto Rico. They transported the guns from Florida to New York and then from New York to Puerto Rico. The Government prosecuted them in the District of Puerto Rico and obtained convictions on a variety of charges arising out of these transactions. The Puerto Rico charges include conspiracy to ship guns from New York to Puerto Rico and the substantive offenses of being in the business of dealing in guns without a license and shipping guns from New York to Puer-to Rico. 18 U.S.C. §§ 371, 922(a)(1)(A), 924(a)(1)(D) (1988). Apparently not satisfied with the sentences imposed by the District Court in Puerto Rico, the Government is now proceeding to try Prusan and Vives on a charge of bringing the same guns from Florida to New York. I respectfully dissent from the Court’s judgment permitting the Government to break the Florida-Puerto Rico shipment of these guns into two sets of offenses, one for each leg of the journey.

In reversing Judge Sand’s dismissal of the count purporting to charge the defendants with the “separate” offense of transporting guns into their state of residence, New York, in violation of 18 U.S.C. § 922(a)(3) (1988), the Court carefully analyzes the Supreme Court’s opinion in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and concludes that the Government is not endeavoring “to prove conduct that constitutes offenses for which the defendants have already been prosecuted.” Id. at 521, 110 S.Ct. at 2093. Whether or not the second prosecution violates the double jeopardy protection outlined in Grady v. Corbin, it offends the more elementary rule that the Government may not fragment an offense into units smaller than the “allowable unit of prosecution,” see United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952), that Congress has identified in defining the offense. See Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (unit of offense for Mann Act is the interstate journey, not each woman transported). “[C]on-tinuation of a transportation ... could not properly be charged as a separate crime since this would permit fragmentation of one continuous transportation into several segments, opening the door to mischievous abuse of the statute [punishing interstate transportation of stolen property, 18 U.S.C. § 2314 (1988)].” United States v. Johnpoll, 739 F.2d 702, 715 (2d Cir.), cert, denied, 469 U.S. 1075, 105 S.Ct. 571, 83 L.Ed.2d 511 (1984).

The Government argues that “[s]hipping weapons from Florida to New York clearly is distinct from the conduct of shipping weapons from New York to Puerto Rico, even if both acts represent different acts in furtherance of the same scheme.” Brief for Appellant at 8. How far down that road would the Government go? If the guns are transported on the first leg of the journey by car, is it a separate offense as the guns move between each pair of adjacent states between Florida and New York? Even the Government hesitated at oral argument to endorse fragmentation of the offense to that degree. I would not permit the Government to divide the journey into even two legs, just because the second leg is over water. “One if by land, two if by sea” is best left as a signal to patriots; it is not an acceptable method of counting crimes.

“Unit of offense” analysis is not precluded in this case simply because the second prosecution charges the defendants with the first leg of the gun shipment under section 922(a)(3), which punishes transportation into the state of one’s residence. Had the Government first prosecuted the defendants for shipping the guns from Florida to New York in violation of section 922(a)(1)(A), punishing interstate transportation, it could not have brought a second prosecution for shipping the same guns into New York in violation of section 922(a)(3), because the (a)(1)(A) offense would have been a lesser included offense within the (a)(3) offense. The Government should not be permitted to circumvent that outcome by prosecuting first for the second leg of the journey (from New York to Puerto Rico) and now prosecuting for the first leg (from Florida to New York).

Even if this fragmented prosecution is lawful — a result the Court sustains on the basis of the indictment, but a result that may well be viewed differently on the basis of a complete trial record — it is an undue imposition upon an already overburdened District Court. In any event, this second prosecution is a pointless maneuver that may succeed in increasing the number of notches in the prosecutor’s belt and the number of convictions on the defendants’ records, but it is not likely to result in any increased punishment. See U.S.S.G. § 5G1.3(b) (requiring multiple-count analysis for sentencing of defendant subject to undischarged term of imprisonment imposed under Sentencing Reform Act). I would affirm the order of the District Court.