The opinion of the court was delivered by: RICHEY
The Superseding Indictment ("Indictment") in this case, which was filed on June 20, 1989, charges twenty-nine defendants with participating in a conspiracy to violate the narcotics laws of the United States. In addition, the Indictment charges certain defendants with other narcotics-related offenses, interstate travel in aid of racketeering, assault with intent to kill, murder, using and carrying a firearm in connection with a drug trafficking offense, and carrying a pistol without a license. On August 4, 1989, the Court issued an Order that severed the defendants and charges into three separate trials; a few modifications were made to that Order on August 9, 1989. Two trials have already taken place in this case. In those two trials, the defendants were tried on all counts of the Indictment alleging conspiracy and other narcotics-related offenses and interstate travel in aid of racketeering.
The third trial, which is scheduled to commence on June 12, 1990, involves four defendants -- Columbus Daniels, Rayful Edmond, III, James Antonio Jones, and Jerry Millington. In the first trial, the defendants Edmond, Jones, and Millington were convicted of conspiracy; the defendants Edmond and Millington were also convicted of other offenses. In the second trial, the defendant Daniels was convicted of conspiracy. The defendants Edmond, Millington, and Jones have already been sentenced on the offenses for which they were convicted in the first trial; the defendant Daniels has not yet been sentenced. On June 12, 1990, these four defendants are scheduled to go to trial on the remaining charges in the Indictment which include assault with intent to kill,
carrying a pistol without a license,
using and carrying a firearm in connection with a drug trafficking offense ("firearms offense"),
and first degree murder while armed.
All of the pending charges are District of Columbia Code offenses, with the exception of the firearms offense.
The defendant Edmond has filed a motion requesting the dismissal of the counts of the Indictment charging him with the firearms offense on double jeopardy grounds; Edmond's co-defendants have joined in that motion. Edmond argues that the Fifth Amendment's protection against double jeopardy would be violated if he were required to go to trial on the firearms offenses because conspiracy is a lesser included offense of the firearms offense. As such, if he were required to go to trial on the firearms offense counts of the Indictment, Edmond argues that he would be subjected to successive prosecutions for what is in essence the "same" offense.
In addition to the double jeopardy problem raised by the defendant Edmond, the Court raised with the parties sua sponte another double jeopardy problem, which deals with the Fifth Amendment's protection against multiple punishments for the same offense.
The sentences that the defendants Edmond, Jones, and Millington received for their conspiracy convictions are the cause of this second double jeopardy problem. In sentencing each of these defendants on conspiracy, the Court, at the government's request, increased the defendants' respective offense levels by two levels on the ground that they each possessed a firearm during their commission of the offense of conspiracy. This two-level increase covers the same conduct for which these defendants would be punished if they were convicted of the firearms offenses charged in the Indictment.
Upon careful consideration of the parties' written submissions, the oral argument by their counsel, and the underlying law, the Court concludes that a trial on the counts of the Indictment alleging the firearms offense would violate the Double Jeopardy Clause's protection against a second prosecution for the same offense after conviction as to the defendants Daniels and Millington. In addition, as to the defendants Edmond, Jones, and Millington, a trial on these counts would be inconsistent with the Double Jeopardy Clause's protection against multiple punishments for the same offense. Accordingly, the Court has no choice but to dismiss the counts of the Indictment alleging the firearms offense, namely Counts 9, 23, and 37.
As a result of the Court's dismissal of Counts 9, 23, and 37 of the Indictment, there are no longer any federal offenses to be tried in this case, and the Court now, in the exercise of its discretion, may dismiss the D.C.Code offenses which remain to be tried. However, in view of the substantial time the Court has devoted to the adjudication of this case over the past thirteen months, the Court, in the exercise of its discretion, will retain jurisdiction over the D.C.Code offenses and will proceed to trial on those offenses on June 12, 1990.
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This clause provides three basic protections: "(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 punishments for the same offense." United States v. Rosenberg, 281 U.S. App. D.C. 209, 888 F.2d 1406, 1409 (D.C. Cir. 1989) (citing Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977)).
In its most recent double jeopardy ruling, the Supreme Court held:
To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger test. If that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred.
Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548, 58 U.S.L.W. 4599 (1990). The Blockburger test provides that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932).
"Often, merely examining the statutes defining the two offenses reveals that the elements of one offense are facially contained within the other." Rosenberg, 888 F.2d at 1412. However, in examining the firearms offense statute, 18 U.S.C. § 924(c), and the conspiracy statute, 21 U.S.C. § 846, it is not facially apparent whether each of these two statutes requires proof of a fact, or an element, which the other does not. To answer this question, it is necessary to turn to the Indictment in this case. The firearms offense statute makes it a crime to use or carry a firearm in connection with a drug trafficking offense. The counts in the Indictment charging the firearms offense allege that the defendants used and carried a firearm in connection with the drug trafficking crime of conspiracy. As such, proof of the underlying conspiracy is an element of the firearms offense. In a trial on the firearms offense as charged, the government would again have to prove the elements of conspiracy plus the fact that the defendant used or carried a firearm during and in relation to his commission of the offense of conspiracy. See, e.g., United States v. Power, 881 F.2d 733, 735 (9th Cir. 1989).
In light of the foregoing, conspiracy is a lesser included offense of the firearms offense in this case. Therefore, the Blockburger test is not satisfied, and conspiracy and the firearms offense constitute the same offense for double jeopardy purposes.