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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

YW 5. | &
\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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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) ...... S
bee
ae
oe
aa
a
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ix
4
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24
es
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A:3

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.

A-15

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

A-16

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

A-17

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

A-19

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).

A-20

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
es aa a ca Sek gk
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0698%3A1. Public record. Not legal advice.