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.
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. ...