Appeal from the United States District Court for the WEstern District of Pennsylvania.
Gibbons, Weis, Circuit Judges and Meanor,*fn* District Judge.
This is an appeal by Martel Inmon from the denial of his motion to dismiss an indictment on double jeopardy grounds.*fn1 The government has moved to dismiss the appeal as interlocutory. That motion is denied since pretrial orders rejecting claims of former jeopardy are final decisions within the meaning of 28 U.S.C. § 1291. Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); United States v. DiSilvio, 520 F.2d 247 (3d Cir. 1975). On the merits of the appeal, we affirm the district court with respect to certain substantive charges in the indictment but reverse and remand on the conspiracy charge.
A. Proceedings in the District Court
On July 14, 1976, two indictments were returned against Inmon. In No. 76-140 (Inmon I) the government charged that he conspired with nine co-defendants, one named but unindicted co-conspirator, and other co-conspirators whose names were unknown to distribute and possess, with intent to distribute, heroin, a narcotic drug and schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). In No. 76-141 (Inmon II) the government charged that he conspired with seventeen co-defendants, two named but unindicted co-conspirators, and other co-conspirators whose names were unknown to distribute and possess, with intent to distribute, heroin in violation of the same statute.*fn2 In each indictment the locus criminis was Pittsburgh, Pennsylvania. Inmon I charged that the conspiracy continued from September 1, 1975, to April 4, 1976, while Inmon II charged a conspiracy between February 1, 1975, and July 14, 1976. Inmon I recited overt acts in Pittsburgh between October 10, 1975, and April 3, 1976; Inmon II recited overt acts in Pittsburgh between September 6, 1975, and July 13, 1976.
Although Inmon was the only conspirator charged in both indictments, the personnel of the alleged conspiracies overlapped. Herbert Segure, the unindicted co-conspirator named in Inmon I, was indicted in Inmon II. Alvin Clark and Roy Daviston, the unindicted co-conspirators named in Inmon II, were indicted in Inmon I. Both indictments referred to other unknown persons.
Of the twenty-three overt acts charged in Inmon I, Inmon was an alleged participant in twenty-one. Of the thirty-three overt acts charged in Inmon II, Inmon was an alleged participant in thirteen. The overt acts charged in both indictments suggest that Inmon played a central role in the heroin trade in Pittsburgh. Two affidavits in the record support this view. In August, 1975, the government sought to install a pen register device on the telephone of Arlene Stubbs, one of the co-defendants in Inmon II. The affiants, an Assistant United States Attorney and a Special Agent of the Drug Enforcement Administration, described her as Inmon's paramour and charged that her telephone was used by Inmon to facilitate heroin distribution. The DEA Special Agent continued:
For the reasons set forth below, I believe that MARTEL INMON has been a significant Pittsburgh area narcotics trafficker for the past three years and that he presently controls the distribution of the major portion of all white heroin in the Greater Pittsburgh Area. Information received from various reliable sources (including Confidential Informants #1, #2 and #3 described below) indicates that Inmon distributes as much as 1 pound of pure heroin every two weeks. It is my opinion, based on my investigation of narcotics trafficking in the Pittsburgh Area, as well as discussions with other knowledgable state and federal narcotics agents, that the Inmon organization controls at least 75% of all the white heroin distributed in the Pittsburgh Area and is in direct competition with another large heroin organization, responsible for the distribution of brown heroin in Pittsburgh.
On November 9, 1976, Inmon pleaded guilty to the conspiracy charge in Inmon I and to one substantive charge in that indictment. On January 4, 1977, he moved before the district court to dismiss the Inmon II indictment because his guilty plea to Inmon I had placed him in former jeopardy. The district court denied the motion, and this appeal followed.
This case requires the exploration of the procedural consequences of the rule of Abney v. United States, supra, and United States v. DiSilvio, supra, that the denial of a motion to dismiss an indictment on the ground of former jeopardy results in an appealable final order. The government, in a brief prepared before the decision in Abney, urged that we should overrule DiSilvio and that we should only review the rejection of double jeopardy claims after the completion of the second trial, when we would have the benefit of testimony against which to measure the identity of the former and later charges. That course would have avoided some of the procedural problems we now face. But, as the Supreme Court recognized in Abney, it would also have required that the defendant submit to the violation of his constitutional right not to be tried again for the same offense in order to raise the issue. Since that course is no longer open, we must face the procedural problems. As necessary consequences, the Abney-DiSilvio rule requires (1) that there must be a pretrial proceeding in which an appropriate record ...