* Judge F. A. Little, Jr., U. S. District Judge, Western District of

Louisiana, sitting by designation. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

______________________________

Nos. 91-2341 and 91-2821

______________________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

versus

JOSE LUIS VASQUEZ-RODRIGUEZ

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

(November 19, 1992)

Before JONES and WIENER, Circuit Judges, and LITTLE, District Judge. *

LITTLE, District Judge:

Relying on a double jeopardy defense, Jose Luis VasquezRodriguez asks this court to reverse his conviction for conspiracy

to possess, with intent to distribute, more than five kilograms of

cocaine. Finding the appellant's challenge baseless, we affirm the

conviction.2 BACKGROUND

Vasquez was c harged, tried and convicted of (1) possession

with intent to distribute heroin and (2) conspiracy to possess

heroin with intent to distribute. The heroin based counts were

tried in federal court in the Southern District of Texas in January

1991.

In April of the same year, Vasquez was tried and convicted in

federal court in the Southern District of Texas of conspiracy to

possess cocaine with intent to distribute. Vasquez claims that he

was involved in only one conspiracy and that agreement had as its

centerpiece distribution of cocaine and her oin. Thus, the

conviction at the second trial should be nullified by application

of the constitutional protection against double jeopardy.

We review the experiences of defendant Vasquez beginning with

his acquaintance with Candelario Leon in the summer of 1990. The

introduction of Leon to Vasquez occurred in Reynosa, Mexico. Leon,

a former drug dealer, was a confidential informant for, but not an

employee of, the United States Drug Enforcement Administration.

Vasquez, a Mexican national without U. S. credentials of any

sort, offered to sell or acquire any drugs that Leon desired. In

fact, Vasquez hounded Leon to buy heroin from him. After each

communication with Vasquez, Leon would report to his contact, Tony

Santos, an agent with the Drug Enforcement Administration.

Leon told Vasquez that he had a buyer for heroin. Rodney

Alverez, a DEA agent posing as a dealer in heroin, met Vasquez in3

a lot between two restaurants on South Tenth Street in McAllen,

Texas. The date of the meeting was 16 November 1990. Accompanying

the defendant was Jose Zamarripa. The predicate for the meeting

was the offer by Vasquez to Leon in Reynosa on the 15th that he had

a quantity of heroin for sale. The appellant recounted the fact

that there were 15 ounces of heroin for sale. Earlier in the day,

while in Mexico, Zamarripa and the defendant had told Leon that

they would sell a small sample, which they possessed, to Leon's

contact. At 1:30 p.m. on the 16th, Leon and agent Rodney Alverez,

met with Zamarripa in a parking lot on South Tenth Street in

McAllen, Texas. Zamarripa agreed to sell 15 ounces of heroin to

Alverez for $4,500 per ounce. Alverez contemplated the situation

and agreed to buy a sample of the heroin for $200. Marked bills

were given to Zamarripa. Alverez promised to communicate further

with Zamarripa later in the day.

After Alverez departe d with the sample, Leon and Zamarripa

scoured the neighborhood to find the defendant. Vasquez had not

attended the afternoon meeting, but was located, traveling on foot,

in the area. Zamarripa told Vasquez that he gave, not sold, the

sample to Alverez. With that news, Vasquez became miffed at

Zamarripa and told him that the heroin was theirs. The sale should

have been for $200 and the consideration should have been divided

equally between Vasquez and Zamarripa.

Later the same day, Vasquez, Zamarripa, agents Alverez and

Jose Aguilar and Leon met in the McAllen parking lot. The purpose4

of the meeting was to perfect a purchase of a greater quantity of

heroin. While Vasquez acted as a lookout, Zamarripa and agents

Aguilar and Alvarez con ferred in a parked automobile. Zamarripa

presented the large quantity of heroin for the two agents to

inspect. Agent Aguilar signaled for support, agents appeared, and

Zamarripa and Vasquez were arrested. The heroin experience

resulted in a guilty verdict in January of 1991.

The April trial had as its hub a cocaine transaction. As we

previously reported, Leon met defendant Vasquez in Reynosa, Mexico.

Leon advised Santos that Vasquez had expressed an interest in

selling heroin and buying cocaine. After describing Tony Santos as

a Colombian cocaine dealer, Leon arranged a meeting between Santos

and Vasquez on 17 October 1990. The meeting was held in leased

office space in Unit C of the Professional Plaza, 4311 North Tenth

Street in McAllen, Texas.

When defendant arrived, he was accompanied by Ramiro Tijerina.

Tijerina described clients from Houston who desired to purchase

significant quantities of cocaine. Vasquez served as a mediator.

If the principals foundered over a point, Vasquez negotiated their

differences by suggesting alternative proce dures so that the

bartering would continue, not terminate. Tijerina offered to

purchase 1,000 kilograms of cocaine. Agent Santos stated that he

could not deliver that quantity of cocaine but that his source of

supply could accommodate such an order. Vasquez's compensation for5

ser vices was discussed, but no agreement was reached in that

regard.

The following day another meeting was held at the same place.

Present were Ramiro Tijerina, his son Ramiro, Jr., Santos, and

Vasquez. Tijerina pushed Santos for a 150 kilogram purchase but

Santos declined. Santos claimed that his source had made a big

sale leaving no inventory to satisfy the demands of others.

Tijerina was deflated and advised Santos that when his source had

been replenished to contact him through Vasquez.

A third meeting was held on 25 October 1990 at Unit C of the

Professional Plaza. Tijerina, Jr. appeared as did Vasquez, Leon,

and Santos. Unlike the last meeting, this time it was the

purchasers who refused Santos' cocaine. Feigning displeasure,

Santos departed, followed by Vasquez. Vasquez kept assuring Santos

that Tijerina was big time and that Santos would have other

opportunities to sell them cocaine.

Another meeting was scheduled for 26 October. Here again, the

site was Unit C of the Professional Plaza. Both Tijerinas

appeared, as did Vasquez, Joel Cavazos (a potential purchaser from

Houston, Texas), Leon, and Santos. Prior to the meeting, Vasquez

had mentioned privately to Santos that he needed money and that if

the planned drug sale did not materialize Vasquez would find other

purchasers for Santos' cocaine.

At the plenary meeting, Vasquez suggested that Santos sell a

cocaine sample to Tijerina. The quality of the Santos stuff could6

be determined as a harbinger of quality to follow in larger

deliveries. Santos surrendered a sample to Tijerina and quoted a

$2,000 per kilogram price, delivered in Houston, Texas. Tijerina

indicated a desire to purchase 1,000 kilograms and promised a

definite response after chemical analysis of the sample. Vasquez

was arrested on 16 November and Tijerina met a similar fate on 26

November. The jury found Vasquez guilty of conspiracy to possess

with intent to distribute less than 5 kilograms of cocaine.

ANALYSIS

We review de novo the district court's denial of a motion to

dismiss the cocaine indictment (the April trial) on the ground of

double jeopardy. United States v. Atkins , 834 F.2d 426 (5th Cir.

1987) overruled on other grounds

, 933 F.2d 325 (5th Cir. 1991);

United States v. Deshaw

, 91-3131 Fifth Cir. 1992 at 339. The fifth

amendment protects one against multiple prosecutions for the same

offense. U nited States v. Felix

, 112 S. Ct. 1377, 1382 (1992); see

also United States v. Levy

, 803 F.2d 13 90, 1393 (5th Cir. 1986)

(quoting Green v. United States

, 355 U.S. 184, 187-88, 78 S. Ct.

221, 223, 2 L. Ed. 2d 199 (1957)). Vasquez has been charged with

conspiracy to possess heroin and conspiracy to possess cocaine.

It is implicit in the record that the district court felt that

the defendant carried his burden of establishing a prima facie

claim of double jeopardy. U nited States v. Levy

, 803 F.2d at 1393.

It is explicit in the district court's ruling that the government7

demonstrated by a preponderance of the evidence that the cocaine

indictment charged a crime separate and apart from that for which

Vasquez was previously placed in jeopardy. When analyzing multiple

conspiracy counts not bound in the same indictment we are guided,

if not directed, by Blockburger v. United States

, 284 U.S. 299, 52

S. Ct. 180, 76 L. Ed. 306 (1932). B lockbur ger instructs us to

dismiss the cocaine indictment unless the government can prove by

a preponderance of the evidence that the two conspiracies are

factually distinct, i.e. the cocaine conspiracy indictment charges

a crime separate from the heroin conspiracy indictment. In the

Fifth Circuit, five factors are considered when determining the

number of agreements. These factors, as established in U nited

States v. Marable

, 578 F.2d 151 (5th Cir. 1978) are: (1) time; (2)

persons a c ting as co-conspirators; (3) the statutory offenses

charged in the indictments; (4) the overt acts charged by the

government or a ny other description of the offense charged that

indicates the nature and scope of the activity that the government

sou ght to punish in each case; and (5) places where the events

alleged as part of the conspira c y took place. The acts as

described in the indictment will be examined as well as the acts

admitted into evidence at the trials or hearings. U nited States v.

Deshaw at 347; United States v. Levy , 803 F.2d at 1395. The

following graphic display compels us to conclude that there are two

conspiracies.8 Heroin Transaction Cocaine Transaction

Time 16 November 1990 17 October 1990

18 October 1990

25 October 1990

26 October 1990

Persons acting

as coconspirators Jose Luis Vasquez- Rodriquez Jose Zamarripa Jose Aguilar, DEA

Agent Rodney Alverez, DEA

Agent Candelario Leon,

Confidential

Informant Jose Luis Vasquez- Rodriquez Ramiro Tijerina Ramiro Tijerina, Jr.

Joel Cavazos
Tony Santos, DEA
Agent Candelario Leon,

Confidential

Informant

Statutory

Offenses 21 U.S.C. § 846
21 U.S.C. § 841(a)(1)
and (b)(1)(B) 21 U.S.C. § 846
21 U.S.C. § 841(a)(1)
and (b)(1)(B)

Overt Acts Offer to sell large quantity of heroin, possession of a large quantity of heroin Offer to purchase a large quantity of

cocaine

Places Where

Acts Occurred Parking lot, South
Tenth Street,
McAllen, Texas Office on 4311 North
Tenth Street,
McAllen, Texas

The government has clearly proved the existence of two separate

conspiracies. The time period of each event is clearly different.

The persons acting as co-conspirators are not the same. In the

heroin transaction, the defendant conspired with Jose Zamarripa to

possess and sell a proscribed substance. Weeks before, the

defendant conspired with Tijerina, Tijerina, Jr., and Cavazos to

purchase cocaine. It is true that the same statutes are used by

the government in b oth conspiracies, but the statutes are not

invoked to regulate identical conduct. To the contrary, the1 This clearly is not a case of a single agreement to sell two different

drugs. If it were, Vasquez might have a valid defense of double jeopardy. In United States v. Winship , 724 F.2d 1116 (5th Cir. 1984), this court deduced:

The double jeopardy prohibition would not allow separate public drunkenness convictions for a man who drank enough of two whiskies to be drunk on either liquor. Public drunkenness laws do not inquire whether the violators consumed Old Crow or Chivas Regal. Similarly, whether the government may bring separate Section 846 charges does not hinge on whether separate controlled substances were involved. In this case, analysis of the Marable factors provides objective indications of a single agreement. Furthermore, the conspiracy was clearly not departmentalized or compartmentalized in the minds of the conspirators. One conspirator's testimony emphasized the close links between efforts to sell the two drugs. Jack Goudeau could not recall whether he was buying marijuana or methamphetamine when he first met appellant Winship (citation omitted). We see no logic or reason to dichotomize the conspiracy here. This criminal blend came from a single agreement to sell two drugs. We cannot allow the government to distill separate offenses from that agreement by prosecuting for each kind of drug. Counts I and II constituted a single offense. Appellants' right not to be twice placed in jeopardy for the same offense was violated.

Id . at 1127.

9 statutes are applied to two events, neither of which is involved

with the other. The times are not the same, the parties are not

the same, and the objec ts of the conspiracies are not the same. 1

Nothing links the two transactions other than the defendant. There

is no evidence that the conspirators in one transaction knew the

conspirators in the other transaction. In one case an illegal sale

was planned and in the other, the parties considered an illegal

purchase. Both conspiracies were conducted in McAllen, Texas, but

one was confined to a parking lot on South Tenth Street and the

other to an office on North Tenth Street. Comparing the facts in

the record against the five Marable factors, we are persuaded that

the governmen t has proved the existence of two separate

conspiracies.10

We AFFIRM the district court's denial of the defendant's

motion to dismiss on the grounds of double jeopardy.