The opinion of the court was delivered by: KRAM
MEMORANDUM OPINION AND ORDER
SHIRLEY WOHL KRAM, U.S.D.J.
On April 18, 1986, a jury convicted defendant Guillermo Canova
of one count of conspiracy to sell heroin and cocaine and one count of distribution of and possession with intent to distribute heroin. On the same day, the jury convicted Canova's co-defendant, Dominick Barca, of one count of conspiracy and one count of possession with intent to distribute heroin.
This case is presently before the Court on defendant Canova's motion pursuant to Fed. R. Crim. P. 33 to set aside the jury verdict and for a new-trial on the grounds that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred the United States from prosecuting Canova on the conspiracy count, that the Court's refusal to charge the jury on the lesser included offense of simple possession on the distribution count denied Canova's right to a fair trial, and that Canova was prejudiced by the admission at trial of guns and drugs as evidence against him.
The basis of defendant's double jeopardy claim is that the conspiracy charged in 85 Cr. 1000 (SWK) was part of the same conspiracy charged against Canova in another action, 85 Cr. 511 (CLB).
The indictment in 85 Cr. 511 (CLB) was filed on May 20, 1985, and charged Canova with one count of conspiring to distribute heroin and with six counts of distributing heroin. Count One alleged that Canova had conspired with Michael Forlivio to distribute heroin. Six overt acts were listed. They alleged Forlivio and Canova distributed varying amounts of heroin to undercover agents. Five of the sales allegedly occurred in Yonkers, and one in The Bronx. The alleged duration of the conspiracy was from December 31, 1984 through May 20, 1985.
On December 3, 1985, the indictment in the present case, 85 Cr. 1000 (SWK), was filed, charging Canova with one count of conspiracy and one count of distribution of heroin. Count One alleged that Canova conspired with Andrew Scudiero, Earl Gallo, Dominick Barca, Anthony Bordas, Charles Marino, Nardino Collatti, and others to distribute heroin. Eight overt acts were listed. These allegedly occurred in various locations, including Queens, Manhattan, Miami, and The Bronx. The acts include selling cocaine, accepting a cash deposit for heroin, discussing the sale of cocaine, and proceeding to the sites of planned drug transactions. Canova was named in one overt act which alleged that he proceeded to a McDonald's Restaurant in The Bronx in order to complete a heroin deal.
On January 3, 1986, Canova pleaded guilty to Count Three of 85 Cr. 511 (CLB), which charged Canova with distributing 122.58 grams of heroin. In return for the guilty plea to Count Three, the United States agreed to drop all other Counts in 85 Cr. 511 (CLB) at the sentencing. See Affidavit of Deborah J. Stavile, Esq., Sworn to June 4, 1986 and Exh. 1 at 2, 9-10. Canova was sentenced in 85 Cr. 511 (CLB) on May 28, 1986. At the sentencing, the United States did not oppose dismissal of the open counts, including the conspiracy count.
Canova first raised the double jeopardy claim in a pre-trial motion to dismiss the conspiracy count in 85 Cr. 1000 (SWK). After considering briefs and factual affidavits submitted by both parties, this Court denied that motion orally on March 31, 1986, ruling that the conspiracies were different. After the ruling, defense counsel demanded an evidentiary hearing on the claim. The Assistant United States Attorney handling the case suggested that since the evidence to be adduced at the hearing would be identical to the trial testimony, the trial should proceed. If the testimony indicated the conspiracies were the same, she said the Government would not oppose defendant's motion for dismissal of Count One. The Court accepted this suggestion and the trial proceeded. Defense counsel raised the double jeopardy claim after Canova was convicted, and the Government opposed it.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . .". The Clause "protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 80 L. Ed. 2d 311, 104 S. Ct. 1805 (1984).
Implicit in the Clause's protection is that an accused must suffer jeopardy once before he can suffer double jeopardy. Serfass v. United States, 420 U.S. 377, 393, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975). In Serfass, the Supreme Court defined the stage in criminal proceedings at which jeopardy attaches to an accused. In a jury trial, jeopardy attaches when a jury is empaneled and sworn; in a non-jury trial, jeopardy attaches when the court begins to hear evidence. Id. at 388.
In the instant case, jeopardy did not attach to the conspiracy count in 85 Cr. 511 (CLB). Since the jury in that case had not yet been sworn, Canova was never placed at risk of a determination of guilt, id. at 391, and hence was not placed in jeopardy. Thus, Canova's double jeopardy claim fails.
Although Canova does not argue that the United States breached its plea agreement in 85 Cr. 511 (CLB) by prosecuting him for conspiracy in 85 Cr. 1000 (SWK), such an argument can offer broader protection to a defendant than a double jeopardy claim, and the Court will address it. But see United States v. Vaughan, 715 F.2d 1373 (9th Cir. 1983) (In a similar case, the court stated that breach of the plea agreement is a more viable ...