Appeal from the United States District Court for the Western District of Pennsylvania - Pittsburgh.
Aldisert, Chief Judge, Becker, Circuit Judge, and Stern, District Judge.*fn*
The question for decision is whether appellant would be placed in double jeopardy in violation of the fifth amendment were he to be prosecuted in the Western District of Pennsylvania on a charge of conspiracy to distribute and possess marijuana following a plea of guilty and subsequent sentence in the Northern District of Florida on a similar charge. Appellant argues that the Florida and Pennsylvania activities were part of the same conspiracy; the government argues otherwise. The district court agreed with the government and denied appellant's double jeopardy motion to dismiss the indictment. This appeal followed. Although the question is close, we are persuaded that the government failed to meet its burden of proving the existence of two distinct conspiracies.
John Hathorn*fn1 pleaded guilty in the Northern District of Florida in 1982 to a charge of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 841. In the Western Pennsylvania indictment he is charged with conspiracy to distribute and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1).
Legal precepts that control our evaluation of the facts are familiar. Jeopardy attached in the Florida prosecution with acceptance of the guilty plea. United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 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, 124, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966). "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. Young, 503 F.2d 1072, 1075 (3d Cir. 1974) (citations omitted). "[A] single conspiracy may not be subdivided arbitrarily for the purposes of prosecution." Id. at 1057. See also United States v. Inmon, 568 F.2d 326 (3d Cir. 1977). Although the defendant has the burden of going forward with the evidence by putting his double jeopardy claim in issue, once he has made a non-frivolous showing, the burden of persuasion shifts to the government. Id. at 330. Where, as here, the issue is whether there was one or two conspiracies, the government must then prove by a preponderance of the evidence that there were separate conspiracies. Id. at 331-32.
We are satisfied that the district court recognized these precepts in its consideration of the motion to dismiss the indictment. The district court held that Hathorn presented a non-frivolous claim. We agree. Our inquiry thus follows a narrow compass. We now must decide whether the government met it burden of proving by a preponderance of the evidence that there were two separate conspiracies.
To decide this controlling question we must evaluate the government's case and decide if a sufficient quantity of evidence was presented to meet the legal standard governing the burden. Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969). The government suggests a different review standard, urging us to adopt the clearly erroneous test because the question whether the conspiracy in this case is the same as the Florida conspiracy is one of fact. As authority for this novel proposition, it relies upon United States v. Lurz, 666 F.2d 69, 74 (4th Cir. 1981), cert. denied, 459 U.S. 843, 74 L. Ed. 2d 87, 103 S. Ct. 95 (1982). But the government reads into a single sentence from Lurz a sweep not reasonably embraced in its terms. All that the Court said there was: "However, the issue is factual and, where facts are different, so may the conclusion differ." Id. We find it necessary to reiterate that on review the trial court's findings of narrative or historical facts are measured by the clearly erroneous test, but as to the legal component of its conclusion, this court has legal component of its conclusion, this court has plenary review. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir. 1981). Accordingly, what we must examine here is whether the district court correctly determined that as a matter of law the government met its burden of proving the separate conspiracies by a preponderance of the evidence. Such an inquiry requires us to examine the basic facts of record and the permissible inferences that may be drawn therefrom.
Turning now to the facts, we conclude that the government has not proved by a preponderance of the evidence that Hathorn was involved in two separate conspiracies. Initially, we note an overlap in the time periods covered by the indictments. The Western Pennsylvania indictment covers a period from "the beginning of 1979 through, on, or about May 13, 1981, in the Western District of Pennsylvania and elswhere," App. at 2a. The time period in the Florida indictment is included within the time frame above, and runs "from on or about December 1, 1980, until on or about March 24, 1981, in the Northern District of Florida and elsewhere." Id. at 3a.
Next, we must examine the specific activities alleged in the indictments. The Florida indictment charged Hathorn and several co-conspirators with a conspiracy "to possess with intent to distribute . . . more than 1,000 pounds of marijuana." The Western Pennsylvania indictment charged Hathorn and another group of co-conspirators with a similar conspiracy and described Hathorn's specific activity as follows:
In or about mid-September of 1980, the area of Suwanee, Georgia, DEAN K. FELTON purchased approximately 650 pounds of marijuana from JOHN HATHORNE and other persons known to the grand jury. The defendant, DEAN K. FELTON, tendered a partial payment which consisted of approximately 80 gold krugerands and $30,000 in currency for the aforementioned marihuana.
In or about late October, 1980, DEAN K. FELTON purchased approximately 1200 pounds of marijuana from JAMES THURMAN, JOHN HARTHONE and persons known to the grand jury in the Atlanta, Georgia area.
After reviewing the transcripts of the double jeopardy hearing held in Pittsburgh, and the previous trial in Florida, we are faced with very compelling inferences linking the two supposedly separate conspiracies.
Although the Florida indictment only covered the period from December 1, 1980 to March 24, 1981, the available testimony showed that Hathorn and his co-conspirators, Paul Rice, Gerald Sabo, Thomas Black, Tommy Baxley, Ben Masters, Eddie Black, and others, operated a smuggling operation out of Atlanta that existed before and after these dates. This group made at least four smuggling flights to Colombia during this period, in September and December of 1980, and March and June of 1981.
These flights had many elements in common from which one could infer a continuing, albeit loosely organized, conspiracy, as set forth in detail in the appendix to this opinion. First, the people involved, and their specific roles, were relatively common to all of the flights. John Hathorn piloted or helped pilot the plan in all the trips. Eddie Black helped pilot the March flight, Fla. T. Tr. at 31,*fn3 and was ground crew on the others. T. Tr. at 71, 99, 109. Ben Masters provided the aircraft for the September and December trips. T. Tr. at 63, 98. He, along with John Rose and Gerald Sabo, also helped finance the aircraft for the March flight. Fla. T. Tr. at 96. Jim Thurmon arranged the pick up of the drugs in South America on the first flight, T. Tr. at 96, and John Hathorn made these arrangements afterwards, probably using the same contact in South America, T. Tr. at 73, Fla. T. Tr. at 43.Gerald Sabo, Thomas Black and Tommy Baxley were on the ground crew for the returning flights. T. Tr. at 71, 99, 109. Fla. T. Tr. at 26, 31. In addition to this continuity in personnel, the flights were also logistically similar. The flights usually originated in the Atlanta area. Fla. T. Tr. at 16, 30, 41.All flights picked up marijuana in Columbia, South America, and returned. T. Tr. at 99, Fla. T. Tr. at 16, 36, 41. The return destinations of these flights were also similar, with the September, December,*fn4 and June flights destined for Blakely, Georgia, T. Tr. at 78, 99, Fla. T. Tr. at 41. Given all these personnel and operational similarities, one might logically infer a continuing conspiracy to smuggle marijuana by the group which operated out of Atlanta, and that the subsequent distribution of this marijuana was also out of the Atlanta area.
The government seeks to distinguish the September flight from the later flights involved in the Florida indictment through testimony that Jim Thurman dropped out of the conspiracy after the September flight because of a money dispute. T. Tr. at 96. However, given the continuing nature of both the operations and personnel of the group, Thurman's department was apparently insignificant.
The testimony also linked the Atlanta group with the marijuana subject to the Western Pennsylvania indictment. At the Pittsburgh hearing, DEA Special Agent Larry J. Carroll identified the September flight of this group as the source of the 650 pounds of marijuana sold to Dean Felton in September, which event is listed as Overt Act #9 in the Western Pennsylvania indictment. T. Tr. at 98. He testified that Sabo, "the middle man," had previously arranged this sale by phone with Dean Felton, T. Tr. at 106, and that Baxley, Masters, Black, and Hathorn were also involved in Overt Act # 9. Significantly, Hathorn also testified about this September shipment at the Florida trial. He testified that he and Eddie Black took 100 pounds of marijuana to John Rose's residence "about six months previous to March of 81 or eight months previous." Fla. T. Tr. at 25. This was corroborated by Black and Rose. It is therefore reasonable to conclude that the load of marijuana discussed in the Florida trial was the same originating load as that covered by the Western Pennsylvania indictment. In any event, the goverment did not meet its burden of proving otherwise.
Agent Carroll also testified that Eddie Black, Sabo and Baxley were involved in the October sale of 1,200 lbs. of marijuana to Dean Felton, specified as Overt Act #12 in the Western Pennsylvania indictment. T. Tr. at 109. Although no one testified as to the source of this marijuana, one could infer that the group had made another successful flight to Columbia sometime in October. The December and March flights, which were included in the time frame of the Florida indictment, were intercepted by police at Tallahassee and Gainesville, and consequently no sales were made. However, given the continuity of the operation, portions of these loads could also have been destined for Pittsburgh through the Felton-Sabo connection.
Another tie between these flights and the sales listed in the Western Pennsylvania indictment is that both sales to Felton specified in that indictment took place in the Atlanta area, where this group was apparently based. Finally, although the DEA agent in charge of the Florida investigation testified as to the distinct nature of the conspiracies involved in the two indictments, he admitted on cross-examination that he was aware of other smuggling ...