The opinion of the court was delivered by: MOTLEY
In April 1982, defendant Richard Lowell Stratton, a/k/a "Richard Lowell", was among a number of persons indicted by a federal grand jury in Maine for conspiracy to distribute large quantities of marijuana and hashish in violation of 21 U.S.C. § 846. After a jury returned a verdict of guilty, Judge Edward T. Gignoux sentenced Stratton to fifteen years imprisonment, the maximum term possible.
As to the instant case, in August 1983, a grand jury sitting in this District indicted Stratton and others for conspiracy to import more than one thousand pounds of hashish, 21 U.S.C. § 963, and for conspiracy to distribute more than one thousand pounds of hashish, 21 U.S.C. § 846.In addition, Stratton was charged with managing a continuing criminal enterprise, 21 U.S.C. § 848. Charged with Stratton on both conspiracy counts were five co-defendants not involved in the Maine indictment. In November 1983, the grand jury returned a superseding indictment which added a substantive count, importation of hashish, 21 U.S.C. § 952(a), to the charges against Stratton and three of his five co-defendants. Stratton has entered a plea of not guilty on all counts.
Stratton has moved to dismiss the superseding indictment against him on the ground that a trial on any one of the three charges first lodged against him by the underlying indictment would violate the Fifth Amendment's ban against double jeopardy. At its most basic level, Stratton's argument is a form of the "same transaction" test advocated by Justice Brennan in a series of Supreme Court opinions. See, e.g., Ashe v. Swenson, 397 U.S. 436, 453-54, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (Brennan, J. concurring). The "same transaction" view contends that the double jeopardy clause requires that all violations arising out of a single transaction be tried together.
In this vein, Stratton maintains that the evidence before the court in the Maine case and the Government's statements in summation established that there existed one agreement by him and others to import and distribute drugs, i.e., some distribution was to occur in Maine, some in New York and some elsewhere. According to Stratton, the underlying conspiracies alleged in the instant indictment are, therefore, the same conspiracy for which he was indicted in Maine. Stratton concedes that the Government could have brought charges against him for a conspiracy to import drugs as well as for the conspiracy to distribute drugs when it tried him in Maine. He argues, however, that the Maine trial represents prior jeopardy for the entire importation/distribution agreement. Therefore, to subject Stratton to the ordeal of a second trial when there existed but one general agreement represents double jeopardy. Similarly, with respect to the charge of managing a continuing criminal enterprise, Stratton contends that the "in concert" requirement of Section 848 can be satisfied only by looking to the single underlying agreement for which he was tried in Maine. According to Stratton, that agreement represents a lesser included offense of the Section 848 charge. Therefore, Stratton contends that he cannot be sentenced under Section 848 since he has already been sentenced in Maine for the lesser included offense.
Stratton concedes, however, that he may be tried on the substantive importation count added by the superseding indictment in November 1983 without offending the double jeopardy clause.
The court denies Stratton's motion to dismiss the two conspiracy counts and the Section 848 count contained in the superseding indictment. The court concludes that Stratton may be tried on the three contested counts in the superseding indictment without being put in jeopardy twice for the same offense. At the Government's request, the court severs, for later trial, the count charging Stratton with conspiracy to distribute hashish, the only count for which there is a colorable double jeopardy claim. Such later trial will be preceded by the required hearing to determine whether the instant distribution conspiracy charge is the same as the Maine distribution conspiracy charge. The evidence developed at the trial of Stratton's co-defendants on the instant distribution conspiracy charge will obviously shed light on Stratton's claim that the two distribution conspiracies are identical and may even obviate the need for a hearing. The Government may also decide to drop the distribution conspiracy charge against Stratton if he is convicted on the other three counts contained in the superseding indictment.
Manifestly, each of the three charges on which Stratton will proceed to trial -- conspiracy to import hashish, importation of hashish, and managing a continuing criminal enterprise -- requires proof of an element not required to prove conspiracy to distribute. The Second Circuit Court of Appeals has explained that in order "[t]o support a claim of double jeopardy, it must appear that the offenses charged were in fact and in law the same." United States v. Armedo-Sarmiento, 545 F.2d 785, 792 (2d Cir. 1976), cert. denied, 430 U.S. 917, 51 L. Ed. 2d 595 (1977). See United States v. Blockburger, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932). In this case, because of the severance of the distribution conspiracy charge, the question before the court is simply a question of law.
Stratton would have the court, at this juncture, analyze the remaining counts under the factual analysis limned in United States v. Papa, 533 F.2d 815, 820 (2d Cir.), cert. denied, 429 U.S. 961, 50 L. Ed. 2d 329, 97 S. Ct. 387 (1976). Such analysis is useless in that the court concludes that even if the conspiracies to distribute are identical, legal authority permits Stratton to be tried on the remaining counts because each requires proof of an element not necessary for conviction in Maine.
1. Importation Conspiracy
It is beyond dispute that a single agreement may give rise to violations of several conspiracy statutes. See, e.g., Albernaz v. United States, 450 U.S. 333, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981). Moreover, courts have found no double jeopardy problem with subsequent trials arising out of the same course of conduct. The Second Circuit provided its clearest statement of this principle in United States v. Nathan, 476 F.2d 456 (2d Cir.), cert. denied, 414 U.S. 823, 94 S. Ct. 123, 38 L. Ed. 2d 56 (1974). In Nathan, defendants contended that guilty pleas to a Florida drug conspiracy precluded indictment in New York on charges of conspiracy to violate narcotics laws.The panel, per Judge Feinberg, disagreed, declining even to consider the factual relationship between the two conspiracies. After noting that the two conspiracies involved different conspiracy statutes, the panel observed that it was "not aware of any constitutional requirement that all such violations must be tried together." Id. at 458-59. See also United States v. Ortega-Alvarez, 506 F.2d 455, 457 (2d Cir. 1974), cert. denied, 421 U.S. 910, 95 S. Ct. 1559, 43 L. Ed. 2d 775 (1975).
In United States v. Stricklin, 591 F.2d 1112 (5th Cir.), cert. denied, 444 U.S. 963, 62 L. Ed. 2d 375, 100 S. Ct. 449 (1979), the Fifth Circuit confronted facts similar to those found in the case at bar. The defendant Stricklin raised a double jeopardy challenge to a third federal indictment against him. The first indictment was dismissed for violation of Stricklin's right to a speedy trial. A second indictment, brought in New Mexico, charged Stricklin with conspiring to distribute marijuana as well as with actual possession of marijuana with intent to distribute it. Stricklin was tried and convicted on both counts. Among the counts charged in the third indictment, brought in Texas, were conspiracy to import marijuana, importation of marijuana, conspiracy to distribute marijuana and management of a continuing criminal enterprise. The Stricklin court found the distribution conspiracies alleged in the New Mexico and Texas indictments to be quite similar. Id. at 1122. This similarity notwithstanding, the Stricklin court found that the Government could charge Stricklin in Texas with conspiracy to import marijuana. See also United States v. Marable, 578 F.2d 151, 154 n.1 (5th Cir. 1978). This court adheres to the reasoning set forth in Nathan and Stricklin and concludes that Stratton may be tried for the importation conspiracy.
The court notes that the Ninth Circuit has adopted a position more akin to Stratton's own position. In United States v. Guido, 597 F.2d 194 (9th Cir. 1979), the court reversed convictions under a second indictment for conspiracy to distribute marijuana after defendants pled guilty to conspiracy to import marijuana.
Significantly, however, the Guido court did not rest its decision on double jeopardy or due process grounds. Instead, the court relied on its "supervisory power of [sic] the administration of criminal justice . . . to correct unfairness." Id. at 198. That the double jeopardy clause does not explain the result in Guido is made clear by the Ninth Circuit's post-Guido decisions. In United States v. Burkett, 612 F.2d 449 (9th Cir. 1979), cert. denied, 447 U.S. 905, 100 S. Ct. 2985, 64 L. Ed. 2d 853 (1980), the court indicated that the double jeopardy clause permits defendants to be charged with violating two conspiracy statutes regardless of the nature of the underlying agreement. Id. at 452 (quoting United States v. Marotta, 518 F.2d 681, 684 (9th Cir. ...