Petition — Chases v. United States

FILED

27-820) DEC Via77 |

MICHAEL PDAK, JR., CLERK

Supreme Court, U. S$. |

t

In The Suprerae Court of The United States

Term, 1977

ALEXANDER BENJAMIN CHASES

Petitioner.

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Barton C. Sheela, Jr.

3104 Fourth Avenue

San Diego, California 92103

Counsel for Petitioner

i

SUBJECT INDEX

INTRODUCTION

OPINION BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT

REASON FOR GRANTING THE WRIT

CONCLUSION

APPENDIX "A" - Opinion of the

Ninth Circuit Court of Appeals

ii

CITATIONS

Cases:

Braverman v. United States,

317 U.S. 49 (1942)

Green v. United States,

335 U.S. 184 (1957)

Palko v. Connecticut,

302 U.S. 318 (1937)

Petite v. United States,

~ 361 U.S. 529 (1970)

United States v. Baxter,

492 F.2d 150 (9th

Cir. 1973)

United States v. Cohen,

197 F.2d 26

Cir. 1952)

United States v. Kissel,

218 G.S. 601 (1910)

United States v. Mallah,

503 F.2d 971 (2d

Cir. 1974)

United States v. Miley,

513 F.2d 119

Cir. 1975)

United States v. Moore,

~ 522 F.20 1068 (9th

Cir. 1975)

Page

7,8,10

13

ll

12

10

7,9

10

iii

United States v. Palermo,

410 F.2d 468 (7th |

Cir. 1969)

United States v. Papa,

533 F.2d 815

Cir. 1976)

United States v. Perez,

489 F.2d 51 (5th

Cir. 1973)

United States v. Tanner,

~ 471 F.2d 128 (4th

Cir. 1972)

United States v. Varelli,

407 F.2d 735 (7th

Cir. 1969)

United States v. Young,

503 F.2d 107

Cir. 1974)

Statutes:

Title 21 United States Code

Section 841

Title 21 United States Code

Section 841(a) (1)

Title 21 United States Code

Section 846

Title 21 United States Code

Section 952

Title 21 United States Code

Section 960

8,10,1i

4,5

4,5

iv

Title 21 United States Code

Section 963

Constitutions:

United States Constitution,

Fifth Amendment

Rules:

Rules of the Supreme Court,

Rule 22(2)

2,5,13

IN THE SUPREME COURT OF THE UNITED STATES

Term, 1977

No.

ALEXANDER BENJAMIN CHASES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Alexander Benjamin

Chases, respectfully prays that a writ of

ceriorari issue to review the judgment of

the United States Court of Appeals for

the Ninth Circuit, entered in the above

case June 24, 1977, amended August 10,

1977, rehearing denied November 7, 1977.

OPINION BELOW

The opinion of the Court of Appeals

of August 10, 1977, is not reported at

this date, but is set forth verbatim in

Appendix "A" at pages 15 through 20.

The Petition for Rehearing and Suggestion

for Rehearing in Banc was denied by

order, without opinion.

JURISDICTION

On June 24, 1977, the Court of

Appeals for the Ninth Circuit entered

judgment affirming the criminal con-

viction of Petitioner for possession of

marijuana with intent to distribute in

violation of 21 U.S.C. Section 841l(a) (1),

amended August 10, 1977, rehearing denied

November 7, 1977. The jurisdiction of

this Court is invoked under Title 28,

United States Code, Section 1254(1), and

Rule 22(2), Rules of the Supreme Court.

QUESTION PRESENTED

Did the Government's prosecution

by multipie indictments, charging

petitioner with involvement in separate

conspiracies although the facts indicated

only a single conspiratorial operation

existed, violate petitioner's rights to

be free from double jeopardy and to receive

due process of law, under the Fifth Amend-

ment.

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provision in-

volved is the Fifth Amendment to the

United States Constitution:

No person shall be held to

answer for a capital, or

otherwise infamous crime,

unless on a presentment or

indictment of a Grand Jury,

except in cases arising ir the

land or naval forces, or in the

Militia, when in actual service

in time of War or public danger;

nor shall any person be subject

for the same offense to be

twice put in jeopardy of life

or limb; nor shall be compelled

in any criminal case to be a

witness against himself, nor

be deprived of life, liberty,

or property, without due

process of law; nor shall

private property be taken for

public use, without just

compensation.

STATEMENT

Petitioner and other defendants were

allegedly engaged in a complex operation

which involved smuggling marijuana

across the Mexican border by plane for

distribution in the United States.

Between October 1975 and March 1976 the

Federal Grand Jury sitting in San Diego,

California, returned ten similar indict-

ments naming approximately forty indi-

viduals and charging conspiracies to

import, to possess with intent to distribute,

and to distribute quantities of mari-

juana [58]. [All page references herein

are to the Clerk's Transcript on Appeal.]

Petitioner was named in four of these

indictments, which charged allegedly

distinct conspiracies during the period

from September 1, 1974, to October 19,

1975 [58].

The first of these four indictments,

No. 751831 returned October 29, 1975,—

VY No. 76-2981 on appeal to the United

States Court of Appeals for the Ninth

Circuit, and the subject of a companion

Petition for Writ of Certiorari now

pending before this Court.

3.

charged a conspiracy to import and

possess marijuana, in violation of 2l

U.S.C. Sections 841, 846, 952, 960, and

963, from September 13, 1975, to October

19, 1975 [58]. Petitioner was named with

co-defendants Edwin C. Oakes, Randolph C.

Perkey, and Charles H. Chappell [58]. The

indictment listed seven overt acts,

reflecting an alleged plan to fly 360

kilos of marijuana to an airstrip known

as "The Cross" [58]. Petitioner was

named in two of the seven overt acts

[58].

The remaining three indictments

naming Petitioner were returned March 18,

1976. Two of these indictments, Nos. 76-

0263 and 76-0269, alleged conspiracy to

import, possess, and distribute marijuana

(21 U.S.C. Sections 841, 846, 952, 960,

and 963) [58-59]. In case no. 76-0263

Petitioner was charged with Oakes,

Antonio Martinez, Raymond Gene Fritz,

Bobbie Lee Rowland, Ken Baker, and eight

others [58]. Petitioner was named in

three of the 66 overt acts. Id. The

conspiracy was alleged to have continued

from February 25, 1975, until July 3l,

1975, and the overt acts reflected

alleged smuggling activity in which 300

kilos of marijuana were flown to an

airstrip near Brawley, California, known

as "The Tower" [58-59].

In case No. 76-0269 Petitioner was

charged with Martinez, Fritz, Rowland,

Baker, and nine others, and was named

as a participant *. two of 129 overt acts

[59]. This conspiracy allegedly lasted

from September 1, 1974, to February 7,

1975, and consisted of smuggling, on five

occasions, approximately 300-kilo loads

of marijuana to "The Tower" airstrip

4.

near Brawley [59]. The overt acts also

reflected two deliveries of approximately

300-kilo loads of marijuana to "The Cross"

airstrip near Blythe, California [59].

Loads of 1,000 kilos were also allegedly

flown to "The Tower" on four occasions,

as well as to two other airstrips [59].

The fourth indictment (No. 76-0270;

No. 76-2902 on appeal and the subject of

this Petition) was returned in two counts

[1-8]. The first count alleged a con-

spiracy from July 1, 1975, to September

12, 1975, in which Petitioner was charged

with conspiracy to import and possess

marijuana in violation of 21 U.S.C.

Sections 841, 846, 952, 960, and 963.

Also charged in Count One were Martinez,

Fritz, Oak@s, Perkey, and Chappell;

Petitioner was named in six of 22 overt

acts describing importation of 369 kilos

of marijuana flown to "The Tower" air-

strip [1-8]. Count Two charged that on

September 12, 1975, Petitioner, Perkey,

and Chappell, aided and abetted by Fritz,

possessed marijuana with intent to distribute

(21 U.S.C. Section 841(a)(1)) [8].

On May 27, 1976, Petitioner moved to

dismiss the indictment, in the instant

case, on the grounds that dividing a

single comprehensive conspiracy into

multiple conspiracies for trial, through

the issuance of separate indictments,

violated the Fifth Amendment's prohibi-

tion against double jeopardy and guar-

antee of due process [64]. Petitioner's

motion was denied on June 7, 1976 [117].

On June 22, 1976, petitioner was

convicted of the conspiracy charged in

Case No. 75-1831 (submitted on stipulated

facts), and was thereafter sentenced to

5.

five years' imprisonment and a five-year

special parole term [113].

On June 29, 1976, Petitioner again

waived his right to trial by jury and the

instant case was submitted on stipulated

facts. Petitioner was found guilty of

the substantive offense charged in Count

Two, and received a sentence of five

years’ imprisonment and a five-year

special parole term, to run concurrently

with the sentence imposed in Case No.

75-1831 [117]. Thereafter, the charges

in Case No. 76-0263, Case No. 76-0269,

and Count One of the indictment in the

instant case were dismissed on the

Government's mot:;on [117].

Petitioner filed notice of appeal in

both Case No. 75-1831 and the instant

case on August 20, 1976 [114]. The Court

of Appeals affirmed both convictions, and

denied petitions for rehearing on Nov-

ember 7, 1977.

REASON FOR GRANTING THE WRIT

The Writ should issue to resolve

Petitioner's claim that the filing of

multiple indictments alleging separate

conspiracies in the face of evidence

demonstrating only a single conspiracy,

resulted in Petitioner being placed

twice in jeopardy for the same offense.

Moreoever, Petitioner further contends

that due process’ guarantee of fairness

is oftended when the government's

charging powers are abused in the

attempt to overwhelm an accused by

successive prosecutions in the manner

demonstrated by the instant case.

6.

ihe task of defining the scope of a

conspiracy "is somewhat akin to des-

cribing an elephant from touch." United

States v. Mallah, 593 F.2d 971, 987 (2d

Cir. 1974), cert. denied, 420 U.S. 995

(1975). However, the governing consti-

tutional principle is that a single

continuing conspiracy, no matter how

diverse its objects, cannot be broken

down into multiple prosecutions. Braverman

v. United States, 317 U.S. 49, 53 (1942).

Where facts indicate that a single,

albeit large, conspiracy exists, but

the government does not possess suffic-

ient evidence to indict all suspected

conspirators under a single indictment,

the government should not be permitted,

consistent with the aforementioned

principle, to fragment its prosecution

so as to try various offenders in

artificially compartmenialized lots,

thereby avoiding the risks of a single

prosecution. United States v. Tanner,

471 F.2d 128, 142 (4th Cir. 1972), cert.

denied, 409 U.S. 949 (1972). Quite

simply, the government may not prosecute

for several conspiracies when, in truth,

there was only one. United States v.

Kissel, 218 U.S. 601, 607 (1510); United

States v. Moore, 522 F.2d 1068, 1078 (9th

Cir. 1975), cert. denied, 423 U.S. 1049

(1976); United States v. Young, 503 F.2d

1072, 1075 (3d Cir. 1974); United States

v. Cohen, 197 F.2d 26, 29 (3d Cir.

1952). To convict an accused severally

for being part of two conspiracies,

when in reality he was only involved in

one overall conspiracy, would be convicting

him of the same crime twice. United

States v. Palermo, 410 F.2d 468, 470 (7th

Cir. 1969).

7.

Agreement is the primary element of

a conspiracy. Braverman v. United

States, supra, 317 U.S. 49; United States

v. Varelli, 407 F.2d 735, 741 (7th Cir.

1969). If there was but one agreement

between the Petitioner and his co-defen-

dants there can be but one conspiracy

charge laid against them. This is true

whether the conspiracy had one objective,

a set of objectives, or an overall ob-

jective to be achieved by multiple {

actions. United States v. Perez, 489

F.2d 51, 62 (5th Cir. 1973), cert. “

denied, 417 U.S. 945 (1973).

In both the instant case, and Cases

No. 76-0263 and 76-0269, deliveries of

approximately 300-kilo loads of marijuana

were allegedly made to "The Tower"

airstrip. The marijuana in each of those

cases was allegedly purchased from

defendant Martinez. Martinez was not

indicted in Case No. 75-1831, and the

airstrip alleged to have been used there

was known as "The Cross." However, in

both the instant case, and Case No.

75-1831, the marijuana was (No. 76-0270),

or would have been (No. 75-1831), brought

in from the same location in Mexico (an

“airstrip called Caborca #3 near Hermo-

sillo" [4, 78]). The destination of the

contraband in No. 75-1831 ("The Cross"

airstrip) was also allegedly used in

Case No. 76-0269. The quantity of marijuana

in Case No. 75-1831 (360 kilos) was

almost identical to that in the instant

case (369 kilos). In addition, there was 4

evidence in Case No. 75-1831 that defen-

dant Oakes had told undercover Agent i

Farnan that it was “their goal to make

two or three trips per week until all

concerned had made $100,000 tax-free"

[78]. Given that goal, it is just as

8.

logical to assume that defendants had

been in pursuit of it since September l,

1974, as it is to propose that suddenly,

on September 13, 1975, they decided to

set a new goal and embark upon a separate

and distinct criminal enterprise.

Analysis of the facts (i.e., the

scope of the conspiracy(s) charged)

alleged in each of the four cases leads

to the conclusion that if conspiracy

existed it was but a single conspiracy.

It is of little significance that the

evidence to be adduced at each trial

would be different. The efficacy of the

"same evidence test," used to determine

questions of double jeopardy, is open to

question in narcotics conspiracy cases.

United States v. Papa, 533 F.2d 815, 820

(2d Cir. 1976). Due to the government's

power to select the overt acts charged in

each indictment, prosecutorial discretion

may result in a single conspiracy's being

capable of proof in several prosecutions

requiring different evidence for convic-

tion. United States v. Papa, supra, 533

F.2d at 820; see United States v. Mallah,

supra, 503 F.2d at 985. This is pre-

cisely the reason for the rule that the

government is not free to arbitrarily

decide whether there is one agreement or

several. If there is but one conspiracy

it must be charged as such.

In order to conceptualize and link

up the various facets of large-scale

conspiraices, courts have yesorted to

various structural analogies. For example,

in a “chain conspiracy" the government is

not required to show that individuals at

one level had dealings beyond those at

the next. Sufficient proof of a single

conspiracy is established where the

9.

success of certain defendants" indepen-

dent ventures is shown to have been

dependent upon the success of the entire

"chain". United States v. Miley, 513

F.2d 1191, 1206 (2d Cir. 1975). Like-

wise, in a "wheel conspiracy," although

it is necessary to provide a "rim"

binding the entire scheme into a unified

operation so as to refute the appearance

of separate and distinct "spoke conspir-

acies," in order to "rim the wheel" the

government is not required to prove

direct contact and connivance between all

of the parties. See United States v.

Baxter, 492 F.2d 150 (9th Cir. 1973). In

many cases the aforestated analogies

serve to bring into focus the true nature

of a conspiratrial endevor. In others,

measurement of the character and scope of

the conspiracy is impaired by efforts to

mold the conspiracy into any one of

"today's galaxy of mechanical, molecular

or atomic forms." United States v.

Perez, supra, 489 F.2d at 59 n.1l.

Whatever method is chosen to decipher

the conduct involved, the central ques-

tion remains, "[I]s there a common contin-

uing objective of the parties, is there a

single offense despite the existence of

diverse ways and means used to accomplish

it?" Braverman v. United States, supra,

317 U.S. at 52.

If an agreement contemplates a con-

tinuing scheme of activity, that is

dependant fipon continuous cooperation

among the conspirators, then "it is a

perversion of natural thought and of

natural language” to call it a series of

distinct conspiracies rather than a

single conspiracy. United States v.

10. ;

Kissel, supra, 218 U.S. at 607; United

States v. Perez, supra, 489 F.2d at 62;

Castes Paves v. Palermo, supra, 410 F.2d

at 470.

In order to secure the outcome of

its prosecution of Petitioner, the Govern-

ment sliced a single venture unified by

a consistent objective, both vertically

and horizontally, into disparate segments.

A series of events (i.e., as shown by the

overt acts alleged in the various

indictments) extending from September l,

1974, to October 19, 1975, was subdivided

into four time periods in an effort to

establish four separate and distinct

conspiraices. Petitioner objected to

this subdivision, contrary to the opinion

expressed by the Court of Appeals (see

Appendix "A" at 19 ), in the Motion to

Dismiss denied by the District Court on

June 7, 1976. Thereafter, Petitioner was

faced with the task of defending against

charges which represented mere fragments

of the complex operation investigated by

the Grand Jury, and proceeded to trial

in the instant case after he had already

been convicted in Case No. 75-1831 on

charges representing another fragment of

the same overall operation.

Additionally, the government's

subdivision of the smuggling operation

into separate conspiracies not only

placed Petitioner severally in jeopardy

for the same offense, but constituted a

violation of his constitutional right to

due process of law. A series of prose-

cutions may be recognized as fundamentally

unfair if the state is simply “attempting

to wear down the accused by a multitude

of cases with accumulated trials." Palko

v. Connecticut, 302 U.S. 318, 328 (1937).

ll.

This Court, in Petite v. United

States, 361 U.S. 529 (1970), was advised

by federal prosecutors that it was the

policy of the federal government

"[t]hat several offenses

arising out of a single trans-

action should be alleged and

tried together and should not

be made the basis of multiple

prosecutions, a policy dictated

by considerations of both

fairness to defendants and of

efficient and orderly law

enforcement."

When this policy is disregarded, and

where, as here, the government is allowed

the advantage (analogous to forum-shopping)

gained by slicing up indictments and

meting out the pieces to different judges,

the danger arises that a conviction will

be secured simply through confusion of

the issues and the consumption of an

accused's energies and resources by

multiple trials.

Petitioner has been convicted of

only one conspiracy charge and one sub-

stantive offense; all other charges have

been dismissed with prejudice. However,

the Court of Appeals’ judgment that the

subsequent dismissals “effectively elim-

inated any danger or risk of successive

prosecution for the same crime" (see

Appendix "A" at 18), misses the point.

Although Petitioner was not convicted of

more than one conspiracy “fragment” he

was nevertheless tried or threatened

with trial for more than one. Faced

with four successive prosecutions, Pet-

itioner realized that any possible

benefit resulting from initial acquittal (s)

12.

would be overbalanced by a single later

conviction and the sanctions imposed

therein. In this light, Petitioner's

stipulated fact trials appear as nothing

more than slow pleas of guilty. In

Green v. United States, 335 U.S. 184,

(1957) this Court observed:

"(T]hat the State with all its

resources and power should not

be allowed to make repeated

attempts to convict an indi-

vidual 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, as well

as enhancing the possibility

that even though innocent he

may be found guilty."

Green v. United States, 355 U.S. 184

T1957) .

The aforestated considerations

demonstrate that Petitioner's Fifth

Amendment rights, to be free from

double jeopardy, and to receive a fair

trial as mandated by due process, were

denied to him by the Government's abuse

of its charging power.

CONCLUSION

For the foregoing reasons, Peti-

tioner Alexander Benjamin Chases respect-

fully prays that a writ of certiorari

13.

issue to review the judgment of the

United States Court of Appeals for the

Ninth Circuit in this case.

Dated: December 1, 1977

Respectfully submitted,

arton

Victoria Sleeth,

Certified Legal Intern

14.

eT OE ee ee a

APPENDIX

"A"

Amended August 10, 1977

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Alexander Benjamin CHASES,

Defendant-Appellant.

United States Court of Appeals,

Ninth Circuit.

June 24, 1977.

Defendant was convicted before the

United States District Court for the

Southern District of California, Gordon

Thompson, Jr., J., of possession of

marijuana with intent to distribute,

and he appealed. The Court of Appeals

held that: (1) although defendant had

been named in four separate indictments,

he was not placed in double jeopardy on

theory that indictments each arose out

of same episode or transaction; (2)

government efforts to prosecute defen-

dant for related offenses in successive

trials was not fundamentally unfair

amounting to impermissible "harassment"

violative of due process; and (3)

defendant's claim that filing of a

series of indictments allegedly arising

out of same episode or transaction

violated his speedy trial rights was

groundless.

Affirmed.

15.

1. CRIMINAL LAW. 200(6)

Although defendant had been

named in four separate indictments, he

was not placed in double jeopardy on

theory that indictments each arose out

of same episode or transaction, since

defendant had been prosecuted for and

convicted of only two crimes, that is,

conspiracy to import and possess mari-

juana with intent to distribute and

possession of marijuana with intent to

distribute, and all other charges and

indictments had been dismissed with

prejudice. Comprehensive Drug Abuse

Prevention and Control Act of 1970,

§ 40l(a) (1), 21 U.S.C.A. § 841 (a) (1);

U.S.C.A.Const.Amends. 5, 6.

2. CRIMINAL LAW 200(6)

Conspiracy and possession of mari-

juana convictions implicated no double

jeopardy principles, since conspiracy to

commit an illegal act, that is, the

substantive offense, are separate and

distinct offenses. Comprehensive Drug

Abuse Prevention and Control Act of 1970,

§40l(a) (1), 21 U.S.C.A. § 841 (a) (1);

U.S.C.A.Const.Amends. 5, 6.

3. CONSTITUTIONAL LAW 257

Government efforts to prosecute

defendant for related offenses in succes-

sive trials was not fundamentally unfair

amounting to impermissible "harassment"

violative of due process, since govern-

ment could reasonably conclude at

indicting stage that separate and distinct

conspiracies existed thus vitiating any

claim of bad faith multiplicity or

harassment and defendant never moved to

con3o0lidate the four separate cases

against him and, after his conviction

on one conspiracy charge, he failed to

move for dismissal of remaining

16.

conspiracy charges on double jeopardy

grounds. U.S.C.A. Const. Amends. 4, 5.

4. CRIMINAL LAW 573

Defendant's claim that filing of a

series of indictments allegedly each

arising out of same episode or trans-

action violated his speedy trial rights

was groundless, where trial came 100

days after arraignment and thus delay,

if any, was negligible, defendant never

sought an earlier trial and defendant

did not even seriously allege, let alone

establish, any prejudice caused by the

timing of his trial. U.S.C.A.Const.

Amend. 6.

Appeal from the United States Dis-

trict Court for the Southern District

of California.

Before CLARK, Justice,* and TRASK

and WALLACE, Circuit Judges.

PER CURIAM:

Chases was convicted after a court

trial on stipulated facts of possession

of marijuana with intent to distribute

in violation of 21 U.S.C. §84l(a) (1).

On appeal, he contends that the filing

of a series of indictments, “each arising

out of the same episode or transaction,"

* Associate Justice Tom C. Clark, United

States Supreme Court (Ret.), sitting by

designation. Justice Clark concurred in

the result after oral argument but did

not vote on the disposition due to his

untimely death.

17.

violated the double jeopardy, due process

and speedy trial clauses of the Fifth

and Sixth Amendments. We affirm.

[1,2] The double jeopardy argument

is without merit. Although named in

four separate indictments, Chases was

prosecuted for and convicted of only

two crimes: conspiracy to import and

possess marijuana with intent to dis-

tribute (affirmed today in the com-

panion case of United States v. Chases,

F.2d ), and possession of mari-

Juana with intent to distribute (the

conviction challenged on this appeal).

On the government's post-confictions

motion, all other charges and indict-

ments--including the conspiracy count in

the two count indictment giving rise to

the confiction challenged here were dis-

missed with prejudice. The conspiracy

and possession convictions clearly impli-

cate no double jeopardy principles. Con-

spiracy to commit an illegal act and the

commission of that act--the substantive

offense--are separate and distinct

offenses. E.g., Callanan v. United

States, 364 U.S. 587, 81 S.Ct. 321, 5

L.Ed.2d 312 (1961); Pereira v. United

States, 347 U.S. 1, 74 S.Ct. 358, 98

L.Ed. 435 (1954); Pinkerton v. United

States, 328 U.S. 640, 66 S.Ct. 1180, 90

L.Ed. 1489 (1946). Further, the dis-

missal with prejudice of all other

conspiracy charges leveled against

Chases effectively eliminated any danger

or risk of successive prosecutions for

the same crime.

[3] Chases' due process argument

is that, even assuming no double jeopardy

violation, government efforts to prosecute

18.

ae neem =~ —e

him for related offenses in successive

trials is fundamentally unfair and

amounts to impermissible "harassment."

In this regard we stated in United

States v. Ingman, 541 F.2d 1329 (9th

Cir. 1976):

We note that determining

whether to indict for a single con-

spiracy or for separate ones requires

the Government to make delicate

judgments. When separate trials

are sought on the theory that there

are multiple conspiracies involving

disparate individuals with some

interrelationships, charges of bad

faith multiplicity or pleas of

double jeopardy are likely to be

raised on appeal. On the other

hand, the Supreme Court, and the

lower federal courts, have dis-

approved the practice of trying

different offenses involving a

number of defendants at one trial.

Id. at 1331 (citations omitted). We

believe that the government could rea-

sonably conclude at the indicting stage

of the prosecution that separate and

distinct conspiracies existed. The

reasonableness of that conclusion

vitiates any claim of bad faith multi-

plicity or harassment. See id. We

are reinforced in our holding by Chases'

own conduct. He never moved to consoli-

date the four separate cases against him.

Likewise, after his conviction on one

conspiracy charge, he failed to move for

a dismissal of the remaining conspiracy

charges on double jeopardy grounds. It

was on the government's motion that

the cases were dismissed.

19.

[4] The speedy trial issue (consti-

tutional and statutory) is also groundless.

Chases' trial came 100 days after his

arraignment. Thus, delay, if any, was

negligible. Further, Chases never sought

an earlier trial. Finally, he does not

even seriously allege, let alone estab-

lish, any prejudice caused by the timing

of his trial. See Barker v. Wingo, 407

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972); 18 U.S.C. §§ 3161 et seg.

AFFIRMED.

20.