*1 GARRETT UNITED STATES January 16, 3, 1985 Argued No. 83-1842. 1985 Decided June *2 Rehnquist, J., opinion delivered the Burger, of the Court in which J., White, Blackmun, O’Connor, JJ., C. and joined. O’Connor, and J., concurring opinion, post, p. Stevens, J., filed a 795. filed a dissent- ing opinion, Marshall, JJ., which Brennan joined, post, p. and Powell, J., part took no in the decision of the ease.
Philip A. DeMassa the cause for argued With petitioner. him on the briefs was Richard M. Barnett. Levy
Mark I. argued cause for the United States. Lee, the brief were Solicitor General Assistant him on With Attorney Deputy Frey, Trott, General Solicitor General M. Joel Gershowitz. opinion delivered the of the Court. Rehnquist,
Justice
jeopardy impli-
requires
to examine the double
us
This case
engaging
“continuing
prosecution for
cations of a
(CCE),
Comprehensive Drug
enterprise”
in violation of the
§
848,
Prevention
Control Act of
U. S. C.
Abuse
prove
underlying prior
are
when facts
conviction
offered
to make
of three
offenses that must be shown
one
Petitioner
out a CCE violation.
Jonathan Garrett contends
prior
that his
conviction is a lesser included offense of
charge,
prosecution is
therefore,
that the CCE
and,
(1977).
Ohio,
barred under Brown v.
Garrett 960(b)(2) 960(a)(1), 21 §§952, huana in violation of U. C.S. § years’ impris- 2. He sentenced to five and 18 U. S. C. remaining against $15,000fine; onment and a and the counts including possession intent distrib- of marihuana with to him, prejudice to the were dismissed without Government’s ute, right prosecute him on other offenses he have to committed. guilty plea
Approximately two months after his Wash- ington, District of Garrett was indicted the Northern conspiring import marihuana, to U. S. C. Florida for §§ conspiring possess with intent marihuana 952, 960, 963, telephone using a §§841, 846, 21 U. C. distribute, S. illegal drug activities, §§963, 846, facilitate U. S. C. 843(b), engaging enterprise, 21 §848. pre- U. The District Court denied Garrett’s S. C. charge, ground trial to dismiss the CCE made on the motion Washington importation operation encompassed the that it in violation of the Double Clause.
In the introduced extensive trial, Florida Government ongoing widespread drug activities, evidence Garrett’s including proof smuggling operation at of the marihuana Bay, Washington. jury Neah The court instructed the beyond count that it had to find a reasonable doubt felony committed “a under Title 21 of the that Garrett had part of a United States Code” “was series defined to be “three or more successive viola- violations,” period single tions of Title over a definite of time with a ” substantially purpose. The court further similar instructed jury to find acted “in concert had that Garrett persons,” respect with five or more other that with to them *4 supervisor, occupied position organizer, “a Garrett position management,” that he and “received substantial operation.” predicate income from this As to the violations jury making up the the court the that in “series,” instructed charged addition to the offenses as substantive counts the felony possession Florida the offenses of of mari- indictment, it, marihuana, huana with intent to distribute distribution of importation qualify and of marihuana would as Washington 14 Record 16-20. The as evidence, offenses.
777
trial,
in the
tended
evidence introduced
Florida
well as other
latter three offenses.
these
prove
the two
count,
on
CCE
The
convicted Garrett
jury
count. He
counts,
facilitation
telephone
conspiracy
14
and a
years
terms totaling
received consecutive prison
40
counts,
impris-
fine on the
three
years’
latter
$45,000
$100,000
and a
fine on the CCE count.
CCE
onment
terms on
term was made concurrent
prison
prison
from
to the
term
counts,
the other
but consecutive
prison
fine
to the
The CCE
addition
conviction.
Washington
fine.
other
and the Washington
fine on the
counts
for
Circuit
the Court of
the Eleventh
Appeals
On appeal,
his
Washing-
contention that
conviction
Garrett’s
rejected
prosecu-
ton for
marihuana barred the
importing
subsequent
in a
enter-
for
tion
Florida
engaging
(1984). The
held that
The heart of entails two argument Garrett’s v. United States, S.U. notwithstanding Jeffers (1977) substantive is a (plurality opinion), separate requires and not offense offense because conspiracy agree- an merely of the criminal and not completion objective *5 ment. underlying predi- Thus CCE is not distinct from its way conspiracy cates in the is a distinct offense from the completed object conspiracy. of the Cf. Pinkerton v. United (1946). applying States, U. S. Second, the test Blockburger (1932), v. United States, U. S. 299 each predicate jeopardy offenses is the “same” for double purposes as the CCE offense because the offense require proof does necessary not fact not to the CCE requires proof offense. Because the latter of additional including activity facts, persons, concerted with five other supervisory predicates role, substantial income, the are provision. lesser included offenses of the CCE The relation- ship argues, is the relationship same, Garrett as the between joyriding and auto theft statutes involved Brown v. supra, subsequent prosecution Ohio, and thus a for the greater CCE offense is barred the earlier conviction of importation the lesser marihuana offense. statutory provisions,
Where the same conduct violates two step jeopardy analysis first in the double is to determine legislature whether Congress this case —in —intended separate that each Congress violation be a If offense. in- only tended that there be one offense—that is, a defendant statutory provision could be convicted under either for a single act, but not statutory under both—there would be no subsequent prosecution authorization for a after conviction provisions, of one of the two and that would end the double jeopardy analysis. Cf. Albrecht v. United States, 273 U. S. (1927). question legislative
This Blockburger intent arose in multiple punishments imposed the context of single pros- in a drug ecution. Blockburger Based on one sale, was convicted selling drug original of both stamped not in package selling pursuance it not in purchaser. of a written order of the separate statutory provisions, sale violated two and the question was whether “the accused committed two offenses only one.” 284 S.,U. at 303-304. The rule stated Blockburger applied statutory as a rule of construction to
779 help legislative Significantly, determine intent. after set- ting paragraph out the the Court cited a rule, Albrecht, supra, following at 11, which included the statement: “There nothing prevents Congress in the Constitution which from punishing separately step leading each to the consummation power prohibit punishing of a transaction which it has added). completed (emphasis also the transaction” haveWe recently Blockburger controlling indicated that the rule is not legislative when the intent is clear from the face of the stat- legislative history. ute or the Missouri v. Hunter, 459 U. S. (1983); 368 Albernaz v. 359, States, United 450 333, U. S. (1981); Whalen v. United States, U. S. 691-692 (1980). Indeed, it would be difficult to contend otherwise converting essentially inquiry without what is a factual as to legislative presumption intent into a conclusive of law. present application Blockburger
In the case the of the rule legislative as a conclusive determinant of intent, rather than statutory as a useful canon of would construction, lead to the urged by Congress conclusion Garrett: intended the con- punishable predicate duct at issue to be either as a offense, or language, as a CCE offense, but not both. The structure, legislative history Comprehensive Drug Abuse, Prevention and Control Act of 1970, however, show the plainest way Congress provision intended the CCE separate punishable be a criminal offense which was in addi- to, tion and not as a substitute for, the offenses. question legislative Insofar as the is one of intent, Blockburger presumption yield plainly must of course to a expressed contrary part Congress. view on the § language of 21 U. S. C. which is set in full in out margin,1 affirmatively punish- states an offense for which imposed. begins: ment be It will enterprise “§ Continuing criminal “(a) Penalties; forfeitures
“(1) Any person engages who shall be may sentenced to a imprisonment term of which years not be less than 10 “Any person engages who in a criminal en- terprise imprisonment shall be sentenced to a term of may years may which not be less than 10 and which be may up which be imprisonment, to life to a fine of not more than $100,000, and to prescribed (2); the forfeiture paragraph except that if any person engages activity in such prior after one or more convictions of him final, under this section have become he shall be sentenced to a term of imprisonment may which not years be less than 20 up and which be *7 imprisonment, life to a $200,000, fine of not more than and to the forfeiture (2). prescribed in paragraph “(2) Any (1) person who is convicted paragraph under of engaging in a continuing enterprise criminal shall forfeit to the United States— “(A) profits by obtained him in enterprise, such and “(B) any in, of his interest claim against, property or or contractual rights any of affording kind a over, source of enterprise. influence such “(b) ‘Continuing enterprise’ criminal defined (a) purposes “For of subsection section, of this person engaged a is in a continuing criminal if— “(1) any provision he violates subchapter of subchapter this or II of this chapter punishment felony, for which ais and “(2) part such violation is a of a continuing of series violations of this subchapter or subchapter chapter— II of this “(A) which are person undertaken such in concert with five or more persons other respect with person to whom occupies position such a of organizer, supervisory position, any position or other of management, “(B) person from which such obtains substantial income or resources. “(c) Suspension probation prohibited of sentence and “In imposed ease of sentence section, under imposition or execution of such suspended, sentence shall not be probation shall not be granted, and (D. section 4202 of title July 15, 18 and the Act of C. Code, 24-207), secs. apply. shall not 24-203 — “(d) Jurisdiction of courts “The district courts of the (including United States courts in the territo- possessions ries or having jurisdiction of the United States under subsec- (a) section) tion jurisdiction of this shall have restraining enter such or- prohibitions, ders or or to take such actions, other including acceptance satisfactory performance bonds, in any property connection or subject other interest to forfeiture section, they under this as shall deem proper.”
up imprisonment, to a- fine of not more life than prescribed paragraph to the forfeiture $100,000, and (2).” 848(a)(1). § statutory point
At this there is no reference to other of- separate penalty rather than a multi- fenses, out, set plier penalty established for some other offense. This paragraph incorporates provi- same then its own recidivist repeat providing penalty violators sion, for twice Significantly language expressly this section. refers to prior “one or more convictions . . . under this section.” (2), subparagraph which sets out various forfeiture Next, any person provisions, also refers to “who is convicted under (1) engaging paragraph criminal enter- §848 prise,” again suggesting that is a distinct offense for separately which one is convicted. (b) §of 848 defines the conduct that constitutes
Subsection being “engaged enterprise”: in a
“(1) any provision subehapter he violates of this [establishing drug subchapter chapter II of this various felony, punishment offenses] the for which is a *8 “(2) part continuing such violation is a of a of series subchapter subchapter this or II of this violations of chapter—
“(A) by person undertaken such in concert which are persons respect with five or more other to whom person occupies position organizer, supervi- a a such of any management, sory position, position other “(B) person in- from such obtains substantial which come or resources.” carefully reading
A of this definition reveals a common-sense prohibition special problem. crafted aimed at a This lan- drug rings, guage designed “top reach the brass” is the lieutenants and foot soldiers. not enterprise The definition of a criminal is not way provision in the that a recidivist would be drafted 848(a)(1), already § contains lan- noted, Indeed as drafted. guage provision. typical Moreover, of that sort of that is “Dangerous Special very of the statute entitled next section Sentencing” provision. Drug It is is a recidivist Offender starkly contrasting language plainly not which drafted example, pro- separate offense. For intended to create a hearing sitting special the court without vides for a before prior jury and the deter- offenses, to consider the evidence dangerous special drug of- that a defendant is a mination by preponderance of the information fender is made on § court. U. S. C. See Congress’ conclusion as to intent is fortified
This history. legislative R. that enacted H. 18583is the bill was Comprehensive Drug Abuse Prevention and to become section-by-section analysis, In Act of 1970. its Control Report states: House Committee 408(a) 848(a)] § provides [21U. C. “Section S. person engages in a who upon conviction for that be sentenced to a shall offense years up imprisonment for not less than 10
term of activity person engages If life .... sub- sequent under this he section, to one or more convictions years’ penalty impris- than 20 shall receive a of not less Rep. pt. p.1, . . . .” H. R. No. 91-1444, onment added). (1970) (emphasis hardly separate
The intent to create a offense could be clearer. originally in the H. R. 18583had a House,
As introduced “Continuing Enterprises” section entitled Criminal which reality provision, a recidivist like the current S. C. 21U. § provided special for enhanced sentences for “a of- drug] felony part pattern [a who “committed as fender,” *9 applicable criminal under laws of of conduct which was jurisdiction, which constituted a substantial source of his special exper- and which he manifested skill or income, provision for this tise.” The House Committee substituted by Representative Dingell that ulti- an amendment offered §848. providing mately “Instead of current became the procedure, Dingell [the post-conviction-presentencing amend- engagement ment] in a criminal made triable offense with all its elements and distinct new (1970) Rep. pt. pp. H. R. No. 83-84 91-1444, court.” (remarks (1970) (additional views); Cong. see 116 Rec. 33302 Eckhardt). Rep. of by Repre-
During House, of the bill the full consideration restore Poff offered an amendment which would sentative Dingell provision to the the to the bill addition recidivist provision. Explaining the two the differences between approaches, Representative Eckhardt stated: Dingell
“[T]he created a new offense which amendment by parts in all its admissible would have to be triable post- brought court, before the whereas evidence [procedure] original presentence bill conviction report provisions provided that some to the Poff similar upon be based would be available sentence would which judge, would be available to the cross-examination presented report, but not of those who those who to it.” Ibid. have contributed pro- Representative explained his Poff debate, Later posed amendment further: dangerous in the the most criminal Chairman,
“Mr. drug organized offender, crime field is the professional offender, the criminal. habitual penalties my opin- special Chairman, “Mr. we need special scholars criminals. Constitutional ion for these approaches suggested to deal with such offend- two have separate of a crime with The first is the creation ers. approach imposi- separate penalties. is the The second longer upon those convicted first of tion of sentences dangerous to be offenders. crime and then shown basic separate approach, the crime the first Chairman, “Mr. approach approach, taken section is the *10 [21 §848]. The bill U. S. C. second is found Committee just I amendment which have offered which adds [21 bill, new sections to the sections and 410 two §§849 850].” at 33630. Id., U. C. and S. approaches emphasized
The distinction between the two was example, Representative For debate. Dingell you if amendment, Eckhardt are stated: “Under going prove guilty, you a man into court and have to come prove every element of the criminal offense.” Representative Poff concurred this characterization of the provision separate “which embodies new criminal of- separate penalty.” Representative fense with a distinguished approach proposed Poff from his amend- judge impose ment which “authorizes the the extended upon already sentence the defendant in the dock who has jury guilty charge.” been found the basic at Id., adopted, id., 33631. The Poff amendment was at approaches both are contained statute, U. S. C. §§848, 849, and 850. legislative history, indisputable
In of this view it is Congress separate intended to create a CCE offense. One argue, having separate however, could still created the Congress applicable, offense, intended where it, to be a sub- legisla- stitute for the offenses. Nowhere in the history big-time drug operator tive prosecuted it stated that could be separate predicate
and convicted for the offenses as well as the CCE offense. The absence of such a state- surprising; given ment, is not however, motivation be- legislation temper hind the and the of the debate, such a merely Congress statement would have stated the obvious. seeking to add new enforcement tool to the substantive drug already prosecutors. During offenses available to example, Representative debate on the Poff amendment, drug “I Fascell stated: see no reason to treat a trafficker harshly organized less than an crime racketeer. Their equally consequences equally acts are heinous, the severe, Representative justified.” punishment equally their designed penalty has been structure stated: “The Weicker drug types casual from the offenders, all to accommodate syndi- organized experimenter drug crime to the user *11 transportation engaged and distribution in unlawful cates goes in drugs.” “This bill further continued, He illicit of enforcing charged persons wide providing it a those variety more them to tools which will enable of enforcement drug effectively and meet illicit trafficker combat the Represent- imposed on them.” demands we have increased “[T]his to much at least amendment will do Taft stated: ative problem organized help crime attack on the a coordinated Hopefully, legislation. purview . . . we will of this within broadening coming along legislation the attack other see Cong. syndicates Rec. further.” even on the crime (1970). to sense It runs counter to common 33630-33631 pervade the entire these, such as which from comments infer Congress intended unrebutted, which stand debate underlying predicate offense for the the CCE to substitute big-time drug rather than of a dealer the case offenses prosecution permit prosecution for for CCE addition predicate offenses. Congress illogical
Finally, to intend it would be predicate CCE offenses and the made between the choice be major drug pursuing instant in the dealers. While offense in aware that the Government was case claims Garrett charge bringing indicted possibility he the CCE before was many Washington cases the Government offenses, on the aware drug it was dealer for one offense before would catch a drug offenses to make a case for other of or had the evidence The Gov- had committed or the future would commit. he prosecuting would then be forced to choose between ernment guilty prove him on the it could dealer offense of which drug- releasing his him continue with the he would idea that might him dealing catch activities so that the Government prosecute on the CCE him more and then be able to twice clearly offense. Such situation is absurd and not what Congress intended.
II Having Congress determined that intended be separate permit prosecution offense and that it intended to predicate offense, for both the offenses and the CCE we must prosecution for a now determine whether CCE offense after predicate an earlier for a offense is constitutional Jeopardy under the Double Clause of the Fifth Amendment. Jeopardy provides: The Double Clause any person subject “[N]or shall be for the same offence put jeopardy to be twice of life or limb.” inquiry The critical is whether a CCE offense is considered the “same one offense” as or more of its offenses meaning within the Double Clause. *12 obviously the in Quite not, CCE offense is common- meaning sense or literal term, of the the “same” offense as predicate requires one of the offenses. The CCE offense the jury predicate to that the find defendant committed a of- predicate part in fense, and addition that the offense was of continuing series of offenses undertaken the persons, in defendant concert with five or more other occupied position organizer the defendant the of an or man- ager, the defendant obtained substantial income or resources from the series of violations. properly analyze prosecution In order to the successive only Congress must issue, we examine not the statute which charges enacted, has but also the which form the basis of the prosecution pleaded guilty Government’s here. Petitioner in Washington May the District in Western of 1981 to a count charging importation pounds 12,000 of of marihuana at Neah Bay, Washington, August 26, on 1980. He was indicted in July charges the Northern of in District Florida on of conspiring import quantities to “multi-ton of marihuana and January July 1981; marihuana ‘Thai sticks’” from 1976to conspiring possess intent to distribute marihuana engaging period in a time; and of over the same period of time. Thus at the same criminal over require very “consolida- he made his motion the moment against charges him in the District Western tion” of all the engaging Washington, he in conduct of which he was by jury guilty in District of the Northern was later found Florida. importation charge marihuana that the
Petitioner contends
Washington
pleaded guilty
in-
in
a “lesser
was
he
to which
he
convicted
the
offense of which was
cluded offense” of
CCE
Washington
points
in
out that evidence of
Florida. He
jury
that the
trial,
at the Florida
offense was introduced
Washington
permitted
violation was one
to find that the
was
charge
“predicate
in
Florida.
offenses” for
of the
(1977), for his
Brown Ohio felony ing theft, a lesser included offense of auto prosecution for the misdemeanor barred a second felony. good think deal of difference for the We there is a included offense” the classic relation of the “lesser between greater presented hand, the one Brown, offense Washington relationship marihuana offense between charge on the other. case, involved this and the CCE *13 an and driven it in Brown had stolen automobile defendant single engaged days. in a course of con- He had for several very driving The same conduct would a car. stolen duct— felony prosecution joyriding support for or a a misdemeanor only depending on the defendant’s theft, auto question. engaged in in state of the conduct mind while he joyriding Every the as relevant to moment of his conduct was charge charge. as it auto theft was to the quite
In the case us before the situation is different. The Washington pleaded in count indictment to which Garrett guilty charged importation pounds of 12,000 of marihuana at Bay August Washington Neah 26, on 1980. The indictment guilty plea 17, was returned on March May and a 1981, entered on including 18, 1981. Two other counts of the indictment, causing importation interstate travel to facilitate of mari huana on or about 24, 1979, October were dismissed without prejudice right subsequently prose to the Government’s any cute other offense have Garrett committed. against indictment in returned Garrett Florida July charged was returned on 1981. It that he had, from January “up including [July conspired to and 16, 1981],” import in that district and “divers other districts” to multiton quantities of marihuana and marihuana “Thai sticks” viola applicable charged tion of federal law. Another count con spiracy possess with intent to distribute marihuana over period years. the same of more than five A third count of charged engaged the Florida indictment that Garrett had in the Northern District of Florida and “divers other districts” criminal over the same 5x/2-yearperiod.
Obviously charged conduct in was which Garrett compared engaging indictment, in the Florida when with that charged Washington in indictment, with which he was simple analogy single to the of a does not lend itself course stealing comprising a lesser included mis- of conduct— car— felony. Here the demeanor within enterprise alleged spanned years; more to have than five Washington charged alleged indictment were the acts days single respec- in 1979 and 1980, to have occurred during 5!4-year period alleged tively. it was Whenever Garrett committed the first of indictment that required to form the basis for a CCE three offenses prosecution, cer- then have been said with it could not necessarily go tainty ahead and commit the that he would *14 required him liable on a CCE to render violations other pos- Every charge. Brown drove or that Nathaniel minute simultaneously commit- he was sessed the stolen automobile greater ting and the included misdemeanor both the lesser simply felony, vari- His is not true Garrett. but the same example, operations smuggling Louisiana, in ous boatload wholly separate obviously from incidents of conduct involved Washington. signifi- operations in These his “mother boat” ready transposition against of the caution cant differences jeopardy principles from of double offense” “lesser included simple presented classically in Brown to the situation the place, multilayered involved time and to conduct, both as to in this case. the Government would claim, to sustain Garrett’s
Were we only proceed against him in either one of able to have been Washington ways. have the It would have to withheld two charges, alleging in 1979 and crimes committed October grand jury August indicted Garrett from the which 1980, jury prepared present grand to a until it was 1981, March alleged charge and found been, to have the CCE which by jury dates; on each of those or would be, Washington charge to the have to have submitted CCE jury though grand even ulti- 1981, March indictment charge alleged mately against on that returned Garrett July not had continued until 1981.2 We do that, Stevens argues although Bay pros in dissent Justice Neah Washington does not bar later for a CCE ecution Garrett’s Bay importation place, Neah of the that ended before the took none evi consistently latter crime could pertaining to the be used dence to show a CCE. While it be true that with Double Clause hindsight jury the Government could have indicted and the the benefit began for a CCE that December and continued until convicted charged that is not the crime which the indictment nor for October jury beginning convicted. Government indicted for a which through July 1981, Bay in 1976 and months after the Neah in Nothing returned. had been the record dictment indicates that following Bay inclusion months the Neah indictment Government’s *15 Jeopardy may employed think that Double be the Clause to force the in manner, Government’s hand however we argument. were to resolve Garrett’s lesser-included-offense stop piper paid One who that the a insists music and the be at particular point stopped dancing must at have least himself may accounting. before he seek such an urges charges “[w]here Petitioner the arise a from single episode, they act, occurrence, transaction, or single proceeding. must a be tried in Brown Ohio, concurring).” at We have J., stead- U. S., (Brennan, fastly adopt “single to refused the transaction” view of the Jeopardy Double Clause. But it to would seem strain even that doctrine to describe Garrett’s multifarious multistate ac- “single previously tivities as a transaction.” For the reasons stated, we also have as serious doubts to whether the offense pleaded guilty Washington to which Garrett was a “lesser charge prosecu- included within offense” the the so that prosecution tion the former would bar a of the latter. But purposes assume, we for here, decision the Washington offense was a offense, lesser included because jeopardy our view claim Garrett’s of double would still not be sustainable. charge unsupported
within time of the CCE by the evidence which adduced, merely be attempt by would therefore an artificial the Gov- to period ernment extend time covered indictment to avoid jeopardy double claim. Government, courts, responsible not the is initiating a crimi- prosecution, subject
nal applicable constitutional limitations it is en- titled choose those offenses for which wishes to and the indict evidence upon which it to base not Justice prosecution. wishes Whether in asserting Stevens Bay charge correct that the Neah was not neces- sary to establish of the predicate one three charge, offenses for CCE obviously differently. Government viewed the matter We think that for 786-793, the reasons stated in the text at Double Clause does require not dispense Government with the Bay oper- use of the Neah ation as a prosecution offense the CCE in Florida. (1912), States, 223 U. In Diaz v. United S. the Court battery, initial it an for assault and had before by prosecution for homicide when the victim even- followed injuries tually died from inflicted in the assault. the course of rejected jeopardy, The Court the defendant’s claim of double holding that the two were not the “same offense”: charged against
“The homicide the accused the Court battery of First Instance and the assault and for which justice peace, although he was tried before the their identical some of were distinct of- elements, *16 injured in in fenses both law and fact. The death of the person principal homicide, was the element of the but part battery. no At was assault and the time of the trial ensued, for the latter the death had not and not until it Then, did ensue was the homicide committed. possible put jeop- in before, and not ardy to the accused Id., for that offense.” at 448-449. present continuing in
In the as criminal case, Diaz, enterprise charged against in Garrett Florida had not been completed Washington. in at the time that he was indicted place in The latter event took March whereas the con- 1981, charged tinuing enterprise in criminal the Florida indictment by jury January the trial extended from 1976 to and found July example, 1981. The evidence at trial for showed, was arrested for traffic offenses and other violations Garrett July pending sentencing for the 23, while out on bail Washington arresting conviction. He told officer that “somebody caught big” and that he was a the officer had carry- “smuggler.” arrest, At the time of the Garrett was quarters. ing He cash. About of this was $6,253 $30 long-distance phone explained them make that he needed to spent day. he He also calls, on which sometimes $25 $50 arresting agent officer and a federal who interviewed told just bought morning him that he had the truck he the next driving had been $13,000 cash and that he used it for smuggling. yacht He further stated that he had a Hawaii purchased which he had for $160,000cash. This evidence is jury’s consistent with the verdict that Garrett continued his July CCE activities into only permits think requires
We this evidence not but charged alleged conclusion that the CCE in Florida, to have begun January up mid-July 1976, and continued charged was under Diaz a different offense from that in the Washington indictment. We cannot tell, without consider- sifting speculating juries able of the evidence and as to what might do, whether the Government could March 1981have successfully prosecuted indicted and Garrett for a different ending in March 1981. —one sifting speculation But we do not think such is re- quired at the behest of one who at the time the first indict- engage ment is returned is in other conduct by jury found criminal which tried the second indictment. suggests It be, well as Justice in his dis- Stevens senting opinion, that the Florida indictment did not its Bay importation terms indicate that the Neah would be used support post, as evidence to it, at 804-805, and therefore pretrial *17 jeopardy at the time the motion to dismiss on double grounds was made the District Court Florida could not petitioner’s have rendered an informed decision motion. But there can be no doubt that the time the evidence presented had jury all been in the Florida trial, and the charged, only was one reasonable conclusion could be drawn by the District Court: the Government’s evidence with re- spect charge place to the CCE included acts which took Washington after March 1981, the date of the indictment, up including July and to and Therefore, con- tinuing enterprise charged by the Government had completed Washington not been at the time the indictment was returned, and under the Diaz rule evidence of the Neah
793 predicate might of the Bay importation show one be used to offenses.3 sep Congress
Having to be intended CCE that concluded Jeopardy the Double it not violate does arate offense and prosecute the CCE case the facts this under Clause predicate prior for one of conviction offense after remaining only the Double issue is whether offenses, punishments. Garrett’s Jeopardy bars cumulative Clause his sen conviction was consecutive the CCE sentence on Washington “the connection, In this conviction. tence on prevent the sen does no more than Clause Double punishment greater prescribing than the tencing court from at 459 legislature Hunter, S., v. U. Missouri intended.” 344. As dis S., 450 U. at States, Albernaz v. United 366; separate Congress of create a intended to above, cussed Congress presumption distinct creates two when fense. permit sentences, intends to cumulative is that it offenses specific not establish legislative issue does on this silence presumption: ambiguity this or rebut an nothing. Congress defendants] “[The much into read expected specifically each issue address be cannot statutory as we But, arise. which construction ‘predominantly Congress previously is noted, have body,’... appropriate lawyer’s us ‘to assume and it . . representatives the law.’. . . . know that our elected anything con- from the is to be assumed if As a result Congress point, gressional it is that silence on this legislated Blockburger rule of the aware presume that function of this Court to It is not a mind. succes sustaining an alternative basis for argues as The Government offense and the CCE prosecutions offense sive v. West See Graham to a recidivist statute. offense can be likened (1962). Boles, Oyler (1912), 368 U. S. Virginia, U. S. consider need to disposition case, we have no of our Because *18 submission.
‘Congress accomplished.’” was unaware of what Id., at 341-342. Congress
Here, course, was not silent as to its intent to separate notwithstanding Blockburger, create offenses doing we can assume it was aware that so would authorize punishments contrary cumulative absent some indication of intent. disallowing
Moreover, cumulative sentences would have many converting large the anomalous effect in cases of §848 provided by ceilings. Congress fines into established § large deprive big-time drug in in fines an effort to profits, dealers of some of their enormous which often cannot directly purposes. be traced to their crimes for forfeiture previously The fines for a three-time offender who has been drug felony convicted of a could amount $150,000 for the predicate standing offenses alone—an amount that exceeds 841(b)(1)(A) ceiling § Compare for a first-time CCE fine. 848(a)(1). § Congress depriving big- was bent on drug profits; Congress time dealer of his it is doubtful that intended to force an election of a lower maximum in fine such attempt imprisonment situation order to to obtain the life penalty provision. available under the CCE plural- In States, S., United 432 U. at 156-157, Jeffers § ity comprehensive of this Court stated that 848 “reflects a penalty opportunity pyramid- structure that leaves little for ing penalties Comprehensive from other sections of the Drug Abuse Prevention and Control Act of 1970.” The focus analysis permissibility was the of cumulative Jeffers § punishments conspiracy under 846 and for CCE under § plurality reasonably 848, and concluded that the dan- gers posed by conspiracy and a CCE were similar and thus purpose cumulating penalties. there little would be by The same is not true of the substantive offenses created conspiracy, logic, the Act and the same it is not true of required the substantive offenses and CCE. We have been present case, as we were not to consider the Jeffers, relationship between substantive offenses and a
795 logic supports think here in- conclusion, CCE. We also by legislative history, Congress dicated intended separate punishments underlying predi- for substantive Congress may, course, cates and for the CCE offense. of so provide if it wishes. judgment Appeals of the Court of is affirmed.
It is so ordered.
part
took no
in the decision
of this case.
Powell
Justice
O’Connor,
concurring.
Justice
agree
Jeopardy
I
the facts of
that,
case,
this
the Double
sentencing
21
Clause does not bar
under
§ 848
engaging
in
U. S. C.
criminal enter
prise
though
pleaded guilty
predi
even
to one of the
Garrett
prosecution.
in
This conclusion is
cate offenses
admittedly
an earlier
language
prior opinions
with certain
tension
g.,
Ohio,
E.
Brown v.
166
of the Court.
U. S.
(1977).
explain why
separately
I
I
believe that
write
today’s holding comports
purpose
with the fundamental
Jeopardy
analysis
Double
Clause and with the method of
in our more recent decisions.
used
“[N]or
The Double
Clause declares:
shall
subject
put
person
be
for the same offense
be twice
jeopardy
. . . .”
Arndt. 5. This
Const.,
of life or limb
U. S.
primarily
preserve
proscription
constitutional
serves
finality
judgments
prosecutions
protect
and to
overreaching.
prosecutorial
g.,
e.
See,
defendant from
(1984);
Johnson,
498-499
467 U. S.
United States
v.
Ohio
(1980).
In
DiFrancesco,
117, 128,
449 U. S.
Green v.
(1957),
explained:
States,
the Court
355 U. S.
United
deeply
underlying
ingrained
one that is
idea,
“The
system jurisprudence,
Anglo-American
at least the
power
all its resources and
should not
that the
State
repeated attempts to convict an indi-
be allowed to make
thereby subjecting
alleged
him to
vidual
offense,
for an
expense
compelling him
embarrassment,
and ordeal
anxiety
insecurity,
in a
to live
state of
as
enhancing
possibility
though
well as
that even
inno-
guilty.” Id.,
he
cent
be found
at 187-188.
consistently recognized
Decisions
have
Court
*20
finality guaranteed by
Jeopardy
the
the Double
is not
Clause
must
absolute, but instead
accommodate the societal interest
prosecuting
convicting
in
those who violate the law.
(1982);
Florida,
Tibbs v.
U.
31,
457
S.
40
United States v.
(1964).
accordingly
Tateo, 377 U. S.
466
463,
Court
has
successfully appeals
held that a defendant who
a conviction
generally
subject
supra,
Tibbs,
to retrial.
at
Simi-
larly,
jeopardy poses
double
no bar
another trial where a
judge
necessity.”
declares a mistrial
because
“manifest
(1973).
Illinois
Somerville,
v.
Brown v. held that Double prohibits prosecution greater Clause of a defendant for already acquitted offense when he has been tried convicted on lesser Id., included offense. at 168-169. The finality support concerns for conclusion, however, are no more absolute than those involved other contexts. (1977) (plu- States, See v. United 432 U. S. Jeffers rality opinion). prosecution greater Instead, successive a on permitted justified by public be offense where inter- prosecutorial est law enforcement and the absence of over- reaching. example, For States, Diaz v. United U. S. (1912), jeopardy 442, the Court found no bar double to a prosecution for murder where the victim an assault died battery. after the defendant’s trial for assault and Diaz im- plies prosecution prevent for a not lesser offense does prosecution greater subsequent for a offense where the latter depends occurring on facts after first trial. Dicta in suggested Brown v. that the Ohio same conclusion would apply prosecution where later rests on facts that government through could not have discovered earlier due diligence. S., 432 U. at n. 7. See also v. Jeffers supra, States, United at 151-152.
Application of the rule of Brown v. is also affected Ohio the actions of the himself. In defendant United Jeffers supra, plurality opinion rejected States, a claim of double jeopardy prosecution greater where for a offense followed guilty offense, verdict for a lesser and the successive prosecution opposition resulted from the defendant’s to con- Id., Term, solidated trials. at 152-154. Last the Court accepts, relied on to hold that where a court over Jeffers prosecution’s objection, guilty plea a defendant’s to lesser jeopardy prevent offenses, included double does not further remaining, greater offenses. Ohio v. John- *21 noting supra, son, at 501-502. After interest in State’s convicting those who have violated its laws and the absence governmental overreaching, of Johnson that the observed Jeopardy defendant “should not be entitled to use the Double prevent completing Clause as a sword to the State from its prosecution remaining charges.” on the at 502. S.,U.
Turning to the of I case, circumstances this conclude that validly argue pre- Garrett cannot the Government is using relating May vented from evidence to his 1981 convic- prove participation continuing tion to his criminal enter- prise January through July willing I from am arguendo, importation assume, that the 1981 conviction for charges is a included offense of the marihuana lesser § violating ante, 18 U. 848. As noted at 788, 791-793, S. C. alleged presented the Government both evidence that §848 violation of after the conviction Garrett’s continued Although included on the lesser alleged participation offense. Government continuing enterprise in the unlawful through July occurring 1981, none of the events after the prosecution earlier were essential elements to date of the § prove a violation of 848. Thus, case falls somewhere between Diaz and Brown v. Ohio. The dissent reads the limiting application latter decision as of Diaz to circum- necessary greater stances where the facts to the offense prosecution. occur or are discovered after the first Post, Although position, at 806-807. I find merit to this I reach a upon balancing protected different conclusion the interests by Jeopardy the Double Clause. approach by effectively advocated the dissent would respect
force the Government’s hand with §848. approach, under Under that once the Government prove continuing believes that facts sufficient to bring §848 charges it can exist, either under only predicate seek conviction forgoing for a offense while its prove § later use to violation of 848. The deci- § bring charges sion to necessarily under 848, however, will appropriately depend prosecutorial judgments con- cerning adequacy of the evidence, the efficient allocation desirability seeking enforcement resources, and the statute’s severe sanctions. These considerations be af- occurring necessary predicate fected events after the last offense. Where the defendant continues unlawful conduct prosecutes after the time the Government him for a I offense, do not think he can later contend that the Govern- using
ment prosecu- is foreclosed from offense another prove § tion to violation of 848. Cf. Jeffers, supra, at 154. As the Court noted in another context, “the guards against Double Clause, which Government oppression, does not relieve a defendant from the conse- *22 quences voluntary of his choice.” United Scott, States v. supra, at 99. holding unduly
The Court’s
does not leave the defendant
exposed
oppressive
by
Any
to
tactics
the Government.
ac
quittal
predicate
on a
offense would of course bar the Govern
attempting
relitigate
ment from
prosecu
later
to
issues
a
§ 848.
(1970).
tion under
Ashe
Swenson,
For Jeopardy does not bar of this case the Double Clause stances § agree prosecution 848. Because I also Garrett’s under separate punishment Congress for intended to authorize the § join underlying predicate 848,1 and the violation of offenses opinion the of the Court. Justice Brennan Stevens,
Justice with whom join, dissenting. Justice Marshall petitioner’s agree I with the Court that conviction While Bay, importing pounds into Neah of marihuana 12,000 for August Washington, does not bar his 26, 1980, began in December criminal agree 1979, I do not and continued into October jeopardy implications analysis of double the the Court’s judgment to affirm the or with its decision first conviction my opinion, separate Appeals. indict In the Court Bay sentencing trans for the Neah conviction, and ment, constitutionally impermissible use that action make to estab offenses needed as one transaction subsequent prosecu enterprise in lish a § tion under U. S. C. emphasize explain my position, I shall first
In order proceed- Washington and the Florida difference between identify overlap, ings then limited extent of their imposed Double that is constraint relevant analysis. finally in the note the flaw Court’s Clause, *23 I Washington The and Florida indictments were returned they within three months of each other; focus on two sets of mutually transactions occurred almost exclusive time periods. The fact that later Florida indictment deals with the earlier series of is a events source of some confusion put begin I can if that, believe, ing be to one side we describ- gave one Florida indictment —the rise to the case reviewing. we are now
The Indictment Florida July grand jury in 16, 1981,
On the Northern District of petitioner against Florida returned an 11-count indictment and five other defendants.1 Petitioner named as a defendant in seven counts, four which refer to the use of telephone specific on a date 1978 or 1979. The three present charged petitioner counts relevant issue (Counts II) conspiracy import marihuana I and and with (Count XI) conducting §848.2 violation of 21 U. S. C. prosecution’s suggested by contours case are alleged performed having
the 34 overt acts by I Count as been co-conspirators.3 the six and named defendants five Each alleged of the first 33 overt acts was have occurred period August between December 1976 and the 34th 1979; principal occurred on October 25, 1979. The three trans (1) unloading pounds actions involved 30,000 about of marihuana from the Buck vessel Lee at Fourchan Land Garrett, Hoskins,
1 The six defendants were Jonathan Robert Christo pher Garrett, McMichaels, Donald Garcia, Sr., Papasan, Caesar a/k/a App. Norman Vick. 2 Id., I alleged §§ at 55-65. Count violations of 21 U. S. C.
963; alleged §§841 Count II violations of 21 U. S. C. and 846. co-conspirators Nichols, Ruth, The five named Jack were Thomas Rob Gorman, Doug Hoskins, ert App. Knowles. Joe 58-62. (2) *24 ing, arrival of the vessel 1976; in December Louisiana, boatyard at a Mr. Frank with a multiton load of marihuana (3) voy in and Point, Louisiana, 1977; near June Crown age Morning to Alabama, from Mobile, of the vessel Star up pounds pick of mari 28,145 to Marta, Colombia, Santa Notably, although the three in each of huana June 1979.4 obviously supported principal a have transactions would importation charge in 21 U. C. of violation of S. substantive petitioner. § § charge against made 812 and no such was 952, charged engaged in XI that he had a continu Instead, Count (CCE) § ing in C. 848 violation of U. S. January, and 1976, “from in or about the month of filing up including the date of the of this thereafter to and indictment.”5 Washington Indictment jury grand in the District 17, 1981,
On March Western against Washington returned a four-count indictment of petitioner of these and three other defendants.6 None in- a defendant in the Florida codefendants was named as alleged conspiracy beginning in or I dictment.7 Count continuing through August September 26, about alleged import pounds The 15 12,000 of marihuana. 1980, September 1979and October overt acts all occurred between unloading pounds 12,000 related to the 1980, and all fishing ship” in Neah vessels marihuana from a “mother Bay, conspiracy Washington.8 count, In addition to the
4 Id., at 58-61. 5 Id., at 64. Gorman, DePoe The three Don other defendants were Robert Id., Johnson a/k/a Michael Minikin. at 3. Michael “cooperating Gorman, who in the as a 7 Robert is referred to briefs indict defendant,” co-conspirator was however in Florida named as a was an Id., Moreover, Joseph Knowles, apparently at who ment. Id., at 4, 59. informer, co-conspirator named as a cases. both 8 Id., at 3-5.
indictment also contained three substantive counts, but did charge.9 not make a CCE overlap
There is some between the Florida and the Wash- ington alleged indictments. The 34th overt act in the Flor- meeting Washington, ida indictment was a in Bellevue, plans import shipload October 1979, to discuss Washington marihuana.10 The first three overt acts in the Washington, indictment refer to activities Bellevue, September apparently October which related to the Bay landing August following year.11 Neah More- allegation over, the final XI Count of the Florida indict- yacht apparently ment refers to the III, Sun Chaser which *25 ship” Bay was the “mother the Neah incident.12 appear identify Thus, the two indictments to a series of major importations four in four different 4- vessels over a year period. together plan- The first three, with the initial ning plainly adequate of the fourth, are to constitute a CCE. question The case, therefore, is whether the conviction Bay on the fourth transaction, at Neah occurred be- —which fore impermissible the Florida case went to trial —makes it use that transaction as a offense to establish the prosecution. CCE violation in the later
rHH—I Proper analysis jeopardy implications peti- of the double of importing tioner’s Bay, conviction for marihuana into Neah Washington, August requires only 1980 consideration not general prohibiting prosecutions of rule successive for greater exception lesser offenses but also of an apply prosecuted. when the gen- lesser offense is first easily eral Jeopardy rule is stated. The “Double Clause prohibits trying a State or the Federal Government from a
9 Id., at 6-7. 10 Id., at 62.
11Id., at 4.
12 Id., at 65.
803 greater defendant after it him for a offense has convicted applies “complex a lesser offense.”13 This rule included § statutory by proscribed crimes.”14 The offense 848 is clearly such crime. (1977), making
In Brown 432 U. Ohio, v. S. after general exception full statement rule,15 we noted the government’s may preserve right prosecute for a greater offense after a for a lesser offense. We stated: exception may
“An exist where the State unable to proceed charge on the more serious at the outset because necessary charge the additional facts to sustain that have States, (1977) United (opinion U. S. of Black Jeffers J.). mun,
14 Id., at 151. 15The Court wrote: greater “The purposes offense is therefore definition the ‘same’ for jeopardy double as lesser offense included in it. merely
“This conclusion restates what has been this Court’s understand- Clause at least since In re Nielsen was decided ing of the Double In that case the Court endorsed the rule that person ‘where ... has been tried and convicted for a crime which has it, included in he cannot be a second time tried for one of various incidents being put jeopardy those incidents without twice same offense.’ *26 S., at 131 U.
“Although greater precedes in this formulation the conviction of the the lesser, opinion sequence makes it clear that the is im- conviction of Thus, just application material. the Court treated the formulation as one requires proof of the offenses are the same unless each rule that two Id., Commonwealth, citing Morey 188, 190, at v. [108 other does not. Mass.], rule, application another of the same at 434. And as the Court cited, Cooper, the decision of State v. 190, S., approval 131 13 U. at Jersey N. L. (1833), Supreme J. 361 New held that a con- where the Court for felony-murder viction arson subsequent barred a indictment based Florida, 387, the death of a man killed in the fire. Cf. Waller v. 397 U. S. (1970). be, forbids sequence may 390 Whatever the the Fifth Amendment prosecution greater lesser punishment successive and cumulative for omitted). (footnote S., offense.” 432 included U. at 168-169 804 despite
not occurred or have not been discovered diligence. Diaz States, exercise of due See v. United (1912); [397 Swenson, 223 U. S. 448-449 Ashe v. 442, concurring).”16 U. at 453 n. 7 S.], J., (Brennan, general exception may The fact that the rule and the be easily easily applied stated does not mean that either be may, problem to this case. The however, be clarified oversimplified somewhat statement of the elements of the requires It, course, CCE offense. that the defendant be a manager, organizer, supervisor enterprise, that he persons, act concert with at least five other and that he important obtain substantial income from it.17 The most requirement present purposes, is that he must however, felony part commit a as “a of a series of violations subchapter . . .”18 I . assume that the words “con- tinuing contemplate felony series” at least three successive violations, but of course the series could involve more.19 petitioner’s if
Thus, we view entire course of
conduct as
alleged
appear
indictments,
both
it would
that the Govern-
alleged
importations
ment could have
proof
that all four
constituted
single
though
prosecu-
of a
CCE. Moreover, even
clearly
importation
tor was
aware of the fourth
when
why
I
returned,
Florida indictment was
see no reason
he
properly
only
could not
establish a CCE violation based on
importations.20
the first three
As
the Florida indict-
written,
16 Id., 169,
at
n. 7.
17
States,
v. United
S.,
432 U.
at 141-142.
Jeffers
18
ante,
780,
See
at
n. 1.
19
Appeals
Several Courts of
have held that a “continuing series” consists
g.,
e.
See,
Sterling,
United
three or more violations.
States
v.
742 F.
(CA9
521,
(CA6
Sinito,
United States v.
1984);
2d
526
2d
723 F.
1261
1983),
denied,
Chagra,
United States (1984);
cert.
A created because however, double issue proof im- earlier did limit its the three the Government portations. not dramatic evi- it offered extensive and Instead, importation. concerning Bay Moreover, the the Neah dence expressly concerning jury the that evidence was instructed by you your only III the Chaser “can be considered Sun concerning indictment, 11 of the which is deliberations Count that’s the count, the so called engaged allegation was a continu- in, that Jonathan Garrett enterprise.”21 ing criminal though indict- seems clear to me that even the
It therefore alleged predicated only properly on a CCE violation ment actually importations, tried, the case three earlier as was highly likely jury it is that the CCE instructed, as the was Bay merely on Neah evidence and not conviction rested my opinion, error, in on earlier transactions. The does I that it on count. But think bar a retrial the CCE not perfectly cannot stand because clear that the CCE conviction indispensable Washington no means tions. therefore offense . . . Brief for United States 5 to establishment offense added). (emphasis Washington Moreover, that “the substantive the United States later states government’s proof on the CCE part not an offense was essential Washington necessary “in is not a this case the offense count” and Id., I note that at n. 3. also CCE violation.” by relying on might proved CCE felonies the Government have fact that D, relying D, B, C, prevent would not from A, B, C, perhaps just A, B, and C. guilty to marihuana pleaded importation of 18-19. Petitioner 21 9Record jury specifically in Florida instructed Washington; the District Court Title 21 is another marijuana into the United States “[ijmportation you may consider.” Record offense *28 jury the instructions on the CCE count did not inform the Bay that the Neah incident could not constitute a felony charge.22 to the CCE exception
It is also clear that identified Brown (1977), applicable 432 U. Ohio, S. is not to this case. necessary charge All of the facts to sustain the CCE in the Washington Florida indictment occurred before the indict ment was returned. Moreover, the Government has not necessary claimed that the evidence to sustain the CCE charge in the Florida indictment was not discovered until Washington compares after the conviction.23 if Indeed, one and if indictments, one assumes that the Government was prepared prove alleged what it in the Florida indictment, Bay the Neah evidence was not needed in order to sustain the 22 Thereis no question need to reach the Bay whether the Neah evidence may have been for a purpose admissible limited because no instructions regarding given. a limited use were plainly 23 This indicated the Government hearing at a bail in Wash ington, prosecutor where the stated following: Honor, investigation by “Your grand jury in this district and the investigation being which is coordinated from the Narcotics Section Washington, C.,D. indicates that between 1977and 1980 Mr. Garrett was involved in about four or five operations. mother boat The Department originally Justice had authorized this district to present a continuing criminal enterprise grand count to the jury. represent “I can as an the court that I think there probable officer of cause to believe he responsible had been criminal enter- prise grand and the jury would have returned an indictment." Tr. CR81- 62M, 1981) pp. added). (Apr. 6-7 (emphasis The Government agrees now that it appear “does that all of the elements required charge for a CCE had occurred at petitioner’s the time of prosecu- Washington.” tion in Brief for United However, States 44. it “advises” us, contrarily, that “the investigation CCE yet had not completed been yet the case presented had not been grand jury.” to the Ibid. More dis- turbing, the Government outside-the-record, offers the unsworn submis- Department sion that the Justice “had not authorized charge a CCE Washington” and that “the Assistant Attorney United States now acknowl- edges authority that such granted was never and that his statement to the contrary Id., was in error.” at n. 36. applying the charge.24 discloses no basis for The record exception case. in Brown to this identified
hHh-H HH
general
applying
rule to
for not
reasons
The Court’s
place its entire
unclear.
It seems to
are somewhat
this case
alleges
charge
that the
that the CCE
on the fact
reliance
*29
the Florida indictment on
to the date of
continued
petitioner
July
together
that when
with the fact
16, 1981,
damaging admissions.25
later, he made some
arrested a week
signifi-
has
constitutional
these considerations
Neither of
although I
sub-
did not
Further,
that I can discern.
cance
opinion
analysis
plurality
v.
to the
scribe
Jeffers
every
(1977),
thought
I had
24 20, supra. n. See ante, at 791-792. See S., 432 U. at 150. out, ante, 40-year petitioner’s at points theAs Court sentences of to the consecutive count was concurrent sentence years the three Florida and 14 Washington conviction years for the convictions.