United States v. Williams

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4154

JERRY ANTONIO WILLIAMS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CR-97-355-WMN)

Argued: May 7, 1998

Decided: August 27, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by published opinion. Judge Wilkins wrote the opinion, in

which Judge Murnaghan and Senior Judge Butzner joined.

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COUNSEL

ARGUED: Fred Warren Bennett, BENNETT & NATHANS, L.L.P.,

Greenbelt, Maryland, for Appellant. Jamie M. Bennett, Assistant

United States Attorney, Baltimore, Maryland, for Appellee. ON

BRIEF: Walter McCord, Baltimore, Maryland, for Appellant. Lynne

A. Battaglia, United States Attorney, Robert R. Harding, Assistant

United States Attorney, Baltimore, Maryland, for Appellee.

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OPINION

WILKINS, Circuit Judge:

Jerry Antonio Williams appeals an order of the district court deny-

ing his motion to dismiss the indictment against him on double jeop-

ardy grounds. Finding no error, we affirm.

I.

Williams was indicted with numerous others in criminal action

number 96-0458 ("the previous indictment") in the United States Dis-

trict Court for the District of Maryland on charges of conspiracy to

kidnap and murder Elway Williams in aid of racketeering, see 18

U.S.C.A. § 1959(a)(5) (West Supp. 1998); conspiracy to retaliate

against witnesses, see 18 U.S.C.A. #8E8E # 371, 1513(a) (West 1966 &

Supp. 1998); and conspiracy to distribute heroin and cocaine, see 21

U.S.C.A. § 846 (West Supp. 1998). These charges stemmed from

Williams' involvement in the "Jones organization," a narcotics distri-

bution ring in the Baltimore, Maryland area. One of the overt acts of

the alleged conspiracy to retaliate against witnesses was the murder

of John Jones. Williams was convicted of all charges and sentenced

to life imprisonment.

Approximately one week before trial commenced on the previous

indictment, the Government obtained an indictment in criminal action

number 97-0355 ("the current indictment") charging Williams with

conspiracy to commit murder in aid of racketeering, see 18 U.S.C.A.

§ 1959(a)(5); and with murder in aid of racketeering, see 18 U.S.C.A.

§ 1959(a)(1) (West Supp. 1998). Both counts related to the murder of

John Jones. Following his conviction on the charges in the previous

indictment, Williams moved to dismiss the current indictment on dou-

ble jeopardy grounds, maintaining that he had already been prose-

cuted for his participation in the Jones organization generally and for

the murder of John Jones in particular. After the Government dis-

missed the conspiracy count of the current indictment, the district

court denied the motion to dismiss. Williams now appeals.

II.

The Double Jeopardy Clause of the Fifth Amendment provides that

no one shall "be subject for the same offence to be twice put in jeop-

2

ardy of life or limb." U.S. Const. amend. V. Among the protections

provided by this Clause is the assurance that a criminal defendant will

not be subjected to "repeated prosecutions for the same offense."

Oregon v. Kennedy, 456 U.S. 667, 671 (1982). In determining

whether a successive prosecution is for the same offense as a previous

one, the court should apply the test established in Blockburger v.

United States, 284 U.S. 299, 304 (1932). See United States v. Dixon,

509 U.S. 688, 696 (1993). Under the Blockburger standard, succes-

sive prosecutions do not violate the Double Jeopardy Clause if "each

offense contains an element not contained in the other." Dixon, 509

U.S. at 696.

There is no dispute that Blockburger does not prohibit successive

prosecution on the charges related to the murder of Jones in the previ-

ous and current indictments--conspiracy to retaliate against Govern-

ment witnesses and murder in aid of racketeering. See United States

v. Felix, 503 U.S. 378, 387-92 (1992) (holding that the Double Jeop-

ardy Clause does not bar successive prosecutions for a conspiracy and

a substantive offense alleged as an overt act of the conspiracy). Wil-

liams contends, however, that the Blockburger analysis is only the

starting point in assessing a double jeopardy claim. According to Wil-

liams, principles of double jeopardy prohibit his prosecution irrespec-

tive of Blockburger because trial on the current indictment would

require presentation of the same evidence as that used in the previous

trial; the charge of murder in aid of racketeering in the current indict-

ment is a type of lesser-included offense of the charge of conspiracy

to commit murder in aid of racketeering of which Williams has

already been convicted; the Government failed to exercise due dili-

gence; and the previous and current indictments allege the same rack-

eteering enterprise. We address these arguments in turn.

A.

Williams first maintains that a successive prosecution otherwise

permissible under Blockburger is barred if it is based on facts and evi-

dence presented in a previous prosecution. As support for this propo-

sition, Williams relies on Rashad v. Burt, 108 F.3d 677 (6th Cir.

1997), cert. denied, 118 S. Ct. 850 (1998). In Rashad, the Sixth Cir-

cuit held that successive state prosecutions for possession with intent

to deliver narcotics violated the Double Jeopardy Clause regardless of

3

the Blockburger test, concluding that although the drugs on which the

respective prosecutions were based were discovered during separate

searches of the defendant's home and automobile, the possession of

them was part of a single transaction. The court reasoned:

[T]he Blockburger test is insufficient where, as here, the

concern is not multiple charges under separate statutes, but

rather successive prosecutions for conduct that may consti-

tute the same act or transaction. Indeed, multiple charges

that satisfy the Blockburger standard, and thus may properly

be joined in a single prosecution, may nevertheless violate

double jeopardy if prosecuted successively. Jordan v. Com-

monwealth of Virginia, 653 F.2d 870, 873 (4th Cir. 1980)....

... [In this situation, t]he proper standard ... is to ask

whether the actual evidence needed to convict the defendant

in the first trial is the same as the evidence needed to obtain

the second conviction. If the same evidence will serve for

both convictions--irrespective of whether the convictions

are under statutes that satisfy Blockburger's "same ele-

ments" test--the second prosecution is barred by double

jeopardy.

Rashad, 108 F.3d at 679-80. Our decision in Jordan, on which the

Sixth Circuit relied, involved a similar scenario. There, the defendant

was prosecuted twice--first for obtaining a drug by means of a forged

prescription, then for possessing a controlled substance--based on a

single sequence of events in which the defendant obtained a drug with

a forged prescription and then was observed in a parking lot in pos-

session of the drug. See Jordan, 653 F.2d at 871-72. This court held

that the successive prosecutions violated the Double Jeopardy Clause

even though the two charged offenses satisfied Blockburger, reason-

ing that a defendant should "not be required to run essentially the

same gauntlet" twice. Id. at 873.

Based on these decisions, Williams asserts that because trial on the

current indictment would involve presentation of the same facts and

evidence as produced in the previous trial, prosecution is constitution-

ally impermissible. The Supreme Court, however, repeatedly has

rejected the notion that a successive prosecution is barred by the Dou-

4

ble Jeopardy Clause merely because it involves the same transaction

or the same evidence that was the subject of a previous prosecution.

See, e.g., Dixon, 509 U.S. at 705 (noting that while "[t]he collateral-

estoppel effect attributed to the Double Jeopardy Clause may bar a

later prosecution for a separate offense where the Government has

lost an earlier prosecution involving the same facts," nothing in the

Constitution requires the Government to charge all offenses arising

from the same factual predicate in a single prosecution (citation omit-

ted)); Felix, 503 U.S. at 386 (stating that"our precedents hold that a

mere overlap in proof between two prosecutions does not establish a

double jeopardy violation"); Garrett v. United States, 471 U.S. 773,

790 (1985) (observing that the Court has "steadfastly refused to adopt

the `single transaction' view of the Double Jeopardy Clause").

To the extent that our prior decision in Jordan requires a different

result, its holding is clearly undermined by the more recent Supreme

Court decisions in Dixon, Felix, and Garrett. Accordingly, we are not

bound to follow it. See Hoffman v. Hunt, 126 F.3d 575, 584 (4th Cir.

1997) ("A decision of a panel of this court becomes the law of the cir-

cuit and is binding on other panels unless it is overruled by a subse-

quent en banc opinion of this court or a superseding contrary decision

of the Supreme Court." (internal quotation marks omitted)), cert.

denied, 66 U.S.L.W. 3755, 3757 (U.S. May 26, 1998) (No. 97-1322).

And, although Rashad was decided after Dixon, we find its reasoning

to be inconsistent with a wealth of Supreme Court authority and

therefore decline to follow it.

B.

Williams next contends that even if successive prosecutions based

upon the same evidence do not violate the Double Jeopardy Clause,

prosecution on the current indictment nevertheless is constitutionally

impermissible because the current charge of murdering John Jones in

aid of racketeering is "a species of a lesser-included offense" of the

previously charged crime of conspiracy to commit kidnaping and

murder in aid of racketeering. Brief of Appellant at 22 (internal quota-

tion marks omitted) (citing Illinois v. Vitale , 447 U.S. 410, 420-21

(1980)). Williams asserts that because evidence of Jones' murder was

introduced as part of the proof of the racketeering enterprise charged

in the previous indictment, the jury necessarily determined his guilt

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with respect to the murder of Jones, therefore barring reprosecution

for that offense.1

In support of this argument, Williams relies on Harris v.

Oklahoma, 433 U.S. 682 (1977) (per curiam), in which the Supreme

Court held that the Double Jeopardy Clause precluded the State of

Oklahoma from prosecuting a defendant for robbery with a firearm

after convicting him of felony murder, when robbery with a firearm

was the underlying felony. See id. at 682-83. Williams reads Harris

as holding that the Government may not bring a successive prosecu-

tion when a previous conviction rested in part on conduct sought to

be charged in the later prosecution. In Dixon , however, the Court

squarely rejected this reading of Harris. See Dixon, 509 U.S. at 706-

07 (concluding that Harris focused only on the elements of the

offenses charged, not on the conduct underlying the charges). Harris

thus provides no support for Williams' argument.

C.

Williams also argues that the Double Jeopardy Clause bars prose-

cution on the current indictment because the Government failed to

exercise due diligence in charging him with the murder of John Jones.

Williams points out that the Government knew all of the facts neces-

sary to prosecute him on the current indictment prior to trial on the

previous indictment. Under these circumstances, Williams contends,

the Government should have been required to bring all charges

against him in a single proceeding. We disagree.

The Supreme Court has indicated that an exception to the double

jeopardy bar may exist when a state seeks to prosecute a defendant

following a prosecution for a lesser included offense if "the State

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1 Williams' argument is strikingly similar to the position adopted by the

Supreme Court in Grady v. Corbin, 495 U.S. 508, 510 (1990) (holding

"that the Double Jeopardy Clause bars a subsequent prosecution if, to

establish an essential element of an offense charged in that prosecution,

the government will prove conduct that constitutes an offense for which

the defendant has already been prosecuted"). Grady, however, has been

overruled. See Dixon, 509 U.S. at 703-12 (describing Grady as "wrong

in principle" and "unstable in application").

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[was] unable to proceed on the more serious charge at the outset

because the additional facts necessary to sustain that charge [had] not

occurred or [had] not been discovered despite the exercise of due dili-

gence." Brown v. Ohio, 432 U.S. 161, 169 n.7 (1977); see Jeffers v.

United States, 432 U.S. 137, 151-52 (1977) (opinion of Blackmun,

J.). Thereafter, a panel of the Eleventh Circuit stated in dicta that the

inverse of this rule also applies, so that a successive prosecution that

otherwise would be permissible under Blockburger is precluded if, in

the exercise of due diligence, "the government`knew or should have

known of the'" facts necessary to support the second prosecution dur-

ing the first trial. United States v. Reed, 980 F.2d 1568, 1580 (11th

Cir. 1993) (quoting United States v. Boldin, 772 F.2d 719, 732 (11th

Cir. 1985)). Williams urges us to adopt this rule and hence to con-

clude that the Government's lack of diligence forecloses prosecution

on the current indictment.

We decline to follow Reed. In the first place, nothing in Brown or

Jeffers suggests that the potential exception to the double jeopardy bar

identified in those cases would also operate to prohibit a successive

prosecution. Moreover, a subsequent panel of the Eleventh Circuit has

rejected the very argument accepted by the Reed panel:

In the present case the District Court applied the due dili-

gence 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 pre-

clude bringing in a second action any charge which might

have been brought in the first action. Rather, it only pre-

cludes those which must have been brought in the first or be

forever lost. The due diligence doctrine provides an excep-

tion in this latter situation. Thus, it follows, that if the gov-

ernment need not have brought all of its charges in the first

action, there was nothing for it to be diligent about.

United States v. Maza, 983 F.2d 1004, 1008 (11th Cir. 1993).2 We

find this reasoning persuasive.

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2 Maza did not cite Reed. However, Maza did discuss UnitedStates v.

Boldin, 772 F.2d 719, 732 (11th Cir. 1985), on which Reed relied. Maza

rejected as dicta language in Boldin indicating that the Government's

lack of diligence may bar an otherwise permissible successive prosecu-

tion. See Maza, 983 F.2d at 1008 n.8.

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D.

Finally, Williams maintains that prosecution on the current indict-

ment is prohibited by the Double Jeopardy Clause because both the

previous and current indictments charge his involvement in the same

racketeering enterprise. In support of this position, Williams points to

cases holding that a successive prosecution for violation of 18

U.S.C.A. § 1962 (West 1984 & Supp. 1998) is constitutionally per-

missible when either the racketeering enterprise or the pattern of rack-

eteering activity differs from that charged in a previous indictment.

See United States v. Pungitore, 910 F.2d 1084, 1113 (3d Cir. 1990);

United States v. Russotti, 717 F.2d 27, 33 (2d Cir. 1983). These cases

are inapposite, however, because--as Williams concedes--none of

the offenses with which Williams was charged in the previous and

current indictments requires proof of a pattern of racketeering activ-

ity. Accordingly, we decline to reverse the district court on this basis.

III.

For the reasons set forth above, we conclude that the district court

correctly determined that prosecution of Williams on the current

indictment is not barred by the Double Jeopardy Clause. Accordingly,

we affirm.

AFFIRMED

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