United States v. Lopez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4536
CARLOS LOPEZ; JAMES EDWARD ORR,
Defendants-Appellants.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4601
WILLIAM CARL DOVER,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-96-739)
Submitted: June 23, 1998
Decided: August 11, 1998
Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Chad A. McGowan, Atlanta, Georgia; Mike MacKinnon, Greenville,
South Carolina; Jack Swerling, Columbia, South Carolina, for Appel-
lants. J. Rene Josey, United States Attorney, David C. Stephens,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The Defendants filed an interlocutory appeal from the district
court's denial of their motion to dismiss the indictment on double
jeopardy grounds. See Richardson v. United States, 468 U.S. 317, 320
(1984). The parties submitted a joint motion to decide the case on
briefs, which we granted. Finding no error, we affirm the district court
order.
The Defendants were charged in a multiple count, multiple defen-
dant indictment, including one count charging a violation of 21
U.S.C. § 846 (1994). The indictment charged a marijuana distribution
conspiracy beginning from February 1993 and continuing until the
present time of the indictment, March 1994. Defendant Lopez entered
a plea of guilty to the conspiracy. While on bond pending sentencing,
he became a fugitive and was not located until late 1996. He was sen-
tenced on March 18, 1997, to a term of imprisonment of 114 months.
Defendant Orr entered a plea of guilty to the conspiracy count. He
was sentenced to five years' probation. Defendant Dover entered a
guilty plea to a count in the indictment charging him with violation
of 18 U.S.C. § 924(c) (1994). In exchange for the plea, the govern-
ment agreed to move to dismiss the conspiracy charge. Dover then
brought a 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998) motion
attacking his conviction. The district court vacated Dover's convic-
tion in light of Bailey v. United States, 516 U.S. 137 (1995), and he
was released from prison.
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Law enforcement officials began investigating the Defendants'
post-arrest activities. As a result of that investigation, a second indict-
ment containing a 21 U.S.C. § 846 charge was returned against the
Defendants on January 28, 1997. The second indictment charged the
three Defendants and two other individuals who were not charged in
the 1994 indictment. The Government alleged a time frame for the
conspiracy beginning on or about January 1995 and continuing
through the date of the indictment. The Defendants moved to dismiss
the 1997 indictment under a double jeopardy theory. The district court
denied their motion and they noted an interlocutory appeal.
The Defendants contend that they never ceased dealing in mari-
juana despite their arrest, conviction, and sentences. The Government
agrees with this characterization. The Government does not dispute
the Defendants' assertion that the same conspiracy charged in the
1994 agreement continued to operate and distribute marijuana during
the time that they were charged, convicted and serving sentences for
the conspiracy count in the 1994 indictment. The Government con-
cedes that the only difference charged is the time frame of the con-
spiracy and the loss or addition of a few conspiracy members.
The prohibition against double jeopardy protects against prosecu-
tion for the same offense after acquittal or conviction and against
multiple punishments for the same offense. See United States v.
Dixon, 509 U.S. 688, 704 (1993) (citing North Carolina v. Pearce,
395 U.S. 711, 717 (1969)). The protection against double jeopardy
prohibits "the division of a single criminal conspiracy into multiple
violations of a conspiracy statute." United States v. MacDougall, 790
F.2d 1135, 1144 (4th Cir. 1986). The Supreme Court has cautioned
that traditional double jeopardy principles should not be readily
applied to multi-layered conspiracy cases, as they are applied in dis-
crete crime cases. See United States v. Felix , 503 U.S. 378, 390
(1992).
The Defendants essentially argue that because they admit that they
continued their involvement in the conspiracy charged in the 1994
indictment throughout the period of their arrest, conviction and sen-
tence, they cannot be charged again with the same conspiracy. The
Government argues that this analysis turns the double jeopardy pro-
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tection accorded criminal defendants into a sword to fight further
prosecutions for continuing criminal activity.
To determine if successive conspiracy prosecutions violate the
Double Jeopardy Clause, this court uses a five-factor totality of the
circumstances test to determine if more than one conspiracy exists.
See United States v. Jarvis, 7 F.3d 404, 410-11 (4th Cir. 1993). The
five factors are: (1) the time periods covered by the alleged conspira-
cies; (2) the places where the conspiracies are alleged to have
occurred; (3) the identities of the charged co-conspirators; (4) the
overt acts alleged to have been committed in furtherance of the con-
spiracies; and (5) the statutes alleged to have been violated. See id.Applying the Jarvis test, we find that the 1997 indictment contains
two differences from the 1994 indictment--the time frame and co-
conspirators charged are different. The 1997 indictment charges crim-
inal activity beginning in January 1995 and named two co-
conspirators in addition to the three Defendants. Both parties agree
that with the exception of these two differences, the conspiracies are
the same. The Government correctly notes in its brief that this court
has not published a decision addressing an identical double jeopardy
issue where the conspiracy is divided by the arrest and conviction of
the conspirators. However, the issue has been addressed by other cir-
cuits.
In United States v. Asher, 96 F.3d 270 (7th Cir. 1996), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3506 (U.S. Jan. 21, 1997) (No. 96-7084),
the Seventh Circuit held that a convicted conspirator's re-entry into
the same conspiracy for which he was previously convicted can lead
to a second prosecution for conspiracy without violating the Double
Jeopardy Clause. See Asher, 96 F.3d at 273-74. Asher pled guilty to
an automobile theft conspiracy. He served a term of imprisonment
and upon release immediately became involved in the same conspir-
acy. He was again charged with conspiracy and raised a double jeop-
ardy claim. The Seventh Circuit upheld the prosecution for the second
conspiracy. See id.The Fifth Circuit uses the same five factors that this circuit uses in
determining whether there is one or more than one conspiracy. See
United States v. Marable, 578 F.2d 151, 154 (5th Cir. 1978). The
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Fifth Circuit was presented with a claim substantially similar to the
challenge brought by the Defendants in this case in United States v.
Dunn, 775 F.2d 604 (5th Cir. 1985). Dunn maintained that he was
convicted twice for his uninterrupted activities in a continuing crimi-
nal conspiracy when there was no evidence of a second agreement.
See Dunn, 775 F.2d at 606. The Dunn court held that continued par-
ticipation in a past conspiracy that the defendant has been charged
with becomes a new conspiracy for purposes of double jeopardy. See
id. at 607. The court held that an arrest ends a defendant's involve-
ment in a criminal operation, so post-arrest activities are necessarily
part of a new conspiracy. See id. at 606-07; see also United States v.
Romero, 967 F.2d 63, 68 (2d Cir. 1992) (holding that defendant was
not subjected to double jeopardy when tried for conspiracy to violate
federal narcotics statutes and engaging in a continuing criminal enter-
prise, even though he had previously pled guilty to conspiracy to vio-
late RICO in connection with drug dealing and the new charges dealt
with the period after his guilty plea).
We find the reasoning of these circuits to be persuasive. The
Defendants' involvement in the conspiracy charged in the 1994
indictment ended with their arrest and conviction. They are therefore
subject to another conspiracy prosecution for any further involvement
in the conspiracy. Accordingly, we affirm the district court's order.
AFFIRMED
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