This appeal follows from the entry of a conditional guilty plea by Michael Lenox Ok-olie and the judgment of the district court 1 adjudging Okolie guilty and sentencing him to be imprisoned for a period of 121 months. The indictment in this case was filed in the Eastern District of Missouri on October 23, 1991, charging Michael Okolie and his wife, Marie Carmelle Okolie, with one count of conspiracy to distribute cocaine in violation of 21 U.S.C. sections 841(a) & (b) and 846 between March 1989 and March 1991. Mi *289 chael Okolie was also charged with two counts of money laundering in violation of 18 U.S.C. section 1956(a)(1)(A)© and (2) based on wire transfers of currency allegedly committed on March 28,1990 and August 8,1990. On May 4,1992, Okolie entered a conditional plea of guilty, reserving the right to appeal the denial of his motion to dismiss, wherein he asserted a violation of the double jeopardy clause of the Fifth Amendment.
Prior to the indictment in this ease, on July 27,1990, Okolie, along with twelve other persons, was indicted in the Southern District of Florida for conspiracy to distribute heroin and cocaine from in or about December 1986, to on or about July 26, 1990, in Dade County, Florida “and elsewhere.” Ok-olie was also charged with distributing heroin in Dade County on May 24, 1990.
The Florida indictment contained no allegations of overt acts committed in furtherance of the conspiracy. The principal focus of the investigation that led to the indictment was an illegal narcotics operation in Miami headed by Sam Manko, the lead defendant in that case. Manko was also charged with conducting a continuing criminal enterprise during the same period as the conspiracy.
The motion to dismiss was initially considered by United States Magistrate Judge Carol E. Jackson pursuant to an order of the district court referring all pre-trial matters for appropriate disposition under 28 U.S.C. section 636(b). The magistrate judge, in her report and recommendation, recommended that Okolie’s motion to dismiss be denied, relying upon the analysis set forth in
Kotteakos v. United States,
It is well settled that the double jeopardy clause of the Fifth Amendment prohibits the subdivision of a single criminal conspiracy into multiple violations.
Braverman v. United States,
Okolie first contends that the magistrate erred in applying the “same evidence” test enunciated in
United States v. Young,
Under the “same evidence” test, offenses are the “same” for purposes of the double jeopardy guarantee when the evidence required to support a conviction upon one of the indictments could have been sufficient to warrant a conviction upon the other.
United States v. Mallah,
Although the magistrate did not specifically use the term “totality of the circumstances”, we are convinced that she applied the correct test. In fact, her report and recommendation liberally cited to United States v. Thomas and included a detailed analysis of the factors set forth in that ease.
In analyzing the first factor concerning time, we note that the conspiracy in the Southern District of Florida was alleged to have occurred from December 1986 to July 25, 1990, while the conspiracy in the Eastern District of Missouri was alleged to have spanned from March 1989 to March 1991. Although there is a partial overlap between the two conspiracies of approximately sixteen months, the Missouri conspiracy continued for almost eight months after the Florida indictment was returned. Such a period of time is significant as it is indicative of a separate and ongoing agreement.
Second, we examine the identity of the alleged co-conspirators. The Florida indictment charges twelve persons as being co-conspirators with Okolie, while the Missouri indictment charges only one, Marie Carmelle Okolie, the appellant’s wife. Mrs. Okolie was not indicted in the Florida indictment. Also, Joseph Dawson-Otoo, who was one of the defendants in the Florida case, is only named as an unindicted co-conspirator in one of the twenty-seven overt acts listed in the Missouri indictment. Therefore, with the exception of Okolie, the persons actually indicted in the two cases are not the same.
See United States v. Tanner,
As the third factor, we look to the specific offenses charged. Both indictments charge violations of 21 U.S.C. sections 841 and 846. The Florida indictment alleged a conspiracy to distribute heroin and cocaine. The Missouri indictment charged a conspiracy to distribute cocaine. While there is some similarity between the charges in the two indictments, it is not significant. As this court has pointed out, “it is possible to have two different conspiracies to commit exactly the same type of crime.”
United States v. Tanner,
Fourth, we consider the nature and scope of the activity which the government seeks to punish in each case. In the Florida conspiracy, the appellant was alleged to have on occasion supplied heroin and some cocaine to *291 the Manko operation in Miami and was not investigated until the wire interception towards the end of the investigation. By contrast, in the Missouri case, the appellant was flying cocaine to St. Louis via charter and commercial airlines and supervising its distribution through his main dealers and other lower level dealers. Okolie and his wife would then convey the money from St. Louis to Miami via commercial airlines or via a charter or he would direct his dealers to wire transfer the drug proceeds to him or his wife. Okolie was more directly involved in the St. Louis conspiracy because he solicited the involvement of others, provided the cocaine which was distributed, and gave others direction regarding the disposition of the proceeds. Therefore, the nature and scope of the activities charged differs.
Finally, we look at the geographic location. The focus of the appellant’s activities in the Florida indictment was Miami. In the Missouri indictment, the focus was St. Louis since all of the drugs were transported to and sold there. Although some of the drug proceeds were sent to Miami, that city was not significantly involved in the instant indictment.
Based upon our examination of the above five factors and the totality of the circumstances surrounding the two alleged conspiracies, we conclude that the Missouri conspiracy is separate and distinct from the Florida ease. We agree with the district court that two distinct conspiracies existed rather than a single overall agreement. Clearly, there were two separate agreements made at different times by different people in different geographic locations. We therefore find that Okolie’s double jeopardy right has not been violated.
The appellant also contends that the magistrate and the district court failed to shift the burden of proof to the government to show by a preponderance of the evidence that the two indictments charged two separate crimes.
United States v. Tercero,
Under the circumstances, our analysis of the five Thomas factors demonstrates that the appellant failed to meet his required burden of proof. Therefore, the burden never shifted to the government to rebut any finding of a non-frivolous claim. Even so, the government proffered a summary of the government’s case in the Eastern District of Missouri, a copy of the government’s affidavit in support of interception of wire communications from the Southern District of Florida, transcripts from the appellant’s trial in Miami, the transcript of Joseph Dawson-Otoo’s grand jury testimony, a St. Louis Metropolitan Police Department intelligence memo, and a D.E.A. debriefing and intelligence update of Otoo. Such evidence was sufficient to prove that the two indictments charged separate conspiracies.
Finally, Okolie contends that the magistrate erred in refusing to grant an evidentiary hearing to decide the double jeopardy issue. He claims that because the materials proffered by the government failed to establish that two separate crimes were charged, an evidentiary hearing was required.
See United States v. Benefield,
The facts reveal that prior to the denial of appellant’s motion to dismiss, two hearings were conducted. At the hearing before Magistrate Jackson, the appellant chose not to present any evidence. In her report and recommendation, Magistrate Jackson noted that “no testimony was heard despite the defendant’s request for an evidentiary hearing.”
At Okolie’s request, a second hearing was held before the Honorable George F. Gunn, Jr., United States District Court Judge. The case was set for trial on March 16, 1992, but was continued. Due to the continuance, Joseph Dawson-Otoo had been returned to his correctional facility instead of holding him in St. Louis. The day before the double jeopardy hearing, appellant’s counsel requested that the government produce Otoo at the hearing. Counsel was then informed that Otoo was enroute to his correctional facility.
Appellant’s claim that he was unable to proceed without the presence of Joseph Daw *292 son-Otoo at the hearing before Judge Gunn is without merit. Okolie had the opportunity to call him as a witness before Magistrate Jackson but chose not to do so. Also, the facts reveal that the appellant and his counsel were aware of Otoo’s presence in the St. Clair County Jail as the Marshals Service inadvertently placed Otoo in the same cell as Okolie. The appellant waited until after Otoo had been sent back to the federal penitentiary to request the production of Otoo. Such an untimely request was too late to retrieve Otoo and the court ordered the hearing to proceed. The court was presented copies of Otoo’s grand jury testimony and other statements of Otoo and found that such material was consistent with the magistrate’s report. Therefore, the appellant had sufficient opportunity to secure Otoo’s presence at both hearings and failed to do so. Such failure demonstrates that an evidentiary hearing was not necessary under the circumstances.
For the foregoing reasons, we affirm the district court’s order denying appellant’s motion to dismiss and affirm appellant’s convictions.
Notes
. The Honorable George F. Gunn, Jr. District Judge for the Eastern District of Missouri.