October 1, 1979
C.A. 10th Cir.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.
After his arrest for the sale of cocaine to undercover agents, petitioner was indicted for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was acquitted following a non-jury trial in the United States District Court for the District of Colorado on a finding by the trial judge that the evidence did not show either actual or constructive possession. No. 78-CR-211 (Sept. 1, 1978). Two weeks later, petitioner was indicted for possession of cocaine with intent to distribute and for distribution of cocaine arising out of the same episode. The Government concedes that this reindictment was designed to correct the prosecutor's error in drawing the original indictment too narrowly to fit the actual offense. Petitioner moved to dismiss the prosecution under the Double Jeopardy Clause and the motion was denied. On interlocutory appeal, Abney v. United States, 431 U.S. 651 (1977), the Tenth Circuit affirmed in part and reversed in part, holding that the charge of possession was barred by the prior acquittal but that the charge of distribution involved a different offense from possession and therefore was not barred. App. to Pet. for Cert. 6-12. Rehearing and rehearing en banc were denied April 3, 1979.
I would grant the petition for certiorari and reverse the judgment of the Tenth Circuit so far as it permits petitioner to be tried on the distribution charge. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of "all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Ashe v. Swenson, 397 U.S. 436, 453-454 (1970) (BRENNAN, J., concurring). See Thompson v. Oklahoma, 429 U.S. 1053 (1977) (BRENNAN, J., dissenting), and cases collected therein.
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