People v. Wilson

v PEOPLE WILSON PEOPLE AARONBANKS (Calendar Argued Nos. 102007. November Docket Nos. May 28, 3-4). Decided 1997. by jury Circuit Amir was convicted a J. Wilson Kobza, J., possession Court, E. of with intent to deliver Michael grams and of con- and 225 of a controlled substance between 50 grams spiracy and 225 of cocaine. with intent to deliver between 50 Kobza, Court, separate Circuit Michael E. In a trial circumstances, J., arising L. Banks was con- of the same Aaron out grams possession of cocaine with intent to victed of of less than Thereafter, conspiracy possess grams. to less than 25 deliver and County jury Wilson, Banks, grand and an citizens indicted pos- conspiring December 1990 to others for from October 1988 to grams cocaine. The 45-B Dis- sess with intent to deliver over 650 of Norton, J., Court, H. denied Wilson’s and Banks’ motion trict John jeopardy grounds. on After a to set aside the indictment double Anderson, J., Court, joint jury Circuit Robert C. trial the Oakland of to deliver between 50 and 250 Wilson was convicted pos- cocaine, grams and Banks was convicted of grams to deliver more than 650 of cocaine. The sess with intent PJ., Cavanagh Appeals, and C. C. Court Weaver, Schmucker, JJ, opinion (Docket unpublished per Nos. in an curiam affirmed 146693,146695). joined by opinion Chief Justice Mallett In an Justice Brickley, Supreme Court held-. and Justice Cavanagh, subsequent prosecution in Circuit Court is The the Oakland Michigan Constitutions. barred the United States prima showing a 1. If can make a facie of violation a defendant Jeopardy Clause, prosecution a is barred of the Double second by preponderance government can demonstrate a unless the prosecution. why jeopardy principles not bar In evidence double do prima jeopardy, a a facie case of double defendant order to make prosecution for the same offense. The same must show twice greater crime after conviction of offense includes Conspiracy possess with intent to a lesser included offense. grams offense of of cocaine is a lesser included deliver 50 to 454 Mich possess grains. with intent to deliver over 650 Under case, conspiracy existed, the facts of this one and the defend- showing jeopardy. ants have made a of double people prosecutions argue 2. that the second valid Ohio, (1977), excep- under Brown v 432 US 161 which held that an jeopardy may pro- tion to exist is unable to double where the state charge ceed on the more serious at the outset because additional necessary charge facts to sustain that had not or had not occurred despite diligence. However, been discovered the exercise of due case, people why conspiracy greater this failed to show despite could not have been discovered the exercise of due dili- gence. The convictions were based on the same arrest and seizure separate sovereigns, of cocaine. The counties are not but are subdi- Any Muskegon visions of the state. information the authorities diligence knew or could have known in the exercise of due must be imputed only to the Oakland authorities. The state is allowed one prosecution, Muskegon. prosecu- and that occurred in The second greater tion for the offense is barred. Vacated and reversed. joined by Riley, concurring part Justice Justice and dis- Boyle, senting part, prosecution stated that the of Aaron Banks in Oak- County jeopardy. agreement land was not barred double purchase process drugs County part and in Oakland was not Muskegon County conspiracy, but, rather, sepa- was a distinct and Therefore, County conspiracy rate Crime. was not a County conspiracy lesser included offense of the Oakland under law, County conspiracy, federal nor was the Oakland discovered Muskegon County prosecution, part after the of the same transac- diligence exception applied tion under state The due law. to Aaron County conspiracy Banks’ involvement in the Oakland because the concerning greater conspiracy facts became known after for the smaller part Kelly Justices and took no in the decision of these Weaver cases. Kelley, Attorney General, Frank J. Thomas L. Casey, General, Solicitor Thompson, Richard Pros- ecuting Attorney, and F. Joyce Todd, Chief, Appellate Division, Letica, and Anica Assistant Prosecuting Attorney, people. for the L.

Gary Kohut and Brian R. Sullivan for defend- ant Wilson.

Opinion by Brickley, Sharpe Michael J. for defendant Banks. charged J. The defendants were in Oak- Brickley, County possess

land with with intent to grams deliver over 650 controlled substance. They previously County convicted in possess with intent to deliver prosecutions cocaine. Because both center on the granted dates, witnesses, evidence, same we appeal, jeopardy impli- leave to limited to the double prosecutions in cations of the defendants’ County. subsequent prosecution

We hold that the in Oak- County land is barred the Constitution of the Michigan United States Constitution. There- fore, the later convictions are reversed and vacated.

i A On 11, 1989, Gardner,. December Ronald Cato Peterson, Wilson, Amir and Aaron Banks were travel- ing Cougar in a white automobile from Detroit to Muskegon. Muskegon County Deputy Sheriff A1 tip VanHemert received a from a confidential infor- persons mant that Aaron Banks and several other transporting Muskegon would be crack cocaine to a Heights neighborhood that afternoon.

Deputy Stanley deputy, and VanHemert another legal stop Berdinski, executed and search of the deputies approximately grams vehicle. The seized occupants of crack cocaine and arrested the of the vehicle. Gardner,

Ronald and Amir Wilson Peterson, Cato each made statements to the officers. Mr. Gardner 454 Mich 421 Brickley, by Ricky paid stated that he was two hundred dollars Peterson, Wilson, Franklin to drive Messrs. and Banks Muskegon previ- to the area and that he had Heights ously transported drugs sellers and to that area. He picked up money also stated he had at the home of transported “Miss Louise” in and the cash back to Detroit. Mr.

Further, Gardner stated that Franklin was the head of the He stated that cocaine was organization. transported spare sometimes in the trunk, tire placed spare that the cocaine would be into the tire Detroit, at a station in tire gas would be left behind a in Muskegon warehouse after the cocaine Ricky was removed. He knew where Franklin lived and was willing to show the officers where the ware- house Additionally, was located. Gardner stated he sold drugs Banks, Aaron that Banks was the boss operation, that Franklin gave the drugs to Banks to sell.

Mr. Peterson stated to the officers that he was trav- eling Muskegon to sell crack cocaine, that this was trip his second to Muskegon, and that Mr. Franklin was the organization. head of the

Defendant Wilson also made a statement to the Muskegon authorities after his arrest. He stated Ricky he sold crack cocaine for Franklin and that he had sold drugs previous trips on three to Muskegon. He stated that Mr. stay Banks would at Miss Louise’s house and dispense the crack baggies to the sellers there. Further, he stated that the cocaine was trans- ported spare tire in trunk, easy that it was to recruit Detroit, sellers from and that Mr. Robert Johnson was also involved in the sale of cocaine. 425 Opinion by Brickley, County Muskegon charged

The Prosecutor defend- possession ants Wilson and Banks with of a con- trolled substance with intent to deliver between 225 grams.1 charges and 650 The were reduced after the weighed possession cocaine was to with intent to grams deliver between 50 and 225 of cocaine and con- spiracy possess with intent to deliver.2 6, June Amir 1990,

On Wilson was convicted County jury possession with intent to deliver grams to deliver between 50 and 225 July 3, of cocaine. On 1990, Mr. Wilson was prison eight sentenced to two concurrent terms of years. twenty 11, On June Mr. 1990, Banks was con- County possession victed in of less than grams possess 50 of cocaine3 and less grams4 arising than 25 out of the December twenty years arrest. He was sentenced to ten to prison years eight years and two months to four prison, respectively.5

B July police On 1990, Southfield arrested Gerald possession Hill for with intent to deliver between 225 grams County and 649 of cocaine.6 Oakland officials 333.7401(2)(a)(ii); 14.15(7401)(2)(a)(ii). MCL MSA 333.7401(2)(a)(iii); 14.15(7401)(2)(a)(üi). MCL MSA specific count was not for a amount of cocaine. 333.7401(2)(a)(iv); 14.15(7401)(2)(a)(iv). MCL MSA 333.7403(2)(a)(v); 14.15(7403)(2)(a)(v). MCL MSA given Cato Peterson and Ronald Gardner were both reduced cooperation investigation, including testifying sentences for their with the against defendants Wilson and Banks. police stop Southfield made the after a arrest routine traffic passenger. occupied vehicle which Mr. Hill was a The vehicle was also Ricky police go Franklin. The allowed Mr. Hill to into a store across stopped. area, the street from where the vehicle was After Mr. Hill left the 454 Mich 421 Opinion by Brickley, J. Mr. Franklin’s activi- began investigation drag an into time, ties. At this Coun- joined Departments investigate ties Sheriff efforts the “Franklin organization.” County

In December an Oakland citizens jury Wilson, Banks, Hill, indicted Messrs. John grand son, Moore, individual, and another Terrence on charges conspiring of from October 1988 to Decem possess ber 1990 to with to deliver intent over 650 of cocaine.8 grams

Defendants Wilson and Banks moved to set aside the indictment on the basis of a violation of double jeopardy. Wilson, Their motion was denied. Messrs. Banks, Hill, jointly and Johnson Septem- tried in ber of 1991. Messrs. Wilson Banks renewed their motion to dismiss at trial, and, again, the motion was denied. After the second trial, defendant Wilson was guilty found to deliver between 50 and grams of cocaine. Defendant Banks was found possess guilty with intent to deliver grams more than 650 of cocaine. The defendants appealed, Appeals and the Court of affirmed.9 We employees police they store alerted officers that had found cocaine in a jacket behind the store. 7 The record indicates that Mr. Franklin has fled this state order to prosecution. avoid 333.7401(2)(a)(i); 14.15(7401)(2)(a)(i). MCL MSA Appeals inquire argument The Court of did not into the that there was more than one The Court stated: Muskegon County It is clear that could not have known the extent of the at the time of defendants’ convictions. discovered, despite diligence Because the crime could not be on part police, pros- until after the commencement of the transaction, arising ecution for other crimes from the same an exception separate prosecu- same transaction rule allows People Harding, 693; (1993). [People tion. 443 Mich 506 NW2d 482 Opinion by Brickley, leave, jeopardy limited to the double granted issue. 450 Mich 904 (1995).

n The Fifth Amendment of the United States Consti- provides person tution shall ... be sub- “[n]o ject for the same put offence to be twice of life limb . . . .” or The Fifth Amendment double jeopardy protections applicable are to the states through the Fourteenth Amendment. Mary- Benton v land, 2056; 395 US 89 S Ct 23 L Ed 2d 707 (1969). language “The of the Michigan Constitution’s double jeopardy provision substantially is similar to that of the United States Constitution.” People Mezy, v 453 269, 279; Mich 551 (1996). NW2d 389 Con- Michigan’s stitution, 1, 15, art person § declares that shall “[n]o subject be for the same put offense to be twice jeopardy.” Further, Michigan had codified the guaran- tee against jeopardy.10 double jeopardy

The double guarantee protects against prosecutions successive for the same pro- offense and against multiple tects punishments for the same offense. North Pearce, Carolina v 395 US 717; 89 2072; S Ct L23 Ed 2d 656 (1969). jeop- The double ardy protections system are inherent in our juris- prudence because we believe that Moore, unpublished opinion per curiam,

v issued November (Docket p 145614), No. 3.] acquitted upon any When a defendant shall be or convicted offense, consisting degrees, indictment for an of different he shall degree not thereafter be tried or convicted for a different offense; any attempt same nor shall he be tried or convicted for charged commit the offense in the indictment or to commit degree 768.33; of such offense. MSA [MCL 28.1056.] 454 Mich 421 Brickley, power with all its resources and should not be the State repeated attempts to convict an individual allowed to make offense, thereby subjecting alleged him to embarrass- for an ment, expense compelling ordeal and him to live in a anxiety insecurity, continuing as well as state of may possibility though enhancing that even innocent he States, guilty. 187- be found v United US [Green 188; 221; (1957).] 78 S Ct L Ed 2d 199 We follow the federal rule that if a defendant can prima showing make a facie of a violation of the Jeopardy Clause, prosecution Double a second government barred unless the can demonstrate preponderance why evidence double supra Mezy, principles prosecution. do not bar 277. prima

In order to make a case of jeop- facie double the defendant ardy, pros- must show that he was ecuted twice for the same offense. The same offense includes a greater crime after convic- Ohio, offense. See Brown v tion of the lesser included 161, 169; 2221; 432 US 97 S Ct 53 L Ed 2d 187 (1977). Conspiracy possess with intent to deliver 50 to 224 grams of cocaine is a lesser included offense of con- spiracy possess with intent to deliver over 650 People Marji, See grams. App 525, 180 Mich 447 NW2d (1989). in Wilson,

Initially, in its brief to Court this the prosecution’s only argument that more than one con- spiracy follows, existed is as People Mezy, (1996),

In 453 Mich 551 NW2d 389 recently problem this Honorable Court discussed the determining separate drag conspir- whether there were two only problem presented dealing acies or Aone. further is in Appeals previously what the Court of has referred to as a conspiracy.” People (On Remand), “chain v Meredith Opinion by Brickley, (1995), App 403; lv den 450 Mich 852 531 NW2d 749 Mich (1995). People’s counter-statement As can be from the .seen many individuals, may drug conspiracies

facts, involve who conspirators knowledge or even the extent have no of other they conspiracy when become involved in it. In addi of the case, tion, again in as is demonstrated this certain individu may only by a nickname. Further als be known to others complicating prosecution drug offenses is the fear inspired by resulting uncooperative organizations, such and, evidenced Gardner’s and Cato Peter witnesses as fully case, in this a failure to disclose their son’s statements conspiracy.[11] participation or others’ own Contrary people’s position of the the dissent, to the argument find that more is not that this Court should conspiracy existed, it is that Court than one this exception applies. should hold that the Brown County people Moreover, case, in the Oakland separate conspira- charge the defendants with did not agreements that occurred after the December cies for defendants. The defendants 11, 1989, arrest of these only over on one count of were bound substance, deliver or manufacture a controlled MCL 14.15(7401)(2)(a)(i). 333.7401(2)(a)(i); MSA assuming makes the Even argument alleged I dissent, would still hold gist one “The of the that there conspira- agreement of the crime of acts, one or more unlawful where one tors to commit coconspirators ‘any do act to effect or more of the ” conspiracy.’ quoting object Mezy merely Banks, people incorporate its brief for In its brief Wilson, exception argue that the Brown should and then codefendant apply to this case. 454 Mich 421 Opinion Brickley, J. Braverman v United States, 49, 53; 317 US 63 S Ct L (1942). 87 Ed 23 We continued in Mezy: agreement

In order to determine what the extent of the is, may so that we determine whether there are two con spiracies only one, “totality or we will use the same of the circumstances” test used in constitutional double analysis. following This test 1) time, 2) includes the factors: persons acting statutory coconspirators, 3) as offenses charged indictments, 4) charged by the overt acts government description or other of the offenses charged scope activity that indicate the nature and of the government punish sought case, that the 5) in each places alleged part where the events as place. took The essence of the determination is whether agreement there crimes, is one to commit two or more than agreement separate object. one [Mezy,supra each with a 285, citing Thomas, United States v (CA 759 F2d 659 1985).[12]

First, we will explore the time factor. The time frames of the two alleged conspiracies overlap. The felony information for the Muskegon conspiracy does specific not list a time However, frame. at Wilson’s trial in Muskegon, prosecutor argued that agreement took place between December 7 and 11. Also, December jury in Banks’ case was instructed that alleged the agreement was made between December 1989. The overlap in time does prove not only there was one “many because drug offenses occur at 12 Thomas, In agreement. the court held that there was more than one However, significantly the facts of Thomas are different than those in this Thomas, charged case. In the defendants were with to travel promotion activity arising interstate for the of unlawful out of hidden by organized groups interests crime in casinos. The defendants were skimming partners off of different casinos with different in the second conspiracy. Therefore, agreement. there was more than one People v Wilson Brickley, supra Mezy, connected,” being time without

the same C.J., part and dissent- concurring at 288 (Brickley, Mezy, However, unlike the facts this part). ing one agreement indicate that there case are reviewed. the other elements of the test when an con- alleged trial was based on Muskegon The Rick Peterson, Gardner, Cato Ronald spiracy between It was Wilson, Amir and Aaron Banks. Franklin, that Franklin by the authorities alleged Muskegon Banks conspirators, leader of the Aaron was the cocaine in Muskegon, as a distributor of the acted from the brought cocaine was to and County prosecu- Detroit area. In the Oakland Metro Ricky Franklin was the leader tion, alleged it was that as a dis- conspirators, that Aaron Banks acted did Robert and that the cocaine (as Johnson), tributor City from the of Detroit transported Muskegon was to County. The difference and certain areas of Oakland conspirators that additional were indicted in the was County conspirators case. All the the Mus- conspirators were in the Oak- kegon case considered County or case, land whether indicted not. Additionally, statutory essentially were offenses County, the same. In the defendants were charged possession with with intent to deliver grams conspiracy between 50 and 225 of cocaine However, with intent deliver. no amount possess to respect was addressed with to the count. with County, charged In Oakland the defendants possess with intent to deliver more Therefore, substance. grams than 650 controlled greater with a crime charged the defendants were included convicted of the lesser offense. being after Marji, supra at 531. Mich Opinion by Brickley, overt acts and offenses described peo-

ple for both cases were In fact, similar. in the Oak- County land case, people spent one and one-half days jury recounting the facts of the Muskegon police case. The same officers and detectives testified about the same events, the same location, involving the same evidence. Further, the same witnesses testi- fied about events, same location, same involving the same evidence. Essentially, the Oakland County trial was the Muskegon trial, plus more evi- dence of events that occurred after the defendants’ roles in the ended.13 Also, the locations conspiracies were the same. The dissent makes much of the fact that one witness, Jeremiah Perry, testified that he told the police Ricky Franklin sold drugs Muskegon, Rapids, Grand Benton Harbor, Kalamazoo, Minnesota, Pittsburgh, Wayne, Ft. Indiana, Lima, Ohio. How- ever, this information brought out on cross- examination when counsel for codefendant Terrence Moore indicated Perry only could link Mr. Moore to transactions in Muskegon, any not to other sales may he have mentioned to police. Furthermore, any did not link of these sales to the conspiracy that was charged, Perry only testified to agreements to sell in Muskegon.14 we

Finally, note that parts Wilson’s and Banks’ in conspiracy this they ended when were arrested on testimony Dwayne The of Mr. Albert Winn was read into the record. Mr. Winn stated that Aaron Banks distributed the cocaine and collected money Muskegon. However, from the in sellers this was known alleged Muskegon. authorities and at the trial in Mr. Winn’s tes timony weight did no more than add to the testimonies of Detective VanHemert, Peterson, Cato and Ronald Gardner. 14Perry’s testimony only Muskegon. dealt with sales in Brickley, 847 F2d Goff, In United States v 11, 1989.

December Court of the United States 149, 5, 1988), 169 (CA between Fifth Circuit differentiated Appeals for the end of an individual’s conspiracy a and the the end of “ person’s well settled that a conspiracy. a ‘It is role in conspiracy person ends when the in a participation ” conspiracy.’ (Quoting in the arrested for his role 5, 1985].) F2d Dunn, 604, United States [CA part However, solely single because a individual’s necessarily may ended, conspiracy have does not are “Even when several members of end. thereby itself is not necessa- arrested, 170, United States v rily citing terminated.” Goff con- Kalish, (CA 1982). “Drug 690 F2d multiple importation episodes may spiracies involving many at 170. continue for months.” Goff involved in persons In the same four Goff, though The court found that even multiple shipments. continually only personnel changed, there other same is true in the instant case. conspiracy. one the con- Ricky Franklin and Martese Weidaman were and Banks’ conspiracy. Wilson’s stant leaders of this their arrest ended after involvement There was no evidence that on December 1989. Franklin, conspire with Wilson or Banks continued they participated there evidence that nor was activity conspiracy.15 furtherance with agreement and Banks made one

Wilson That agree- of their the other members one of the an inference made that Aaron Banks contacted There was sug Gardner, just witnesses, after their arrest Ronald attorney. However, gested the Oakland hire Banks’ that Gardner should testimony County judge irrelevant because there was that this was ruled was done to silence Gardner. no indication that this Mich

Opinion by Brickley, merit was transport cocaine that was obtained Ricky Franklin to Muskegon, to sell the same in neighborhood cocaine a in Muskegon known as the “danger zone.” trip Each sepa- not a say rate trip To that each could be consid- ered a separate conspiracy, or that each sale could be separate a conspiracy, would lead to the exact results sought prevented by be Jeopardy the Double subjecting the defendant to the “hazards of Clause — possible trial and conviction more than once an alleged offense.” Green, supra at 187. Therefore, we find that one existed under the facts case, this and that the defendants have made a showing jeopardy. double The burden now shifts to the people to demon- strate preponderance why evidence double jeopardy principles do not bar prosecution. Mezy, supra people at 277. The argue that the second prosecution was valid Brown, exception under the supra at 169. The Supreme United States Court held in Brown the sequence may be, the “[w]hatever Fifth Amendment forbids successive punishment cumulátive for a greater and lesser included offense.” Id. The Court further stated: exception may

An pro exist where the State is unable to ceed on charge the more serious at the outset because the necessary additional facts charge to sustain that have not occurred or despite have not been discovered the exercise diligence. 169, 7, of due citing n Diaz v United [Id. States, 442, 448-449; 250; 223 US 32 S (1912); Ct 56 L Ed 500 Swenson, 436, 453, 7; Ashe v 1189; 397 US n 90 S Ct L25 Ed (1970) (Brennan, J., 2d 469 concurring).[16] adopted exception We Harding, this v 443 Mich 699- 705; (1993); People White, 506 NW2d 390 Mich n (1973). NW2d 222 Wilson by Opinion Brickley, J. authority for its rely exception on this people

The jeopardy requirements. How- double to circumvent why this Court have failed to show ever, people the the greater have discovered they could not fact, In the testi- diligence. of due despite the exercise the Mus- trial indicates that mony Muskegon at the two defendants knew that these kegon authorities they were tried conspiracy when part larger of a were Muskegon. in rely on the this Court should that people argue

The Tolliver, (CA 61 F3d 1189 States v decision in United the court held that The Tolliver 5, 1995). “[f]rom may government that while the record, apparent it is conspiracy during of suspected the existence have [a] time the defendant], at that prosecution of the [the indict have sufficient evidence to did not government . . . con- participation his [the defendant] 1211. spiracy.”17Id. at Tolliver, authori- the facts of

Unlike organiza- the Franklin ties knew of the existence of directly They tion. knew that these defendants conspiracy. The statements of Messrs. involved manner Gardner, Peterson, and Wilson indicated the transported spare tires), (in in which the cocaine stayed Muskegon (Miss while in where the defendants argued Tolliver, count he was In the defendant previously charged for which he had been con with was the same offense of with intent to distribute victed. He been convicted had cocaine, using carry cocaine, possession intent to distribute with drug trafficking ing a offense. firearms in relation to dispute government referred to in the not that the overt acts The did superseding first also the overt acts in the indictment were Appeals Circuit held that the for the Fifth The United States Court prima proved The court then facie double claim. defendant a exception by preponderance people prove could an looked to see if the of the evidence. Mich 421 Brickley, home), organization Louise’s that the was headed Ricky Detroit, involved, Franklin in that others were they previous trips and that had made to sell drugs Muskegon.

There is evidence that authorities had actual knowledge greater organization. criminal testimony they of the officers indicate that had Miss Louise’s home and her and Aaron neighborhood Banks under Further, surveillance for some time. Muskegon authorities had arrested another member of the organization weeks before the Decem- 11, 1989, ber arrest.

The most telling holding reason for that the Mus- kegon greater conspiracy, authorities knew of the with the exercise of due diligence pro- could have duced additional support evidence to the greater charge, by was the statement made Wilson to Mr- Deputies VanHemert and Berdinski. Mr. Wilson stated that he had $3,000 sold as much as worth of crack cocaine in a single trip Further, Mr. Wil- Muskegon. son routinely stated that Mr. Banks transported money back to Detroit. When asked what was the money most he transported had seen back Detroit, responded, he “Around a hundred thousand,” and that was in the summer of 1989. This could have formed the basis for investigation by additional the Muskegon authorities.

Additionally, the convictions were based on the same arrest and seizure of cocaine. The initial convic- tions were for 11, 1989, the December incident and the second convictions were for a continuing conspir- acy from October 1988 to people December 1990. The based the case against these defendants on the same cocaine that was seized on December 1989. The v Wilson Brickley, testimony the was based on

Oakland Muskegon at the who testified witnesses same the pros- the provided witnesses Any additional trial.18 only added County case in the Oakland ecution not form the case and did prosecution’s to the weight crime. separate for an additional basis did have authorities Muskegon though Even peo- conspiracy, greater of the knowledge actual that the provide evidence ple failed to investigating diligence due exercised authorities organization. this and Peter- Gardner that Messrs. people argue organization their involvement

son minimalized known not have people could and that therefore first the time of the greater organization of the trial testi- statements and However, the actual trial. Gard- show that Messrs. mony by the witnesses given investi- fully aid the willing ner and Peterson necessary County had Moreover, Oakland gation. within six jury indictment get grand information to first trial of sentencing following of the months and Banks. Messrs. Wilson authorities Finally, knowledge There- County authorities. imputed to the all that the County to know is deemed fore, Oakland in Wal- knew. As stated County authorities 1184; 25 L Ed 387, 392; 90 S Ct Florida, 397 US ler v (1970): 2d 435 August Peterson, Deputies Gardner, Dale Gooden Ronald Cato Deputy the two had died between Berdinski testified at both trials. Panici County preliminary testi Deputy examination VanHemert’s Oakland

trials. County mony trial. record in the Oakland was read into the 454 Mich

Opinion by Brickley, counties, “Political cities, subdivisions or States — whatever —never were and never have been considered as sovereign Rather, they traditionally entities. have been regarded governmental as subordinate instrumentalities cre- carrying ated the State to assist in gov- out of state [Quoting Reynolds ernmental Sims, functions.” 377 US 533, 575; (1964).] 84 S Ct 12 L Ed 2d 506 In Waller, the United Supreme States Court over- turned the second conviction of the defendant in a state court because the defendant had been tried and previously convicted in municipal court. The Court held that prosecution the second violated the Double Jeopardy prosecutions Clause because the the same sovereign. The counties of Muskegon and separate are not sovereigns; they are subdivi- sions of this state. Therefore, we impute the knowl- edge of the Muskegon authorities to the Oakland County Any authorities. information that the Mus- kegon authorities knew or could have they known if exercised due diligence in this investigating drug con- spiracy will imputed be to the Oakland authorities. Therefore, the state is allowed only prosecution one and that occurred in Muskegon.

m

CONCLUSION On the basis of the statements of Messrs. Gardner, Peterson, Wilson, and the evidence introduced at the first trial, the Muskegon prosecutor could have charged Messrs. Wilson and Banks with conspiracy to possess with intent to deliver over 650 grams of prosecutor cocaine. The chose not to do so and charged the defendants with the lesser offense. The second greater offense consti- J. Boylk, prove failed to people The jeopardy. tuted double the that of evidence preponderance this Court case. in Brown to this applies articulated exception prosecution that the second Therefore, we conclude is barred. offense greater for the J., concurred C.J., and with Cavanagh, Mat,lktt, J. Brickley, dissenting in and (concurring part in

Boyle, conclusion majority’s with the part). I agree While Amir of defendant prosecution subsequent that I dissent jeopardy, by double precluded Wilson prosecution that majority holding from the by the Banks was barred County of Aaron Oakland and States of the United jeopardy provision double Ante at 423. prosecution The Constitutions. Michigan by the Fifth not barred Banks was of defendant Constitution as United States of the Amendment and Supreme Court States interpreted by the United by Michigan Constitution’s courts or lower federal by this Court’s Clause, Jeopardy governed Double as modi- test of the “same transaction” interpretation District 397 Mich Crampton Judge, 54-A fied (1976). NW2d 28 489; 245 process drugs purchase agreement Muskegon con- County part not Oakland separate a distinct but, rather, was spiracy, conspiracy was not a Therefore, crime. County con- of the Oakland offense lesser-included con- was the Oakland federal law. Nor spiracy under after the was discovered spiracy, which under state the same transaction prosecution, part of majority’s with the law. Ante at 429. Finally, disagree I to demonstrate has failed that the state contention 454 Mich 421 Opinion by Boyle, J. the due diligence exception apply does not Aaron Banks’ involvement conspiracy. The facts concerning greater conspiracy became known after smaller

i majority’s The statement appellee that does not contest the defendant’s assertion that the second prosecution was for the same offense, ante at is incorrect. Insofar as the implies statement appel- that preserved lee has not this claim, prosecution the argued the alternative at the trial level, court in the Court of Appeals, and in the briefs in Court, this that there was more than one conspiracy. question has preserved been properly and is before us. Both defendants have addressed the issue.1 Indeed, the due diligence claim exception as an to People White, v 390 Mich 6;n 212 222 NW2d (1973), argued both the and the defendants, assumes separate that crimes have part occurred as of “one transaction.” The scope inquiry before us thus necessarily includes whether there is one crime or two.

Given that scope the of the inquiry is not limited to whether the due diligence exception applies, majority’s initial inquiry should be directed pro- to the question cedural regarding the proof burdens of Williams, 36, 40; 1735; United States v 504 US 112 S Ct L 118 Ed 2d (1992). proceeding matter, necessary Before to the merits of this it is propriety reaching discuss them. . . . Our traditional precludes grant question rule . . . a of certiorari when “the presented pressed passed upon was not or below.” People Boyle, claim. In v jeopardy aon double persuasion we (1996), NW2d 389 Mich Mezy, from United States procedural a test recently adopted appli- 8, 1985) (en banc), F2d 659 Thomas, (CA we directed interlocutory appeals. Although cable double posttrial to a application of Thomas a such test majority applying of cases challenge, interlocutory pretrial in the context of have done so clearly is in a better “government appeal. Because pres- charged show that the crime position to charged not the same as the one ent indictment inter- indictment,”2 defendant’s burden on previous a prima showing facie locutory appeal is to make point at which the burden shifts to offense, the same prosecuted to show it has not twice government However, where, here, as conspiracy.3 for the same jeopardy claim, it has posttrial of a double review is defendant bears the tradi- also been held persuasion of production of both tional burdens4 2 Stricklin, 5, 1112, (CA 1979), States v 1118 accord United 591 F2d Garcia-Rosa, 209, (CA 1, 1989); United States v 229 United 876 F2d Ragins, Smith, 3, v 1261, (CA 1996); United States States v 82 F3d 1266 Bendis, 4, States v 1184, (CA 1988); United 681 F2d F2d 1191-1192 840 561, (CA 9, 1981). 564 3 Booth, 1, 27, (CA 1982); United States See United States v F2d 29 673 Inmon, Reiter, v 336, (CA 2, 1988); United States 568 F2d v F2d 341 848 Futch, 5, 386, (CA 326, (CA 3, 1977); United States v 637 F2d 388 332 Jabara, 574, 6, United (CA 1981); 1981); United States v 644 F2d 576 Thornton, 764, 7, 1992); United States v (CA States v 972 F2d 767 Sturman, Tercero, 312, (CA 8, 1978); United States v 679 F2d 315 580 F2d 840, (CA 11, 1982). 843 4 claims, proof note, in double 82 Mich L R The burden of See traditionally placed proof (1983). has been on The burden of 365 charged are the same in law and “that the two crimes defendant to show jeopardy is an affirmative defense that . . . .” The claim of double fact 365, waived. Id. at n 2. will be raised or be considered must 442 454 Mich 421 Opinion by Boyle, J. single conspiracy. existence of a United States v

Dortch, 1056, 5 F3d 1061 (CA 7, 1993).5

Were we on writing slate, a clean we might per- be suaded the rationale that because it is no longer possible protect the defendant against jeop- double ardy exposure when the second trial has concluded,6 prosecutor and the equal and defendant have access record, may to the carry defendant the burden normally assigned appellant without unreasonable strain. United States v Stricklin, 591 F2d 1112, 1124 (CA 5, 1979).

However, given that we have recently but applied posttrial Thomas in the setting, applying that test to the Blockburger7 inquiiy, I conclude that defendant prima Wilson has made a facie showing pros- that the ecution has failed to overcome. However, double jeopardy does not bar Banks’ second 5 applying burden-shifting Those federal post- circuits framework to Appeals trial Circuit, review are the United States Court of for the Second Mallah, 971, (CA 2, 1974), United Circuit, States v 503 F2d the Fifth Kalish, 1144, (CA 5, 1982), United States Circuit, 690 F2d the Sixth Adamo, 927, (CA 6, 1984), United States v 742 F2d 946-947 and the Elev Circuit, Loyd, 1555, enth (CA 11, United 1984). States v 743 F2d position balance of federal circuits have either retained the that the cany posttrial, defendant Circuit, continues to the burden the Third Smith, supra 1266, Circuit, United States v n 2 at the Fourth United Ragins, supra 1191-1192, Circuit, States v n 2 at the Ninth United States v Bendis, supra 564, Circuit, n 2 Sasser, at and the Tenth United States v 1544, 1549, (CA 10, 1992), issue, F2d n 3 or have not reached the Circuit, Garcia-Rosa, supra First United States v 2n n and the Eighth, Federal, and District of Columbia Circuits. Chiattello, (CA 7, 1986). United States v 804 F2d 7 Blockburger States, 299, 303; v United 284 US 52 S Ct 76 L Ed 306 (1932). Boyle,

H merits, Banks, with to defendant regard On the whether there was one questions: (1) there are three two, image or which is the mirror prosecuted twice question whether defendant test, whether, (2) for same offense under the federal offense, the same- if there was more than one White, supra, rule of bars the second transaction pre- if the answer to either of the prosecution, (3) prosecution, questions vious would bar the Oakland exception applies. due diligence whether the Supreme recently United States Court has As the multiple punishment “In and mul- reiterated, both the . . . where two tiple prosecution contexts punished offenses for which the defendant or tried test, cannot survive the ‘same-elements’ the double Dixon, United States v jeopardy applies.” bar 509 US L Ed 2d 556 688, 696; (1993). 113 S Ct theory as without constitutional roots the Rejecting jeopardy has a different in its meaning that double punishment and successive successive strands, “new, overturned the additional Court test,” Dixon, supra 703-704, double Corbin, Grady 509, 510; 495 US 110 S announced 2084; 109 L Ed 2d that barred a subse- (1990), Ct quent prosecution if, “to establish an essential ele- prosecu- an in that charged ment of offense . will conduct tion, government prove . . an which the defendant has constitutes offense for rejected . already prosecuted been . . .” The Court test, reaffirmed that it had “consist- the same-conduct test, Dixon, ently rejected” the same-transaction 454 Mich 421 by Boyle, J. supra n and announced a return to at Blockburger.8

A BANKS CHARGED AARON WAS SEPARATE WITH TWO CONSPIRACIES majority’s approach argu- avoids the alternative for ment of defendant Banks that the test successive double claims differs under the federal and part constitutions, the issue addressed in m. state Blockburger Assuming arguendo that the test is the test under both “same evidence” state federal question single conspir- constitutions, the whether a acy impermissibly multiple has been divided into con- spiracies including, guided all facts, is but not any charges limited themselves and other to, rele- persons (1) (2) circumstance, time, vant such as coconspirators, statutory acting (3) as offenses charges, (4) charged contained in the the overt acts government description or other of the charged scope offenses that indicate the nature and activity government punish sought of the that the places (5) alleged case, in each where the events part place. as took

The essence of the determination is whether there is one agreement crimes, agree- two to commit or more than one separate object. [Thomas, supra ment, each with a at 662.] 8 Dixon, supra 704, holding Grady must be overruled because Grady’s test, Blockburger pre same-conduct unlike the definition of what being offense, vents two crimes from the same was inconsistent with ear Supreme precedent understanding lier and the clear Court common-law of jeopardy. double People

Opinion by Boyle, Blockburger, applying recognized Court As this NW2d 592 458, 470; 355 Robideau, 419 Mich statutory of construc- solely one the test (1984), Legisla- where the apply not Blockburger does tion. punishments separate impose ture intends question is the ultimate activity. Thus, criminal that the conviction intended Legislature whether drugs distribute conspiracy to Banks of defendant of precludes conviction Oakland, drugs grams over distribute state. and outside the Detroit, inquiry is the state- response to this majority’s 224 of grams deliver 50 to conspiracy to ment that conspiracy to offense of is a lesser-included cocaine In grams. 650 addi- intent to deliver over possess with the crime of the fact that ignoring tion to conclu- act, the illegal to commit agreement is the by defendant possessed that the cocaine posits sion that was the theft of the car Muskegon, like Banks Ohio, 161; 432 US in Brown v prosecution the unit of was the same 2221; (1977), 53 L Ed 2d 187 97 S Ct Gerald Hill and by conspirators possessed cocaine in Mus- July 5, 1990, and Franklin in Southfield on by Anthony Johnson some July 6, 1990, on kegon and arrest of Banks Wilson. months after the seven any is an included otherwise, if Stated conspiracy, 650-gram a of an over charge offense of separate of a con- never be there could tried for con- person no It would follow that spiracy. prosecuted ever be cocaine could possess spiracy conspiracy, a result larger separate for effectuate, legislative than frustrate, rather would 338; NW2d Mich 537 Morris, v 450 intent. 454 Mich 421 Opinion by Boyle, (1995);9 MCL 333.7401(3); MSA 14.15(7401)(3).10 Moreover, People Marji, App 525, 531; 180 Mich NW2d (1989), majority cited pro- for the “ position that [conspiracy possess with intent deliver 50 to 224 grams of cocaine is a lesser included offense of to possess with intent to deliver over 650 grams,” 428, actually ante at holds: delivery

While of lesser amounts of cocaine are crimes category delivery within the grams same as of over 225 cocaine and share greater offense, some elements with the they present also contain essential elements not greater namely offense, proof quantities of lesser of con- trolled substances. . . . Thus these lesser offenses must be cognate considered offenses. felony,” In Morris at we held that the term “another as used in 7401(3), “any felony” § includes for which a defendant has been sentenced simultaneously felony either before or with the controlled substance currently being which a defendant is sentenced. The statute thus man sentencing felony. dated consecutive for another Gonzales, __; In United States v 520 US 117 S Ct 137 L Ed (1997), Court, construing following statutory 2d 132 language concurrently . . . impris “sentence shall run with [not] other term of onment,” “any” meaning expansive determined that the meaning has an sentences, “any” sentences, not limited to federal but state or federal. Fur

ther, statutory prohibiting Court found the command concurrent straightforward unambiguous rejected sentences to be and thus as unnecessary legislative history. Id., a resort to 117 S Ct 1035. 333.7401(3); 14.15(7401)(3) provides: MCL MSA imprisonment imposed pursuant A term of (2)(a) to subsection 7403(2)(a)(i), (ii), (iii), (iv) imposed or section consecutively or shall be to run any imprisonment imposed with term of for the. com- felony. subject mandatory mission of another An individual to a imprisonment (2)(a) term under of subsection or section 7403(2)(a)(i), (ii), (iii), (iv) eligible probation, or shall not be for suspension sentence, parole during mandatory term, of that or except provisions permit proba- to the extent that those life,

tion for mandatory and shall not receive a reduction in that imprisonment by disciplinary term type of credits or other of sentence credit reduction. 447 v Wilson Opinion by Boyle,

B Court has not set forth a clear test Supreme jeopardy purposes, for. double determining, conspiracy many.11The Court whether there is one or that, has with lower federal courts where the agreed multilayered, approach is Blockburger conduct inadequate jeopardy analysis. in United guide an 112 Ct 118 L Felix, 390; 1377; States v 503 US S Ed 2d 25 (1992). Supreme has

Thus, while the United States Court a substantive with a charge held that charge jeopardy, is not barred double id. and that is a lesser included offense of a enterprise in a continuing single indictment,12 criminal Ct Rutledge States, 292; 1241; v United 517 US 116 S 134 L Ed 2d 419 on the issue of (1996), guidance multiple conspiracy situations double must be drawn from decisions of the federal courts of appeal. justices Although argued Grady and return five Dixon to overrule they disagreed application Blockburger Blockburger, on to the facts. Supreme decision, Rutledge v The most recent United States Court States, 1241; (1996), 517 US L Ed 2d 419 holds United S Ct brought continuing § to a § that a count addition enterprise single in a is a lesser included criminal count indictment continuing enterprise conspiracy agreement if offense of the criminal underlying component is based on the same conduct as the “in concert” continuing enterprise criminal statute. The Court noted that this case successive-prosecution Jeopardy did not involve the strand of the Double may government prosecute person Clause and that the still a for two con Additionally, government may spiracies. that the con Court observed conspiracies prosecute being of facts tinue to one or more without aware enterprise justify charging continuing that would criminal and that the conspiracy may always larger continuing not be coterminous with the enterprise. Id., 116 S Ct n 17. criminal 454 Mich 421 by Opinion Boyle, J.

C rejected courts have a strict Block- The federal jeopardy analysis in with burger dealing double sub- sequent prosecutions conspiracy when more than one The test of is Blockburger is at issue. same-evidence “questionable conspiracy of value in double Thomas, supra at The issues.” United States v 662. “totality developed federal circuits have of the cir- “provides a more cumstances” test that accurate analysis multiple conspiracies whether determining exist.” Id. The factors from following Thomas, which previously approval we cited with in Mezy, are:

(1) time, persons coconspirators, (2) acting (3) as statutory charged indictments, (4) offenses the overt charged government description acts or other of charged scope the offenses that indicate the nature and activity punish government sought in each case, places (5) alleged part where the events as place. at took [Id. 285.][13] 13 Mezy, conspiracies In we concluded that the at two issue were the Brickley’s jeopardy purposes. same for double Chief Justice evaluation of factors, however, 286-287, id. at the five led him to conclude that the con spiracies same, separate were not the but and distinct: though I concur with the decision to even remand several factors appear suggest prosecuted that the defendants were not twice alleged conspiracies separate time, for the same act. The were in persons although overlap years. an there was of some two The different, although again involved in each there overlap. charged same, consisting was some The offenses were the possess it, of the although cocaine with the intent to distribute charged the amounts were different. The overt acts varied greatly between the indictments. The locales of the offenses also Finally, conspiracies scope, differed. differed with one aim- ing large-scale local, national distribution and the other at street- However, previously level transactions. because this Court has not proof, appropriate it addressed the burden to remand to allow apply

the trial court to the correct burden. Boyle, majority of the federal employ circuits a similar test to determine whether two charged conspiracies constitute the same purposes offense for of double jeopardy,14 although the United States Court of Appeals for the Second Circuit adds as a factor the interdependence between the alleged conspiracies. United States v Korfant, 771 660, F2d 663 (CA 2, 1985).

The first factor is time. The time frame of the two conspiracies in this case demonstrates that the smaller conspiracy Muskegon ran from December 7, 1989, through 11, December 1989, whereas the larger ran from approximately fall, 1988, through fall, 1990. Thus, the time frame of the smaller conspiracy is subsumed larger.

In Thomas, supra at 667, the Eighth Circuit held that the fact that the conspiracies overlap in time does not prove that only there was one conspiracy, and the in United States v Chiattello, Circuit, Seventh 804 F2d 415, 419 (CA 7, 1986), indicated that the fact that a period three-week for one totally subsumed within the duration of the other was jeopardy Implicated by [D]ouble is not the facts before us. The opinion that, lead purposes, does conclude for double prima prosecutions defendants established a facie claim that government were for the same offense and that the then failed to demonstrate that was not barred. I would conclude prima that showing the defendants did not make a facie and that

preponderance of the evidence demonstrated that the offenses [Brickley, (concurring part were distinct. dissenting C.J. part).] v F2d United Inmon, Chiattello, ^[14] 1981); 1135, See States v United States v United States v 594 F2d ^[1144] n 6 (CA 1986); Evans, supra 352, 4, ^[354] 951 F2d Hart, Sturman, (CA 1979); United States v United 933 F2d 3, 729, n 737-739 States v supra 80, United ^[85] (CA Futch, Mayo, at 843. (CA States v 6, 1, 1991); 646 F2d n 1991); ^[3] supra MacDougall, United United at 390-391; States States (CA ^[790] 454 Mich Boyle, existence of establish the sufficient far from presented identical to that A situation one by the Second considered has been in the instant case Macchia, F3d United States v Circuit. Macchia, recognized court In 2, 1994).

(CA first, there charged the smaller “where abuse, prosecutorial opportunity' is not the same important a less is therefore overlap and the of time factor in the the time Consequently, consideration.” whether respect dispositive case is not present conspiracy or two. was one there persons factor is consideration The second conspir- In the coconspirators. as acting with con- in the information acy, persons charged Banks, plus Franklin, who Wilson and spiracy were coconspirator. Also an been named as unindicted had Peterson, a street accomplices Cato named were Gardner, designated Ronald Banks, seller for trip, who had been arrested for the driver 1989. on December with the defendants along prosecu- the and Gardner testified for Both Peterson lesser offenses. pleaded guilty and of tion conspiracy involved By comparison, the Oakland There many and more witnesses. many people more persons ten in the Oak- naming indictments were two Banks, Wilson and Ger- conspiracy: defendants land Anthony Johnson (T-Bone), Terrence Moore Hill, ald Ricky Franklin, Johnson, Tone), or (Mark Robert Shapel (38, Demetris (Fat Kevin), Kevin Jackson Dwayne Kruger), Winn 30/30, (Freddy Dee), The Oakland (M M). Martese Weidaman & coconspirators included other unindicted trial in unknown or not called numerous witnesses either only persons com- conspiracy trial. The the Opinion by Boyle, conspiracies actually mon to both who were charged with conspiracies both were Wilson and Banks. Although Franklin was named in the he information, formally charged Muskegon. was never in Peterson and Gardner not indicted in Oakland. were The Mus- kegon Ricky information indicates that Franklin was however, a he in coconspirator; indicted the evidence where demon- was a major strated that he cocaine dealer and central unquestionably figure a in The federal courts have on numerous occasions importance overlap evaluated the of of partici- importance pants and its pur- double poses. overlap extent of Where the was found to significant be in terms of participants, the court with weighed this fact the other factors in determin- ing if conspiracies one or two existed. For the most overlap if part, considerable, was not the courts conspiracies. have found example, two For where there were two common out of defendants sixteen conspiracy, one and seven conspiracy, in the other Reiter, United States v (CA 2, 1988), 848 F2d twenty-two or persons named in two indictments which only indictments, two common to both Futch, United States v 637 F2d 390 (CA 5, 1981), conspiracies were held to be In different.15 Dortch, the Seventh Circuit held that when two out twenty-three charged in one indictment were subse- quently charged another, a common necessarily was not suggested, noting greater overlap participants expected would if be there Sturman, supra (holding United States See also n at 843 where participants out of Ohio two seven in the indictment were common indictments, objectionable overlap). Florida was no there 421 452 454 Mich Boyle, Dortch, supra at really only one mutually necessarily exclu- not Conspiracies 1062. are thus individual participants, of sive in terms “[o]ne dis- one certainly join more than can Id. cases, all 1063. In these drugs.” at tribute conspiracies despite the two courts found distinct in the Therefore, fact that participants. of overlap to both are common conspirators case three instant finding a bar two present does not conspiracies conspiracies.16 discrete statutory factor an examination of the

The third only one often there is charged. offenses Because United conspiracy cases, multiple involved statute Hart, v 85 States 80, (CA 1, 1991), 933 F2d necessarily would come drug conspiracy because Sub- purview the federal Controlled within the conspir- Act, similarity charges stance for both Henry, v United States be surprising. acies would not 897, 5, 1981). n (CA 661 F2d The Dortch court found reliance fact that on the a violation of one stat- charged the indictments of a ute to be the evidence single weakest “ against ‘the double stating guarantee punishment sub- not insulate from does criminal he con- sequent merely offenses because chooses to ” Id. at type of committing tinue the same crime.’ West, 1063, quoting United States v F2d dif- (CA 7, possible Because it is to have two 1982). to com- conspiracies violating ferent same statute Thomas, supra very at crime, mit the same may have same con- fact that defendants violated the supra Booth, (ten n defend See also United v common States nineteen), supra MacDougall, n 14 at 1145 ants out of United States (overlap twenty-four). of twelve defendants out of a total by Opinion Boyle,

spiracy drugs statute to deliver more than one time by conspiracy engaging in more than one does not preclude prosecution. a second probably significant most in

The fourth factor17 conspiracy compari- analyzing charges successive is a any description son of overt acts or other of the scope charged indicating offenses the nature and of activity government punish the that the seeks to in Muskegon conspiracy each case. The as related in tes- timony agreement at the first trial an to sell drugs Muskegon projects, in the a “hot” market where drugs “rolling,” carried out Banks on behalf up picking using of which Franklin, involved Peterson and Wilson as street runners. The overt acts conspiracy trip Muskegon in that were the from (which arrest), placing Detroit resulted in the of plate, jack transporting cocaine in a hot it under the missing spare tire,18 and some evidence that previous trips, there had been not all with these same projects Muskegon Detroit, defendants from to the in purpose selling for the crack cocaine. There is no County indication from source of an Oakland connection. Nor was there evidence of Banks’ rela- tionship processed Moore, to Terrence who had County cocaine Oakland or of his connection to Jury Proceedings, In re Grand (CA 6, 1986). 797 F2d Muskegon cases, In the the trial evidence showed there were 222 grams jury separate trial, In of crack cocaine. instructions in Wilson’s judge specify drugs did not an amount of in connection with the con spiracy charge, leaving question jury. trial, judge to the In Banks’ conspiracy possess charge included a lesser-offense less than twenty-five grams. jury The Banks’ convicted Banks of the lesser-included grams. Wilson, possess twenty-five offense of less than In jury conspiracy. convicted him of Mich 421 Boyle, J. Oakland codefendants Anthony Johnson, both was also agreement purchase, processing, included the drugs, to sell but it Park and a geographic in Oak had drugs and sale of Ohio, Illinois, and Minnesota. Tes- scope extending to implicated moving case timony in the Oakland both grams of cocaine well excess of 650 amounts December, 1989, arrest of Banks. before and after the purchasing scheme involved The Oakland over time from differ- amounts of raw cocaine large suppliers, the cocaine into crack “cooking” ent Southfield, Detroit, Oak places Park, various those persons different other than employing transport named in the trial to and sell conspiracy, cocaine. Unlike the limited agreement activities of the Franklin are extensive enterprise a far commercial greater indicative of and the Ricky player which Franklin was the central Banks, Aaron his trusted lieu- hub of the wheel and just than one of his tenant, regional was more supervisors. overlap19

The federal courts consider the of acts as determination whether there are meaningful to the conspiracies. However, surprisingly, one or more not Hart, supra as the court noted in United States v at 86, conspiracies may while be “similar in nature to deals, the extent that each involved cocaine the evi- presented government dence six witnesses places transactions in different revealed different Thomas, supra that, overt In at the court determined while five overlapping overlapped, number of acts not acts there were sufficient supported separate conspiracies. Opinion by Boyle, J. with people.”20 Thus, different the fact that Banks was in an agreement with Wilson (and many with other runners) object whose was the Muskegon market, does not the fact negate that Banks was an integral part of the much larger and more ambitious Oakland enterprise. As the court observed in United States v O’Dell, 462 224, 227, F2d n 2 (CA 1972): any

In the absence of evidence that the two distinct groups together goal, worked toward a common rather than merely parallel following plans built around the central figures . . . we do not find reason to view the two plots part single as of a unified County prosecutor presented both testimony witness and other evidence of the larger conspiracy by introducing evidence of different drug transactions, different casts of characters, different methods of operation, and use of diverse locations within the state to purposes advance different (drug purchases, processing, and sales) conspiracy.21 20“Separate conspiracy may chains of emanate from the same leader ship”; separateness thus can be demonstrated different wholesalers linking the Reiter, supra distribution heads to the retailers at the bottom. at 341. significant police One court even found it that the officials involved in exposing conspiracies differed, the two Henry, supra United States v presented present Muskegon police which is the situation case. Muskegon conspiracy County discovered the local while Oakland ulti- mately larger uncovered the statewide 21Among indicating other evidence of overt acts that the nature and scope larger encompassed of the Oakland was much than that by case, Maza, (CA 11, the first 1993), United States v 983 F2d testimony by Perry was kept both Gardner and Jeremiah that Banks money parents’ many and cocaine for Franklin at his house in Detroit on present occasions. Both testified that Banks had been more than once processed place Park, when cocaine was at Terrence Moore’s in Oak and Perry processed said Franklin had cocaine at Banks’ home. Miss Louise stayed place spent testified that Banks at her all the time and hours on phone running up phone paid the to Detroit enormous bills that he for. Mich by Boyle, J. was by Banks he that

Further, contention was termi- operation that Muskegon involved he for which Muskegon his in and with arrest nated prosecu- is refuted the already punished been has testimony preliminary at the proof and tion’s offer trial after the that, in the Oakland examination Banks con- Muskegon arrest, December request that accomplice Gardner with a tacted Ronald that he say police, further to anything not Gardner attorney that his hire the same lawyer, fire should Ricky would that Franklin retained, had and Banks lawyer’s pay for services.22 and indicia of facilitation continuing Other Banks’ in Peterson’s tes- larger involvement Muskegon Banks not to timony that told him tell the belonged him, promising that to drugs authorities put if as he he would asked, that he did Peterson con- incarcerated, in his While Banks money account. larger pay phone calls incurred tinued Tone went conspiracy. Miss testified that after Louise drugs, Although not see she did she testified that she did Banks with Franklin, money, and Banks had her to handled the admit that introduced Peterson, regular Wilson, basis. with Franklin on a contact they cumulatively large Perry Banks and testified to a all said worked for They trips Muskegon with Banks to sell also testi- number of cocaine. knowing both in there were runners Detroit and fied to other Winn, Dwayne coconspirator, drugs for another testified who sold Banks. drugs he, too, had made that Banks had recruited him to sell Parenthetically, testimony trips with sell cocaine. Banks to regarding November of cocaine incidents October and when bricks circumstantially up” Moore’s home Oak Park were “rocked Terrence conspiracies allegation Muskegon and that the refutes the same. one and objection by ground court an defendant on The trial sustained conspiracy, related which had “ended” that the evidence to the Gardner Banks’ arrest. with 457 Boyle, J. jail July, helped his in Banks following 1990, to arrest phone pay long off Tone’s distance bills.23 [participation in ‘old’ after an] “[F]urther being charged with that crime becomes a new offense for purposes jeopardy States v of a double claim.” [United Dunn, Stricklin, 604, (CA 5, quoting 1985), F2d supra n at 2.] Wilson,

In to Amir who from that appears contrast all runner, testimony was a in the Oakland case indi- cated Banks was involved in that numerous overt acts for he was which never in in Muskegon. totality-of-circumstances

The factor fifth analysis is location. The Muskegon started and Detroit ended in with an arrest for delivery fifty over attempted grams of of cocaine. The location in Oakland County Park, was Southfield and Oak in Wayne Detroit County, Muskegon Heights Muskegon and County. testimony There was also that Franklin obtained his many drugs from sources that overt acts during the Franklin agreement involved sales in drug Grand Rapids, Harbor, Kalamazoo, Benton and out of state in Minnesota, Pittsburgh, Indiana, Lima, Ohio, and that Franklin had traveled to Chicago and other drugs.24 Ohio locations to sell County witness, Bernard, jail An Oakland Andrew who had been in August 1990, with Banks in also testified that Banks told him that he was jail selling drugs prosecutors trying and that trick him into “brother,” Ricky getting Franklin, Muskegon, circumstantially his thus agreement indicating continuing Banks’ with Franklin and efforts to facili operation larger conspiracy tate the Franklin and the even while incarcer Muskegon. ated in Contrary opinion the assertion made lead that one wit state, marketing drugs ante at ness about the testified outside the 454 Mich

Opinion by Boyle, agreements have not found federal circuits The communities closely geographical related even within In single of a evidence compelling are occurred in conspiracies Futch, supra the two Georgia. District of in the Southern six counties place counties as the named different conspiracies The court found occurred. conspiracies where the were dissimi- operations that this factor indicated that the con- credence to the conclusion lar, lending The Second Circuit noted spiracies separate. certainly metropolitan area was the New York that two simultaneous narcotics to harbor large enough Mallah, United States v 971, 503 F2d conspiracies. Similarly metropolitan in areas (CA 2, 1974).25 Louis, Atlanta, as St. Pittsburgh, greater such Inmon, 352, F2d United States Circuit, Third Circuit, Dortch, supra at 3, 1979), Seventh (CA supra Henry, United States v Circuit, and Fifth also stated that it was 4, respectively, n have conspiracy than scheme or possible for more one metropolitan area. drugs distribute in one exist conspira- of both locations Although geographic over- Detroit-Muskegon instant case have a cies in the conspiracy indicates lap, the breadth of the Oakland conspiracies. two distinct geographical about the extensive witness Ronald Gardner also testified scope of the Macchia, supra (finding also United States v at 671 the New See conspira Jersey metropolitan large enough to harbor two

York-New area Papa, States v dealing bootleg gasoline) F2d and United cies in overlap geographic (CA 2, 1976) (finding where that there is no 819-820 Long in Island and several locations occurred one narcotics Astoria, Queens, Bronx, and another loca other occurred in and the Bronx). tion in the Opinion by Boyle, J. summary, proper In review under federal stan- dards relevant to a double claim regarding conspiracies supports position successive separate conspiracies. there were two and distinct dissimilarity persons, places opera- and modes of repetitive pattern tion does not show an unbroken or represent seeming . . . similarities [and] [m]ost separate conspir- those factors which would be common to [Futch, supra acies carried out in a similar manner. at 391.] major Banks was a player the Oakland pursue who continued to objectives its criminal even after his arrest.

Assuming that the defendant’s conviction for the was not the same offense as the agreement in Muskegon, under the test, federal question is, parties as the recognize, whether People v White, supra, bars the second of Banks Michigan interpretation under the of double jeopardy protection in the context of prosecutions. successive

PEOPLE v WHITE Before this scope Court defined the protec- of tion of double consistent with federal law. People v Grimmett, 590; 388 Mich 202 NW2d 278 (1972). Grimmett was overruled and the “same trans- in People v adopted action” test was White, supra at came, despite 258. That decision rejection this Court’s of the test in Grimmett,26 difficulty which noted the 26 multiple prosecu The Court noted the defendant’s contention that prohibited arising tions should be when out of the same factual situation. multiple prosecutions prejudicial In some cases are to a defendant and in 460 421 454 Mich by Boyle, J. applica- mandatory requiring rule a imposing

of jeop- in all double test27 transaction” the “same tion of ardy cases. Id. requires gov- approach transaction”

The “same a against charges all the at one trial join ernment time a continuous out of grow defendant and goal. intent display single a and sequence 783 (1986). NW2d 392, 401; Mich Sturgis, v “ jus- of best interests ‘promote the is said to The test Id. at ...” administration’. judicial and sound tice crimes commit- example, 402. In White itself, for were all assault, rape, and kidnapping, felonious ted, in a con- committed episode criminal single of a part a intent displaying single sequence and tinuous time fac- holding to similar limited its and The Court goal. con- willingness to and indicated its situations tual to the test. exceptions of limited adoption sider the White, the dif- the decision years of Within three Grimmett had the test observed ficulty applying to the least pleading guilty practice a produced transac- single out of growing of offenses serious the more serious preclusion of seeking tion and Dis- Crampton v 54-A cases, In a series of charges. bypass to supra granted Court Judge, trict at revisit White. mandatory may that a The Court concluded some cases aid a defendant. problem suggested that this an unwise solution to this rule would be Legislature

type properly not this Court. a decision for of rule is Grimmett, supra at 607. concurring Brennan in his Justice William This test was advocated Swenson, 1189; 436, 448; opinion Ct 25 L Ed 2d 469 in Ashe v US 90 S consistently rejected numerous occasions (1970). on It has been despite Supreme to the con Brennan’s efforts Court Justice United States States, 773, 790; Ohio, supra, trary. Garrett v United 471 US See Brown v Felix, supra (1985), United States S Ct 85 L Ed 2d Dixon, supra 711. and United States at People v Wilson Boyle, majority developed two-part exception a to the on whether test based crimes same-transaction were intent or no-intent crimes: involved required in (1) Where criminal intent the offenses involved, applies: the criterion set forth in White “continu- sequence display single goal.” intent and ous time and [of] (2) Where one or more of the offenses does not involve intent, criminal the criterion is whether the offenses are part episode, of the same criminal and whether the offenses prevent involve laws intended to the same or similar harm substantially very evil, different, not a or a different or kind of, harm or evil. at [Id. 501-502.] Cram/pton major- the rationale of the Thus, applying ity conspiracies the instant instant case, do not sequence display involve both a continuous time of a intent and Id. at 502. White is there- single goal. inapplicable fore and the Oakland was not barred. inapplicable, that White Justice Levin

Agreeing concurred, adopted but a different rationale for the emphasized which result, also the limits of the same- potential transaction test and the for anomalous Crampton, supra carefully pre- results. at 511. While myriad serving situations not covered delineated, of offenses he id. groups Justice Levin stated: being pig

Jones’ arrest for a blind was but the occasion discovering possession marijuana; his heroin it appear acquired not does Jones the heroin or mari- juana pig. in the blind no substantial There is connection criminality between where offenses factor connect- ing one offense with the other is that one was discovered in consequence apprehension other; sepa- for the each is a rate transaction. Mich 421 J. Boyle, majority perspective either the or the of

Thus, from Crampton, is, that the two crimes in that concurrence sequence time or com- involve a continuous did not conspiracy was discov- the second intent, mon or that consequence first, the the ered in conspiracies transaction. are not the same IV DUE DILIGENCE Assuming was a conspiracy, or included offense of the Oakland lesser applies, White that the same-transaction test of exception permits prosecution diligence due County. Jeop- Aaron Banks in Oakland “The Double ardy preclude bringing in a Clause does not second might brought charge in which have been action only precludes Rather, the first action. it those which brought in first or be forever lost. must have been provides exception diligence due doctrine an gov- Thus, follows, it that if the this latter situation. brought charges all of its ernment need not have nothing diligent it to be action, the first there was (CA Maza, about.” United States v 983 F2d 1004, (emphasis original). Because the Oak- 11, 1993) land was not discovered until after the diligence permits Banks, arrest of Wilson and due prosecution of Banks for the Franklin diligent good a faith state had made [W]here protect rights . .

effort to the defendant’s constitutional . example, completed where a is not or not dis- crime “[f]or covered, despite part police, diligence until on the after the commencement of a for other crimes exception arising transaction, from the same an to the permit separate ‘same transaction’ rule should be made to prosecution.” Swenson, 436, 453, 7;n 90 S Ct Ashe v 397 US

Opinion by Boyle, (1970) (Brennan, J., L concurring). Ed 2d 469 supra [White, 258, n at 6.] exception prohibition Due is an to the diligence against double under both state and federal exception applicable law. The to the federal multi- ple prosecution strand of double jeopardy, Brown v Ohio, supra at to Justice Brennan’s same-trans- Swenson, supra Ashe v test, action at and to Michigan’s same-transaction test as formulated in People White, supra n 6.

The federal courts have had occasion to discuss due in several diligence cases. “Due diligence means ordinary, extraordinary, rather than diligence, and it is within the discretion of the trial judge to determine diligence required the under the circumstance.” United States v Walker, Supp 546 F (D Hawaii, 1982) (citations omitted). Diligence ques is a fact, tion of and of fact findings the trial court will erroneous. United States v clearly be sustained unless Stearns, F2d In (CA 9, 1983). the instant case, facts concerning greater conspiracy became known after the first trial begun. had example, For in although Muskegon Ronald Gardner Ricky identified Franklin as the source of the drugs, he did not involve Terrence Moore or admit to his presence when Moore “cooked rocks” in Oak Park. identify Gardner did not for the Muskegon authorities players the other and locations he later testified about in Oakland, nor did he make clear Banks’ Anthony extensive involvement with Johnson. Most importantly, because and both Peterson Gardner min imized involvement, their there was no indication at any County any time that Oakland had relationship to spot runs to and no indication of the 454 Mich 421 Opinion by Boyle, J. with the eche- cooperation higher of Banks prolonged County The Oakland lons of the Oakland Jury precipitated by the dis- investigation Grand covery July 5, 1990, on behind the Hi-Lo of cocaine subsequent Auto Parts store in Southfield and the investigation arrest of codefendant Gerald Hill. The occurred after the conviction of defendants Wilson accomplices and Banks and witness Peterson and Gardner, early June, August, 1990. It was not until Quisenberry an that Officer County prosecutor County met with the Muskegon prosecutor exchange information about names that had surfaced in connection with the recent Oakland County investigation. It was not until after this date that Gardner and their Peterson revealed more exten- allegedly sive roles decided to cooperate fully.

Further, majority while the pros- states that both ecutions were same sovereign conducted it jurisdiction does not tell us what authorities, two hundred away, miles would have had suspected Wayne investigate drug activities County they or that aware of even an Oakland County connection, given that all those arrested were from Detroit. It does appear not that the Muskegon authorities had a correct address for Franklin to enter system, they into the LEIN nor did have evidence any of overt linking County.28 act Franklin to Oakland Although Muskegon the authorities knew that the Muskegon trial, At the Franklin Gardner testified that lived in Dear- Telegraph; however, at Warren born and Franklin had moved in December phone to Southfield and had his number installed under the alias of Stephen pains activities, buying drugs Griffin. Franklin took to hide all his processing Detroit, selling and them in but them in not Detroit. He moved processing operation County and, his to different locations in Oakland Wilson Opinion by Boyle, J. projects

Muskegon Heights housing being they scope did not know the true drugs flooded with County until after Oakland larger in investigation July 1990, past started its well trial date. Muskegon

In short, Muskegon authorities did not have suf- prove that, ficient information to from charge conspired 1988 to Franklin and others “the County possess to to deliver of Oakland” with intent grams. suggest excess of 650 There is nothing that had reliable information about the Muskegon scope beyond Franklin’s activities the mere state- Wilson, Gardner, Thus, ments of and Peterson. even if knowledge it were correct to assume that the of the imputed authorities could be “to the Oak- Muskegon County authorities,” land ante at 438, the knowledge authorities would have had no of an Oak- land connection.29 operation when his base of at Miss Louise’s house was

threatened, quickly moved to another location. Franklin, many coconspirators, as well as had street names and Tiger, other aliases. Franklin’s street name was and he had used the name stopped by police of Kevin Moore on an occasion when he was Detroit purchase a traffic Franklin also violation. tried to Gardner’s driver’s identity. $1500 license for use as this another Just before the Oakland County trial, investigators had learned that Franklin had a driver’s license Tony Young in the name of and had used that name to rent warehouse space. Additionally, transport all the rental cars that were used drugs by Franklin, or scout new locations were not rented but Jodel Moore, Perry, others, although Tony Young Eulia Mae the alias put sometimes on the an contract as additional driver. assertion, any precedential support, This made without is the most majority completely remarkable statement and one which would inquiry regarding Legislature obviate the whether the intended cumulative punishment, States, 333; 1137; Albernaz v United 450 US 101 S Ct 67 L Ed (1981), holding Crampton, supra. 2d 275 and the Contrary majority’s position, Florida, to the ante at Waller v 387, 392; (1970), provide US L 90 S Ct 25 Ed 2d 435 does not knowledge investigation by county obtained in an in one authorities 454 Mich Opinion by Boyle, J. authori- By date, Muskegon 1990 trial the June about Louise, knew about Miss knew something ties spare had that cars, knowledge the use of rental some they transport drugs, thought tires used to in In of light knew that Rick Franklin lived Dearborn. constitutional to a charged rights defendants statutory requirement, MCL speedy trial30 and the within 780.131; 28.969(1),31 brought MSA to be to trial days warrant, indictment, of the issuance of a or information, proceeded authorities to. trial Wilson and Banks on the basis of the against evidence available to them at the time. admissible conclusory than Other statement that Gardner fully and Peterson were willing investiga- aid the tion, by testimony an assertion their trial in belied Muskegon, majority does not how the suggest imputed county. may to those in another Waller holds that a defendant not by municipality government be tried both a and the state for the same offense. Id. at 395. VI, Const, 1, § US Am and Const art 20. 780.131(1); 28.969(1)(1) provides part: 31 MCL MSA department Whenever the of corrections receives notice any pending warrant, indictment, is

there mation, this state untried infor- complaint any setting against or forth inmate of a correc- facility prison tional of this state a criminal offense for which might imposed upon conviction, sentence be the inmate shall be brought days department to trial within 180 after the of corrections prosecuting attorney county causes to be delivered to the of the warrant, indictment, information, complaint pend- which the or ing place imprisonment written notice of the of the inmate and a request disposition warrant, indictment, for final of the informa- tion, by complaint. request accompanied or shall be a state- setting pris- ment forth the term of commitment under which the held, already being served, remaining oner is the time the time sentence, good disciplinary be served on the the amount of time or earned, parole eligibility prisoner, credits the time of parole relating prisoner. decisions of the board to the The written notice and statement be mail. shall delivered certified People v Wilson Boyle, proceeded have develop authorities should an Oak- case, land or how Banks’ and rights Wilson’s could have been accommodated while the authorities inves- tigated Franklin. The knowledge imputed authorities cannot be to the Oakland authori- they ties had activity because no knowledge Oakland. Tolliver,

United States v 61 F3d 1211 (CA 5, 1995), applicable present to the In Tolliver, case. the court considered fact the government might suspected have that defendant Elwood was part of the larger conspiracy, but it was not until later that evidence demonstrating his considerable involve- ment came to light.32 Therefore, appeared on “[w]hat the surface to be a discrete drug transaction —based on reasonably the facts available to the government at the part time —turned out to be of a much larger conspiracy Elwood, whose appeared initial role [and] small, major turned out to be a character in the over- all scheme.”33

The same situation is true here. Banks’ role as a major player in the larger conspiracy, and the man responsible keeping crack in his house before 32 1211, 37, emphasized In Tolliver government n the court that if the suspects larger conspiracy, a defendant is involved in a it would be well advised to indict him first on the substantive offense and wait to indict fully developed. Supreme later on the broad when the facts are supra holdings readily support Felioc, Court this instruction. See at 391 (the pur substantive crime and are not the same offense for States, supra (separate poses jeopardy); Garrett v United of double n 27 punishments predicate continuing are allowed for a offense and a criminal enterprise offense). 33 Masa, supra conspiracy cases, gov See also at 1014. In two other acts, scope ernment obtained evidence of other the nature and of which previous prosecution. were more extensive than those from the Addition ally, gave testimony indicating codefendants that Maza was involved in a larger conspiracy pleaded. than the one he had Mich Boylb, bringing selling transport and for locations to the money, until the not discovered was “home” the fully government accomplice informed the witnesses own and others’ the extent of their the first trial after conspiracy, larger Oak- the use of involvement identity County wit- of other locations, and land subsequently located and testified. who were nesses, supra v in United States at 1211. As Tolliver, See 1993), (CA Lacey, WL 1292 F2d opinion per aff’g unpublished v United States curiam 1992), Lacey, Supp (ED the due dili- Mich, F782 employed appropriately exception gence because relating . . . con- to the “a review of the facts brief complicated spiracy just shows how significant amount of effort was as well as the conspir- required by unraveling government in acy.”Id. at **8. Appeals of the Court of

I would affirm the decision regard Banks and reverse to defendant Aaron with the conviction of Amir Wilson. Boyle,

Riley, J., concurred with part JJ., took no the decision Weaver Kelly, of these cases.

Case Details

Case Name: People v. Wilson

Court Name: Michigan Supreme Court

Date Published: May 28, 1997

Citation: 563 N.W.2d 44

Docket Number: Docket Nos. 101870, 102007, Calendar Nos. 3, 4

Court Abbreviation: Mich.