United States v. Timothy Rand Smith

place Charlotte, in North Carolina. The CLARK, Before JOHNSON and Circuit initial kilograms transfer of 10 place took *, Judges, and LYNNE Judge. District expected as September on in North Carolina agents and federal arrested JOHNSON, Judge: Circuit Smith after the sale. He was indicted juryA in the Northern District of Florida grand juries in both North Carolina and Timothy convicted conspir- Rand Smith of Florida. acy cocaine, to distribute distribution of Florida, Before the trial in Smith moved cocaine and four using counts of a commu- continuance in develop order to evi- facility felony. nications to commit a He supporting dence his entrap- defense of was also charges convicted related in government ment or overreaching. The the Western District of North Carolina. court a one month continuance. appeal This is the from the Florida trial. month, At the end of that Smith moved for grew The arrest in this case out of an another continuance grounds on the same sting FBI operation agents in which in Tal- charges and for dismissal of the on double lahassee, Florida, posed money jeopardy grounds, launder- claiming that the North providers ers and of other financial servic- Carolina and Florida trials involved the apprehend es in order to drug smugglers. same offenses. The district court denied Agent Pelligrino, participated who During trial, both motions. govern- operation, July met Smith in Af- of 1982. attorney pre- asked that Smith’s be Pelligrino provided ter arguing a number of vented from inconsistent theories financial purchas- jury, services Smith such as namely, to the that Smith did not ing corporate assets under a participate name and conspiracy and that filling returns, out fraudulent tax entrapped. Smith Smith was The court ruled that asked if buying he was interested in a Smith would have to choose one defense large quantity Pelligrino Afterwards, of cocaine. intro- and abandon the other. Smith Glavin, Agent duced Smith to pos- Howard moved for severance of ing large-scale buyer counts, as a of cocaine. count from the other five a motion * Seybourn Lynne, sitting by designation. Honorable H. U.S. District Alabama, Judge for the Northern District of claim,2 dy ultimately denied the court. The but in this case it is not enough on all guilty problem. returned verdicts six counts. jeopardy to create double might prove same evidence used to be sev challenges his Smith conviction on four eral distinct of different elements crimes. (1) grounds: charges one of was barred Phillips, See United States v. 664 F.2d jeopardy grounds, (2) on double the court 1981), B cert. de Cir. Unit failing grant abused its discretion in nied, U.S. continuance, (3) second motion there L.Ed.2d 1354 a conspiracy was insufficient evidence of conviction, erred argues secondly that the dis attorney forcing to choose be- Smith’s sample gram tribution of the 1.2 and the competing arguments theories in his tween kilograms distribution were not jury. acts, part two distinct criminal but of a single Congressional transaction. intent Jeopardy I. Double large part determines whether case, In the Florida separate punish may seek charged 1.2 distribution of shipment ments for the distribution of a cocaine; charged it grams of him with dis sample cocaine and of that shipment, kilograms of cocaine in the tribution of pursuant each out distribution carried case. that the North Carolina Smith claims Hunter, Missouri v. agreement. the same case, days North tried several be case, jeop created a fore the Florida double States, (1983); Albernaz v. United 450 ardy prevented have bar that should 333, 1137, U.S. 101 S.Ct. 67 L.Ed.2d 275 him trying from distribu for (1981). in tion Florida.1 question, in The statute 21 U.S. attempts support to his Smith § 841(a)(1),prohibits any person C.A. jeopardy showing double claim first that distributing a controlled substance. Distri turned each of the two trials on similar bution is defined the statute elsewhere arguing overlapping that evi evidence and “actual, constructive, delivery as a or an really dence that two are indicates offenses attempted of a transfer controlled sub jeopardy purposes the same for double un §§ 802(8), (11). stance.” 21 The U.S.C.A. States, Blockburger v. United der U.S. govern language that the plainly indicates 182, 299, 304, 180, 52 S.Ct. L.Ed. person sep for Ohio, prosecute each 161, and Brown v. 432 U.S. if one arate act of distribution even distri 166, 2221, 2225, 53 L.Ed.2d 187 S.Ct. United the next one. (1977). however, bution facilitates Blockburger, merely Cir.1982), McDonald, (5th v. States 692 F.2d states offenses are the when that two same denied, 1073, rt. 460 U.S. 103 S.Ct. one crime include all the elements of ce 1531, (1983). course, Of L.Ed.2d 952 crime. The fact that elements of another pre under interprets this court statutes appears two different same evidence sumption Congress bearing jeopar- on a that would allow trials some double has Jeopardy encompasses alleged 2. Clause also in his brief and in oral Double 1. Smith has also argument estoppel, principles case barred that the North Carolina of collateral so that if the prosecution to distrib try prove later to the same factu- indictment) (Count trials, ute cocaine and I of Florida al issue in an adverse decision in the of use of communications four counts relitigation prevent of that first (Counts felony through facility II to commit prosecu- same issue if it was critical to first VI). Obviously, the elements each of these Ohio, supra, 432 U.S. at tion. Brown v. 166-67 the elements the North offenses differ from 6, 6; Swenson, n. Ashe v. n. 97 S.Ct. at 2225-26 Ocanas, offense, United States 436, 1189, 25 90 S.Ct. denied, (5th 1980), cert. F.2d Cir. (1970). Since the North Carolina did not (1981), and 68 L.Ed.2d 840 govern- any determine ment, issues adverse charges place prosecution of these did not apply. estoppel does not collateral jeopardy. Smith in double charges government manipulate II. for Continuance Motion multiple person so against as to obtain trial court the defend in essence the punishments for what is ant’s first motion continuance on Janu offense. Whalen v. United same 13, 1984, giving him ary one extra month 691-92, U.S. 1437- evidence to his gather which to (1980). Yet the two 63 L.Ed.2d 715 theory governmental misconduct. The place separate here took distributions motion, the second which was denied were, meaning under normal days essentially grounds based on same word, separate “acts.” Since the motion, one the first month later. Smith statutory here of a distinct offense consists claims that was reversible error. mind, physical act rather a state cf. relief on order to obtain the basis of a (9th Flick, 716 F.2d 735 States United continuance, motion for denial of a de Cir.1983), single charge susceptible is not fendant show that the must denial was improper subdivision. produced abuse of and that it discretion specific prejudice. substantial however, contends, Wuagneux, 683 States v. F.2d 1355- punish Congress could not have meant — Cir.1982), in the various distributions separately -, 78 L.Ed.2d 83 single drug in a transaction because volved allowing of one two convictions instead alleged in the district court eligible prematurely make him might had that the FBI committed criminal acts sentencing special under offend severe engaged general misconduct statute, 21 provisions of the U.S.C.A. er if might enough, have been serious Congress But if to ex had meant 849.3 true, to constituted a violation of due have provisions special from the offender empt defendant, however, process. The never persons such as Smith who make several to substantiate the uncovered evidence alle during the same overall trans distributions gations. He had five months from the time action, it definition could have refined the trial, including the time of the arrest to offense or definition of of the narrowed the January. one-month continuance placed reference special offender some explain not to the Yet he could court history. problem legislative in the It to the February why discovery his future efforts treat not be unreasonable to would more any past would be successful than his special offender. circum as a Under these specific The efforts had information been. stances, that silence Con demonstrates sought proposed discovery his both relationship gress understood the clear be quite appeared speculative; there to be was these two same sub- tween sections the no reason to fur substantial believe that States, chapter. Albernaz discovery produced See v. United have the ther 341-42, Hence, at at 1143-44. 450 U.S. necessary evidence. the district government consistently The acted with its in re court did not abuse discretion bringing Congress fusing grant intent of these the second motion cont the for charges against distribution Smith. inuance.4 The two to make a did not each of the four factors listed offenses that are sufficient consider special eligible 3161(h)(8)(B). as a defendant for treatment This in 18 U.S.C.A. statute however, not, duty must be "committed on occasions dif- impose offender does on courts a decide from one another.” We do not ferent the four factors whenever it con- consider eligible today actually whether Smith is only for continuance. It states siders motion special as a this convic- treatment offender after may any be the that excluded from continuance tion. Speedy days under the Trial Act when- allowed findings concerning the makes ever the court Smith also claims that court's deni- the district statutory Speedy The is four factors. Trial Act of his motion was a matter of al erroneous as this case. not at issue in procedural grounds on law because

H67 1982) (en banc), Sufficiency B Conspiracy Evidence Cir. Unit III. aff'd grounds, other S.Ct. conspiracy Smith was convicted of (1983). govern 76 L.Ed.2d 638 The points cocaine. He out that a to distribute presented conspir ment such evidence of a conspire govern defendant with acy non-agents Among in this case. Tombrello, United States v. agents, things, other the evidence demonstrated (11th Cir.), F.2d 490 n. 3 family that Colombia had fronted the argues cocaine to Smith. While Smith that (1982), and then makes two family knowledge the Colombian had no first, grand jury claims: did not Glavin, they his sale to knew he was any competent upon evidence which to have going to sell the cocaine to someone and and, conspiracy an sec base indictment pay proceeds. them their share of the ond, conspir evidence at trial of a that the They had no need to know further details persons agents acy with other than sale; participants none guilty insufficient verdict. agreement during theless. The existed The mischaracterizes the de- period time covered the indictment. argument alleging first as one fendant’s Thus, adequately supported the evidence of the indict- variance between terms guilty jury. verdict rendered presented at ment and the evidence trial. alleges also that Smith grand alleges that the had no conspired serving with a man in Florida competent upon which to base an evidence agent family, for the Colombian goes conspiracy; the claim indictment house, manager pilot of his stash and a sufficiency evidence before Wayne named Richard. Because the evi grand jury rather variance regarding family dence can Colombian proof at the indictment and the between charge, conspiracy sustain the we do not trial. sufficiency address the of the evidence re possible conspirators. garding these other doubt There is considerable wheth challenge sufficien er a defendant can Closing Argument Limitation of IV. upon by properly cy of evidence relied See grand jury. constituted unbiased government made a motion at the Costello prevent close of the defendant’s case to his 363-64, 406, 408-09, 100 L.Ed. 397 attorney making argu- inconsistent if entertain Even this court could jury regarding ments to the challenge, succeed in such a it would not granted the mo- charge. The trial court videotapes (depicting con this case. The tion, attorney ar- ruling that Smith’s could agents) FBI versations between Smith and gue illegal- either that the several grand jury to the contained shown knowingly participate in ly induced him to than persons references to other was no illegal conspiracy an or that there including persons, agents. Those other persons govern- conspiracy with other co family provided that had Smith with a agents. also denied ment The court to watch and and a man entrusted caine subsequent motion to sever the Smith’s house,” manage could have been his “stash charge from the other five Hence, reasonable co-conspirators. charges. claims that each of these have believed grand juror could rulings was erroneous. bring probable cause to government had Binding precedent in this Circuit charges against Smith. rely that a defendant who wishes to states may rely not upon entrapment defense trial can Evidence at the claim upon a rea defenses that conflict with long justifies as it guilty verdict as entrapment. Although may defendants juror believing that the defend sonable in other con beyond doubt. assert inconsistent defenses guilty is a reasonable ant texts, Bell, 547, entrap 549 the unusual nature of States v. 678 F.2d United 1168 defense, focusing first, case, on applicable the state of not in this oc government’s curs when the prior to case-in-chief mind of the defendant commission injects evidence of entrapment substantial defense, Russell, of the States v. United into the case. In situation a defendant 1637, 423, 411 U.S. 36 93 S.Ct. L.Ed.2d 366 may her assert his or own still defense and requirement. (1973),justifies this The doc jury possibility ask that the consider the truth-finding trine facilitates the function entrapment as raised prosecutor of a criminal trial and saves the availability itself. The of both defenses essentially presenting two cases does not result from inconsistent state defendant, relating one against the ments made the defendant and does relating predispo and the other offense government, unduly burden the because prior to the offense. The sition wisdom or prosecution brings the issue into consistency of that doctrine is a matter Haimowitz, case. v. United States 725

beyond panel. the reach of this United Cf. Cir.1984); (11th F.2d 1561 United v. States (5th Henry, v. 749 F.2d 203 States Cir. Morrow, 120, (5th Cir.1976), 537 F.2d 138 1984) banc); (en Demma, United States v. denied, 956, 1602, cert. 430 U.S. 97 S.Ct. 51 (9th Cir.1975)(en banc). F.2d 981 523 (1977); States, L.Ed.2d 806 Sears v. United (5th Cir.1965); 343 F.2d 139 United cf. setting princi The cases forth this Groessel, (5th Cir.), States 440 v. F.2d 602 ple also establish for this Court a workable denied, 933, 2263, cert. 91 29 S.Ct. precise of determining degree means L.Ed.2d 712 inconsistency between defenses that exception, originating second consistency law will tolerate. The States, in Henderson United v. 237 F.2d presented by depends defenses a defendant (5th Cir.1956),provides 169 that a defend largely part prosecution’s what may ant might appear assert defenses that case or she is true. While admits another, to conflict long with one so as Court has often held that a defendant as “necessarily disprove” do not an one serting entrapment must admit all the words, other. at In other de Id. upon prosecution acts criminal which entrapment along fendant assert case, Nicoll, its builds United States v. 664 long another as defense so could (5th B), denied, F.2d 1308 Cir. Unit cert. consistently he or find that she is entitled 1118, 2929, 73 L.Ed.2d changing to either defense without its view (1982); Crossman, United States of the facts. In the Henderson case 607, (5th Cir.1981), F.2d cert. de charged with conspiracy defendant denied nied, 72 participation conspiracy while the. (1982); L.Ed.2d 851 United States v. claiming at time the same that he had been Brooks, (5th Cir.1980); F.2d entrapped committing into the admitted Williamson, United States v. 482 F.2d (“the overt at 173 acts. Id. defendant (5th Cir.1973); Government the Ca operating still, deny could admit the illicit Risbrook, Zone 454 F.2d nal being party conspiracy charged, Cir.1972); States, McCarty v. United ground and still defend on that such (5th Cir.), F.2d 389 U.S. overt acts as he did commit were done (1967); entrapment.”) (emphasis sup a result of Beatty v. 377 F.2d 186 plied). Henderson innocent either be (5th Cir.), grounds, rev’d on 389 other U.S. conspire cause he he did not or because 45, 234, (1967), 88 S.Ct. 19 L.Ed.2d 48 there entrapped committing was into the overt exceptions recognized are several to this acts. Both could the defenses exist under rule. same set of facts.5 Smith, Similarly, ing purchaser in v. 407 a from the United States F.2d written order in viola Cir.1969), 828, (5th denied, 949, participation 202 tion of 21 admitted rt. 90 U.S.C.A. ce 972, (1970), liability S.Ct. in the but denied 25 L.Ed.2d 131 defendant transaction criminal charged selling by claiming purchased with without the narcotics demand that he narcotics

1169 ruling district in this is least one case from Circuit has court’s case consist At and Henderson. exception the ent with both beyond the bounds of gone Greenfield Henderson.6 In United established of Smith’s defenses in this One 179, Greenfield, 554 F.2d v. 182-83 States disproves necessarily the other. He case denied, Cir.1977), 860, 439 cert. (5th U.S. conspire he did not claims first that with (1978), phar 58 L.Ed.2d 168 S.Ct. 99 anyone agents, the other than Glavin and charged dispensing controlled macist with hand, Pelligrino. On the other he claims improper purposes admitted substances Pelligrino him that and induced to Glavin dispensed drugs he had the but denied that conspire It with others. is difficult further any criminal intent. He claimed imagine defenses more inconsistent any improper may intent that he have that upon by than two relied Smith. If these entrapment part due to on the of had was jury the to believe that did not Smith agent. purchaser, the non-agents, conspire it could not with ruled those defenses were not that agents simultaneously entrapped find that the “impermissibly inconsistent” because conspiring him into with In addi others. had admitted the criminal acts pharmacist tion, alleged case, since the in this offense only criminal intent. The and had denied mind, agree state conspiracy, looks to a of explain why proof not of one of court did reus, ment, as its actus Smith has not even necessarily disprove defenses did not these alleged by admitted criminal act as the the instead but observed that the other government, much less the intent. criminal of criminal intent was factual dis issue We therefore hold that trial court cor for the to resolve. pute rectly forced Smith choose between these two defenses. singled has been out case Greenfield in the law this as a source conflict argues also the trial Hill, v. context. United States F.2d 626 court, forcing him rather than to abandon Cir.1980). (5th See also n. 2 1303 defenses, one his should have v. McCarty United 379 F.2d 285 conspiracy count his motion to sever denied, cert. (5th Cir.), 88 charges. from five A severance the other (1967) (defendant 291, 19 281 L.Ed.2d S.Ct. conspiracy charge of trial on the knowing package carried however, denied not, charges other would v. Ni marijuana); United States contained any way. have benefited Smith coll, (5th cert. B), F.2d Cir. Unit against charges all six on the defended denied, ground entrapment only U.S. denied com (denial intent to mitting conspiracy. L.Ed.2d When forced to v. cocaine); defenses, United States he retained distribute choose between Brooks, (5th Cir.1980) (denial entrapment the oth 611 F.2d 614 defense abandoned charges to nonresident of His on the other of intent sell firearms er. defense however, state). not, unimpaired by the choice. We resolve need Moreover, incon same choice log or test the between conflicting precedents these been neces- exception sistent defenses have because ic of the Greenfield (5th Cir.1976); O'Leary, United agent purchaser F.2d and there an the final as Cir.), Newcomb, subject F.2d to the statute. States seller fore was Purchasing agent a de 41 L.Ed.2d for another was regardless of the intent fense under that statute Hence, agent. Smith was allowed to h Harrell, (5t agency In States v. 436 F.2d 606 entrapment along with his defense assert Cir.1970), any participa disproved the defendant denied the other. because neither defense conspiracy. It is not clear whether the tion cases, subsequent exception was fur- entrapment the overt as to defendant claimed charged conspir- refined. ther Defendants conspiracy. the case If latter was acts conspir- entrapment as to the acy could assert to assert that defendant then the court allowed acts, culpable acy only admitted when though necessarily even one dis two defenses entrapped presumably not be because one proved the other. committing act. United. States a harmless into 1170

sary separate at a conspiracy. part gestae” of the “res September of the correctly The trial court denied Smith’s mo- 1983 North Carolina transaction. The tion to sever. court’s actual words were: I part think that all this is of the same Accordingly, judgment of the district transaction, theory whichever court is AFFIRMED. going go Government is on as to the CLARK, Judge, dissenting: Circuit involved, pro- counts the election to possession ceed with with intent to dis- I respectfully appellant’s dissent as to possession distribution, tribute or jeopardy my double claim. It is belief that count, say, they elect, whichever as I and government purposely bifurcated a sin- I certainly part think it was of that trans- gle transaction multiple to create crimes action, thus, though even it occurred down in multiple punishments. In the case, and, therefore, Florida I appellant deny your North Carolina will was tried possession of cocaine with motion on that. intent distribute and distribution of cocaine aris- Record, p. Vol. VII at 11. ing September out of the delivery 1983 trial, At the Florida which commenced of cocaine in North Carolina. In that trial days several after guilty Smith was found testimony introduced Carolina, in North defendant’s counsel real- accompanying concerning prior exhibits ized the of impact hastily this evidence and delivery sample of a cocaine that occurred prepared a motion to dismiss based dou- Tallahassee, August 25, Florida on 1983. jeopardy grounds. ble The court denied delivery It sample was this of the relying this motion on United States v. up made the offense for appel- which the McDonald, (5th Cir.1982).3 692 F.2d 376 lant tried and convicted in Florida.1 said, The Florida trial court the de- “[i]f trial, the North appellant’s coun- Florida, fendant distributed cocaine in objected sel to the introduction of this evi- separate is a and distinct act from the variety dence on grounds.2 of The North distribution of cocaine in North Carolina.” Carolina trial court in rejecting argu- these delivery ments ruled that the sample jeopardy double of the clause Fifth August cocaine on in actuality 25 was provides Amendment that “nor shall Trial counsel 2. 1. In the government in the two trials. at the pursuant to F.R.E. 403. requirements afforded a hum, (1979); and that the evidence was inadmissible 404(b); (3) that the defendant had not been evidence was: dictment; possession of cocaine with or September Appellant’s with distribution of cocaine on or about 582 F.2d 898 overlap Florida trial hearing claims are of the evidence submitted for a did not meet the objected (1) beyond under United States v. Beec (5th Cir.1978) appellant prior on the highlighted by looking intent to distribute act under F.R.E. was not tried for grounds scope admissibility L.Ed.2d of the in that the Fla. Exh. No. N.C.Exh. No. 9 5 7 6 8(a) 7 (b)& Transcript Transcript 8/9/83 telephone 8/25/83 video tape 9/13/83 telephone tape 9/7/83 recording telephone tape recording 9/13/83 recording showing sample appellant Glavin recording meeting Description video between transfer of telephone and S.A. 8/9/83 tape Fla. Exh. No. N.C. Exh. No. , Description gram sample The one was marked identifi- gram sample cation and submitted to defendant’s counsel as a cocaine government proposed packages exhibit but was not actu- 3 foil-wrapped ally moved into evidence in North Carolina. of cocaine American Tourister Furthermore, used the same containing suitcase witness, Agent Howard Glavin to introduce the kilograms of cocaine only at both exhibits trials. He was the witness 9(a) 5(a) (d) 9 & Photos of suitcase — containing cocaine subject person the same to “where ... a has person be for offense been tried and convicted for a crime which has various put jeopardy.” pur- in It is twice the be it, in incidents included he cannot be a pro- this render pose of clause to criminal second time tried for one of those inci- In Price ceedings binding. conclusive and being put jeopardy dents twice in without Georgia, v. U.S. 90 S.Ct. for the same offense.” (1970) the court stated: Nielsen, In re 176, 188, 131 U.S. 9 S.Ct. put jeopardy” language The “twice in of 672, 676, 33 L.Ed. 118 In this case poten- to the Constitution thus relates a exactly happened. appel- is what The tial, i.e. the a risk that accused for factual lant faced the same issues in both time second will be convicted of the due, Florida. North This was initially he was “same offense” for which however, any fault appellant not to tried. government’s manipula- but rather to the at at 1759. 398 U.S. 90 S.Ct. of separate tion the evidence create two crimes from the same transaction. determining prose a whether second by jeopardy, Additionally, statutory cution is barred double courts as to the double claim, reliance on Mc- jeopardy the court’s usually apply as what has become known Donald, supra was misplaced. McDonald Blockburger test, i.e., where the the same easily distinguishable is from the case at a or transaction constitutes violation of act bar.4 In McDonald the defendant attempt- provisions, statutory distinct the test two ed to the court convince that he could not applied be to determine whether there quaa- charged be with two deliveries of one, only is are two offenses or whether given ludes in the same indictment and proof provision requires of a fact each He consecutive sentences. had delivered Blockburger the other not. which does 53,775 agent to an quaaludes undercover 299, 304, days later, eo-conspir- on one Four date. 180, 182, (1932). However, in L.Ed. 306 ator, direction, at McDonald’s delivered Ohio, Brown 212,011 agent. quaaludes to an undercover L.Ed.2d the court said: charged These deliveries in separate were Blockburger only The test is separate Mc- two counts of indictment. determining whether suc- standard Donald this on of double attacked basis prosecutions involve the of- cessive same claiming part of jeopardy Even if offenses are suffi- fense. found no the same transaction. ciently permit imposition different problem. jeopardy double sentences, successive of consecutive case, however, sepa- This involves two in prosecutions barred some cir- will be prosecutions, generally prerequisite rate prosecu- cumstances where the second claim, Hut- Webbv. jeopardy double requires relitigation of factual tion to, (4th Cir.1983). Further- F.2d 375 resolved first. already issues more, transfer this case was the first at at 167 2226 n. n. sample constituting grams. 1.2 of narcotics protect at n. This is to L.Ed.2d 6. narcotics bar- second transfer having to “run the the defendant delivery gained at the time Id. Since 1889 it wholly gauntlet sample. second time.” situa- This is a different rule in this the court has been constitutional tion than that which faced McDonald,5 country that: many matter deliver- testify but one conviction no how could as to the transactions who long appellant. quantity those as ies deliveries conversation with the single motivated financial actions were is be that McDonald not bind- It should noted plan. at 380. This concern is not 692 F.2d ing precedent circuit. in this delivery sample relevant this case. The large periodic Furthermore, McDonald, is deliveries of different con- the court was quantities drugs. subject drug be cerned offenders question, The statutes U.S.C. § 841(a)(1), 802(8)(11) do U.S.C. define GULF TAMPA DRYDOCK COMPANY, delivery “actual, or an distribution as a Plaintiff-Appellant, construction, attempted transfer of a Yet, as majori- controlled substance.” GREAT ATLANTIC INSURANCE concedes, presum-

ty interpret we statutes COMPANY, Defendant-Appellee. ing Congress that would not allow the No. 84-3294. government manipulate charges against person multiple to obtain so as Appeals, United Court of States is in punishments for what essence the Eleventh Circuit. same offense. Whalen April 684, 691-92, 1437- (1980). Again, 63 L.Ed.2d 715 this is exactly here. happened what finding

The trial court’s the North this underscores conclusion. that trial that

In the court found the deliv-

ery sample delivery of the

bargained could not for narcotics be bifur-

cated, “part i.e. all that it was of that

transaction, though it even occurred down government

in Florida.” The cannot claim purpose there for the

that were two acts trial and then around

one turn and claim purposes

that acts are distinct for the

of another. government

It well be that the over- its prosecu-

tried case the North Carolina However,

tion. it is the testimony

has the access to the it will use

at whichever trial it chooses. It did not evidence, testimony,

have introduce the sample delivery

and exhibits of the in Flori- in the prosecution.

da North Carolina

However, once that tactical decision had made,

been ig- could not

nore decision reverse the strategy artificially create a second offense

against defendant. case this manipulation

resulted of the evi-

dence and thus the courts to create two

crimes, two multiple convictions and sen-

tences.

Case Details

Case Name: United States v. Timothy Rand Smith

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 15, 1985

Citation: 757 F.2d 1161

Docket Number: 84-3277

Court Abbreviation: 11th Cir.