the common elements. Cf. Macchia, 35 F.3d at 669-72.
The enhancement of Gallego's prior sentence in consideration of the victim's death in 1993 adds no additional force to the double jeopardy claim in light of Witte. In Witte, after the defendant pleaded guilty to a federal marijuana charge, the sentencing judge considered the defendant's involvement with a cocaine conspiracy, resulting in a higher sentence than would have been imposed if only the marijuana had been considered. The defendant later was prosecuted on cocaine charges. As noted above, the Court rejected a double jeopardy challenge, holding in essence that a prosecution for previously uncharged crimes is not barred because that conduct was considered in a prior sentencing for another offense.
Defendant argues that Witte is distinguishable because that case involved successive indictments for two distinct conspiracies, whereas this case involves successive indictments based on a single incident. The flaw in this argument is its assumption that successive indictments based on the same conduct are barred for that reason alone, as Grady indicated. Dixon, however, definitively rejected that view. Hence, Witte forecloses Gallego's argument here that Judge Sand's consideration of the uncharged crimes of conspiracy to murder and murder of the victim bars the current prosecution for those crimes.
The Murder Charges
The 1995 indictment charges Gallego with Gonzalez's murder on two distinct theories. Count Two alleges that the defendants killed Gonzalez with malice aforethought (1) "by lying in wait to shoot and kill [him] . . . and  by killing [him] in the perpetration of, and the attempt to perpetrate, the robbery of money and property in the Postal Service truck."
Lying in Wait Theory
The 1993 indictment charged Gallego with robbery of the postal service truck and assault with a dangerous weapon. Count Two of the 1995 indictment patently requires proof of at least two elements not essential to conviction under any charges in the 1993 indictment -- the killing of Gonzalez and lying in wait. Similarly, each of the charges to which Gallego pleaded guilty in 1993 required proof of at least one element not essential to conviction on the pending indictment.
Hence, the Blockburger test is satisfied. Moreover, in view of Dixon's holding that a prosecution for assault does not bar, on double jeopardy grounds, a subsequent prosecution for assault with intent to kill, see 113 S. Ct. at 2858 (Scalia and Kennedy, JJ.); id. at 2868 (Rehnquist, CJ, O'Connor and Thomas, JJ.) (concurring on this point), the 1993 robbery and assault prosecutions do not bar the 1995 prosecution for premeditated murder, even if that murder was committed in the course of the robbery and assault.
Felony Murder Theory
The felony murder theory in the 1995 indictment presents a different question. In order to convict for felony murder, the government need prove, in addition to any of the crimes to which Gallego pleaded guilty in 1993, only the killing of Gonzalez. Thus, the Blockburger test is not satisfied. Moreover, the Supreme Court has held that felony murder is not a separate and distinct offense from the various elements of the underlying felony or felonies and, in consequence, that a felony murder conviction bars later prosecution for the underlying felony. Harris v. Oklahoma, 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912 (1977) (per curiam). In Dixon, a majority of Justices left this rule intact. 113 S. Ct. at 2857 (Scalia and Kennedy, JJ.) (citing with approval Illinois v. Vitale, 447 U.S. 410 at 410-420, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980) and Harris); id. at 2868-69 (White and Souter, JJ.). See United States v. Henderson, 535 F. Supp. 677 (N.D.N.Y. 1982), rev'd on other grounds, 698 F.2d 589 (2d Cir.), cert. denied, 464 U.S. 835, 78 L. Ed. 2d 118, 104 S. Ct. 120 (1983) (Double Jeopardy Clause barred subsequent prosecution for felony murder after the defendant's conviction of attempted robbery).
In an effort to avoid this conclusion, the government advances a novel theory. It points out that there was authority when it refrained from prosecuting Gallego for felony murder in 1993 that the applicable statute, 18 U.S.C. § 1111, required proof of malice aforethought, not merely intent to commit the underlying felony.
The government had no evidence of intent to kill and therefore thought it inappropriate to charge Gallego with felony murder. (Vigeland Aff. P 15, ex. G at 11-16) The Second Circuit, subsequent to Gallego's plea, in United States v. Thomas, 34 F.3d 44 (2d Cir.), cert. denied, 130 L. Ed. 2d 431, 115 S. Ct. 527 (1994), held that the intent required to convict for felony murder is only the intent to commit the underlying felony, not intent to kill. In consequence, the government argues that the Double Jeopardy Clause should not bar the felony murder charge because its decision not to charge that crime in 1993 was reasonable, given the law at the time. The government attempts to support this argument by analogizing from Brown v. Ohio, 432 U.S. 161, 170 n.7, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), which held that there is no double jeopardy bar to a subsequent prosecution based on the discovery by the government, following the initial prosecution, of evidence necessary to sustain the charge which could not have been discovered earlier by due diligence.
The government's argument is unpersuasive. In Brown, the evidence necessary to the charge ultimately leveled simply was not available to the government, through not fault of its own, at the time of the first prosecution. Here, on the other hand, the strictly legal question of the intent required to convict for felony murder was open, at least in this circuit, at the time of the first indictment. While the government's restraint in declining to allege felony murder based on its good faith belief that the law should not support such a charge is the sort of admirable decision one hopes to see from those possessed of the enormous power of the prosecutorial office, the fact remains that a good faith basis existed in 1993 for a felony murder indictment. In view of the government's control over the decision whether to prosecute, it is sensible that the government should bear the risk of finality of a legal determination it makes. Consequently, the Court sees no reason to carve a new exception to the Double Jeopardy Clause.
For the foregoing reasons, the Court grants the defendant's motion to dismiss the felony murder theory in Count 2. The motion is denied in all other respects.
Date: December 11, 1995.
Lewis A. Kaplan
United States District Judge