State v. CampsState v. Camps
The defendant, Manuel D.J. Camps, and a codefendant, David R. Green, were charged by bill of information with the crime of possession of more than 400 grams of a Schedule II(A)(4) controlled dangerous substance, i.e., cocaine, in violation of
FACTUAL AND PROCEDURAL BACKGROUND
The two convictions are the result of an undercover drug investigation involving law enforcement authorities of both the State of Louisiana and the United States. In April of 1984 undercover FBI agents negotiated the purchase of 2 kilograms of cocaine from Green for $80,000.00. Green had indicated he was interested in selling one kilogram of cocaine each week during the racing season at Louisiana Downs, and agents produced $250,000.00 in “show money.”
On the afternoon of April 13, Green met defendant Camps at a New Orleans airport and both men flew back to Shreveport on the same day. At 5:00 p.m. on that day Green contacted the undercover agent and indicated that he and his partner, defendant Camps, were ready to consummate the deal. A meeting was set up at the Sheraton Inn in Bossier City.
The undercover agents met Green and Camps in Room 104 of the Sheraton Inn. After a short conversation, Camps asked Agent Cleveland to “check on the stuff.” Camps and Agent Cleveland then proceeded to Room 116 while Green and Agent McGee waited outside the room by the pool. Agent Cleveland was wired with a transmitting device and federal, state, and local law enforcement authorities waited in an office behind the front desk of the Sheraton Inn listening to the transaction.
Once inside Room 116, Agent Cleveland observed Camps walk to the back of the room and remove a blue shaving kit from a clothes bag hanging in a closet. Camps opened the shaving kit and pulled out a white, powdery substance wrapped in newspaper and plastic. Agent Cleveland took a sample from the packet for testing purposes. At that time law enforcement officers began approaching Room 116 and upon hearing noise outside, Camps looked outside the window while Agent Cleveland opened the door of the room to allow the arresting officers inside. Camps was placed under arrest and a package of cocaine lying on the bed was seized. A subsequent search of the room revealed another package of cocaine concealed in a trash can.
Camps and Green were both indicted by a grand jury of the United States District Court for the Western District of Louisiana” and charged with one count of conspiracy to possess cocaine with the intent to distribute, eight counts of unlawful use of communication facilities, and one count of attempted distribution of cocaine. Defendant Camps entered into a plea bargain with the United States which obligated him to render substantial assistance to the federal government in their undercover drug operations. In return, the federal prosecutor agreed to recommend to the state court (1) that defendant Camps receive no greater sentence in state court than he receives in federal court; (2) that any state sentence run concurrently with any federal sentence imposed; and (3) that any state sentence be served in a federal penal institution.
Defendant Camps then filed a motion to quash in the state district court alleging that his continued prosecution in state court violated principles of due process and fundamental fairness and exposed him to excessive punishment in violation of
Defendant subsequently entered into a plea bargain with the state. There were five “inducements” to the entry of Camps’ plea of guilty, agreed to by the defendant and the state. First, Camps was allowed to enter a plea of guilty to the lesser offense of possession of between 200 and 400 grams of cocaine in violation of
On August 14, 1984, defendant Camps was sentenced in United States District Court to five years imprisonment on the conspiracy count, imposition of sentence on the remaining counts was suspended, and Camps was placed on five years supervised probation to follow completion of the five year term of imprisonment.
Pursuant to Camps’ plea bargain with the federal government, an Assistant U.S. Attorney reported to the state district court that defendant had “technically” complied with their agreement in cooperating and rendering substantial assistance to the United States. Due to defendant Camps’ compliance with his plea bargain with the federal government, the Assistant U.S. Attorney recommended to the court that defendant Camps receive no greater sentence in the presently pending state prosecution than he received in the federal prosecution, that the sentence, if any is imposed, run concurrently with the federal sentence imposed, and that any state sentence imposing a term of imprisonment be served in a federal penal institution. Defendant was subsequently sentenced by the district court to serve ten years at hard labor, the sentence to run consecutively to the sentence imposed by the federal court.
ASSIGNMENT OF ERROR NO. 1—MOTION TO QUASH
By this assignment of error Camps complains of the denial of his motion to quash filed after Camps had pled guilty to all ten counts of the federal indictment which exposed Camps to a maximum possible penalty in federal court of 62 years imprisonment or a fine of $290,000.00 or both. It is argued that in this factual context and sequence, Camps’ continued prosecution and subsequent punishment by the state of Louisiana for the same drug transaction giving rise to the federal indictment violated due process and fundamental fairness and exposed him to the imposition of excessive punishment prohibited by
Defendant concedes that both the United States Supreme Court and the Louisiana Supreme Court have squarely held that successive federal and state prosecutions do not violate the federal or state constitutional prohibitions against double jeopardy. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); State v. Smith, 359 So.2d 160 (La.1978); State v. LeCompte, 441 So.2d 249 (La.App. 4th Cir. 1983), writ denied 446 So.2d 314 (La.1984). Defendant argues, however, that the motion to quash is not “necessarily” grounded upon the prohibition against double jeopardy and that it is not necessary to overrule the jurisprudence. It is argued that successive state and federal prosecutions can and should be barred as a matter of policy, statutory interpretation, and state constitutional law, separate and distinct from the double jeopardy bar. Defendant urges the approach and result of the Supreme Court of Pennsylvania in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) which held that in Pennsylvania a second prosecution and imposition of punishment for the same offense will not be permitted unless it appears from the record that the interest of the state and the jurisdiction which initially prosecuted and imposed punishment are substantially different. The court in Mills reached its conclusion without relying on double jeopardy and, indeed, without resting the decision on any state constitutional or statutory provision. It is clear, however, that the Pennsylvania court disagreed with and took issue with the authoritative cases holding that double jeopardy does not bar successive federal and state prosecutions, finding that these
Defendant also notes that several state courts have held that the double jeopardy provision of the state constitution bars successive federal and state prosecutions. Other states regulate the matter by statute. See Annot., 6 A.L.R. 4th 802 (1981). Defendant further points out that although double jeopardy does not bar federal prosecution following state prosecution, under the “Petite” policy adopted by the United States Department of Justice, a federal trial following a state prosecution is barred absent compelling reasons. For an explanation of the “Petite” policy, see Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977). It is urged that this court should mandate such a policy for the State of Louisiana.
The prohibition against double jeopardy contained in both the United States and Louisiana constitutions is essentially a specific rule of due process and fundamental fairness. The federal constitutional prohibition against double jeopardy is applicable to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1979). The arguments presented by defendant in this case have implicitly and inherently been rejected by the decisions of the United States and Louisiana supreme courts holding that the prohibition against double jeopardy does not bar successive prosecutions by the federal government and by the state government. To accept defendant‘s arguments would be to, in effect, overrule the controlling jurisprudence. It would be inappropriate for this intermediate appellate court to abandon or depart from such a firmly established rule of law clearly enunciated by the United States and Louisiana supreme courts, and codified by the state legislature in
Defendant also argues that the motion to quash should have been granted because defendant was exposed to excessive punishment in violation of
This argument is without merit. First, the mandatory minimum sentence provided by
Assignment of error number one is without merit.
ASSIGNMENT OF ERROR NUMBER 2—EXCESSIVE SENTENCE
By this assignment of error the defendant contends that his sentence to ten years imprisonment at hard labor without benefit of suspension of sentence, probation, or parole to be served consecutively with his five year federal sentence is constitutionally excessive in violation of
Defendant‘s principal argument is that the state sentence should have been made to run concurrently with the federal sentence under the established rule that ordinarily, concurrent rather than consecutive sentences should be imposed on a first felony offender where the convictions arise out of the same course of conduct within a relatively short period of time and in the absence of showing that the public safety requires a longer sentence.
Under
The most serious issue presented by this sentence review is whether the imposition of a consecutive sentence rather than a concurrent sentence was justified by articulated, substantial reasons.
Because the function of the consecutive sentence should be similar to the sentence imposed on habitual or dangerous offenders, sentences for crimes arising from a single course of conduct should be concurrent rather than consecutive, absent a showing that the offender poses an unusual risk to the safety of the public. See State v. Franks, 373 So.2d 1307 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). Cf.
La.C.Cr.P. art. 883 . We cannot presume that the sentencing judge viewed the defendant as an unusual risk to the safety of the public because he did not so state, although that may, in fact be the case.
The general preference for concurrent sentences rather than consecutive sentences was recognized in State v. Underwood, 353 So.2d 1013 (La.1977) and again in State v. Ortego, 382 So.2d 921 (La.1980) in which the court observed that “based on the American theory and practice, concurrent rather than consecutive sentences are the usual rule, at least for a defendant without previous record and in the absence of a showing that the public safety requires a longer sentence.” Consecutive sentences
In the case of defendant Camps, the federal and state offenses arose out of the same acts or transaction and constituted parts of a common scheme or plan as noted by the trial court. There is no showing that the defendant has a prior felony record. The record does not reflect that the defendant poses an unusual risk to the safety of the public similar to that posed by a habitual or dangerous offender. To the contrary, the trial court specifically found that defendant is a good family man, that this is the defendant‘s first offense, and that it does not appear from anything in the defendant‘s record that he would be likely to commit another offense. The seriousness of the crime, quite correctly emphasized by the trial court, does not alone provide justification for the imposition of a consecutive sentence under the standards established by the Louisiana Supreme Court. In holding that the trial court abused its discretion by ordering the state sentence to run consecutively to the federal sentence and that the sentence is excessive to that extent, we also take into consideration the compliance of the defendant with his agreement to provide federal authorities with substantial assistance as reported by the federal prosecutor, the need for and desirability of cooperation between state and federal officials as was demonstrated by the successful apprehension and prosecution of this defendant, and the need for care and restraint in the pursuit of successive state and federal prosecutions in order to avoid the sometimes harsh consequences which the prohibition against double jeopardy is designed to prevent, even though double jeopardy is not applicable in this case.
DECREE
For the reasons assigned, the conviction of the defendant is affirmed. The sentence is amended to specify that the sentence imposed be served concurrently with the sentence previously imposed by the federal court in accordance with
CONVICTION AFFIRMED; SENTENCE AMENDED; CASE REMANDED.