Jeffers v. United States
432 U.S. 137 (1977)

Annotate this Case

U.S. Supreme Court

Jeffers v. United States, 432 U.S. 137 (1977)

Jeffers v. United States

No. 75-1805

Argued March 21, 1977

Decided June 16, 1977

432 U.S. 137

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

A federal grand jury returned two indictments against petitioner for offenses under 21 U.S.C. One charged him and nine others with violating § 846 by conspiring to distribute heroin and cocaine during a specified period in violation of § 841(a)(1), the indictment specifying, inter alia, that the conspiracy was to be accomplished by petitioner's assumption of leadership of a certain organization, by distribution of controlled substances, and by acquisition of substantial sums of money through such distribution. The other charged petitioner alone with violating § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws, by his distributing and possessing with intent to distribute heroin and cocaine, in violation of § 841(a)(1) during the same specified period, the indictment alleging that he had undertaken the distribution "in concert" with five or more others, with respect to whom he occupied the position of organizer and supervisor, and that, as a result of the distribution, he had obtained a substantial income. The court denied a motion by the Government to consolidate the indictments for trial, which the petitioner and his codefendants had opposed on the grounds that neither the parties nor the charges were the same and that, based on the overt acts charged, much of the § 846 evidence would not inculpate petitioner, and would therefore be inadmissible against him on the § 848 charge. Petitioner and six codefendants were first tried and found guilty on the § 846 indictment, petitioner receiving the maximum sentence applicable to him of 15 years in prison, a $25,000 fine, and three-year special parole term, and the conviction was affirmed on appeal. Petitioner then moved to dismiss the § 848 indictment on the ground that in the § 846 trial he had already been placed in jeopardy for the same offense and that the "same evidence" rule of Blockburger v. United States,284 U. S. 299, barred the second prosecution since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. Following denial of petitioner's motion on the ground that the offenses were separate, petitioner was tried and found guilty of the § 848 offense, and was given the maximum sentence for a first offender, viz., life imprisonment and a $100,000 fine, to run consecutively with the § 846 sentence. The Court of Appeals,

Page 432 U. S. 138

although concluding that § 846 was a lesser included offense of § 848, and that the earlier conviction would normally, under Blockburger, bar the subsequent prosecution, held that Iannelli v. United States,420 U. S. 770, created a new double jeopardy rule applicable only to complex statutory crimes, where greater and lesser offenses could be separately punished if, as here, Congress so intended. Petitioner challenged the Iannelli interpretation, and also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense and conviction of the lesser and that he had not waived the double jeopardy issue.

Held: The judgment is affirmed in part, vacated in part, and remanded. Pp. 432 U. S. 147-158; 432 U. S. 160.

532 F.2d 1101, affirmed in part, vacated in part, and remanded.

MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, MR JUSTICE POWELL, and MR. JUSTICE REHNQUIST, concluded:

1. Petitioner's action in opposing the Government's motion to consolidate the indictments for trial deprived him of any right he might have had against consecutive trials, and the Government was therefore entitled to prosecute petitioner for the § 848 offense. This result is an exception to the rule established in Brown v. Ohio, post, p. 432 U. S. 161, that the Double Jeopardy Clause prohibits the trial of a defendant for a greater offense after he has been convicted of a lesser included offense, being no different from other situations where a defendant enjoys protection under the Double Jeopardy Clause but, for one reason or another, may be retried. Here petitioner, who could have been tried in one proceeding, chose not to adopt that course, and therefore was solely responsible for the separate prosecutions. Pp. 432 U. S. 147-154.

2. It cannot be assumed that Congress intended to impose cumulative penalties under §§ 846 and 848, and petitioner is therefore entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000. Pp. 154-158.

MR. JUSTICE WHITE concluded that Iannelli v. United States, supra, controls this case, and therefore concurs in the judgment with respect to petitioner's conviction. P. 432 U. S. 158.

MR JUSTICE STEVENS, joined by MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL, concurs in the judgment to the extent that it vacates the cumulative fines. P. 432 U. S. 160.

BLACKMUN, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in part in the judgment and dissenting in part, post, p. 432 U. S. 158. STEVENS, J., filed an opinion dissenting in part

Page 432 U. S. 139

and concurring in the judgment in part, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 432 U. S. 158.

MR. JUSTICE BLACKMUN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join.

This case involves the extent of the protection against multiple prosecutions afforded by the Double Jeopardy Clause of the Fifth Amendment, under circumstances in which the defendant opposes the Government's efforts to try charges under 21 U.S.C. §§ 846 and 848 in one proceeding. It also raises the question whether § 846 is a lesser included offense of § 848. Finally, it requires further explication of the Court's decision in Iannelli v. United States,420 U. S. 770 (1975).

I

A. According to evidence presented at trial, petitioner Garland Jeffers was the head of a highly sophisticated narcotics distribution network that operated in Gary, Ind., from January, 1972, to March, 1974. The "Family," as the organization was known, originally was formed by Jeffers and five others and was designed to control the local drug traffic in the city of Gary. Petitioner soon became the dominant figure in the organization. He exercised ultimate authority over the substantial revenues derived from the Family's drug sales, extortionate practices, and robberies. He disbursed funds to pay salaries of Family members, commissions of street workers, and incidental expenditures for items such as apartment rental fees, bail bond fees, and automobiles for certain

Page 432 U. S. 140

members. Finally, he maintained a strict and ruthless discipline within the group, beating and shooting members on occasion. The Family typically distributed daily between 1,000 and 2,000 capsules of heroin. This resulted in net daily receipts of about $5,000, exclusive of street commissions. According to what the Court of Appeals stated was "an extremely conservative estimate," [Footnote 1] petitioner's personal share from the operations exceeded a million dollars over the two-year period. On March 18, 1974, a federal grand jury for the Northern District of Indiana returned two indictments against petitioner in connection with his role in the Family's operations. The first, No. H-CR-74-56, charged petitioner and nine others with an offense under 21 U.S.C. § 846, [Footnote 2] by conspiring to distribute both heroin and cocaine during the period between November 1, 1971, and the date of the indictment, in violation of 21 U.S.C. § 841(a)(1). [Footnote 3] App. 11. The indictment specified, among other things, that the conspiracy was to be accomplished by petitioner's assumption of leadership of the Family organization, by distribution of controlled substances, and by acquisition of substantial sums of money through the distribution of the controlled substances. Id. at 6. The

Page 432 U. S. 141

second indictment, No. H-CR-74-57, charged petitioner alone with a violation of 21 U.S.C. § 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws. [Footnote 4] Like the first, or conspiracy, indictment, this second indictment charged that petitioner had distributed and possessed with intent to distribute both heroin and cocaine, in violation of § 841(a)(1), again between November 1, 1971, and the date of the indictment. As required by the statute, the indictment alleged that petitioner had undertaken the distribution "in concert with five or more other people with respect to whom he occupied a position of organizer, supervisor and

Page 432 U. S. 142

manager," and that, as a result of the distribution and other activity, he had obtained substantial income. App. 3-4.

Shortly after the indictments were returned, the Government filed a motion for trial together, requesting that the "continuing criminal enterprise" charge be tried with the general conspiracy charges against petitioner and his nine codefendants. Id. at 12-14. The motion alleged that joinder would be proper under Fed.Rule Crim.Proc. 8, since the offenses charged were of the same or similar character and they were based on the same acts or transactions constituting parts of a common scheme or plan. It also represented that much of the evidence planned for the § 848 trial was based on the same transactions as those involved in the § 846 case. Consequently, it argued that joinder was appropriate and within the court's power pursuant to Fed.Rule Crim.Proc. 13.

The defendants in the § 846 case filed a joint objection to the Government's motion. App. 124. Petitioner and his nine codefendants argued generally that joinder would be improper under Fed.Rules Crim.Proc. 8 and 14, since neither the parties nor the charges were the same. The codefendants were particularly concerned about the probable effect of the evidence that would be introduced to support the continuing criminal enterprise charge and about the jury's ability to avoid confusing the two cases. Another argument in the objection focused directly on petitioner. [Footnote 5] It noted that the § 846 indictment

Page 432 U. S. 143

charged 17 overt acts, but that petitioner was named in only 10 of them, and was alleged to have participated actively in only 9. Thus, the argument went, it was likely that much of the evidence in the conspiracy trial would not inculpate petitioner, and would therefore be inadmissible against him in the "continuing criminal enterprise" trial. Although a severance of the conspiracy charges against petitioner from those against the nine codefendants might have alleviated this problem, petitioner never made such a motion under Rule 14. On May 7, the court denied the Government's motion for trial together, and thereby set the stage for petitioner's first trial on the conspiracy charges.

B. The trial on the § 846 indictment took place in June, 1974. A jury found petitioner and six of his codefendants guilty. Petitioner received the maximum punishment applicable to him under the statute -- 15 years in prison, a fine of $25,000, and a 3-year special parole term. [Footnote 6] The Court of Appeals affirmed the conviction, 520 F.2d 1256 (CA7 1975), and this Court denied certiorari, 423 U.S. 1066 (1976). [Footnote 7]

Page 432 U. S. 144

While the conspiracy trial and appeal were proceeding, petitioner was filing a series of pretrial motions in the pending criminal enterprise case. When it appeared that trial was imminent, petitioner filed a motion to dismiss the indictment on the ground that in the conspiracy trial he already had been placed in jeopardy once for the same offense. He argued both that the two indictments arose out of the same transaction, and therefore the second trial should be barred under that theory of double jeopardy, and that the "same evidence" rule of Blockburger v. United States,284 U. S. 299 (1932), should bar the second prosecution, since a § 846 conspiracy was a lesser included offense of a § 848 continuing criminal enterprise. [Footnote 8] To forestall the Government's anticipated waiver argument, petitioner asserted that waiver was impossible, since his objection to trying the two counts together was based on his Sixth Amendment right to a fair trial, and his opposition to the § 848 trial was based on his Fifth Amendment double jeopardy right. A finding of waiver, according to his argument, would amount to penalizing the exercise of one constitutional right by denying another. App. 227.

The Government, in its response to the motion to dismiss, asserted that § § 846 and 848 were separate offenses, and, for this reason, petitioner would not be placed twice in jeopardy by the second trial. [Footnote 9] The District Court agreed with this analysis and denied petitioner's motion shortly before the second trial began.

Page 432 U. S. 145

At the second trial, the jury found petitioner guilty of engaging in a continuing criminal enterprise. Again, he received the maximum sentence for a first offender: life imprisonment and a fine of $100,000. Seen 4, supra. The judgment specified that the prison sentence and the fine were "to run consecutive with sentence imposed in H-CR-74-56 [the conspiracy case]." Record, Doc. 105. Thus, at the conclusion of the second trial, petitioner found himself with a life sentence without possibility of probation, parole, or suspension of sentence, and with fines totaling $125,000. [Footnote 10]

On appeal, the conviction and sentence were upheld. 532 F.2d 1101 (CA7 1976). The Court of Appeals concluded that 846 was a lesser included offense of § 848, since the "continuing criminal enterprise" statute expressly required proof that the accused had acted in concert with five or more other persons. In the court's view, this requirement was tantamount to a proof of conspiracy requirement. [Footnote 11] Construing § 848 to require proof of agreement meant that all the elements of the § 846 offense had to be proved for § 848, in addition to the elements of a supervisory position and the obtaining of substantial income or resources; [Footnote 12] thus, §§ 846

Page 432 U. S. 146

and 848 satisfied the general test for lesser included offenses. Although the court stated that ordinarily conviction of a lesser included offense would bar a subsequent prosecution for the greater offense, relying on Gavieres v. United States,220 U. S. 338 (1911); Blockburger v United States, supra; and Waller v. Florida,397 U. S. 387 (1970), it read Iannelli v. United States,420 U. S. 770 (1975), to create a new double jeopardy rule applicable only to complex statutory crimes.

The two statutes at issue in Iannelli were 18 U.S.C. § 371, the general federal conspiracy statute, and 18 U.S.C. § 1955, the statute prohibiting illegal gambling businesses involving five or more persons. Despite language in Iannelli seemingly to the contrary, 420 U.S. at 420 U. S. 785 n. 17, the Court of Appeals stated that § 371 is a lesser included offense of § 1955. 532 F.2d at 1109. The court attached no significance to the fact that § 1955 contains no requirement of action "in concert." It believed that Iannelli held that greater and lesser offenses could be punished separately if Congress so intended, and it adopted the same approach to the multiple prosecution question before it. Finding that Congress, in enacting § 848, was interested in punishing severely those who made a substantial living from drug dealing, and that Congress intended to make § 848 an independent crime, the court concluded that §§ 846 and 848 were not the "same offense" for double jeopardy purposes. It therefore held that the conviction on the first indictment did not bar the prosecution on the second.

In his petition for certiorari, petitioner challenged the Court of Appeals' reading of Iannelli and suggested again that § 846 was a lesser included offense of § 848. He also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense after conviction for the lesser. Finally, he argued that he had not waived the double jeopardy

Page 432 U. S. 147

issue. In addition to these issues, it appears that cumulative fines were imposed on petitioner, which creates a multiple punishment problem. We granted certiorari. 42 U.S. 815 (1976). We consider first the multiple prosecution, lesser included offense, and waiver points, and then we address the multiple punishment problem.

II

A. The Government's principal argument for affirming the judgment of the Court of Appeals is that Iannelli controls this case. Like the conspiracy and gambling statutes at issue in Iannelli, the conspiracy and "continuing criminal enterprise" statutes at issue here, in the Government's view, create two separate offenses under the "same evidence" test of Blockburger. The Government's position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848(b)(2)(A) of the phrase "in concert with." If five "innocent dupes" each separately acted "in concert with" the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23.

If the Government's position were right, this would be a simple case. In our opinion, however, it is not so easy to transfer the Iannelli result, reached in the context of two other and different statutes, to this case. In Iannelli, the Court specifically noted: "Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents." 420 U.S. at 420 U. S. 785 (emphasis in original). Elaborating on that point, the Court stated: "The essence of the crime of conspiracy is agreement, . . . an element not contained in the statutory definition of the § 1955 offense." Id. at 785

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