Lead Opinion
In 1998-1999, defendant-appellant Charles Goff, Jr., pled guilty to conspiracy to distribute and to possess with intent to distribute (“PWID”) cocaine and was sentenced. In October 2004, a federal grand jury issued an indictment against others that did not charge Goff but merely listed
Goff disclaims any intent to appeal the order denying his motion to dismiss due to the prosecution’s alleged abuse of the grand jury process (“the grand jury abuse motion”); he states that he is appealing only the double jeopardy ruling. On that issue, Goff renews his argument that the instant indictment violated his Fifth Amendment right not to be placed twice in jeopardy for the same offense because it sought to try him again for the same conspiracy to which he pled guilty in the 1998 case. The government responds that (1) any double jeopardy defect was mooted by the return of the second superseding indictment, and (2) the conspiracy charged in the instant indictment is sufficiently different from the previous case’s conspiracy to avoid a double jeopardy violation.
Contrary to Goffs disclaimer, his briefs do challenge the district court’s conclusion that the prosecution did not abuse the grand jury process. The government contends that (1) the order denying Goffs grand jury abuse motion is interlocutory, and (2) in any event, the district court did not abuse its discretion in concluding that the prosecution did not abuse the grand jury process.
For the reasons that follow, we affirm. The order denying Goffs double jeopardy motion is interlocutory but qualifies for the collateral order exception to the final judgment rule of 28 U.S.C. § 1291. On the merits, the district court did not clearly err in finding that the conspiracy charged in the instant indictment is not the same as the conspiracy to which Goff pled in the previous case. As to the order denying Goffs grand jury abuse motion, it does not qualify for the collateral order exception, so we lack jurisdiction to review it.
I.
Title 18 U.S.C. § 3281 gave the district court original jurisdiction, exclusive of state courts, “of all [prosecutions for alleged] offenses against the laws of the United States.”
As for our jurisdiction, 28 U.S.C. § 1291 gives “[t]he courts of appeals ... jurisdiction of appeals from all final decisions of the district courts of the United States.... ” The denial of a motion to dismiss an indictment on double jeopardy grounds is not final in the sense of terminating all criminal proceedings in the district court. Abney v. United States,
Nonetheless, such an order comes within the “collateral order” exception to § 1291 announced by Cohen v. Beneficial Indus. Loan Corp.,
Generally, we review de novo the denial of a motion to dismiss an indictment on double jeopardy grounds. United States v. DeCarlo,
III.
In October 1996, a grand jury indicted Goff and three others — his father Charles Goff, Sr., Juan Carlos Marin-Avila (“Avila”), and Mario Dejesus Calderon-Valenzuela (“Valenzuela”) — in United States v. Marin-Avila, No. 03-CR-96-097 (S.D.Ohio). Count 1 charged all four defendants with conspiring to distribute and to PWID cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and alleged that Goff accepted delivery of cocaine intended for further delivery. Count 4 charged Goff with knowingly and intentionally attempting to PWID about 39 kg. of cocaine on September 25, 1996, in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A). In September 1998, Goff pled guilty to Count 1 (conspiracy) and the U.S. Attorney dismissed Count 4 (attempted PWID). In March 1999, the district court sentenced Goff to 188 months in prison.
Over five years later, in October 2004, the instant case began with an indictment that did not charge Goff but listed him as a previously convicted coconspirator (“the first indictment”). The first indictment alleged in pertinent part that: Goff was an intended recipient of cocaine seized by the Ohio State Police on September 25, 1996; Goff delivered about ten kilograms of cocaine to defendant Earl Marshall between July 1998 and March 1999; and, Goff bought a Plymouth Prowler vehicle with about $45,000 allegedly obtained through illegal drug trafficking.
About two months later, in December 2004, the government filed a first superseding indictment charging Goff in the first count with conspiracy to distribute and to PWID over 150 kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) between September 27, 1996, and October 12, 2004 (“the instant indictment”). Count 1 also charged Earl and Tracy Marshall, Jeff and Clarence Parker, Todd Anthony Brown, Henry Rayford, Kenyatta Moreland, and Bryant Briggs. It alleged that Goff delivered more than ten kilograms of cocaine to Earl Marshall between July 1998 and March 1999.
Count 2 of the instant indictment charged Goff with conspiring to launder money in violation of 18 U.S.C. § 1956(a)(1)(B)(I). Count 2 is based on the allegation that Goff bought the Plymouth Prowler in December 1998 using the proceeds of illegal drug trafficking. None of the individuals charged in Count 2 had been charged in the Avila case except Goff.
Goff unsuccessfully moved to dismiss the instant indictment on three grounds. First, he contended that Count 1 (conspiracy) violated double jeopardy because it involved the same conspiracy to which he pled guilty in the Avila case. Second, Goff contended that the statute of limitations on both counts had expired because the instant indictment did not allege any overt
Goffs third motion contended that the prosecution misused the grand jury process because the instant indictment contradicted the first indictment in five respects: (1) the first indictment did not charge him with any offense, but the instant indictment charged him with two conspiracies; (2) the first indictment identified Goff as part of an overt act, but the instant indictment failed to specify that overt act; (3) the first indictment identified him as a previously convicted coconspirator, while this indictment did not; (4) the first indictment asserted one conspiracy, while this one alleged two; and (5) the instant indictment listed a different start date for the alleged conspiracy than the first indictment.
The district court denied all three of Goffs motions to dismiss. According to Goff, the instant appeal involves only the double jeopardy issue. Goff has not appealed the statute of limitations ruling and he disclaims any intent to appeal the denial of his grand jury abuse motion.
After the district court denied Goffs motions to dismiss the superseding indictment on February 20, 2006, the government filed a second superseding indictment on February 28, 2006. The second superseding indictment is not directly at issue in this appeal. Because Goff and others are scheduled for trial on the second superseding indictment, we granted the government’s motion for expedited briefing and decision on March 23, 2006.
IV.
Goff contends that Count 1 of the instant indictment involves the same conspiracy to which he pled guilty in Avila and, therefore, the current prosecution violates the double jeopardy clause.
Specifically, Goff complains that the grand jury made three “factual U-turns” from the time of the first indictment to the time of the superseding indictment, without hearing any additional testimony, because it: (1) went from finding that Goff was an already convicted coconspirator to making him a defendant; (2) went from finding that the conspiracy began in 1992 to finding that it began only a couple days after the September 1996 drug stop; and (3) went from finding that that drug stop was part of the charged conspiracy to finding that it was in a different conspiracy.
The government contends that “[a]ny allegation by Goff of grand-jury abuse related to the Superseding Indictment that was returned in 2004 has been effectively mooted by the return of the Second Superseding Indictment earlier this year.” Goff responds that “[t]he same issues will likely arise on a review of the [second superseding indictment] as in the [first superseding indictment].” Neither the government nor Goff cites any authority for their respective positions.
It appears that this court has never squarely addressed whether the return of a superseding indictment moots a defendant’s double jeopardy challenge to the original indictment. A district court in our circuit recently held that it does. United, States v. Fisher, No. 05-50023,
Indeed, just as an amended complaint supplants the original complaint and becomes the only live complaint in a civil case, Parks v. Federal Express Corp.,
However, this does not necessarily preclude our consideration of Goffs double jeopardy challenge to the first superseding indictment. The second superseding indictment did not materially alter the nature, scope, and duration of the conspiracy charged against Goff. The government itself states that “[o]n February 28, 2006, the grand jury returned a Second Superseding Indictment, which made some minor adjustments to the charges against Goff and added two tax counts against co-defendant Glen Hurst.” Goff does not dispute this characterization of the second superseding indictment and a comparison of the indictments confirms it.
Accordingly, if the conspiracy charged in the first superseding indictment is the same as the conspiracy to which Goff pled guilty in Avila, the second superseding indictment will suffer from the same infirmity. See United States v. Lee,
Therefore, we consider the merits of Goffs claim that the conspiracy count subjects him to double jeopardy. We agree with the district court that it did not.
Our Constitution’s Double Jeopardy Clause provides that “no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ ” United States v. DeCarlo,
“In a conspiracy case it is the agreement which forms the nucleus of the offense.” Id. at 1256. “Therefore, a determination of whether the government can prosecute on more than one conspiracy rests on whether there exists more than one agreement.” Id.
To make this determination, we employ the five-factor totality of the circumstances test set forth in United States v. Jabara,
As to the first factor, the conspiracy to which Goff pled in Avila ran from March 5, 1996, until October 16, 1996 (the date of the Avila indictment), while the instant indictment charges a conspiracy from September 27, 1996, through October 12, 2004 (the date of the instant indictment). There is little overlap between the time frame of the two conspiracies; perhaps more significantly, Goffs involvement in the first conspiracy ended on September 25, 1996, when he was arrested after the attempted delivery of cocaine, i.e., before the instant alleged conspiracy even began.
As to the second factor, there is no overlap whatsoever between the three co-conspirators alleged in Avila and the nine alleged here: the Avila indictment charged Goff with conspiring with his father, Avila, and Valenzuela, while the instant indictment charges Goff with conspiring with Earl and Tracy Marshall, Tico Hill, Jeff and Clarence Parker, Todd Anthony Brown, Kenyatta Moreland, Henry Rayford, and Bryant Briggs. As to the third factor, the Avila indictment charges Goff under the same statutes as the instant indictment, namely 21 U.S.C. §§ 841(a)(1) & (b)(1)(A).
As to the fourth factor, the instant indictment and the Avila indictment seek to punish conduct that is generally of the same nature but is not nearly of the same scope, particularly as to Goffs alleged concrete action in furtherance of the conspiracies. Avila charged a conspiracy involving 39 kilograms of cocaine, while the instant indictment charges a conspiracy that is far larger in terms of the number of members, the quantity of drugs, the commission of money laundering, and the resale of drugs. Namely, the instant indictment charges Goff, et al. with conspiracy to PWID and to distribute over 100 kilograms of cocaine, while the Avila indictment charged that that conspiracy also aimed to launder the proceeds of the conspiracy in order to avoid detection and payment of taxes, while allowing members to enjoy the material benefits of money generated by the conspiracy.
Moreover, Goffs overt acts in Avila included (1) possessing a large sum of cash and the keys to a Chevrolet Tahoe vehicle with a hidden compartment of the type that can be used to hide contraband, and (2) accepting delivery of cocaine on September 25, 1996. The instant indictment, by contrast, alleges that Goff committed the overt act(s) of delivering over ten kilo
The fifth factor, where the conspiracies allegedly took place, was not discussed by the briefs or by the district court. Both the Avila indictment and the instant indictment allege that Goff and his conspirators bought cocaine from outside the Southern District of Ohio and brought it into that district for resale.
In sum, at least three of the five factors militate against finding the Avila conspiracy to be the same as the conspiracy charged here. See Sinito,
V.
Goffs notice of appeal seems to state that he is appealing both the district court’s denial of his motion to dismiss on double jeopardy grounds and its denial of his grand jury abuse motion. Goffs notice of appeal reads, “This appeal is made to the exten[t] that the order is appealable, namely the double jeopardy issue and the disclosure of grand jury testimony that would have assisted in the resolution of the double jeopardy issue.”
But Goffs appellate reply brief expressly denies that he is appealing the denial of his motion to dismiss due to abuse of the grand jury process:
None of the Government’s three issues address double jeopardy. And none of the Government’s three issues address the absence of evidence presented to the Grand Jury about Mr. Goff between the Original Indictment and the Superseding Indictment. Instead, the Government seeks to focus this Court’s attention on our motion to dismiss for grand jury abuse, which is not the subject of this appeal.
When appeal is permitted and there is no certificate of appealability or other order limiting the issues on appeal, it is the appellant who determines the scope of the appeal. We simply take Goff at his word that the denial of the grand jury abuse motion is not part of this appeal.
In any event, we lack jurisdiction to review the denial of Goffs grand jury abuse motion. That order is not “final” under § 1291 in the sense of terminating all criminal proceedings in the district court. United States v. Jolivette,
Examples of collateral final orders are orders denying qualified or absolute immunity that address only legal issues and do not address what facts the parties might be able to prove,
“As a general matter, an order denying a motion to dismiss does not end the litigation on the merits and is ordinarily not subject to appellate review until a final judgment has been entered.” Archie v. Lanier,
The Supreme Court also advises that it is especially appropriate to construe the collateral order exception narrowly in criminal cases. See Flanagan v. United States,
In any event, precedent obligates us to hold that the collateral order doctrine does
The Cohen exception permits interlocutory appeals in only two situations in criminal prosecutions: (1) there may be immediate appeals from orders denying motions to dismiss on double jeopardy grounds (Abney) and (2) there may be immediate appeals from orders denying motions to reduce bail before trial.
United States v. Bratcher,
Therefore, we lack jurisdiction to review the order denying Goffs grand jury abuse motion. Accord United States v. LaRouche Campaign,
VI.
For the foregoing reasons, we affirm the denial of Goffs motion to dismiss the first superseding indictment as violative of his double jeopardy rights. We dismiss for lack of jurisdiction Goffs appeal from the order denying his grand jury abuse motion.
Notes
. 28 U.S.C. § 1292(a) authorizes immediate review of certain interlocutory orders regarding injunctions, receivership, or admiralty issues, so it does not apply. Section 1292(b)
Lastly, Congress has authorized the Supreme Court to promulgate rules treating additional types of interlocutory orders as immediately appealable. See 28 U.S.C. §§ 1292(e) and 2072(c). The Supreme Court has not promulgated any rule that would permit the immediate appeal of this order.
. See, e.g., Silberstein v. City of Dayton,
Concurrence Opinion
I agree with Judge Griffin’s analysis except as to one point. The majority opinion, relying on United States v. Benton,
Both Benton and In re Grand Jury Proceedings involved situations in which the district court made a factual finding that conspiracies were not the same offense based on extensive evidentiary records-a trial transcript in Benton and both a trial record and grand jury transcripts in In re Grand Jury Proceedings. Our court appropriately and naturally reviewed the factual finding for clear error. Here, however, the district court had no evidentiary record and was thus ruling that, based on the allegations of the 1998 indictment and the 2004 superseding indictment, the indictments did not charge the same conspiracy as a matter of law.
The standard of review makes no difference in the ultimate result in this appeal. The indictments on their faces allege two
. By contrast, in United States v. Jabara,