Petition — Stricklin v. United States

Bupreme Court, U. & >

FILED

AUG 25 1979

|_MIGHAB RODAK, JR., ELERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

ae 9-307

JACK MOODY STRICKLIN, JR.,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOSEPH (SIB) ABRAHAM, JR.

CHARLES LOUIS ROBERTS,

Attorneys for Petitioner

505 Caples Building

El Paso, Texas 79901

SCOFIELDS' QUALITY PRINTERS. P_% BOX 53096.N O. LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page

LIES POT TT ETTE TEE TEEEEE TE i

Ek Vics eb hb esses deteccceres ii

Citations to Opinions Below ..............eee08: 1

EE EI POPPE TE TELE ERE EE 2

EE ceca bch ae dccdeccsccrcccceccs 3

Constitutional and Statutory Provisions In-

EERE ih osu sc beeteeecsccs cocees 3

Nee ee Kies see esscces cess. 4

Reasons Why the Writ Should be Granted ....... 16

I cs ces cc chester vaccescce 26

snes ccscsesesces 27

Appendix A — Order of the United States Dis-

ae eared oe ccsece cece la

Appendix B — Opinion of the United States

Court of Appeals for the Fifth Circuit, Unit-

ed States vs. Stricklin, 591 F.2d 1112 (1979) ..... 8a

Appendix C — Order of the United States

Court of Appeals for the Fifth Circuit

Denying Rehearing En Banc ..............-- 36a

Appendix D — Affidavit of Petitioner .......... 37a

Appendix E — Affidavit of Former Counsel ....39a

Appendix F — Affidavit of Present Counsel ....41a

ii

TABLE OF AUTHORITIES

CASES: Page

Abney v. United States, 431 U.S. 651 (1977) ’.. 19,23,24

Cohen v. Beneficial Loan Corp., 337 U.S.541(1949) ..23,25

Mann v. United States, 113 U.S. App. D.C. 27,

304 F.2d 394, cert. denied, 371 U.S. 896

RROUEE Aleks tase centwMiniensACWeiviss ocbubeas 20

Schacht v. United States, 398 U.S. 58 (1970) .......... 3-

Schlude v. Commissioner, 372 U.S. 128 (1963) ....... 19

Taglianetti v. United States, 394 U.S. 316 (1969) ...... 3

United States v. Inmon, 568 F.2d 326 (3rd Cir.

i ROPES ERED ERA REIT! < SP an oe eae 1S

United States v. MacDonald, 435 U.S. 850(1978) . 18,19,

20,22-25

United States v. Stricklin, 591 F.2d 1112 (1979) ... passim

United States v. Stricklin, 598 F.2d 620 (1979) ........ 2

Wilkinson v. United States, 365 U.S. 399 (1961) ..... 19

STATUTES AND RULES:

18 U.S.C. §§3161-3174 (1976) 2.0... ccc cc ccc cece 19

ARP, ME ers VU is ea ks els. 3

Be Ma ENO. ua di ces sbcdamii ceil 2,4,18,22

iii

TABLE OF AUTHORITIES (Continued)

OTHER SOURCES:

Steinberg, 68 J. Crim. L.C. §P.S. 1 (1977) ......... 20

United States Constitution, Amendment VI .... 3,4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

JACK MOODY STRICKLIN, JR.,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The Petitioner, JACK MOODY STRICKLIN, JR.,

respectfully prays a Writ of Certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Fifth Circuit entered in this proceed-

ing on March 23, 1979.

CITATIONS TO OPINIONS BELOW

The United States District Court for the Western

4;

2

District of Texas, El Paso Division, United States Dis-

trict Judge John H. Wood presiding, entered its Order on

September 27, 1977, reproduced herein as Appendix A.

This Order was made the subject of an Interlocutory

Appeal under 28 U.S.C. 1291 to the United States

Court of Appeals for the Fifth Circuit. The Court of

Appeals reversed in part and affirmed in part on March

23, 1979. This opinion was reported as United States v.

Stricklin, 591 F.2d 1112 (1979), and reproduced herein as

Appendix B. The Court of Appeals subsequently de-

nied Petitioner STRICKLIN’s Petition for Rehearing

on June 22, 1979. This result was reported as United

States v. Stricklin, 598 F.2d 620 (1979), and reproduced

herein as Appendix C.

JURISDICTION

The opinion of the Court of Appeals, holding that it

lacked jurisdiction to consider that issue made the sub-

ject of this Petition. The Court of Appeals denied the

Petition for Rehearing En Banc on June 22, 1979. This

Petition was due to be filed in this Court on July 22,

1979, but was untimely filed after that date. In this re-

gard, Petitioner moves this Court for permission to file

his Petition for Certiorari out of time. For grounds, the

Petitioner would show this Court that (1) his original

retained Counsel died during the pendency of Peti-

tioner’s appeal to the United States Court of Appeals

for the Fifth Circuit; (2) the brother of the deceased

Counsel assumed responsibility for the appeal and

promised Petitioner that he would file a Petition for

3

Certiorari; (3) Petitioner was not informed as to the

time limit under Supreme Court Rule 22; and (4) upon

discovery that Petition was not timely filed, Petitioner

discharged this Counsel and retained new Counsel

who promptly prepared this Petition. In support of

these facts, Petitioner has forwarded to this Court the

affidavits of himself, former Counsel, and present

Counsel, reproduced herein as Appendices D, E and F.

Whereupon, the Petitioner prays that this Court con-

sider his Petition, Schacht v. United States, 398 U.S. 58, 63-

64 (1970); Taglianetti v. United States, 394 U.S. 316, n.1

(1969). Jurisdiction of this Court is invoked under the

authority of the above cases, 28 U.S.C. §1254, and

Supreme Court Rule 22.

QUESTION PRESENTED

Whether this Petitioner must undergo Indict-

ment, bond, trial, possible conviction and pos-

sible confinement before he may seek

Appellate review of his contention that the

charges he is facing are identical with pre-

vious charges lodged against him in another

District which were dismissed with prejudice

because of Constitutional Speedy Trial viola-

tions.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The United States Constitution, Amendment VI

provides in pertinent part:

4

In all criminal prosecutions, the accused shall

enjoy the right toaspeedy and public trial. . .

2. 28 U.S.C. §1291 provides in pertinent part:

The Courts of Appeals shall have jurisdiction

of Appeals from all final decisions of the Dis-

trict Courts of the United States, ...

STATEMENT OF THE CASE

Commenting on this cause, the United States Court

of Appeals for the Fifth Circuit observed that: “Close

analysis of this case reveals that we are actually con-

fronted with an unusual and complex blend of double

jeopardy and speedy trial problems,” United States v.

Stricklin, 591 F.2d 1112, 1119-1120 (Sth Cir. 1979). In

order to insure against needless complexity or con-

fusion, the Petitioner will set forth the underlying facts

of this cause in chronological order, beginning with

those events occurring before the instant prosecution

and ending with the treatment of the issues on appeal

by the Fifth Circuit.

A. The Tennessee Indictment.

This Petitioner was indicted in the United States Dis-

trict Court for the Middle District of Tennessee, Nash-

ville Division, on August 23, 1973, (RI 66, et seq.). This

two-count indictment charged that:

5

From on or about December 1970, and con-

tinuously thereafter up to and including the

date of the filing of this indictment, within the

Middle District of Tennessee and elsewhere,

THOMAS RAYBURN PITT, ... JACK

STRICKLAND, ... DAVID BLOTT,

MICHAEL HALLIDAY, ... the defendants

herein and others unknown to the grand jury,

unlawfully, wilfully and knowingly did combine, con-

spire, confederate and agree together and with each other

to violate prior to May 1, 1971, Section 176(a) of Title

21, United States Code, and onand after May 1, 1971,

to violate Sections 841(a)(1) and 846 of Title 21, Unit-

ed States Code. (RI 66-67; Emphasis supplied)

and further charged;

From on or about December 1970 and con-

tinuously thereafter up to and including the

date of the filing of this indictment, within the

Middle District of Tennessee and elsewhere,

THOMAS RAYBURN PITT, ... JACK

STRICKLAND, ... DAVID BLOTT,

MICHAEL HALLIDAY, ... the defendants

herein and others unknown to the grand jury,

knowingly and intentionally did unlawfully

possess and distribute with intent to dis-

tribute a controlled substance, to wit, quanti-

ties of marihuana, a Schedule I non-narcotic

controlled substance.

Prior to May 1, 1971, in violation of Title 21,

6

United States Code, Section 176(a) and Title

18, United States Code, Section 2, and on and

after May 1, 1971, in violation of Title 21,

United States Code, Section 841(a)(1) and

Title 18, United States Code, Section 2. (RI 68)

Upon the District Court’s order, the United States

filed a Bill of Particulars which elaborated on the locus

criminis of the indictment, “Tennessee and elsewhere,”

RI 54, to include “El Paso, Texas;

Murfreesboro, Tennessee; Lebanon, Ten-

nessee; Dickson, Tennessee; Atlanta, Geor-

gia; Nashville, Tennessee; Toronto, Canada;

Louisville, Kentucky; Knoxville, Tennessee;

Winchester, Tennessee; Orlando, Florida;

Cookeville, Tennessee; and Tucson, Arizona,

...”” Sticklin, Supra., at 1115; RI 54, et seq.

B. The New Mexico Indictment.

During the pendency of the Tennessee indictment,

the Government again indicted this Petitioner in New

Mexico on August 29, 1974. This indictment charged

that:

On or about the 18th day of August, 1974,

in the State and District of New Mexico, the

defendants, JACK M. STRICKLIN, JR., ...

unlawfully, knowingly and intentionally did

possess with intent to distribute a quantity of

,

7

marihuana, a Schedule I controlled sub-

stance.

In violation of 21 USC 841(a)(1), and 18

USC 2. (RI 77)

and further charged that:

On or about August 18, 1974, in the State

and District of New Mexico and elsewhere,

JACK M. STRICKLIN, JR., ... the defend-

ants herein, wilfully and knowingly did com-

bine, conspire, and confederate and agree to-

gether, and with each other, and with diverse

other persons whose names are to the Grand

Jury unknown, to possess with intent to dis-

tribute a quantity of marihuana, a Schedule I

controlled substance, contrary to 21 USC

841(a) and in violation of 21 USC 841(a). (RI

77).

On March 14, 1975, the Petitioner was convicted on

both counts of the New Mexico indictment, Stricklin,

Supra., at 1117. The Petitioner received a five year

prison sentence which he began serving.

C. The Dismissal of the Tennessee Indictment.

On March 18, 1975, the Tennessee indictment was

dismissed with prejudice by the District Court in

Tennessee in a memorandum citing “the govern-

ment'’s failure to grant Stricklin a speedy trial in accord

8

with his constitutional right under the Sixth Amend-

ment.” Stricklin, Supra., at 1117. The Government de-

clined to appeal this ruling which then became final.

D. The Texas Indictment.

While the Petitioner was serving the sentence result-

ing from the New Mexico indictment, he was indicted

by the United States for the third time. This indict-

ment, returned on June 16, 1977, charged:

That beginning on or before September,

1971, and continuing unti! on or about June

24, 1976, in the Western District of Texas, the

States of New Mexico, Georgia, and

Tennessee, the Republic of Mexico, and divers

other places to the grand jurors unknown,

JACK MOODY STRICKLIN, JR., the

Defendant herein, did combine, conspire, con-

federate and agree with David Blott, Ron

Allen Chappell, Alberto Corral, Mike Hali-

day, Donald Johnson, Michael Joseph Log-

gins, Albert Wayne McClenney, Tim Melan-

con, George Murphy, Wanda J. Murphy,

Thomas Rayburn Pitt, Thurman Wiley

Rogers, and Arthur Neill Strickler named

herein as coconspirators but not as defend-

ants (and with other persons to the grand

jurors unknown), unlawfully, wilfully and

knowingly to import marijuana, (RI 4).

and further charged:

9

That on or about July 18, 1972, in the

Western District of Texas, Defendant JACK

MOODY STRICKLIN, JR. did unlawfully,

knowingly and intentionally import and cause

to be imported a quantity of marijuana, a

Schedule I controlled substance, into the Unit-

ed on from the Republic of Mexico, . . . (RI

5-6).

and further charged:

That beginning on or before September,

1971, and continuing until on or about June

24, 1976, in the Western District of Texas, the

states of New Mexico, Georgia, and

Tennessee, the Republic of Mexico, and divers

other places to the grand jurors unknown,

JACK MOODY STRICKLIN, JR., the

Defendant herein, did combine, conspire, con-

federate and agree with David Blott, Ron

Allen Chappell, Alberto Corral, Mike Hali-

day, Donald Johnson, Michael Joseph Log-

gins, Albert Wayne McClenney, Tim Melan-

con, George Murphy, Wanda J. Murphy,

Thomas Rayburn Pitt, Thurman Wiley

Rogers, and Arthur Neill Strickler, named

herein as coconspirators but not as defend-

ants (and with other persons to the grand

jurors unknown), unlawfully, wilfully and

knowingly to possess marijuana, . . . (RI 6).

and further charged:

10

1. That on or about June 22, 1972, in the

Western District of Texas, George Murphy

(the said George Murphy being named as a

principal but not as a defendant herein), did

unlawfully knowingly and_ intentionally

nossess with intent to distribute a quantity of

marijuana, .. .

2. That Defendant JACK MOODY

STRICKLIN, JR., aided, abetted, counseled,

induced and procured the commission of the

offense alleged above, in violation of Title 18,

United States Code, Section 2. (RI 7).

and further charged:

1. That on or about July 5, 1972, in the

Western District of Texas, George Murphy

(the said George Murphy being named as a

principal but not as a defendant herein), did

unlawfully, knowingly and _ intentionally

possess with intent to distribute a quantity of

marijuana, ...

2. That Defendant JACK MOODY

STRICKLIN, JR., aided, abetted, counseled,

induced and procured the commission of the

offense alleged above, in violation of Title 18,

United States Code, Section 2. (RI 8-9).

and further charged:

11

1. That on or about July 18, 1972, in the

Western District of Texas, Arthur Neill

Strickler (the said Arthur Neill Strickler being

named as a principal but not as a defendant

herein), did unlawfully, knowingly and inten-

tionally possess with intent to distribute a

quantity of marijuana, a Schedule I controlled

substance, in violation of Title 21, United

States Code, Section 841(a)(1).

2. That Defendant JACK MOODY

STRICKLIN, JR., aided, abetted, counseled,

induced and procured the commission of the

offense alleged above, in violation of Title 18,

United States Code, Section 2. (RI 8).

and further charged:

That beginning on or before June 18, 1972,

and continuing until on or about June 24,

1976, in the Western District of Texas; the

District of New Mexico; the Republic of Mex-

ico; Washington, District of Colombia; the

State of North Carolina; the State of Geor-

gia; the State of Minnesota; and other places

to the grand jurors unknown, Defendant

JACK MOODY STRICKLIN, JR. did unlaw-

fully, wilfully and knowingly violate Title 21,

United States Code, Sections 963, 846, and

841, as alleged in Counts One through Six of

this Indictment, which is incorporated herein

by reference, which violations were a part of a

12

continuing series of violations of Sub-

chapters I and II of the Comprehensive Drug

Abuse Controi Act of 1970, undertaken by

Defendant in concert with at least five other

persons with respect to whom the Defendant

occupied a position of organizer, supervisor

and manager, and from which continuing

series of violations Defendant obtained sub-

stantial income and resources, through the

aforesaid activity in the continuing criminal

enterprise, . . . (RI 8-9).

The overt acts in the conspiracy counts of that indict-

ment specifically recited the following occurrences:

8. On or about March, 1973, Donald

Johnson flew an airplane containing a quan-

tity of marijuana from the Republic of Mex-

ico to an area near Magdalena, New Mexico.

9. On or about March, 1973, Defendant

JACK MOODY STRICKLIN, JR., possessed

with intent to distribute a quantity of mari-

juana near Magdalena, New Mexico.

10. On or about November, 1973,

Defendant JACK MOODY STRICKLIN, JR.,

paid Donald Johnson approximately $40,000.

(RI 5).

13

charges were barred by the dismissal with prejudice in

Tennessee and by his conviction in New Mexico. The

Petitioner essentially contended that his Texas charges

were merely recombinations and reworkings of the

conspiracies and substantive acts previously charged in

New Mexico and Tennessee. After a pre-trial hearing

at which the Petitioner introduced numerous docu-

ments and elicited testimony, the Government filed a

superceding indictment. Immediately following this ac-

tion, the District Court overruled all the Petitioner’s

Motions.

E. The Decision of the Fifth Circuit.

Regarding the superceding indictment, the Court of

Appeals commented:

The government's obtaining a new indict-

ment subsequent to the hearing, which

deletes all references to Don Johnson, Tim

Melancon, and the Magdalena. New Mexico,

episode is of no consequence to our finding,

for as we pointed out earlier, the original

indictment was never dismissed. In fact, the

government’s revision of the conspiracy

counts may not bode well for their assertion

that the conspiracies for which they seek to

prosecute in the Texas indictment are clearly

In this Petitioner’s pre-trial Motions, Petitioner

moved to dismiss the conspiracy, continuing enter-

prise, and substantive counts on the grounds that these

distinct from the conspiracies for which

Stricklin has previously been indicted. Strick-

lin, Supra., at 1122.

14

Regarding the conspiracy to import marijuana, the

Court of Appeals affirmed the lower Court, noting that

neither the Tennessee nor the New Mexico indict-

ments dealt with an actual conspiracy to import, Strick-

lin, Supra., at 1122.

Regarding the conspiracy to possess, the Court of

Appeals noted that:

At his double jeopardy hearing, Stricklin

introduced material obtained in a Nevada trial

under the Jenck’s Act. This evidence tends to

show that Stricklin entered into a conspiracy

with Don Johnson and Tim Melancon, two of

the conspirators named in the original Texas

indictment, to import marijuana into the Unit-

ed States after the Tennessee conspiracy was

terminated.2 It appears from the evidence in

the record that two loads of marijuana were

flown to New Mexico from the Republic of

Mexico by Don Johnson and Tim Melancon.

The first load was apparently the load that

was involved in those overt acts taking place in

March and November of 1973, near Magda-

lena, New Mexico, and mentioned in both the

conspiracy to import count and the conspir-

acy to possess with intent to distribute count

of the original Texas indictment. The second

load was seized in New Mexico on August 18,

1974, in Stricklin’s possession; this indict-

ment served as the basis of the New Mexico

15

indictment and conviction. With regard to

that portion of the original Texas indictment

which Stricklin asserts refers to the New

Mexico conspiracy to possess with intent to

distribute for which he was previously con-

victed, Stricklin’s burden of coming forth with

a prima facie nonfrivolous double jeopardy

claim is met. Stricklin, Supra., at 1121-1122.

2 Stricklin asserts that the New Mexico conspiracy was

a different conspiracy than the one with which he was

charged in Tennessee. Even if the New Mexico con-

spiracy had been a continuation of the Tennessee con-

spiracy, further operation of the “old” conspiracy after

being charged with that crime becomes a new offense for

purposes of a double jeopardy claim.

The Court then remanded this matter for further hear-

ings so that the proper standards, United States v. Inmon,

568 F.2d 326 (3rd Cir. 1977), could be applied, Stricklin,

Supra., 1124-1125.

As to the continuing criminal enterprise charges, the

Court of Appeals made a similar disposition, Stricklin,

Supra., at 1124, again utilizing the New Mexico indict-

ment. However, the Court refused to consider the

effect of the Tennessee indictment on the various

charges, reasoning that no jeopardy was attached and

holding that the Court of Appeals had no jurisdiction to

consider the matter in a pre-trial a l ifi

ppeal. Specificall

the Court held: /

We do not reach the question of whether

16

the Texas indictment is barred under the Six-

th Amendment by virtue of charging Strick-

lin with the same crime as charged in the dis-

missed Tennessee indictment. While Abncy es-

tablishes that the denial of a double jeopardy

claim is a final and appealable decision within

the meaning of 28 U.S.C. §1291, there is no

comparable jurisdictional basis on which to

exercise pre-trial review of an indictment

which is potentially barred by Sixth Amend-

ment speedy trial considerations. Stricklin,

Supra., at 1120.

and conc!uded:

... for us to expand appellate jurisdiction to

include the situation where the dismissed

indictment is claimed to bar a subsequent

indictment on speedy trial grounds would be

unwarranted. Stricklin, Supra., at 1121.

The Court of Appeals thus asserted a lack of jurisdic-

tion to consider a pre-trial appeal of those issues posed

by the Tennessee indictment, and it is this specific hold-

ing that the Petitioner questions in this Petition for

Certiorari.

REASONS WHY THE WRIT

SHOULD BE GRANTED

Whether This Petitioner Must Undergo

Indictment, Bond, Trial, Possible Conviction

17

And Possible Confinement Before He May

Seek Appellate Review Of His Contention

That The Charges He Is Facing Are Identical

With Previous Charges Lodged Against Him

In Another District Which Were Dismissed

With Prejudice Because Of Constitutional

Speedy Trial Violations.

Before submitting his reasons justifying Certiorari,

the Petitioner would briefly summarize the facts and

issues involved in the above question, together with

the position he will argue. As related supra., the Peti-

tioner’s indictment in Tennessee ended with a dis-

missal with prejudice on Constitutional speedy trial

grounds. The United States failed to appeal and thus

the decision became final. When the Petitioner was in-

dicted in Texas, he submitted evidence of this prior

Tennessee dismissal together with his prior New Mex-

ico convictions and contended that the Texas charges

were simply reiterations and combinations of the

Tennessee and New Mexico charges and thus were

barred. After the District Court ruled against the

Petitioner, he perfected a pre-trial appeal to the Court

of Appeals, At that level, the Court of Appeals held it

had jurisdiction to consider that part of his appeal

regarding the Petitioner’s New Mexico convictions

since it involved a double jeopardy issue, but the Court

further held that it did not have jurisdiction to consider

that part of the Petitioner’s appeal dealing with his

Tennessee dismissal because it was a speedy trial issue.

It is the Petitioner’s position that a Court of Appeals

18

does have jurisdiction to entertain pre-trial appeals of

that category of speedy trial matters which: (1) involve

a dismissal with prejudice on Constitutional speedy

trial grounds which has become final through appeal or

lack of appeal; and (2) involve a Court proceeding which

‘s collateral in the same sense that a prior jeopardy

proceeding is collateral.

A. This is an Important Question Involving the Jurisdiction of

the Federal Courts.

The holding of the Fifth Circuit outlined above is a

case of first impression. No other Circuit Court has

dealt with this specific problem, neither has this Court.

The Fifth Circuit cited this Court’s opinion in United

States v. MacDonald, 435 U.S. 850 (1978), as controlling

authority, but the precise issue treated in MacDonald

was only:

This case presents the issue whether a

defendant, before trial, may appeal a federal dis-

trict court’s order denying his motion to dis-

miss an indictment because of an alleged viola-

tion of his Sixth Amendment right to a speedy

trial.1 (Footnote Omitted) United States v. Mac-

Donald, 435 U.S. 850 (1978). (Emphasis in

original)

The Supreme Court held that jurisdiction to consider

the issue above was not conferred by 28 U.S.C. 1291.

The Fifth Circuit read this opinion as holding that no

19

pre-trial jurisdiction existed for any speedy trial issue,

regardless of how final or how collateral to the cause

awaiting trial. This Petitioner argues that this holding

is an unwarranted extension, indeed an actual mis-

application of MacDonald, and that a religious applica-

tion of the reasoning set forth by Justice Blackmum in

MacDonald would compell a contrary result. The Peti-

tioner considers this misapplication and misconstruc-

tion of MacDonald to be his major rationale for request-

ing Certiorari,! and will treat this subject separately, in-

fra.

In any case, there can be no argument as to the im-

portance of the issue. This cause involves an issue of

Federal Jurisdiction. The Jurisdiction of the Federal

Courts has historically been an issue of great interest

to this Court, and this interest has often resulted in this

Court granting Certiorari.2

Additionally, the particular area of jurisdiction in-

volved here is important in itself because it is certain to

loom even larger in the future. The sanctions of the

speedy trial act of 1974, 18 U.S.C. §§3161-3174 (1976),

have now come in effect. Since the standards for dem-

onstrating a violation under this act are much less

rigorous than those standards required to demon-

strate Constitutional violations, it is not a flight of fan-

tasy to presuppose that in the future a greater number

of these violations will be established and sanctions

granted. The sanction of dismissal with prejudice is the

1 Wilkinson v. United States, 365 U.S. 399 (1961); Schlude v. Com-

missioner, 372 U.S. 128 (1963).

2 Abney v. United States, 431 U.S. 651, 653 (1977); United States v.

MacDonald, 435 U.S. 850, 854 (1978).

20

prescribed remedy for serious statutory violations,

Steinberg, 68 J. Crim. L.C. § P.S. 1 (1977), as it has been

the required remedy for Constitutional violations,

Stricklin, Supra., at 1120; Mann v. United States, 113 U.S.

App. D.C. 27, 30, 304 F.2d 394, 397, cert. denied, 371

U.S. 896 (1972). However, if this case is any example,

the Government will show no reluctance in attempt-

ing to nullify this remedy by the simple procedure of re-

indicting in a friendlier forum, in another district, in

another division or in another Court within the divi-

sion. Thus, the question facing this Petitioner, whether

a Defendant who has proven his speedy trial claim and

received a remedy fashioned by the Court must wait

through trial and possible post-trial confinement to

seek Appellate enforcement of that remedy, is a ques-

tion which other Defendants will face in increasing

numbers. The Fifth Circuit’s jurisdictional holding in

Stricklin would convert the remedy of dismissai with

prejudice to a mere right to have an Appellate Court

hold some time later that the Appellant should not have

been indicted, required to made bond, tried, convicted,

or imprisoned. It is this question of Federal Jurisdiction

that the Petitioner asks this Court to consider.

B. The Fifth Circuit's Holding in Stricklin misapplied and mis-

construed the reasoning of this Court in MacDonald.

The Fifth Circuit pointedly cited MacDonald as the

primary authority supporting its holding that it has no

jurisdiction:

21

We do not reach the question of whether

the Texas indictment is barred under the Six-

th Amendment by virtue of charging Strick-

lin with the same crime as charged in the dis-

missed Tennessee indictment. While Abney

establishes that the denial of a double jeop-

ardy claim is a final and appealable decision

within the meaning of 28 U.S.C. §1291, there

is no comparable jurisdictional basis on which

to exercise pre-trial review of an indictment

which is potentially barred by Sixth Amend-

ment speedy trial considerations. The

Supreme Court recently held in United States v.

MacDonald, (Citation Omitted), that a defend-

ant may not, before trial, appeal a federal dis-

trict court’s order denying his motion to dis-

miss an indictment because of an alleged vio-

lation of his Sixth Amendment right to a

speedy trial. (Citations Omitted.) Stricklin’s

situation is different from that found in Mac-

Donald since the possible violation of his rights

lies in his being reindicted on the same charges

which were the subject of an indictment

already dismissed on speedy trial grounds

rather than in his being brought to trial on the

first indictment, as in MacDonald. The basic

consideration in both cases, however, is

whether the defendants’ speedy tria! rights

will be violated by the impending prosecu-

tions, and for us to expand appellate jurisdic-

tion to include the situation where the dis-

22

missed indictment is claimed to bar a subse-

quent indictment on speedy trial grounds

would be unwarranted. Stricklin, Supra., at

1120-1121.

Thus, the Fifth Circuit held that MacDonald stands for

the proposition that no speedy trial issue, however

final or collateral, can be the subject of a pre-trial

appeal. It is the Petitioner's contention that if the

reasoning set forth in MacDonald were faithfully ap-

plied to Stricklin, a contrary result would be required.

In MacDonald, Justice Blackmum, writing for a unani-

mous Court, set forth several legal and practical con-

siderations as the bases for the Court’s holding that a

denial of a claim of a speedy trial violation could not be

appealed before trial under 28 U.S.C. §1291. Looking at

these considerations, we find the following:

1. FINALITY.

This Court in MacDoneld first considered the finality

of the decision: -

The application to the instant case of the

principles enunciated in the above precedents

is straightforward. (Footnote Omitted) Like

the (435 U.S. 857) denial of amotion to dismiss

an indictment on double jeopardy grounds, a

pre-trial order rejecting a defendant’s speedy

trial claim plainly “lacks the finality tradition-

23

ally considered indispensable to appellate

review,” Abney v. United States, 431 U.S., at 659,

52 L.Ed.2d 651, 97 S.Ct. 2034, that is, such an

order obviously is not final in the sense of

terminating the criminal proceedings in the

trial court. MacDonald, Supra., at 856-857.

Having found that a speedy trial issue, like a double

jeopardy issue, lacks traditional finality, the Court then

turned to the standards set forth in Cohen v. Beneficial

Loan Corp., 337 U.S. 541, 545-547 (1949) respecting the

collateral order exception to the finality rule.

2. A COMPLETE AND FINAL REJECTION OF

THE DEFENDANT’S CLAIM IN THE TRIAL

COURT.

This Court held that a denial of a speedy trial claim

before trial was not a final rejection by the trial Court

because the question remains “open,” “unfinished” and

“inconclusive” until final judgment, MacDonald, Supra.,

at 859. However, this Court in Abney held that a denial

of a double jeopardy claim before trial was a final rejec-

tion of the Defendant’s claim in the trial Court, Abney,

Supra., at 659. In much the same manner, the trial

Court’s rejection of the Petitioner’s claim that his

Tennessee dismissal barred his subsequent indictment

and trial in Texas was a final rejection. The Petitioner is

in the same position as the Defendant urging a double

jeopardy bar in Abney, “there are simply no further

steps that can be taken in the District Court to avoid

the trial the Defendant maintains is barred. . . ,” Abney,

Supra., at 559.

24

3. COLLATERALNESS OF THE ORDER.

This Court further reasoned that a denial of a speedy

trial claim before trial would not meet the require-

ment that the Order sought to be appealed from be

“collateral to, and separable from, the principal issue at

the accused’s impending criminal trial, i.e., whether or

not the accused is guilty of the offense charged,” Mac-

Donald, Supra., at 851 quoting Abney, Supra., at 659. How-

ever, like the double jeopardy claim in Abney, the claim

of this Petitioner, i.e., that a prior dismissal with preju-

dice on Constitutional speedy trial grounds bars his re-

indictment and trial on the same offenses, is a matter

collateral and separate from the trial he is now facing.

No one can argue with the fact that the Petitioner’s

speedy trial claim has been successfully litigated in a

separate proceeding in Tennessee. The only remaining

question is whether the Texas charges are the same as

the Tennessee charges. That question is the identical

question that would be present in any double jeopardy

claim. Thus, the two issues stand on the same footing.

In MacDonald, this Court reasoned a denial of a

speedy trial claim did not result in a loss of any right

since the Speedy Trial Clause did not vest a Defendant

with the right not to be tried, MacDonald, Supra., at 860-

862. The Petitioner would argue that when a Defend-

ant successfully establishes his speedy trial claim and a

Court fashions his remedy, i.e., a dismissal with preju-

dice, he then has a right not to be tried on that offense.

Indeed, as this Court pointed out, “Of course, an ac-

25

cused who does successfully establish a speedy trial

claim before trial will not be tried,” MacDonald, Supra., at

861, n.8. Should the Government’s maneuver in Strick-

lin be upheld, and his right to appeal denied, then the

“of course” confidence expressed by this Court in Mac-

Donald would seem to be unsupported by reality.

4. PRACTICAL CONSIDERATIONS.

After applying the Cohen standards to pre-trial de-

nials of speedy trial claims, this Court turned to policy

considerations in not allowing pre-trial appeals of these

matters. The Court reasoned that:

Unlike a double jeopardy claim, which re-

quires at least a colorable showing that the

defendant once before has been in jeopardy of

federal conviction on the same or a related

offense, . . .. Thus, any defendant can make a

pretrial motion (435 U.S. 863) for dismissal on

speedy trial grounds and, ... could im-

mediately appeal its denial. MacDonald, Supra.,

at 862-863.

This Petitioner’s claim that his Texas prosecution

was barred by his Tennessee dismissal could not be

made by just any Defendant. There would be no deluge

upon the Federal Courts of Appeal. Similar to a double

jeopardy claim, this claim would require a “colorable

showing” that he had been granted a dismissal with

prejudice “on the same or a related offense,” Mac-

Donald, Supra., at 862. Thus, under this analysis as under

26

the analyses previously considered, the Petitioner’s

claim that his present prosecution is barred by the pre-

vious dismissal stands on the same footing as a double

jeopardy claim. Therefore, it should be treated the

same in so far as Appellate Jurisdiction is concerned.

CONCLUSION AND PRAYER

The question presented herein is a clear, crisp and

definite legal issue uncluttered by disputed facts or

ambiguous positions. It is an issue dealing with juris-

diction of the Federal Courts in the area of Consti-

tutional and statutory speedy trial guarantees because

the Speedy Trial Act of 1974 has “come into its own,”

the impact of this Court deciding this issue or failing to

decide this issue will be great. If the decision of the

United States Court of Appeals for the Fifth Circuit is

allowed to remain the law within that Circuit, Defend-

ants suchas this Petitioner will gain precious little from

successfully prosecuting their speedy trial claims in one

District because the United States will be able to res-

pond by putting them to trial in another District. Of

course, after reindictment, bond, possible conviction,

and possible incarceration, the Defendants will have

the right to be heard by a Federal Appellate Court. And

when that Court’s opinion is delivered some time later,

the Defendant’s right to remedy fashioned by the first

District Court, the right not to be re-indicted, bonded,

convicted, or imprisoned will be vindicated. Or will it?

Because of the merits of this case and because of the im-

portance of the Federal Jurisdictional question in-

27

volved, the Petitioner prays that this Court grant a

Petition of Certiorari to the United States Court of

Appeals for the Fifth Circuit.

Respectfully submitted,

JOSEPH (SIB) ABRAHAM, JR.

Attorney for Petitioner

505 Caples Building

El Paso, Texas 79901

(915) 532-1601

CHARLES LOUIS ROBERTS

Attorney for Petitioner

505 Caples Building

El Paso, Texas 79901

(915) 532-1601

CERTIFICATE OF SERVICE

The undersigned attorney of record for Petitioner,

JACK MOODY STRICKLIN, JR., hereby certifies as

follows:

(a) That I am a member of the bar of the

United States Supreme Court, and that I have

duly served all parties required by the Rules of

said Court to be served with the foregoing

Petition for Writ of Certiorari, as hereinafter

shown:

28

(b) That the names and addresses of the ”

attorneys of record for the adverse party are

as follows:

The Honorable Wade H. McCree, Jr. CHARLES LOUIS ROBERTS

Solicitor General of the United States Attorney for Petitioner

Department of Justice 505 Caples Building

Washington, D.C. 20530 El Paso, Texas 79901

(915) 532-1601

Jamie Boyd

United States Attorney

U.S. Attorney’s Office

655 E. Durango Blvd.

Hemisfair Plaza

San Antonio, Texas 78206

(c) That on this day I served three printed

copies of the foregoing Petition for Writ of

Certiorari on the said Wade H. McCree, Jr.,

and the said Jamie Boyd, attorneys for said

Respondent, by depositing same in the Unit-

ed States post office, with first class postage

prepaid, properly addressed to said attorneys

for Respondent at their said addresses.

EXECUTED, this

day of August, 1979.

JOSEPH (SIB) ABRAHAM, JR.

Attorney for Petitioner

505 Caples Building

El Paso, Texas 79901

(915) 532-1601

la

APPENDIX “A”

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

UNITED STATES OF AMERICA

versus No. EP-77-CR-160

JACK MOODY STRICKLIN, JR.

ORDER

Came on this date to be considered Defendant’s claim

of former jeopardy. This Order is based on the evi-

dence obtained at the hearing of August 31, 1977, the

brief filed by Defendant, and the response of the Unit-

ed States of America.

Defendant contends that because he was previously

indicted in the Middle District of Tennessee, and prose-

cuted in the District of New Mexico, the Government

is now precluded from prosecuting the indictment

- pending in the Western District of Texas. At most,

Defendant’s contention pertains to the conspiracy

charges and the continuing criminal enterprise charge

pending in this District. See Jeffers v. United States, 97

S.Ct. 2207 (1977). The four remaining substantive

counts pertain to unlawful importation and posses-

sion with intent to distribute marijuana within the

Western District of Texas.

2a

Defendant admits that he was involved in at least

two narcotic conspiracies during the period covered by

the conspiracy charged in the Western District of

Texas. A comparison of the superseding indictment

charging conspiracies in this District, with the indict-

ments in Tennessee and New Mexico reflects that each

alleges different transactions and different overt acts.

Except for Defendant, there are no common cocon-

spirators. Clearly, the evidence to sustain each indict-

ment would, of necessity, be different. United States v.

Pape, 553 F.2d 815 (2nd Cir. 1976), cert. denied, U.S.

; United States v. Bommarito, 524 F.2d 140 (2nd Cir.

1975).

A review of the record of the hearing conducted,

August 31, 1977, reflects that Defendant was charged

with conspiracy to possess with intent to distribute

marijuana, and possessing with intent to distribute

marijuana on or about August 18, 1974, in the District

of New Mexico. Defendant was convicted after a trial

in New Mexico and, accordingly, has been placed in

jeopardy in connection with that case. The case in the

United States District Court for the Middle District of

Tennessee was dismissed for lack of speedy trial and

Defendant was never placed in jeopardy.

Defendant contends that if the Government could

have proceeded against him either in Tennessee or

New Mexico for a continuing criminal enterprise, it is

precluded from doing so at this juncture. In order to

sustain a conviction for violating Section 848, the

3a

Government must prove (1) that Defendant was in-

volved in a continuing series of federal narcotics law

violations, (2) that he acted inconcert with five or more

persons, (3) that he occupied the position of organizer

or supervisor with respect to five or more persons, and

(4) that he obtained substantial income or resources

from the continuing series of such violations. United

States v. Bolts, No. 76-4253, (Sth Cir., August 29, 1977).

The Supreme Court has stated recently that an ex-

ception to the prohibition against a subsequent prose-

cution for a greater offense may exist where the state

was unable to proceed because the additional facts

necessary to sustain that charge had not occurred at

the time of the earlier prosecution, or had not been dis-

covered despite the exercise of due diligence. Jeffers v.

United States, supra; Brown v. Ohio, 53 L.Ed.2d 187, 196, n.7

(1977).

At the hearing, August 31, 1977, the Government

called as witnesses Mr. Irving H. Kilcrease, Jr., Assis-

tant United States Attorney, Middle District of

Tennessee, and Mr. Harris Hartz, former Assistant

United States Attorney for the District of New Mex-

ico. The undisputed testimony of both prosecutors is

that the Government did not have sufficient proof in

either case to sustain aconviction for a violation of Sec-

tion 848.

It is apparent from the testimony obtained at the

hearing that the Government was unable to prosecute

4a

the Defendant for the charges contained in the indict-

ment in the Middle District of Tennessee. Conse-

quently, there is no basis for concluding that the

Government could have indicted or successfully prose-

cuted Defendant for a greater offense. The testimony

of Mr. Hartz with respect to the New Mexico case indi-

cates that all the evidence known at the time of the

prosecution was utilized and, due to the absence of

cooperation from any of the defendants, no additional

evidence was obtained. A review of the transcript of

the trial in New Mexico reflects that the elements of

Section 848 could not have been proven. In fact, the

total evidence available to the New Mexico and

Tennessee federal prosecutors would have been in-

sufficient to support a Section 848 conviction.

It is well settled that a conspiracy to violate a law is a

separate offense from the substantive violation. Cala-

man v. United States, 364 U.S. 587 (1961), Mathews v. Unit-

ed States, 407 F.2d 1371 (Sth Cir. 1969), cert. denied, 398

U.S. 968 (1970). Further, a conviction for one nar-

cotics conspiracy does not bar prosecution for another

narcotics conspiracy. United States v. Croucher, 532 F.2d

1042 (Sth Cir. 1976). Several conspiracies can exist dur-

ing the same time period. United States v. Pape, supra.

The effect of Defendant’s motion is to request pre-

tria! discovery of Jencks Act statements and internal

Government files. At the hearing, Defendant request-

ed all files concerning him, as well as all coconspirators

in the Tennessee case. If the Court were to grant

5a

Defendant's request, such a disclosure would necessi-

tate revealing existing investigations about individ-

uals who are not currently indicted. It would not be in

the public interest for the Government to publicly

reveal the results of investigations concerning other

violations by Defendant, if any, or with respect to in-

dividuals who are not currently indicted.

At the hearing the Court offered to review in camera

the entire Government's file in order to determine

whether there is any basis for concluding that the con-

spiracies charged in the Western District of Texas con-

stitute a second prosecution of the New Mexico or

Tennessee cases. This procedure was objected to by

Defendant, who requested direct production of the

Government files. This conduct suggests to the Court

that Defendant is not making a good faith claim con-

cerning former jeopardy, but that he is more interest-

ed in determining the extent of the Government's evi-

dence against him, as well as evidence against other in-

dividuals who are not currently indicted.

Defendant is attempting to obtain pretrial discovery

of evidence normally not discoverable prior to trial

through Brady v. Maryland, 373 U.S. 83 (1963). How-

ever, Brady requires production of evidence favorable to

a defendant which is” . . . material either to guilt or to

punishment.” Moore v. Illinois, 408 U.S. 786, 794 (1972).

The Brady disclosures are not required to be made prior

to trial. United States ex rel Lucas v. Regan, 503 F.2d 1 (2nd

Cir. 1974), cert. denied 420 U.S. 939. Further, Brady does

6a

not expand the pretrial discovery available pursuant to

Rule 16, Federal Rules of Criminal Procedure. United

States v. Ramirez, 506 F.2d 742 (Sth Cir. 1975); 18 U.S.C.

§3500. The claim of former jeopardy in this case is not

sufficient to permit it to be utilized as a vehicle by

which Defenda::t can obtain Jencks Act statements

prior to trial or other discovery to which he is not en-

titled.

Even if this Court were to find former jeopardy with

respect to the conspiracy counts or the continuing

criminal enterprise charge, the four remaining sub-

stantive counts would still have to be tried. There is no

evidence that the New Mexico or Tennessee grand

juries intended to cover substantive violations in other

jurisdictions, or that they would have any authority to

do so.

A review of the record reflects that Defendant

appeared before the federal grand jury for the El Paso

Division of the Western District of Texas, March 22,

1977. At that time, he was represented by the same

attorney who is representing him in this proceeding.

Defendant was indicted June 16, 1977, and was

arraigned in the United States District Court, June 23,

1977. Defendant filed no motions in this case until on

or about August 18, 1977, a few days prior to the call of

the docket. Defendant’s motions are therefore un-

timely. Since Defendant opposes an in camera inspec-

tion of the Government’s file, the Court will, in the

interest of justice, permit Defendant to reurge his

7a

claim of former jeopardy during the trial on the basis of

the evidence which is introduced.

It is therefore, ORDERED, ADJUDGED, and DE-

CREED that Defendant’s Motions are untimely and

without merit and are in all things DENIED. It is

further ORDERED that, in the interest of justice,

Defendant may reurge the claim of former jeopardy

during the trial.

Is! John H. Wood Jr.

JOHN H. WOOD JR.

UNITED STATES

DISTRICT JUDGE

Filed: 9-27-77

DAN W. BENEDICT, Clerk

Is} GJS

Deputy

8a

APPENDIX “B”

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK MOODY STRICKLIN, JR.,

Defendant-Appellant.

No. 77-3072

United States Court of Appeal,

Fifth Circuit.

March 23, 1979

Appeal from the United States District Court for the

Western District of Texas.

Before COLEMAN, GEE and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This is an appeal by Jack Moody Stricklin, Jr., from

the District Court’s denial of his motion to dismiss an

indictment handed down in El Paso, Texas, on double

jeopardy grounds. The pretrial order rejecting Strick-

lin’s claim that two previous indictments handed down

in Tennessee and New Mexico resulted in former jeop-

ardy is properly before us as a final decision within the

meaning of 28 U.S.C. §1291. Abney v. United States, 431

U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The

Ya

issue in this case is whether the District Court correct-

ly denied Stricklin’s motion to dismiss. We affirm the

District Court with respect to the substantive charges

of importing and of aiding and abetting, as well as the

importation conspiracy charge, but reverse and re-

mand on the possession with intent to distribute con-

spiracy charge and the continuing criminal enterprise

chargeso that the District Court can rehear that part of

the motion and apply the procedural standards set

forth below.

I. The Indictments

The Tennessee indictment was returned against

Stricklin on August 23, 1973. The District Court’s

order that the government supplement the indictment

with a bill of particulars was complied with on January

21, 1975. The government charged that Stricklin con-

spired with thirty-nine co-defendants and others

whose names were unknown to distribute and possess

with intent to distribute marijuana, a schedule I non-

narcotic controlled substance, in violation of 21 U.S.C.

§§841(a)(1) and 846 and the predecessor of those stat-

utes, 21 U.S.C. §176a. It was also charged that the

defendants and unknown coconspirators did unlaw-

fully possess with intent to distribute and distribute

marijuana in violation of first 21 U.S.C. §176a and 18

U.S.C. §2 and then 21 U.S.C. §841(a)(1) and 18 U.S.C.

§2. The indictment charged that the conspiracy con-

tinued from on or about December, 1970, to August

23, 1973. The bill of particulars recited overt acts in

El] Paso, Texas; Murfreesboro, Tennessee; Lebanon,

10a

Tennessee; Dickson, Tennessee; Atlanta, Georgia;

Nashville, Tennessee; Toronto, Canada; Louisville,

Kentucky; Knoxville, Tennessee; Winchester,

Tennessee; Orlando, Florida; Cookeville, Tennessee;

and Tucson, Arizona, between May, 1971, and May,

1973.

The New Mexico indictment was returned against

Stricklin on August 29, 1974. This indictment charged

that Stricklin conspired with five codefendants and

others whose names were unknown to possess with in-

tent to distribute marijuana, in violation of 21 U.S.C.

§841(a). They were also charged with unlawful posses-

sion with intent to distribute marijuana in violation of

21 U.S.C. §841(a)(1) and 18 U.S.C. §2. The indictment

charged that the conspiracy took place on or about

August 18, 1974, in the State and District of New Mex-

ico, and elsewhere. The possession was alleged to have

occurred on or about August 18, 1974, in New Mexico.

The original Texas indictment was returned against

Stricklin on June 16, 1977, and a superceding indict-

ment was returned on September 15, 19771. The orig-

1 Asuperceding indictment may be returned at any time before a

trial on the merits. Linited States v. Herbst, 565 F.2d 638, 643 (10th

Cir. 1977); United States v. Millet, 559 F.2d 253, 257-58 (Sth Cir.

1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 759

(1978); United States v. White, 524 F.2d 1249, 1253 (Sth Cir. 1975),

cert. denied, 426 U.S. 922, 96S.Ct. 2629, 49 L.Ed.2d 375 (1976). In-

deed, two indictments may be outstanding at the same time for the

same offense if jeopardy has not attached to the first indictment.

United States v. Cerilli, 558 F.2d 697, 700 (3d Cir.), cert. denied, 434 U.S.

lla

inal indictment charged that Stricklin: (1) conspired

with thirteen coconspirators and others whose names

were unknown to import marijuana in violation of 21

U.S.C. §§952(a) and 963; (2) did import and cause to be

imported marijuana in violation of 21 U.S.C.

§§960(a)(1) and 952(a); (3) conspired with thirteen co-

conspirators and others whose names were unknown

to possess with intent to distribute marijuana in viola-

tion of 21 U.S.C. §§841(a)(1) and 846; (4) aided and

abetted two individuals (named as coconspirators) on

three separate occasions in their unlawful possession

of marijuana in violation of 21 U.S.C. §841(a)(1) and

thus violated 18 U.S.C. §2; and (5) engaged in a con-

tinuing criminal enterprise by virtue of his marijuana

transactions and thus violated 21 U.S.C. §848. The

importation conspiracy was alleged to have continued

from on or before September, 1971, to on or about June

24, 1976, inthe Western District of Texas, the States of

966, 98 S.Ct. 507, 54 L.Ed.2d 507 (1977); United States v. Holm, 550

F.2d 568, 569 (9th Cir.), cert. denied, 434 U.S. 856, 98 S.Ct. 176, 54

L.Ed.2d 127 (1977); United States v. Grady, 554 F.2d 598, 602 n. 4 (2d

Cir. 1976); DeMarrias v. United States, 487 F.2d 19, 21 (8th Cir. 1973),

cert. denied, 415 U.S. 980, 94 S.Ct. 1570, 39 L.Ed.2d 877 (1974); Unit-

ed States v. Garcia, 412 F.2d 999, 1000 (10th Cir. 1969). Since the

original indictment apparently was never dismissed, there are

technically two pending indictments against Stricklin, and it

appears that the government may select one of them with which

to proceed to trial. United States v. Cerilli, 558 F.2d at 700 n. 3. The

superceding indictment was not filed until after the pretrial dou-

ble jeopardy hearing, so that Stricklin’s argument at the hearing

was concerned with the original indictment. The District Court,

however, referred only to the superceding indictment’s con-

spiracy charges in its order denying Stricklin’s motion. At oral

argument, the government indicated that it may attempt to

proceed on a combination of the two indictments because the

superceding indictment deals only with a portion of the original

indictment’s charges. Hence, we will consider both indictments

for purposes of this review.

12a

New Mexico, Georgia, and Tennessee, the Republic of

Mexico, and other places unknown to the grand jury.

This conspiracy count recited fourteen overt acts in El

Paso, Texas; Carlsbad, New Mexico; the Republic of

Mexico; Magdalena, New Mexico; and the Western

District of Texas, between September, 1971, and

November, 1973. The substantive importation count

alleged the Western District of Texas as the locus crim-

inis and July 18, 1972, as the approximate time that the

offense occurred. The possession conspiracy was

alleged to have taken place during the same time frame

and in the same locations as the importation conspir-

acy. The twelve overt acts recited in support of the

possession conspiracy were identical to twelve of the

overt acts recited in the importation conspiracy count

and thus covered the same time frame and area as did

that count. The three aiding and abetting violations

were alleged to have taken place in the Western District

of Texas on June 22, 1972; July 5, 1972; and July 18,

1972. The original indictment lastly charged Stricklin

with operating a continuing criminal enterprise by vir-

tue of his status in the marijuana transactions recited in

the previous counts; this enterprise was alleged to have

operated from on or before June 18, 1972, until on or

about June 24, 1976, in the Western District of Texas,

the Republic of New Mexico, the District of Columbia,

New Mexico, North Carolina, Georgia, Minnesota, and

other places unknown to the grand jury.

The superceding indictment was not prepared and

filed until after the double jeopardy hearing where

Stricklin had pointed out the apparent overlaps

13a

between the New Mexico indictment and the then

pending Texas indictment. The superceding indict-

ment charged Stricklin with essentially the same im-

portation and possession conspiracies as charged in the

original indictment, except that the names of five co-

conspirators were deleted and the reference to

Tennessee as one of the locations for the conspiracies

was omitted. Five overt acts were also eliminated from

eachconspiracy count, shortening the time span for the

acts supporting the importation conspiracy to on or

about December, 1971, to November, 1972, and for the

acts supporting the possession conspiracy to on or

about December, 1971, to October, 1972. The omission

of these acts also deleted the references to Magdalena,

New Mexico, one of the references to El Paso, Texas,

and the references to two of the originally named co-

conspirators who were not included in the charging

portions of the superceding indictment. Basically, the

government simply carved out and discarded those

specific references to those specific overlaps.

The Tennessee indictment was dismissed with pre-

judice on March 18, 1975, because of the govern-

ment’s failure to grant Stricklin a speedy trial in accord

with his constitutional right under the Sixth Amend-

ment. The New Mexico indictment resulted in a con-

viction on both counts on March 14, 1975, and Strick-

lin received a five year prison sentence. The Texas

indictment was returned on June 16, 1977. On August

17, and 26, 1977, Stricklin moved before the District

Court to dismiss the Texas indictment on the grounds

14a

that the Tennessee indictment, which was dismissed

with prejudice, and the New Mexico indictment, which

resulted in his conviction, had placed him in former

jeopardy. A pretrial double jeopardy hearing took

place on August 31, 1977; the government filed the

superceding indictment on September 15, 1977; and

the District Court issued an order denying Stricklin’s

motion on September 27, 1977. The District Court

found that four substantive counts pertaining to un-

lawful importation and possession with intent to dis-

tribute marijuana within the Western District of Texas

presented no possible double jeopardy problem. With

regard to the twoconspiracy counts, the District Court

found that a comparison of the Tennessee and New

Mexico indictments with the superceding indictment in

Texas, in light of the evidence obtained at the hearing,

reflects that each alleges different transactions and

overt acts and that, in any event, jeopardy had never at-

tached in the Tennessee case. Concerning the con-

tinuing criminal enterprise count, the District Court

found that the government did not have sufficient

proof in either the Tennessee or New Mexico con-

spiracy case to sustain a conviction for a violation of 21

U.S.C. §848, so that there was no double jeopardy bar

to this subsequent prosecution for the greater offense.

This appeal followed.

I]. The Application of Abney

Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52

L.Ed.2d 651 (1977), held that the denial of a motion to

15a -

dismiss an indictment on double jeopardy grounds

results in an appealable final order. Thus, the double

jeopardy issue may be decided and appealed before a rec-

ord of the trial on the challenged indictment is made.

Abney may be applied without serious comniplexity

where the indictments and the record from the pre-

vious trial are sufficiently explicit to provide for clear-

cut determination of the double jeopardy claim. For ex-

ample, where X is once indicted and tried for the

murder of Y, a subsequent indictment charging that X

murdered Y would clearly violate X’s Fifth Amend-

ment right not to be twice put in jeopardy for the same

offense. Where, however, the charges in two or more

indictments involve crimes such as complicated or far-

reaching conspiracies, as in this case, the application of

Abney can be troublesome, especially when one of the

previous indictments did not result in a trial and the

creation of a record. It is necessary, then, to establish

procedural rules for an Abney pretrial double jeopardy

hearing, so that requirements such as going forward

with proof, burden of persuasion, and weight of the

evidence are equitably assigned to and understood by

the parties. The Third Circuit was recently confronted

with an identical task in United States v. Inmon, 568 F.2d

326 (3d Cir. 1977). We adopt their well-reasoned opin-

ion in that case as the law in this Circuit, along with

such modifications and additions as our comments may

provide.

It is undisputed that the burden of going forward by

putting the double jeopardy claim in issue is and should

16a

be on the defendant. It is similarly reasonable to re-

quire the defendant to tender a prima facie nonfrivo-

lous double jeopardy claim before the possibility of a

shift of the burden of persuasion to the government

comes into play. Once the defendant has come forward

with such a prima facie nonfrivolous claim, however,

we are faced with determining whether the defendant

or the government should carry the burden of per-

suasion from that point forward. The Third Circuit in

Inmon concluded that the burden should then be placed

on the government, basing its decision on practical con-

siderations concerning access to proof ard on the

government's control over the particularity with which

indictments are drafted. 538 F.2d at 329-32. Accord,

United States v. Mallah, 503 F.2d 971 (2d Cir. 1974), cert.

denied, 420 U.S. 955, 95 S.Ct. 1425, 43 L.Ed.2d 671

(1975). We agree, for similar reasons, that the burden

of establishing that the indictments charge separate

crimes is most equitably placed on the government

when a defendant has made a nonfrivolous showing

that an indictment charges the same offense as that for

which he was formerly placed in jeopardy.

The defendant might make the necessary prima facie

nonfrivolous showing of double jeopardy by reference

to the indictments, as supplemented by a bill of partic-

ulars if appropriate and ordered, and other record

material, alone. He might find it necessary to offer his

own testimony at the pretrial hearing. If the latter

course is followed, the defendant will not thereby

waive the privilege against self-incrimination and his

17a

testimony may not subsequently be used against him at

the trial on the merits. In Simmons v. United States, 390

U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the

Supreme Court held that a defendant may testify in a

pretrial suppression hearing directed at vindication of

Fourth Amendment rights without fear that his testi-

mony will be used against him at the subsequent trial.

The Supreme Court reasoned that any other rule

would inhibit defendants from asserting Fourth

Amendment claims and would require that one consti-

tutional right be surrendered in order to assert an-

other. 390 U.S. at 392-94, 88 S.Ct. 967. We agree with

the Inmon Court that the reasoning in Simmons is also

controlling in a pretrial double jeopardy hearing.

Other evidence normally available to the defendant

at the pretrial stage may, of course, also be offered in

his attempt to make a prima facie showing of former

jeopardy, but our resolution of Abney’s procedural prob-

lems in no way expands or alters the discovery now

available to defendants. Material which is presently

unavailable to the defendant through discovery or any

other means is not made more accessible by our hold-

ing in this case.

The impracticality of placing the burden of per-

suasion on the defendant in this situation is obvious in

light of his lack of access to the proof on which the

government proposes to rely and his inability to offer

immunity to prospective witnesses. See United States v.

Herman, 589 F.2d 1191 (3d Cir.) (1978); United States v. In-

18a

mon, 568 F.2d at 329-30; United States v. Allstate Mortgage

Corp., 507 F.2d 492, 494-95 (7th Cir. 1974), cert. denied,

421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975);

United States v. Smith, 436 F.2d 787, 790 (Sth Cir.), cert.

denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142

(1971). Where a prior indictment resulted in a guilty

plea or was dismissed, so that there is no record of the

evidence supporting the prior indictment, the defend-

ant is even further handicapped. The government is

clearly in a better position to show that the crime

charged in the present indictment is not the same as

one charged in a previous indictment than the defen-

dant is to show that the crimes are the same.

The government’s responsibility for securing an

indictment which is sufficiently detailed to inform the

defendant of the charges against him and to allow him

later to claim the defense of double jeopardy if he be

again charged with that crime further justifies placing

the burden of persuasion on the government. See Ham-

ling v. United States, 418 U.S. 87,94 S.Ct. 2887, 41 L.Ed.2d

590 (1974). Traditionally, courts have been under-

standably reluctant to interfere and require more par-

ticularity on potential double jeopardy grounds; it is a

most difficult task to look ahead down the road and

predict what future crimes may be charged by a subse-

quent indictment. Since the government controls the

particularity of an indictment, it should bear the

responsibility for any ambiguities resulting in its

vagueness that are left unresolved by a bill of par-

ticulars. The government may be said to make the

following representation to the court when it proceeds

19a

on an indictment: “This indictment is sufficient. If the

defendant is hereafter charged on another indictment

and it appears prima facie that this indictment has al-

ready charged him with that offense, then we accept

the burden of showing that the new charge is differ-

ent.” From the government’s point of view, its inter-

ests are also served by securing detailed indictments

because a meritless claim of double jeopardy in a sub-

sequent case will be easier to refute. We hope that the

salutary effect of our assigning the burden as we do will

be more carefully drawn indictments, especially in con-

spiracy cases where the tendency is to use all-

encompassing, vague language.

Once the burden of persuasion has shifted to the

government by virtue of the defendant’s presentation

of a prima facie nonfrivolous claim of prior jeopardy,

the government is not compelled to come forward with

any particular kind of evidence. It may present how-

ever much or little evidence as it deems advisable, sub-

ject, of course to dismissal of the indictment if not

enough evidence to rebut the defendant’s prima facie

showing is introduced. The weight of the evidence by

which the government must demonstrate that two

separate crimes are charged is a preponderance of the

evidence. Again, our conclusion comports with that of

the Third Circuit in Inmon, wherein they point out that

the Fifth Amendment double jeopardy privilege is per-

sonal and waivable and not an element of the crime, so

that a heavier evidentiary burden is, by implication, not

constitutionally required by Lego v. Twomey, 404 U.S.

477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (voluntari-

20a

_ness of confession may be determined by prepond-

erance of the evidence). 568 F.2d at 332. The determi-

nation of whether or not a prima facie claim of double

jeopardy has been shown and, if so, rebutted by a pre-

ponderance of the evidence is best made by the court

and not by the jury. The likelihood of compelling the

defendant to make possibly incriminating statements

to the jury about the earlier offense in his defense to

the subsequent charge or of prejudicing the jurors

against the defendant by virtue of their hearing about

the charge and evidence in the previous case is thus

eliminated.

Although the government may not be forced to

reveal to the defendant any materials or information

not otherwise available through discovery or other

means, it might choose to submit such material to the

District Court for in camera inspection and might thus

carry its burden of persuasion.

Even if the government does carry its burden of per-

suasion and the defendant’s motion to dismiss is

denied, the District Court may later vacate its finding

of no prior jeopardy as the evidence develops at trial if

the defendant renews his motion and the evidence

shows that there was, in fact, prior jeopardy. The rul-

ing by the District Court on the pretrial motion merely

decides whether or not, upon the evidence then before the

court, double jeopardy appears. On an Abney appeal, the

correctness of that ruling, alone, will be reviewed.

Neither the District Court’s nor the Circuit Court's

pretrial decision will be binding as res judicata, law of

21a

the case, collateral estoppel, or any other theoretical

bar as to the double jeopardy issue in the case.

III. Stricklin’s Double Jeopardy Claim

We turn now to the application of the procedural

rules heretofore discussed to the facts in this case.

Stricklin claims that the Double Jeopardy Clause of the

Fifth Amendment bars the government's attempt to

prosecute him in Texas on the conspiracies charged

because the alleged conspiracies were encompassed in

conspiracies alleged in two previous indictments pur-

suant to which he was subjected to jeopardy. Close

analysis of this case reveals that we are actually con-

fronted with an unusual and complex blend of double

jeopardy and speedy trial problems.

A. The Tennesee Indictment

We begin our analysis with the observation that the

Tennessee indictment’s dismissal with prejudice for

violation of Stricklin’s speedy trial rights under the Six-

th Amendment did not invoke jeopardy. United States v.

Marion, 404 U.S. 307, 312, 92 S.Ct. 455, 30 L.Ed.2d 468

(1971). A motion to dismiss before trial for lack of

speedy prosecution has

nothing to do with guilt or innocence or the

truth of the allegations in the indictment but

[is], rather, a plea in the nature of confession

and avoidance, that is, where the defendant

22a

does not deny that he has committed the acts

alieged and the acts were a crime but instead

pleads that hecannot be prosecuted because of

some extraneous factor, such as. . . the denial

of a speedy trial.

404 US. at 312, 92 S.Ct. at 459. For a jury trial, jeop-

ardy attaches when the jury is empaneled and sworn.

For a bench trial, jeopardy attaches when the judge

begins to receive evidence. United States v. Martin Linen

Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d

642 (1977); Illinois v. Somerville, 410 U.S. 458, 471, 93

S.Ct. 1066, 35 L.Ed.2d 425 (1973); Downum v. United

States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100

(1963). This Court noted in United States v. Pitts, 569 F.2d

343, 347 n. 5 (Sth Cir.), cert. denied, 436 U.S. 959,98 S.Ct.

3076, 57 L.Ed.2d 1125 (1978), that “[s]ufficient consti-

tutional and statutory measures protect defendants in

cases that might be tainted by an overzealous prosecu-

tor abusing the rules marking the attachment of jeop-

ardy to make abandonment of those rules un-

necessary” where a previous indictment had been dis-

missed at the government’s request. In this case,

Stricklin’s Sixth Amendment constitutional right to a

speedy trial protects him from the government’s again

bringing those charges contained in the Tennessee in-

dictment which was dismissed with prejudice on con-

stitutional speedy trial grounds. Stricklin cannot be re-

indicted for the same crime because Sixth Amendment

speedy trial rights could, otherwise, be easily by-

passed. Mann v. United States, 113 U.S.App.D.C. 27,

23a

30, 304 F.2d 394, 397, cert. denied,371 U.S. 896, 83 S.Ct.

194, 9 L.Ed.2d 127 (1972). Accord, United States v. Simmons,

536 F.2d 827, 833 (9th Cir.), cert. denied, 429 U.S.

854, 97 S.Ct. 148, 50 L.Ed.2d 130 (1976); United States v.

Correia, 531 F.2d 1095, 1097 (1st Cir. 1976); Linited States

v. Clay, 481 F.2d 133, 135 (7th Cir.), cert. denied, 414 U.S.

1009, 97 S.Ct. 371, 38 L.Ed.2d 247 (1973); United States v.

Beidler, 417 F.Supp. 608, 616 (M.D.Fla. 1976).

While Stricklin cannot be reindicted for the same

conspiracy for which he was charged in Tennessee

indictment, the government is not barred from using

the underlying facts in that offense as the basis for a

charge that he committed a different offense. As we

noted in United States v. Rivero, 532 F.2d 450, 457 (Sth Cir.

1976), “the dismissal of the indictment, with or

without prejudice, does not amount to the determina-

tion of any of the intrinsic underlying facts. What, and

all, it stands for, is that the defendant cannot be re-

indicted or tried for that same charge.”

We do not reach the question of whether the Texas

indictment is barred under the Sixth Amendment by

virtue of charging Stricklin with the same crime as

charged in the dismissed Tennessee indictment. While

Abney establishes that the denial of a double jeopardy

claim is a final and appealable decision within the mean-

ing of 28 U.S.C. §1291, there is no comparable juris-

dictional basis on which to exercise pretrial review of

an indictment which is potentially barred by Sixth

Amendment speedy trial considerations. The Supreme

24a

Court recently held in United States v. MacDonald, 435

U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), that a

defendant may not, before trial, appeal a federal district

court’s order denying his motion to dismiss an indict-

ment because of an alleged violation of his Sixth

Amendment right to a speedy trial. Accord, United States v.

Bailey, 512 F.2d 833 (Sth Cir.), cert. dismissed, 423 U.S.

1039, 96 S.Ct. 578, 46 L.Ed.2d 415 (1975). Stricklin’s

situation is different from that found in MacDonald

since the possible violation of his rights lies in his being

reindicted on the same charges which were the subject

of an indictment already dismissed on speedy trial

ground rather than in his being brought to trial on the

first indictment, as in MacDonald. The basic considera-

tion in both cases, however, is whether the defendants’

speedy trial rights will be violated by the impending

prosecutions, and for us to expand appellate jurisdic-

tion to include the situation where the dismissed indict-

ment is claimed to bar a subsequent indictment on

speedy trial grounds would be unwarranted.

In any event, the argument is not properly before us

because Stricklin incorrectly bases his argument re-

garding the Tennessee indictment on double jeopardy

grounds rather than on speedy trial grounds. Our dis-

cussion of the speedy trial aspects of this case is a

necessary part of our rejection of Stricklin’s double

jeopardy claim concerning the Tennessee indictment.

We anticipate that the defendant will take heed on re-

mand and make the proper argument; the District

Court will then, of course, make the proper analysis.

25a

B. The New Mexico Indictment

There is no doubt that jeopardy attached in the trial

on the New Mexico indictment; Stricklin was convict-

ed on charges of possession with intent to distribute

marijuana and conspiracy to possess with intent to dis-

tribute marijuana. We must now discern whether or

not Stricklin has brought forth a prima facie nonfrivo-

lous claim that the government seeks to charge him

again for the same crime in the Texas indictment.

In the double jeopardy context, the position of the

parties is reversed from that usually taken in trials of

conspiracy cases. In the latter, it is usually the govern-

ment’s position that all similar conduct proven is part of

one far-reaching conspiracy. The defendant generally

asserts that, if conspiracy be shown at all, his activity

was separate from, and not connected with, the con-

spiracy charged.

In the dispute over double jeopardy, however, it is

the defendant who asserts that the earlier indictment

was sufficiently broad to encompass all of his conduct,

and the government asserts the narrow, limited scope

of its earlier indictment. Here, Stricklin insists that the

New Mexico indictment covered certain conduct for

which he is now indicted in Texas, and the govern-

ment argues that the New Mexico indictment was

limited in scope to the single transaction recited

therein. This conflict sufficiently demonstrates the

need for care and definition in the drawing of indict-

ments in conspiracy cases.

26a

At his double jeopardy hearing, Stricklin introduced

material obtained in a Nevada trial under the Jenck’s

Act. This evidence tends to show that Stricklin enter-

ed into a conspiracy with Don Johnson and Tim Melan-

con, two of the conspirators named in the original Tex-

as indictment, to import marijuana into the United

States after the Tennessee conspiracy was termi-

nated.? It appears from the evidence in the record that

two loads of marijuana were flown to New Mexico

from the Republic of Mexico by Don Johnson and Tim

Melancon. The first load was apparently the load that

was involved in those overt acts taking place in March

and November of 1973, near Magdalena, New Mexico,

and mentioned in both the conspiracy to import count

and the conspirccy to possess with intent to distribute

count of the original Texas indictment. The second load

was seized in New Mexico on August 18, 1974, in

Stricklin’s possession; this incident served as the basis

of the New Mexico indictment and conviction. With

regard to that portion of the original Texas indict-

ment which Stricklin asserts refers to the New Mexico

conspiracy to possess with intent to distribute for

which he was previously convicted, Stricklin’s burden

of coming forth with a prima facie nonfrivolous double

jeopardy claim is met. We pointed out in United States v.

Ruigomez, 576 F.2d 1149, 1151 (Sth Cir. 1978), that “the

relevant question [in narcotics conspiracy cases] is . . .

2 Stricklin asserts that the New Mexico conspiracy was a

different conspiracy than the one with which he was charged in

Tennessee. Even if the New Mexico conspiracy had been a con-

tinuation of the Tennessee conspiracy, further operation of the

“old” conspiracy after being charged with that crime becomes a

new offense for purposes of a double jeopardy claim.

27a

whether the particular transactions alleged in the

indictments were within a larger, unified copspiracy.”

The evidence which Stricklin proffers satisfies ~

the usual tests for determining the existence

of a unified conspiracy — the participants

shared a continuing, common goal of [import-

ing] marijuana for profit; the operations of the

conspiracy followed an unbroken and repeti-

tive pattern; and the cast of conspirators re-

mained much the same.

576 F.2d at 1151. As we indicated in United States v.

Marable, 578 F.2d 151, 154 (5th Cir. 1978),

[o]ur examination of the record focuses upon

these elements: (1) time, (2) persons acting as

coconspirators, (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 indi-

cates 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.

Our consideration of the foregoing factors leads to the

conclusion that Stricklin makes a prima facie showing

that the events charged in the original Texas indict-

ment relating to the Magdalena episode and the events

charged in the New Mexico indictment were part of a

single agreement. _

28a

The government’s obtaining a new indictment sub-

sequent to the hearing, which deletes all references to

Don Johnson, Tim Melancon, and the Magdalena, New

Mexico, episode is of no consequence to our finding,

for, as we pointed out earlier, the original indictment

was never dismissed. In fact, the government’s revision

of the conspiracy counts may not bode well for their

assertion that the conspiracies for which they seek to

prosecute in the Texas indictment are clearly distinct

from the conspiracies for which Stricklin has pre-

viously been indicted.

Stricklin’s prima facie showing of former jeopardy

goes only to the conspiracy count for possession with

intent to distribute and not to the conspiracy count for

importation. The government may constitutionally

abetting the unlawful possession of marijuana and for

importat-ion. The government may constitutionally

charge a defendant with conspiracy to import, as well

as with conspiracy to possess with intent to distribute,

despite the existence of only one conspiratorial agree-

ment. United States v. Marable, 578 F.2d at 154 n. 1; United

States v. Ruigomez, 576 F.2d at 1151 n. 2; United States v.

Dyar, 574 F.2d 1385, 1389-90 (5th Cir. 1978); United

States v. Houltin, 525 F.2d 943, 950-51 (Sth Cir.), vacated on

other grounds, sub nom. Croucher v. United States, 429 U.S.

1034, 97 S.Ct. 725, 50 L.Ed.2d 745 (1976). The Double

Jeopardy Clause imposes few limits on the legislative

power to define offenses, and Congress may choose to

punish two aspects of conspiratorial behavior without

violating the Fifth Amendment. See United States v.

29a

Sanabria, 437 U.S. 54, 70 n. 24 and accompanying text,

98 S.Ct. 2170, 2181-82, 57 L.Ed.2d 43 (1978).

Similarly, each of the three substantive counts for

aiding and abetting and the substantive count for im-

portation allege separate offenses. See lannelli v. United

States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 43 L.Ed.2d

616 (1975); Pereira v. United States, 347 U.S. 1, 11-12, 74

S.Ct. 358, 98 L.Ed. 435 (1954). Stricklin was convicted

under the New Mexico indictment of possessing mari-

juana with intent to distribute on or about August 18,

1974. The possession offenses which he is charged in

the Texas indictment with having aided and abetted

took place on June 22, 1972; July 5, 1972; and July 18,

1972. The importation offense is alleged to have oc-

curred on July 18, 1972. Clearly, the conviction for the

substantive offense in the New Mexico indictment did

not constitute prior jeopardy for the substantive of-

fenses charged in the Texas indictment.?

Stricklin’s final argument is that the Texas in-

dictment’s continuing criminal enterprise charge under

21 U.S.C. §8244 is barred by the Double Jeopardy

3 A defendant could successfully argue double jeopardy where

two separate substantive offenses are involved if a plea bargainon

the prior indictment led to dismissal of the offense.

4 A person engages in a continuing criminal enterprise, as defin-

ed in 21 U.S.C. §848(b)(2), if he violates the Drug Act in a con-

tinuing series of such violations.

(A) which are undertaken by such person in concert

with five or more other persons with respect to whom

such person occupies a position of organizer, a super-

pew ws position, or any other position of management,

an

30a

Clause as interpreted in Jeffers v. United States, 432 U.S.

137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), and Brown v

Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187

(1977). Jeffers and Brown deal with the Double Jeopardy

Clause in the context of greater and lesser included

offenses. Jeffers is particularly pertinent to this case

because the two offenses involved there were a con-

spiracy to distribute heroin and cocaine in violation of

21 U.S.C. §846 and a continuing criminal enterprise to

violate the drug laws in violation of 21 U.S.C. §848.

Although the facts in Jeffers made it unnecessary to set-

tle definitively the issue of whether §846 is a lesser in-

cluded offense of §848, 432 U.S. at 152-53 n. 20, 97

S.Ct. 2207, the Court’s discussion of the issue indi-

cates that the question would be answered affirma-

tively because §848 requires proof of an agreement

among the persons involved in the continuing criminal

enterprise and thus requires proof of every fact neces-

sary to show a violation under §848 as well as proof of

several additional elements. Id. at 147-54, 97 S.Ct.

2207. See also Id. at 160 n. 7, 97 S.Ct. 2207 (Stevens, J.,

concurring in part). Furthermore, it is our conclusion

that §846 is a lesser included offense of §848 where the

agreement and transactions involved in the two cases

are the same. A double jeopardy defense will lie where

the government has previously prosecuted a defend-

ant under either §846 or §848 and then seeks to prose-

(B) from which such person obtains substantial in-

come or resources.

United States v. Bolts, 558 F.2d 316, 320 (Sth Cir.), cert. denied, sub nom.

Hicks v. United States, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290

(1977).

3la

cute him again on the basis of the same criminal agree-

ment under the other statute. “Whatever the se-

quence may be, the Fifth Amendment forbids suc-

cessive prosecution and cumulative punishment for a

greater and lesser included offense.” Brown v. Ohio, 432

U.S. at 169, 97 S.Ct. at 2227. Even if the defendant

shows that the conspiracy for which he was prose-

cuted under §846 is the same conspiracy which serves

as an element of his §848 prosecution, the double jeop-

ardy inquiry does not necessarily end there.

An exception 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 oc-

curred or have not been discovered despite the

exercise of due diligence. See Diaz v. United

States, 223 U.S. 442, 448-449 [32 S.Ct. 250, 56

L.Ed. 500] (1912), Ashe v. Swenson, supra, [397] at

[436] 453 n. 7 [90 S.Ct. 1189, 25 L.Ed.2d 469]

(Brennan, J. concurring).

Id. at 169 n. 7, 97 S.Ct. at 2227.

Our application of Jeffers and Brown to the facts in this

case begins with determining whether or not Stricklin

has made a prima facie nonfrivolous showing that the

agreement and transactions which served as the basis

for his New Mexico §846 conspiracy conviction are the

same as those involved in the continuing criminal

enterprise charge in the Texas indictment. The con-

32a

tinuing criminal enterprise count alleges that all of the

other violations alleged in the indictment were a part of

a continuing series of violations which were conduct-

ed in violation of §848. Hence, the importation and aid-

ing and abetting offenses which do not violate the

Double Jeopardy Clause, as well as the possession con-

spiracy offense which at least in part may violate

double jeopardy protection, serve as the basis of the

continuing criminal enterprise charge. Stricklin has

thus made out a prima facie case that the possession

conspiracy and transactions for which he was convict-

ed in New Mexico and which are alluded to in the Mag-

dalena portions of the original Texas indictment may

not be used to show the “in concert” element of the

§848 offense.5 Since Stricklin has not been subjected to

prior jeopardy for the importation conspiracy offense,

however, the inclusion of that agreement as part of the

foundation of the §848 charge is not violative of the

Fifth Amendment’s double jeopardy protection. The

attachment of jeopardy to one conspiracy prosecution

under §846 does not insulate a defendant from prose-

cution for conducting a continuing criminal enterprise

in violation of §848 if the government has evidence of a

separate conspiracy with which to satisfy the “in con-

cert” element of §848. Just as a defendant may be in-

volved in more than one conspiracy over a period of

5 The government may, in accord with the exceptions referred

to in Brown v. Ohio, rebut this presumption of a limited double jeop-

ardy violation in the continuing criminal enterprise prosecution if

it is shown on remand that the additional facts necessary to sus-

tain the §848 charge had not occurred at the time of the New Mex-

ico indictment or had not been discovered despite the exercise of

due diligence.

33a

time, he might also be the conductor of more than one

continuing criminal enterprise.

C. The Consequences of Stricklin’s Nonfrivolous

Double Jeopardy Claim

We have found that Stricklin brought forth a non-

frivolous prima facie claim of double jeopardy with

regard to at least that part of the possession con-

spiracy count in the original Texas indictment relating

to the Magdalena episode with regard to that portion of

the continuing criminal enterprise charge which refers

to the Magdalena episode and agreement as evidence of

the “in concert” element of the crime. We realize that

neither the District Court, the government, nor the

defendant was aware at the time of the double jeop-

ardy hearing that the burden of proof to show there

was no former jeopardy is on the government once the

defendant has made a nonfrivolous showing of double

jeopardy. The inference that the burden of persuasion

in such a situation remains on the defendant could be

drawn from earlier Fifth Circuit cases. See United States v.

Parker, 582 F.2d 953, 954 n. 2 (Sth Cir. 1978), citing

Rothaus v. United States, 319 F.2d 528, 529 (Sth Cir. 1963)

and Reid v. United States, 177 F.2d 743, 745 (Sth Cir. 1949);

United States v. Inmon, 568 F.2d 326, 331 (3d Cir. 1977).

Parker and Inmon recognized, however, that Rothaus and

Reid, on which the inference is based, were decided

before Abney. As such, they are not binding authority

on the issue of where the burden of persuasion lies in

an appealable pretrial determination of a double jeop-

34a

ardy claim. Abney's requirement that the double jeop-

ardy issue be resolved before trial demands that new con-

siderations become controlling and the burden is thus

shifted. The records were fully developed when post-

trial appeals of double jeopardy claims were the rule

prior to Abney, and the defendant could carry the

burden of proving double jeopardy without unreason-

able strain. To subject the defendant to that burden

before the records are developed at trial, however,

would be unreasonable, especially when the govern-

ment has exclusive access to some of the possibly deter-

minative materials at that time. For that reason, as well

as the others discussed in part II of this opinion, we

assign the burden of persuasion in a pre-trial double

jeopardy hearing to the government upon the defend-

ant’s making a prima facie showing of prior jeopardy.

However, because the parties as well as the District

Court in this case were not apprised of the govern-

ment’s burden prior to our holding today, we remand

for another hearing on those charges which were

shown by the defendant to be prima facie violative of

the Fifth Amendment, so that the government has the

opportunity to carry its burden and the District Court

has the opportunity to apply the proper standards in re-

solving the defendant’s double jeopardy claims.

Assuming that Stricklin makes the speedy trial argu-

ment referred to in part I of this opinion, the District

6 Nor did the parties or the Court have the benefit of the Third

Circvit’s analysis in Inmon, for that case was decided on November

28, 1977, some three months after Stricklin’s pretrial hearing.

35a

Court will also be faced on remand with reevaluation of

the charges in the Tennessee indictment as compared

with those in the Texas indictment. The District

Court’s task on remand, then, is to examine the

Tennessee and New Mexico indictments and deter-

mine whether or not, in the trial on either one, he, as

the presiding trial judge, would have permitted the

prosecution to prove the matters now alleged in the

Texas indictment. If he would have admitted evidence

of those allegations, then the previous indictments bar

the offending charges in the Texas indictment. This ap-

proach is in accord with the “same evidence” test of

whether proof of the matter set out in a second indict-

ment is admissible as evidence under the first indict-

ment and, if it is, whether aconviction would have been

properly sustained on such evidence. See United States v.

Marable, 578 F.2d at 153. We recognized in Marable that

the essence of a double jeopardy determination in a

conspiracy case is whether there was more than one

agreement, i.d., but continued use of the “same evi-

dence” test in cases such as this one may be valuable in

reaching that determination.

AFFIRMED in part; REVERSED in part; AND

REMANDED.

36a

APPENDIX “C”

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

June 22, 1979

TO ALL PARTIES LISTED BELOW:

NO. 77-3072 — U.S.A. v. JACK MOODY

STRICKLIN, JR.

Dear Counsel:

This is to advise that an order has this day been enter-

ed denying the petition for rehearing, and no member

of the panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the petition for

rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

Is} Sally Hayward

Deputy Clerk

37a

APPENDIX “D”

AFFIDAVIT OF PETITIONER

THE STATE OF TEXAS _)

COUNTY OF EL PASO )

BEFORE ME, the undersigned authority, a Notary

Public in and for said county and state, on this day per-

sonally appeared JACK MOODY STRICKLIN, who,

being by me first duly sworn, upon his oath deposed

and stated;

“My name is JACK MOODY STRICK-

LIN, and I reside in El Paso, Texas. ~

am the sole Defendant in cause no. Ep-77-

CR-160 now pending in the Western District

of Texas, El Paso Division, and I was the

Appellant in cause no. 77-3072 before the

United States Court of Appeals for the Fifth

Circuit.

My retained Counsel in these causes was

the late LEE A. CHAGRA. Unfortunately, Mr.

CHAGRA was killed during my appeal. His

brother, JOE CHAGRA, assumed responsi-

bility for my appeal from that point onward. |

depended upon him to prosecute my appeal. It

was my understanding that if we were not

successful in the Fifth Circuit, that he would

file a Petition for Certiorari to the United

38a 39a

States Supreme Court. Within a few days of | APPENDIX “E”

the denial of my motion for rehearing en banc,

Mr. CHAGRA again promised me that we AFFIDAVIT OF FORMER COUNSEL

would file a Petition for Certiorari. I relied

on him to do exactly that. When he in- THE STATE OF TEXAS )

formed me on July 30, 1979 that there was a

thirty-day limitation and that he had failed to COUNTY OF TRAVIS )

file a Petition within that period, I discharged

him as Counsel. I immediately retained other BEFORE ME, the undersigned authority, a Notary

Counsel, the firm of JOSEPH (SIB) | Public in and for said county and state, on this day per-

ABRAHAM, JR., 505 Caples Building, El Paso, j sonally appeared JOSEPH CHAGRA, who, being by me

Texas 79901, on August 3, 1979, and directed first duly sworn, upon his oath deposed and stated;

them to file a Petition immediately.”

| “My name is JOSEPH CHAGRA , I reside in

FURTHER AFFIANT SAYETH NOT. El Paso, Texas, and I am a practicing attorney

licensed to practice in the United States Court

of Appeals for the Fifth Circuit and the Unit-

ed States District Court for the Western Dis-

trict of Texas.

JACK MOODY STRICKLIN was aclient of

my brother, the late LEE A. CHAGRA. LEE

CHAGRA was murdered on December 23,

1978, during the pendency of Mr. STRICK-

LIN’s appeal. I assumed responsibility for

Is! Nancy C. Coryell Mr. STRICKLIN’s appeal at that time. How-

NOTARY PUBLIC, inand for ever, my other brother, JIMMY CHAGRA,

Is} Jack Moody Stricklin, Jr.

E! Paso County, Texas was subsequently indicted and, the combina-

JACK MOODY STRICKLIN, JR.,

Affiant

SWORN TO AND SUBSCRIBED TO BEFORE ME, by

the said JACK MOODY STRICKLIN, JR. on this, the

15th day of August, 1979, to certify which, witness my

hand and seal of office.

tion of the two events, along with the family

and legal problems they entailed, have pre-

vented me from discuarging my responsi-

bility to JACK MOODY STRICKLIN as his

lawyer.

My Commission Expires:

March 27, 1981

(SEAL)

40a

Specifically, I promised JACK MOODY

STRICKLIN that I would prepare and file a

Petition for Certiorari in the United States

Supreme Court. I did not tell him about the

time limitation involved, but simply that |

would file the Petition. Because of my pre-

occupation with my brother’s trial which was

then pending, I neglected to prepare and file

the Petition. Indeed, I was so preoccupied that

I failed to notice that the time had passed until

July 27, 1979. linformed Mr. STRICKLIN of

my lapse on July 30, 1979. Hedischarged me as

Counsel on August 3, 1979.

FURTHER AFFIANT SAYETH NOT.

Is! Joseph Chagra

JOSEPH CHAGRA, Affiant

SWORN TO AND SUBSCRIBED TO BEFORE ME,

by the said JOSEPH CHAGRA, on this, the 3rd day of

August, 1979, to certify which, witness my hand and

seal of office.

ls} David H. Reynolds

NOTARY PUBLIC in and for

Travis County, Texas

(SEAL)

My Commission Expires:

May, 1981

4la

APPENDIX “F”

AFFIDAVIT OF PRESENT COUNSEL

THE STATE OF TEXAS )

COUNTY OF EL PASO )

BEFORE ME, the undersigned authority, a Notary

Public in and for said county and state, on this day per-

sonally appeared CHARLES LOUIS ROBERTS, who,

being by me first duly sworn, upon his oath deposed

and stated:

“My name is CHARLES LOUIS ROBERTS,

and I am an Associate in the firm of JOSEPH

(SIB) ABRAHAM, JR., 505 Caples Building, El

Paso, Texas 79901.

On August 3rd, 1979, JACK MOODY

STRICKLIN informed us that he had dis-

charged his previous Counsel, JOSEPH

CHAGRA, and that he wished to retain us to

prepare an out-of-time Petition for Cer-

tiorari to the United States Supreme Court.

We had not participated in this cause in any

manner or at any level and were thus com-

pletely unfamiliar with the facts and legal

issues. After locating and reading the record,

we composed and prepared the preceeding

Petition within eight working days and trans-

mitted it by Continental Airlines to our print-

42a

er in New Orleans, Louisiana. I am familiar

with the facts contained in the foregoing Affi-

davits of JOSEPH CHAGRA and JACK

MOODY STRICKLIN, and to the best of my

knowledge they are true and correct.

FURTHER AFFIANT SAYETH NOT.

CHARLES LOUIS ROBERTS,

Affiant

SWORN TO AND SUBSCRIBED TO BEFORE ME,

by the said CHARLES LOUIS ROBERTS on this, the

15th day of August, 1979, to certify which, witness my

hand and seal of office.

Is} Karen Jeffery

NOTARY PUBLIC, inand for

El Paso County, Texas

My Commission Expires:

March 27, 1981

(SEAL)

a ee di