Dean Felton, who was in custody, learned of the dismissal of the state charges on October 30, 1981, and promptly filed an objection to that dismissal. In his objection, he alleged that the dismissal of the state charges in anticipation of federal prosecution violated his state and federal rights to a speedy trial. He demanded that the court vacate the dismissal and order those charges to proceed to trial. The motion was denied.
On March 31, 1983, shortly after Dean Felton had been released from federal custody under the sentence imposed on July 1, 1981, the instant ten-count indictment was returned. Count One of that indictment charges that Dean Felton, Nancy E. Bruce, John Zorak, Anthony Serrao, Richard Cox, James Thurman, John Hathorne, "and others to the grand jury known and unknown," conspired "from on or about the beginning of 1979 through on or about May 13, 1981," to distribute marijuana in violation of 21 U.S.C. § 846. Count Two charges that in violation of 21 U.S.C. § 848 Dean Felton, "in concert with at least five other persons," engaged in a "continuing criminal enterprise" over the same time period as the conspiracy charged in Count One.
Counts Three through Seven charge Dean Felton with possession with intent to distribute unspecified quantities of marijuana at various times from "in or about the spring of 1979" to on or about the "early part of 1980."
Count Eight charges that on or about October 31, 1980, Dean Felton and Anthony Serrao unlawfully did use an interstate communication facility in furtherance of the conspiracy charged in Count One, in violation of 21 U.S.C. § 843(b). Count Nine is identical to Eight, except that Nine charges Dean Felton and Richard Cox as defendants.
Finally, Count Ten charges Dean Felton and Nancy Bruce with possessing with intent to distribute the 12,000 pounds of marijuana (apparently that allegedly found at the Kutz Industrial Park on May 13, 1981) in violation of 21 U.S.C. § 841(a)(1).
Speedy Trial Act
The defendant Felton contends that Counts One and Two of the instant indictment charge the "same offense or one that was required to be joined with" the conspiracy count earlier charged at Criminal No. 79-121, and that under § 3161(h)(6) of the Speedy Trial Act the time which elapsed under the first indictment prior to its dismissal must be "tacked" on to the present indictment. If this is done, the defendant argues, the statutory period of seventy days within which trial must commence on the instant indictment will have passed, and, therefore, Counts One and Two should be dismissed.
The government responds that the first indictment was returned in June of 1979, prior to the effective date of the mandatory dismissal sanctions of the Act which applied only to those indictments filed on or after July 1, 1980, 18 U.S.C. § 3163(c). Therefore, the government argues, since the mandatory dismissal sanctions did not apply to the first indictment at all, if the charges contained in Counts One and Two of the second indictment are in fact, as the defendant contends, the same as, or charges which should have been joined with, those contained in the first indictment, the date of the first indictment would control and no sanctions at all would apply to Counts One and Two of the second indictment.
The government contends in the alternative, however, that the conspiracy count of the second indictment is not in fact the same as, or one which should have been joined with, the conspiracy count in the first indictment, and, therefore, no "tacking" is required in any event. Finally the government argues that even if we add the days which have run under the first indictment to those chargeable under the second, the permissible statutory period has not been exceeded.
The general principles which govern our disposition of this motion appear to be as follows. In determining whether a subsequent indictment does in fact charge the same offense or one which was required to be joined with an offense charged in a previous indictment, we employ double jeopardy tests. In other words, "we must determine whether, within the meaning of the Double Jeopardy Clause, the charges contained in the superseding indictment are the same as, or required to be joined with, charges contained in the original indictment." Novak, 715 F.2d at 817. "Offenses are the 'same' for double jeopardy purposes when the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other." United States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975). Further, "in the context of multiple charges of conspiracy under the same statute, the United States Supreme Court has held that 'a single agreement to commit an offense does not become several conspiracies because it continues over a period of time. Braverman v. United States, 317 U.S. 49, 52, 63 S. Ct. 99, 101, 87 L. Ed. 23 (1942). '" Novak, 715 F.2d at 817.
It is important to bear in mind when considering whether or not one or two conspiracies have been charged that "it is the agreement which constitutes the crime, not the overt acts." United States v. Young, 503 F.2d 1072, 1076 (3d Cir. 1974). In addition, as stated in Young, "proper weight must be given to consideration of whether the overt acts alleged in the first conspiracy charge were carried out in furtherance of the broad agreement alleged in the second indictment or whether these acts were carried out in furtherance of a different agreement." Id.
Where, as here, a defendant makes a prima facie showing that a second indictment charges the same offense as, or one required to be joined with, charges contained in a previous indictment, the government must prove by a preponderance of the evidence to the court as the trier of fact that the offenses are separate. See Id. at 568 F.2d at 332.
With regard to the continuing criminal enterprise in violation of 21 U.S.C. § 848 charged in Count Two of the second indictment, the predicate conspiracy in violation of 21 U.S.C. § 846 is a lesser included offense. Jeffers v. United States, 432 U.S. 137, 53 L. Ed. 2d 168, 97 S. Ct. 2207 (1977); United States v. Lurz, 666 F.2d 69 (4th Cir. 1981), cert. denied, 459 U.S. 843, 103 S. Ct. 95, 74 L. Ed. 2d 87 (1982). And Brown v. Ohio, 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), establishes the general rule that the Double Jeopardy Clause prohibits a state or the federal government from trying the defendant for a greater offense after it has convicted him of a lesser included offense. It follows, therefore, that the continuing-criminal-enterprise-charge must be joined with its predicate conspiracy under double jeopardy standards.
Having reviewed the conspiracy counts of the indictments in question in the light of the foregoing principles and the evidence which was adduced at the hearing, we find the following facts which we believe require the conclusion that the government has failed to rebut the presumption raised by the defendant's prima facie case that the conspiracies are the same:
(1) The principal actor in the two conspiracies as well as in the continuing criminal enterprise as charged by the government is the defendant Dean K. Felton.