On Appeal From the United States District Court For the Eastern District of Pennsylvania; D.C. Criminal No. 89-00389-18.
Stapleton, Cowen, and Weis, Circuit Judges.
In this appeal, the government seeks to overturn the district court's dismissal of two counts of a criminal indictment. The government contends that the district court erred in holding that consideration of the offenses here in question at a prior sentencing created a double jeopardy bar to this prosecution. The defendant counters that "the Federal Sentencing Guidelines have brought about a fundamental change in the manner in which a court is required to treat related offense conduct at sentencing[,]" Brief for Appellee at 15, and that as a result the district court was correct in dismissing the two counts.
Upon a close examination of the record in this case, we find that the offenses with which defendant is charged in this case were considered at sentencing in the same manner as other misconduct traditionally has been considered at sentencing and that such consideration does not create a double jeopardy bar to further prosecution for the same offenses. We also find it highly unlikely that they were used for any other purpose, and we do not reach defendant's argument concerning any "fundamental" change that may be effected by the Guidelines. We will reverse the district court's dismissals of the challenged counts.
Defendant, Luis M. Torres, was arrested three times in 1988 -- on June 26, July 19, and August 19, -- for dealing cocaine at the same North Philadelphia street corner. He was also arrested in connection with other alleged drug transactions on three occasions in 1987. At the time of each arrest, defendant gave authorities a different name and address. Following the first four of these arrests, Torres failed to appear for trial.
In September 1988, Torres was charged in two separate indictments with conspiring to distribute, distributing, and distributing within 1,000 feet of a school, based on the July and August 1988 arrests. In December 1988, he pleaded guilty to all counts of both indictments. Throughout this period, Torres denied having any previous arrest or criminal record. However, shortly before his sentencing in May 1989, the government discovered the June and the 1987 arrests and brought both the arrests and Torres' misrepresentations to the attention of Judge DuBois. Judge DuBois sentenced Torres to 27 months of incarceration on each count of each indictment and provided that each sentence would run concurrently with all others.
Several months after that sentencing, in September 1989, Torres was indicted with forty other defendants for various cocaine-related offenses. He was charged with conspiracy to distribute cocaine (Count One), distribution (Count Thirty-Six), distribution within 1000 feet of a school (Count Thirty-Seven), and possession with intent to distribute (Count Thirty-Eight).
The distribution and possession counts were based on the alleged June drug transaction. The conspiracy count was based in part on that transaction. Torres challenged all four counts in which he was named, claiming that the previous prosecution created a double jeopardy bar. The government made a motion to dismiss the conspiracy count -- which the court granted -- but continued to press the other three counts.
Over the government's objection, Judge Pollak dismissed the distribution (Count Thirty-Six) and the possession with intent to distribute counts (Count Thirty-Eight).*fn1 Judge Pollak acknowledged that he was uncertain how Judge DuBois had taken the June arrest into consideration. However, he ruled that Torres, by showing that Judge DuBois had taken it into account in some manner, had tendered a prima facie case in support of his argument that prosecution on Counts Thirty-Six and Thirty-Eight would violate the double jeopardy clause. Since the government had not met its burden of rebutting that prima facie case, dismissal of those counts was required. The government filed this timely appeal.
At the hearing before Judge Pollak on the double jeopardy motion, Torres attempted to meet his burden of showing a prima facie case by tendering the presentence reports and the sentencing memoranda filed with Judge DuBois, as well as an audiotape of the ensuing sentencing hearing. Counsel for Torres explained to Judge Pollak that he had secured a copy of the tape rather than a transcript "in the interest of time and expense." 133a. Both sides made uncontradicted representations to Judge Pollak about what occurred at the sentencing hearing before Judge DuBois. Perhaps as a result of the absence of disagreement and the assurance of counsel for Torres that the position there taken by the parties "echoed" the positions taken in the sentencing memoranda, Judge Pollak did not listen to the tape before ruling on the motion. While the tape was present in the courtroom and tendered by Torres, it was not marked into evidence.
Both the presentence report concerning the July offense and the presentencing report concerning the August offense were filed after the presentence officer had learned of the June and the 1987 arrests. These reports (1) do not use a quantity of drugs from the June transaction in calculating the "base offense level," (2) deny Torres a reduction of his offense level by two levels for "acceptance of responsibility" and add two levels for "obstruction of justice" as a result of his failure to disclose the June and the 1987 arrests, and (3) thereafter report the facts concerning the June and the 1987 arrests under the heading "Other Criminal Conduct." Under the heading "Sentencing Options," each presentence ...