A Georgia Intent to Distribute Lawyer said that, the defendant appeals his conviction after trial to a jury for conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C.A. § 846, and to distribute it, in violation of 21 U.S.C.A. § 841(a)(1). This court recently affirmed an earlier conviction of defendant for conspiracy to possess and to distribute heroin. On the present appeal a New York Criminal Lawyer said that defendant contends that the government arbitrarily has carved a single conspiracy to deal in narcotics into separate heroin and cocaine conspiracies in violation of his Fifth Amendment right against twice being placed in jeopardy for the same offense.
A Georgia Heroin Lawyer said that, the government’s proof in the heroin conspiracy trial established that defendants arranged sales of heroin for their cocaine customer a Detective, who unknown to them was an undercover DEA Agent. Co-defendant, who pled guilty, and the Detective testified against defendant in both trials. The government presented to the jury portions of defendant’s own testimony from the heroin conspiracy trial in the trial on the cocaine conspiracy charge. During July 1976, conspiratorial negotiations involving cocaine and heroin possession went on simultaneously. The major events proven in defendant’s trial on the heroin conspiracy charge which we discussed in our earlier opinion affirming that conviction, were also central to the government’s proof against defendant’s in the trial on the cocaine conspiracy charge.
The issue in this case is whether defendant’s claim for double jeopardy should be granted.
The Court said that, to support a claim of double jeopardy, a defendant must show that the two offenses charged are in law and fact the same offense. The test most often used in resolving the question of identity of offenses in double jeopardy analysis is whether proof of the matter set out in a second indictment is admissible as evidence under the first indictment and, if it is, whether a conviction could have been properly sustained on such evidence. Testing whether two alleged conspiracies are in fact the same calls upon us to make an inquiry into the record more detailed than that required with respect to other offenses under the “same evidence” test because, by the nature of the crime the precise bounds of a single conspiracy seldom will be clear from the indictment alone. The gist of the crime of conspiracy and the characteristic which defines its breadth is the unlawful agreement.
A Long Island Criminal Lawyer said as the Supreme Court stated, when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. Thus, to determine whether the government can prosecute a defendant for more than one conspiracy, we must determine whether there was more than one agreement.
In conspiracy cases, proof of the illegal agreement or common purpose is not always clear and frequently may depend on inferences from circumstantial evidence. Applying the usual “same evidence” test in such situations could allow many separate prosecutions in all but the most limited and precise short-term conspiracies. The majority of conspiracies will involve agreements to undertake a series of actions. Prosecutions under 21 U.S.C.A. § 846, the general drug crime conspiracy statute charged in the case at bar and in defendant’s earlier heroin conspiracy trial, present an even greater need for defining the bounds of a conspiracy from an examination of the record than do prosecutions under the general criminal conspiracy statute, 18 U.S.C.A. § 371. While 18 U.S.C.A. § 371 requires proof of an overt act in furtherance of a conspiracy to support a conviction, the Court has held that because the language of 21 U.S.C.A. § 846 and its sister statute, 21 U.S.C.A. § 963 (conspiracy to import), does not refer to an overt act, the government need not allege and prove an overt act to sustain a conviction. An indictment is sufficient if it charges the offense in the words of the statute; therefore, a Section 846 indictment is sufficient if it alleges a conspiracy to distribute drugs, the time during which the conspiracy was operative and the statute allegedly violated, even if it fails to allege or prove any specific overt act in furtherance of the conspiracy. Thus, because a Section 846 indictment may be tightly drawn, the court must look to the record to determine whether constituent elements of the two conspiracies charged indicate that the government has twice placed the defendant in jeopardy.
The Court seeks to determine whether the evidence in the case now on appeal and in the case leading to defendant’s earlier conviction describes a single agreement to deal broadly in drugs or whether it describes two conspiracies, one to deal in cocaine, the other to deal in heroin, sufficiently discrete that separate prosecution does not violate the Double Jeopardy Clause. Our examination of the record focuses upon these elements: (1) time, (2) persons acting as co-conspirators, (3) the statutory offenses charged in the indictments, (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case, and (5) places where the events alleged as part of the conspiracy took place. Obviously, the existence of the same events as crucial parts of the proof of conspiracy in each case cuts across each of these factors and tends to show the existence of a single agreement.
A Suffolk County Criminal Lawyer said the time periods during which each conspiracy allegedly took place are very nearly the same. According to the indictments, the conspiracy with which defendant was charged in his first trial began on or about July 14, 1976, and continued until on or about August 20, 1976. The indictment which resulted in the conviction now on appeal states the period of the conspiracy as “from on or about July 12, 1976, and continuing thereafter until on or about July 29, 1976.” The cocaine conspiracy trial used essentially the same cast of characters as did the heroin conspiracy trial. This identity of actors playing their parts in the same frame of time wove the plot of the heroin negotiations into the cocaine negotiations.
In both indictments, the government charged violations of the same statutes: the general narcotics conspiracy provisions of 21 U.S.C.A. § 846 and the substantive statute, 21 U.S.C.A. § 841(a)(1), which proscribes distribution of a controlled substance. Because this case proceeded under Section 846, it was not mandatory that the indictment charge an overt act. In the indictments in the case at bar and in the earlier heroin conspiracy conviction, the government did allege overt acts as it would have been required to do if the case were proceeding under Section 371. Although the charged overt acts are superfluous, they do serve to describe the offense charged. Therefore, we may examine them for the additional insight they provide into the nature and scope of the allegedly separate illicit agreements which the government seeks to punish. Here, the similarities in the descriptions of the conspiracy charged in each indictment support the existence of a single conspiracy described in two ways rather than the existence of two separate offenses. The heroin indictment charges six overt acts, the cocaine indictment, and seven. A single overt act is common to both indictments: the July 14, 1976, meeting between defendants and two government undercover officers, and DEA Agent Sergeant. The remaining overt acts charged in each indictment were different but the government offered proof of two of them in the record of both cases. The first overt act alleged in the cocaine conspiracy indictment the July 12, 1976, meeting of the defendants with the undercover officer in Clayton County, Georgia was also part of the government’s case against defendant in the heroin conspiracy trial. The second act alleged in the heroin conspiracy indictment defendant’s July 22, 1976, telephone conversation with the undercover officer in which defendant discussed both cocaine and “brown stuff,” or Mexican heroin also was part of the government’s proof in the cocaine conspiracy trial.
The relationship between the overt acts charged in each indictment and the crucial events of each conspiracy which also were important in the other becomes particularly significant when viewed in light of the composite narrative that results from drawing together the major events proven by the government in each case. Except for co-defendants testimony that he contacted heroin “foot soldier” about Turner’s request to buy heroin, the only discussions about heroin took place at meetings whose chief purpose was to negotiate cocaine purchases. As the government accurately observed during the heroin conspiracy trial, the evidence of the July heroin negotiations is inextricably intertwined with evidence of a conspiracy to distribute cocaine. Evidence at the heroin trial showed that after simultaneous negotiations for purchases of heroin and cocaine, defendants sought to get the undercover officer cocaine through Bell at the same time that they sought to find a source to supply him with heroin. In each trial the government’s proof began chronologically with the July 12 contact between conspirators’ defendants and the Detective in Fulton County, Georgia, and the subsequent meeting at the Restaurant. According to the government’s proof, only after the end of July does any significant event involving heroin occur at a time and place which is not also a key time and place for the alleged cocaine conspiracy. While the government did not present in the heroin conspiracy trial evidence of the cocaine negotiations at the Plaza and did not present in the cocaine conspiracy trial evidence of co-defendants dealings to supply the undercover officer with heroin, each of these events grew out of the core agreement between defendants to deal in drugs and the effort to provide the Detective with any narcotic requested. That some defendants dealt primarily with only a single drug does not establish the existence of separate conspiracies where an examination of the factors central to conspiracy shows a degree of coincidence as substantial as in the case at bar.
The evidence discloses that the unlawful agreement pursuant to which the conspirators acted was but a single agreement to deal in drugs. It cannot be separated into dual conspiracies under Section 846 to distribute cocaine and heroin without offending the Double Jeopardy Clause. When the events of the alleged heroin conspiracy are overlaid with those of the cocaine conspiracy, there emerge not two discrete patterns of activity but a single design with the events most important in each case appearing at crucial and common junctures.
Thus, the Court determines that the conspiracy charged in the case at bar is the same conspiracy for which defendant has already been convicted, and therefore the Court held that the Double Jeopardy Clause bars this additional prosecution for this same offense. Accordingly, the judgment of the district court is reversed.
A person cannot be convicted of the same crime for which he was previously convicted on. Contact Stephen Bilkis and Associates for advice and guidance.