This matter is before the Court on the motion of defendant Cornelius
Singleton to dismiss Count One of the indictment on grounds of double
jeopardy and on his separate motion to dismiss Counts One and Two on
grounds of double jeopardy. The government filed oppositions to the
motions, and the Court heard oral argument on August 31, 2001 and
September 24, 2001.
Cornelius Singleton was indicted by a grand jury in the United States
District Court for the Southern District of Florida on March 16, 2000.
See Exhibit 2 to Defendant's Memorandum in Support of Motion to Dismiss
Count One of the Indictment on Grounds of Double Jeopardy ("Def.Mot.Exh.
2"). He was charged with knowingly and intentionally combining,
conspiring, confederating and agreeing with six other named defendants
and "with others known and unknown to the Grand Jury" to possess with the
intent to distribute a Schedule II controlled substance, a mixture and
substance containing a detectable amount of cocaine, in violation of
Title 21, United States Code, Section 841(a)(1), all in violation of
Title 21, United States Code, Section 846. Def. Mot. Exh. 2. The
conspiracy allegedly ran from on or about January 1, 1996 to February
26, 2000 in Miami, Miami-Dade County, in the Southern District of
Florida, "and elsewhere." Id. In addition to the conspiracy count, the
indictment contained two substantive counts charging a number of the
defendants with possession with intent to distribute cocaine, but
defendant Singleton was charged in neither of these counts. See id. at
Superseding indictments were returned in Florida on April 6, 2000,
August 31, 2000, and September 21, 2000. See Def. Mot. Exhs. 3-5. In each
of the superseding indictments, defendant Singleton was charged with the
same conspiracy covering the same time period, and his co-defendants
remained largely the same. The forfeiture provision changed from
indictment to indictment, and the conspiracy count was modified in the
final iteration to take account of the Supreme Court's decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). Def. Mot. Exh. 5 at 2. Singleton was never charged in any of the
On March 16, 2000, a grand jury in the United States District Court for
the District of Columbia returned a one-count indictment charging
defendant Singleton and four other individuals-Phyllis Marie Webster,
Michael Anthony Johnson, Byron Lamont McDade and Benjamin Gilbert Ashe
— "and other persons known and unknown to the grand jury" with
unlawfully, knowingly and willfully combining, conspiring, confederating
and agreeing to distribute and possess with the intent to distribute a
mixture and substance containing a detectable amount of cocaine, a
Schedule II controlled substance, in the amount of
five kilograms or more, in violation of Title 21, United States Code,
Sections 841(a) and (b)(1)(A)(ii), all in violation of Title 21, United
States Code, Section 846. Def. Mot. Exh. 16. The conspiracy allegedly
began on or about January 1, 1993 and continued to on or about March 16,
2000; it allegedly took place in the District of Columbia, the Eastern
District of Virginia, the District of Maryland, the Southern District of
Florida and elsewhere.*fn1 None of the Florida defendants except
Singleton was named in this indictment.
A superseding indictment, adding Lionel Nunn as a defendant, was
returned on April 20, 2000; the start date of the conspiracy was changed
to January 1, 1994. See Def. Mot. Exh. 17. Another superseding
indictment, adding Lauren Jefferson (defendant Nunn's wife) as a
defendant and adding an additional count, charging her and Nunn (but not
defendant Singleton) with money laundering, was returned on March 29,
2001. See Def. Mot. Exh. 18. Yet another superseding indictment, this one
adding a count charging defendant Singleton with engaging in a continuing
criminal enterprise, in violation of Title 21, United States Code,
Sections 848(a) and (b), was returned on August 9, 2001. This indictment
names only Cornelius Singleton and Byron McDade as defendants. Former
co-defendants Webster, Johnson, Ashe and Nunn — all of whom have
entered guilty pleas — are now named as unindicted
co-conspirators, as are "other persons known and unknown to the grand
Count Two of the August 9, 2001 superseding indictment charges
defendant Singleton with "unlawfully, knowingly and intentionally
engag[ing] in a continuing criminal enterprise" from January 1991 until
March 16, 2000, by violating Title 21, United States Code, Sections
841(a)(1), 843 and 846, all in violation of Title 21, United States Code,
Sections 848(a) and (b). According to the indictment, the predicate
violations include (1) the conspiracy charged in Count One; (2) many of
the Overt Acts (specifically, Overt Acts 1, 3, 4, 5, 6, 7 and 8) listed
in Count One; and (3) various other narcotics conspiracies in the
District of Columbia, Tennessee, Georgia, Maryland and New York, all of
which are said to be a part of the charged continuing criminal
enterprise. All but one of these conspiracies are within the same time
frame as Count One of the District of Columbia indictment.
On October 25, 2000, defendant Singleton was convicted by a jury in the
Southern District of Florida of conspiring to possess five kilograms or
more of cocaine with the intent to distribute it. The evidence at trial
showed that during the period from January 1, 1996 to February 26, 2000,
defendant Singleton obtained multi-kilogram quantities of cocaine from
suppliers in Florida — specifically, from his codefendant Giraldo
Orlando Fernandez and one Marcelino Casasnovas, who testified for the
government at Singleton's trial — and then shipped the cocaine
through a courier, Ronald Lucas, to Washington, D.C. for distribution by
Phyllis Webster and Michael Johnson.*fn2 Following his conviction,
defendant Singleton was sentenced to 285 months in prison.
Defendant Singleton argues that Count One of the indictment now pending
in this Court and the conspiracy count of the indictment on which he was
convicted in Florida charge the same conspiracy. Because
Mr. Singleton has already been convicted and sentenced for his illegal
conspiratorial conduct in Florida, he argues that he cannot be prosecuted
again here without running afoul of the Double Jeopardy Clause of the
United States Constitution. With respect to Count Two, the continuing
criminal enterprise or CCE charge, defendant argues that the CCE
agreement is in reality the "same offense" as the Florida/D.C. narcotics
conspiracy, or that the conspiracy is a lesser included offense of the
CCE charge and that the Double Jeopardy Clause prohibits prosecution for
greater and lesser included offenses in successive prosecutions.
II. THE FACTS
Through a series of Title III wire intercepts on the telephones of
Phyllis Webster and Michael Johnson in the District of Columbia —
two of defendant Singleton's original codefendants in this case —
law enforcement agents learned that Singleton was supplying kilogram
shipments of cocaine from Miami, Florida to Webster and Johnson in the
District of Columbia, by use of a courier, Ronald Lucas. See Def. Mot.
Exh. 3 at 20-22. On this basis, the FBI in Florida obtained authorization
under Title III to intercept conversations on defendant Singleton's
telephone in Miami, which revealed that Singleton's cocaine source was
Fernandez with whom Singleton subsequently was indicted. See Def. Mot.
Exh. 21. By the time of the trial in Florida, only three defendants
remained — defendant Singleton, Giraldo Orlando Fernandez and Hugo
Orga.*fn3 The trial in Florida lasted four days. Among the witnesses at
trial were FBI Special Agent Kevin Ashby (the lead FBI agent in this
case), Michael Anthony Johnson, Ronald Lucas, and Phyllis Webster.
In his opening statement, the prosecutor told the jury:
[I]n Count One the government expects our evidence
to show that, during the period of 1996 to 2000
— not always, not everyone was in the conspiracy
at the same time for the full period of time —
Cornelius Singleton was shipping multi-kilograms of
cocaine — a kilogram is 2.2 pounds — to
the District of Columbia from Florida for distribution
in the District of Columbia and other areas. This
continued through 1999.
You will have the opportunity, we expect, to hear
from the distributors from the District of Columbia
who have been arrested and charged in that district,
Phyllis Maria Webster and Michael Anthony Johnson.
You will also hear from the courier who has been
arrested and charged, Ronald Lacas, who distributed
the cocaine in the sense that he took it form Miami
from Cornelius Singleton and transported it to the
District of Columbia and gave it to these other
You will further hear from one of the defendant
Singleton's local suppliers Marcelino Casasnovas, who
is in custody, who supplied him with large quantities
Finally, as to the conspiracy, you will hear from a
supplier who will testify that Giraldo Orlando
Fernandez, one of the co-defendants here, was also one
of Cornelius Singleton's suppliers.
A part of the evidence will involve, as you have
heard, wiretaps. In 1999, the Washington Field Office
of the FBI conducted a court authorized wiretap of
Phyllis Maria Webster, who is one of the D.C.
distributors. It was of her cell phone in the D.C.
area. You will hear two calls from this interception
shipments between Singleton and Webster.
Soon after this wiretap, the FBI in Miami conducted
a court-authorized wiretap on the defendant
Singleton's cell phone. You will hear several calls
from this interception regarding orders for cocaine
placed with the defendant Singleton.
The evidence will, of course involve transcripts.
You will hear recordings and see transcripts of the
recorded conversations that were intercepted that we
feel are relevant to these charges.
And you will finally hear from the cooperating
individuals who have been charged in various
jurisdictions as part of this conspiracy who will
testify for the government.
Def. Mot. Exh. 6 at 19-23 (emphasis added).
At Singleton's trial in Florida, Phyllis Webster testified that she
purchased 25 kilograms of cocaine from defendant Singleton for
distribution in Washington, D.C. in June of 1996. Singleton shipped the
drugs from Florida to the District of Columbia using Ronald Lucas as the
courier. Webster testified that she had two or three additional drug
deals with Singleton in 1996, each involving between 25 and 30 kilograms
of cocaine. In each case Lucas would bring the cocaine from Florida,
deliver it to Webster in Washington on consignment, and then pick up
money from her and deliver it to Singleton in Florida. There were three
or four similar transactions in 1997, each involving 50 to 60 kilograms
of cocaine, and three or four in 1998, in the 50-kilogram range. Webster
then testified about three quite specific cocaine transactions with
Singleton in 1999: 60 kilograms in April, 80 kilograms on Memorial Day,
and 60 kilograms on the 4th of July. Finally, Webster testified about
visiting Singleton at his home in Florida in November 1999, at which time
she helped him count money, and about certain telephone conversations
with Singleton in which they discussed drug prices and drug amounts. See
Def. Mot. Exh. 9 at 14-17; Def. Mot. Exh. 10 at 16-21.
Michael Johnson testified at the Florida trial that he also did several
multi-kilogram drug deals with Singleton from 1996 to 1998 and that Lucas
was always the courier. He said there were at least six such deliveries
in 1996, each involving around 50 kilograms of cocaine, and similar
transactions in 1997 and 1998. See Def. Mot. Exh. 9 at 66-69.
Ronald Lucas testified that he transported multi-kilogram shipments of
cocaine in his van from Florida to Washington, D.C. and delivered the
drugs to Webster and Johnson on consignment. After Webster and Johnson
distributed the drugs, Lucas said he would pick up money from Webster and
Johnson in Washington and deliver the money to Singleton in Florida. Most
of the shipments were in the 50-kilogram range. Lucas testified that on
at least six occasions in 1997 and 1998 Giraldo Orlando Fernandez brought
multi-kilograms of cocaine to Singleton's home in Florida and loaded the
drugs in Lucas' van for delivery to Webster and Johnson in Washington,
D.C. See Def. Mot. Exh. 9 at 111-18.
At the conclusion of the evidence, the prosecutor made the following
argument to the jury:
Now you heard from [Ronald] Lucas who was a courier
for Singleton, and he testified that he knew Fernandez
as "0". And that Fernandez would drop off 50 kilos at
a time to Cornelius Singleton's condo on Shipping
Avenue in Coconut Grove, which Lucus would then take
D.C. for distribution on behalf of Cornelius
You heard from two of the distributors of Cornelius
Singleton, and that would be Johnson and Webster.
Johnson has known Cornelius Singleton since 1991,
and it was clear from the call you heard that they
knew each other well enough to discuss amounts of
money which Webster owed for cocaine and to know why
Singleton would not ship cocaine during the
Johnson testified that he dealt with Cornelius
between 1996 and '98 in 50-kilogram shipments for each
transaction. He would discuss the prices directly with
You also heard from Phyllis Webster. She was also
somebody that Cornelius Singleton supplied. It would
be one level down. And Webster would then distribute,
on her own, in Washington, D.C.
She testified that she received also multi-kilogram
quantities from Singleton. The [intercepted telephone]
calls discuss multi-kilogram transaction[s] in which
quantity and prices are discussed.
It is especially telling that the numbers called out
by Phyllis Webster to Singleton in the calls
represented the kilograms which Webster received from
Let me show you how this works. I am going to refer
you to what was introduced as Government's Exhibit 12
[Def. Mot. Exh. 11]. This was the drug ledger that was
found in the master bedroom of Cornelius Singleton.
She goes on. On page 3, about a quarter of the way
down where Webster says: "I already know the last two
times you charged me. The very last two times you
charged me 2150, and the first time before that I
think you charged me 2250 because it went down a
And here are the corresponding amounts. You have the
last two times at 2150 and the first time before that
Then in the next call, the last call that we played
for you today, at tab 35, at the first page, Webster
says: "Hey, do you want me to — do you want me
to give you a count?"
Cornelius Singleton says: "Do you got [what] I want
to hear now?"
Phyllis: "He told me."