US v. Edward Dennis Jones (4th Cir. 6/1/17) Court Reverses on Double Jeopardy Issue; Also, Benchslap. Ouch.
Interlocutory appeal granted and indictment dismissed on double jeopardy grounds! Outstanding win for the appellant in this case. Jones pleaded guilty to a drug conspiracy count in the Eastern District of Virginia for acts that took place over the course of approximately a month. He was sentenced to 135 months in jail. About a year and a half later, he was again indicted in the Western District of Virginia for a drug conspiracy. In this indictment, the Government alleged a conspiracy that took place over the course of approximately 14 years. Jones moved to dismiss the new indictment on double jeopardy grounds. The district court denied the motion, adopting the Government’s argument that these were two separate conspiracies.
Jones appealed. The Court found it had jurisdiction pursuant to the “collateral order” exception to the final-judgment rule. Abney v. United States, 431 U.S. 651, 657 (1977).
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.”’ United States v. Goodine, 400 F.3d 202, 206 (4th Cir. 2005) (quoting U.S. Const. amend. V). In the context of these multiple conspiracies, the Clause prevents the Government from dividing one overarching conspiracy into two separate counts. See United States v. MacDougall, 790 F.2d 1135, 1143-44 (4th Cir. 1986). To answer this question, the court looks to the “totality of the circumstances” but generally considers 5 factors:
1) time periods in which the alleged activities of the conspiracy occurred,
2) the statutory offenses charged in the indictments,
3) the places where the alleged activities occurred,
4) the persons acting as co-conspirators, and
5) the overt acts or any other descriptions of the offenses charged which indicate that nature and scope of the activities to be prosecuted.
See United States v. Ragins, 840 F.2d 1184, 1188 (4th Cir. 1988).
Here’s how it works: The defendant must point to “substantial overlaps in the two charged conspiracies.” United States v. McHan, 966 F.2d 134, 138 (4th Cir. 1992). If non-frivolous, then the burden shifts to the Government to “prove by a preponderance of the evidence that the indictments refer to two separate criminal agreements.” Ragins, 840 F.2d at 1184.
The Court pointed out what it considered an egregious flaw in the Government’s argument: The Government argued there were two conspiracies because the “Lynchburg Conspiracy had a expanded scope, a broader reach, and a different object than the Kirkley Hotel Transaction.” The “different object” was that the Lynchburg Conspiracy used many transactions on many occasions whereas the Kirkley Hotel Transaction was a “single transaction, on a single occasion.” According to the Court, for purposes of a DJ analysis, the courts will look to the degree of overlap, NOT the degree of similarity to decide if two charges are really one offense. In other words, the Government cannot break a large conspiracy into a bunch of smaller criminal acts and consider them all to be separate conspiracies.
Here, the Court looked at all of the above factors and concluded that the Government was trying to charge and punish the appellant twice for the same conduct, which was appellant’s participation in the larger conspiracy. This is not allowed, and the Court concluded:
In sum, although the Government alleged two conspiracies, it has clearly only identified one large scale conspiracy aimed at obtaining and distributing cocaine. The Government’s position is not so much a principled legal argument as it is a post hoc rationalization for violating Appellant’s constitutional rights.
That, folks, is called a benchslap. Ouch. Reversed and remanded.