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MARQUEZ v. UNITED STATES

March 20, 1992

LIONEL MARQUEZ, Petitioner, against UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: MORRIS E. LASKER

 LASKER, D.J.

 Lionel Marquez seeks habeas relief pursuant to 28 U.S.C. ยง 2255, on the grounds (i) that his conviction was barred by the Fifth Amendment's prohibition of double jeopardy and (ii) that the government was collaterally estopped from prosecuting him in the case from which his conviction arises. *fn1" Marquez was convicted in 1975 of possession with intent to distribute cocaine on the basis of a cocaine transaction which occurred on August 22, 1972. He appealed his conviction on grounds of double jeopardy and collateral estoppel, among others. The Court of Appeals denied his appeal without opinion on March 4, 1976. In 1990, the United States Supreme Court decided Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990), a decision which fundamentally changed the nature of double jeopardy analysis. Marquez contends that Grady effected a substantial change in the law which requires rehearing of his double jeopardy claim. The government's response is twofold: First, that these claims may not be reheard by this Court since they have already been definitively decided against the petitioner by the Court of Appeals. Second, that even assuming the claims are cognizable, Grady does not require setting aside Marquez's conviction on the grounds of double jeopardy.

 The petition is denied.

 I.

 Marquez contends that the 1975 prosecution substantially duplicated a 1974 prosecution in which he was acquitted on charges of conspiracy to import and distribute cocaine between 1971 and 1974, and substantive offenses of distributing cocaine and possessing cocaine with the intent to distribute it.

 In early 1974, Gotes was the subject of an undercover probe by the Drug Enforcement Agency ("DEA"). Following her arrest, Gotes spoke on several occasions with agents of the DEA about her knowledge of various narcotics activities. These interviews came to form the basis for the indictment the government brought against Marquez, Gotes and sixteen other defendants on July 2, 1974. The indictment alleged one count of conspiracy to violate the federal narcotics laws and four substantive counts of cocaine distribution or possession with intent to distribute cocaine. *fn2" Although the conspiracy was described as beginning on July 1, 1971, all of the overt acts alleged in the 1974 indictment occurred between May 1973 and April 1974. In addition, all four of the substantive counts were based on incidents which occurred between May 1973 and April 1974. After a two week trial, on December 14, 1974, the jury acquitted Marquez on all counts.

 On July 18, 1975, a second indictment of Marquez was filed. This indictment included a conspiracy count (covering the period July 1, 1972 to December 31, 1972) and two substantive counts of distribution of cocaine and possession with intent to distribute cocaine (occurring in August and November 1972). On October 27, 1975, Marquez was found guilty on Count Two, a substantive count which alleged possession with intent to distribute cocaine on August 22, 1972.

 The 1974 prosecution was thus directed at events that took place in 1973 and 1974, whereas, the 1975 indictment focused on events in 1972. Marquez concedes that the incidents which formed the basis of the 1975 prosecution are different from the incidents upon which the 1974 prosecution was based. Nevertheless, he contends that he is entitled to relief because in 1974 the government already had in its possession the evidence relating to the 1972 incidents and could have prosecuted them in the 1974 indictment and trial if it had chosen to do so.

 The parties agree that on November 27, 1974, five days before the trial of the 1974 indictment began, Gotes made known to an agent of the DEA, apparently for the first time, that Marquez had done narcotics transactions with her in 1972. During that interview, Gotes told the DEA agent that a man named Sergio Castillio was present at one of these 1972 transactions. Castillio was located by the DEA on November 29, 1974, and was interviewed at the office of the United States Attorney on the Saturday and Sunday before the Monday (December 2, 1974) when trial was scheduled to begin. At that time, Castillio described to the DEA agents an alleged cocaine transaction which occurred in his apartment in August 1972 in which Marquez and others purchased cocaine. Although Castillio spoke with members of the United States Attorney's office on several occasions in the course of the two week 1974 trial and was prepared as a witness, he was never called and no mention of the 1972 transactions was ever made in the course of that trial.

 The August 1972 transaction ultimately became the basis for Count Two of the 1975 indictment, of which Marquez was convicted. This is the conviction he now moves to set aside. The government has submitted several affidavits by the prosecutors and DEA agent involved in the case, explaining that the decision not to include the 1972 transaction in the 1974 indictment was prompted by the shortness of time available and Lina Gotes' continuing unwillingness to testify voluntarily against Marquez. Marquez strongly disputes this characterization, however, asserting that the government had sufficient evidence to put the August 1972 transaction before the jury in 1974 but decided "to sit on a portion of it's [sic] case, holding that portion in reserve should it fail to persuade the first jury of Petitioner's alleged 'guilt.'"

 Before the 1975 trial, Marquez moved this Court to dismiss the indictment on double jeopardy and other grounds. The motion was denied. *fn3" Harquez was convicted in 1975 on double jeopardy and other grounds. The Court of Appeals affirmed the ...


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