Appeal from order of the United States District Court for the Southern District of New York, Milton Pollack, Judge. Appellant was convicted of violating 21 U.S.C. §§ 846 and 848 and of three substantive narcotics violations. On direct appeal, the latter three convictions were reversed and the case remanded for reconsideration of sentencing on the conspiracy count, 21 U.S.C. § 846. The original sentence was reimposed and the defendant appeals. Sentence on conspiracy count ordered to be vacated and cause remanded.
Waterman and Van Graafeiland, Circuit Judges, and Motley,*fn* District Judge. Van Graafeiland, Circuit Judge, dissenting.
We are asked to decide whether after a trial upon a single indictment containing several counts the imposition of dual punishments for violations of both the conspiracy and continuing criminal enterprise provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 846 and 848, respectively, arising out of the defendant's leadership of a large conspiratorial organization trafficking in illicit drugs, offends against the constitutional right not to be subjected to double jeopardy.
In a superseding indictment filed in the Southern District of New York in May 1973, Herbert Sperling and twenty-seven others were charged with various violations of the federal narcotics laws. Twelve counts were laid. The first charged Sperling and the others with conspiracy to violate the federal narcotics laws from January 1, 1971 through May 11, 1973, in violation of 21 U.S.C. § 846. The second charged Sperling alone with organizing and managing a continuing criminal narcotics enterprise involving at least five other people, in violation of 21 U.S.C. § 848.*fn1 The eighth, ninth and tenth, the "substantive counts," charged Sperling and others with possessing with intent to distribute, and with distributing, cocaine on three occasions, in violation of 21 U.S.C. §§ 812 and 841 and 18 U.S.C. § 2.
The offenses charged in the various counts all grew out of Sperling's role as leader of a large and highly profitable narcotics organization. The story is set forth in our earlier opinion in this huge case, United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S. Ct. 1351, 43 L. Ed. 2d 439 (1975), and we need not restate it here.
In June 1973, at the end of a jury trial which lasted about four weeks, Sperling was found guilty of all charges. In September 1973, Judge Pollack, who had presided at the trial, sentenced Sperling to life imprisonment and a $100,000 fine on the continuing criminal enterprise count (Count Two), and to concurrent terms of thirty years' imprisonment plus six years' special parole on each of Counts One and Eight, Nine and Ten (the conspiracy and substantive counts, respectively), as well as fines of $50,000 on each of these four counts.
On appeal, this court affirmed Sperling's convictions on Counts One and Two and reversed and remanded for a new trial on Counts Eight, Nine and Ten. United States v. Sperling, supra.*fn2 In view of the fact that concurrent sentences had been imposed on these latter three counts and on the conspiracy count, we also remanded for a reconsideration of the sentence imposed on the conspiracy count. 506 F.2d at 1335 n. 14.
On rehearing following the remand for reconsideration of sentencing, the District Court adhered to its original sentence that Sperling be imprisoned for thirty years and fined $50,000 on the conspiracy count, to run concurrently with the life sentence and the $100,000 fine originally imposed on the continuing criminal enterprise count.
From this reimposition of the sentence and fine on the conspiracy count, Sperling now appeals, arguing, as he did in the court below,*fn3 that the conspiracy was both a lesser included offense of and one of the series of criminal activities charged in the continuing criminal enterprise count, and, hence, that sentencing on both counts, rather than on only one or the other, violated his Fifth Amendment guaranty against double jeopardy. After thorough consideration of this difficult and important issue, we order that appellant's prison sentence and fine on the conspiracy count be vacated.
We start with the proposition that the double jeopardy clause of the Fifth Amendment*fn4 "was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried * * *." Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L. Ed. 872 (1874). It "prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." Helvering v. Mitchell, 303 U.S. 391, 399, 82 L. Ed. 917, 58 S. Ct. 630 (1938). See also North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Indeed, in the original version of the Bill of Rights drafted by James Madison for submission to the House of Representatives in 1789, the clause read:
No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence.
1 Annals of Congress 434 (1789). The wording was changed in the Senate to employ the more traditional term "jeopardy" in order to prevent a misconstruction of the clause that would have prohibited a defendant from seeking a new trial on appeal, but no alteration in the nature of the traditional guaranty itself was intended. United States v. Wilson, 420 U.S. 332, 341, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975).
This prohibition against multiple punishment for the same offense not only expresses the fundamental principle of law involved in this case but also specifies the precise nature of the issue confronting us: are the crimes of conspiracy to violate the federal narcotics laws, 21 U.S.C. § 846,*fn5 and that of engaging in a continuing criminal enterprise in violation of the federal narcotics laws, 21 U.S.C. § 848,*fn6 the same offense when they both arise out of a defendant's participation in a managerial capacity in a single, large-scale conspiracy whose object and accomplishment is illegally to traffic in narcotics? Only if they are not the same offense does punishment for both comport with the Constitution.
No contention is made here that the offenses charged rest upon different series of transactions. Indeed, on Sperling's original appeal the Government strongly contended that the evidence showed one large conspiratorial network, in which Sperling and co-defendant Vincent Pacelli, Jr. (whose trial had been severed) occupied the roles of co-leaders.
In double jeopardy cases such as this,
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.
Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932); accord, Gavieres v. United States, 220 U.S. 338, 342, 55 L. Ed. 489, 31 S. Ct. 421 (1911). This so-called " Blockburger test" focuses on the statutorily required elements of the offenses, Iannelli v. United States, 420 U.S. 770, 785, n.17, 43 L. Ed. 2d 616, 95 S. Ct. 1284 (1975), and hence the double jeopardy clause would not be violated here unless all the elements of the § 846 conspiracy offense must be proved in order to convict of the § 848 continuing criminal enterprise offense. See Downey v. Peyton, 451 F.2d 236, 238 (4th Cir. 1971). "Whenever it appears that the proof of one offense proves every essential element of another growing out of the same act, the Fifth Amendment limits the punishment to a single act." United States v. Austin, 529 F.2d 559, 562 (6th Cir. 1976).
Put another way, under traditional analysis if a § 846 conspiracy is a "lesser included offense" of a § 848 continuing criminal enterprise, then punishment imposed on the greater offense (§ 848) would preclude punishment on the lesser (§ 846). ...