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.
See n 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 � 17. Because of the silence of §
1955 with regard to the necessity of concerted activity, the Court
felt constrained to construe the statute to permit the possibility
that
Page 432 U. S. 148
the five persons "involved" in the gambling operation might not
be acting together. [
Footnote
13]
See also Pinkerton v. United States, 328 U.
S. 640,
328 U. S. 643
(1946).
The same flexibility does not exist with respect to the
"continuing criminal enterprise" statute. Section 848(b)(2)(A)
restricts the definition of the crime to a continuing series of
violations undertaken by the accused "in concert with five or more
other persons." Clearly, then, a conviction would be impossible
unless concerted activity were present. The express "in concert"
language in the statutory definition quite plausibly may be read to
provide the necessary element of "agreement" found wanting in §
1955. Even if § 848 were read to require individual agreements
between the leader of the enterprise and each of the other five
necessary participants, enough would be shown to prove a
conspiracy. It would be unreasonable to assume that Congress did
not mean anything at all when it inserted these critical words in §
848. [
Footnote 14] In
the
Page 432 U. S. 149
absence of any indication from the legislative history or
elsewhere to the contrary, the far more likely explanation is that
Congress intended the word "concert" to have its common meaning of
agreement in a design or plan. For the purposes of this case,
therefore, we assume,
arguendo, that § 848 does
Page 432 U. S. 150
require proof of an agreement among the persons involved in the
continuing criminal enterprise. [
Footnote 15] So construed, § 846 is a lesser included
offense of § 848, because § 848 requires proof of every fact
necessary to show a violation under § 846, as well as proof of
several additional elements. [
Footnote 16]
B.
Brown v. Ohio, post, p.
432 U. S. 161,
decided today, establishes the general rule that the Double
Jeopardy Clause prohibits a State or the Federal Government from
trying a defendant for a greater offense after it has convicted him
of a lesser included offense.
Post at
432 U. S.
168-169. What lies at the heart of the Double Jeopardy
Clause is the prohibition against multiple prosecutions for "the
same offense."
See United States v. Wilson, 420 U.
S. 332,
420 U. S. 343
(1975).
Brown reaffirms the rule that one convicted of the
greater offense may not be
Page 432 U. S. 151
subjected to a second prosecution on the lesser offense, since
that would be the equivalent of two trials for "the same offense."
Post at
432 U. S. 168.
See In re Nielsen, 131 U. S. 176,
131 U. S. 187
(1889). Because two offenses are "the same" for double jeopardy
purposes unless each requires proof of an additional fact that the
other does not,
post at
432 U. S. 168,
it follows that the sequence of the two trials for the greater and
the lesser offense is immaterial, [
Footnote 17] and trial on a greater offense after
conviction on a lesser ordinarily is just as objectionable under
the Double Jeopardy Clause as the reverse order of proceeding.
[
Footnote 18]
Cf. Waller
v. Florida, 397 U.S. at
397 U. S. 390.
Contrary to the suggestion of the Court of Appeals,
Iannelli created no exception to these general jeopardy
principles for complex statutory crimes. [
Footnote 19]
The rule established in
Brown, however, does have some
exceptions. One commonly recognized exception is when all the
events necessary to the greater crime have not taken place at the
time the prosecution for the lesser is begun.
See Brown v.
Ohio, post at
432 U.S.
169 n. 7;
Blackledge v. Perry, 417 U. S.
21,
417 U. S. 229,
and n. 7 (1974);
Diaz v. United States, 223 U.
S. 442 (1912).
See also Ashe v. Swenson,
397 U. S. 436,
Page 432 U. S. 152
397 U. S. 453
n. 7 (1970) (BRENNAN, J., concurring). This exception may also
apply when the facts necessary to the greater were not discovered
despite the exercise of due diligence before the first trial.
Ibid.
If the defendant expressly asks for separate trials on the
greater and the lesser offenses, or, in connection with his
opposition to trial together, fails to raise the issue that one
offense might be a lesser included offense of the other, another
exception to the
Brown rule emerges. This situation is no
different from others in which a defendant enjoys protection under
the Double Jeopardy Clause, but for one reason or another retrial
is not barred. Thus, for example, in the case of a retrial after a
successful appeal from a conviction, the concept of continuing
jeopardy on the offense for which the defendant was convicted
applies, thereby making retrial on that offense permissible.
See Price v. Georgia, 398 U. S. 323
(1970);
Green v. United States, 355 U.
S. 184 (1957);
United States v. Ball,
163 U. S. 662
(1896). In a slightly different context, the defendant's right to
have the need for a retrial measured by the strict "manifest
necessity" standard of
United States v.
Perez, 9 Wheat. 579 (1824), does not exist if the
mistrial was granted at the defendant's request.
United States
v. Dinitz, 424 U. S. 600
(1976). Both the trial after the appeal and the trial after the
mistrial are, in a sense, a second prosecution for the same
offense, but, in both situations, the policy behind the Double
Jeopardy Clause does not require prohibition of the second trial.
Similarly, although a defendant is normally entitled to have
charges on a greater and a lesser offense resolved in one
proceeding, there is no violation of the Double Jeopardy Clause
when he elects to have the two offenses tried separately and
persuades the trial court to honor his election. [
Footnote 20]
Page 432 U. S. 153
C. In this case, trial together of the conspiracy and
"continuing criminal enterprise" charges could have taken place
without undue prejudice to petitioner's Sixth Amendment right to a
fair trial. [
Footnote 21] If
the two charges had been tried in one proceeding, it appears that
petitioner would have been entitled to a lesser included offense
instruction.
See Fed, Rule Crim.Proc. 31(c);
Keeble v.
United States, 412 U. S. 205
(1973);
cf. Sansone v. United States, 380 U.
S. 343,
380 U. S.
349-350
Page 432 U. S. 154
(1965). If such an instruction had been denied on the ground
that § 846 was not a lesser included offense of § 848, petitioner
could have preserved his point by proper objection. Nevertheless,
petitioner did not adopt that course. Instead, he was solely
responsible for the successive prosecutions for the conspiracy
offense and the "continuing criminal enterprise" offense. [
Footnote 22] Under the
circumstances, we hold that his action deprived him of any right
that he might have had against consecutive trials. It follows,
therefore, that the Government was entitled to prosecute petitioner
for the § 848 offense, and the only issue remaining is that of
cumulative punishments upon such prosecution and conviction.
III
Although both parties, throughout the proceedings, appear to
have assumed that no cumulative punishment problem is present in
this case, [
Footnote 23] the
imposition of the separate fines
Page 432 U. S. 155
seems squarely to contradict that assumption. [
Footnote 24] Fines, of course, are treated
in the same way as prison sentences for purposes of double jeopardy
and multiple punishment analysis.
See North Carolina v.
Pearce, 395 U. S. 711,
395 U. S. 718
n. 12 (1969). In this case, since petitioner received the maximum
fine applicable to him under § 848, it is necessary to decide
whether cumulative punishments are permissible for violations of §§
846 and 848.
The critical inquiry is whether Congress intended to punish each
statutory violation separately.
See, e.g., Prince v. United
States, 352 U. S. 322,
352 U. S. 327
(1957);
Callanan v. United States, 364 U.
S. 587,
364 U. S. 594
(1961);
Milanovich v. United States, 365 U.
S. 551,
365 U. S. 554
(1961).
Cf. Bell v. United States, 349 U. S.
81,
349 U. S. 82
(1955). In
Iannelli v. United States, the Court concluded
that Congress did intend to punish violations of § 1965 separately
from § 371 conspiracy violations. Since the two offenses were
different, there was no need to go further.
See 420 U.S.
at
420 U. S.
785-786, nn. 17-18.
See also Gore v. United
States, 357 U. S. 386
(1958). If some possibility exists that the two statutory offenses
are the "same offense" for double jeopardy purposes, however, it is
necessary to examine the problem closely in order to avoid
constitutional multiple punishment difficulties.
See North
Carolina v. Pearce, 395 U.S. at
395 U. S. 717;
United States v. Wilson, 420 U.S. at
420 U. S. 343.
[
Footnote 25]
As petitioner concedes, Reply Brief for Petitioner 3, the first
issue to be considered is whether Congress intended to allow
cumulative punishment for violations of §§ 846 and 848. We have
concluded that it did not, and this again makes it unnecessary to
reach the lesser included offense issue.
Page 432 U. S. 156
Section 848 itself reflects a comprehensive penalty structure
that leaves little opportunity for pyramiding of penalties from
other sections of the Comprehensive Drug Abuse Prevention and
Control Act of 1970. Even for a first offender, the statute
authorizes a maximum prison sentence of life, a fine of $100,000,
and a forfeiture of all profits obtained in the enterprise and of
any interest in, claim against, or property or contractual rights
of any kind affording a source of influence over, the enterprise.
§§ 848(a)(1), (2). The statute forbids suspension of the imposition
or execution of any sentence imposed, the granting of probation,
and eligibility for parole. § 848(c). In addition, § 848 is the
only section in the statutes controlling drug abuse that provides
for a mandatory minimum sentence. For a first offender, that
minimum is 10 years. § 848(a)(1). A second or subsequent offender
must receive a minimum sentence of 20 years, and he is subject to a
fine of up to $200,000, as well as the forfeiture described above
and the maximum of lifetime imprisonment.
Ibid. Since
every § 848 violation by definition also will involve a series of
other felony violations of the Act,
see §§ 848(b)(1), (2),
there would have been no point in specifying maximum fines for the
§ 848 violation if cumulative punishment was to be permitted.
The legislative history of § 848 is inconclusive on the question
of cumulative punishment. [
Footnote 26] The policy reasons usually offered to
justify separate punishment of conspiracies and
Page 432 U. S. 157
underlying substantive offenses, however, are inapplicable to §§
846 and 848. In
Callanan v. United States, 364 U.S. at
364 U. S.
593-594, the Court summarized these reasons:
"[C]ollective criminal agreement -- partnership in crime
presents a greater potential threat to the public than individual
delicts. Concerted action both increases the likelihood that the
criminal object will be successfully attained and decreases the
probability that the individuals involved will depart from their
path of criminality. Group association for criminal purposes often,
if not normally, makes possible the attainment of ends more complex
than those which one criminal could accomplish. Nor is the danger
of a conspiratorial group limited to the particular end toward
which it has embarked. Combination in crime makes more likely the
commission of crimes unrelated to the original purpose for which
the group was formed. In sum, the danger which a conspiracy
generates is not confined to the substantive offense which is the
immediate aim of the enterprise."
Accord, Iannelli v. United States, 420 U.S. at
420 U. S.
778.
As this discussion makes clear, the reason for separate
penalties for conspiracies lies in the additional dangers posed by
concerted activity. Section 848, however, already expressly
prohibits this kind of conduct. Thus, there is little legislative
need to further this admittedly important interest by authorizing
consecutive penalties from the conspiracy statute.
Our conclusion that Congress did not intend to impose cumulative
penalties under § 846 and 848 is of minor significance in this
particular case. Since the Government had the right to try
petitioner on the § 848 indictment, the court had the power to
sentence him to whatever penalty was authorized by that statute. It
had no power, however, to impose on him a fine greater than the
maximum permitted by § 848. Thus, if petitioner received a total of
$125,000 in fines
Page 432 U. S. 158
on the two convictions, as the record indicates, he is entitled
to have the fine imposed at the second trial reduced so that the
two fines together do not exceed $100,000.
The judgment of the Court of Appeals, accordingly, is affirmed
in part and vacated in part, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
532 F.2d 1101, 1105 (CA7 1976).
[
Footnote 2]
Section 846 provides:
"Any person who attempts or conspires to commit any offense
defined in this subchapter [Control and Enforcement] is punishable
by imprisonment or fine or both which may not exceed the maximum
punishment prescribed for the offense, the commission of which was
the object of the attempt or conspiracy."
[
Footnote 3]
Section 841(a)(1) provides:
"(a) . . . Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally -- "
"(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance."
Heroin is classified as a Schedule I narcotic drug controlled
substance. 21 U.S.C. § 812(c) (Sch. I)(b)(10); 21 CFR §
1308.11(c)(11) (1976). Cocaine is a Schedule II narcotic drug
controlled substance. 21 U.S.C. § 812(c) (Sch. II)(a)(4); 21 CFR §
1308.12(b)(4) (1976).
[
Footnote 4]
Section 848 provides, in relevant part:
"(a) . . . (1) Any person who engages in a continuing criminal
enterprise shall be sentenced to a term of imprisonment which may
not be less than 10 years and which may be up to life imprisonment,
to a fine of not more than $100,000, and to the forfeiture
prescribed in paragraph (2). . . . "
"(2) Any person who is convicted under paragraph (1) of engaging
in a continuing criminal enterprise shall forfeit to the United
States -- "
"(A) the profits obtained by him in such enterprise, and"
"(B) any of his interest in, claim against, or property or
contractual rights of any kind affording a source of influence
over, such enterprise."
"(b) . . . For purposes of subsection (a) of this section, a
person is engaged in a continuing criminal enterprise if -- "
"(1) he violates any provision of this subchapter or subchapter
II of this chapter [Import and Export] the punishment for which is
a felony, and"
"(2) such violation is a part of a continuing series of
violations of this subchapter or subchapter II of this chapter --
"
"(A) which are undertaken by such person in concert with five or
more other persons with respect to whom such person occupies a
position of organizer, a supervisory position, or any other
position of management, and,"
"(B) from which such person obtains substantial income or
resources."
"(c) . . . In the case of any sentence imposed under this
section, imposition or execution of such sentence shall not be
suspended, probation shall not be granted, and section 4202 of
Title 18 [repealed March 15, 1976, by Pub.L. 94 233, 90 Stat. 219,
and replaced by a new § 4205, each relating to eligibility of
prisoners for parole] . . . shall not apply."
[
Footnote 5]
The dissenters attempt to undercut the force of petitioner's
opposition to trial together by asserting that the motion "gave
relatively little emphasis to arguments relating to petitioner
alone."
Post at
432 U. S. 159
n. 4. On the contrary, the memorandum supporting the defendants'
motion took pains to point out which objections to trial together
were relevant to Jeffers alone.
See App. 18, 22-23.
Indeed, the last argument before the conclusion stated:
"[I]t is likely that much of the evidence which will be
presented in the conspiracy trial does not 'directly' inculpate the
defendant, GARLAND JEFFERS, and would, therefore, be inadmissible
against him in the 'continuing criminal enterprise' indictment
unless a direct link could be established. All of the said overt
acts would, however, be admissible, or at least arguably so, in the
conspiracy trial. The prejudice to the defendant, JEFFERS, is
therefore, imminent and clear."
Id. at 22. In addition to the arguments relating
specifically to Jeffers, the memorandum contained a number of
points designed to apply equally to all defendants. We see no
reason to read it as implicitly excluding Jeffers.
[
Footnote 6]
As indicated in
n 2,
supra, § 846 provides that the sentence for the conspiracy
offense shall not exceed the maximum punishment prescribed for the
substantive offense the commission of which was the object of the
conspiracy. The maximum punishment for a first offender for a
violation of § 841(a)(1), in which a Schedule I or II narcotic drug
is the controlled substance in question, is a term of imprisonment
of not more than 15 years, a fine of not more than $25,000, or
both. § 841(b)(1)(A).
[
Footnote 7]
After this Court's refusal to review the decision on certiorari,
petitioner filed a motion under 28 U.S.C. § 2255 for postconviction
relief. The District Court denied the motion, the Court of Appeals
affirmed, 544 F.2d 523, and this Court again denied certiorari. 430
U.S. 935 (1977).
[
Footnote 8]
In his opposition to the Government's motion for trial together,
however, when he joined the argument that the jury would be
confused by consolidation, petitioner apparently had argued in
favor of construing the statutes to create separate offenses. App.
19. He also joined the argument that "identity of charges" was
lacking.
Id. at 15.
[
Footnote 9]
Language in the Government's memorandum appears to concede that
§ 846 is a lesser included offense: "Title 21, United States Code,
Section 848, requires proof of the elements previously set out in
Section 846 but additional elements are required." App. 34. It is
unnecessary for present purposes to rely on any such
concession.
[
Footnote 10]
Nothing in the record of Case No. H-CR-74-56 suggests that the
$25,000 fine was credited against the $100,000 fine. The record of
Case No. H-CR-74-57 expressly indicates that the contrary was true,
and we proceed on that assumption.
[
Footnote 11]
The District Court actually instructed the jury that the
Government might prove that the object of the continuing criminal
enterprise was to commit a violation under § 846, the conspiracy
statute, rather than to violate § 841(a)(1). App. 45. The court
therefore gave a complete conspiracy charge to the jury.
Id. at 46-48. The Government argues that this instruction
was erroneous. Without resolving that issue or exploring the
implications of the Government's position, we merely note that the
District Court's decision to give the instruction reflects the
conceptual closeness of the two statutes.
[
Footnote 12]
Section 848, by its terms, covers violations of both subchapter
I of the Comprehensive Drug Abuse Prevention and Control Act of
1970 and subchapter II of the Act, while § 846 deals only with
subchapter I. The exact counterpart to § 846, however, is § 963 in
subchapter II. In this case, no one disputes the fact that only
subchapter I is involved.
[
Footnote 13]
The Court's use of the term "concerted activity" to describe §
1955's requirement that five or more persons must be involved in
the gambling business, 420 U.S. at
420 U. S. 790,
does not indicate a contrary understanding. At that point in the
opinion, the Court simply was addressing its attention to the
reason why § 1955 requires the participation of a significant
number of persons in the business. As a practical matter, the group
involved often will act in concert. This, however, is not
necessarily the case -- a fact the Court acknowledged in its
Blockburger analysis, 420 U.S. at
420 U. S. 785
n. 17.
[
Footnote 14]
The legislative history, the use that Congress has made of the
phrase "in concert" in other statutes, and the plain meaning of
that term all support the interpretation suggested for § 848. The
House Report on H.R. 18583, which eventually became Pub.L. 91-513,
the Comprehensive Drug Abuse Prevention and Control Act of 1970,
assumed that the meaning of "in concert" was clear, since it never
defined the phrase further.
See, e.g., H.R.Rep. No.
91-1444, Pt. 1, p. 50 (1970). Even the writers of additional views
did not include an objection to the nondefinition of the term in
their criticisms of other aspects of the "continuing criminal
enterprise" section of the law. The Senate Report on S. 3246, the
Senate version of the same law, did shed some light on the problem.
See S.Rep. No. 91-613 (1969). In the Section-by-Section
Analysis of the bill, the report states
"Subsection (f) of this section sets out the criteria which must
be met before a defendant can be deemed involved in a continuing
criminal enterprise. The court must find by a preponderance of
evidence that the defendant acted
in concert with or conspired
with at least five other persons engaged in a continuing
criminal enterprise involving violations of the act."
Id. at 28 (emphasis added). The actual language of the
bill, however, used the words "in concert with" to cover both
concerted action and conspiracy.
Id. at 121. Thus, it is
apparent that the Senate understood the term "in concert" to
encompass the concept of agreement.
The debates reveal that Congress was concerned with providing
severe penalties for professional criminals when it included the
"continuing criminal enterprise" section in the statute.
See,
e.g., 116 Cong.Rec. 995 (1970) (remarks of Sen. Dodd);
id. at 1181 (remarks of Sen. Thurmond);
id. at
33631 (remarks of Cong. Weicker);
id. at 33314 (remarks of
Cong. Bush). This concern undercuts the Government's argument that
one professional criminal might have "conned" five innocent dupes
into working for him, all of them being unaware that the purpose of
the work was to conduct an illegal drug business, and none agreeing
to do so.
When the phrase "in concert" has been used in other statutes, it
has generally connoted cooperative action and agreement.
See,
e.g., 2 U.S.C. §§ 434(b)(13), 441a(a)(7)(b)(i) (1976 ed.)
(Federal Election Campaign Act Amendments of 1976); 7 U.S.C. §
13c(a) (1970 ed., Supp.) (Commodity Futures Trading Commission Act
of 1974 -- liability as principal); 10 U.S.C. § 894(a) (Code of
Military Justice -- mutiny or sedition); 29 U.S.C. §§ 52, 104, 105
(Norris-LaGuardia Act); 46 U.S.C. § 1227 (Merchant Marine Act --
agreements with other carriers forbidden); 49 U.S.C. § 322(b)(1)
(Interstate Commerce Act, Part II -- unlawful operation of motor
carriers). This suggests that Congress intended the same words to
have the same meaning in § 848. Even
Iannelli did not
require the word "conspiracy" to be spelled out in the statutory
definition, as long as the concept of agreement was included
therein. 420 U.S. at
420 U. S. 785
n. 17. Since the word "concert" commonly signifies agreement of two
or more persons in a common plan or enterprise, a clearly
articulated statement from Congress to the contrary would be
necessary before that meaning should be abandoned.
[
Footnote 15]
In connection with this assumption, we note that, until the
Court of Appeals in this case found that § 846 was a lesser
included offense of § 848, no other appellate court had considered
the issue. Indeed, after
Iannelli, it would have been fair
to assume that the question was open. The dissenting opinion here
is based on the premise that it was beyond dispute that §§ 846 and
848 were so related. From there, it is easy to reason that the
prosecutor should be held accountable for the presumed error that
occurred. Because the premise fails, however, this case cannot be
fit so neatly into the niche that would be fashioned by the
dissent. Unless it is plain that two offenses are "the same" for
double jeopardy purposes, the parties and the court should be
entitled to assume that successive prosecutions are an available
option. This assumption would only be reinforced if the defendant
affirmatively asked the court to require two proceedings, and in
connection with his request he actively sought postponement of the
second trial, as Jeffers did. Under the circumstances, it is hardly
accurate to say, as the dissent does, that Jeffers was being
required to give legal advice to the prosecution. On the contrary,
he was simply under an obligation to preserve his double jeopardy
point properly, by alerting both court and prosecution to the
existence of a complex, unsettled issue.
[
Footnote 16]
The two indictments in this case are remarkably similar in
detail. It is clear that the identical agreement and transactions
over the identical time period were involved in the two cases. It
is also quite clear that none of the participants were "innocent
dupes."
[
Footnote 17]
It is also possible to argue that a second trial on a greater
offense is prohibited by the Double Jeopardy Clause because the
defendant is necessarily placed twice in jeopardy on the lesser
offense. The risk of conviction on the greater means nothing more
than a risk of conviction upon proof of all the elements of the
lesser plus proof of the additional elements needed for the
greater.
Brown v. Ohio, post at
432 U. S. 167
n. 6, leaves consideration of the implications of this theory for
another day.
[
Footnote 18]
Any adjustment in punishment for the fact that the defendant
already has been punished for the lesser offense is not adequate to
cure the injury suffered because of multiple prosecutions, since
the double jeopardy problem inheres in the very fact of a second
trial for the "same" offense.
See Blackledge v. Perry,
417 U. S. 21,
417 U. S. 30-31
(1974);
Price v. Georgia, 398 U.
S. 323,
398 U. S. 329
(1970)
[
Footnote 19]
The Government makes no attempt to defend the Court of Appeals'
reading of
Iannelli; indeed, it states that that court
misconstrued
Iannelli. Brief for United States 22 n.
10.
[
Footnote 20]
The considerations relating to the propriety of a second trial
obviously would be much different if any action by the Government
contributed to the separate prosecutions on the lesser and greater
charges. No hint of that is present in the case before us, since
the Government affirmatively sought trial on the two indictments
together.
Unlike the dissenters, we are unwilling to attach any
significance to the fact that the grand jury elected to return two
indictments against petitioner for the two statutory offenses. As
the Court of Appeals' opinion made clear, before this case, it was
by no means settled law that § 846 was a lesser included offense of
§ 848.
See 532 F.2d at 1106-1111.
See also Brief
for United States 18-32; n. 15,
supra. Even now, it has
not been necessary to settle that issue definitively.
See
supra at
432 U. S.
149-150. If the position reasonably could have been
taken that the two statutes described different offenses, it is
difficult to ascribe any improper motive to the act of requesting
two separate indictments. Furthermore, as noted
supra at
432 U. S. 142,
it was the Government itself that requested a joint trial on the
two indictments, which also indicates that no sinister purpose was
behind the formal method of proceeding.
[
Footnote 21]
Petitioner argues that a finding of waiver is inconsistent with
the decision in
Simmons v. United States, 390 U.
S. 377,
390 U. S.
389-394 (1968), where the Court held that a defendant
could not be required to surrender his Fifth Amendment privilege
against compulsory self-incrimination in order to assert an
arguably valid Fourth Amendment claim. In petitioner's case,
however, the alleged Hobson's choice between asserting the Sixth
Amendment fair trial right and asserting the Fifth Amendment double
jeopardy claim is illusory. Had petitioner asked for a Rule 14
severance from the other defendants, the case might be different.
In that event, he would have given the court an opportunity to
ensure that prejudicial evidence relating only to other defendants
would not have been introduced in his trial. Assuming that a valid
Fifth Amendment point was in the background, due to the
relationship between §§ 846 and 848, petitioner could have had no
complaint about a trial of the two charges together. No such
motion, however, was made. Under the circumstances of this case,
therefore, no dilemma akin to that in
Simmons arose.
[
Footnote 22]
Petitioner's position is not strengthened merely because no one
raised the multiple prosecution point during the first proceeding.
Since the Government's posture throughout this case has been that
§§ 846 and 848 are separate offenses, it could not have been
expected, on its own, to elect between them when its motion for
trial together was denied. The right to have both charges resolved
in one proceeding, if it exists, was petitioner's; it was therefore
his responsibility to bring the issue to the District Court's
attention.
[
Footnote 23]
Brief for Petitioner 21; Brief for United States 9.
See,
however, the Government's statement, Tr. of Oral Arg. 36:
"[W]e submit, the Double Jeopardy Clause does not bar
prosecution for the greater offense, provided, of course, that
there was a conviction on the lesser included offense and provided
that any punishment that he has suffered on the lesser offense be
credited."
Different considerations govern the propriety of addressing the
cumulative punishment issue, since petitioner, for obvious reasons,
never affirmatively argued that the difference in the two statutes
was so great as to authorize separate punishments, and he did argue
implicitly that separate trials would be permissible. Even if the
two indictments had been tried together, the cumulative punishment
issue would remain.
[
Footnote 24]
For present purposes, since petitioner is not eligible for
parole at any time, there is no need to examine the Government's
argument that the prison sentences do not present any possibility
of cumulative punishment.
[
Footnote 25]
Cf. United States v. Gaddis, 424 U.
S. 544,
424 U. S. 549
n. 12 (1976) (vacating convictions and sentences under 18 U.S.C. §
2113(a) in light of conviction under § 2113(d)).
[
Footnote 26]
The Congress was plainly interested in punishing the
professional criminal severely when it passed § 848.
See,
e.g., S.Rep. No. 91-613, pp. 2, 7 (1969); 116 Cong.Rec. 995,
1181, 1664 (1970) (remarks in Senate debate);
id. at
33300-33301, 33304, 33314 (remarks in House debate). Taken alone,
this might support an argument for cumulative penalties. The House
Report however, indicates that the penalty scheme of the
"continuing criminal enterprise" section was to be separate from
the rest of the penalties. H.R.Rep. No. 91-1444, pt. 1, pp. 10-11
(1970). In light of these arguably conflicting conclusions from the
legislative history, we see no reason to deviate from the result
suggested by the structure of the statute itself.
MR. JUSTICE WHITE, concurring in the judgment in part and
dissenting in part.
Because I agree with the United States that
Iannelli v.
United States, 420 U. S. 770
(1975), controls this case, I for that reason concur in the
judgment of the Court with respect to petitioner's conviction. For
the same reason and because the conspiracy proved was not used to
establish the continuing criminal enterprise charged, I dissent
from the Court's judgment with respect to the fines and from
432 U. S.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, and MR. JUSTICE MARSHALL join, dissenting in part, and
concurring in the judgment in part.
There is nothing novel about the rule that a defendant may not
be tried for a greater offense after conviction of a lesser
included offense. It can be traced back to Blackstone, and "has
been this Court's understanding of the Double Jeopardy Clause at
least since
In re Nielsen[, 131 U.
S. 176,] was decided in 1889,"
Brown v. Ohio,
post at
432 U. S. 168.
[
Footnote 2/1] I would not permit
the prosecutor to claim ignorance of this ancient rule, or to evade
it by arguing that the defendant failed to advise him of its
existence or its applicability.
Page 432 U. S. 159
The defendant surely cannot be held responsible for the fact
that two separate indictments were returned, [
Footnote 2/2] or for the fact that other defendants were
named in the earlier indictment, or for the fact that the
Government elected to proceed to trial first on the lesser charge.
[
Footnote 2/3] The other defendants
had valid objections to the Government's motion to consolidate the
two cases for trial. [
Footnote 2/4]
Most trial lawyers will be startled to learn that a rather routine
joint opposition to that motion to consolidate has resulted in the
loss [
Footnote 2/5] of what this
Court used to regard as "a vital safeguard in our society, one
that
Page 432 U. S. 160
was dearly won and one that should continue to be highly
valued,"
Green v. United States, 355 U.
S. 184,
355 U. S. 198.
[
Footnote 2/6]
See United
States v. Alford, 516 F.2d 941, 945 n. 1 CA5 (1975).
It is ironic that, while the State's duty to give advice to an
accused is contracting,
see, e.g., Oregon v. Mathiason,
429 U. S. 492, a
new requirement is emerging that the accused, in order to preserve
a constitutional right, must inform the prosecution about the legal
consequences of its acts. Even the desirability of extending Mr.
Jeffers' incarceration does not justify this unique decision.
[
Footnote 2/7]
While I concur in the judgment to the extent that it vacates the
cumulative fines, I respectfully dissent from the affirmance of the
conviction.
[
Footnote 2/1]
As the Court notes in
Brown, Nielsen cites an 1833 New
Jersey case; that case, in turn, quotes Blackstone.
State v.
Cooper, 13 N.J.L. 361, 375.
See 4 W. Blackstone,
Commentaries *336.
[
Footnote 2/2]
The plurality implies that the result in this case would be
different "if any action by the Government contributed to the
separate prosecutions on the lesser and greater charges."
Ante at
432 U. S. 152
n. 20. I wonder how the grand jury happened to return two separate
indictments.
[
Footnote 2/3]
The Government retained the alternative of trying petitioner on
both charges at once, while trying the other defendants separately
for conspiracy. The prosecutor never attempted this course, and
defense counsel -- not having had an opportunity to read today's
plurality opinion -- had no reason to believe he had a duty to
suggest it. Until today, it has never been the function of the
defense to give legal advice to the prosecutor.
[
Footnote 2/4]
When the Government attempted to obtain a joint trial on all the
charges against all the defendants, the attorney representing all
the defendants resisted the Government motion. He did so largely
because of the possible prejudice to petitioner's codefendants, and
gave relatively little emphasis to arguments relating to petitioner
alone.
See ante at
432 U. S.
142-143, n. 5.
[
Footnote 2/5]
It is quite clear from the plurality opinion that petitioner has
been denied his constitutional rights. As that opinion states, it
is
"the general rule that the Double Jeopardy Clause prohibits a
State or the Federal Government from trying a defendant for a
greater offense after it has convicted him of a lesser included
offense."
Ante at
432 U. S. 150.
And, as the plurality also demonstrates, that is precisely what
happened here.
Ante at
432 U. S.
147-150. Two additional facts, also noted by the
plurality, clinch the double jeopardy claim: (1) petitioner was not
only twice tried, but also twice punished for the same offense,
ante at
432 U. S.
154-158; and (2) the instructions at the second trial
required petitioner to defend against the lesser charge for a
second time,
ante at
432 U. S. 145
n. 11.
[
Footnote 2/6]
The following sentence by Mr. Justice Black is also worth
remembering: "If such great constitutional protections are given a
narrow, grudging application, they are deprived of much of their
significance."
Green, 355 U.S. at
355 U. S.
198.
[
Footnote 2/7]
The Court's disposition is especially troubling because eight
Justices agree that petitioner's constitutional right was violated,
and only four are persuaded that he waived his double jeopardy
objection.