Avenues, Philadelphia, Pennsylvania. On October 29, 1972, the defendant Robert Green pleaded guilty to the 1972 indictment before the Honorable Raymond J. Broderick, United States District Judge, and was sentenced on January 10, 1973, to eight years' imprisonment.
The later indictment was handed down by the Grand Jury on April 3, 1973. This indictment (hereinafter the "1973 indictment") charges that Robert Green conspired with Alvin E. Young, Harold E. Young, Charles Harris, and Harvey Johnson to distribute large quantities of heroin, in violation of 21 U.S.C., § 841. The 1973 indictment lists ten overt acts allegedly performed in furtherance of the conspiracy, all such acts occurring in Philadelphia, New York City, and New Jersey over the two and one-half year period between October 30, 1970, and April 3, 1973.
To support a claim of double jeopardy, it must be shown that the two offenses charged are in law and in fact the same offense. United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); Dryden v. United States, 403 F.2d 1008, 1009 (5th Cir. 1968). Offenses are not the same merely because they arise out of the same general course of criminal conduct, "they are the same only when the evidence required to support a conviction upon one of [the indictments] would have been sufficient to warrant a conviction upon the other." United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972). "When each offense requires proof of a fact not essential to the other, the charges are not identical, and the accused can be charged, tried and convicted of both offenses even though the charges arise out of the same acts." Pereira v. United States, 347 U.S. 1, 74 S. Ct. 358, 98 L. Ed. 435 (1954); Goldsmith v. Cheney, 447 F.2d 624, 627 (10th Cir. 1971).
While the two indictments in question here alleged commission of the same type of crime, i.e., a violation of 21 U.S.C., § 841, the offenses charged are not factually the same. The conspiracy charged in the 1972 indictment occurred on or about one specific day -- September 20, 1972; whereas, the later 1973 indictment alleges the existence of an ongoing conspiracy and the commission of overt acts in furtherance thereof over a period extending two and one-half years from October 30, 1970, to April 3, 1973.
The evidence required to prove the commission of the overt acts and to support a conviction upon the 1973 indictment would not have been sufficient to warrant a conviction upon the 1972 indictment. The particular criminal act to which Robert Green pleaded guilty under the 1972 indictment consisted of a telephone call made by defendant to Oscar Peters at his residence at 3819 North Delhi Street, Philadelphia, to advise Oscar Peters that the defendant was sending an individual named "George" to pick up eleven bundles of heroin and that the money for the heroin had already been received. The 1973 indictment contained no reference to Oscar Peters or to any telephone calls by the defendant. Moreover, the existence of the conspiracy as alleged in the 1973 indictment was proven by evidence presented at trial showing, inter alia, that on numerous occasions Robert Green, Alvin E. Young, Harold E. Young, and Harvey Johnson traveled to New York City for the purpose of purchasing heroin. The Government proved that during the course of the conspiracy, and pursuant thereto, Robert Green would assist in the transportation of the recently purchased heroin back to Philadelphia for its adulteration, packaging, and eventual distribution on the streets of Philadelphia.
It is clear that in order to prove the offenses enumerated in the two indictments, proof of facts essential to one charge but not to the other had to be proven. The conclusion of this Court is that the Government has conclusively established the existence of two separate conspiracies and the criminal involvement in both by Robert Green.
The Grand Jury charged in the 1973 indictment that Alvin E. Young, Harold E. Young, Charles Harris, Robert Green, Harvey Johnson, James H. Simmons (defendants); Linda Johnson (unindicted coconspirator); and diverse other persons whose names were to the Grand Jury "unknown," did conspire to possess with intent to distribute and to distribute quantities of heroin, in violation of 21 U.S.C., § 841. Since this indictment was returned on April 3, 1973, approximately six months after the 1972 indictment was handed down on October 5, 1972, this Court must presume that the Grand Jurors and the Government were cognizant of the identity and past criminal conduct of Oscar Peters and George Glover, the individuals charged in the 1972 indictment as two of Robert Green's coconspirators. As of April 3, 1973, neither Oscar Peters nor George Glover were persons whose names were to the Grand Jury unknown. Implicit in the absence of the names of Oscar Peters and George Glover from the long list of conspirators charged in the 1973 indictment is the conclusion that the Grand Jury considered the criminal activity that occurred on September 20, 1972, not to be a part of the ongoing, extensive conspiracy alleged in the 1973 indictment, but considered it to be a separate and distinct criminal offense. Probably the most significant ground for ruling against the claim of double jeopardy here comes from the defendant's respective positions before this Court and that of United States District Judge Raymond J. Broderick. Before my brother Broderick, he pleaded guilty. Before me, he continues to maintain his innocence. See, United States v. Pacelli, supra, 470 F.2d at p. 72.
LOCAL RULES OF CRIMINAL PROCEDURE
Rule 9 and Rule 11
Rule 9 Pretrial Discovery and Inspection.
(a) Promptly after the arraignment, the United States Attorney and the defendant's attorney shall confer and upon request, the government shall:
(1) Permit defendant's attorney to inspect and copy or photograph any relevant written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the United States Attorney;
(2) Permit the defendant's attorney to inspect and copy or photograph any relevant results or reports of physical or mental examinations, and of scientific tests or experiments and reports made in connection with the case by expert witnesses intended to be called by the government in connection with the case, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known to the United States Attorney;
(3) Permit the defendant's attorney to inspect and copy or photograph any relevant recorded testimony of the defendant before a grand jury;
(4) Permit the defendant's attorney to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places which are the property of the defendant and which are within the possession, custody or control of the government, or the aforementioned property belonging to third persons upon good cause shown;
(5) Permit defendant's attorney to inspect and copy the defendant's prior criminal record.
Upon request, the United States Attorney shall permit defendant's attorney to inspect, copy or photograph any evidence in the United States Attorney's file at such time it becomes evident that such material is favorable to the defendant as required by Brady v. Maryland, 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215] (1963).
(b) If in the judgment of the United States Attorney it would not be in the interests of justice to make any one or more disclosures set forth in paragraph (a), disclosure may be declined. A declination of any requested disclosure shall be in writing, directed to opposing counsel, and shall specify the types of disclosure that are declined.
(c) If defense counsel desires to contest such declination or seeks additional discovery not specified in these rules, he shall confer with the United States Attorney after such declination or after such request for additional discovery with a view to satisfying these requests in a cooperative atmosphere without recourse to the Court. The request may be oral or written and the United States Attorney shall respond in like manner.
(d) In the event that the prescribed conference does not resolve the dispute concerning discovery, counsel shall serve notice of the intention to file a motion pursuant to the provision of Rule 11 not later than fifteen (15) days following the date of arraignment or such later time as the Court may fix. It shall contain:
(1) the statement that the prescribed conference was held;