RESPONDENT: United States
LOCATION: United States District Court House
DOCKET NO.: 83-1842
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit
CITATION: 471 US 773 (1985)
ARGUED: Jan 16, 1985
DECIDED: Jun 03, 1985
Mark Irving Levy - on behalf of Respondent
Philip A. DeMassa - on behalf of Petitioner
Facts of the case
Media for Garrett v. United States
Audio Transcription for Oral Argument - January 16, 1985 in Garrett v. United States
Warren E. Burger:
Mr. DeMassa, you may proceed whenever you are ready.
Philip A. DeMassa:
Mr. Chief Justice, and may it please the Court:
This case involves whether a continuing criminal enterprise under Title 21, Section 848 of the United States Code is a substantive offense, and the relationship between it and its underlying predicate drug felonies, which are either part of the continuing criminal enterprise or were introduced by the government in the CCE prosecution.
To discuss the facts of Petitioner's case is to highlight the Double Jeopardy violations which Petitioner suffered due to the government's improper successive prosecution and cumulative punishment of him for the same conduct for the same offense.
Petitioner was indicted in March 1981 in the Western District of Washington with three of the four counts of that indictment.
Count II charged Petitioner with causing an informant, Joseph Knowles, to travel in interstate commerce from Panama City, Florida, the ultimate place where Petitioner was then indicted in a second indictment to go to Seattle, Washington, for the purposes of engaging in a marijuana offense.
Count III charged Petitioner with importing 12,000 pounds of marijuana into Neah Bay, Washington.
That occurred in August of 1980.
Count IV charged Petitioner with possession with intent to distribute that same marijuana.
Petitioner was not charged in Count I of that indictment which alleged a conspiracy to import marijuana which occurred from September 1979 through August of 1980.
He was, however, named as a co-conspirator involved in that activity which involved witnesses and evidence from the Northern District of Florida.
At one of Petitioner's first bail hearings in Washington State, the government prosecutor, the Assistant United States Attorney who was in charge of the prosecution of Petitioner, advised the District Court that the Department of Justice in Washington had originally authorized Petitioner's indictment in Washington State on a continuing criminal enterprise charge.
However, he advised the court, instead that continuing criminal enterprise charge was being considered by the Northern District of Florida Grand Jury and not by his grand jury in Seattle.
Petitioner at that hearing on April 8th immediately asked that the continuing criminal enterprise charge be joined in Washington State to be tried with the other indictment then pending.
The government attorney represented, as an officer of the court, that Petitioner had been responsible for a continuing criminal enterprise, and the grand jury... presumably he meant the grand jury in Seattle Washington... would have returned an indictment.
The government told the court: This coordinated investigation from Washington, D.C., showed Petitioner's involvement in four or five 1977 through 1980.
During the next two weeks after these statements from the government prosecutor, Petitioner filed two motions of note to this Court.
First was a motion for bill of particulars, as Petitioner alleged in his moving papers, so that he could be protected against a second prosecution, and so that he might plead Double Jeopardy.
Petitioner, more importantly, filed a motion to compel consolidation of any continuing criminal enterprise charge so that that continuing criminal enterprise charge would be tried in Washington State.
In Petitioner's motion, he alleged that the government prosecutor had stated that his directives... that is, the government prosecutor's directives... from the Justice Department were to omit the continuing criminal enterprise charge in the Washington State indictment.
Petitioner alleged that the government was manipulating venue for the CCE prosecution where a more favorable prosecution and seeking to enhance any subsequent sentence.
Petitioner alleged that the prosecutor had advised him... that is, Petitioner's counsel... that the prosecutor had been prepared to try the defendant for the continuing criminal enterprise charge, but was instructed by the Justice Department not to seek that indictment.
Petitioner moved in this motion, which is in the Joint Appendix, for a number of grounds.
Number one, to defend all charges in the same trial.
Number two, to have the case transferred to another district due to his financial hardship in defending in two separate courts.
Three, to join the offenses in one proceeding; to seek a single trial of both indictments; that venue was proper on the CCE charge in Washington State; that the charges in Washington and Florida were the same offense.
The government's response was that since there were no other charges pending, there were no charges to consolidate.
On May 18th of that year, Petitioner pleaded guilty in Washington to Count III, the importation of marijuana count.
Sixty days later on July 16th, Petitioner was indicted in the Northern District of Florida for the continuing criminal enterprise, also a conspiracy ranging from January 1976 to July 16, 1981, to import marijuana and "Thai sticks", a conspiracy also on the same dates to possess with intent to distribute marijuana, and four telephone counts.
The Thai sticks, incidentally, do not occur except in the indictment with relation to the Neah Bay, Washington, episode.