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U.S. v. PRUSAN

December 13, 1991

UNITED STATES OF AMERICA
v.
JERRY PRUSAN AND DAVID VIVES, DEFENDANTS.



The opinion of the court was delivered by: Sand, District Judge.

OPINION

Defendants Jerry Prusan and David Vives have been charged with unlawfully transporting into New York, their place of residence, firearms they obtained outside the state. Defendant Prusan has also been charged with possession of a firearm silencer that was not registered or identified by a serial number, and with improper storage of low explosives. As part of an omnibus pretrial motion, defendants David Vives and Jerry Prusan move to dismiss all charges against them, on the ground that this indictment violates the Double Jeopardy Clause of the Fifth Amendment. For the reasons stated below, defendants' motion is granted as to Count One. Defendant Prusan's motion is denied as to Counts Two, Three and Four.

Defendants Vives and Prusan also move to dismiss the indictment on the ground that it was the product of their immunized discussions with law enforcement officials, and so violates their Fifth Amendment right against self-incrimination. The Court finds that an evidentiary hearing under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), is required to resolve this issue. All other requests made by the defendants as part of the omnibus motion are denied.

THE DOUBLE JEOPARDY CLAIM

I. FACTS

From February 1991 to April 1991, special agents from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") conducted an investigation into suspected violations of federal firearms laws by David Vives, Jerry Prusan, and other individuals. See Affidavit of Special Agent Reinaldo Rodriguez in Support of Search Warrant, attached as Exhibit 1 to Affirmation of Bruce Ohr (hereinafter "Aff. of SA Rodriguez"). On April 1, 1991, ATF agents executed a search warrant of the home of Jerry Prusan in the Bronx, New York. See Affirmation of Daniel Kumor, attached as Exhibit 1 to Supplemental Affirmation of Bruce Ohr, ¶ 2. That search uncovered fifty-five firearms, a large quantity of ammunition, eight pounds of low explosives, and twenty-five cases of fireworks, as well as a firearm silencer. Id. at ¶¶ 2-3. Prusan and Vives were arrested at the scene of the search. Id. at ¶ 4.

On April 10, 1991, Prusan and Vives were indicted in the United States District Court for the District of Puerto Rico. Count One of the Indictment charged Prusan, Vives, and two other individuals with conspiring to ship firearms, ammunition and silencers in interstate commerce from New York to Puerto Rico in violation of 18 U.S.C. § 922(a)(1)(A) and § 924(a)(1)(D) from June 1989 until April 1, 1991. See Indictment, United States v. Maria E. Sanchez, Jerry Prusan, David Vives a/k/a Papo, and Susanne Cintron a/k/a Susie, 91 Cr. 157 (D.P.R. Apr. 10, 1991), attached as Exhibit 1 to Prusan's Brief in Support of Pretrial Motions (hereinafter "Puerto Rico Indictment"). Prusan and Vives were named in every other count of the twenty-three count Indictment, in which they were charged with several specific substantive violations of firearms laws § 922(a)(1)(A), § 922(a)(1)(B), § 922(a)(3), § 922(a)(5), § 922(e), and § 1715. Id. Defendants Prusan and Vives pled guilty to several counts of the Puerto Rico Indictment, including the conspiracy charge, and they were sentenced on September 10, 1991, and August 30, 1991, respectively.

On May 31, 1991, Prusan and Vives were indicted in the present action in the United States District Court for the Southern District of New York. Count One of this indictment charged both defendants with conspiring to transport into New York, the state in which they resided, firearms obtained outside the state in violation of 18 U.S.C. § 922(a)(3) from February 1991 until the filing of the Indictment. The Indictment also charged defendant Prusan with possessing a firearm silencer that was not registered or identified by a serial number, and with improper storage of low explosives in violation of 26 U.S.C. § 5861(d), § 5861(i), and 18 U.S.C. § 842(j). On September 6, 1991, the Government filed a superseding Indictment, which changed Count One to charge the defendants with a substantive violation of § 922(a)(3), instead of a conspiracy to violate that section.

II. DISCUSSION

Defendants Prusan and Vives argue that all charges in the present indictment must be dismissed against them because they constitute an improper subsequent prosecution in violation of the Double Jeopardy Clause of the Fifth Amendment.*fn1 The Double Jeopardy Clause provides three separate protections to defendants: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (citations omitted). Here defendants argue that double jeopardy bars this indictment against them because they have been convicted of the "same offense" in a previous prosecution.

A. The Double Jeopardy Standard

1.  The Grady "Same Conduct" Test

Traditional double jeopardy analysis focused on the statutory provisions at issue in both the initial and subsequent prosecutions. To determine whether the violation of two different provisions constituted two distinct offenses or only one, the court examined "whether each provision required proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). However, the Supreme Court's decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), "significantly altered the jurisprudential landscape of double jeopardy." United States v. Gambino, 920 F.2d 1108, 1112 (2d Cir. 1990), cert. denied, ___ U.S. ___, 112 S.Ct. 54, 116 L.Ed.2d 31 (1991).

In Grady, the Court concluded that the Blockburger test was simply "a guide to determining whether the legislature intended multiple punishments." Grady, 110 S.Ct. at 2091. However, the Double Jeopardy Clause was meant to address concerns beyond the possibility of enhanced punishment. Successive prosecutions subject a defendant to repeated ordeal and expense, denying him a sense of finality, and provide the Government with the opportunity to rehearse and perfect its case. See id. at 2091-92. Blockburger's focus on technical statutory construction does not adequately protect defendants from these burdens. Therefore, the Grady Court enunciated a two-stage inquiry for evaluating whether a subsequent prosecution is barred by the Double Jeopardy Clause, in which the Blockburger test served only as the first step. See id. at 2093. If that test is satisfied, the court must move on to the second stage of the inquiry. Under Grady, a subsequent prosecution is prohibited under the Double Jeopardy Clause if "to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 2087.

2.  United States v. Calderone

Grady's "same conduct" standard thus broadens the scope of protection from multiple trials due to defendants under the Double Jeopardy Clause. However, the lower courts have had difficulty discerning the precise boundaries of the Grady standard, and the circuits have not applied uniformly the "same conduct" test. Compare, e.g., United States v. Clark, 928 F.2d 639 (4th Cir. 1991) with United States v. Felix, ...


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