STATE OF MONTANA, Plaintiff and Appellee, v. BRUCE ANTHONY GLASS, Defendant and Appellant.
No. DA 16-0027.
SUPREME COURT OF THE STATE OF MONTANA
Decided May 30, 2017.
2017 MT 128 | 387 Mont. 471 | 395 P.3d 469
Submitted on Briefs March 29, 2017.
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena; William Fulbright, Ravalli County Attorney, Thorin Geist, Deputy County Attorney, Hamilton.
JUSTICE SHEA delivered the Opinion of the Court.
¶1 Defendant Bruce Anthony Glass appeals the July 30, 2015 opinion and order by the Twenty-First Judicial District Court, Ravalli County, denying his Motion to Dismiss Due to Double Jeopardy Violation and
Whether the District Court erred by ruling that Glass‘s federal conviction for conspiracy to distribute methamphetamine did not bar a subsequent state prosecution for possession of dangerous drugs on double jeopardy grounds.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In February 2014, Glass received a package through the U.S. Postal Service from Miguel Sarabia in California. The package contained over eight pounds of methamphetamine. Glass paid for the methamphetamine by depositing $80,000 into a Wells Fargo bank account. Glass distributed most of the methamphetamine to his contacts, and kept about eight ounces for himself. In May 2014, Glass met Sarabia in California, where he paid $10,000 for sixteen ounces of methamphetamine. Glass distributed fourteen ounces to a contact, and kept two ounces for himself.
¶4 The Ravalli County Police Department received information from confidential sources that Glass was bringing methamphetamine into the county from out-of-state, and that Glass and another individual were preparing to drive between California and Montana. On June 11, 2014, Ravalli County Deputy Sheriff Gordy Jessop stopped a Toyota Sequoia pulling a trailer with nonfunctioning lights near Stevensville, Montana. Glass was driving the car. Pursuant to a subsequently issued search warrant for the vehicle, officers seized fourteen marijuana roaches from the ashtray, a sunglasses case, and three firearms and ammunition, as well as other items associated with the distribution of drugs. The sunglasses case contained a bag of unidentified pills, as well as a pipe, spoon, and syringes, all with residue that tested positive for methamphetamine.
¶5 On June 23, 2014, the State arrested Glass and subsequently charged him by Amended Information with one count of felony criminal distribution of dangerous drugs (methamphetamine), in violation of
¶6 On October 2, 2014, the federal government charged Glass by
¶7 On June 10, 2015, Glass moved to dismiss the State‘s charges, arguing that the State prosecution violated Montana‘s double jeopardy prohibition. See
¶8 On September 14, 2015, the State charged Glass by Second Amended Information with possession of methamphetamine, possession of marijuana, possession of paraphernalia, and a new count of felony possession of a cathinone analogue, commonly known as bath salts, in violation of
STANDARD OF REVIEW
¶9 A district court‘s denial of a defendant‘s motion to dismiss a
DISCUSSION
¶10 Whether the District Court erred by ruling that Glass‘s federal conviction for conspiracy to distribute methamphetamine did not bar a subsequent state prosecution for possession of dangerous drugs on double jeopardy grounds.
¶11 Montana‘s double jeopardy statute bars a State prosecution if that prosecution is based on an offense arising out of the same transaction as a federal conviction or acquittal.
(1) a defendant‘s conduct constitutes an offense within the jurisdiction of the court where the first prosecution occurred and within the jurisdiction of the court where the subsequent prosecution is pursued;
(2) the first prosecution resulted in an acquittal or a conviction; and
(3) the subsequent prosecution is based on an offense arising out of the same transaction [as that term is defined in
§ 46-1-202(23), MCA ].
Cech, ¶ 13 (citing State v. Tadewaldt, 277 Mont. 261, 264, 922 P.2d 463, 465 (1996)). Each factor must be met to warrant dismissal of the charge. Cech, ¶ 13 (citing State v. Gazda, 2003 MT 350, ¶ 12, 318 Mont. 516, 82 P.3d 20).
¶12 There is no dispute in this case that the first two factors are satisfied. The dispositive question is whether or not the State charge of possession of dangerous drugs is “an offense arising out of the same transaction” as Glass‘s federal conviction for conspiracy to distribute dangerous drugs. “Offenses arise from the same transaction when ‘a defendant‘s underlying conduct of each prosecution is motivated by a purpose to accomplish the same criminal objective.’ ” Cech, ¶ 19 (quoting Gazda, ¶ 20). Whether two offenses arise from the same transaction or involve the same criminal objective does not depend on the elements of the charged offenses, but rather on the defendant‘s
¶13 Glass argues his criminal objective was to import methamphetamine from California to distribute in Montana, and to accomplish that criminal objective, he had to necessarily possess the methamphetamine before he could distribute it. Therefore, Glass contends his act of possessing methamphetamine and distributing methamphetamine is part of the same transaction for which he was convicted in federal court. Glass argues that his personal use of methamphetamine is not, in and of itself, a criminal act for which he can be prosecuted. See
¶14 The State argues its prosecution for criminal possession of dangerous drugs is based on Glass‘s personal use of methamphetamine and does not arise out of the same transaction as his federal conviction for conspiracy to distribute dangerous drugs. The State contends that the possession of the methamphetamine residue in the pipe was a separate event that involved different methamphetamine than the methamphetamine he possessed and distributed for which he was convicted in federal court. The State also contends Glass‘s possession of the methamphetamine in the pipe was not motivated by the same criminal objective as his possession of the methamphetamine to distribute because he possessed methamphetamine in his pipe for the purpose of inhaling it to get high and he possessed other methamphetamine as part of the conspiracy to distribute dangerous drugs for profit.
¶15 The State maintains that although Glass is correct that the offense of possession of a dangerous drug does not require the State to prove the drug was used, that does not mean the intent to inhale or ingest a dangerous drug is not a criminal objective distinct from the intent to distribute it. See
¶16 Although Glass argues his only criminal objective was to import methamphetamine from California for distribution in Montana, the record supports the conclusion that Glass had two distinct criminal objectives for possessing methamphetamine: (1) distributing the bulk of the methamphetamine he imported in violation of
¶17 Glass obviously could not distribute the methamphetamine he retained for his own personal use. Therefore, if Glass‘s only criminal objective was to import and distribute methamphetamine for profit, as he contends, the methamphetamine he used actually ran contrary to his criminal objective of distribution. Thus, Glass‘s possession of methamphetamine for his personal use, as evidenced by the residue in his pipe, is a distinct and separate prosecutable offense pursuant to
CONCLUSION
¶18 “Don‘t get high on your own supply”2 is a long-established rule of
JUSTICES RICE, SANDEFUR, MCKINNON and BAKER concur.
JUSTICE SHEA