The opinion of the court was delivered by: Surrick, J.
Presently before the Court are Defendant Kaboni Savage's Motion to Dismiss the Indictment on Double Jeopardy Grounds (ECF No. 374) and Motion to Dismiss Count Nine of the Third Superseding Indictment on Double Jeopardy Grounds (ECF No. 375). For the following reasons, Defendant's Motions will be denied.
A. The Instant Indictment
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment charging Defendant Kaboni Savage ("Savage") with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.) Savage was charged, along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage ("Kidada").*fn1 Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011.*fn2
All Defendants are charged on the RICO conspiracy count (Count 1). In addition, Northington is charged on Counts 5, 7, and 8. Merritt is charged on Counts 9, 10-15, 16 and 17. Kidada is charged on Counts 10-15, 16 and 17. (Fourth Superseding Indictment.) On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government is not seeking the death penalty against Kidada.
In Count 1, the RICO conspiracy count, the Government alleges that all four Defendants were members of a regional criminal organization, which was based in North Philadelphia and was known as the "Kaboni Savage Organization" ("KSO"). From late 1997 through April 2010, this racketeering enterprise conspired and agreed to distribute large quantities of controlled substances, to commit murder and arson, and to tamper with, and retaliate against, witnesses who had testified, or were about to testify, against the racketeering enterprise or its members. The KSO packaged, prepared and distributed cocaine, crack and phencylclidine ("PCP") throughout the greater Philadelphia area, and collected drug proceeds in exchange. The KSO operated drug distribution centers, also known as "drug corners," throughout North Philadelphia and maintained control of these drug corners through a pattern of threats, intimidation, violence and murder. (Fourth Superseding Indictment 5.) The KSO was also committed to maintaining, preserving, protecting and expanding its power, territory and profits. It did this by tampering with and retaliating against Government witnesses and their families through the use of threats, intimidation, violence and murder.
Counts 2 through 7 charge murder in aid of racketeering for the murders of Kenneth Lassiter (Count 2), Mansur Abdullah (Count 3), Carlton Brown (Count 4), Barry Parker (Count 5), Tyrone Toliver (Count 6) and Tybius Flowers (Count 7). (Id.) Savage is charged on all of these counts while Northington is charged on Counts 5 and 7. In Count 8, the witness tampering charge, the Government alleges that Savage and Northington murdered Tybius Flowers with the intent to prevent Flowers' attendance and testimony at Savage's trial for the murder of Kenneth Lassiter in the Philadelphia Court of Common Pleas. In Count 9, Savage and Merritt are charged with conspiracy to murder in aid of racketeering. It is alleged in Count 9 that Savage and Merritt agreed with each other and with Lewis and Kidada to commit arson at the home of Eugene Coleman's family members, in retaliation for Coleman testifying against Savage before a federal grand jury. Six people were killed during the arson, including three young children and Coleman's mother. Counts 10 through 15 charge Savage, Kidada and Merritt for the arson-murders of the Coleman family members: Marcella Coleman (Count 10), Tameka Nash (Count 11), Sean Anthony Rodriguez (Count 12), Tajh Porchea (Count 13), Khadija Nash (Count 14), and Damir Jenkins (Count 15). Count 16 charges Savage, Kidada and Merritt with retaliation against a witness, and Count 17 charges these Defendants with using fire to commit a felony. These Counts both relate to the murder of Coleman's family members.
B. The Prior Indictment, Conviction and Sentencing in 2005
On February 9, 2005, a grand jury returned a twenty-four count Second Superseding Indictment (the "2005 Indictment") against Savage, Northington and four other co-defendants. See United States v. Savage, No. 04-269 (E.D. Pa.), at ECF No. 448.*fn3 Except for Savage and Northington, none of the other co-defendants named in the 2005 Indictment are charged in the instant Indictment.
The 2005 Indictment charged Savage with conspiring to manufacture and distribute cocaine base, in violation of 21 U.S.C. §§ 846 and 841 (Count 1), five counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Counts 4-8), possessing a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count 10), possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 12), three counts of threatening a witness, in violation of 18 U.S.C. 1512(a)(2)(A) (Counts 13-15), three counts of threatening to retaliate against a witness, in violation of 18 U.S.C. § 1513(b)(2) (Counts 16-18), and two counts of using a telephone to facilitate drug trafficking, in violation of 21 U.S.C. § 843(b) (Counts 19 and 20). See Savage, No. 04-269, at ECF No. 448. Northington was charged in Count 1, the drug conspiracy, and Counts 9, 11 and 12. Id.
The conspiracy count alleged that Savage and Northington, together with other co-conspirators, conspired and agreed to manufacture and distribute more than five kilograms of cocaine, and more than 50 grams of crack. Id. According to the 2005 Indictment, Savage and Gerald Thomas, who was also named in the 2005 Indictment and in Count 1, supervised, managed and organized a drug trafficking enterprise referred to as the "Thomas-Savage Organization." Id. The enterprise operated in and around Philadelphia, obtained large quantities of drugs, supplied the drugs to co-conspirators for distribution, and collected proceeds from the distribution. Id.
On December 16, 2005, following a seven-week jury trial before the Honorable Mary A. McLaughlin, a jury found Savage guilty of fourteen (of the sixteen) Counts, including the drug conspiracy count (the "2005 Conviction").*fn4 See Savage, No. 04-269, at ECF No. 847. Northington was found guilty of two (of the four) Counts charged against him, including the drug conspiracy count. See Savage, No. 04-269, at ECF No. 896.*fn5 Based on Savage's convictions, he was subject to a mandatory minimum sentence of ten years and a statutory maximum sentence of life in prison. See Savage, No. 04-269, ECF No. 859 (Apr. 27, 2006 Sentencing Tr. 6-7 (on file with Court)). At sentencing, Savage was found to have a United States Sentencing Guidelines total offense level of 43 and a criminal history category of II. Id.; Savage, No. 04-269, at ECF No. 823. This resulted in a Guidelines range of life imprisonment. See Savage, No. 04-269, at ECF No. 859. Savage was ultimately sentenced to thirty years in prison. During his sentencing, the Government presented evidence to Judge McLaughlin that was unrelated to the charges in the 2005 Indictment. Specifically, the Government presented evidence of additional threats and intimidation made by Savage to witnesses and their families during the trial. Id. The Government also told Judge McLaughlin about the Coleman family murders. Based on this evidence, the Government requested an upward departure of at least four offense levels. Id. at 53 (noting that Savage's drug trafficking conduct alone should result in a life sentence, but that based on his conduct during trial, an upward adjustment is appropriate).
Northington was subject to a mandatory minimum sentence of ten years in prison and statutory maximum of fifty years in prison. See Savage, 04-269, ECF No. 841. During Northington's sentencing, the Government presented evidence that was unrelated to the conduct charged in the 2005 Indictment. Specifically, the Government's evidence showed that while the trial was underway, Northington threatened to kill the family of Robert Wilks, who was scheduled to testify at the trial. Id. The Government requested a two-level upward adjustment based on these threats. Id. at 8-9. He was subject to a total offense level of 36 and a criminal history category of III. This resulted in a Guidelines range of 235 to 293 months in prison. See Savage, 04-269,at ECF No. 968 (June 13, 2006 Sentencing Tr. (on file with Court)). Northington was sentenced on June 15, 2006 to 235 months, or approximately nineteen-and-a-half years, in prison. See Savage, 04-269,at ECF No. 895. Northington's sentence fell at the bottom of his Guidelines range.
By Order dated June 29, 2001, the deadline to file pretrial motions in this case was set for February 21, 2012. (ECF No. 239.)*fn6 The Defendants have filed approximately sixty-two pretrial motions. Savage filed the instant Motion to Dismiss the Indictment on Double Jeopardy Grounds on February 21, 2012. (Def.'s Mot. Dismiss, ECF No. 374.) Savage also filed a Motion to Dismiss Count Nine of the Third Superseding Indictment that same day. (Def.'s Mot. Dismiss Count 9, ECF No. 375.) The Government filed a joint response to these Motions on April 13, 2012. (Gov't's Resp., ECF No. 465.) Trial of Defendants is scheduled for September 2012.
A. Standing of Defendants to Assert Double Jeopardy Claims
As a preliminary matter, we must determine which Defendants have standing to join the Motions to assert the respective double jeopardy claims. Savage is the only Defendant that has filed pretrial motions asserting double jeopardy claims, and neither of his Motions asserts arguments on behalf of any of the other Defendants. All Defendants have, however, filed motions to join the other pretrial motions of their co-defendants. (See ECF Nos. 397 (Merritt seeking to join pretrial motions of Savage and Northington), 434 (Kidada seeking to adopt pretrial motions of all co-defendants), 365 (Northington seeking to join pretrial motions of Merritt).)*fn7 The Government does not object to any of the Defendants being permitted to join the motions filed by co-defendants, provided that each Defendant has standing to assert the issues raised in the respective motions. (See ECF No. 439.) In order to determine which of the Defendants have standing, we must look at the specific arguments raised in these double jeopardy Motions.
In the Motion to Dismiss the Indictment on Double Jeopardy Grounds, Savage argues that double jeopardy precludes the Government from prosecuting the instant Indictment because it charges the same crimes for which Savage was prosecuted and sentenced in the 2005 Indictment. In the prior prosecution, Savage was charged and convicted of, among other crimes, conspiracy to manufacture and distribute cocaine. In the instant Indictment, Savage is charged with RICO conspiracy and conspiracy to commit murder in aid of racketeering. Savage contends that the 2005 Indictment and the instant Indictment allege a single conspiracy, and that he has already been prosecuted and punished for this conspiracy. Of all Defendants charged in the instant Indictment, only Savage and Northington were charged in the 2005 Indictment. Both Savage and Northington were ...