United States v. Gelean Mark , 284 F. App'x 946 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-8-2008
USA v. Gelean Mark
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1518
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1518
_____________
UNITED STATES OF AMERICA
v.
GELEAN MARK,
Appellant
____________
Appeal from the District Court
of the Virgin Islands
(No. 05-cr-0076)
District Judge: Hon. Curtis V. Gomez
____________
Argued May 8, 2008
Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.
(Filed:July 8, 2008)
____________
Robert L. King, Esq. (Argued)
Law Offices of Robert L. King, Esq.
The Law Center
P.O. Box 9768
St. Thomas, Virgin Islands 00801
Counsel for Appellant
Delia Smith (Argued)
Assistant United States Attorney
5500 Veterans Drive, Suite 260
St. Thomas, Virgin Islands 00802-6424
Counsel for Appellee
____________
OPINION OF THE COURT
____________
CHAGARES, Circuit Judge.
Gelean Mark (Mark) appeals from the District Court’s denial of his motion to
dismiss an indictment on double jeopardy grounds. Mark contends that the drug
conspiracies alleged in two separate indictments were actually a single agreement.
Because the two alleged conspiracies had different objectives, we conclude that they are
distinct and will affirm the District Court’s decision.
I.
On October 6, 2005, a grand jury in the Virgin Islands charged Mark, Vernon
Fagan (Fagan), Walter Ells (Ells), and others in an 18-count indictment, hereinafter
referred to as “Redball I.” 1 The indictment charged the defendants with conspiracy to
1
Count I of the Redball I indictment charged:
Beginning from a time unknown, but no later than November 2004, and continuing
until November 2005, at St. Thomas in the District of the Virgin Islands and
elsewhere, defendants, Gelean Mark, Vernon Fagan, . . . did knowingly and
intentionally, combine, conspire, confederate and agree together and with each
other and with diverse other persons to the grand jury known and unknown, . . . to
knowingly and intentionally possess with intent to distribute controlled substances,
namely five (5) kilograms and more of a mixture and substance containing a
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possess and distribute cocaine, cocaine base, and marijuana, and conspiracy to import
cocaine and cocaine base. While Redball I was pending before the United States District
Court for the Virgin Islands, the grand jury returned a separate 14-count indictment on
December 19, 2006, naming Mark, Fagan, Ells, and others as defendants. This
indictment, hereinafter referred to as “Redball II,” alleged conspiracy to possess and
distribute cocaine and conspiracy to import cocaine. 2
detectable amount of cocaine, . . . fifty (50) grams and more of a mixture or
substance containing a detectable amount of cocaine base, . . . and less than fifty
(50) kilograms of marijuana . . . .
App. 48-49. Count XVIII of the Redball I indictment charged:
Beginning from a time unknown, but no later than November 2004, and continuing
until October 2005, at St. Thomas in the District of the Virgin Islands and
elsewhere, the defendants, Gelean Mark, Vernon Fagan, . . . did knowingly and
intentionally conspire, confederate, and agree together and with each other . . . to
import controlled substances into the United States from a place outside thereof,
namely five (5) kilograms or more of a mixture or substance containing a
detectable amount of cocaine, . . . and fifty (50) grams or more of a mixture or
substance containing a detectable amount of cocaine base . . . .
App. 53.
2
Count I of the Redball II indictment charged:
Beginning from a time unknown, but no later than 1999, and continuing until
October 2005, at St. Thomas in the District of the Virgin Islands and elsewhere,
defendants Gelean Mark, Walter Ells, Vernon Fagan . . . and Dorian Swan, did
knowingly and intentionally, combine, conspire, confederate, and agree together
with each other and with diverse other parties known and unknown, . . . to
knowingly and intentionally possess with intent to distribute a controlled
substance, namely five (5) kilograms or more of a mixture and substance
containing a detectable amount of cocaine . . . .
App. 60-61. Count II of the Redball II indictment charged:
Beginning from a time unknown, but no later than 1999, and continuing until
October 2005, at St. Thomas in the District of the Virgin Islands and elsewhere,
defendants, Gelean Mark, Walter Ells, and Vernon Fagan, did knowingly and
intentionally conspire, confederate, and agree with each other and with other
3
The jury trial in Redball I began on March 5, 2007 and ended in a mistrial on
March 27, 2007 due to a deadlocked jury. The jury trial in Redball II began on
September 5, 2007. The jury returned a partial verdict of guilty with respect to Mark and
co-defendant Henry Freeman on Count I of the Redball II indictment, and the trial judge
declared a mistrial on the remaining Redball II counts and defendants on October 1, 2007.
On January 28, 2008, Mark filed a motion to dismiss Counts I and XVIII of the Redball I
indictment, contending that, given his conviction on Count I in Redball II, reprosecution
of the conspiracy counts in the Redball I indictment would violate his double jeopardy
rights. The District Court denied his motion, and this appeal followed. We have
jurisdiction to review this appeal pursuant to 28 U.S.C. § 1291 and the collateral order
doctrine. See Abney v. United States, 431 U.S. 651, 659 (1977); United States v.
Venable, 585 F.2d 71, 74 (3d Cir. 1978). “Our review of double jeopardy challenges is
plenary.” United States v. Smith, 82 F.3d 1261, 1265 (3d Cir. 1996).
II.
In this appeal, we must decide whether Mark’s conspiracy conviction in Redball II
bars retrial in Redball I under the double jeopardy clause. See U.S. Const. amend. V, cl.
2. A defendant moving to dismiss an indictment on double jeopardy grounds bears the
persons known and unknown . . . to import into the United States from a place
outside thereof, namely Tortola, British Virgin Islands, controlled substances,
namely five kilograms and more of a mixture and substance containing a
detectable amount of cocaine . . . .
App. 66.
4
evidentiary burden of going forward by putting his double jeopardy claim in issue. If the
defendant presents a non-frivolous showing of double jeopardy, he is entitled to a pre-trial
evidentiary hearing to determine the merits of his claim. Once the defendant has
established his prima facie case, the burden of persuasion shifts to the Government to
prove by a preponderance of the evidence that the two indictments charge the defendant
with legally distinct crimes. See Smith, 82 F.3d at 1266.
The double jeopardy clause prevents the Government from splitting one
conspiracy into multiple prosecutions. See Braverman v. United States, 317 U.S. 49, 63
(1942). Generally, the same evidence test is utilized to determine whether a second
prosecution is barred. Blockburger v. United States, 284 U.S. 299 (1932) (holding that
test for whether two offenses are not the same is whether each offense requires proof of a
fact that the other does not). When the charge involves a conspiracy, however, this Court
applies a “totality of the circumstances” test as established in United States v. Liotard,
817 F.2d 1074, 1078 (3d Cir. 1987). This is because “successive indictments against a
single defendant for participation in a single conspiracy might withstand same evidence
scrutiny if the court places undue emphasis upon the evidence used to prove the
commission of the overt acts alleged,” id. at 1078, and with a conspiracy, “it is the
agreement which constitutes the crime, not the overt acts.” Id. (quoting United States v.
Young, 503 F.2d 1072, 1076 (3d Cir. 1974)). The “ultimate inquiry presented by
conspiracy double jeopardy claims is whether there are two agreements or only one.”
5
Smith, 82 F.3d at 1267. See also United States v. Becker, 892 F.2d 265, 268 (3d Cir.
1989) (“The critical determination is whether one agreement existed.”)
In order to determine whether one or more agreements existed, Liotard’s totality of
the circumstances test instructs us to examine four factors: (1) the “locus criminis” of the
alleged conspiracies3; (2) the degree of temporal overlap between the conspiracies; (3) the
overlap of personnel between the conspiracies, including unindicted co-conspirators; and
(4) the similarity in the overt acts charged and role played by the defendant in each
indictment. Liotard, 817 F.2d at 1077. These factors should not be rigidly applied, as
“different conspiracies may warrant emphasizing different factors.” Smith, 82 F.3d at
1267. The goal is to determine “whether the overt acts alleged in the first conspiracy
charge were carried out in furtherance of the broad agreement alleged in the second
indictment or whether these acts were carried out in furtherance of a different agreement.”
Liotard, 817 F.2d at 1078 (quotation and citation omitted).
III.
Mark is correct in his assertion that there is significant overlap in the locations,
time periods, and participants in the two conspiracies alleged in this case. However, we
find it determinative that the conspiracies had different objectives. As the District Court
concluded, the conspiracy alleged in Redball I aimed “to possess large quantities of
cocaine, crack, and marijuana with intent to distribute the drugs on the streets of St.
3
“‘Locus criminis’ is defined very simply as the ‘locality of a crime; the place
where a crime was committed.’” Smith, 82 F.3d at 1268 (citation omitted).
6
Thomas for financial gain,” App. 17, while the goal of the conspiracy alleged in Redball
II was “to possess large quantities of cocaine for distribution in New York and North
Carolina for financial gain.” Id. at 18. In Becker, this Court compared a conspiracy to
grow and distribute marijuana with a conspiracy to smuggle and distribute foreign-grown
marijuana. The defendant in Becker was convicted in Pennsylvania of conspiracy to
possess with intent to distribute marijuana in Pennsylvania, New Jersey, and
Massachusetts. He argued that a prior conviction in West Virginia for conspiracy to
manufacture and distribute marijuana barred the Pennsylvania conviction. The time
periods alleged in the two indictments overlapped, but this Court found it crucial that
while the object of the West Virginia conspiracy had been to manufacture and possess
with intent to distribute, the Pennsylvania indictment charged that the objects of that
conspiracy were to smuggle, store, and distribute marijuana. Consequently, “[t]hese were
two different objectives” and “hence two conspiracies.” 892 F.2d at 268. Likewise, the
substantive objectives of the two conspiracies here are distinct and reveal two
agreements. Redball I alleged a conspiracy involving a street-level operation in St.
Thomas distributing cocaine, crack cocaine, and marijuana, while Redball II alleged a
conspiracy to import cocaine from the British Virgin Islands for subsequent distribution
in the continental United States. See also United States v. Chiattello, 804 F.2d 415 (7th
Cir. 1986) (holding that two conspiracies existed where the first indictment was for a
conspiracy to buy marijuana in Mississippi and the second indictment involved a scheme
7
to smuggle marijuana from Colombia and distribute it in Indiana). Accordingly, Mark
has not made the requisite double jeopardy showing and may be retried in Redball I.
IV.
For the foregoing reasons, we will affirm the decision of the District Court.
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