KEVIN WESLEY DOGGETT, PETITIONER V. UNITED STATES OF AMERICA No. 90-6311 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A14) is unreported. JURISDICTION The judgment of the court of appeals was entered on August 28, 1990, and amended on September 19, 1990. The petition for a writ of certiorari was filed on November 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's prior conviction for conspiracy to distribute cocaine barred his subsequent prosecution in this case on charges of interstate travel in aid of racketeering and possession of cocaine with intent to distribute it. 2. Whether petitioner was properly joined for trial with his co-defendants, and, if so, whether the district court abused its discretion by failing to sever his trial from that of his co-defendants. STATEMENT Following a jury trial in the United States District Court for the Middle District of North Carolina, petitioner was convicted of interstate travel in aid of racketeering, in violation of 18 U.S.C. 1952(a)(3) (Count 1), and possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 2). He was sentenced to 60 months' imprisonment on Count 1. Imposition of sentence on Count 2 was suspended in lieu of five years' probation. The court of appeals affirmed. 1. The evidence at trial showed that in late January 1984, petitioner and Giovanni Contrereas traveled from Greensboro, North Carolina, to Miami, Florida, in order to obtain cocaine from a third party in Miami and transport it to Greensboro for distribution. Upon their arrival in Miami, petitioner and Contrereas went to a shopping center, where petitioner met another man and left with him. Upon his return to the shopping center, petitioner told Contrereas that the cocaine was inside the car. Petitioner and Contrereas returned to North Carolina, where petitioner stored the cocaine in his house. Pet. App. A12-A13; Gov't C.A. Br. 11. 2. In 1988, petitioner was charged in a two-count indictment with interstate travel in aid of racketeering on January 31, 1984, and with possession of cocaine with intent to distribute it on February 1, 1984. At the same time, a five-count indictment (the Gamber-Lagos Indictment) was brought against 13 defendants, charging them -- but not petitioner -- with a conspiracy whose objects were to possess cocaine with intent to distribute it and to distribute it, possession of cocaine with intent to distribute it, and obstruction of justice. The conspiracy count charged that from April 1983 to September 1988 the defendants conspired to funnel large quantities of cocaine from Colombia through Miami to Greensboro and beyond, and listed 36 overt acts that were committed in furtherance of the conspiracy. Petitioner was named as an unindicted co-conspirator, and his name appeared in three of the 36 overt acts that were charged in furtherance of the conspiracy (Overt Acts 2, 30, and 36). Petitioner's trial was combined, over petitioner's objection, with the trial of five of the defendants named in the Gamber-Lagos Indictment. The district court later denied petitioner's motion to sever his trial from that of the Gamber-Lagos defendants. Pet. App. A9. Petitioner proceeded to trial and was convicted of both counts charged against him. Of petitioner's five co-defendants, two were convicted of the charges against them. /1/ 3. Prior to his indictment in this case, petitioner had entered a guilty plea to the conspiracy count (Count 1) of an indictment returned in December 1985. Pet. App. A4-A5; C.A. App. 46-55, 185. That count charged that from September 1983 to October 1984, petitioner conspired with William Glass, Aubrey Doggett, and William Sutton to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). C.A. App. A46-A48. /2/ 4.a. In an unpublished opinion (Pet. App. A1-A14), the court of appeals affirmed petitioner's convictions. Petitioner argued that the two counts in this indictment -- interstate travel in aid of racketeering and possession of cocaine with intent to distribute it -- charged him with the same offense as did the drug conspiracy count in the 1985 indictment, because the conduct charged in the 1988 indictment could have been charged as overt acts in furtherance of the conspiracy charged in the 1985 indictment. The court of appeals rejected petitioner's argument. Without considering whether the conduct charged in the 1988 indictment could in fact have been charged as overt acts in the 1985 conspiracy count (see note 5, supra), the court held that a conspiracy to commit an offense and the substantive offense underlying the conspiracy constituted separate offenses, and that both the charge of possession with intent to distribute (see Pet. App. A5) and the charge of interstate travel in aid of racketeering (see Pet. App. A6) were accordingly properly charged "apart from and in addition to the conspiracy allegations." Pet. App. A6. In addition, the court held that the proof required to establish interstate travel in aid of racketeering in violation of 18 U.S.C. 1952(a)(3) was substantially different from that required to prove a drug conspiracy under 21 U.S.C. 846. Therefore, "the factual inquiries conducted in each of the two prosecutions were quite dissimilar, and do not raise double jeopardy concerns." Pet. App. A6. b. The court of appeals also held that petitioner's trial had been properly joined with that of the other defendants in this case "because of the existence of common actors, including unindicted co-conspirators and abettors, common methods and plans, common and shared goals, common overt acts in furtherance of the alleged conspiracy, and common witnesses." Pet. App. A7. The court further held that the district court did not abuse its discretion in denying petitioner's motion for severance because he had failed to demonstrate that the joint trial "resulted in a substantial degree of prejudice or otherwise interfered with (his) individual defense strateg(y)." Pet. App. A9. ARGUMENT 1. Petitioner renews his contention that his trial on the two counts in this case violated the Double Jeopardy Clause. Pet. 5-7. At present, two tests are employed to determine whether offenses arising from the same act or transaction constitute the "same offense" for purposes of the Double Jeopardy Clause's prohibition of multiple prosecutions for a single offense. Under Brown v. Ohio, 432 U.S. 161, 166 (1977), a court must determine whether, based upon the statutory elements of the two offenses, each offense requires proof of a fact that the other does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Further, under Grady v. Corbin, 110 S. Ct. 2084, 2087 (1990), the court inquires whether "to establish an essential element of an offense charged in (the second) prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." /3/ Under these standards, the conspiracy offenses to which petitioner pleaded guilty in the first prosecution -- conspiracy to distribute cocaine and conspiracy to defraud the United States -- are not the "same" as the substantive offenses charged in the instant indictment -- interstate travel in aid of racketeering and possession of cocaine with intent to distribute it. See Garrett, 471 U.S. at 778; Ianelli v. United States, 420 U.S. 770, 777 (1975); United States v. Feola, 420 U.S. 671, 693 (1975); Callanan v. United States, 364 U.S. 587 (1961); Pinkerton v. United States, 328 U.S. 640, 643-644 (1946). Moreover, the proof employed to establish petitioner's convictions on the instant substantive offenses did not form the basis for petitioner's guilty plea on the 1985 conspiracy count; the events of January 31 and February 1, 1984, were not charged in the 1985 conspiracy count as overt acts committed in furtherance of the conspiracy and in fact were not alleged anywhere in the 1985 indictment. Indeed, the record establishes that at the time it brought the 1985 indictment against petitioner, the government was unaware of the January 31 and February 1, 1984, events that formed the basis for petitioner's instant convictions. /4/ See C.A. App. 185, 190, 192. Under these circumstances, petitioner's double jeopardy contentions present no question warranting further review. /5/ 2. Petitioner also argues (Pet. 7-10) that he was improperly joined in a single trial with the five Gamber-Lagos co-defendants. In the alternative, petitioner argues (Pet. 10-12) that the district court abused its discretion by refusing to grant him a severance. The trial together of two or more indictments is governed by Federal Rule of Criminal Procedure 13. That Rule provides that "(t)he court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information." Federal Rule of Criminal Procedure 8(b) provides that multiple defendants can be jointly indicted "if they are alleged to have participated in * * * the same series of acts or transactions constituting an offense or offenses." All the defendants "need not be charged in each count," according to the Rule. For purposes of making the requisite connection between acts or transactions to justify joinder under Rule 8(b), it is sufficient -- but not necessary -- to allege a common scheme or a conspiracy. E.g., United States v. Welch, 656 F.2d 1039, 1051 (5th Cir. 1981), cert. denied, 456 U.S. 915 (1982); Pacelli v. United States, 588 F.2d 360, 367 (2d Cir. 1978), cert. denied, 441 U.S. 908 (1979). See W. LaFave & J. Israel, Criminal Procedure Section 17.2, at 361 (1984); C. Wright, Federal Practice and Procedure: Criminal 2d Section 144, at 502 (1982). Applying these standards, the two indictments were properly tried together. Petitioner was named as an unindicted co-conspirator in the drug conspiracy count of the Gamber-Lagos Indictment, that count charging that petitioner had committed three overt acts in furtherance of the conspiracy. The proof at trial similarly established that petitioner was a member of the drug conspiracy charged in the Gamber-Lagos Indictment and that the substantive acts charged in petitioner's indictment were committed by petitioner during the course of, and in furtherance of the conspiracy charged in the Gamber-Lagos Indictment. See Gov't C.A. Br. 10-11, 13. In these circumstances, the court of appeals properly found that the two indictments were properly tried together. Nor did the district court abuse its discretion in refusing to sever petitioner's trial from that of his co-defendants. It is well settled that cases properly joined for trial at the outset need only be severed if it subsequently appears that one or more of the defendants is substantially prejudiced by the joinder. See Fed. R. Crim. P. 14; United States v. Lane, 474 U.S. 438, 449 (1986); Schaffer v. United States, 362 U.S. 511, 514 (1960). This determination is committed to the sound discretion of the trial judge, who will only be reversed on a showing of abuse of that discretion. Opper v. United States, 348 U.S. 84, 95 (1954). Petitioner has not made that showing here, and in any event such a fact-bound question does not warrant review by this Court. Petitioner's sole claim of prejudice (Pet. 10-12) is that the evidence against him constituted a small part of the government's evidence at trial and that he was prejudiced by the disparity in evidence. However, a disparity in evidence between co-defendants, standing alone, does not justify a severance. See United States v. Martin, 866 F.2d 972, 979 (8th Cir. 1989); United States v. Pinto, 838 F.2d 426, 434 (10th Cir. 1988); United States v. Cresta, 825 F.2d 538, 554-555 (1st Cir. 1987), cert. denied, 486 U.S. 1042 (1988); United States v. Polizzi, 801 F.2d 1543, 1554 (9th Cir. 1986). Also, during trial the district court cautioned the jury that petitioner was not charged as a defendant in the drug conspiracy count, but had been charged only with committing two substantive offenses on January 31 and February 1, 1984. Similarly, during the charge to the jury, the district court again instructed the jury that each defendant was on trial "only for the specific offenses against him" (Tr. 1941); that the charges against petitioner were "to be considered completely separately from the charges in the other indictment" (Tr. 1944); that "(petitioner was) not charged in the other indictment" (ibid); and that there was a separate verdict form pertaining to petitioner (Tr. 1962). The jury must be presumed to have understood and followed the instructions, and petitioner presents no reason to believe otherwise. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney JANUARY 1991 /1/ Defendants Domingo Antonio Lagos and Gregory Thomas Gamber were both convicted on the conspiracy count. Additionally, Lagos was convicted on one, and Gamber on two, counts of possession of cocaine with intent to distribute it. At the close of the government's case in chief, the trial court acquitted co-defendants Martha Helena Matiz, Martha Caballero Rangel Zappia, and Carlos Ruiz-Blonco of all counts against them. /2/ Among charges that were dismissed at the time of petitioner's guilty plea were Count 2, charging him with possessing cocaine on August 20, 1984, with intent to distribute it, and Count 3, charging him with distributing cocaine on August 20, 1984. See C.A. App. A48. /3/ Cf. Garrett v. United States, 471 U.S. 773, 787-789 (1985) (cautioning against "ready transposition of the 'lesser included offense' principles of double jeopardy from the classically simple situation presented in Brown to * * * multilayered conduct, both as to time and place"). /4/ Petitioner claims without citation (Pet. 5) that the government agreed below that "the charges contained in the 1985 Indictment against (him) are 'inextricably intertwined' with the charges contained in (the indictment against petitioner's 1988 co-defendants)." The government made no such concession. The record reflects only a govenment argument that the two 1988 indictments were "inextricably intertwined" and thus should be joined for trial. See C.A. App. A59. /5/ Petitioner asserts (Pet. 6) that double jeopardy principles preclueded his being charged with the conspiracy with which the Gamber-Lagos defendants were charged. Although the government conceded in district court that double jeopardy principles prevented petitioner from being charged in the Gamber-Lagos Indictment (C.A. App. 184), in fact that concession was probably mistaken because the conspiracy charged in the Gamber-Lagos Indictment was separate and distinct from the one with which petitioner was charged in the 1985 indictment. Thus, none of the co-defendants charged in the 1985 drug conspiracy count to which petitioner pleaded guilty were charged in the Gamber-Lagos Indictment. The overt acts charged in the 1985 indictment were entirely different from those charged in the Gamber-Lagos Indictment. The conspiracy charged in the 1985 indictment covered the period from September 1983 to October 1984; the conspiracy charged in the Gamber-Lagos Indictment covered the period from April 1983 to September 1988. Further, the 1985 indictment alleged overt acts occurring in North Carolina and Denver; the conspiracy charged in the Gamber-Lagos Indictment alleged overt acts occurring in North Carolina, South Carolina, Florida, Arizona, and Colombia. Thus, the two charged conspiracies involved substantially different actors and activities, and could properly be inferred to be the product of separate agreements. See United States v. Ciancaglini, 858 F.2d 923, 927 (3d Cir. 1988); United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir. 1986).