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Court Discusses 5th Amendment Double Jeopardy Issue


On the morning of December 15, 1971 two men and a woman were observed entering the New York residence of the husband and his wife carrying empty shopping bags or, in Grant’s case, with a collapse valise. A New York Criminal Lawyer said when they departed, the three left with their once empty receptacles, filled. They were then followed to different distribution points where they were arrested. Searches conducted incident to the arrests revealed that they each had over one pound of heroin possession (drug possession). A subsequent search of the couple’s residence produced large amounts of narcotics, money, weapons and drug packaging materials.

On December 28, 1971 the three were indicted by the Bronx County Grand Jury which, by five indictments, charged the three and the wife with criminal law violation through crack possession. The indictments also charged one of the three complainants with two counts of attempted murder, two counts of reckless endangerment and possession of a weapon; and the complainant couple with two counts each of possession of weapon and criminally using drug paraphernalia.

Thereafter, in November, 1972 the complainants and 14 others were indicted by a Federal Grand Jury for conspiring to distribute and possess with the intent to distribute narcotic drugs. A Brooklyn Criminal Lawyer said the indictment set forth 18 overt acts that the complainants allegedly committed in furtherance of the conspiracy, the last of which stated that the three together with the husband did distribute and possess with intent to distribute a total of eight and one-half (8 1/2) kilograms of heroin hydrochloride, and, in addition, did obtain $70,000 income and resources from prior heroin distributions.

The Federal prosecution proceeded to trial first. The Government produced credible evidence of the complainants’ guilt and, specifically, established the overt act alleging the complainants with heroin possession with the intent to distribute the same. As noted, the complainants were convicted and their appeals were unavailing.

Concluding that the State prosecution was barred, the Appellate Division granted the petition and prohibited the accused from trying the complainants pursuant to separate indictments charging each of them with the crime of heroin possession. A New York Sex Crimes Lawyer said two Justices dissented on the ground that prohibition does not lie.

A threshold question is raised concerning whether the proceeding in the nature of prohibition should be entertained. While the occasion had recently to delimit the scope of the extraordinary remedy, the proceeding fits the traditional mold of the ancient writ which, it has often been held, lies to test whether a court is acting is excess of its jurisdiction, for example, by permitting a second criminal action to be based on a prior prosecution, and cases cited therein and is thus reviewable. Indeed, the proceedings brought on similar grounds is recently entertained and reviewed.

A Fifth Amendment double jeopardy objection was raised in the court and, while it is true, as the complainants claimed, that the objection predicated thereon is groundless. Invoking the so-called dual sovereignties doctrine, the United States Supreme Court has held that a subsequent State prosecution based on the same facts and conduct underlying a prior Federal prosecution is not in violation of the double jeopardy proscription.

Prior to the advent of the Criminal Procedure Law, it was unclear whether New York recognized the dual sovereignties doctrine. True, on several occasions the State prosecution was barred based on the same conduct as a prior Federal prosecution.

However, in each such instance, the later State prosecution was for the same identical Offense as the Federal one, the rule of these cases is codified in Criminal Procedure Law. In addition, the court permitted successive in-State prosecutions for different offenses arising out of the same criminal transaction.

The Legislature, apparently dissatisfied with the Federal formulation, adopted in the Criminal Procedure Law what is generally known as the same transaction test which, in its purest form, prohibits a second prosecution to be based on the same transaction as a former one. However, aware of the pitfalls in so broad a rule, the Legislature followed, and wisely some think, the lead of Model Penal Code and engrafted six exceptions upon it.

The Criminal Procedure Law defines the term criminal transaction as a conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture. The Practice Commentary adds that the term is primarily a factual concept denoting a group of acts or an episode of conduct which gives rise to one or more offenses. An offense is primarily a legal concept, amounting to a violation of a penal provision which occurs upon the commission of a criminal act or transaction. One act or criminal transaction may give rise to several statutory violations of offenses.

While recognizing that conceptually a given conspiracy might not be readily distinguishable from the criminal act which was its objective, the District Attorney claims that the instant case is distinguishable because there is a factual distinction between the acts establishing the conspiracy and the acts establishing the possessory crime. In support of the claim, the District Attorney points to various facts which he claims militate against finding a time and circumstance nexus between the Federal crime and the State charge. However, even assuming that no time and circumstance nexus exists, the argument fails for it may not be doubted that the criminal acts and conduct of the complainants were so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture, thereby satisfying the definition of criminal transaction. Moreover, a similar claim, made by the complainants on appeal from their convictions, was rejected by the Court of Appeals, Second Circuit, which found the evidence sufficient to establish that each complainant played a well-defined role in a highly structured, disciplined and vertical integrated criminal enterprise, and that the part with which each was immediately concerned, was dependent upon the success of the whole. The complainants’ acts and conduct constituted integral parts of a single criminal venture and, thus, a single drug crime transaction within the meaning of Criminal Procedure Law.

The District Attorney’s second claim that the State prosecution is excepted by the criminal law may not prevail. Principally, it is asserted that the crimes of conspiring to distribute narcotics and of criminally possessing the same have substantially different elements and that the conspiracy could have been proven without showing the complainants’ crack possession on December 15, thereby demonstrating, as paragraph requires, that the acts establishing the conspiracy were in the main clearly distinguishable from those establishing the possessory crime. However, as the Appellate Division noted, and appellant concedes, the same possession of the same drugs was among the acts charged and proved and for which a conviction was had. In such circumstances, there is no substance in the claim, hypothetically posited, that the Federal convictions could have been obtained without proof of possession of the drugs.

Similarly wanting in merit is the District Attorney’s third contention that since conspiracy presents a greater potential threat to the public than individual offense. The argument misses the mark however the criminal law does not permit separate prosecutions where one offense is greater or lesser than another. Rather, it requires that the offenses be designed to prevent very different kinds of harm or evil. Clearly, the Federal drug conspiracy laws and the State’s drug crime laws are aimed at the same evil–narcotics trafficking.

The District Attorney argues that criminal law shelters the State prosecution. It runs directly afoul of the determination and is, therefore, rejected.

The law aims to protect the community especially the youth from drug traffickers. If you are intending to pursue a drug crime related lawsuit, call the office of Stephen Bilkis and Associates’ offices all over the metropolitan area and speak with the most reliable Bronx Criminal Lawyers and Bronx Drug Attorneys.

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