Criminal Practice – Two Charges Violated Double Jeopardy

U.S. v. Jones (Lawyers Weekly No. 001-122-17, 17 pp.) (Thacker, J.) No. 15-4763, June 1, 2017; USDC at Lynchburg, Va. (Moon, J.) 4th Cir.

Holding: A defendant who pleaded guilty to a drug conspiracy count in the Eastern District of Virginia cannot be prosecuted in the Western District for a drug conspiracy involving the same two people from the first conspiracy conviction, the 4th Circuit says; in considering successive conspiracy prosecutions, the court must look at the characteristics of the conspiracy – substantive violation, personnel, location, time span and nature and scope – to apply the double jeopardy bar.

Common Elements

The district court recognized the alleged conspiracies involved some of the same co-conspirators working in the same area at the same time to violate the same statute, but concluded the government had identified two distinct conspiracies because the Kirkley Hotel transaction in Lynchburg at issue in the Eastern District concerned a single drug transaction for 17 kilograms of cocaine completed over the course of approximately one month, whereas the Lynchburg conspiracy at issue in the Western District concerned “over 1,000 kilograms of cocaine during a 14-year period.

Defendant has shown that both conspiracies involved him and at least two other people in common, the distribution of cocaine in the Lynchburg area, the same substantive statute and the same time period. As in U.S. v. McHan, 966 F.2d 134 (4th Cir. 1992), the substantial overlap here amounts to a non-frivolous double jeopardy argument, and the burden shifts to the government to demonstrate the existence of two separate conspiracies.

Analyzing our five-factor double jeopardy test, we conclude the government has failed at every turn to prove separate and distinct conspiracies. To the contrary, the government has identified one large conspiracy to traffic cocaine in the Lynchburg area.

In the context of double jeopardy, we look to the degree of overlap not the degree of similarity to determine whether two charges are in reality a single offense. The government could always separate a smaller piece from the larger conspiracy and that smaller piece would look dissimilar to the large piece, which is what it attempted to do here.

Not only has the government failed to distinguish the two conspiracies, but the record amply demonstrates that based upon timing, the Eastern District Kirkley Hotel transaction, arranged through a confidential informant in Richmond, was part and parcel of the Lynchburg conspiracy charged in the Western District. With his drug supply in jeopardy and police close on his tail defendant needed a new source of cocaine. His coconspirator contacted a new drug supplier and found that supply. Defendant willingly provided the money to make the purchase at the Kirkley Hotel to keep the Lynchburg conspiracy afloat. Viewed through this lens, the Kirkley Hotel transaction was not a separate conspiracy but rather an act in furtherance of the large conspiracy charged in the Western District.

Although the government alleged two conspiracies, it has clearly only identified one large-scale conspiracy aimed at obtaining and distributing cocaine.

Reversed and remanded.