Petition for Writ of Certiorari — Mark v. United States (No. 08-354)

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\v = ie 08-354 SEP 3- 2008

3utye | OFFICE OF THE CLERK

Supreme Court of the United States

GELEAN MARK,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR WHIT OF CERTIORARI

Marcia G. Shein

Counsel of Record

LAW OFFICES OF

MARCIA G. SHEIN, PC

2392 N. Decatur Road

Decatur, Georgia 30033

(404) 633-3797

Counsel for Petitioner on Cert.

Trial Counsel Robert L. King

St. Thomas, VI

GibsonMoore Appellate Services, LLC

421 East Franklin Street ¢ Suite 230 ¢ Richmond, VA 23219

804-249-7770 # www.gibsonmoore.net

QUESTIONS PRESENTED

WHETHER THERE SHOULD BE UNIFORM

FACTORS CONSIDERED WHEN DETERMINING

WHETHER A CONSPIRACY IS A _ SINGLE

CONSPIRACY OR A MULTIPLE CONSPIRACY IN

ORDER TO AVOID ABUSE OF AND ENSURE

UNIFORM PROTECTION UNDER THE DOUBLE

JEOPARDY CLAUSE OF # £THE FIFTH

AMENDMENT.

“li-

LIST OF PARTIES

Pursuant to Supreme Court Rule 14.1, the

undersigned counsel hereby certifies that the

following listed persons and parties have an interest

in the outcome of this case. These representations

are made so the Judges of this Court may evaluate

possible disqualification or recusal pursuant to the

local rules of court.

1. GELEAN, Mark

Detendant/Appellant/Petitioner

GOMEZ, Honorable Curtis V.

United States District Court Judge

3. KING, Robert L.

Trial and Appellate Counsel for Petitioner

4. SMITH, Delia

AUSA/ Counsel for Respondent

With respect to this Appeal, there are no

corporate entities for purposes of disclosure.

"ill"

TABLE OF CONTENTS

Page

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JURISDICTION OF THE SUPREME COURT

COE Fe A et EL ooo es visevocievecieestapsuacaccostvenees 2

CONSTITUTIONAL PROVISION INVOLVED ........ 2

a Me AI ON CARs csceisccssceverevsenisesccseneen 2

ARGUMENT FOR ALLOWANCE OF

IE I oe nods Make dica th vay alacdechibcihandiv valium brassasincnsis 4

WHETHER THERE SHOULD BE

UNIFORM FACTORS CONSIDERED

WHEN DETERMINING WHETHER A

CONSPIRACY IS A SINGLE

CONSPIRACY OR A MULTIPLE

CONSPIRACY IN ORDER TO AVOID

ABUSE OF AND ENSURE UNIFORM

PROTECTION UNDER THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH

SIE isons cis csnvanepnansase ae rnccdanceeness syoqasars 4

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APPENDIX:

Opinion

United States Court of Appeals

for the Fourth Circuit

RTP. ET, BOB. ooo on over ccncsccedescccsctues A-l

Memorandum Opinion of

The Honorable C.J. Gomez

entered February 16, 2008....................0..... A-9

TABLE OF AUTHORITIES

Blockburger v. United States,

284 U.S. 199, 76 L. Ed. 306,

ee, RR oan incicesiee csedsesteoecs ances 5, 6, 17

Kotteakos v. United States,

328 U.S. 750, 66 S. Ct. 1239,

OT Te, BT EEE) oo ncccccseescccccoces-onees 9, 10,17

North Carolina v. Pearce,

395 U.S. 711, 23 L. Ed. 2d 656,

i i a ae 5

United States v. Arbelaez,

719 F.2d 1453 (9th Cir. 1983) ................ 5, 7,14

United States v. Becker,

892 F.2d 265 (3r¢ Cir. 1989) ..... pintahaccal age nee 16

United States v. Booth,

673 F.2d 27 (1st Cir.), cert. denied,

OE EE ee BF CIGD oaivvvnvsns sacs ccecceccecs cece 5, 8,18

United States v. Calderon,

127 F.3d 1314 (11th Cir. 1997) ........00...... 13, 14

United States v. Castro,

629 F.2d 456 (7th Cir. 1980) ....................:... 5, 7

United States v. Cerro,

716 F264 S068 (ith Cir: 1985). «....ccsenec. 005.250 12

“vi"

United States v. Chagra,

653 F.2d 26 (1st Cir. 1981), cert. dented,

455 U.S. 907, 102 S. Ct. 1252,

FA Tg Te, Oe ones scccn cos cccscscuvenceetene 5,7

United States v. Chandler,

366 F.4d. 706 (1168 Cir. 2004) .......0....cs0cccecenes 14

United States v. Chiattello,

804 F.2d 415 (7 Cir: 1986) ........0.0....c.cccscccese 16

United States v. DeFillipo,

590 F.2d 1228 (2d Cir.), cert. denied,

442 U.S. 920 (1979)..:...... pipudk aaa ce Masts weal poe 8

United States v. Drougas,

148 F208 (iat Cit. 1964) .........6.00......0605 10, 18

United States v. H/am,

O76 Foe 178 Oth Cir: 1962) ........0.05...c50cc 13

United States v.. Fenton,

367 F.3d 14 (ist Cir. Me. 2004) ............05..08.:. 14

United States v. Futch,

637 #20 S86 Gth Cir. 1961) .;........5...e.ccceseosesse 8

United States v. Gonzalez,

940 F.2d 1413 (11th Cir. 1991),

cert. denied, U.S. ,112S. Ct. 910, .

116 L. Ed. 2d 810, and cert. denied,

bes 3 226. Ce tee

he oP Ah Fe «2 SR ee eee nee 13

United States v. Ingman,

641 ¥.Sa 1929 (th Cir. 1976) |....:......000..00 8

“vil-

United States v. Jabara,

644 F.2d 574 (6th Cir. 1981).............. ccc eee 16

United States v. Kearney,

560 F.2d 1358 (9th Cir.), cert. denied,

434 U.S. 971, 54 L. Ed. 2d 460,

Oe ee iia icisrceichigecsesnicécavecvvasass 11

United States v. Kelly,

S02 F.24 256 (Sd Cir. 1989)................ccccececses. 11

United States v. Korfant,

T7114 28 OBO Cae Cit. 198) « ..6.sc6ccde..0cc05: 5, 7,8

United States v. Liotard,

817 F.2d 1074 (3d Cir. 1987).................... 5, 6; 7

United States v. Lurz,

666 F.2d 69 (4th Cir. 1981), cert. denied,

re ooo oobi ede eek as 8

United States v. Macchia,

35 Fad G62 (ad Cir, 1994)... ecco secs scenes 5, 8

United States v. MacDougall,

790 F.2d 1135 (4th Cir. 1986) .................. 5, 75

United States v. MacDougall,

790 F.2d 1135 (4th Cir. 1986) ................000.. 7,8

United States v. Marable,

576 F.20 101 (th Cir. 1978) ......<.5cccccccccccccs 5.7

United States v. Martino,

664 F.24 860 (2d Cir. 1981)..........6...5.5.0.0ccc05. 10

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“Viil°

United States v. McClelland,

62 F.3d 265 (8th Cir. 1995)..............:cceee0 5, 7,8

United States v. Miniz,

16 F.3d 1101 (10th Cir. 1994)...............00..0000... 6

United States v. Moore,

525 F.3d 1033 (11th Cir. 2008)................ 11, 13

United States v. Morado,

BSG Fie 167 CORR Che, 1672) oocoisecccccccccceesses 13

United States v. Morrow,

177 F.Be B72 tds Car. 1999) ©. .occcccccsecceccceds 11

United States v. Nyhurs,

8 F.3d 731.41 1th Cir. Fla. 1993)................... a7

United States v. Puckett,

692 F.2d 665 (0th Cir. 1982) ......6.26.....0065000058. 6

United States v. Radtke,

415 F.3d 8268 (8th Cir. | | AOR RARE oI 10

United States v. Richardson,

532 F.3d 1279 (11th Cir. Fla. 2008)............... 14

United States v. Ruggiero,

754 F.2d 927 (11th Cir.), cert. dented,

OTE Ree a hice ilecesthiccwe 8

United States v. Ruigomez,

576 F.2d 1149 (Gt Cir--1978) .........0.....cccecccse 14

United States v. Russell,

TG Fak 87 Fe Cae 1B an vsrne civnnincececscccend 14

"1x"

United States v. Schurr,

775 F.2d 549 (3d Cir. 1985)........... EO LEMAD pth i)

United States v. Shorter,

54 F.3d 1248 (34 Cir), cert. denied,

a 26) 10

United States v. Sinito,

723 F.2d 1250 (6th Cir. 1983) .................. 5, 7,8

United States v. Small,

423 F.3d 1164 (10th Cir. 2005)...........0.... 11, 14

United States v. Smith,

320 F.3d 647 (6th Cir. 2003)........ sasice bilbennteodian 11

United States v. Stitzer,

785 F.2d 1506 (11th Cir.),

cert. denied, 479 U.S. 823,

107 S. Ct. 93, 93 L. Ed. 2d 44 (1986) ............. 13

United States v. Strickland,

245 F.3d 368 (4th Cir. 2001)........................0. 11

United States v. Tanner,

860 F.2d 864 (8th Cir. 1988) 00.0.0. 8

United States v. Tarantino,

846 F.2d 1384 (D.C. Cir. 1988) ............. 14

Statute:

8 S'S) ee 2,3

Constitutional Provision:

U.S. Const. amend. V.......................- phpmsvsenavetereces 2, 4, 5

In The

Supreme Court of the United States

GELEAN MARK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petitioner respectfully requests that a writ of

certiorari issue to review the decision rendered by

the Third Circuit Court of Appeals on July 8, 2008,

which denied Petitioner's appeal.

The Third Circuit has entered a decision in this

case that clearly shows the conflict in double

jeopardy jurisprudence and calls for an exercise of

this Honorable Court’s supervisory power.

OPINION BELOW

The opinion by the Third Circuit Court of Appeals

was an unpublished opinion. Reference to the

opinion is thereby limited to the following: United

States v. Gelean Mark, No. 08-1518 (8rd Cir. 2008).

The opinion is reproduced in the Appendix hereto at

Al.

sincstwintseiataradietdoad i ealtvsciaibeesanirautian

JURISDICTION OF THE SUPREME COURT OF

THE UNITED STATES

Petitioner respectfully seeks review on Certiorari

from the decision rendered by the Third Circuit on

July 8, 2008 denying Petitioner’s appeal.

Pursuant to 28 U.S.C. § 1254(1), which provides

in relevant part that “cases in the courts of appeals

may be reviewed by the Supreme Court” “by writ of

certiorari,” this Court has jurisdiction to hear this

- case.

CONSTITUTIONAL PROVISION INVOLVED

Fifth Amendment — “No person shall ... be subject

for the same offence to be twice

put in jeopardy of life or limb.”

PRP Se Bet nS ie cai sadesanniaienien

STATEMENT OF THE CASE

On October 6, 2005, Petitioner was indicted in an

18-count indictment in the Virgin Islands. This

indictment charged a conspiracy to possess with

intent to distribute cocaine, cocaine base, and

marijuana and conspiracy to import cocaine and

cocaine base. This indictment is known as “Redball

L”

-3-

On December 19, 2006, a second 14-count

indictment was issued against Petitioner alleging a

different conspiracy to possess and distribute cocaine

and conspiracy to import cocaine. This indictment is

known as “Redball Il.”

The jury trial in Redbali I began on March 5,

2007 and ended in a mistrial on March 27, 2007

based on a deadlocked jury. The jury trial in Redball

II began on September 5, 2007 and the jury returned

a partial verdict finding Petitioner guilty on Count I,

the conspiracy to possess with intent to distribute

count.

The government, after obtaining a conviction

against Petitioner on Redball II, was seeking to retry

Petitioner on Redball I. On January 28, 2008

Petitioner filed a motion to dismiss Count I of the

Redball I indictment arguing that his conviction on

Count I of the Redball II indictment barred his

reprosecution on the Redball I indictment on Double

Jeopardy grounds. The district court denied the

motion.

A timely Notice of Appeal was filed for Petitioner.

Jurisdiction in the Third Circuit Court of Appeals

was proper pursuant to 28 U.S.C. §1291. On appeal,

Petitioner raised the following issue:

(1) Whether the double jeopardy clause of the

United States Constitution prohibits the

prosecution in the instant case because of

a substantially identical prosecution under

a separate indictment.

As this Petition for Writ of Certiorari is timely

submitted, the issues herein are properly before this

Honorable Court and should be heard as this case

presents an important question that calls for an

exercise of this Court’s supervisory power.

ARGUMENT FOR ALLOWANCE OF THE WRIT

WHETHER THERE SHOULD BE UNIFORM

FACTORS CONSIDERED WHEN DETERMINING

WHETHER A CONSPIRACY IS A _ SINGLE

CONSPIRACY OR A MULTIPLE CONSPIRACY IN

ORDER TO AVOID ABUSE OF AND ENSURE

UNIFORM PROTECTION UNDER THE DOUBLE

JEOPARDY CLAUSE OF THE FIFTH

AMENDMENT.

Double Jeopardy, as a constitutional protection

should present consistent factors in application

when considering whether a Petitioner has been

previously tried for a conspiracy or whether the

government has established the conspiracy alleged.

Petitioner will compare the application of double

jeopardy protections in challenges to subsequent

indictments and variance challenges. Ultimately, -

Petitioner will show why identical factors should

be applied when asking what activity constitutes

a single conspiracy and ask this Honorable Court

to determine what those consistent factors should

be.

A. Double Jeopardy

Under the Double Jeopardy Clause of the Fifth

Amendment, once a defendant is placed in jeopardy

for an offense, and jeopardy terminates with respect

to that offense, the defendant may neither be tried

nor punished a second time for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 23 L.

Ed. 2d 656, 89 S. Ct. 2072 (1969). In Blockburger v.

United States, 284 U.S. 199, 76 L. Ed. 306, 52 S. Ct.

180 (1932) this Court held that the Double Jeopardy

Clause does not bar consecutive prosecutions for a

single act if each charged offense requires proof of an

element that the other does not.

The Blockburger test has become known as the

“same evidence test” and almost every Circuit Court

of Appeals has concluded that this test should not be

applied to conspiracy cases on the basis that the

government would be able to circumvent the test by

establishing different overt acts.! The Tenth Circuit

appears to be the only Circuit to have directly

concluded that the SBlockburger test should be

1 United States v. Chagra, 653 F.2d 26, 29 (1st Cir. 1981),

cert. denied, 455 U.S. 907, 102 S. Ct. 1252, 71 L. Ed. 2d 445

(1982); Unrted States v. Booth, 673 F.2d 27, 29 (1st Cir. 1982);

United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985);

United States v. Macchia, 35 F.3d 662, 667-68 (2d Cir. 1994);

United States v. Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987);

United States v. MacDougal], 790 F.2d 1135, 1144 (4th Cir.

1986); United States v. Marable, 578 F.2d 151, 154 (5th Cir.

1978); United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir.

1983); United States v. Castro, 629 F.2d 456, 461 (7th Cir.

1980); United States v. McClelland, 62 F.3d 265, 267 (8th Cir.

1995); United States v. Arbelaez, 719 F.2d 1453, 1458 (9th Cir.

1983); United States v. Nyhuis, 8 F.3d 731, 736 (11th Cir. Fla.

1993).

-6-

applied to conspiracy cases, albeit with different

terms then “same evidence.”2

The Circuit Courts that have decided that

Blockburger does not adequately protect a

defendant's double jeopardy rights in conspiracy

cases have all developed factors that should be

considered when analyzing whether’ charged

conspiracies are the same or different conspiracies.

These factors are inconsistent yet present a need to

be consistent when applying the underlying evidence

of an individual case to the factors to be considered.

The Third Circuit has explained that the “factor”

test is necessary because “successive indictments

against a single defendant for participation in a

single conspiracy might withstand same evidence

scrutiny if the court places undue emphasis upon the

evidence used to prove the commission of the overt

acts alleged.” The Circuits apply these factors when,

as: in Petitioner’s case, a defendant is indicted

separately for two conspiracies which he alleges are

the same.

2 United States v. Puckett, 692 F.2d 663, 668 (10th Cir.

1982)(While we adhere to the same evidence test, we recognize

that it has been criticized in recent years as an inadequate

measurement of double jeopardy when applied to multiple

prosecutions for conspiracy charges); United States v. Mintz, 16

F.3d 1101, 1104 (10th Cir. 1994)(In a double jeopardy analysis

involving conspiracies, the court must determine whether the

two transactions were interdependent and whether the

Defendants were “united in a common unlawful goal or

purpose.")

3 United States v. Liotard, 817 F.2d 1074, 1078 (34 Cir. 1987).

All Circuits that apply the factor test agree that

the time the alleged conspiracies occurred and the

people involved, whether indicted or unindicted, are

relevant considerations in determining whether the

conspiracies at issue occurred during the same

period of time.4 All Circuits also examine the

evidence used to establish the.conspiracies in terms

of the similarity of the conspiracies and the overt

acts, albeit using different terminology.’ Other

4 FN 1, supra.

5 United States v. Chagra, 653 F.2d 26, 29 (1st Cir. 1981), cert.

denied, 455 U.S. 907, 102 S. Ct. 1252, 71 L. Ed. 2d 445 (1982)(

whether the same evidence was ‘used to prove the two

conspiracies); United States v. Korfant, 771 F.2d 660, 662 (2d

Cir. 1985)( similarity of operation, the existence of common

overt acts, and common objectives); United States v. Liotard,

817 F.2d 1074, 1078 (3d Cir. 1987)(similarity of overt acts);

United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir.

1986)(the overt acts or any other descriptions of the offenses

charged which indicate the nature and scope of the activities to

be prosecuted); United States v. Marable, 578 F.2d 151, 154

(5th Cir. 1978)( the overt acts charged by the government or

any other description of the offense charged which indicates the

nature and scope of the activity which the government sought

to punish in each case); United States v. Sinito, 723 F.2d 1250,

1256 (6th Cir. 1983)( the overt acts charged by the government

or any other description of the offenses charged which indicates

the nature and scope of the activity which the government

sought to punish in each case); United States v. Castro, 629

F.2d 456, 461 (7th Cir. 1980)(whether the conspiracies involve

the same overt acts); United States v. McClelland, 62 F.3d 265,

267 (8th Cir. 1995)( the nature and scope of the activity

charged); United States v. Arbelaez, 719 F.2d 1453, 1458 (9th

Cir. 1983)(mature of the scheme, frequency, and duration of

each conspirator's transactions, and the commonality of

goals); United States v. Nyhuis, 8 F.3d 731, 736 (11th Cir. Fla.

1993){ the overt acts charged by the government or any other

description of the offense charged which indicates the nature

and scope of the activity which the government sought to

punish in each case).

-8-

factors include the geography of the conspiracy,

which is considered in every circuit except the Ninth,

the statute charged, considered in seven Circuits,

the objectives of the conspiracies, considered in the

Second and Ninth Circuits. The interdependence of

the conspiracies, considered in the Second and

Seventh Circuits and, finally, the role of the

defendant, considered in the Third Circuit.

The application of these factors frequently results

in a finding of separate conspiracies. While, as

presented below, when factors are applied in a

variance challenge they more often result in the

finding of a single conspiracy. When considering

whether one conspiracy exists or more than one

there should be consistent standards applicable to

ensure that a-defendants double jeopardy rights are

uniformly protected.

The question is the same: How many conspiracies

exist? Therefore the double jeopardy and variance

factors should be interchangeable so as to produce

similar results. However, the current factors among

the circuits are inconsistent and so diverse as to

6 See for example United States v. Booth, 673 F.2d 27(\st Cir.

1982); United States v. Korfant, 771 F.2d 660 (2d Cir. 1985);

United States v. Macchia, 35 F.3d 662 (2d Cir. 1994); United

States v. Lurz, 666 F.2d 69 (4th Cir. 1981), cert. denied, 459

U.S. 843 (1982); United States v. MacDougall, 790 F.2d 1135

(4th Cir. 1986); United States v. DeFillipo, 590 F.2d 1228 (2d

Cir.), cert. denied, 442 U.S. 920 (1979); United States v. Booth,

673 F.2d 27 (1st Cir.), cert. denied, 456 U.S. 978 (1982); United

States v. Ruggiero, 754 F.2d 927 (11th Cir.), cert. denied, 471

U.S. 1127 (1985); United States v. Ingman, 541 F.2d 1329 (9th

Cir. 1976); United States v. Futch, 637 F.2d 386 (5th Cir. 1981);

United States v. Sinito, 723 F.2d 1250 (6th Cir. 1983); United

States v. Tanner, 860 F.2d 864, 867 (8th Cir. 1988); United

States v. McClelland, 62 F.3d 265 (8th Cir. 1995).

a a

-9-

inadequately protect the defendant from double

jeopardy and are not producing similar results.

Creating a consistent test will aid the varying

jurisdictions in determining what circumstances of

an offense are determinative in making a finding of

double jeopardy or variance. This will safeguard the

Constitutional rights of all defendants faced with the

dilemma of multiple versus single conspiracy issues.

There is a real need for this Court to create a

consistent test to follow and to not allow one rogue

factor to be determinative.

When it suits the government’s interests to find

multiple conspiracies, it is all too easy for courts to

depend on certain factors to support that conclusion.

When it suits the government’s interests to find a

single conspiracy, other factors are given precedence.

In reality, all factors should be: considered, and

determination on the totality should be made.

B. Variance

Another place where Double Jeopardy concerns

frequently appear in criminal prosecutions is when

the government's evidence at trial appears to

establish multiple conspiracies as opposed to the

single conspiracy alleged in the indictment on which

the defendant is being tried. In this case, the

defendant raises a variance challenge.’ In large part,

defendants rest their challenges on Kotteakos v.

United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L.

Ed. 1557 (1946), for the proposition that a conviction

7 The rule against variances serves several purposes, one of

which “rests on a principle akin to double jecpardy, for the rule

helps to minimize the danger that the defendant may be

prosecuted a second time for the same offense." United States

v. Schurr, 775 F.2d 549, 554 (3d Cir. 1985).

-10-

for conspiracy should be reversed if the indictment

alleges a single conspiracy but the evidence at trial

proves multiple conspiracies. In Kotteakos, the

Court found that the case actually involved eight

separate conspiracies with only one of thirty-two

defendants common to each. Jd. at 766. The Court

reversed the convictions because the disparity

between the size of the alleged conspiracy and the

actual conspiracies affected the substantial rights of

the defendants. Jd. at -776. The Court, however, left

open the possibility that a more minor variance

would not affect a defendant's substantial rights. Jd.

at 764-65.

In addressing these variance challenges, most

Circuits have developed a series of factors, similar to

double jeopardy challenges, to determine whether a

single conspiracy or multiple conspiracies were

established. In seven of the Circuits, the existence of

a “common goal or plan” is sufficient to establish a

single conspiracy.§ In several others, the existence of

8 United States v. Drougas, 748 F.2d 8, 17 (ist Cir. 1984)(if the

totality of the evidence is adequate to demonstrate that all of

the alleged coconspirators directed their efforts towards the

accomplishment of a common goal or overall plan, then the

existence of a single conspiracy can be found); United States v.

Martino, 664 F.2d 860, 876 (2d Cir. 1981)("{IJn order to prove a

single conspiracy, the government must show that each alleged

member agreed to participate in what he knew to be a collective

venture directed toward a common goal."); United States v.

Shorter, 54 F.3d 1248, 1254 (34 Cir), cert. denied, 116 S. Ct.

250 (1995)(If the alleged coconspirators joined together to

further a single design or purpose, then there is a single

conspiracy); United States v. Shorter, 54 F.3d 1248, 1254 (7th

Cir.)\(If the alleged coconspirators joined together to further a

single design or purpose, then there is a single conspiracy);

United States v. Radtke, 415 F.3d 826, 838 (8th Cir.

2005)("Whether a given case involves single or multiple

-11-

a common goal or plan is one of several factors to be

considered along with factors such as similarity of

participants, the nature of the scheme, and whether

the allegedly separate conspiracies are mutually

dependent.® It is important to look closely at these

conspiracies depends on whether there was one overall

agreement to perform various functions to achieve the

objectives of the conspiracy."); United States v. Kearney, 560

F.2d 1358, 1362 (9th Cir.), cert. denied, 434 U.S. 971, 54 L. Ed.

2d 460, 98 S. Ct. 522 (1977)(The standard for determining the

existence of a single conspiracy is whether there was "one

overall agreement" among the parties to carry out the

objectives of the conspiracy); United States v. Small, 423 F.3d

1164, 1184 (10th Cir. 2005)(It is sufficient that a common goal

of distributing crack cocaine for profit exists).

9 United States v. Kelly, 892 F.2d 255, 259 (3d Cir. 1989) (In

order to determine whether a group of individuals engaged in a

single conspiracy or multiple conspiracies, three factors are

evaluated: (1) "whether there was a common goal among the

conspirators"; (2) “whether the agreement contemplated

bringing to pass a continuous result that will not continue

without the continuous cooperation of the conspirators"; and (3)

"the extent to which the participants overlap in the various

dealings."); United States v. Strickland, 245 F.3d 368, 385 (4th

Cir. 2001)(The question of “[w]hether there is a single

conspiracy or multiple conspiracies depends upon the overlap of

key actors, methods, and goals."); United States v. Morrow, 177

F.3d 272, 291 (5th Cir. 1999)(The principal considerations in

counting the number of conspiracies are (1) the existence of.a

common goal; (2) the nature of the scheme; and (3) the

overlapping of the participants in the various dealings); United

States v. Smith, 320 F.3d 647, 652 (6th Cir. 2003)(The key

factors in determining the number of conspiracies "are the

existence of a common goal, the nature of the scheme, and the

overlapping of the participants in various dealings."); United

States v. Moore, 525 F.3d 1033, 1042 (11th Cir. 2008)("In

determining whether a jury could have found a single

conspiracy, this Court considers: (1) whether a common goal

existed; (2) the nature of the underlying scheme; and (3) the

overlap of participants.").

-12-

factors in order to determine how their application

overlaps and differs from the application of the

“factor” tests in double jeopardy challenges.

The Seventh Circuit has presented an excellent

explanation of the concept of mutual dependence:

But as the government well knows, this

[mutual dependence] language is not taken

literally. If it were, single conspiracies could

not be charged in most cases (which are

extraordinarily common) where a wholesaler

of illegal drugs deals through more than one

j dealer, no matter how much each dealer knew

: about the scope of the operation. As is true of

: wholesale distribution generally, the viability

of wholesale drug trafficking does not depend

on the adherence of any single dealer. Lop off

one dealer, and the wholesaler can hire ‘

another in his place or shift the dealer's a

: allotment of drugs to one or more of his 4

a remaining dealers or simply reduce the scale

: of the drug operation. The dealers are not

dependent on each other as a bank robber is 4

dependent on the driver of the getaway car 4

and vice versa. Just as Exxon would not go out 4

of business if it lost one of its retail dealers, so

a substantial drug operation would not go out

of business because one of its retail dealers

left the business.

United States v. Cerro, 775 F.2d 908, 914 (7th Cir. |

1985). In the former example, the conspiracies are 4

independent of each other while in the latter, they

are mutually dependent. Jd.

-13-

In both Redball I and Redball II, Petitioner was

the importer into St. Thomas and the wholesale

distributor of the drugs to various locations.

The Fifth Circuit has gone so far as to say,

“[wlhere members of one enterprise have knowledge,

actual or implied, of the existence of members of a

related enterprise, and where it is shown that a

single "key man" was involved in and directed illegal

activities, while various combinations of other

defendants exerted individual efforts toward a

common goal, a finding of the existence of a single

conspiracy is warranted. United States v. Hlam, 678

F.2d 1234, 1246 (5th Cir. 1982)(citing United States

v. Morado, 454 F.2d 167 (5th Cir. 1972)). The

Eleventh Circuit continues to follow this position as

well: "A single conspiracy may be found where there

is a "key man' who directs the illegal activities, while

various combinations of other people exert individual

efforts towards the common goal." United States v.

Gonzalez, 940 F.2d 1413, 1422 (11th Cir. 1991), cert.

denied, U.S. ,112S. Ct. 910, 116 L. Ed. 2d 810,

and cert. denied, U.S. , 112S. Ct. 1194, 117 L.

Ed. 2d 485 (1992) (citing United States v. Stitzer,

785 F.2d 1506, 1518 (11th Cir.), cert. denied, 479

U.S. 823, 107 S. Ct. 93, 93 L. Ed. 2d 44 (1986)).

Petitioner was the “key man” in the importation and

distribution of narcotics in both Redball I and

Redball II.

“(Clourts typically define the common goal

element as broadly as possible." United States v.

Moore, 525 F.8d 1033, 1042 (11th Cir. 2008).

“Common” for the purposes of this test means

“similar” or “substantially the same” rather than

“shared” or “coordinate.” United States v. Calderon,

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Ste eS fe ee ARR Ce Me, Za ee Fer we lad bees Me eR Ra ce neh Pe ae MIN ey ew eee Be OE en Ue an ee he cel ee Ye ee en PE et

-14-

127 F.3d 1314, 1327 (llth Cir. 1997). It has also

been noted that "in a drug conspiracy, in which the

object of the conspiracy is clearly illegal and there

are various clandestine functions to perform, the

conspirators can be charged with knowledge that

others are ‘performing these different functions."

United States v. Chandler, 388 F.3d 796, 811 n.21

(llth Cir. 2004). Moreover, "{iJt is often possible,

especially with drug conspiracies, to divide a single

conspiracy into sub-agreements. This does not,

however, mean that more than one conspiracy exists.

The key is to determine whether the different sub-

groups are acting in furtherance of one overarching

plan." Calderon, 127 F.3d at 1329 (11th Cir. 1997).

Redball I and Redball II shared an overarching plan

and common goal: buying and selling cocaine for

profit. “Buying and selling cocaine for profit” has

been identified as a common goal for conspiracy

purposes in at least seven (7) Circuits.!9

10 United States v. Richardson, 532 F.3d 1279 (11th Cir. Fla.

2008)(“the evidence in this case clearly shows a common goal of

buying and selling cocaine for profit -- in Atlanta, Miami, and

elsewhere”); United States v. Ruigomez, 576 F.2d 1149, 1151

(5th Cir. 1978)(The participants shared a continuing, common

goal of buying and selling [drugs] for profit”); United States v.

Tarantino, 846 F.2d 1384, 1393 (D.C. Cir. 1988)( conspirators

often "share a common goal, such as the possession and

distribution of narcotics for profit."); United States v. Russell,

134 F.3d 171, 182 (3d Cir. 1998) (stating that "the common goal

of this conspiracy was to make money selling cocaine"); United

States v. Smali, 423 F.3d 1164, 1184 (10th Cir. 2005)(“the

evidence was sufficient to show that Green shared the common

goal with Small's drug organization of distributing crack

cocaine for profit.”); United States v. Fenton, 367 F.3d 14, 19

(lst Cir. Me. 2004)(defendants “shared the common practice

and goal of selling drugs for profit.”); United States v. Arbelaez,

719 F.2d 1453, 1458 (9th Cir. 1983)(defendants shared a

common goal to distribute illicit drugs and make a profit).

-15-

It is clear to see in Petitioner’s case why the

disparity between the application of the two factor

tests, both of which are intended to guard against

double jeopardy infringement, create an untenable

situation in which the government, in the manner

of charging, evidence presented, or both, is able to

manipulate the tests to the extent that double

jeopardy protection is essentially vitiated.

Petitioner’s double jeopardy challenge was based

on the fact that both Redball I and Redball Il

alleged a conspiracy to possess with intent to

distribute and to import cocaine. The Third Circuit

found that, though there was “significant overlap in

the locations,.time periods, and participants in the

two conspiracies,” the two conspiracies had

different objectives, namely Redball I distributed

drugs on the streets of St. Thomas, while Redball IJ

distributed drugs in New York and North Carolina.

United States v. Mark, 08-1518, A-7). Basically, this

appears to Petitioner to come down to the Third

Circuit finding the geography of end distribution

determinative as evidencing different objectives.

However, as presented above, common objectives

and goals are often stated in conspiracy cases as the

buying and selling of narcotics for profit. The

buying and selling of narcotics, received from the

same location by Petitioner and subsequently

distributed by Petitioner, for profit was the common

goal of both Redball I and Redball II. The fact that

the drugs were distributed to different locations

should be of no moment as all of the drugs were

distributed from one central location, the Virgin

-16°

Islands, where Petitioner, the “key figure” was

located.11

The Third Circuit compared Petitioner’s case to

United States v. Becker, 892 F.2d 265 (3'4 Cir. 1989),

in which two conspiracies were found where one was

a conspiracy to grow and distribute marijuana in

West Virginia while the second was a conspiracy to

smuggle and distribute foreign grown marijuana in

Pennsylvania, New Jersey, and Massachusetts.

However, in Becker, the decision rested on the fact

that the West Virginia conviction was entirely based

on marijuana being grown on a farm that had never

been cultivated oor distributed while’ the

Pennsylvania conspiracy concerned distributing,

selling and buying marijuana and which involved

smuggling it into the country and finding locations

where it could be stored.

The Third Circuit also cited United States v.

Chiattello, 804 F.2d 415 (7 Cir. 1986) to support its

position. In CArattel/o, the defendant’was indicted in

an Indiana conspiracy that involved the purchase of

marijuana in Colombia, the smuggling of the

marijuana into the United States, and _ its

subsequent distribution in the Midwest and a

Mississippi conspiracy where the defendants were

not involved in smuggling but rather thought they

were to be purchasers of stolen marijuana in the

United States. The Mississippi conspiracy was an

11 United States v. Jabara, 644 F.2d 574, 577 (6th Cir.

1981)(upholding the district court’s determination that a

conspiracy indicated in the Eastern District of Michigan was

the same conspiracy the defendant had previously been tried

for in the Central District of California)

“17°

operation of short duration and it was clear that two

conspiracies did not depend on each other for

success. 804 F.2d 415 at 419. Both Redball I and

Redball II depended on Petitioner’s importation of

cocaine for resale in order for their continued

success.

In neither of these cases was the geography of

distribution alone significant enough to find that

multiple conspiracies existed or had different

objectives and, more significantly, there was no

indication that there was a common goal between

the two conspiracies. Clearly, Redball I and Redball

II reflect the elements of a single conspiracy, with

only the end location of the drugs differing. By

clearing out such minor and_ inconsequential

standards there would be no double jeopardy

problems in conspiracy cases. The inconsistent test

leads to Constitutional abuses that subvert

defendants’ double jeopardy rights.

Neither S/ockburger nor Kotteokas, provided

guidance to the Circuit courts in applying double

jeopardy protections in conspiracy cases. Whether or

not a single conspiracy exists should be a consistent

interpretation regardless of whether the challenge is

brought in the face of a subsequent indictment or on

the basis of variance and should not be subject to

arbitrary or inconsistent interpretation. The

government should not be permitted to carve up a

conspiracy into separate pieces and charge them as

distinct crimes or lump multiple conspiracies into

one on the basis of rogue factors. As a Constitutional

protection, it is imperative that defendants be

-18-

treated similarly under the law of the United States,

regardless of where they are located geographically.

To illustrate the inconsistent application of the

factors that apply when there is one conspiracy or

more than one, compare two First Circuit cases. In

United States v. Booth, 673 F.2d 27 (1st Cir. 1982),

the defendant was charged with a Florida conspiracy

in a Florida district court, and a Maine conspiracy in

a Maine district court. The defendant alleged that

the separate indictments placed him under double

jeopardy, but the Fifth Circuit, examining (1) the

time frame (at least six months apart); (2) the

number and involvement of the participants (almost

half were different); (3) location of overt acts (Florida

and Maine); and (4) the object of the conspiracy

(intent to distribute marijuana), held that the

conspiracies were separate. Jd. at 29°30. In United

States v. Drougas, 748 F2d 8 (ist Cir. 1984), the

Fifth Circuit upheld the finding of one conspiracy

considering (1) the nature of the illegal activity

(long-range plan to import drugs), (2) the method of

operation (smuggling marijuana by boat to same

marina and warehouse), and (3) the scope of

conspirator involvement (same core of conspirators).

id. at 10-11. The defendants alleged that the acts

involved were separate conspiracies and they were

each prejudiced by the Government proving them all

together; the court held otherwise. Jd. Both cases

occurred in the First Circuit in the early 1980’s but

they examined different factors, putting emphasis on

different facts to arrive at different conclusions in

favor of the government’s positions.

-19-

If the decision in Petitioner’s case is permitted to

stand, the government is now free to carve up

conspiracies and indict them separately based on

distribution location and then the question becomes

how far away does the distribution have to be to

justify the finding of a separate conspiracy.

Petitioner respectfully requests that this Honorable

Court provide direction to the lower Courts by

determining the test to be applied in Double

Jeopardy challenges in the determination of one

conspiracy or more than one so defendants are not

left to flounder in a legal abyss of uncertainty. A

specific test would eliminate the continuing abuses

of the Double Jeopardy clause sllowing all courts to

apply a consistent test to the evidence and not

simply using a rogue factor for the convenience of

the case or forum.

CONCLUSION

The aforementioned error creates a_ serious

question of confidence in the outcome of Petitioner's

prosecution, conviction, and sentence. If confidence

in the outcome of a judicial proceeding is questioned,

the matter should be remanded for further

proceedings. To do anything different would be a

miscarriage of justice.

-20-

WHEREFORE, Petitioner prays this Honorable

Court will grant the present request, and grant the

Writ of Certiorari, or, in the alternative, the COA.

/s/ Marcia G. Shein

Counsel of Record

LAW OFFICES OF

MARCIA G. SHEIN

2392 N. Decatur Rd.

Decatur, Georgia 30033

(404) 633-3797 (Telephone)

(404) 633-7980 (Facsimile)

ic ay Ot Rene neon vue

wei an Seat

ai a

-Ai-

APPENDIX

Page

4 Opinion

a United States Court of Appeals

2 for the Fourth Circuit

E entered July 8, 2008 ..........000...00.. REE EA HS |

Memorandum Opinion of

The Honorable C.J. Gomez

entered February 16, 2008.................. ‘ccvececonal

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NOT PRECEDENTIAL

‘UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-1518

UNITED STATES OF AMERICA

Vv.

GELEAN MARK,

Appellant

Appeal from the District Court

of the Virgin Islands

(No. 05-cr-0076)

District Judge: Hon. Curtis V. Gomez

Argued May 8, 2008

Before: RENDELL, FUENTES, and CHAGARES,

Circuit Judges.

(Filed: July 8, 2008)

[Entered: July 8, 2008]

Robert L. King, Esq. (Argued)

Law Offices of Robert L. King, Esq.

The Law Center

P.O. Box 9768

St. Thomas, Virgin Islands 00801

Counsel for Appellant

A-2

Delia Smith (Argued)

Assistant United States Attorney

5500 Veterans Drive, Suite 260

St. Thomas, Virgin Islands 00802-6424

Counsel for Appellee

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Gelean Mark (Mark) appeals from the District

Court’s denial of his motion to dismiss an indictment

on double jeopardy grounds. Mark contends that the

drug conspiracies alleged in two _ separate

indictments were actually a single agreement.

because the two alleged conspiracies had different

objectives, we conclude that they are distinct and

will affirm the District Court’s decision.

I.

On October 6, 2005, a grand jury in the Virgin

Islands charged Mark, Vernon Fagan (Fagan),

Walter Ells (Ells), and others in an 18-count

indictment, hereinafter referred to as “Redball I.”!

1 Count I of the Redball I indictment charged:

Beginning from a time unknown, but no later than

November 2004, and continuing until November 2005, at St.

Thomas in the District of the Virgin Islands and elsewhere,

defendants, Gelean Mark, Vernon Fagan, . . . did knowingly

and intentionally, combine, conspire, confederate and agree

together and with each other and with diverse other persons to

the grand jury known and unknown,.. . to knowingly and

intentionally possess with intent to distribute controlled

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The indictment charged the defendants with

conspiracy to possess and distribute cocaine, cocaine

base, and marijuana, and conspiracy to import

cocaine and cocaine base. While Redball I was

pending before the United States District Court for

the Virgin Islands, the grand jury returned a

separate 14-count indictment on December 19, 2006,

naming Mark, Fagan, Elis, and others as

defendants. This indictment, hereinafter referred to

as “Redball II,” alleged conspiracy to possess and

distribute cocaine and conspiracy to import cocaine.”

substances, namely five (5) kilograms and more of a mixture

and substance containing a detectable amount of cocaine, ...

fifty (50) grams and more of a mixture or substance containing

a detectable amount of cocaine base, . . . and less than fifty (50)

kilograms of marijuana... .

App. 48-49. Count XVIII of the Redball I indictment charged:

Beginning from a time unknown, but no later than

November 2004, and continuing until October 2005, at St.

Thomas in the District of the Virgin Islands and elsewhere, the

defendants, Gelean Mark, Vernon Fagan, . . . did knowingly

and intentionally conspire, confederate, and agree together and

with each other . . . to import controlled substances into the

United States from a place outside thereof, namely five (5)

kilograms or more of a mixture or substance containing a

detectable amount of cocaine, . . . and fifty (50) grams or more

of a mixture or substance containing a detectable amount of

cocaine base ....

App. 53.

2 Count I of the Redball II indictment charged:

Beginning from a time unknown, but no later than 1999,

and continuing until October 2005, at St. Thomas in the

District of the Virgin Islands and elsewhere, defendants Gelean

Mark, Walter Ells, Vernon Fagan .. . and Dorian Swan, did

knowingly and intentionally, combine, conspire, confederate,

(... continued on next page)

Reet in tues Scenes

A-4

The jury trial in Redball I began on March 5, 2007

and ended in a mistrial on March 27, 2007 due toa

deadlocked jury. The jury trial in Redball II began

on September 5, 2007. The jury returned a partial

verdict of guilty with respect to Mark and co-

defendant Henry Freeman on Count I of the Redball

II indictment, and the trial judge declared a mistrial

on the remaining Redball II counts and defendants

on October 1, 2007. On January 28, 2008, Mark filed

a motion to dismiss Counts I and XVIII of the

Redball I indictment, contending that, given his

conviction on Count I in Redball II, reprosecution of

the conspiracy counts in the Redballi I indictment

would violate his double jeopardy rights.- The

District Court denied his motion, and this appeal

followed. We have jurisdiction to review this appeal

pursuant to 28 U.S.C. § 1291 and the collateral order

doctrine. See Abney v. United States, 431 U.S. 651,

and agree together with each other and with diverse other

parties known and unknown, .. . to knowingly and

intentionally possess with intent to distribute a controlled

substance, namely five (5) kilograms or more of a mixture and

substance containing a detectable amount of cocaine... .

App. 60°61. Count II of the Redball II indictment charged:

Beginning from a time unknown, but no later than

1999, and continuing until October 2005, at St. Thomas in the

District of the Virgin Islands and elsewhere, defendants,

Gelean Mark, Walter Ells, and Vernon Fagan, did knowingly

and intentionally conspire, confederate, and agree with each

other and with other persons known and unknown .. . to

import into the United States from a place outside thereof,

namely Tortola, British Virgin Islands, controlled substances,

namely five kilograms and more of a mixture and substance

containing a detectable amount of cocaine ....

App. 66.

A-5

659 (1977); United States v. Venable, 585 F.2d 71, 74

(83d Cir. 1978). “Our review of double jeopardy

challenges is plenary.” United States v. Smith, 82

F.3d 1261, 1265 (3d Cir. 1996).

IT.

In this appeal, we must decide whether Mark’s

conspiracy conviction in Redball II bars retrial in

Redball I under the double jeopardy clause. See U.S.

Const. amend. V, cl. 2. A defendant moving to

dismiss an indictment on double jeopardy grounds

bears the evidentiary burden of going forward by

putting his double jeopardy claim in issue. If the

defendant presents a non-frivolous showing of double

jeopardy, he is entitled to a pre-trial evidentiary

hearing to determine the merits of his claim. Once

the defendant has established his prima facie case,

the burden of persuasion shifts to the Government to

prove by a preponderance of the evidence that the

two indictments charge the defendant with legally

distinct crimes. See Smith, 82 F.3d at 1266.

The double jeopardy clause prevents’ the

Government from splitting one conspiracy into

multiple prosecutions. See Braverman v. United

States, 317 U.S. 49, 63 (1942). Generally, the same

evidence test is utilized to determine whether a

second prosecution is barred. Blockburger v. United

States, 284 U.S. 299 (1932) (holding that test for

whether two offenses are not the same is whether

each offense requires proof of a fact that the other

does not). When the charge involves a conspiracy,

however, this Court applies a “totality of the

circumstances” test as established in United States

v. Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987). This

A-6

is because “successive indictments against a single

defendant for participation in a single conspiracy

might withstand same evidence scrutiny if the court

places undue emphasis upon the evidence used to

prove the commission of the overt acts alleged,” id. at

1078, and with a conspiracy, “it is the agreement

which constitutes the crime, not the overt acts.” Id.

(quoting United States v. Young, 503 F.2d 1072,

1076 (38d Cir. 1974)). The “ultimate inquiry

presented by conspiracy double jeopardy claims is

whether there are two agreements or only one.”

Smith, 82 F.3d at 1267. See also United States v.

Becker, 892 F.2d 265, 268 (3d Cir. 1989) (“The

critical determination is whether one agreement

existed.”)

In order to determine whether one or more

agreements existed, Liotard’s totality of the

circumstances test instructs us to examine four

factors: (1) the “locus criminis” of the alleged

conspiracies3; (2) the degree of temporal overlap

between the conspiracies: (3) the overlap of

personnel between the conspiracies, including

unindicted co-conspirators; and (4) the similarity in

the overt acts charged and role played by the

defendant in each indictment. Liotard, 817 F.2d at

1077. These factors should not be rigidly applied, as

“different conspiracies may warrant emphasizing

different factors.” Smith, 82 F.3d at 1267. The goal is

to determine “whether the overt acts alleged in the

first conspiracy charge were carried out in

3 “Locus criminis’ is defined very simply 3 as the ‘locality

of a crime; the place where a crime was committed.” Smith, 82

F.3d at 1268 (citation omitted).

A-7

furtherance of the broad agreement alleged in the

second indictment or whether these acts were

carried out in furtherance of a different agreement.”

Liotard, 817 F.2d at 1078 (quotation and citation

omitted).

Il.

Mark is correct in his assertion that there is

significant overlap in the locations, time periods, and

participants in the two conspiracies alleged in this

case. However, we find it determinative that the

conspiracies had different objectives. As the District

Court concluded, the conspiracy alleged in Redball I

aimed “to possess large quantities of cocaine, crack,

and marijuana with intent to distribute the drugs on

the streets of St. Thomas for financial gain,” App. 17,

while the goal of the conspiracy alleged in Redball II

was “to possess large quantities of cocaine for

distribution in New York and North Carolina for

financial gain.” Id. at 18. In Becker, this Court

compared a conspiracy to grow and distribute

marijuana with a conspiracy to smuggle and

distribute foreign-grown marijuana. The defendant

in Becker was convicted in Pennsylvania of

conspiracy to possess with intent to distribute

marijuana in Pennsylvania, New Jersey, and

Massachusetts. He argued that a prior conviction in

West Virginia for conspiracy to manufacture and

distribute marijuana barred the Pennsylvania

conviction. The time periods alleged in the two

indictments overlapped, but this Court found it

crucial that while the object of the West Virginia

conspiracy had been to manufacture and possess

with intent to distribute, the Pennsylvania

indictment charged that the objects of that

A-8

conspiracy were to smuggle, store, and distribute

marijuana. Consequently, “[t]hese were two different

objectives” and “hence two conspiracies.” 892 F.2d at

268. Likewise, the substantive objectives of the two

conspiracies here are distinct and reveal two

agreements. Redball I alleged a conspiracy involving

a street-level operation in St. Thomas distributing

cocaine, crack cocaine, and marijuana, while Redball

II alleged a conspiracy to import cocaine from the

British Virgin Islands for subsequent distribution in

the continental United States. See also United

States v. Chiattello, 804 F.2d 415 (7 Cir. 1986)

(holding that two conspiracies existed where the first

indictment was for a conspiracy to buy marijuana in

Mississippi and the second indictment involved a

scheme to smuggle marijuana from Colombia and

distribute it in Indiana). Accordingly, Mark has not

made the requisite double jeopardy showing and

may be retried in Redball I.

IV.

For the foregoing reasons, we will affirm the

decision of the District Court.

A-9

FOR PUBLICATION

IN THE DISTRICT COURT OF

THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN

UNITED STATES OF AMERICA, )

Plaintiff, )

v. )

GELEAN MARK, )

VERNON FAGAN, )

ALAN DINZEY, )

ALEXCI EMMANUEL, )

LEON BOODOO, and )

)

)

)

SHAKIMA ALEXANDER,

Defendants.

Criminal No. 2005-76

[Entered: February 15, 2008]

ATTORNEYS:

Delia L. Smith, AUSA

St. Thomas, U.S.V.I.

For the Plaintitft

Robert L. King, Esq.

St. Thomas, U.S.V.I.

For defendant Gelean Mark,

Kevin D’Amour, Esq.

St. Thomas, U.S.V.I.

For defendant Vernon Fagan,

Bernard Vansluytman, Esq.

St. Thomas, U.S.V.I.

For defendant Alan Dinzey,

A-10

Judith Bourne, Esq.

St. Thomas, U.S.V.I.

For defendant Alexci Emmanuel,

United States v. Mark, et al.

Clive Rivers, Esq.

St. Thomas, U.S.V.I.

For defendant Leon Boodoo,

Karl Percell, Esq.

St. Thomas, U.S.V.I.

For defendant Shakima Alexander.

MEMORANDUM OPINION

GOMEZ, C.J.

Before the Court is the motion of Gelean Mark

(“Mark”), joined by Vernon Fagan (“Fagan”), to

dismiss the indictment in this matter on grounds

that prosecution of the charges therein would violate

the Double Jeopardy clause of the Fifth Amendment

of the United States Constitution (“Double

Jeopardy”). For the reasons stated below, the Court

will deny the motions.

I. FACTS

On October 6, 2005, the grand jury returned the

original indictment in the above-captioned matter

(hereinafter referred to as, “Redball One”) against

Mark, Fagan, and co-defendants Alan Dinzey

(“Dinzey”), Alexci Emmanuel (“Emmanuel”), Leon

Boodoo (“Boodoo”), and Shakima Alexander

(“Alexander”) (collectively, the ‘“Redball One

Defendants”). Thereafter, the grand jury returned a

superseding indictment, and, on December 19, 2006,

a second superseding indictment (the “Redball One

Indictment”).

A-11

Count One of the Redball One Indictment states:

Beginning from a time unknown, but no later

than November 2004, and continuing until

November 2005, at St. Thomas in the District

of the Virgin Islands and_ elsewhere,

defendants Gelean Mark, Vernon Fagan, aka

“Culture,” .-. . did knowingly and

intentionally, combine, conspire, confederate,

and agree together with each other and with

diverse other persons to the grand jury known

and unknown, .. . to knowingly and

intentionally possess with intent to distribvte

controlled substances....

(Second Superceding Indictment 1-2, Crim. No.

2005-76, Dec. 19, 2006.). The controlled substances

underlying the conspiracy in Count One included

cocaine, cocaine base ("crack"), and marijuana.

Count Eighteen of the indictment in Redball One

states:

Beginning from a time unknown, but no later

than November 2004, and continuing until

November 2005, at St. Thomas in the District

of the Virgin Islands and_ elsewhere,

defendants Gelean Mark [and] . . . Vernon

Fagan ... did knowingly and intentionally,

combine, conspire, confederate, and agree

together with each other .. . to import

controlled substances into the United States

from a place outside thereof... .

(Jd. at 8.) The conspiracy charged in Count Eighteen

involved the importation of cocaine and crack.

A-12

Also on December 19, 2006, the government filed

a separate indictment in this Court against Mark,

Fagan, and seven other codefendants, in a matter

given Criminal No. 2006-80 (hereinafter, "Redball

Two"). Count One of the indictment filed in Redball

Two alleges:

Beginning from a time unknown, but no later

than 1999, and continuing until October,

2005, at St. Thomas in the District of the

Virgin Islands and elsewhere, defendants

Gelean Mark [and] ... Vernon Fagan... did

knowingly and _ intentionally, combine,

conspire, confederate, and agree together with

each other and with diverse other persons to

the grand jury known and unknown, .. . to

knowingly and intentionally possess with

intent to distribute a controlled substance...

(Indictment 1-2, Crim. No. 2006-80, Dec. 19, 2006.)

Count Two of the Redball Two indictment states:

Beginning from a time unknown, but no later

than 1999, and continuing until October 2005,

at St. Thomas in the District of the Virgin

Islands and elsewhere, defendants Gelean

Mark [and] Vernon Fagan did knowingly and

intentionally, combine, conspire, confederate,

and agree together with each other and with

other persons known and unknown to the

grand jury ...to knowingly and intentionally

import into the United States from

Tortola, British Virgin Islands, controlled

substances....

(Jd. at 7.) The only controlled substance allegedly

involved in Redball Two was cocaine.

A-13

The trial in Redball One was conducted from

March 5, 2007, through March 27, 2007. The parties

rested and the matter went to the jury after

approximately three weeks of trial. During the

second day of deliberations, the jury sent the Court a

note indicating they were deadlocked and could not

reach a unanimous verdict with respect to the

defendants on Counts One and Eighteen of the

Indictment. After consulting with counsel, the Court

instructed the jury to deliberate further (the “AJd/en

charge”), consistent with Government of the Virgin

Islands v. Gereau, 502 F.2d 914, 935-36 (3d Cir.

1974). The jury deliberated for one more day. The

Court then received another note indicating that the

jury was still unable to reach a unanimous verdict

on Counts One and Eighteen.

On March 27, 2007, the Court declared a mistrial

in Redbaill One.! The Court found that manifest

necessity required such a declaration, given that the

jury was unable to reach a unanimous verdict on

Counts One and Eighteen. Thereafter, defendant

Dinzey moved to dismiss the Redball One Indictment

on Double Jeopardy grounds. In an Order entered

April 10, 2007, the Court denied Dinzey’s motion to

dismiss. On April 13, 2007, Dinzey appealed the

Court’s April 10, 2007, Order denying his motion to

dismiss the Redball One Indictment. The trial in

Redball Two took place between September 5, 2007,

through October, 3 2007. The parties rested and the

matter went to the jury during the fourth week of

1 On March 29, 2007, the Court entered a written Order

memorializing the March 27, 2007, verbal order declaring a

mistrial.

A-14

trial. After approximately three days of deliberation,

the jury sent the Court a note indicating they were

deadiocked and could not reach a unanimous verdict

with respect to four of the defendants in Count One

of the Indictment. The jury also disclosed that they

could not reach a unanimous verdict as to any

defendant named in Counts Two and Fourteen. After

consulting with counsel, the Court gave the jury an

“Allen charge,” similar to the instruction given after

the deadlock was announced in Redball One.

On October 1, 2007, the jury returned a partial

verdict of guilty with respect to Mark and co-

defendant Henry Freeman (“Freeman”) on Count

One. After approximately one and a half hours of

further deliberations, the jury sent another note to

the Court indicating that they were still unable to

reach a unanimous verdict with respect to Fagan

and his co-defendants on Count One, and on Counts

Two and Fourteen. The Court again conferred with

counsel and discussed suggestions on how to proceed

in light of the jury’s inability to reach a unanimous

verdict as to Fagan and the three other co-

defendants on Count One, and on Counts Two and

Fourteen. On October 3, 2007, the Court declared a

mistrial as to Fagan and three other co-defendants

in Counts One: as to Mark, Fagan, and another co-

defendant in Count Two; and as to Mark in Count

Fourteen.? As in Redball One, the Court found that

manifest necessity required such a déclaration in

2 On October 11; 2007, the Court entered a written Order

memorializing its October 3, 2007, verbal order finding

manifest necessity to declare a mistrial.

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Redball Two, given the jury’s inability to reach a

unanimous verdict on those charges.

On January 11, 2008, the Third Circuit issued its

mandate dismissing the appeal in Redball One. On

January 17, 2008, defendant Dorian Swan (“Swan”)

moved to dismiss the Redball Two Indictment on

Double Jeopardy grounds, which was joined by

Mark. On January 20, 2008, the Court entered an

Order denying the motion to dismiss. On January

21, 2008, Mark and Swan filed notices of appeal of

the Court’s January 20, 2008, Order denying the

motion to dismiss. On the morning of January 22,

2008, the day on which the retrial in Redball Two

was scheduled to commence, the Court entered an

Order specifically finding the motion to dismiss to be

frivolous and dilatory. In the afternoon of January

22, 2008, the Third Circuit issued an order staying

the trial as to all of the defendants in Redball Two.

The re-trial of Redball One is scheduled to

commence on February 25, 2008.

Now, Mark moves to dismiss Counts One and

Eighteen of the Redball One Indictment on Double

Jeopardy grounds.

II. DISCUSSION

The Double Jeopardy Clause protects criminal

defendants from later prosecutions for the same

offense. See U.S. CONST. amend. V (“[Nlor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb.”). In a jury trial, Double

Jeopardy rights do not attach until the jury is

empaneled and sworn. Gomez v. United States, 490

U.S. 858 (1989). However, the Double Jeopardy

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Clause will not bar successive prosecutions for the

same offense where a mistrial is required by

"manifest necessity." United States v. Rivera, 384

F.3d 49, 53 (8d Cir. 1991); see also United States v.

Console, 13 F.3d 641, 663-64 (3d Cir. 1993)

(explaining that Double Jeopardy will not bar the

reprosecution unless the issue has been "necessarily

determined in the defendant's favor by a valid and

final judgment").

Ill. ANALYSIS

Mark and Fagan argue that dismissal of Counts

One and Eighteen of the Redball One Indictment is

appropriate because the Double Jeopardy clause

prohibits re-prosecution of those Counts.

A. Mark

: Count One

Mark first asserts that indictments in Redball

One and Redball Two allege the same conspiracies.

Mark contends that, in light of his October 1, 2007,

conviction on Count One of the Redball Two

Indictment, re-trial of Count One of the Redball One

Indictment would violate the Double Jeopardy

clause. Although the “same evidence”? test ordinarily

3 Under the “same evidence” test, “a court inquires whether

each offense contains an element not contained in the other; if

not, they are the ‘same offense’ and double jeopardy bars

additional punishment and successive prosecution.” United

States v. Watkins, 339 F.3d 167, 176 (3d Cir. 2003); see also

United States v. Felton, 753 F.2d 276, 278 (8d Cir. 1985)

(explaining that Double Jeopardy will normally prohibit re-trial

if “the two offenses charged are in law and in fact the same

offense”); cf United States v. Felix, 503 U.S. 378, 387, 112 S.

Ct. 1377, 118 L. Ed.2d 25 (21992) (“[A] mere overlap in proof

(... continued on next page)

FEROS Re ies

:

i

a

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determines whether Double Jeopardy bars

successive criminal prosecutions, in conspiracy cases

such test, “may not adequately protect the

defendant's constitutional right against double

jeopardy, unless it is tempered ... with the

consideration that a single conspiracy may not be

arbitrarily subdivided for the purposes. of

prosecution.” United States v. Liotard, 817 F.2d

1074, 1078 (3d Cir. 1987) (citations and quotations

omitted); see also United States v. Smith, 82 F.3d

1261, 1267 (3d Cir. 1996) (‘We must not allow the

double jeopardy clause to be subverted by artful

pleading or by the selective and strategic reservation

of evidence in one prosecution so that it can be used

in a subsequent one premised upon the same

agreement.’); United States v. Becker, 892 F.2d 265,

268 (3d Cir. 1989) (“[T]he double jeopardy clause

prohibits it from splitting one conspiracy into several

prosecutions.”). “The danger is that successive

indictments against a _ single defendant for

participation in a single conspiracy might withstand

same evidence scrutiny if the court places undue

emphasis upon the evidence used to prove the

commission of the overt acts alleged.” Liotard, 817

F.2d at 1078. Indeed, “(different alleged overt acts

are not necessarily inconsistent with an improper

division of a single conspiracy into multiple crimes.

It is the agreement which constitutes the crime, not

the overt acts... .”. United States v. Young, 503

F.2d 1072, 1075 (3d Cir. 1974); see also United

States v. Pressler, 256 F.3d 144, 147 (3d Cir. 2001)

(recognizing that the essence of any conspiracy is the

between two prosecutions does not establish a double jeopardy

violation.”).

A-18

agreement); Becker, 892 F.2d at 268 (“The critical

determination is whether one agreement existed.”).

Courts apply a “totality of the circumstances” test to

Double Jeopardy claims involving’ successive

conspiracy indictments to emphasize the agreements

over the overt acts alleged furtherance of the

conspiracies charged. See Smith, 82 F.3d at 1271;

Becker, 892 F.2d at 268; Liotard, 817 F.2d at 1077-78.

Under this standard, Double Jeopardy bars re-

trial on drug conspiracy charges if the “totality of the

circumstances” demonstrates that the conspiracies

alleged in successive indictments are actually a

single agreement. See Smith, 82 F.3d at 1267 (“[T}he

fact that the Kentucky indictment here alleges a

conspiracy to commit mail fraud while the New

Jersey one alleges a conspiracy to transport in

interstate commerce the proceeds of a fraud is

wholly unimportant if the evidence indicates that

there was but one agreement to defraud la company]

utilizing both the mails and the _ interstate

transportation of funds.”); Liotard, 817 F.2d at 1077-

78 (“Proper weight must be given to consideration of

whether the overt acts alleged in the first conspiracy

charge were carried out in furtherance of the broad

agreement alleged in the second indictment or

whether these acts were carried out in furtherance of

a different agreement.” (citations and quotations

omitted)).

In determining whether the government has

alleged one or more agreements under the “totality

of the circumstances” test, it 1s appropriate to

consider the following four factors: “(a) the ‘Jocus

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criminis” of the alleged conspiracies; (b) the degree

of temporal overlap between the conspiracies; (c) the

overlap of personnel between the conspiracies,

including unindicted co-conspirators; and (d) the

similarity in the overt acts charged and role played

by the defendant in each indictment.” Sm1th, 82 F.3d

at 1267-68 (“[Wle must look to the entire record

before the district court in examining the totality of

the circumstances to determine if the conspiracies

alleged in the two indictments truly are different

agreements.”). "The ultimate purpose of the totality

of the circumstances inquiry is to determine whether

two groups of conspirators alleged by the

government to have entered separate agreements

are actually all committed to the same set of

objectives in a single conspiracy." /d. at 1271.

If the defendant makes the requisite showing of

interdependence with respect to the above four

factors, “he is entitled to a pretrial evidentiary

hearing to adjudicate his double jeopardy claim.” Jd.

Here, the Jocus criminis of the conspiracy charged

in Count One of the Redball One Indictment and in

Count One of the Redball Two Indictment is “the

District of the Virgin Islands and elsewhere.”

(Second Superseding Indictment 1, Crim. No. 2005-

76, Dec. 19, 2006.); (Indictment 1, Crim. No. 2006-

80, Dec. 19, 2006.) The conspiracy charged in Count

One of Redball One allegedly occurred from

November, 2004, through November, 2005. The

conspiracy charged in Count One of the Redball Two

Indictment spanned from approximately 1999, until

4 The term “Jocus criminis” means “[t]he place where a crime

was committed.” Black’s Law Dictionary (8th ed. 2004).

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October, 2005. Aside from Mark and Fagan, none of

the co-defendants named in the Redball One

Indictment were also named in the Redball Two

Indictment. Regarding overlap between unindicted

co-conspirators, Elton Turnbull (“Turnbull”) testified

during the trials of Redball Gne and Redball Two

regarding his participation in the conspiracies to

possess with intent to distribute alleged in both

indictments. Walter Ells (“Ells”) was named as a

defendant in the original indictment filed in Redball

One, but was dropped from this matter on December

19, 2006, when he was indicted in Redball Two. Both

indictments allege that Mark’s role was that of a

“leader” who “controllfed], orchestrate[d], and

superviseld] the importation and distribution of the

[controlled substances].” (Second Superseding

Indictment 3, Crim. No. 2005-76, Dec. 19, 2006.);

(Indictment 3, Crim. No. 2006-80, Dec. 19, 2006.)

Notwithstanding the overlap in the locations,

time periods, objectives, and some of the

participants, the conspiracies alleged in Count One

of the successive Redball indictments have different

objectives. The purported goal of the conspiracy

charged in Count One of Redball One was to possess

large quantities of cocaine, crack, and marijuana

with intent to distribute the drugs on the streets of

St. Thomas for financial gain. “Most often, the

members of the conspiracy imported the drugs from

outside the territory of the Virgin Islands, packaged

the drugs for individual sale, and distributed the

same in the Savan area of St. Thomas, U.S. Virgin

Islands.” (Second Superseding Indictment 2, Dec. 19,

2006.) On the other hand, the goal of the conspiracy

charged in Count One of Redball Two was to possess

large quantities of cocaine for distribution in New

A:21

York and North Carolina for financial gain. “Most

often, the members of the conspiracy imported the

drugs from outside the territory of the Virgin

Islands, and distributed the same through the Cyril

E. King Airport on various aircrafts for distribution

within various states in the mainland United

States.” (Indictment 2, Dec. 19, 2006.)

Because Count One of Redball One and Count

One of Redball Two allege different agreements with

different objectives, Double Jeopardy will not bar the

re-trial of Count One of Redball One. See, e.g,

United States v. Becker, 892 F.2d 265, 268 (3d Cir.

1989) (holding that a temporal overlap alone did not

show a single conspiracy for Double Jeopardy

purposes because the successive indictments alleged

“two different objectives and agreements, and hence

two conspiracies”). Indeed, it is readily apparent

from the face of the successive indictments in this

matter, as well as the evidence adduced during the

trials, that Count One of Redball One and Count

One of Redball Two alleged different conspiracies.

Accordingly, the Court finds Mark’s motion to

dismiss Count One of Redball One to be frivolous.

United States v. Smith, 82 F.3d 1261, 1271-72 (3d

Cir. 1996) (“Having considered the totality of

circumstances ... we conclude that [the defendant]

has failed to make a non-frivolous showing because

there is nothing in the record that suggests that the

New Jersey defendants and Kentucky defendants

are tied together into a single conspiracy by a

commitment to a single set of objectives.”).

A-22

2. Count Eighteen

Additionally, Mark claims that Count Eighteen of

Redball One charges the same conspiracy as Count

Two of the Redball Two. He asserts that there was

no manifest necessity to warrant the Court’s

declaration of a mistrial as to Counts Two of the

Redball Two Indictment. Mark contends that Double

Jeopardy bars re-trial of Count Eighteen of the

Redball One Indictment.

It is true that Double jeopardy bars successive

prosecutions where “the two offenses charged are in

law and in fact the same offense.” United States v.

Felton, 753 F.2d 276, 278 (3d Cir. 1985). However,

the Double Jeopardy Clause will not bar successive

prosecutions for the same offense where a mistrial is

required by "manifest necessity." United States v.

Rivera, 384 F.3d 49, 53 (3d Cir. 1991); see also

United States v. Console, 13 F.3d 641, 663-64 (3d

Cir. 1993) (explaining that Double Jeopardy will not

bar re-prosecution unless the issue has_ been

"necessarily determined in the defendant's favor by a

valid and final judgment"). Manifest necessity is

present when the circumstances leave the trial judge

with “no alternative to the declaration of a mistrial.

The trial judge must consider and exhaust all other

possibilities.” Love v. Morton, 112 F.3d 131, 137 (3d

Cir. 1997) (citing United States v. McKoy, 591 F.2d

218, 222 (3d Cir. 1979)).

As explained in the January 20, 2008, Order

denying Mark’s motion to dismiss the Redball Two

Indictment on Double Jeopardy grounds, the Court

has previously found that manifest necessity

required the declaration of a mistrial as to Count

A-23

Two in Redball Two. See (Order 4-5, Jan. 20, 2008.).5

Even assuming the successive Redball indictments

alleged the same conspiracies, it is axiomatic that re-

trial of Mark in Count Eighteen of Redball One

would not be barred, as Mark was neither convicted

nor acquitted of the remaining charges in Redball

One or Redball Two. See, e.g., Console, 13 F.3d at

664-65 (“[IJnasmuch as a response to a special

interrogatory regarding an element of a “hung” count

is neither a “final” judgment nor a determination

“necessary” to a final judgment, such a response

would not preclude the government from

relitigating"); see also United States ex rel. Russo v.

Supertor Court of New Jersey, 483 F.2d 7, 13 (3d Cir.

1973) (“Manifest necessity’ must be present ... for a

trial judge to declare a mistrial and still preserve for

the state the right to reprosecute a defendant.”).

Because that conclusion is obvious given the

attendant facts and minimal research efforts, the

Court finds that Mark’s motion to dismiss Count

Eighteen is frivolous.

B. Fagan

Fagan was not convicted or acquitted of any

charges in Redball One or Redball Two. He joins in

Marks motion to dismiss on grounds that the

mistrial in Redball Two was not required by

5 As of the date of this Memorandum Opinion, the appeal of

the Court’s January 20, 2008, Order finding that manifest

necessity required the mistrial as to Count Two of Redball Two

is currently pending before the United States Court of Appeals

for the Third Circuit. The validity of the Court’s manifest

necessity determination dictates whether Double Jeopardy will

bar retrial of Count Eighteen of the Redball One Indictment,

as well as Count Two of the Redball Two Indictment.

A-24

manifest necessity. As explained above, this Court

has found that manifest necessity supported the

declaration of a mistrial in Redball Two. For the

reasons explained above with respect to the re-trial

of Mark on Count Eighteen, Double Jeopardy does

not bar the re-trial of Fagan on Counts One or

Eighteen of this matter. Like Mark’s motion to

dismiss Count Eighteen, the Court also finds

Fagan’s motion to dismiss Counts One and Eighteen

to be frivolous.

IV. CONCLUSION

For the foregoing reasons, the Court will deny

Mark’s motion to dismiss Counts One and Eighteen

of this matter. The Court will also deny Fagan’s

motion to dismiss Counts One and Eighteen this

matter. An appropriate Order follows.

DATED: February 15, 2008

S\ CURTIS V. GOMEZ

Chief Judge

Copy:

Hon. Geoffrey W. Barnard

Delia L. Smith, AUSA

Robert L. King, Esq.

Kevin D’Amour, Esq.

Bernard Vansluytman, Esq.

Judith Bourne, Esq.

Clive Rivers, Esq.

Karl Percell, Esq.

Mrs. Trotman.

Ms. Donovan

Mrs. Schneider

Probation

U.S. Marshals

Bailey Figler, Esq.

ee Cee Soe te cer” ae ee

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A-26

FOR PUBLICATION

IN THE DISTRICT COURT OF

THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN

UNITED STATES OF AMERICA,

Plaintiff,

)

)

Vv. )

GELEAN MARK, )

VERNON FAGAN, )

ALAN DINZEY, )

ALEXCI EMMANUEL, )

LEON BOODOO, and )

SHAKIMA ALEXANDER, )

Defendants. )

)

Criminal No. 2005-76

[Entered: February 15, 2008]

ATTORNEYS:

Delia L. Smith, AUSA

St. Thomas, U.S.V_I.

For the Plaintiff

Robert L. King, Esq.

St. Thomas, U.S.V.lI.

For defendant Gelean Mark,

Kevin D’Amour, Esq.

St. Thomas, U.S.V.I.

For defendant Vernon Fagan,

Bernard Vansluytman, Esq.

St. Thomas, U.S.V.I.

For defendant Alan Dinzey,

A-27

Judith Bourne, Esq.

St. Thomas, U.S.V.I.

For defendant Alexc: Emmanuel,

United States v. Mark, et al

Criminal No. 2005-76

Order

Page 2

Clive Rivers, Esq.

St. Thomas, U.S.V.I.

For defendant Leon Boodoo,

Kar! Percell, Esq.

St. Thomas, U.S.V.I.

For defendant Shakima Alexander.

ORDER

GOMEZ, C.J.

Before the Court is the motion of Gelean Mark

(“Mark”), joined by Vernon Fagan (“Fagan”), to

dismiss the indictment in this matter on grounds

that re-trial would violate the Double Jeopardy

clause of the Fifth Amendment of the United States

Constitution (“Double Jeopardy”). For the reasons

stated in the Memorandum Opinion of even date, it

is hereby

ORDERED that the motions of Mark and Fagan

are DENIED.

DATED: February 15, 2008

S\ CURTIS V. GOMEZ

Chief Judge

A-28

Copy:

Delia L. Smith, AUSA

Robert L. King, Esq.

Kevin D’Amour, Esq.

Bernard Vansluytman, Esq.

Judith Bourne, Esq.

Clive Rivers, Esq.

Karl Percell, Esq.