FAY, Circuit Judge:
The United States appeals the dismissal of Count Four of its indictment against the Defendant-Appellee, Ralph Maza, charging him with a violation of 21 U.S.C. § 848, the Continuing Criminal Enterprise (CCE) statute. Maza moved for dismissal of this count on the ground that it violated his Fifth Amendment rights under the Double Jeopardy Clause because he previously had been indicted and convicted, in the Southern District of Florida, of a violation of 21 U.S.C. § 846. Section 846, Maza argues, is a lesser included offense of § 848; therefore, Count Four is double jeopardy barred unless the government shows that this second prosecution is based on newly discovered evidence pursuant to the due diligence exception to the double jeopardy rule set out in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and its progeny.
On October 12, 1989, Ralph Maza was arrested at his residence in Miami and officers seized 22 kilograms of cocaine from his garage. Following his arrest Maza confessed that for some period of time he had allowed his garage to be used to store cocaine in exchange for payment of $50 per kilogram.
After "debriefing" by government agents in Tampa, a cooperating defendant, Jones, was sent to assist federal agents conducting Operation Greenback in Miami, a separate investigation. Id. As a part of his cooperation Jones was to assist Operation Greenback agents in locating "various residences and businesses," one of which was "the painter's" house. R2-634-14. Jones identified Maza's house as that of "the painter." It was put under surveillance, and Maza's arrest soon followed. Id. at 13-14.
Maza was then charged in the Southern District of Florida, along with two other defendants,
On July 18, 1990, after his conviction in the Southern District, Maza was indicted in the Middle District of Florida in connection with the on-going investigation of the drug ring there. See Second Superseding Indictment, R1-366. Count Four of this indictment
On February 20, 1991, Maza moved to dismiss Count Four on the ground that his earlier conspiracy conviction barred the CCE charge because it was a lesser included offense of the CCE. Therefore, he argued, to avoid double jeopardy, the government must show that it had new evidence of a separate conspiracy which it could not, through the exercise of due diligence, have discovered at the time of his first prosecution. The crux of his argument is that both charges are based on the same conduct.
In response, the government asserted that it was not relying on the earlier prosecution as it was now charging a conspiracy to import rather than a conspiracy to possess with intent to distribute. The government asserted: "In the case at bar, the government can, and will, establish that the defendant, Maza, was a co-conspirator in the importation of cocaine, a conspiratorial agreement that was not set forth in the [earlier] indictment." R1-561-12-13. The government's response was somewhat ambiguous as to whether the importation conspiracy charged was factually, as well as legally, distinct from that with which Maza had already been charged. It appeared possible that the government was trying to hold Maza liable for an importation conspiracy based on no more than his agreement to store cocaine in his garage.
The District Court ordered an evidentiary hearing on Maza's motion to dismiss, citing precedent of this Circuit holding that where a defendant has made a prima facie showing that double jeopardy would apply the government must present some evidence to show that the second charge is based on "a separate," or "newly discovered," conspiracy. See, e.g., Boldin, 772 F.2d at 731. Although the order for a hearing and the authority cited suggests the District Court found that double jeopardy would bar Count Four unless the government offered evidence of a separate conspiracy, the Court did not so hold. Instead, the court held that our decision in Gonzalez, which limited application of the Supreme Court's opinion in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) to "single act crimes," "disposed of" Maza's argument that the § 846 conspiracy charge was a lesser included offense of the CCE charge. On this basis the court found Count Four was not double jeopardy barred. R1-590-7. Because the court summarily rejected the lesser included offense argument it did not analyze or discuss the government's evidence of a separate conspiracy.
Despite its ruling that this prosecution was not barred by double jeopardy, the District Court thought it was relevant to the resolution of Maza's motion that the prosecutors in both districts "had precisely the same evidence against the defendant...." R1-590-8.
This case requires us to launch into an examination of the Double Jeopardy Clause of the Fifth Amendment, "the decisional law [of which] is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). While these waters are not uncharted, neither is the course easy to follow. The issue raised is whether the Double Jeopardy Clause requires the government to charge, in one proceeding, all of the crimes it has reason to believe a defendant has committed. We find in this case that it does not. Unfortunately, there are no fixed stars to guide us in distinguishing one case from the other — only dim lights — because the resolution depends upon defining what constitutes a "separate conspiracy." This is an endeavor that entails sailing perilously close to the "single transaction" test the Supreme Court has thus far persistently disavowed, even though some form of such a test runs like an invisible current through many of the Court's decisions. In contrast to the difficulties posed by deciding what constitutes a "separate" conspiracy, the due diligence exception is relatively straightforward and so we turn to that issue first.
The due diligence exception was created to permit a second prosecution in those cases in which the Double Jeopardy Clause would otherwise bar it. The exception was articulated in dicta in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) where the Court announced the general rule that the "Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense." Id. at 169, 97 S.Ct. at 2227. In a footnote, however, the Court stated, "[a]n exception [to this rule] may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." Id. at 169 n. 7, 97 S.Ct. at 2227 n. 7.
In the present case the District Court applied the due diligence concept to preclude a second prosecution which he had already decided was not barred by double jeopardy. This is precisely the reverse order of the correct application of the doctrine. The Double Jeopardy Clause does not preclude bringing in a second action any charge which might have been brought in the first action. Rather, it only precludes those which must have been brought in the first or be forever lost. The due diligence doctrine provides an exception in this latter situation. Thus, it follows, that if the government need not have brought all of its charges in the first action, there was nothing for it to be diligent about.
Given the District Court's ruling that this second prosecution did not offend double jeopardy principles, the due diligence exception was incorrectly applied. However, the question remains whether the District Court correctly decided Maza's double jeopardy claim in the first instance. Although the court's analysis is somewhat confusing, we affirm the result. To explain this conclusion we move out of the relatively narrow straits of the exception, into the hazardous waters of double jeopardy analysis itself.
Section 846 and the CCE
We think it is fairly clear that 21 U.S.C. § 846 (conspiracy to possess with
These decisions were not disturbed by the Supreme Court's ruling in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985),
The District Court relied on our opinion in United States v. Gonzalez, 921 F.2d 1530 (11th Cir.1991) to reject Maza's lesser included offense argument because it states that the Supreme Court's decision in Grady "is, by its facts and the facts of the cases it relies upon, limited to single act crimes." Gonzalez, 921 F.2d at 1537-38. However, we also stated that "Garrett remains the proper precedent for double jeopardy analysis" for "complex crimes." Id. As Garrett did not overrule our prior holdings in this area, it was not necessary, as the District Court here thought it was, to apply Grady to determine whether § 846 is a lesser included offense of the CCE.
It is well established that a prior prosecution for a lesser included offense normally bars reprosecution for the greater offense. Brown, 432 U.S. at 169, 97 S.Ct. at 2227. Given that § 846 is a lesser included offense of the CCE, the instant prosecution would seem to be barred unless the government qualifies for the due diligence exception
The Problem of Successive Prosecutions
The Double Jeopardy Clause is interpreted as protecting a number of related, yet distinct interests, not all of which are raised in every case. One of these is protection against successive prosecution. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In this context, the Double Jeopardy Clause reflects concern for finality, for restraint of government overreaching in the form of harassment or coercion, and for the integrity of juries and verdicts. See, e.g., Grady v. Corbin, 495 U.S. at 516-19, 110 S.Ct. at 2090-92; Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225; Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); United States v. Rodriguez, 612 F.2d 906 (5th Cir. 1980) (en banc), aff'd sub nom. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). See also Comment, Twice in Jeopardy, 75 Yale L.J. 262, 278 (1965).
The integrity of our system of justice would be threatened if prosecutors could "shop" for a favorable judge or jury until they found one willing to convict, or until a judge imposed the sentence the prosecutors felt was appropriately severe. It would upset the already delicately balanced equities between the government and a criminal defendant if prosecutors could continue to charge the defendant with the same crime until they perfected their presentation of the evidence with several "rehearsals." Nor would it be desirable for prosecutors to repeatedly charge a defendant out of some illegitimate motive. "[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity...." Green, 355 U.S. at 187, 78 S.Ct. at 223.
Set against these concerns is the government's legitimate interest in apprehending, prosecuting and punishing those who violate the law. Although the Double Jeopardy Clause clearly strikes the balance in favor of the defendant, it should not be construed so restrictively that government is unable to effectively enforce the law. Just as government oppression engenders contempt for justice, so contempt for law is engendered by the system's inability or failure to enforce it. Paradoxically, overemphasizing either set of these opposing values leads to the same evil: a diminished faith in and respect for the legitimacy of the criminal justice system.
The challenge then is to devise a test that enables a court to distinguish when two prosecutions are one too many, so as not to jeopardize that legitimacy. Unfortunately, case law interpreting the Double Jeopardy Clause is often applied without regard to the context in which it arose, i.e. cumulative punishment (or multi-count indictments) versus successive prosecutions. The rather indiscriminate application of rules from one context into another puts at risk many of the interests the Double Jeopardy Clause is intended to protect, as well as the government's ability to punish infractions of the law.
Interpretation of "Same Offence"
The Double Jeopardy Clause provides that no person shall "be subject for
For example, in the leading case, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court articulated the following rule. "[T]he test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. at 182. This statement may be interpreted in at least two ways. First, the emphasis on "proof of a fact" suggests an evidentiary or a "same evidence" test — a test which would to some extent focus on the events, not the charges. See Comment, supra, at 273 n. 52 (identifying Blockburger as a species of a "same evidence" test).
Blockburger has been interpreted, however, to require only a comparison of the elements of the statutes charged. See Grady, 495 U.S. at 521 n. 12, 110 S.Ct. at 2093 n. 12 (indicating that, while Blockburger has been mistakenly referred to as a "same evidence" test, it is actually "concerned solely with the statutory elements of the offenses charged."). This approach has serious shortcomings with respect to the analysis of successive prosecutions such as those considered in Grady because, in this context, the Blockburger rule would be overly restrictive in some cases and not restrictive enough in others. Read literally, the Blockburger rule might be taken to forbid a second prosecution involving a violation of exactly the same law — for example a charge of robbery — notwithstanding that it was based on a different robbery. Clearly, that is neither the result the Court intended nor the meaning of the Double Jeopardy Clause. Double jeopardy was not meant to immunize a defendant from prosecution if he violates the same law again.
Conversely, the Blockburger approach is not restrictive enough when, because of overlapping and duplicative laws, the number of charges which may be leveled at a defendant on a given set of facts is limited principally by the prosecutor's imagination and creativity. By the simple expedient of
This problem may be the one the Court intended to address with the lesser included offense rule laid down in Brown
Thus, there must be an exception to this rule when the second prosecution rests on evidence of a separate offense, though this inquiry comes close to the "single transaction test" which the Supreme Court has "steadfastly refused to adopt." Garrett, 471 U.S. at 790, 105 S.Ct. at 2417. See also Grady, 495 U.S. at 523 n. 15, 110 S.Ct. at
Determining the Existence of a Separate Conspiracy
In this case, the separate crimes charged against Maza are separate conspiracies. Although at times evidence of a separate conspiracy is analyzed under the due diligence exception, see, e.g., Stricklin, 591 F.2d at 1123,
Id. at 154.
Applying these elements to the government's proffer of evidence demonstrates that the CCE violation charged is
Specifically, at the evidentiary hearing the government summarized for the court the information it had received from the cooperating defendant Jones. R2-634-11-15. Undoubtedly, some of this evidence, (i.e. the amount of cocaine seized from Maza's home, Maza's confession, etc.), was offered in and supported Maza's earlier indictment.
Maza suggests that he is being successively prosecuted, under different statutes, for the same act.
Having noted the difference between trying a defendant twice for the same act and trying him twice because he has committed two crimes, there is some merit to the argument that the government should charge a defendant in one proceeding with all of the offenses it believes he has committed.
On the other hand, a rule requiring consolidation of all cases against a defendant, where the cases are pending in different districts, perhaps even different states, poses many difficulties. Furthermore, this situation is often attributable to the fact that the defendant has engaged in widespread, continuous and recurring violations of the law in many jurisdictions. "The government," as an entity, is made up of individuals conducting separate investigations that in many instances overlap. Sharing information from these investigations is often essential to the apprehension of persons who engage in such widespread and continuing criminal conduct. Adopting a rule that required consolidation of every charge against a defendant pending in every district whenever such information was shared would discourage such sharing.
Moreover, outside of the difficult context of inchoate offenses, the rule we follow today does not seem particularly troublesome. For example, double jeopardy has not been held to bar successive trials of an accused serial killer when his victims are found in many jurisdictions. These are simply "different crimes," notwithstanding that they may all be prosecuted as "murder." We think this case is no different. Maza is accused of committing separate criminal acts under separate criminal statutes, and he does not argue that the charges are made in bad faith. Were he to do so, and the evidence supported his claim, we might come to a different conclusion, but on a different legal basis. Furthermore, where the government shows no separate facts on which to base its new prosecution, we might view with a jaundiced eye an attempt to re-try old facts on a new theory. Since that is not the case here, we hold that Count Four should be reinstated.
For the foregoing reasons we vacate the District Court's order dismissing Count Four. Count Four is reinstated and the matter is remanded.
VACATED, REVERSED AND REMANDED.
The language of the Grady opinion suggests that the Supreme Court may have been motivated by the same factor which motivated the court in this case when it held that the government's failure to consolidate the cases against Maza was a failure of "due diligence" that barred further prosecution. See Grady, at 524, 110 S.Ct. at 2095 ("With adequate preparation and foresight, the State could have prosecuted Corbin for the offenses charged in the traffic tickets and the subsequent indictment in a single proceeding, thereby avoiding the double jeopardy question.").