The opinion of the court was delivered by: HOGAN
On March 19, 1985, the defendant Fred B. Black, Jr. filed a motion to dismiss Counts 8 through 25 and 27, 28, 30, 32, 34, 36 and 37 of this indictment in their entirety, and to dismiss certain overt acts contained in Count 2. The defendant asserts that the evidence supporting these substantive counts and overt acts is substantially the same as that used to obtain recent convictions against him under a separate indictment for conspiracy to distribute controlled substances, 21 U.S.C. § 846, and violation of the Travel Act, 18 U.S.C. § 1952,
and that his prosecution on the enumerated counts and overt acts of this indictment would therefore violate the Double Jeopardy Clause of the Fifth Amendment.
On March 22, 1985 the Court heard oral argument on defendant's motion, denying the motion at the conclusion of the parties' presentations. Thereupon, the defendant, in open court, filed a motion to stay trial of this case, scheduled to commence on March 26, 1985, pending appeal of the denial of his double jeopardy motion. Defendant's motion to stay was taken under advisement. Later that day the Court issued two orders, one embodying the oral ruling on defendant's motion to dismiss counts and strike overt acts, the other denying defendant's motion to stay. The reasons for both rulings are now set forth below.
A. Motion to Dismiss Substantive Counts and Strike Overt Acts
In North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), the Supreme Court recognized that the Double Jeopardy Clause embodies essentially three guarantees: (1) It protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishment for the same offense. Id. at 717. In this case the defendant raises the second of these guarantees. The defendant maintains that where essentially the same evidence underlies two separate judicial criminal proceedings, the successive prosecution bar of the Double Jeopardy Clause is violated even if the successively prosecuted offenses have technically different elements. As part of this argument the defendant asserts that the familiar Blockburger test for determining whether two offenses are really distinct from one another by examining their statutory provision and considering whether each "requires proof of a fact which the other does not," is totally inapplicable to successive prosecution cases. This contention, however, is mistaken. In Brown v. Ohio, 432 U.S. 161 at 166, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), and again more recently in Illinois v. Vitale, 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980), the Supreme Court expressly embraced the Blockburger rule in connection with a successive prosecution claim under the Double Jeopardy Clause. Brown, 432 U.S. at 166; Vitale, 447 U.S. at 416.
The real issue raised by the defendant is not the applicability of the Blockburger test to successive prosecution cases, but whether, despite satisfaction of the Blockburger test, other standards for protecting against double jeopardy through successive prosecution have been met.
In Brown v. Ohio, supra, the Supreme Court did note that the Blockburger test is not the only standard for determining whether successive prosecutions violate the double jeopardy clause, and that successive prosecutions may be barred in some circumstances where the second prosecution involves issues and evidence also involved in the first trial. 432 U.S. at 166 n.6. An examination of the few circumstances under which the Supreme Court has identified a double jeopardy problem other than through a Blockburger-type analysis indicates the extremely limited circumstances under which the actual evidence adduced at an earlier trial may be considered for double jeopardy purposes, and their inapplicability to the present case. Thus, in In Re Nielsen, 131 U.S. 176, 33 L. Ed. 118, 9 S. Ct. 672 (1889), the Supreme Court held that a Mormon convicted of unlawful cohabitation with two women could not be subsequently tried for adultery on the grounds that he was lawfully married to only one of the women. The Court held that, although neither marriage nor sexual intercourse was strictly necessary to prove unlawful cohabitation, as they obviously were for adultery, it was well known that the unlawful cohabitation statute was aimed against polygamy, with the strong presumption of sexual intercourse attaching to living together as man and wife. Id. at 188-89. Therefore, under the particular circumstances of that case the Court suggested that adultery should be regarded as a lesser-included offense, an "incident" of the cohabitation, despite the technical variance of the elements of the offenses. Id. at 188-90.
Recently, under somewhat different circumstances, the Supreme Court has recognized that it may be appropriate to look at the evidence presented at an earlier trial, or to be presented at a subsequent one, to determine if one offense is a lesser-included offense of the other, although comparison of their bare statutory provisions would not reveal them as such. In Illinois v. Vitale, 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980), the defendant struck and killed two children with his automobile. He was first found guilty under a provision of the Illinois Vehicle Code which made it unlawful to fail to reduce speed to avoid a collision. The defendant then challenged a subsequent attempt to try him for involuntary manslaughter, which required a showing of "reckless operation of a motor vehicle in a manner likely to cause death or great bodily harm." The Supreme Court held in Vitale that even if recklessness under the statute could be demonstrated by evidence other than failing to slow down, if that was in fact what the prosecution intended to prove, a substantial double jeopardy problem was presented. Id. at 420.
See also Harris v. Oklahoma, 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912 (1977) (double jeopardy bars prosecution for robbery after felony-murder conviction for killing occurring in course of robbery since every element of robbery had to be proven to sustain felony-murder conviction).
Moreover, even the decisions in Jordan v. Virginia, 653 F.2d 870 (4th Cir. 1980), and United States v. Sabella, 272 F.2d 206 (2d Cir. 1959), cited by the defendant, do not support the motion here. Jordan and Sabella stand for the proposition that the double jeopardy clause prohibits a second prosecution which utilizes evidence adduced in an earlier prosecution, where the same evidence would support a conviction in both. Jordan, 653 at 873-74; Sabella, 272 F.2d at 210. In Counts 11 through 18 of this indictment defendant Black is charged with preventing Riggs National Bank from filing Currency Transaction Reports (CTRs) for cash deposits in excess of $10,000 made by him on a certain date, in violation of 18 U.S.C. § 1001 and 2. In Counts 19 through 25 of this indictment the defendant is charged with causing officials of Riggs to fail to file CTRs on other occasions, in violation of 31 U.S.C. §§ 1081, 1082, 1059 and 18 U.S.C. § 2. Finally, the defendant is charged here with violations of the Travel Act, 18 U.S.C. § 1952, for actions entirely distinct from the Travel Act violation for which he was already convicted. Although evidence pertinent to these substantive charges was introduced in the earlier trial in connection with the defendant's alleged money-laundering role in the narcotics conspiracy, primarily as circumstantial evidence of the defendant's knowledge of the source of the funds, the evidence which would sustain the charges here certainly was not sufficient to find the defendant guilty in the earlier trial. Particularly with respect to the conspiracy charge in the earlier trial, evidence pertaining to the substantive counts charged here provide no evidence of the agreement required for conspiracy.
Finally, the defendant has moved to dismiss Counts 8, 9, 10, 36 and 37, which are in fact charges against his co-defendant rather than himself. The Court considers their inclusion in this motion inadvertence, but nevertheless notes denial of the motion as to those counts.
With respect to Count 2 of the indictment, and the defendant's motion to strike certain overt acts contained in that count, this Court perceives the defendant as also raising a somewhat different double jeopardy issue by virtue of his discussion of the Supreme Court's grant of certiorari in United States v. Garrett, 727 F.2d 1003 (11th Cir.), cert. granted, 469 U.S. 814, 105 S. Ct. 78, 83 L. Ed. 2d 27 (1984). The issue before the Supreme Court in Garrett is whether the government may prosecute an individual for engaging in a "continuing criminal enterprise" ("CCE"), in violation of 21 U.S.C. § 848, using the defendant's earlier conviction for another drug-related felony as a predicate offense to establish the CCE violation. The Seventh Circuit held in Garrett that the earlier conviction could be used as a basis for the CCE prosecution. 727 F.2d at 1008-10.
However, unlike the CCE statute, the RICO statute applicable to Count 2 of this indictment specifically provides that to constitute a pattern of racketeering activity the prosecution must show at least two predicate offenses set forth at 18 U.S.C. § 1961(1),
one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission ...