Thе district court denied Herminio Cruz’s pretrial motion to dismiss on double jeopardy grounds an indictment pending against him and others for conspiracy to distribute heroin under 21 U.S.C. § 846, and Cruz now brings this interlocutory appeal under authority of
Abney v. United States,
After the argument on January 5, and after rеceiving among other papers, Cruz’s motion to dismiss, which incorporates substantial supporting memoranda, and the Government’s memorandum of law, we decided to afford the parties an оpportunity to present further argument, this time addressing directly the Government’s motion for summary affirmance. It was our view that if the Government could sustain its position that the double-jeopardy claim was without substance, the public interest dictated that the interlocutory appeal be terminated without delay so that the trial could proceed. 2 On the other hand, were we to determinе, as a threshold matter, that the appeal was substantial, we believed that we should then provide for a more extended briefing schedule prior to a final hearing, recognizing that this would force the Government either to sever Cruz as a defendant if it wished to proceed immediately, or else delay the trial for some period of time. Argument was accordingly heard on January 6 on the issue of the substantiality of Cruz’s double jeopardy claim.
Cruz’s claim is predicated on the fact of his having been indicted and, on December 30, 1977, convicted, in another district, of possession оf heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) on the basis of the same conduct underlying the pending indictment. He contends that subjecting him to another trial for conspiracy to distribute heroin, where his pаrticipation in the conspiracy involved only the conduct for which he was convicted under § 841, violated the fifth amendment’s prohibition against double jeopardy. He argues both that the possession charge must be regarded as a lesser included offense of the conspiracy, conviction for which bars subsequent prosecution for the greater offense, and that under the circumstances of this case the two offenses are too closely related to permit successive trials, especially where the defendant himself did not force the Government to bring separate proceedings.
The Government responds to both arguments by referring to numerous cases holding that separate prosecutions for a conspiracy and an underlying оffense do not violate double jeopardy.
See Iannelli v. United States,
The law seems well settled that a charge of possession of heroin with intent to distribute cannot be regarded as a lesser includеd offense of a conspiracy to distribute heroin. As appellant conceded at argument on this motion, at least in this circuit proof of any overt acts is unnecessary to make out a violation of the conspiracy statute in question, 21 U.S.C. § 846.
United States v. DeJesus,
Nor does
Jeffers v. United States,
Cruz also argues that even if § 841 may not be regarded as a lesser included offense of § 846 so as to be a bar to imposition of multiple punishments for the two offenses, separate successive trials on these two charges violates double jeopardy. He relies heavily on the following remarks in Brown :
“The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, succеssive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. Thus in Ashe v. Swenson,397 U.S. 436 , [90 S.Ct. 1189 ,25 L.Ed.2d 469 ] (1970), where an acquittal оn a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery, the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims. And in In re Nielsen,131 U.S. 176 , [9 S.Ct. 672 ,33 L.Ed. 118 ] (1889), the Court held that a conviction of a Mormon on a charge of cohabiting with his two wives over a two- and-one-half year period barred a subsequent prosecution for adultery with one of them on the day following the end of that pеriod.
“In both cases, strict application of the Blockburger test would have permitted imposition of consecutive sentences had the charges been consolidated in a single proceeding. In Ashe, separate convictions of the robbery of each victim would have required proof in each case that a different individual had been robbed. See Ebeling v. Morgan,237 U.S. 625 , [35 S.Ct. 710 ,59 L.Ed. 1151 ] (1915). In Nielsen, conviction for adultery required proof that the defendant had sexual interсourse with one woman while married to another; conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Nonetheless, the Cоurt in both cases held the separate offenses to be the ‘same’ for purposes of protecting the accused from having to ‘ “run the gantlet” a second time.’ Ashe, supra, [397 U.S.] at 446, [90 S.Ct. 1189 ,] quoting from Green v. United States,355 U.S. 184 , 190, [78 S.Ct. 221 ,2 L.Ed.2d 199 ] (1957).”
“[T]he same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the *784 agreement to do the act is distinct from the act itself.”
We add that we can see little prospect that more extended briefing or argument would be helpful. The issues have been competently presented; we have had the benefit of two seрarate oral arguments; and the controlling case law seems clear. Without encroaching impermissibly upon settled doctrine, we could not rule in appellant’s favor.
Affirmed.
Notes
. Local Rule 12.
“SUMMARY DISPOSITION
“At any time, on such notice as the court may order, on motion of appellee or sua sponte, the court may dismiss the appeal or other request for relief or affirm and enforce the judgmеnt or order below if the court lacks jurisdiction, or if it shall clearly appear that no substantial question is presented. In case of obvious manifest error the court may, similarly, reverse. Motions for such relief should be promptly filed when the occasion appears, and must be accompanied by four copies of a memorandum or brief.
“If the court concludes, after adequate opportunity for briefing, that even though there may be a substantial question, oral argument would not assist it, the Clerk will so advise counsel. No such conclusion will be reached unless the thrеe judges, who will have examined the briefs, are unanimous in so concluding.”
. “It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy.”
Abney v. United States,