Petition — Toughill v. United States

| | IN THE fe

Supreme Court of the United States:

October Term, 1979

GARY TOUGHILL,

MARGUERITE COSTANZA

and

SAUNDRA NAVARRO,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FCR THE NINTH CIRCUIT

Victor Sherman of SHELDON SHERMAN

NASATIR, SHERMAN & HIRSCH 520 "E" Street, Suite 1100

9911 W. Pico Blvd., Suite 1000 San Diego, Ca. 92101

Los Angeles, Ca. 90035 (714) 236-1826

(213) 277-3112 Attorney for Petitioner

Attorney for Petitioner Toughill Costanza

RICHARD BARNETT

108 Ivy Street

San Diego, Ca. 92101

(714) 231-1182

Attorney for Petitioner

Navarro:

Dean-Standefer, 3262 Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

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bbe

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TOPICAL INDEX

Petition for Writ of Certiorari +

eS BE a

ER AY ES Se EI

eee

Constitutional Provisions and

ELE a ee

Reasons Why The Writ Should

EAS EO a

pa SBR LES SRP a

A. Further prosecution of petitioners on

the remaining counts of the indictment

would violate the double jeopardy pro-

vision of the United States Constitution

B. The deliberate overreaching practiced

by the government bars further prosecu-

TE EE ee

I ie a inc cece ee

Index to Appendixes

Appendix “A”

Appendix “‘B”’

Proof of Service

ii

TABLE OF AUTHORITIES CITED

Cases Page

Abney v. United States, ..... SGA cienes

PUTED 0c 5 Se end en Sed wade 3

Arnold v. United States, 336 F.2d 347 (1964)... 2, 2

Barktus v. Illinois, 395 U.S. 121, 79 S. Ct.

676 (1959) (Black, J., dissenting) ........ 8,9

Braverman v. United States, 317 U.S. 49,

Pe ke OF RR ho tc aye HR ete 12, 26

Brown v. Ohio, 432 U.S. 161,

es tes ee Te ak hoe wo Oe pees 13

Burks v. United States, ..... I acees)

ge Me Ok oS | ar or erm 28, 29

Downum v. United States, 372 U.S. 734,

Oa Gre Se SO cela se eo red sek as 29

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

o. 2 Bi Re tA a) yy eee pte en rae 9

Illinois v. Somerville, 410 U.S. 458,

ff Bee 8. > ee eee rae 29

Kowalski v. Parratt, $33 F.2d 1071

(8th Cir.), cert. denied, 429 U.S. 844,

go Yeahs 3 i. 9. 1 A nearer 11

Launius v. United States, 575 F.2d 770

CO a: Whe a el aa ty os og ba es 12

Lee v. United States, ..... eee

ee NO eat lB pe: i ns are 31

Sanbria v. United States, ..... Sa

PO De SAE TORRE TOD Cok eb ee ec eeenee se 26, 27

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Sanchez v. United States, 341 F.2d 225

(9th Cir.), cert. denied, 382 U.S. 856,

% ee | Rees re eee 11,12

United States v. Cohen, 197 F.2d 26

I en ee ean eee otal 12

United States v. Cooper, 442 F. Supp. 1259

Sos SE ROTI Seabee es wees 10, 15, 16, 17, 18, 26

United States v. Dinitz, 424 U.S. 600,

SG: Cas re Cem Tee: Bia Uae dei 29, 30, 31

United States v. DiSilvio, 520 F.2d 247

(3rd Cir.), cert. denied, 423 U.S. 1015,

ee ee eT TN ok cas oa este as 31

United States v. Guido, 597 F.2d 194

(9th Cir. 1979) ...10, 11, 19, 20, 21, 22, 23, 24, 25, 26

United States v. Kessler, 530 F.2d 1246

RR RR dike orb thes os ly co ee cei 30, 32, 33

‘United States v. Mallah, 503 F.2d 971

(2nd Cir. 1974), cert. denied, 420 U.S.

999, Fo a Gt, 1475 C1975)...» 46, 12, 13, 24; 15, 18

United States v. Marotta, 518 F.2d 681

oe Ry | eee) eee ae 26

United States v. Martin, 561 F.2d 135

SS RE anne ae et 31, 34, 35

United States v. Moore, 522 F.2d 1068

(9th Cir. 1975), cert denied, 423 U.S.

Ss WP Os FTE EOPOD. bo cw otros bbb aes 12

iv

TABLE OF AUTHORITIES CITED

Cases (cont’d) Page

United States v. Palermo, 410 F.2d 468

t, 1% Bo. ROT wre ee eer wear ae 12

United States v. Ruigomez, 576 F.2d 1149

(Sih Cle. ISTE) ncn dence Aa ken el see 10, 17, 18

United States v. Westover, 511 F.2d 1154

(9th Cir.), cert. denied, 422 U.S. 1009,

fF ee Ry cy: eee ee earay 11

United States Constitution

Deen Vo i snk ce BR eee 4, 8, 16, 36

United States Statutes

Title 21, United States Code

DOVIOMED o vcae te cieenavnces ee eeecena 3

L Peyerererrie verre e ar eo ce

DOSE. kv eecwcdadveeseny eau eues Soe 3

Leroy er err gry ere ee re 3

SIGS he Savcieivarcuseessdt tua eee 3, 24, 22

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

FG cease

GARY TOUGHILL,

MARGUERITE COSTANZA

and

SAUNDRA NAVARRO,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATE COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

This is a petition for GARY TOUGHILL, MARGUERITE

COSTANZA and SAUNDRA NAVARRO for a writ of certiorari

ze, os

to review the order made by the United States Court of

Appeals for the Ninth Circuit on December 3, 1979, re-

fusing to dismiss the indictment on double jeopardy

grounds. The United States Court of Appeals for the

Ninth Circuit ruled that as petitioners were charged with

four separate offenses as defined by four distinct criminal

statutes!, the acquittal on the importation charges was

not a bar to a retrial on the charges of conspiracy to pos-

sess and distribute and the substantive offense of posses-

sion with intent to distribute. The Ninth Circuit Court

also ruled that there was no deliberate overreaching by the

government prosecutor which would have barred retrial of

the petitioners.

OPINION BELOW

To the petitioners’ knowledge, the opinion in the

United States Court of Appeals for the Ninth Circuit,

affirming the denial of petiticners’ motion to dismiss, has

not been officially or unofficially reported as yet. (A copy

of said opinion is attached hereto as Appendix “‘B’’.)

JURISDICTION

1. On August 16, 1978, the Federal Grand Jury for

the Southern District of California returned a four-count

indictment against petitioners and four other persons. A

superseding indictment was thereafter filed on October 6,

Ror a full and complete text of the relevant statutes, see Appendix “A”

attached hereto.

‘silos

1978, again in four counts, charging a conspiracy under

Title 21, United States Code Sections 952, 960 and 963,

to import cocaine (count one); a conspiracy under Title

21, United States Code Sections 841(a)(1) and 846, to

distribute cocaine (count three); and the substan ive acts

of importation and possession of cocaine with intent to

distribute (counts two and four).

2. On December 5, 1978, a three-week trial com-

menced before the Honorable William B. Enright, at the

conclusion of wr.ich the jury acquitted petitioners

COSTANZA and NAVARRO of counts one and two, and

petitioner TOUGHILL of count two but was unable to

reach a verdict as to count one. The jury was also unable

to reach a verdict as to all of the petitioners on counts

three and four. When the government indicated it would

retry the petitioners on counts three and four, a motion

to dismiss the indictment on double jeopardy grounds was

filed. The trial court denied this motion, but agreed to

stay any further proceedings pending the resolution of an

interlocutory appeal. Petitioners thereafter filed a timely

Notice of Appeal.

3. On December 3, 1979, the United States Court

of Appeals for the Ninth Circuit affirmed the denial of

petitioners’ motion to dismiss, and on February 12, 1980,

petitioners’ Petition for Rehearing and Suggestion for Re-

hearing in Banc was denied by said court.

4. The jurisdiction of this Court is invoked under

Title 21, U.S.C. Section 1254(1) and Abney v. United

States, ..... USS. ....., 97 S. Ct. 2034 (1977).

weillhoes

QUESTIONS PRESENTED

Did the acquittal of petitioners on counts one

and two of the indictment bar further prosecution on

counts three and four under the double jeopardy pro-

vision of the United States Constitution?

Did the deliberate overreaching practiced by

the government bar further prosecution of all petitioners?

What effect should a decision from a different

panel of the same court, involving basically identical facts,

have upon a decision rendered by another panel?

CONSTITUTIONAL PROVISIONS

AND

STATUTES INVOLVED

Fifth Amendment to the United States

Constitution.

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a grand jury, except in

cases arising in the land or naval forces, or in the

militia, when in actual service in time of war or

public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor

be deprived of life, liberty or property without

due process of law; nor shall private property be

taken for public use, without just compensation.”

nine

2. Title 21, U.S.C. 8 841(a)(1).

3. Title 21, U.S.C. § 846.

4. Title 21, U.S.C. § 952.

5. Title 21, U.S.C. § 960.

6. Title 21, U.S.C. § 963.

The foregoing statutes have been set forth

in Appendix “‘A”’ attached hereto.

STATEMENT OF THE FACTS

Without the benefit of the transcript of the trial

proceedings, petitioners’ counsel are only able to provide

the Court with a general summary of the evidence that was

presented.

Some time in the latter half of 1973, at Sandstone

Penitentiary in Minnesota, a Larry Eugene WEBER met

petitioner GARY TOUGHILL and co-defendant KENNETH

REUBEN KELSEY, who were serving time for the sale of

cocaine. WEBER was told by KELSEY about a process for

removing impurities from cocaine prior to distribution.

KELSEY spoke of an individual in California who had

developed the process and acted as the chemist, and another

individual by the name of “JIMMY” who was a partner.

KELSEY discussed the possibility of WEBER providing

cocaine in the future, and WEBER gave KELSEY his tele-

phone number where he could be reached after his release

from prison.

During the summer of 1975, WEBER was contacted

at that telephone number by KELSEY, who wanted to know

if WEBER knew a source in California for cocaine. WEBER

thereafter flew to California and introduced KELSEY and

co-defendant JAMES VINCENT MAMARA to an individual

by the name of Rudy ESTRADA, who in turn introduced

them to co-defendant CAESAR ALARID-ARAGON, a

source for cocaine in Mexico. Arrangements were then

made for ALARID to deliver shipments of cocaine to

KELSEY ’s residence in the United States.

Beginning in August of 1975, representatives of

ALARID delivered cocaine regularly from Mexico to

KELSEY’s residence at 29811 Disney Lane in Vista,

California. Residing at the residence during this period

were KELSEY, ESTRADA and his girlfriend, Priscilla

RAMES. When the cocaine was delivered, it was taken

into a back room where KELSEY or ESTRADA would

test its quality. On occasion, MAMARA and co-defend-

ant SALVATORE PEPE were also present. In November

of 1975, WEBER received another telephone call from

KELSEY, who stated that things were going well and that

he should come back out. WEBER thereafter drove his

motorhome to California and was thereafter present at

KELSEY’s residence when the cocaine was delivered.

If the cocaine was found to be satisfactory, it was

driven by either KELSEY or MAMARA, usually accom-

panied by either ESTRADA, WEBER or PEPE, to a resi-

dence located at 2036 Stanley Hills Drive in Los Angeles,

California. This residence had been rented by KELSEY’s

girifriend, petitioner MARGUERITE COSTANZA. There,

oe.

the cocaine was broken down into smaller quantities and

then delivered by KELSEY to co-defendant ROBERT

EUGENE PRESTON at a secret laboratory located in

Holly wood, California. PRESTON was the chemist who

purified the cocaine by a laboratory process using Freon

and other chemicals. After this purification process, the

cocaine was brought back to the Stanley Hills residence

by KELSEY, where it was packaged in small, glass vials

by petitioner COSTANZA and petitioner SAUNDRA

NAVARRO. The cocaine was then sold in the Hollywood

area and elsewhere for approximately $100 per bottle.

Toward the end of 1975, the quality of the cocaine

being delivered by ALARID became progressively worse.

Finally, at the end of January of 1976, KELSEY termin-

ated his dealings with ALARID. Then, in March of 1976,

the Disney Lane residence was visited by Drug Enforce-

ment Administration (DEA) agents who were looking for

Roger Keith Davis, a federal fugitive. Shortly thereafter,

the Disney Lane residence was vacated, WEBER returned

to Minnesota, and the partnership between KELSEY,

MAMARA, ESTRADA and ¢RESTON ended.

In April of 1976, KELSEY and his new girlfriend,

SHEREEN GOUL, rented a residence located at 4951

San Yacinto Circle in Fallbrook, California. There, the

cocaine operation continued, with the new source for

cocaine apparently being an individual by the name of

Lawrence PEBBLES. Petitioner TOUGHILL, who had

now been released from prison, and co-defendant ROGER

LEE BURKETT allegedly became KELSEY’s new partners,

and allegedly aided KELSEY in reprocessing the cocaine at

the San Yacinto Circle residence.

- ™

On September 26, 1977, DEA agents proceeded to

the San Yacinto Circle residence to serve an arrest warrant

on a Ms. Lynn SENO. In connection with that arrest, a

search warrant was obtained, and seized from the residence

was laboratory equipment, packed in steamer trunks, which

the government contended was used to reprocess the cocaine.

Also seized during the search were various chemicals alleged-

ly used for reprocessing cocaine and several thousand small

giass vials. These were traced to several businesses in the

Los Angeles area, from which business records for the

purchases were obtained. Some of the defendants were

identified by employees of these companies as purchasers

of the chemicals or glass vials. Other defendants were iden-

tified by handwriting comparison with the purchase orders.

REASONS WHY

THE WRIT SHOULD BE GRANTED

The fundamental nature of the Fifth Amendment’s

prohibition against placing a defendant “twice in jeopardy”

can hardly be doubted. Its origins can be traced to Greek

and Roman times, and it became established in the common

law of England long before this nation’s independence. See

Barktus v. Illinois, 359 U.S. 121, 151-155, 79 S. Ct. 676,

697 (1959) (Black, J., dissenting). As with many other

elements of the common law, it was carried into the juris-

prudence of this country through the medium of Blackstone,

who codified the doctrine in his ““commentaries.” “[T] he

plea of autrefois acquit, or a former acquittal,”’ he wrote,

“is grounded on this universal maxim of the common law

of England, that no man is to be brought into jeopardy of

oe

his life more than once for the same offense.”” Today,

every State incorporates some form of the prohibition

in its constitution or common law. As this Court noted

in Green v. United States, 355 U.S. 184, 187-188, 78 S.

Ct. 221, 223 (1957), the policy underlying this provision

“is that the State with all its resources and power should

not be allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting him

to embarrassment, expense and ordeal and compelling

him to live in a continuing state of anxiety and insecurity,

as well as enhancing the possibility that even though inno-

cent he may be found guilty.”

In the instant case, it was petitioners’ argument that

further prosecution on the remaining counts of the indict-

ment was barred by the Double Jeopardy Clause because

of the method in which the government charged the case

and argued the facts of the case to the jury. By alleging

identical overt acts in furtherance of both conspiracy

charges, the government, in reality, was saying that only

a single over-all conspiracy existed to import and distribute

cocaine in the Southern and Central Districts of California.

Government counsel relied on this theory when presenting

his case to the jury.? There was not a single instance in

which he argued to the jury that certain evidence was being

offered to support the importation charges as opposed to

the distribution charges, or vice versa. Rather, government

2Government counsel was forced to follow this oem because he knew

from his own reports that there was no evidence indicating that these peti-

tioners were involved in the conspiracy to import. It was thus the obvious

hope that the evidence presented concerning the distribution charges would,

in the minds of the jurors, “spill over” to the importation charges which

dictated government counsel's strategy.

= a

counsel continually merged the evidence in an attempt

to prove one over-all conspiracy which each charged

defendant participated in at one time or another. The

acquittal on the first conspiracy count thus acted as a

bar to any further prosecutic of a second conspiracy

count, because precisely the same evidence was presented

by the government to prove both conspiracies.

The other courts that have recently dealt with this

very issue have focused on the unfairness of the situation

where the government arbitrarily divides a single conspir-

atorial agreement in such a way as to result in multiple

counts in a single indictment or even separate indictments

in different jurisdictions. Such cases as United States v.

Mallah, 503 F.2d 971 (2nd Cir. 1974), cert. denied, 420

U.S. 995, 95 S. Ct. 1425 (1975); United States v. Ruigo-

mez, 576 F.2d 1149 (Sth Cir. 1978); and United States

v. Cooper, 442 F. Supp. 1259 (D. Minn. 1978), have

recognized the difficulties a defendant encounters when

raising this issue and have thus fashioned a more equitable

test than the “same evidence’”’ test by considering the

totality of the circumstances rather than just whether

the different charged offenses were supported by the

same evidence. Again, this new test was adopted speci-

fically because of the injustice the courts perceived a

criminal defendant faced when combatting multiple

prosecutions based upon a single offense.

In United States v. Guido, 597 F.2d 194 (9th Cir.

1979), a factually similar case to the one at bar, a panel

of the Ninth Circuit Court of Appeals also recognized the

unfairness of “‘prosecutorial overreaching”’ in ordering an

>. 6

indictment dismissed based upon the court’s “supervisory

=|

power of the administration of criminal justice.” It

was precisely the same type of “unfairness” remedied

by the court in Guido which the panel deciding the

instant case unfortunately ignored. Only by going be-

hind the face of the indictment—to look beyond the

mere number of violations charged—could that panel

and this Court possibly realize the injustice these petition-

ers would suffer if forced to trial once again. As the policy

underlying the Double Jeopardy Clause is to avoid such

injustice, and as the opinion in this case appears incon-

sistent with the recognition of that principle in Guido

and other recent Court of Appeals’ decisions, petitioners

respectfully submii that the granting of this petition for

writ of certiorari would be in the interests of justice.

ARGUMENT

A. Further Prosecution Of Petitioners On The

Remaining Counts Of The Indictment Would

Violate The Double Jeopardy Provision Of

The United States Constitution.

Petitioners recognize the validity of the principle

relied upon by the appellate courts that, in order to sup-

port a claim of double jeopardy, the moving party must

show that the offenses charged were in law and in fact

the same offense. Kowalski v. Parratt, 533 F.2d 1071,

1074 (8th Cir.), cert. denied, 429 U.S. 844, 97 S. Ct.

125 (1976); see also United States v. Westover, 511 F.2d

1154, 1156 (9th Cir.), cert. denied, 422 U.S. 1009,

95 S. Ct. 2633 (1975); Sanchez v. United States, 341

pa

F.2d 225, 227 (9th Cir.), cert. denied, 382 U.S. 856,

86 S. Ct. 109 (1965). The court failed to recognize,

however, the equally valid principle that a conspiracy

may not be subdivided arbitrarily in such a way as to

result in multiple indictments on a single conspiratorial

agreement. United States v. Mallah, supra, 503 F.2d

at 985; United States v. Palermo, 410 F.2d 468, 470-

471 (7th Cir. 1969); United States v. Cohen, 197 F.2d

26, 29 (3rd Cir. 1952); see also United States v. Moore,

522 F.2d 1068, 1078 (9th Cir. 1975), cert. denied, 423

U.S. 1049, 96 S. Ct. 775 (1976). Where it thus appears

on the face of the indictment that but one agreement

was involved, and hence but one conspiracy, “‘[t] he

one agreement cannot be taken to be several agreements

and hence several conspiracies because it envisages the

violation of several statutes rather than one.” Braver-

man v. United States, 317 U.S. 49, 53, 63 S. Ct. 99,

102 (1942); accord, Launius v. United States, 575 F.2d

770, 771 (9th Cir. 1978). In applying both of these well-

established principles to the facts of the instant case,

therefore, the critical question the court was faced with

was whether the government treated the elements of the

separate offenses as one over-all conspiracy, not simply

whether on the face of the indictment four separate

offenses were charged.

As previously indicated, the “‘same evidence”’ test,

the traditional standard used to determine whether offenses

are the same*, has become open to serious question in

3This test was restated by the Ninth Circuit in Arnold v. United States,

336 F.2d 347, 349 (1964), as follows:

dc BS.

narcotics conspiracy cases. Realizing the inadequacy

of the “‘same evidence”’ test in determining whether one

criminal conspiracy is the same as the second criminal

conspiracy and the difficulties a defendant encounters

when raising this issue, the Second Circuit in United

States v. Mallah, supra, held that once a defendant intro-

duces sufficient evidence that the two conspiracies alleged

were in fact one, the burden shifts to the government to

rebut the inference of unity.* (503 F.2d at 986.) The

particular facts which compelled the Mallah court to

reverse the conviction of appellant Pacelli warrant elabor-

ation.

Pacelli was first convicted of conspiring with three

named co-defendants and “‘others to the Grand Jury

unknown” to traffic in narcotics from January 1, 1971

to June 14, 1971 (Pacelli I). All overt acts alleged took

place in New York City in May, 1971. The proof indi-

cated that Pacelli’s co-defendants were underlings in a

narcotics conspiracy but did not define the scope of the

operation of which they were a part. Pacelli’s second

3 (cont'd)

“Is proof of the matter set out in a second indictment admissible

oe evidence under the first indictment, and could a conviction have

Sorbet at sustained on such evidence? If the answer is yes, then

sufficient; otherwise, it is not. [See citation omitted.]”

In nage this standard, however, courts anny y- mindful that this is not a

standard of mathematical precision. In Bro 432 U.S. 161, 97

S. Ct. 2221 (1977), the Supeenie Court limitation:

“It has long been understood that separate statutory crimes need

not be identical—either in constituent elements or in actual proof—

in order to be the same within the m of the constitutional pro-

hibition.” (432 U.S. at 164, 97 S. Ct. at 2224.)

4since the court concluded trhat the government failed to satisfy the stricter

traditional test, the court did not reach the issue of whether a different

standard should be applied. (503 F.2d at 985, n. 7.)

="

conviction (Pacelli VI)° also involved membership in a

narcotics conspiracy, this time with sixteen named co-

defendants and “others to the Grand Jury unknown.”

This conspiracy allegedly began the same date as that in

Pacelli I and continued into 1973. Again all overt acts

occurred in New York City. The proof in Pacelli VI

established a large-scale conspiracy with Pacelli near the

core and a large staff beneath him. The court noted the

- fact that the period of the first conspiracy was totally

subsumed by the period of the second. Also, the location

of the conspiracies was the same. These factors alone,

however, were not sufficient indicia of a single conspiracy.

As the Mallah court recognized, “New York City is large

enough to harbor two simultaneous narcotics conspir-

acies .... ” (503 F.2d at 983.)

In concluding that the two conspiracies were, in fact,

one conspiracy, the court reasoned that the naming of

only low-level foot soldiers and Pacelli, together with

“others to the Grand Jury unknown,” in Pacelli I, sug-

gested that the others unknown were the named defend-

ants in Pacelli VI. The Pacelli I conspiracy could not have

operated without a larger organization backing it up. The

suggestion that this larger organization was the Pacelli VI

network was further buttressed by evidence that personnel

in one conspiracy were acquainted with those in the other.

(See discussion, 503 F.2d at 985-986.) Thus, the court

found it unclear whether there was any difference between

the two conspiracies with respect to such key factors as the

The cases are labeled as in the Mallah opinion. Pacelli’s entanglement with

the law unrelated to the double jeopardy issue accounts for the intervening

numbers.

i ek

principals, the source of their drugs, the means and places

of importation, their distribution points, and the center

from which they operated. Concluding that the govern-

ment had not rebutted the presumption that the two

conspiracies of which Pacelli had been convicted were

in fact one conspiracy, the court reversed his conviction.

(Id.)

In United States v. Cooper, supra, the court also

recognized the inadequacy of the “same evidence” test

and adopted a different test. The standard which the

court deemed appropriate was stated as follows:

“|. . whether or not the totality of the cir-

cumstances demonstrate an identity of purpose

and commonality of personnel, of time, of locale

and of method of operation sufficient to permit

the court to conclude that the agreements are

in fact the same.” (442 F. Supp. at 1263, foot-

note omitted.)

The facts of the Cooper case also warrant further discussion.

Appellants, Ernesto and Juan Tercero, and numerous

others were charged in the District of Minnesota with con-

spiracy to import marijuana into the United States. The

conspiracy charged was alleged to have commenced on

an unknown date in 1974 and to have continued thereafter

until September, 1975. The conspiratorial acts were alleged

to have taken place in “Minnesota, Arizona and elsewhere.”

Count two charged a conspiracy to distribute marijuana.

In form, it was otherwise identical to count one. Approxi-

mately one year later, appellants and others were charged

in the District of Arizona with conspiracy to import mari-

juana into the United States. This conspiracy was alleged

a

to have existed from March 1, 1975 to May 13, 1975.

The conspiratorial acts were alleged to have taken place

in “Arizona and elsewhere.”” Count two charged a con-

spiracy to distribute marijuana; it was otherwise identi-

cal to count one. Appellants went to trial on the Arizona

charges first and the District Court entered a judgment of

acquittal. When brought to trial on the Minnesota charges,

appellants maintained that the conspiracies charged in

Arizona and those charged in Minnesota were in reality

a single conspiracy, and that they were thus entitled to

the protection of the Double Jeopardy Clause of the Fifth

Amendment.

In accepting the defendants’ argument that the evi-

dence demonstrated only one over-all conspiracy to import

marijuana from Mexico and to distribute it throughout the

United States, the court placed particular emphasis on the

overlaps in personnel, in time and in locale.

“The dates, the locations, the personnel and the

method of operation involved in the conspira-

cies charged in the Arizona and Minnesota indict-

ments overlap to such an extent that the court can

do nothing but conclude that the two operations

are no more than different faces of a single conspir-

acy.”’ (442 F. Supp. at 1263.)

The court thereafter discussed each of these factors more

fully and concluded its reasoning with particularly appro-

priate language to the case at bar.

“Thus, it is clear that the unlawful purpose of

the various conspiracies charged was the same

and that the principal actors were unchanged.

It is equally clear that there were other persons

|

who played minor roles and who did not know

the scope of the over-all conspiracy; many of

those persons did not remain members of the

conspiracy for its entire duration. However, the

addition of new members to a conspiracy or the

withdrawal of old ones does not fragment the

conspiracy into numerous separate and unrelated

conspiracies. [See citation omitted.] It is also

clear that the times during which the conspiracies

continued and the locales in which they operated

were substantially the same. [See citation omitted. ]

“Therefore, the court is satisfied that Ernesto

and Juan Tercero have met the test which the court

determines to be appropriate. The totality of cir-

cumstances demonstrate an identity of purpose

and a commonality of personnel, of time, of locale

and method of operation. Based upon that showing,

the court concludes that the agreements are the

same and that Ernesto and Juan Tercero may not

be tried again for the same offense.”” (Emphasis

added.) (442 F. Supp. at 1265-1266.)

Another relevant case in this area was recently decided

by the Fifth Circuit in United States v. Ruigomez, supra. In

that case, Ruigomez was indicted for several violations of

federal narcotics laws, including one charge of conspiracy

to possess marijuana with intent to distribute. Following

his trial and acquittal on these charges, the government

secured a second indictment against him on an identical

conspiracy count, supported by facts similar to those alleged

in the previous indictment, and on an additional count of con-

spiring to distribute marijuana. At his second trial, Ruigomez

a

was convicted on the former count, and he appealed that

conviction as the product of double jeopardy, claiming

that the government impermissibly carved two conspiracies

out of one.

In contending that the conspiracies were separate and

distinct, the government argued that different overt acts

were alleged in each indictment, thereby requiring the

question to be resolved by use of the “‘same evidence”

test. The court, however, declined to apply this test, ruling,

as did the Mallah and Cooper courts, that using such a test

permits the government arbitrarily to split unitary narcotics

conspiracies and to initiate many prosecutions. (576 F.2d

at 1151.) The court, rather, found the relevant question to

be whether the particular transactions alleged in the indict-

ment were within a larger, unified conspiracy. Finding that

the evidence supported a single, continuing conspiracy to

purchase and distribute marijuana, the court reversed Rui-

gomez’s conviction as being the product of an unconstitu-

tional imposition of double jeopardy.

In the case at bar, the factual situation warranting

application of double jeopardy guarantees is even stronger

than the Mallah, Cooper and Ruigomez cases. For here, the

government alleged that exactly the same evidence proved

both the charges involving importation and the charges

involving distribution. The participants in each set of

charges were alleged to be the same, as were the time

periods, ! cations, and method of operation. These factors

would satisfy the usual test for determining the existence of

a unified conspiracy, but especially so under the newer test.

Thus, by alleging identical overt acts in furtherance of both

conspiracies, the government was, in fact, saying that there

~~ =

was only a single, over-all conspiracy. Indeed, govern-

ment counsel relied on this very argument when it

became crystal clear that the evidence did not support

certain defendants’ participation in the charged conspir-

acy to import.

The most recent and relevant of all cases, however,

is United States v. Guido, supra, where a different panel

of the Ninth Circuit was faced with almost identical argu-

ments as those propounded by the current petitioners. In

that case, the defendants were first indicted in the Eastern

District of California with a conspiracy to import marijuana

from April 29, 1977 through May 12, 1977. A second

indictment was thereafter filed in the District of Arizona

charging a conspiracy to import and possess marijuana

with intent to distribute from March 1, 1976 through

November 15, 1976. Although the Arizona indictment

was returned second, it covered a period prior to the

period covered by the earlier California indictment.

The facts adduced under the Arizona indictment

established that in February or March of 1976, in Phoenix,

Arizona, one Doyle Rowland approached an acquaintance,

Gordon House, and requested that he act as a pilot to fly

marijuana from Mexico into the United States for the

defendant Guido. Guido explained to House that he had

contacts in Portland, Oregon, who would distribute the

marijuana if House would fly it. In either April, May or

July of 1976, these three met again with defendant Doyle

and an associate and planned their first smuggling transac-

tion. As planned, House flew to Mexico, where he procur-

ed marijuana on credit from Memo, a Mexican supplier

whom House knew from prior drug smuggling flights and

-,

had suggested. House then flew the marijuana to an

abandoned airstrip near Phoenix, where he was met by

Doyle and his associate, who transferred the marijuana

from the plane to a camper truck which was driven by

Doyle and his associate to Portland. House, after return-

ing the plane to Phoenix, rode with Guido and Rowland

to Portland, where the marijuana was distributed. Later,

House, Guido and Rowland returned to Mexico to pay

Memo.

A second, comparable transaction was executed in

August or September of 1976. Thereafter, House with-

drew from the conspiracy, and the conspirators hired

another pilot—known only as “John’’—to transport the

marijuana into Arizona from Mexico. John flew three or

four flights for Guido, Rowland and Doyle and smuggled

about 4,000 pounds of marijuana into the United States.

He, too, obtained the marijuana from Memo and distributed

it through Doyle. Because of monetary problems, John

withdrew from the conspiracy after his last flight at the end

of October or the beginning of November of 1976. At that

time or shortly thereafter, Rowland also withdrew from the

conspiracy but remained friendly, in particular with Guido,

and was apprised by the conspirators of their continuing

smuggling operation.

The facts underlying the California indictment revealed

that at about the time that Rowland withdrew from the con-

spiracy, in late November or early December of 1976, an

informant for the DEA was approached by a Charles Emerett,

who at the time was seeking a pilot to fly plane loads of

marijuana into the United States. When the informant next

sought Emerett, in March of 1977, he renewed his desire to

eee

-_..

find the pilot. Thereafter, the informant introduced

Emerett to James Plaven, an undercover DEA agent

posing as a pilot. Emerett advised Plaven that he was

associated with two other people from Phoenix (subse-

quently determined to be Guido and Doyle) and could

arrange for marijuana to be available in Mexico. Emerett

told Plaven that he sought to hire him as a replacement

for a pilot with whom there had been disagreements over

money. Plaven subsequently met with Guido and Doyle

in San Diego and learned that marijuana would be procur-

ed from Mexico and then flown to an abandoned airstrip

north of Phoenix where Doyle and another person would

meet him with a camper truck. Guido told Plaven that he

had made two previous pilots rich in approximately eleven

trips and that if the first trip was successful, the venture

would continue with Plaven making weekly flights. As

a result of these conversations, Plaven, along with another

undercover agent, flew to Phoenix, Arizona, to meet with

the defendants. Soon after the meeting, Guido and Doyle

were arrested.°

As noted above, the defendants were thereafter indict-

ed in the Eastern District of California and charged with a

conspiracy from on or about April 29, 1977, up to and includ-

ing May 12, 1977, to import marijuana into California and

elsewhere in violation of 21 U.S.C. § 963. A month later, the

Sin all of the cited cases, including Guido, the courts have gone to great

tion

length in exp the facts of eac segment or transac

in great detail. is because the way each segment or transaction related

to one another was usually the de factor in whether double dy

applied. It is for this reason in particular that petitioners feel it is essen

at the Court have before it the entire record, to see exactly what evidence

was introduced in support of the charges and, more importantly, the manner

in which such evidence was offered by government counsel.

7. a

Assistant United States Attorney who was prosecuting the

defendants in California sent a copy of that indictment to

the Assistant United States Attorney in Arizona’, identify-

ing at the same time the attorneys representing the defend-

ants in California. In December of 1977, and January of

1978, Guido and Doyle entered pleas of guilty to the charge

in California and were sentenced to terms of eighteen months

and three months, respectively.

It was not until May of 1978 that the defendants were

indicted in Arizona and charged with a conspiracy from on

or about March 1, 1976 until on or about November 15,

1976, in the District of Arizona and elsewhere, (in Count I)

to import marijuana in violation of 21 U.S.C. § 963 and (in

Count II) to possess marijuana with intent to distribute in

violation of 21 U.S.C. § 846. When the defendants moved

to dismiss the indictment on double jeopardy and due

process grounds, the government countermoved to dismiss

Count I of the indictment. The District Court granted the

government’s motion but denied the defendants’ motion to

dismiss after a pretrial hearing and also after trial. Guido and

Doyle were tried without a jury and convicted of Count II.

Guido was sentenced to a term of five months, a special

parole term of four years, and a fine of $1,000. Doyle was

sentenced to a term of three years.

Before the District Court, the defendants argued that

the conspiracy charged in Arizona was the same conspiracy

T Prior to the California indictment, House was interviewed by DEA agents

in Tucson concerning, among other things, his involvement with Guido and

Doyle. At that time, he gave a 40-page statement which implicated, among

others, Guido and Doyle in ey Pen pg Shortly thereafter, House appear-

ed before the grand jury in the District of Arizona and testified as to his

criminal eneeition with Guido and Doyle from March of 1976 through

September of 1976.

i.

to which they had pled guilty in the Eastern District of

California and that, accordingly, the indictment should

be dismissed. The District Court found otherwise, stating

that there were two separate crimes arising out of two

separate conspiracies at different times, with different

participants, and with different purposes. In concluding

otherwise, the appellate court explained its reasoning in

particularly appropriate language to the situation presented

in the present case:

“It is clear, however, that Guido and Doyle

were the key participants in the agreements alleg-

ed in both indictments. From the inception of

the conspiracy in March 1976, Doyle was Guido’s

contact in Oregon. Thereafter, Guido and Doyle

continued as masterminds and as the operational

core of an on-going conspiracy, to act together to

distribute smuggled marijuana. The conspiracy

was not, therefore, terminated by the mere change

in pilots nor by the withdrawal of Rowland and the

apparent enlistment of Emerett. [See citations

omitted. ]

“Nor is the period of time between the alleged

termination of the Arizona conspiracy on Novem-

ber 15, 1976, and the alleged beginning of the Cal-

ifornia conspiracy on April 2, 1977, persuasive.

See Braverman v. United States, 317 U.S. 49, 52,

63 S. Ct. 99, 101, 87 L. Ed. 23 (1942). Contrary

to the government’s contentions, a lapse and/or

termination of the conspiracies cannot be inferred

simply from an apparent lull in drug deliveries.

Emerett sought a replacement pilot first in November

a

or December 1976 and then again in April 1977.

With the assistance of a government informant,

he enlisted Agent Plaven. Thus, there was but

one On-going conspiracy that, as Plaven was told

when he was recruited to replace a previous pilot,

had been successful in using the proposed method

of importation and distribution.

“Nor did the purposes of the alleged conspir-

acies differ. The California indictment charged

Guido and Doyle merely with conspiracy to

import marijuana but the parties clearly conspired

as well to distribute any marijuana successfully

smuggled by Plaven. The Arizona indictment

charged both conspiracy to possess with intent

to distribute and conspiracy to import marijuana.

The government's deliberate dismissal of the impor-

tation count after defendants moved to dismiss the

indictment cannot change the fact that the purpose

of the alleged Arizona conspiracy was to import as

well as to distribute marijuana.

“To summarize, the conspiracies alleged in

both indictments involved the same objectives

(to import and distribute large quantities of mari-

juana), the same key participants (Guido and Doyle),

the same source (Memo, who apparently fits the

description given Plaven of the Mexican supplier

in Santa Ana), the same means (a small private

plane and camper truck), the same place of impor-

tation (Arizona airstrips), the same distribution

points (Portland), and one period of time (1976-

1977). Thus, it is hard to escape the conclusion

a.

that the conspiracies alleged in the California

and Arizona indictments were in fact a single

continuing conspiracy. United States v. Mallah,

503 F.2d 971 (2nd Cir. 1974), cert. den., 420

U.S. 995, 95 S. Ct. 1425, 43 L. Ed. 2d 671

(1975); United States v. Tercero, 580 F.2d 312

(8th Cir. 1978).” (Emphasis added.)

The court also concluded that it had a responsibility

under its supervisory power of the administration of crim-

inal justice to correct the unfairness of fragmentary prose-

cution. The court was of the opinion that the Arizona

prosecutor had sufficient notice to realize that the indict-

ment he was about to file covered only a different period

arising out of the same single conspiracy for which the

defendants had theretofore pled guilty in California. In

order to maintain the integrity of the judicial process,

therefore, the court exercised its supervisory authority

“to avoid and reverse the unjust result arising from two

prosecutions from the same offense.”

The situation presented in the Guido case and that

in the case at bar is strikingly similar. In both cases, the

period covered by the single conspiracy could easily be

divided into two successive periods, but still involving

the same objectives, same key participants, same means,

same method of operation, and same distribution point.

And, in both cases, counsel for the government ignored

these factors and deliberately bifurcated the single con-

tinuing conspiracy into two conspiracy charges. While

petitioners believe their double jeopardy claims should

prevail, it is submitted that this Court must exercise its

supervisory authority, as did the Guido court, to condemn

mm,

government counsel for the attempted fragmentary prose-

cution and to correct the inherent unfairness of the present

situation.

In summary, the appellate court’s opinion only scratches

the surface of what occurred in this case. This is evidenced

by the court’s reliance on United States v. Marotta, 518 F.2d

681 (9th Cir. 1975)®, which, unlike Guido, is distinguishable

from the instant case. Petitioners have never contended that

had there been independent evidence showing they had viola-

ted both sets of statutes there would have been no question of

the trial court’s authority to have sentenced petitioners to

consecutive terms on each violation. However, as indicated

time and time again, the government did not present inde-

pendent evidence of two separate conspiracies, but of only

a single conspiracy to import and distribute cocaine.

It is thus respectfully submitted that whether applying

the “same evidence”’ test or the more liberal test formulated

by the Cooper court, it is clear that the government split up

a single conspiracy into two separate conspiracies for the

purpose of prosecution. This is convincingly demonstrated

by the manner in which the case was pled and argued at the

time of trial. As was recently stated by this Court in Sanbria

v. United States, ..... USS. ..... , 98 S. Ct. 2170, 2179 (1978):

8in Marotta, Supt the appellant was convicted of conspiracy to possess

with intent to distribute marijuana and conspiracy to import the same

marijuana. He was thereafter sentenced to consecutive prison terms on each

count. One of the errors urged on appeal was that it was not permissible to

convict him on two counts of conspiracy when in fact only one conspiracy

existed. In rejecting this contention, the court distinguished the Braverman

case on the ground that the evidence showed that the appellant had violated

both statutes independently, even though the violations came about by parti-

cipation in a single chain of events. The court therefore held that th the

appellant had been engaged in a single conspiracy, such conspiracy still had dual

criminal objects that could be punished twice as severely as a conspiracy which

embraced only one criminal object. (See discussion, 518 F.2d at 684-685.)

uit.

“The precise manner in which an indictment is

drawn cannot be ignored, because an important

function of the indictment is to ensure that, ‘in

case any of the proceedings are taken against [the

defendant] for a similar offense, . . . the record

{ will] show with accuracy to what extent he may

plead a formal acquittal or conviction.’ [See cita-

tions omitted.]”’ (Footnote omitted.)

The manner in which the superseding indictment was drawn

in the instant case and the manner in which government

counsel argued the case at the time of trial requires this Court

to correct the injustice which would be caused by further

prosecution of the petitioners.

B. The Deliberate Overreaching Practiced By The

Government Bars Further Prosecution Of Peti-

tioners.

One of the pre-trial motions filed by petitioners in

this case was a Motion for Severance. At the hearing on

this motion, all counsel argued that the government’s own

reports clearly indicated that none of the petitioners was

involved in the conspiracy to import. It was submitted,

therefore, that a single trial involving both conspiracy

charges would severely prejudice each petitioner’s chance

to receive a fair trial. This would be so in that the “deluge

of evidence’’ which would be presented concerning the im-

portation charge would “‘carry over” to the distribution

charge and create the very real danger of guilt by association.

The granting of the various motions for severance, therefore,

was the only way to safeguard a defendant’s right to be

x

judged only on his own acts, not upon those of his co-

defendants.

In response to these arguments, government counsel

contended that both conspiracies arose out of the same

series of acts and transactions. Therefore, whether the

indictment charged one conspiracy or several was a ques-

tion properly handled by the jury, since that determina-

tion was a question of fact as to the nature of the agree-

ment. This being so, the argument went, permitted the

government tc attempt to prove its allegations by present-

ing all possible evidence to support a conviction and then

shifting the burden to the jury to choose whether the

evidence supported a finding of one conspiracy, multiple

conspiracies, or no conspiracy at all. As such, severance

was not required in this case because the government

expected the evidence to prove that each defendant

participated in one of the conspiracies at some point in

time and was thus responsible for all the acts committed

by any co-conspirator in furtherance of either charged

conspiracy.

As previously indicated, the jury’s verdict bore out

petitioners’ contention that the government simply pos-

sessed no evidence to support petitioners’ involvement in

the charged conspiracy to import, by acquitting petition-

ers of counts one and two.

In the recent decision of Burks v. United States, .....

USS. ....., 98 S. Ct. 2141, 2147 (1978), the Supreme Court

stated:

“The Double Jeopardy Clause forbids a second

trial for the purpose of affording the prosecu-

tion another opportunity to supply evidence

-

which it failed to muster in the first proceeding.

This is central to the objective of the prohibition

against successive trials. The Clause does not

allow ‘the State . . . to make repeated attempts

to convict an individual for an alleged offense,’

since ‘the constitutional prohibition against

“double jeopardy” was designed to protect an

individual from being subjected to the hazards

of trial and possible conviction more than once

for an alleged offense.’ [See citations omitted.]”’

(Footnote omitted.)

In a footnote to that opinion, the Court stated at

page 2147, n. 6, that:

““[W]je recognize that under the terms of the

remand in this case the District Court might

well conclude after ‘a balancing of the equities,’

that a second trial should not be held. Nonethe-

less, where the Double Jeopardy Clause is appli-

cable, its sweep is absolute. There are no ‘equi-

ties’ to be balanced, for the Clause has declared

a constitutional policy, based on grounds which

are not open to judicial examination.”

The reason to attach jeopardy at the impaneling of

the jury, according to Downum v. United States, 372 U.S.

734, 736, 83 S. Ct. 1033 (1963), is that to permit the trial

to be aborted might lead to mistrials covertly for the

benefit of a prosecution that needs strengthening. A

mistrial can operate as a “‘post-jeopardy continuance to

allow the prosecution an opportunity to strengthen its

case.”” Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct.

1066 (1973). Thus, this Court, in United States v. Dinitz,

=

424 U.S. 600, 96 S. Ct. 1075 (1976), distinguished

between mistrials caused by judicial or prosecutorial

error and those caused by judicial or prosecutorial

“overreaching.” That Court held:

“The Double Jeopardy Clause does protect

a defendant against governmental actions

intended to provoke mistrial requests and

thereby to subject defendants to the substan-

tial burdens imposed by multiple prosecutions.

It bars retrials where “bad-faith conduct by

judges or prosecutors,’ . . . threatens the

‘[h] arassment of an accused by successive

prosecutions or declaration of a mistrial so

as to afford the prosecution a more favorable

opportunity to convict’ the defendant. [See

citations omitted.]”’ (424 U.S. at 611, 96

S. Ct. at 1081.)

Thus, where “‘prosecutorial overreaching” is found

present, the interest protected by the Double Jeopardy

Clause outweighs the public interest in conducting a

second trial. As stated in United States v. Kessler, 530

F.2d 1246, 1256 (Sth Cir. 1976):

“This safeguard against ‘prosecutorial

overreaching’ provided defendants by the

Fifth Amendment Double Jeopardy Clause

constitutes the ‘inestimable safeguard against the

. overzealous prosecutor’ provided by a jury

trial.”” (Footnotes omitted.)

While the mistrial in the instant case was declared

because of the inability of the jury to reach a verdict

on all counts, it is submitted that the above-principle

wilt

applies equally to this case. The inquiry, therefore,

must center upon the prosecutor’s conduct prior to

and during the trial in order to determine if there was

“prosecutorial overreaching.’’ Although mere negli-

gence by the prosecutors is not the type of overreach-

ing contemplated by Dinitz, if the prosecutorial error

is motivated by bad faith or undertaken to harass or

prejudice the defendant, then “‘prosecutorial overreach-

ing” will be found and a second prosecution barred.

Lee v. United States, ..... US. ..... , 97 S. Ct. 2141,

2147 (1977); see also United States v. Martin, 561

F.2d 135, 139 (8th Cir. 1977); United States v. DiSilvio,

520 F.2d 247, 249-250 (3rd Cir.), cert. denied, 423 U.S.

1015, 96 S. Ct. 447 (1975).

As previously indicated, the facts in the case at bar

clearly show that government counsel knew that at most

only one conspiracy existed, rather than the two charged.

This is again convincingly demonstrated by the manner

in which the case was pled and argued at pre-trial and at

the time of trial. Why government counsel chose to ignore

what his own evidence plainly showed is not known. What

is known, however, is that the multiple charging ultimately

resulted in confusing the jury, making the jurors unable to

reach a verdict, and assuring the prosecution of a “second

shot” to convict the petitioners. This position is further

buttressed by the fact that the prosecution intends to

call additional witnesses at the retrial. Thus, the strategy

effectively allowed the prosecution to manipulate the case

in order to gain an opportunity to strengthen its case. Such

a tactic clearly constitutes the type of “‘prosecutorial over-

reaching” which prohibits a second prosecution.

=)

In United States v. Kessler, supra, the government was

also guilty of deliberately presenting clearly inadmissible evi-

dence which resulted in the defendant’s seeking and the court

granting a mistrial. The evidence in that case consisted of

hearsay declarations of an absent alleged co-conspirator

and, on the foundation laid by these hearsay declarations,

an AR-180 automatic rifle which was allegedly “tan example”

of the arms involved in the conspiracy. As to the hearsay

declarations, the court first ruled that they were not made

in furtherance of the conspiracy charged and then stated:

“The government, of course, knew before

trial that Fernandez [the alleged co-conspirator]

had diverted from any purposes of the alleged

conspiracy. Nevertheless, the prosecution decid-

ed to present Agent Cortina who would voice

these hearsay declarations and set the stage for

the remainder of the drama. Cortina’s testimony

gives the distinct impression that Fernandez was

a key figure who initiated the whole chain of

succeeding events. It must have given the jury

the same impression. The government chose

this trial strategy despite the fact that it knew

that Fernandez (for some unexplained reason)

refused to come to the United States and appear

as a witness, thus depriving the defendants of any

opportunity to test Fernandez by cross-examina-

tion and to have the jury weigh his credibility.”

(530 F.2d at 1257, footnote omitted.)

As to the rifle, the court thereafter commented:

“Next we come to the AR-1 80 rifle (Govern-

ment Exhibit No. 3). The AR-180 was admitted

Kk i

in evidence on the basis of the foundation

laid by the inadmissible hearsay declarations

of Fernandez that it was ‘an example’ of the

arms involved in the alleged conspiracy. Be-

cause Fernandez was not acting in furtherance

of the alleged conspiracy at the time when he

made this statement to Cortina, the AR-180

was inadmissible—it lacked a proper foundation.

Moreover, the government knew in advance of

trial that the AR-180 was not only inadinissible,

but that it was false evidence.” (/bid.)

Based on this conduct, the court concluded:

“. . . that there was intentional misconduct

by the government regarding the AR-180, a

known false exhibit, which caused serious pre-

judice to the defendants’ rights to a fair jury

trial. Such intentional misconduct is ‘prosecu-

torial overreaching’ and is one of the ‘type[s]

of oppressive practices at which the double-

jeopardy prohibition is aimed.’ Wade ». Hunter,

336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed.

974, 978 (1949). The defendants reasonably

concluded that a continuation of the tainted

proceeding would result in a conviction, and

thus were forced to move for a mistrial. (Foot-

notes omitted.)

‘The instant case demonstrates the wisdom

of the Double Jeopardy Clause. The defendants

have shown the presence of anxiety, embarrass-

ment, expense, and delay. * * * We agree with

the District Court ‘that the defendants have been

a)

prejudiced.’ We conclude that a new trial

in the present case would amount to haras-

sment and would merely afford the prosecu-

tion another opportunity to convict. Thus,

the public interest in fair trials ending in just

judgments would not be advanced but would

be subverted by a new trial in this case.” (/d.

at 1257-1258.)

A similar result was reached by the Eighth Circuit

in United States v. Martin, supra. In that case, the de-

fendant moved prior to trial to prohibit the government’s

attorney from reading defendant’s grand jury testimony

to the jury as substantive evidence, arguing that most of

the statements were irrelevant and prejudicial. The gov-

ernment’s attorney, however, assured the court that the

irrelevant statements contained in the grand jury testi-

mony had been excluded. The District Court denied the

defendant’s request, but cautioned the government that

use of the testimony must not violate any of the court’s

prior rulings. In addition, the court indicated that the

defendant’s objection to the use of the grand jury testi-

mony would be treated as a continuing objection.

Early in the trial, after two witnesses had testified

for the government, the government’s attorney read a

substantial portion of the defendant’s grand jury testi-

mony to the jury. As a result, the defendant moved for

a mistrial, which the District Court granted. The defend-

ant thereafter filed a motion to dismiss the indictment,

contending, in part, that the Double Jeopardy Clause

barred a second trial because of the government’s attor-

ney’s conduct in reading the highly prejudicial material

= se

to the jury.

The court, in agreeing with the defendant’s conten-

tion that the prosecutor’s conduct constituted gross negli-

gence, characterized the conduct as follows:

“It is readily apparent that improper and

prejudicial remarks made by grand jurors were

read to the trial jury. In addition improper

and prejudicial remarks made by the prosecu-

tor were read to the jury. The record is replete

with instances where the defendant was inter-

rupted in his answers or was not given an oppor-

tunity to answer. In addition, at one point the

prosecutor in effect testified by answering a

question posed by a grand juror. If the govern-

ment’s actions in reading this irrelevant and

highly prejudicial testimony to the jury were

not intentionally designed to provoke a mistrial

request, at a minimum they constitute gross

negligence. It can best be described as prosecu-

torial error undertaken to harass or prejudice

the defendant—prosecutorial overreaching.”

(561 F.2d at 140, footnote omitted.)

The court, accordingly, held that the defendant’s constitu-

tional right not to be twice put in jeopardy had been viola-

ted, and ordered the indictment to be dismissed.

The actions of government counsel in the instant

case similarly require dismissal of the indictment due to

“prosecutorial overreaching.”” Knowing that the evidence

on counts one and two was very weak, the government

intentionally charged two conspiracies and continually

opposed petitioners’ Motion to Sever, so that at a joint

ee

trial the evidence concerning counts three and four could

be relied upon to convince the jury of petitioners’ guilt

on counts one and two. Such a tactic must clearly not be

condoned by this Court.

Based, then, on the hardships which will be caused

petitioners by a second prosecution, it is respectfully sub-

mitted that petitioners’ retrial is barred by the Double

Jeopardy Clause of the Fifth Amendment because of

“prosecutorial overreaching.”

CONCLUSION

For the above-mentioned reasons, petitioners

GARY TOUGHILL, MARGUERITE COSTANZA and

SAUNDRA NAVARRO request that this Honorable Court

grant the instant petition for writ of certiorari.

Respectfully submitted,

VICTOR SHERMAN

Attorney for Petitioner Toughill

SHELDON SHERMAN

Attorney for Petitioner Costanza

RICHARD BARNETT

Attorney for Petitioner Navarro

4 at beg

bai ed

INDEX TO APPENDIXES

Statutes Involved

rR ER Sa 2 ) 6)

BY RH UN es bck ees cua

Be Ns ves Gncavek vs

Bh RROD Sk ces ccd asws

41 U.B0. 8963 65%. aie aye

Opinion of the United States Court

of Appeals for the Ninth Circuit

filed December 3, 1979 ............

hQ tS — — —

he

pee

a = i]

=e 2

ieee

B>.

ie

APPENDIX “A”

STATUTES INVOLVED

Title 21, U.S.C.

§ 841. Prohibited acts A—Unlawful acts

(a) Except as authorized by this subchapter,

it shall be unlawful for any person knowingly or

intentionally —

(1) to manufacture, distribute, or dis-

pense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance;

8 846. Attempt and conspiracy

Any person who attempts or conspires to com-

mit any offense defined in this subchapter is punish-

able by imprisonment or fine or both which may not

exceed the maximum punishment prescribed for the

offense, the commission of which was the object of

the attempt or conspiracy.

§ 952. Importation of controlled substances—

Controlled substances in schedules I

or II and narcotic drugs in schedules

Ill, IV, or V; exceptions

(a) It shall be unlawful to import into the

customs territory of the United States from any

place outside thereof (but within the United States),

or to import into the United States from any place

outside thereof, any controlled substance in schedule

Appendix “A” be

I or II of subchapter I of this chapter, or any narcotic

drug in schedule III, IV, or V of subchapter I of this

chapter, ...

§ 960. Prohibited acts A—Unlawful acts

(a) Any person who—

(1) contrary to section 952, 953, or 957

of this title, knowingly or intentionally imports

or exports a controlled substance,

(2) contrary to section 955 of this title,

knowingly or intentionally brings or possesses

on board a vessel, aircraft, or vehicle a controlled

substance, or

(3) contrary to section 959 of this title,

manufactures or distributes a controlled sub-

stance,

shall be punished as provided in subsection (b) of this

section.

§963. Attempt and conspiracy

Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable by

imprisonment or fine or both which may not exceed

the maximum punishment prescribed for the offense,

the commission of which was the object of the attempt

or conspiracy.

APPENDIX “B” 3.

A

OPINION OF THE COURT BELOW

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ROGER LEE BURKETT, SAUNDRA NAVARRO,

MARGUERITE CONSTANZA, and GARY TOUGHILL,

Defendants-Appellants.

Nos. 79-1122

79-1233

79-1348

79-1349

[Filed December 3, 1979]

Appeal from the United States District Court

for the Southern District of California

Before: ELY and WRIGHT, Circuit Judges, and

HOFFMAN", District Judge.

HOFFMAN, District Judge:

This interlocutory appeal from the United States

District Court for the Southern District of California

is based upon the denial of appellants’ motions to dismiss

the indictment because of alleged double jeopardy. Juris-

diction is established by 28 U.S.C. 81291. Abney v. United

States, 431 U.S. 651 (1977).

*The Honorable Walter E. Hoffman, Senior United States District Judge

for the Eastern District of Virginia, sitting by designation.

Appendix “B” 4.

The district court determined that this interlocutory

appeal concerns strictly legal issues that could be decided

without reviewing a transcript of the trial. We agree that

only questions of law are raised by this appeal, and find

that those questions have been clearly presented in the

parties’ briefs. Accordingly, it is not necessary that we

review a transcript of the proceedings.!

On October 6, 1978, the Grand Jury returned a

superseding indictment charging the appellants and five

other persons with conspiracy to illegally import a con-

trolled substance, in violation of 21 U.S.C. § 963 (count

one); illegal importation of a controlled substance, in

violation of 21 U.S.C. §8 952, 960 and 963 (count two);

conspiracy to dispense and distribute a controlled sub-

stance, in violation of 21 U.S.C. § 846 (count three); and

possession of a controlled substance with intent to dis-

tribute, in violation of 21 U.S.C. § 841(a)(1). Appellants’

trial began on December 5, 1978, and was concluded on

December 22, 1978. Appellant Gary Toughill was found

not guilty of illegal importation of cocaine; however, the

jury could not reach a verdict as to conspiracy to illegally

import cocaine, conspiracy to dispense and distribute

cocaine and possession of cocaine with intent to distribute.

Appellants Marguerite Costanza, Roger Lee Burkett and

Saundra Navarro were acquitted on both importation

counts, but the jury was unable to reach a verdict as to

conspiracy to dispense and distribute cocaine and posses-

lit should be noted, however, that a 2467 Page transcript of the motions

and trial of this case is now before this court in the of co-defendant

Robert Eugene Preston, Case No. 79-1080, an appeal d by the same

panel.

Appendix “B”’ 5.

sion with intent to distribute cocaine. The court declared

a mistrial as to the counts upon which the jury could not

reach a verdict. Appellants’ subsequent motions to dismiss

the remaining counts of the indictment on the ground that

retrial on those counts violates the double jeopardy clause

of the Fifth Amendment were denied by the district judge

after a hearing on February 5, 1979.

Specifically, the appellants make the following con-

tentions: that the acquittal of appellants on counts one

and two of the indictment bars further prosecution on

counts three and four under the double jeopardy pro-

visions of the United States Constitution; that the acquit-

tal of appellant Toughill on count two only similarly bars

further prosecution on counts three and four under th.

double jeopardy provision of the United States Constitu-

tion; and, that deliberate overreaching by the government

bars further prosecution of all appellants. For the reasons

stated below, we affirm the decision of the district court.

This Court has for a long time recognized that a mis-

trial after a jury has been unable to reach a verdict is no

bar to a subsequent retrial on the same charges; it is an

exception to the general rule that jeopardy attaches upon

the swearing-in of the first juror. Arnold v. McCarthy,

566 F.2d 1377 (9th Cir. 1978); United Siates v. See,

505 F.2d 845 (9th Cir. 1974), cert. denied, 420 U.S. 992

(1975); Oelke v. United States, 389 F.2d 668 (9th Cir.

1967), cert. denied, 390 U.S. 1029 (1968). Appellants

claim that in this case one large conspiracy was arbitrarily

broken down into two conspiracy counts, and that acquit-

tal on the first conspiracy count acts as a bar to any further

Prosecution on the second conspiracy count. They argue

Appendix “B” 6.

that because the same set of facts was presented to prove

either conspiracy, a retrial on the possession and distribu-

tion counts should be barred by the acquittal on the im-

portation counts. Appellants have cited several cases

dealing with double jeopardy claims to support these con-

tentions, including Braverman v. United States, 317 U.S.

49 (1942); United States v. Guido, 597 F.2d 194 (9th Cir.

1979); United States v. Ruigomez, 576 F.2d 1149 (Sth

Cir. 1978); United States v. Mallah, 503 F.2d 971 (2d Cir.

1974), cert. denied, 420 U.S. 995 (1975); and United

States v. Cooper, 442 F. Supp. 1259 (D. Minn. 1978).

In order to support a claim of double jeopardy, appel-

lants must show that the offenses charged were in law and

in fact the same offense. See Kowalski v. Parratt, 533 F.2d

1071, 1074 (8th Cir.), cert. denied, 429 U.S. 844 (1976);

see also United States v. Westover, 511 F.2d 1154, 1156

(9th Cir.), cert. denied, 422 U.S. 1009 (1975); Sanchez v.

United States, 341 F.2d 225, 227 (9th Cir.), cert. denied,

382 U.S. 856 (1965). In this case the appellants were

charged with four separate offenses as defined by four

distinct federal criminal statutes.? Therefore, an acquittal

2 21 U.S.C. §963: “Any person who attempts or conspires to commit

any offense defined in this subchapter [Subchapter II-Import and Export]

is punishable by imprisonment or or both which may not exceed the

maximum pu nt prescribed for the offense, the commission of which

was the object of the attempt or conspiracy.” (Count 1).

21 U.S.C, §952(a): “It shall be unlawful to import into the customs

territory of the United States from = t sy outside thereof (but within the

United States), or to import into the United States from any place outside

(Cocca controlled substance . . . or any narcoticdmg .... ”

ount 2).

21 U.S.C. § 846: “Any person who attempts or conspires to commit

any offense defined in this ret, “ond [Subchapter I-Control and Enforcement]

is punishable by imprisonment or fine or both which may not exceed the

maximum pu nt prescribed for the offense, the commission of which was

the object of the attempt or conspiracy.” (Count 3).

Be giao nee. Se

Appendix “B” Vs

on the importation charges is not a bar to a retrial on the

charges of conspiracy to possess and distribute and the

substantive offense of possession with intent to distribute.

This is not a case where the government has indicted

on several counts based on multiple occurrences of the

same statutory violation. Cf. Braverman v. United States,

317 U.S. 49 (1942); United States v. Ruigomez, 576 F.2d

1149 (Sth Cir. 1978); United States v. Mallah, 503 F.2d

971 (2d Cir. 1974), cert. denied, 420 U.S. 995 (1975);

United States v. Palermo, 410 F.2d 468 (7th Cir. 1969);

United States v. Cooper, 442 F. Supp. 1259 (D. Minn.

1978). Here we are dealing with separate offenses requir-

ing the proof of distinct, individual elements.

We determined in United States v. Marotta, 518 F.2d

681, 684 (9th Cir. 1975), that when dealing with 21 U.S.C.

§ 846 (conspiracy to possess with intent to distribute)

and 21 U.S.C. § 963 (conspiracy to import), “‘the Congres-

sional intent is unmistakable in that there are two separate

and distinct offenses defined.” In Marotta, the defendant’s

convictions under both statutes were affirmed with the under-

standing that he “was engaged in a single conspiracy with

dual criminal objects . . . ” 518 F.2d at 685. In addition,

the court determined that imposing consecutive sentences

for each of the violations did not offend the double

jeopardy clause. Accord, United States v. Garner, 574

F.2d 1141 (4th Cir. 1978); United States v. Houltin, 525

F.2d 943 (Sth Cir.), vacated on other grounds, sub nom.,

Croucher v. United States, 429 U.S. 1034 (1976). But see

2 (cont'd)

21 U.S.C. § 841(a): “Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or intentionally (1) to manu-

facture, distribute, or nse, Or possess with intent to manufacture,

distribute, or dispense, a contr: substance... . ” (Count 4).

Appendix “B” 8.

United States v. Honneus, 508 F.2d 566 (1st Cir. 1974),

cert. denied, 421 U.S. 948 (1975); United States v. Adcock,

487 F.2d 637 (6th Cir. 1973).

Appellants have relied heavily upon the recent case

of United States v. Guido, 597 F.2d 194 (9th Cir. 1979),

Although Guido is distinguishable from this case, it should

be exarnined closely. Two defendants were charged in an

indictment returned on May 17, 1977, in the Eastern Dis-

trict of California, with conspiracy to import marijuana

from April 29, 1977 through May 12, 1977. Both defend-

ants pled guilty to these charges. On May 2, 1978, another

indictment was returned in the District of Arizona charging

the defendants with conspiracy to import marijuana and

conspiracy to possess marijuana with intent to distribute

from March 1, 1976 through November 15, 1976. The

defendants moved to dismiss the second indictment on

double jeopardy and due process grounds, arguing that the

conspiracy charged in Arizona was the same conspiracy

to which they pled guilty in the Eastern District of Calif-

ornia. The government responded by moving to dismiss

the conspiracy to import count. The Arizona district

court granted the government’s motion and denied de-

fendants’ motion. The defendants were tried and convict-

ed. On appeal, this Court concluded that the conspiracies

alleged in the California and Arizona indictments were in

fact one continuing conspiracy; accordingly, the convictions

were reversed.

In Guido, the Arizona prosecutor had received a copy

of the California indictment and was aware of the facts

surrounding the conspiracy prior to filing the Arizona

indictment. This “‘should have been sufficient notice to

teal ae ada ee

Appendix “B” 9.

the Arizona prosecutor that the indictment he was about

to file covered only a different period arising out of the

same single conspiracy for which the defendants had

theretofore pled guilty in California.” Guido, 597 F.2d

at 199. This Court, without ruling on the double jeopardy

and due process claims, held that under its supervisory

power of administration of criminal justice it had the

authority ‘“‘to correct such unfairness.”

Appellants have presented a fundamentally different

situation. They are being retried on counts for which the

jury was unable to reach a verdict. Those counts charge

the appellants with crimes separate and distinct from those

for which they were acquitted. Although Guido appears to

be on point in that it involved two distinct crimes (the Calif-

ornia indictment charged defendants with conspiracy to

import marijuana while the Arizona indictment charged

conspiracy to possess and distribute marijuana), the Court

found that, practically speaking, there was no difference

between the allegedly separate conspiracies; the purpose

of each was to import as well as possess and distribute

marijuana. Here, there has been no arbitrary temperal

division of a single conspiracy by an overeager prosecutor

in order to facilitate multiple prosecutions. Avpellants’

acquittals on the importation charges were unrelated to

their retrial on the possession and distribution charges.

In short, this case lacks the inherent “unfairness” that

prompted the court to reverse the convictions in Guido.

Appellant Toughill argues that his acquittal on the

substantive importation count (count two) necessarily

indicates a finding that he did not have the intent to

import a controlled substance. He argues further that such

Appendix “B” 10.

intent is an essential element of the remaining three

counts, and that its absence requires a dismissal of those

counts. Toughill’s argument ignores the possibility that

his acquittal on the substantive importation charge may

have been the result of any of a number of factors, and

not solely a jury finding of lack of criminal intent. In

any event, intent to import a controlled substance is not

an element of conspiracy to possess and distribute a con-

trolled substance. For those reasons, Appellant Toughill’s

argi'ments must fail.

There is also no merit to appellants’ contention that

deliberate overreaching by the government prosecutor

should bar retrial. Charging four separate offenses in

violation of four separate and distinct criminal statutes

cannot be termed prosecutorial overreaching. Nor does

this appear to be a case where the prosecution covertly

sought a mistrial for an opportunity to strengthen its

case. Cf. Downum v. United States, 372 U.S. 734, 736

(1963).

AFFIRMED.

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA )

) ss.

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, State of Califor-

nia, over the age of eighteen years and nut a party to the within action or

proceeding; that

My business address 4 Main Street, Huntington Beach, California 92648,

that on MARCH /a 80, I served the within PETITION FOR WRIT OF

CERTIORARI (TOUGHILL, COSTANZA and NAVARRO v. UNITED STATES

OF AMERICA) on the following named parties by depositing the designated

copies thereof, enclosed in a sealed envelope with postage thereon fully prepaid,

in the United States Post Office in the City of Huntington Beach, California,

addressed to said parties at the addresses as follows:

SOLICITOR GENERAL OF THE U. S. ATTORNEY

UNITED STATES Southern District of California

U. S. Department of Justice 940 Front Street

Washington, D. C. 20530 San Diego, California 92189

(3 copies) (3 copies)

DISTRICT COURT

Southern District of California

940 Front Street

San Diego, California 92189

(1 copy)

Ref.: U.S. v. Burkett, Navarro, Costanza and

Toughill

I declare under penalty of perjury that the foregoing is true and correct.

Executed on MARCH 10, 1980, at HUNTINGTON BEACH, CALIFORNIA.

D. A. Standefer

41 COPIES TO U. S. SUPREME COURT, WASHINGTON, D. C, 20543

Check No. 1176 - Dean-Standefer Co. in teh amount of $100 —

docket fee— attached to the original copy thereof.

SENT VIA EXPRESS MAIL

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648

(714) 536-7161