Final Submission July 26, 1974. D.C. Criminal No. 73-193. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Biggs, Aldisert and Rosenn, Circuit Judges.
The appellant, Robert Green, was convicted in a consolidated trial of conspiring to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C. § 841. Green's four co-defendants were also convicted of this conspiracy, as well as various other violations of the Narcotics law.*fn1
The appeals of Green's co-defendants were adjudicated in United States v. Harris, 498 F.2d 1164 (3d Cir., 1974).*fn2 To the extent Robert Green relies by reference upon those issues raised by his co-defendants, we reject them for the reasons stated by Judge Rosenn in that opinion.*fn3 The only remaining significant issue raised by Green on this appeal is that of double jeopardy.
The gravamen of this assertion of former jeopardy is an earlier indictment, No. 72-552, filed October 5, 1972, to which Green pleaded guilty on November 29, 1972. This indictment alleged a conspiracy among Robert Green, Oscar Peters, George Glover and others, unknown to the Grand Jury, to distribute 11 bundles of heroin, on or about the 20th day of September, 1972, in Philadelphia, and elsewhere, in violation of 21 U.S.C. § 841. Additionally, Green was charged in two counts with knowing and intentional use of a communications facility, i.e., a telephone, in aiding an attempt to distribute 11 bundles of heroin in violation of 21 U.S.C. § 843(b). The overt acts alleged in connection with this indictment related to activities taking place on or about September 20, 1972, in Philadelphia.*fn4
The indictment involved in the controversy sub judice, No. 73-193, filed April 3, 1973, charges that Robert Green conspired with Alvin E. Young, Harvey Johnson, Charles Harris, Harold E. Young, James H. Simmons, Linda Johnson, and other persons whose names were unknown to the Grand Jury, to possess with intent to distribute, and to distribute quantities of heroin in violation of 21 U.S.C. § 841. This count, the only one involving Robert Green, alleges a major conspiracy extending in duration from October 30, 1970 to April 3, 1973, which included purchasing of heroin in New York City, transporting the narcotics to Philadelphia, adulterating and packaging the heroin so obtained, and distributing the product.
The enumerated overt acts concerned activities in New York, New Jersey and Pennsylvania. Those pertaining to Green were limited to purchase of the heroin in New York and its subsequent transportation to Philadelphia.
Green alleges that the former indictment merely segregated a subsection of the overall conspiracy for independent prosecution; hence, it is argued, the instant prosecution places him in double jeopardy in violation of the Fifth Amendment.*fn5
The Government asserts that Green waived his Fifth Amendment guarantee against being placed in double jeopardy by his failure promptly to raise it in the course of the prosecution. Green's counsel did not bring the prior conviction to the attention of the court until the 11th day of a 12 day trial when counsel were on the brink of beginning closing argument to the jury. To explain the delay, counsel for Green asserts that he did not learn of the prior conspiracy conviction until the day he brought it to the attention of the court.*fn6
It is manifest that a claim of double jeopardy is an affirmative defense which must be raised properly or may be deemed waived. United States v. Scott, 150 U.S. App. D.C. 323, 464 F.2d 832 (D.C. Cir. 1972); United States v. Buonomo, 441 F.2d 922 (7th Cir.), cert. denied 404 U.S. 845, 30 L. Ed. 2d 81, 92 S. Ct. 146 (1971); Grogan v. United States, 394 F.2d 287 (5th Cir. 1967), cert. denied, 393 U.S. 830, 21 L. Ed. 2d 100, 89 S. Ct. 97 (1968). See Rule 12, Fed. R. Crim. P.*fn7 It is within the discretion of the district court, however, to determine whether or not the conduct of the defendant is such as to bar raising this affirmative defense. The District Court in the instant case chose to consider the defense of former jeopardy on the merits, without reservation; thus, implicitly deciding that it had not been waived. We see no reason to disturb this determination. As we have said, counsel for Green stated that he did not realize until the 11th day of trial that his client was in jail because of the earlier conviction on an arguably similar charge. Moreover, it is less than clear that defense counsel's inexplicable failure to investigate properly his client's position would fit the requirement that a waiver of such a fundamental, constitutional right be knowing, intelligent, and voluntary. See Green v. United States, 355 U.S. 184, 191, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957); Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938).
Having determined that there has been no waiver, we turn to the merits. The District Court stated some of the general propositions to be used when evaluating a claim of former jeopardy, as follows:
"To support a claim of double jeopardy, it must be shown that the two offenses charged are in law and in fact the same offense. United States v. Ewell, 383 U.S. 116, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966); Dryden v. United States, 403 F.2d 1008, 1009 (5th Cir. 1968). Offenses are not the same merely because they arise out of the same general course of criminal conduct, 'they are the same only when the evidence required to support a conviction upon one of [the indictments] would have been ...