UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: June 7, 1988.
THE UNITED STATES
DAVID AGUILAR, GARY AUSTIN, NORMAN BENNETT, FRANK C. BOERSIG, ANASTACIO H. CAVAZOS (A/K/A TACHO), LARRY MICHAEL FARBER (A/K/A MIKE), NORMAN FARBER, NORA JULIAO (A/K/A NORA JIMENO, CHERYL JIMENO), JOHN ROBERT KELLEHER (A/K/A IRISH), RAY LAPOINT, ROBERT LEE (A/K/A BOB LEE, CHINAMAN), KENNETH EUGENE ROBERTS, RAMON SOSA, JOHN SPAGNOLI, FRANK TORCHIA, JEFF WILSON, LARRY MICHAEL FARBER, APPELLANT
On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Criminal No. 86-00214-6.
Weis,*fn* Higginbotham and Rosenn, Circuit Judges.
Opinion OF THE COURT
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This appeal concerns the double jeopardy implications of a prior conspiracy conviction upon a subsequent continuing criminal enterprise ("CCE") charge that is based upon the defendant's same conduct during the same period of time. In July 1985, appellant pled guilty to conspiracy. One year later, he was indicted for, inter alia, conspiracy and engaging in a CCE. Although the two conspiracy indictments specified conduct during different time periods, the district court found that the government had arbitrarily assigned these differing dates to a single conspiracy. On this basis, the district court granted appellant's pretrial motion to dismiss the second conspiracy indictment on double jeopardy grounds. At the same time, however, the district court denied appellant's similar motion to dismiss the CCE count on double jeopardy grounds. We conclude that, because conspiracy is an offense that is included within the necessary elements of a CCE, appellant's motion to dismiss the CCE count should have been granted. Accordingly, we will reverse appellant's CCE conviction.
From 1981 to 1985, appellant Larry Michael "Mike" Farber played a major role in a drug ring that purchased, transported and sold large quantities of cocaine and marijuana throughout the United States. In April 1985, a federal grand jury sitting in the Western District of Pennsylvania returned an indictment charging Farber and others with conspiring (1) to possess cocaine with intent to distribute it and (2) to distribute cocaine, in violation of 21 U.S.C. § 846 (1982). According to the indictment, this drug conspiracy existed from on or about October 23, 1984 to on or about March 27, 1985. The indictment also charged Farber with two counts of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (1982), and with six counts of using the telephone to facilitate the conspiracy and the distribution and possession of cocaine charged in the other counts, in violation of 21 U.S.C. § 843(b) (1982). On July 3, 1985, pursuant to an agreement with the government, Farber entered a plea of guilty to the conspiracy count and to two of the possession counts. For constitutional purposes, jeopardy attached at least by this point in time. Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 2685, 97 L. Ed. 2d 1 (1987). Farber subsequently was sentenced to concurrent twenty-year prison terms on these three counts, to be followed by a ten-year special parole term.
In August 1986, a federal grand jury sitting in the Western District of Pennsylvania returned a second indictment charging Farber and others with conspiring (1) to possess cocaine with intent to distribute it and (2) to distribute cocaine, in violation of 21 U.S.C. § 846. According to the indictment, this second conspiracy existed from in or around April 1981 to on or about October 18, 1984. In addition, the second indictment contained various other charges against Farber,*fn1 including one count of engaging in a CCE, in violation of 21 U.S.C. § 848 (Supp. IV 1986) (recodification, with subsequent amendments) and 21 U.S.C. § 853 (Supp. IV 1986). The CCE charge specified the time period from in or around April 1982 until on or around October 18, 1984.
Prior to trial, Farber moved to dismiss the conspiracy and CCE charges against him. See Fed.R.Crim.P. 12(b)(2). He argued that these counts were based upon the same conduct that had been the basis of his prior conspiracy conviction and sentence, thus violating the fifth amendment's guarantee that "no . . . person [shall be] subject for the same offence to be twice put in jeopardy of life or limb. . . ." U.S. Const. amend. V.
After hearing oral argument by the parties, the district court found as a factual matter, see Fed. R. Crim. P. 12(e), on the basis of a preponderance of the evidence, that "the conspiracy was not a separate conspiracy as advanced by the United States. Rather, it was part of a single conspiracy beginning in April of 1981 and ending on or about March 27, 1985." Joint Appendix of Appellants ("JA") at 456A. With regard to the differing time frames set forth in the two indictments, which was the only "distinct factor" that the United States offered to defend the second indictment against Farber's double jeopardy attack, id., the district court found "that the United States . . . arbitrarily assigned these [different] dates to a single conspiracy." Id. The district court "readily admit[ted] . . . that the United States did not know the scope of the single conspiracy when the [first] action was filed. . . ." Id. It "also f[ou]nd as a fact that the United States acted with due diligence in determining the facts when th[e] evidence was available. However, successive trials and multiple prosecutions for the same crime is [sic] barred by the double jeopardy clause." Id. The district court, relying upon United States v. Felton, 753 F.2d 276, 278 (3d Cir. 1985),*fn2 therefore dismissed the conspiracy count against Farber.*fn3 JA at 457A. As to the CCE, however, the district court denied Farber's motion to dismiss. It based this holding upon "United States versus Inmon, 568 F.2d 326 (3d Cir. 1977) [("Inmon I")], [which] teaches that each substantive count is a separate offense and is not barred by the double jeopardy clause."*fn4 JA at 458A.
Farber was tried and convicted by a jury on the surviving counts of the second indictment, which included the CCE charge. On April 9, 1987, the district court sentenced Farber on his CCE conviction to twenty-five years in prison, such sentence to run concurrently with the sentence he is currently serving.*fn5 JA at 2457A. On each of the fourteen cocaine-related counts for which Farber had been convicted, the district court imposed a twenty-five year prison sentence, such sentences to run concurrently to each other and to the concurrent prison sentence imposed for the CCE conviction, to be followed by a concurrent special parole term of fifteen years. Id. at 2457A-58A. Finally, on the marijuana-related possession count, the district court suspended the imposition of sentence against Farber. Id. at 2458A. On appeal, Farber challenges his CCE conviction on double jeopardy grounds.*fn6 Our standard of review on this legal question is plenary. E.g. Gillespie v. Ryan, 837 F.2d 628, 629 (3d Cir. 1988).
II. DOUBLE JEOPARDY ANALYSIS
A. Governing Legal Principles
It is commonly recognized, as this Court recently noted, "that the double jeopardy clause serves three primary purposes. 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" Gillespie, 837 F.2d at 630 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969)). At the time Farber's double jeopardy attack on the CCE count was raised in the district court, the motion to dismiss the indictment concerned the second aspect of this constitutional guarantee, i.e., the protection against a second prosecution for the same offense after conviction. Since that time, Farber has been subjected to that second prosecution, convicted of engaging in a CCE and sentenced for that crime. Those intervening events, however, have not changed the thrust of his constitutional claim or converted this into a "multiple punishments" case. Cf. Abney v. United States, 431 U.S. 651, 659, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977) (once a defendant's pretrial motion to dismiss the indictment on double jeopardy grounds has been denied, "[t]here are simply no further steps that can be taken in the District Court to avoid the trial") (emphases added); United States v. Sargent Elec. Co., 785 F.2d 1123, 1128 (3d Cir.) ("The standard of these aspects of double jeopardy is no different pretrial and posttrial."), cert. denied, 479... U.S. 819, 107 S. Ct. 82, 93 L. Ed. 2d 36 (1986). The legal question raised by this appeal, rather, is whether the government could charge Farber with engaging in a CCE after he had pled guilty to the first conspiracy charge against him. If it could not, the proper remedy at this point in time is to reverse his CCE conviction, and not simply to vacate the sentence he received for that conviction.*fn7
Our analysis of Farber's double jeopardy challenge to his CCE conviction derives from the Supreme Court's constitutional analysis of convictions for greater and lesser included offenses. Brown v. Ohio, 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), is the leading instance where the double jeopardy clause's prohibition on successive prosecutions was applied to such convictions. The petitioner, Nathaniel Brown, had initially pled guilty to, served jail time and paid a fine for a state law misdemeanor, operating a motor vehicle without the owner's consent (i.e., joyriding). Thereafter, Brown was indicted, tried, convicted and sentenced for a state law felony, auto theft. His second conviction was affirmed by the state appellate court, notwithstanding its holding that "'the crime of operating a motor vehicle without the consent of the owner is a lesser included offense of auto theft,'" id. at 163-64 (citation omitted), since the two indictments specified occurrences on different days. See id. at 164. The Supreme Court, accepting the state court's authoritative definition of the elements of the two crimes, held "that a lesser included and a greater offense are the same" for purposes of the double jeopardy clause. Id. at 166-67 n.6. The Court therefore, on constitutional grounds, reversed Brown's subsequent conviction and sentence for auto theft.
To reach this holding, the Court applied the Blockburger test, which is a venerable "standard for determining whether successive prosecutions impermissibly involve the same offense." Brown, 432 U.S. at 166 n.6; see generally United States v. Rosenberg, 806 F.2d 1169, 1183-85 (3d Cir. 1986) (Higginbotham, J., dissenting in part), cert. denied, 481... U.S. 1070, 107 S. Ct. 2465, 95 L. Ed. 2d 873 (1987). In Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), the Court held that, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Id. at 304. Since, in Brown, the state appellate court had explicitly held that the auto theft felony consists of the joyriding misdemeanor plus the intent permanently to deprive the vehicle's owner of possession, see 432 U.S. at 167, the Supreme Court had little trouble determining that the joyriding charge did not require proof of any additional fact that was not required to prove an auto theft charge. Thus, under Blockburger, joyriding and auto theft were the same offense for purposes of the double jeopardy clause. See Illinois v. Vitale, 447 U.S. 410, 421, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980). This appeal raises a parallel legal question. Farber's claim, simply put, is that CCE consists of "conspiracy plus," which makes CCE and conspiracy the same offense under Blockburger and, under Brown, bars his subsequent prosecution for the greater offense.
B. The Legal Relationship Between Conspiracy and CCE
We begin our analysis by setting forth elements of the crimes in question. CCE, which Farber claims is the greater offense, is comprised of five elements:
1) a felony violation of the federal narcotics law
2) as part of a continuing series of violations
3) in concert with five or more persons
4) for whom the defendant is an organizer or supervisor
5) from which he [or she] derives substantial income or resources.
United States v. Fernandez, 822 F.2d 382, 384 (3d Cir.), cert. denied, 484... U.S. 963, 108 S. Ct. 450, 98 L. Ed. 2d 391 (1987). Farber argues that CCE elements one (the narcotics felony) and three (in concert with others) define a lesser included offense: the conspiracy offense set forth in 21 U.S.C. § 846.*fn8
The Supreme Court has previously addressed this argument. In Jeffers v. United States, 432 U.S. 137, 53 L. Ed. 2d 168, 97 S. Ct. 2207 (1977), decided the same day as Brown, Justice Blackmun, writing for a plurality of the Court,*fn9
assume[d], arguendo, that § 848 does require proof of an agreement among the persons involved in the [CCE]. So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements.
Id. at 149-50 (plurality opinion) (footnotes omitted). Although many courts have assumed otherwise, often relying on concessions to this effect by the government, we believe that Jeffers quite clearly did not hold conspiracy to be a lesser offense included within the greater crime of engaging in a CCE. Rather, as labeled, this was an assumption that the Court made for the purpose of advancing its argument. Unlike a typical judicial assumption arguendo, however, this one was based upon a detailed rationale, including a close reading of the two statutes in question and a survey of the relevant legislative history underlying the CCE provision. See id. at 147-49 & n. 14 (plurality opinion). In addition, various passages within Justice Blackmun's plurality opinion indicate that this assumption was not made in passing or ill-considered.*fn10 Finally, Justice Blackmun explicitly noted that, while his opinion for the plurality left the question open, the opinion filed by four other Justices was "based on the premise that it was beyond dispute that §§ 846 and 848 were so related." Id. at 150 n. 15 (plurality opinion); accord id. at 158-60 (Stevens, J., joined by Brennan, Stewart and Marshall, JJ., dissenting in part and concurring in the judgment in part).
We have previously criticized other appellate courts for unthinkingly citing Jeffers as holding that conspiracy is a lesser included offense within a CCE. See United States v. Gomberg, 715 F.2d 843, 850 n.3 (3d Cir. 1983), cert. denied sub nom. Spielvogel v. United States, 465 U.S. 1078, 79 L. Ed. 2d 760, 104 S. Ct. 1439, 104 S. Ct. 1440, and sub nom. Levy v. United States, 465 U.S. 1078, 79 L. Ed. 2d 760 (1984). In Gomberg, however, we evaluated the legal relationship between conspiracy and CCE only in the context of analyzing the legality of cumulative punishments for those two crimes. See 715 F.2d at 850. We did not assess whether conspiracy was a lesser included offense such that a subsequent CCE prosecution would be barred by the double jeopardy clause. In this appeal, which squarely presents the latter issue, we decide that the legal question that the Supreme Court left open in Jeffers must now be answered in Farber's favor. We base this decision on two factors: the plain language of the CCE statute and the legislative history thereto, which was set forth and analyzed in some detail by the Jeffers plurality. See 432 U.S. at 148-49 & n. 14. These factors make it apparent that the "in concert" and "narcotics felony" elements of a CCE also constitute a conspiracy offense under section 846. For purposes of double jeopardy analysis, in other words, in a case such as Farber's where the same activities were the basis of each crime, conspiracy is a lesser offense included within the greater crime of engaging in a continuing criminal enterprise.*fn11
The government, in addition to arguing that conspiracy is not "conduct that is a necessary element of the more serious crime [of CCE]," Vitale, 447 U.S. at 420, maintains that Brown's double jeopardy analysis of greater and lesser included offenses does not apply where the greater offense is a complex statutory crime such as CCE. This argument relies primarily upon Garrett v. United States, 471 U.S. 773, 85 L. Ed. 2d 764, 105 S. Ct. 2407 (1985), where the Supreme Court held that a CCE prosecution, which occurred after a defendant had already been convicted for one of the predicate offenses to the CCE, did not violate the double jeopardy clause.
We conclude that Garrett does not support the government's argument. It is certainly true that Garrett's statutory analysis "show[s] in the plainest way that Congress intended the CCE provision to be a separate criminal offense which was punishable in addition to, and not as a substitute for, the predicate offenses." 471 U.S. at 779; accord Fernandez, 822 F.2d at 385. This appeal, however, is not concerned with the double jeopardy clause's protection against multiple punishments for the same offense. The issue here, rather, is the protection against a second prosecution for the same offense after conviction. It is also true that Garrett "caution[s] against ready transposition of the 'lesser included offense' principles of double jeopardy from the classically simple situation presented in Brown to the multilayered conduct, both as to time and to place, involved in [a CCE] case." 471 U.S. at 789. What distinguishes Garrett from this appeal, however, is the pivotal fact that the predicate offenses at issue in that case were substantive, not conspiracy, crimes.*fn12 The Supreme Court explicitly emphasized this point in its concluding paragraph:
We have been required in the present case, as we were not in Jeffers, to consider the relationship between substantive predicate offenses and a CCE. We think here logic supports the conclusion, also indicated by the legislative history, that Congress intended separate punishments for the underlying substantive predicates and for the CCE offense.
Id. at 794-95 (emphases added). In addition, this appeal, like Brown and unlike Garrett, presents an instance where the district court found as a factual matter that "[t]he very same conduct" was the basis of the conspiracy count to which Farber pled guilty and the CCE count for which he was thereafter indicted and convicted. Therefore, because nothing in Garrett or in the legislative materials indicates that Congress meant to permit separate conspiracy and CCE prosecutions of a defendant in Farber's unique circumstances, we conclude "that the principles of finality and prevention of prosecutorial overreaching applied in Brown reach this case." Ohio v. Johnson, 467 U.S. 493, 501, 81 L. Ed. 2d 425, 104 S. Ct. 2536 (1984).
C. Due Diligence
The government makes an additional argument, one that is based upon the district court's explicit but undeveloped finding "that the United States acted with due diligence in determining the facts when th[e] evidence was available". JA at 456A, quoted supra page 6. It urges us -- although it apparently did not urge the district court -- to recognize an exception to Brown. The government claims, in effect, that it should not be faulted for prosecuting Farber twice because the facts necessary to charge Farber with engaging in a CCE had not been discovered, despite the government's exercise of due diligence, at the time he was charged with the lesser included offense of conspiracy.
The Supreme Court has suggested on several occasions that a "due diligence exception" to the rule established in Brown may exist. See, e.g., Garrett, 471 U.S. at 797 (O'Connor, J. concurring); Vitale, 447 U.S. at 420 n.8; Brown, 432 U.S. at 169 n.7; Jeffers, 432 U.S. at 152 (plurality opinion); cf. Adamson, 107 S. Ct at 2685 (unspecified "special circumstances" exception). The Court has on no occasion, however, delineated the boundaries of that exception, or otherwise instructed as to its application. The government cites only one, and our research has located no other, instance in which a federal appellate court has employed such an exception to save a second prosecution for a lesser included offense from invalidation under the double jeopardy clause. See United States v. Stearns, 707 F.2d 391 (9th Cir. 1983), cert. denied, 464 U.S. 1047, 79 L. Ed. 2d 182, 104 S. Ct. 720 (1984).*fn13
In the present case, however, we are compelled to conclude that the complexities of the claimed due diligence exception are not properly before us, and for that reason we must delay our construction of its scope and validity for a later occasion.
Whatever its legitimate application, the burden of proving the due diligence exception falls certainly upon the government. Our review of the record leads us to the conclusion that the government did not argue the exception in the context of the § 848 count in the district court. There were allusions to due diligence in connection with the conspiracy counts, but the considerations regarding due diligence as to those counts differ from those that exist with regard to § 848. Because the government did not raise the due diligence contention in the context of § 848 to the district court, we cannot entertain that contention on this appeal. Cf. United States ex rel. Huisinga v. Commanding Officer, Armed Forces Examining and Entrance Station, Minneapolis, Minnesota, 446 F.2d 124 (8th Cir. 1971) (reviewing court will not ordinarily rule on issues not properly presented or raised by government in trial court).*fn14
For the foregoing reasons, we will reverse appellant's CCE conviction. This matter will be remanded to the district court with instructions to dismiss the CCE count of the indictment.