Warren E. Burger: We will hear arguments next in 75-1805, Jeffers against the United States. Mr. Bower you may proceed whenever you are ready I think.
Stephen C. Bower: Mr. Chief Justice and please the court. Garland Jeffers became involved in dealing in narcotics in Gary, Indiana in and around November 1971. He and about four-five of his friends who were all around his age that is around 21 years of age met and began a pattern of drug-related activities. They engaged in robberies in which they stole drugs from other dope pushers on the street. They extorted money from other drug dealers for them to be able to continue an operation within the city of Gary and they themselves engaged in distribution of heroine and cocaine. Jeffers role in this drug operation which lasted from November 1971 through the time of the indictment on March 18, 1974 was admittedly one of at least a Supervisor; he began as Treasurer and after a certain period of time literally became the Head of the drug operation.
William H. Rehnquist: But became the boss in the meantime, how did he get this promotion?
Stephen C. Bower: I think he took it Your Honor. Mr. Jeffers is apparently a very dynamic and forceful individual, and has efficient number of friends that were willing to assist him in taking over this where there has this position in occupation. What happened, Your Honor, was to focus to the court that all of the activities involved in the case presently before the court occurred in Gary, Indiana and part of them in Chicago. There was one family drug ring in Gary. It went over a period of two-and-a-half years and at one time or another there were over 50 different individuals actively involved in the operation.
William H. Rehnquist: What do you mean by a Family Drug Ring?
Stephen C. Bower: This was the name I have given to this operation, Justice Rehnquist, they call it, the Family.
William H. Rehnquist: Doesn’t a mom and pop type of drug ring?
Stephen C. Bower: It doesn’t to me Your Honor; it was nicknamed by the press as the Family and basically went by that name. The reason to point out this background Your Honor is to emphasize that our issue today has to do with Jeffers’ multiple prosecution of separate drug violations under the Federal Law. The evidence presented at Jeffers’ first trial which was for a conspiracy to distribute heroin and cocaine is basically the same evidence presented in his second trial which is on the continuing criminal enterprise. I point this out to the Court at the beginning so that there is no confusion that we are not talking about any type of multiple drug conspiracies, separate drug rings or any confusion concerning what evidence was presented in both the lower court cases. The government has never contented nor could they in fact contend that the evidence used at the first trial and the evidence used at the second trial wasn’t from the same witnesses and wasn’t from the same series of transactions. Alright, a resume of the prosecutions were like this. On March 18, 1974, Garland Jeffers and nine others were indicted in Hammon Criminal 74-56 with conspiracy to distribute heroin. On the same date in a companion indictment, Jeffers by himself was indicted with a continuing criminal enterprise charge under 848. Alright, upon request of the government the conspiracy case was set for trial. Objections were filed to the -- government then filed a motion for trial together of the conspiracy case and the continuing criminal enterprise. Objections were filed by the attorney representing all of the defendants in the conspiracy case arguing that the presence of Jeffers in the court room on a continued criminal enterprise with prejudice that the other various defendants in the conspiracy and the Jeffers argued that the presence of the other nine defendants in the conspiracy would jeopardize his right to a free trial. The Trial Court saw fit not to allow consolidation which left the record that Jeffers had pending against him a conspiracy charge and pending also in a separate indictment a continuing criminal enterprise charge. The government then went to trial on the conspiracy charge and convicted Jeffers of conspiracy distribute heroin and he received a 15-year jail sentence.
William H. Rehnquist: Mr. Bower I take it, it is very clear and plain and conceded that he was one of those who objected to the consolidation of the trial.
Stephen C. Bower: Yes.
William H. Rehnquist: He pushed for a severance.
Stephen C. Bower: He pushed for no trial together, Your Honor, they were not joined. It was not a request for a severance. The government had seen fit to return two indictments and then sought to try them together. Jeffers and others opposed the trial consolidation.
William H. Rehnquist: You think the situation is different than if there had been two counts in one indictment and he himself move for a severance.
Stephen C. Bower: I think it would, as a matter of fact I think this situation is entirely different for one very obvious reason. The government at any time had the option to sever Jeffers from the conspiracy trial and try him later on the conspiracy in the continuing criminal enterprise trial at one time. That is the big distinction here. These two indictments were not joined and the request was for the government to join the two of them together. In other words, the first trial took place, the government still had an option before trying him on a conspiracy to sever him from the conspiracy and attempt to try him together later on the continuing criminal enterprise.
William H. Rehnquist: If they had done that, could the Jury have convicted him on both of those counts?
Stephen C. Bower: Well, my response should be no, and is no. I would suggest that we file Justice Powell’s Footnote 17 and 18 in Iannelli and instruct the jury as follows that they should not consider the conspiracy charge against Jeffers unless they find him not guilty of the continuing criminal enterprise and should only consider the conspiracy charge if they find him not guilty of the continuing criminal enterprise. Alright, the Jeffers prior to the second trial in fact raised the double jeopardy claim by a motion for dismissal. In that dismissal he alleged that the evidence to be used against him would be the same and asserted prior to the second trial that conspiracy was lesser included offense of the continuing criminal enterprise. It appears to me to the court that the first big crucial step that must be taken by Jeffers in order to substantiate his violation of double jeopardy rights is whether or not conspiracy to distribute heroin is a lesser included offense in a continuing criminal enterprise charge. Jeffers submit and argues to the Court that it is. The standard definition of a conspiracy briefly stated, simply an agreement between two or more that by concerted action to accomplish a criminal purpose. It is Jeffers’ contention that the continuing criminal enterprise charge under Section 848 means that a person, or person has to undertake a series of violation of federal drug law and that they have to be undertaken in concert with five or more people with whom he occupies a position as Supervisor or Manager and for what he derives substantial income. The crucial statutory definition, the Jeffers contends is controlling is that the continuing criminal enterprise statute requires that the series of drug violations to be taken in concert with five or more. I submit to the Court that in concert can only mean that there has been an agreement in design and plan and that this is a basic definition of the conspiracy.
William H. Rehnquist: Have many do have to sustain the first charge that you described here?
Stephen C. Bower: Two Your Honor.
William H. Rehnquist: And how many from the second?
Stephen C. Bower: Five Your Honor. Well, five or six right, Jeffers himself with five others. The government has taken a possession that Iannelli controls this case and the fact that this honorable court found in Iannelli that the gambling offense was not phrased in terms of the conspiracy statute or that to gambling offense did not require an agreement, therefore they were separate. The slight difference in phraseology as appears in a continuing criminal enterprise statute should not be controlling. I submit Your Honor that it is controlling. The reason why is that if the government’s possession is correct, this Court is going to have to find that the phrase in concert as appears in the continuing criminal enterprise statute must be interpreted to mean not in concert. It is Jeffers’ possession that a conspiracy is an essential basic element of the continuing criminal enterprise, and as such if the continuing criminal enterprise charge is proven a conspiracy will in fact be proven. Therefore, Jeffers’ contends that if he is tried and convicted on a lesser included offense of conspiracy, he may not be prosecuted subsequently on a greater offense of the continuing criminal enterprise.
Speaker: There are really three basic issues in this case, aren’t they? First of all, is conspiracy a lesser included offense of this new statutory offense? Secondly, if so, does the double jeopardy clause prohibit the prosecution on the greater offense after conviction of a lesser included offense? And thirdly, if so, was that waived in this case by your client’s motion insisting upon severance of the trial. Those are the three basic issues aren’t they? You are not directing yourself to the first or have been.
Stephen C. Bower: To the first and to the second.
Speaker: Is it a lesser included offense?
Stephen C. Bower: Yes it is.
Speaker: I mean that is to the issue to which you are not directing yourself.
Stephen C. Bower: That is right. It is lesser included, Your Honor, because of the standard definitions concerning a lesser include to the effect that the greater offense cannot be committed without in fact having a lesser offense committed. What I am saying is that Section 848 continuing criminal enterprise section, in this definition when it says a series of drug violations must be undertaken in concert with five or more of necessity requires…
John Paul Stevens: Mr. Bower, isn't there one possible exception to that, a government suggests that the five or more persons could be innocent dukes of Mr. Jeffers, and if one can read the statutory language in concert with is including innocent employees, innocent dukes then your argument would fail with that.
Stephen C. Bower: Justice Stevens I see no way that that can be done because when you use the phrase “in concert”, there is got to be an agreement in design or plan, not only joint action, but they have to agree as to the in, the in is the illegal drug distribution.
John Paul Stevens: Well, but Mr. Bower just so, you would agree that if the statute were read as an innocent dukes statute then there would be no lesser included offense. Your point as I understand it is, that is manifestly unreasonable reading of the statute.
Stephen C. Bower: Yes to both questions. The concept of in concert, perhaps best can be pointed out by an analogy, in that if you call the Boston Pops Orchestra together formed to play in concert they are all jointly acting, but you wouldn’t expect each individual musician to be playing a different song. The “in concert” requires not only joined action but an agreement as to the in, agreement is the design or scheme. The argument that innocent dukes such as hired messenger boys to make delivery, they are not part of any conspiracy or drug ring at all, unless they are aware of what the goals are, they are aware that they are delivering heroin then they are part of the agreement. Then they are part of the continuing criminal enterprise. So I think that even though the government contends that Jeffers could be convicted if there were five innocent dukes, I would say that this could not be under the meeting of the statute. It requires five other individuals actively participating in the drug operation, and in fact Your Honor, that is exactly what was present in this case. There were no innocent dukes. The prosecutions against the variety of the family members, the drug ring members all show that they were aware and participated in.
Speaker: Tell me again, how criminal act under a statute that requires at least five is the lesser included offense in the number one which requires only two. I know you have gone over that but it will help me if you would --
Stephen C. Bower: Because in fact a conspiracy could be committed with only two people as opposed to five, Your Honor. I would say that basically that was not election of Congress when they outlined.
Speaker: Mr. Bower which is the lesser included offense under your theory?
Stephen C. Bower: The conspiracy is the lesser included, the continuing criminal enterprise is the greater for several reasons, one, the continuing criminal enterprise has a great amount of additional elements that required to be proven beside the conspiracy, besides the in concert action with five or more, they got to show he was a Supervisor, they got to show he receives substantial income. I would point out, two, that supports this is the fact that the continuing criminal enterprise statute carries by far the heavier penalty. On first offense it is ten years to life non-suspendible. On the conspiracy charge, if it is conspiracy to distribute it is up to the same as a substantive offense for 15 years. So it seems evident that Congress in writing 848, continuing criminal enterprise statute in imposing such a heavy penalty, penalty intended to cover the evils that are present from conspiratorial behavior. So, not only do the penalties but the language of the statute strongly suggest that conspiracy is in fact included. I would direct the Court’s attention to Iannelli and suggest to the Court that this Court’s treatment in the Iannelli case warns Jeffers’ double jeopardy claim been sustained, and Iannelli, Justice Powell’s opinion in footnote 17 and 18 discuss concept of Blockburger and the concept of whether or not in the Iannelli case gambling offense, 1955 gambling offense required an agreement or conspiracy as part of the offense. This Court specifically found in Iannelli that the gambling offense did not require conspiracy. Jeffers case is the other side of that. In Jeffers a continuing criminal enterprise does in fact require conspiratorial activity, it requires action in concert. Therefore, applying Iannelli to Jeffers it is logical to come to the conclusion that Jeffers’ rights of double jeopardy have been violated by the multiple prosecution. I would reserve…
Speaker: The government in its brief says that even if you are right the conspiracy is a lesser included offense of this new statutory offense. Nonetheless, the law is not all that clear that violates a double jeopardy clause to try somebody for the greater offense after conviction of the lesser included offense.
Stephen C. Bower: Government takes that position, Your Honor.
Speaker: Yes and you have not I do not think corrected yourself very much to that.
Stephen C. Bower: I simply comment that I do not feel that that is the current status of the law before this Court. I know of no case holding in which they have allowed conviction of the lesser followed by a subsequent prosecution for the greater except in those rare instances such as Diaz in which there was a conviction for some type of assault, the victim later died and then a re-indictment on a -- I believe a manslaughter.
Speaker: Is there any case from this Court in which it has been prohibited on grounds of double jeopardy?
Speaker: That is the real question.
Stephen C. Bower: Well Jeffers’ contend to Robinson v. Neil and Waller v. Florida impliedly state that this Court has adopted a lesser included offense rule. This Court’s action in both those cases for remaining purposes of determination of whether or not it was the same offense impliedly except the less include offense rule because in Robinson you had destruction of public property and then a subsequent theft charge and Waller a similar situation.
Speaker: We did not say to see if it was a lesser included offense, we said to see if it was the same offense.
Stephen C. Bower: Well Your Honor, it is obvious that they were not identical by title, in other words, the same exact offense.
Speaker: Neither of those opinions in this Court discussed this issue precisely it did not.
Stephen C. Bower: No, I would point out and I have in my brief that link that Robinson v. Neil are remand from this Court. I did discuss to that link and basically stated that the lesser included offense rule should control the…
Speaker: There was a decision of the Court of Appeals.
Stephen C. Bower: Now that was the District Court, Your Honor…
Speaker: You call it a rule and I am wondering where you get the rule, certainly not precisely for many cases in this Court, do you?
Stephen C. Bower: No Your Honor.
Speaker: And the Diaz case kind of looks the other way, that case of course being distinguishable on the ground you mentioned.
Stephen C. Bower: Yes, if it is not clearly been held, I urge the Court to do so in this instance. It seems that to allow stair-step prosecution from the lesser to the greater offense.
Speaker: Well, it is not a question of double punishment too in this case, isn’t it?
Stephen C. Bower: No, it is not, Your Honor, it is double prosecution.
Speaker: So that is what you are focusing on the double jeopardy.
Stephen C. Bower: Right, only a multiple prosecution…
Speaker: You think you’d have an easier case that has had been in the acquittal?
Stephen C. Bower: Oh, certainly.
Speaker: Do you think the Court has held that, hasn’t it? Has the Court held that if it had been an acquittal on the lesser included offense?
Stephen C. Bower: Well I don’t know if you could stretch edge to that or not, it would depend. Quite frankly it is very difficult to apply that case because you would not know for sure the reason for not guilty especially in a complex conspiracy trial, you would have no idea.
Speaker: If it had been an acquittal in the conspiracy case and then later a prosecution for the continuing criminal offense?
Stephen C. Bower: I would have filed the same motion, Your Honor, double jeopardy.
Speaker: Do you have an easier case?
Speaker: Do you think you have an easier case right now, don’t you?
Stephen C. Bower: Yes, I really doubt it. It may even be more difficult, because you would not be able to identify, if you try to apply edge to it, you would have a difficult time because how would you show to this honorable Court the reason for the not guilty.
Warren E. Burger: We will resume there at 1 o’clock, next proceeding. Mr. Sheehan I believe your friend has decided to save some time for rebuttal, you may proceed.
William F. Sheehan, III: Mr. Chief Justice, and may it please the Court. In this case we have made several arguments and the alternative, any one of which is in our view sufficient standing alone to warrant an affirmance of the judgment of the Court of Appeals. In the early part of our brief we explained why we believe that under this Court’s analysis in the Iannelli decision, a conspiracy is not a lesser included offense of a continuing criminal enterprise. Those arguments which are essentially matters of statutory construction are laid out fully in our brief and with the Court’s permission, I will move on directly to some of our arguments which are perhaps more conceptually difficult.
Potter Stewart: The problem with the first issue that I understand you are leading largely in your brief is the phrase “in concert” or acting “in concert”.
William F. Sheehan, III: In concert with, yes, Mr. Justice Stewart, we have urged that that statute does not use the language conspiracy, does not use the language of agreement, Congress knew in creating this act how to use those words, it did so in Section 846 and it did so in Section 849, it did not do so in Section 848.
Potter Stewart: If you are right in terms of strictly statutory interpretation, then you say it follows without any doubt that there is no double jeopardy violation.
William F. Sheehan, III: That’s correct, Mr. Justice.
Speaker: Your argument and statute is based on the difference between the words “in concert with” and “in agreement with”. If the statute said “in agreement with” you would concede you are wrong.
William F. Sheehan, III: Yes, that’s probably correct.
Speaker: Is there any case that you know of that construes the words “in concert with” is not meaning “in agreement with”?
William F. Sheehan, III: Well, I know of no case that squarely face that issue, there are decisions in the Court of Appeals which have upheld convictions of defendants on both Section 846 conspiracies and Section 848 continuing criminal enterprise convictions charges.
Speaker: I have not read those other than judge records opinion in this case because he did so on the theory that they were the same.
William F. Sheehan, III: He did indeed.
Speaker: Do those others adopt your statutory theory or do they adopt his theory or are they unclear?
William F. Sheehan, III: They are unclear, they adopt neither. The first of the remaining arguments that I would like to touch on in our brief is perhaps the narrowest of those arguments and that is that the petitioner having insisted that the charges against him not be tried in one case cannot now complain that they were in keeping with his wishes tried in two trials. If the Court agrees with opposition in this regard then it will be necessary to decide whether a conspiracy is in fact a lesser included offense of a continuing criminal enterprise.
Speaker: Well, even if we decided it is, that argument still be valid, one can...
William F. Sheehan, III: Yes, that’s right you can decide this issue even assuming that it is a lesser included offense. The indictment charging petition with the conspiracy and the indictment charging him with the continuing criminal enterprise were returned on the same day by the same grand jury. The government then moved to consolidate those two indictments for trial in one case. Petitioner however objected, he argued, I am reading from the Page 15 of the appendix, this is his objection to the government’s motion to consolidate, that consolidation of these indictments would be improper in this case for the reason is that neither the parties nor the charges are the same. He said at Page 18 of the appendix that the government was attempting to consolidate a conspiracy of ten defendants with a substantive offense of only one defendant. He said to add a substantive defense to the conspiracy charge would only confuse the jury, and he concluded on Page 23 of the appendix that consolidation would be wrong since there is neither an identity of defendants nor an identity of charges in the two indictments. His arguments of course prevailed, the District Court denied the government’s motion and ordered that the indictment to be tried separately as they were. Prior to trial in the instant case the petitioner moved to dismiss the indictment completely reversing his position and now arguing that the government was at fault for not joining all the charges against him in one case, this is at Page 29 of the appendix. Petitioner also argued that once the District Court had exceeded to his request that the indictments to be tried in two trials, then the government was obliged, petitioner said, by the double jeopardy clause to elect which indictment it would bring to trial against him and to forego prosecution on the other. That motion of course was not granted. In his reply brief for the first time in this case, petitioner now takes he had a third position. He argues that his objection to the government’s motion to consolidate has been misinterpreted all this time. He says at Page 5 of his reply brief that he was objecting not to trial of both charges together in a single trial but to the presence of the other conspiracy defendants in the same case with him. The suggestion in short is that the petitioner actually wanted all of the charges brought against him in a single case involving him alone. The record slightly refutes this. It is true that in the objection, in his objection to the government’s motion to consolidate, the petitioner said that he feared that the evidence of a word X of his co-conspirators which would be admissible against him in the conspiracy case would carry over and prejudice him in the jury’s mind on the continuing criminal enterprise charge. But the remedy said petitioner, was to try the charges separately, not to try him alone free of all the other defendants, indeed if the charges had been tried separately that very same evidence would have been admissible. The evidence of his co-conspirators of word X whether or not they were named as co-defendants in a case charging him with both conspiracy and a continuing criminal enterprise. Furthermore the docket entries in the two cases show that petitioner never wanted both charges tried together. The indictments were returned on March 18, trial on the conspiracy charge was set first for May 20, trial on the continuing criminal enterprise charge was set for June 24. In early April the government moved to consolidate, on April 29, petitioner filed his objections to that motion and the hearing was held on April 30, that hearing was inconclusive, it was continued over to May 7, and between that first half -- the first part of that hearing on May 30, and the second on May 7, the petitioner moved to postpone the continuing criminal enterprise from its initial date of June 24 over to August 12, that motion was granted, that was not we submit the action of one who wanted to go to trial on both charges in a single case.
Speaker: Mr. Sheehan just help me a little bit on this argument, are you arguing estoppel or waiver, what is exactly the legal significance of the fact that he opposed the motion of consolidation and delayed the trial.
William F. Sheehan, III: Well, we think that the petitioner stands in the same relation to the double jeopardy clause as does a defendant who secures in the middle of his trial, a mistrial or who consents to a mistrial. Indeed we think the petitioner stands roughly in the same posture vis-à-vis the double jeopardy clause, as the defendant who appeals his conviction to get a new trial. Now, the reason that a new trial is permitted now withstanding the jeopardy is already attached. Whenever a defendant requests a mistrial or consents to one…
Speaker: If you are making that argument you are saying then jeopardy for this offense did attach at the other trial. Is that what you are saying?
William F. Sheehan, III: No, it is not important the jeopardy attached, what is important is that the petitioner retain primary control over the course to be followed. That is the reason why for example when a case has already started before the jury and the defendant requests a mistrial he can be tried again. This Court has explained that result not so much in terms of waiver which the Court has held that traditional waiver concepts are not particularly relevant under double jeopardy analysis, what is important is that, the defendant in this case the petitioner retains primary control over the course to be followed. In this case that happened, the government wanted one trial, petitioner wanted two, he retained primary control.
Speaker: Did he ever say he wanted two trials or he just say, he didn’t want both trials on the first occasion?
William F. Sheehan, III: Well, there were two trials that were scheduled, one for May and one for June. The government moved to consolidate them; the petitioner opposed that consolidation that is pretty close to saying he wanted two trials that seems to me. He wanted the status quo maintained, that was two trials.
Speaker: So you do not contend that there is either a waiver or an estoppel?
William F. Sheehan, III: Well, I do not use either of those labels.
Speaker: Is there any established legal doctrine that you say applies? This is what I am trying to find out.
William F. Sheehan, III: Yes, I think that the established legal doctrine that permits for example, a retrial after defendant requests a mistrial.
Speaker: What do you call that doctrine?
William F. Sheehan, III: Well, this Court has declined to call it a waiver or an estoppel although the concepts are quite similar. The word “waiver” connotes for example the Johnson against Zerbst standard and the Court has consistently refused to adopt that standard in cases involving a double jeopardy clause, but I think the result and the concept is essentially the same. The defendant got what he wanted. For him now to say that he is immunized from prosecution on the second charge, when the government wanted to go forward with both charges together in one trial perhaps that can be said to have stopped him or that he waived in any event his control over the proceedings now disables him from claiming protection by the double jeopardy clause.
Speaker: No time did he say he wanted two trials.
William F. Sheehan, III: Well, he was going to go to two trials.
Speaker: Matter of fact he said he did not want any trial. He pleaded not guilty.
William F. Sheehan, III: Well, he pleaded not guilty and he would have preferred to have no trials, but that certainly is not a protection granted by the Double Jeopardy Clause.
Speaker: I would say you can punish him for asking for two trials, he is saying that I do not want to be tried on both of these at the same time.
William F. Sheehan, III: We are not punishing him; we are trying to avoid the governments being punished with the District Courts granting his motion to try these cases separately when the government wanted to try them together.
Speaker: If you had originally said that you are going to go for two trials and you had not made the motion to consolidate, would not he be in the same position he is in now?
William F. Sheehan, III: If we had not moved to consolidate would he be in the same position he is in now? No, I do not think so. He insisted though on two trials.
Speaker: He said it was his action and I think probably it was your action because you made the motion to consolidate, that is all I am saying.
William F. Sheehan, III: Well, the government could have returned these two charges against the petitioner in a two count indictment presumably and presumably at that point, the petitioner would have moved to sever the counts and presumably the District Court would have been persuaded by his arguments.
Speaker: But as a record as we have it is, one, two indictments, two, dates for trial and one on each indictment, three, your motion to consolidate and his opposition to the motion to consolidate.
William F. Sheehan, III: That’s exactly right.
Speaker: So it was not his violation, it was yours, you made the motion.
William F. Sheehan, III: No, we made the motion for one trial, we tried to bring these two counts, these charges against him in a single trial, the only reason they have resulted in two trials was because the petitioner insisted that they take place in two trials.
Speaker: What was a practical consequence of the two trials rather than the one?
William F. Sheehan, III: I am not sure I understand your question Mr. Justice.
Speaker: Well, if finders did more about your argument perhaps I could articulate the question better. Is the result of all of this that the government had to go to trial first on a lesser offence and when it got a guilt verdict on that it was prevented from trying for the greater offence.
William F. Sheehan, III: Well, I think that is his argument that is his argument.
Speaker: But is that in effect what happened?
William F. Sheehan, III: Well, we do not think the government was prohibited from going to trial on the continuing criminal enterprise, even assuming into greater offence.
Speaker: Was he in fact tried for the lesser offence first?
William F. Sheehan, III: He was tried for the conspiracy first.
Speaker: In which the defendant content is the lesser offence?
William F. Sheehan, III: That’s correct.
Speaker: You say that had the government had its druthers and known of these contentions of the time, they would have tried in for both offences jointly or else would have tried them for the greater offence first.
William F. Sheehan, III: Well, the government thought to bring those cases, tried to bring them jointed. The government has never taken the position that they are lesser and greater included offences, they are trying to bring them together. Now, let us assume they are greater unless they are offences then the result of the petitioner's argument is that whenever a defendant is charged with an offence that can be broken down on a lesser included offence and can persuade the District Court to order the government to try the lesser included offence separately from the grader and the lesser included offence first then he is there after immunized from prosecution on the greater offence. We submit that.
Speaker: I suppose that Speedy Trial Act might give the defendant in a particular situation some ammunition to force the District judge to do that.
William F. Sheehan, III: I do not know why he would have -- I do not why Speedy Trial considerations -- no I think Speedy Trial considerations would militate in favor of both charges being tried in the single trial together rather than separating them.
Speaker: Well, unless indictments were different dates, if there was a substantial lapse of time between the two indictments it certainly would enter into.
William F. Sheehan, III: Well, I think if there were substantial lapse of time in the two indictments even in that case to try both charges together would bring both charges to trial and to combination at the soonest moment possible.
Speaker: Mr. Sheehan who made the decision as to what after was decided in the two cases would not be consolidated, who decided which should go first?
William F. Sheehan, III: The record does not show that, but I think that we can make some inferences from the record. The conspiracy trial was set first for May 20th and the continuing criminal enterprise for June 24th. On May 7th when the District Court refused to grant the government’s motion to consolidate, but that time the continuing criminal enterprise charge have been pushed off to August 12th. Now, by that time also there were some 75 docket entries in the conspiracy case involving ten defendants, involving all of those defendants. Substantial pretrial activity had already taken place and that trial was always scheduled to go first and it involved ten defendants that made sense for it to go first.
Speaker: Did the government request that the greater offence assuming that the other side’s characterization did that trial go forward first?
William F. Sheehan, III: No, and in fact if the defendant wanted to have a lesser included offence and a greater offence tried separately in most cases it would make sense to try the lesser first, because if you try the greater first that would by definition include trial of the lesser, unless the jury got some sort of special instruction. Well, I was saying that petitioner's action in this case, puts him in the same positions as one who request the mistrial --
Speaker: Let me ask one other question. How far does your position go on this trying the lesser and then later you are free to try the greater, supposing you have is in your bank robbery statute, it is a series of four to five series each one a little bit larger and the one in the preceding subparagraph. Would you say the constitution would not present any obstacle to a series of say five or six trials, you would get what you can the first time then you come back and try for a little more at the second time.
William F. Sheehan, III: I would say the Double Jeopardy Clause would not prohibit successive trials as long as the defendant was never twice in jeopardy on the same offence. He would have the protection of the due process clause if it appeared that successive prosecutions by the government were for no good reasons out to harass the defendant something along that line.
Speaker: What if there were an indictment for manslaughter in the trial and the conviction of manslaughter, you go to federal or state government then indicting for first degree murder for exactly the same killing for that, but the Double Jeopardy Clause. I think if he has been, I think that the Double Jeopardy Clause does not prohibit the trial of a defendant on a greater offence after he has been convicted on a lesser included offence provided that at neither trial is he twice in jeopardy for either or the other offences.
Speaker: The whole issue is whether or not he is twice in jeopardy.
William F. Sheehan, III: Oh yes.
Speaker: That is a question begging answer.
William F. Sheehan, III: Oh well, I certainly did not mean it to be, and the trial, in the example that you put, at the trial on I think you said men slaughter.
Speaker: Yeah, I say trial and conviction of men slaughter and then a subsequent indictment trial and trial of murder for the same killing is that permissible under the Double Jeopardy Clause.
William F. Sheehan, III: It would be in these circumstances at the trial for men slaughter the defendant was not in jeopardy of conviction or punishment on the first degree murder charge.
Speaker: That is right, because he was only charged with men slaughter.
William F. Sheehan, III: Right, and the trial in the first degree murder charge, the defendant could not be allowed to be placed in jeopardy for conviction of the lesser included offense of men slaughter and if you were convicted on the greater any punishment that he had received on the lesser, would have to be given credit. This I think is the Diaz case.
Speaker: And you say in -- I am not talking about somebody who, the trial of assault and the person subsequently dies. I am talking about a homicide.
William F. Sheehan, III: Yes, I understand, I think that the Diaz case stands for the broader preposition and in the narrow effects in which it was decided.
Speaker: Then what is your answer to my question?
William F. Sheehan, III: Yes, provided that, yes it could be tried on the indictment for first degree murder.
Speaker: You have said you get credit for the time you served on the lesser offence.
William F. Sheehan, III: Yes, you will have to avoid a couple of punishment.
Speaker: The men’s charged with men slaughter, and give him to five year, then he charged with second degree murder for the same killing and he gets 15 years, but he gets to five taken off for the 15, right and then he is sentenced to die, what credit does he get there?
William F. Sheehan, III: I do not know the answer to that, I think it would be hard to give him any credit there. I do say that the Due Process Clause would protect the defendant against vexatious prosecution.
Speaker: You mean the man robbed the Federal Bank and he is charged with received stolen goods and then he is charged with robbery, then he is charged with robbery with force and then he is convicted of robbery with deadly weapon.
William F. Sheehan, III: I think probably the Due Process Clause would prohibit that series of prosecution.
Speaker: But you do not think that is double jeopardy?
William F. Sheehan, III: Not so long as he has never twice placed in jeopardy on the same offence.
Speaker: What if the defendant is first indicted for robbing a bank, which had federal insurance under the appropriate federal statute that bank being located in Hammond, Indiana and then charged with transportation of the proceeds of a bank robbery across state lines assuming there was a federal statute prohibiting that. Do you think that act punishment after trial and conviction on both of those charges even though they involved precisely the same acts would violate the double jeopardy clause?
William F. Sheehan, III: No, I think those are not the same offences under the Blockburger test, I think that prosecution will be perfectly permissible, I think the situation you just hypothesized does not involve greater and lesser included offence.
Speaker: Well, do you think the Blockburger because by its terms does not refer to the Double Jeopardy Clause.
William F. Sheehan, III: That is correct it does not, it is ---
Speaker: Intuitive Congress.
William F. Sheehan, III: It is a formula for identifying the identity of offences. Well, I said a moment ago that I thought that the Diaz case stands for the broad proposition than I have just advanced, at the very least I submit, it stands for the narrower preposition that prosecution on the greater offence can be had following conviction on a lesser included offence. Whenever at the time of the trial of the lesser included offence the government for good reason, was not able to charge the greater offence. Thus for example, if the greater crime, has not yet actually been committed when the lesser is tried as in the Diaz case or for example if the defendant can conceal the full extend of his crime from the government so that the government does not know the greater offence has been committed when the lesser is tried or as in the present case, if the government is prohibited by order of court from trying both cases together, then we submit the Double Jeopardy Clause does not bar prosecution for the greater offence, provided of course that there was a conviction on the lesser included offence and provided that any punishment that he has suffered from the lesser offence be credited.
Speaker: But I know the government is prohibited by order of court from tying both together, it was not prohibited by order of court from trying the greater offence first.
William F. Sheehan, III: No it was not, but since the government do not believe it was a greater offence of being that --
Speaker: Well, at least it was aware there was a possibility, it might be so considered.
William F. Sheehan, III: No, it certainly was not, the defendant had argued quite strongly different cases.
Speaker: It is that different understanding of the law on the basis of the defendant’s argument.
William F. Sheehan, III: No, but we continue to believe that they are not greater or lesser included offence.
Speaker: Oh but you knew there was an issue with that all I am saying, at least you should have known there was an issue, I would think.
William F. Sheehan, III: Well, let us assume that we knew that there was an issue, it would still make sense to try the less and first I submit especially since the lesser offence involved ten defendants. But there was no issue raised about which trial would go first. The conspiracy was always set to go first. Furthermore, when the District Court ruled that the cases that could not be consolidated, it had already ruled against us and the cases were even bore such a close resemblance to each other that they were appropriate for consolidation.
Speaker: Well, in that respect the rule and your favor and how did that they were separate offences.
William F. Sheehan, III: Well, that is right that is right.
Speaker: And that is your claim now that it rule that one was not a lesser included offence, in that respect did it rule favorably to you.
William F. Sheehan, III: That is correct. Opposition I think fully respects the policies that underlie the Double Jeopardy Clause, two prosecutions in the situation such as I have just described, do not represent judge shopping by the prosecution, in order to secure sentence that the government seeks -- that appears to be appropriate from the point of view of the government alone, nor do they represent an effort by the government to try a defendant repeatedly until the conviction has obtained, contradicting earlier acquitals and perhaps casting doubt on the integrity of earlier trials. It is true that the defendant may live in a continuing state of anxiety that he will someday be tried for the greater offence, but if the defendant is concealed the full extend of this crime, or if as here he himself requests two trials that anxiety cannot be said to have been caused by any misconduct on the part of the government. As I mentioned earlier our position does not leave a defendant at the mercy of a prosecutor who would carve up in offence into a series of underlying offences and bring a series of vexatious prosecutions, up the ladders it is said. The Due Process Clause fully protects the defendant from such governmental conduct even if because he is never twice put in jeopardy, he cannot claim protection under the Double Jeopardy Clause.
Speaker: You see in here maybe I missed it, the government could have indicted in one indictment with two count.
William F. Sheehan, III: Yes.
Speaker: Right.
William F. Sheehan, III: That is correct Mr. Justice.
Speaker: And for some reason that you do not know and I do not know they decided to do in two indictments.
William F. Sheehan, III: Yes, that is correct.
Speaker: And if he had put it in two there is no way, you could have challenged that
William F. Sheehan, III: If they had put both counts in the same indictment, yes I think he could have moved to sabre the counts.
Speaker: He could have.
William F. Sheehan, III: Yes, I think I would presume that he would have, I presume these objections to going to trial and both of those charges together would have been the same.
Speaker: So we would come out the same way.
William F. Sheehan, III: So we would come out the same. Indeed, for example suppose the District Court had granted our order and it had gone up to the Court of Appeals and the petitioner in the Court of Appeals had argued that that notion to consolidate had been improperly granted by the District court and the appellate court accepted this position and sent it back for a new trial, a separate trial in the continuing criminal enterprise. I think the defendant would be hard put to say that the Double Jeopardy Clause barred that trial. I think he is in the same position, as he would have been in persuading the Court of Appeals to order two trials as he is today having persuaded the District Court to order two trials.
Speaker: I wonder if that follows, because is not one of the reasons for his position that there should be separate trials in fact that there were a lot of defendants in the conspiracy trial with respect to whom prejudicial evidence will be introduced who are not defendants in the continuing criminal enterprise guide.
William F. Sheehan, III: Well, he said that he feared that the evidence of his co-conspirators' overt Acts would come in and that would carry over, but that evidence would be admissible. If he was tried in one trial on both the conspiracy and the continuing criminal enterprise, the evidence of his co-conspirators' overt acts would be admissible against him on the conspiracy charge, even if they were not named as co-defendants that requires an instruction by the District Court to the jury that they should not consider the evidence of overt acts on the continuing criminal enterprise charge. Now, the petitioner argues that our position is foreclosed by this court’s decisions in Waller against Florida and Robinson against Neil. Those cases in our view, do not hold the prosecution for greater offence is always barred by an earlier conviction on a lesser included offence. Indeed that issue was not raised or argued in those cases. They involved the question whether a municipality and the state with dual sovereigns under the Double Jeopardy Clause and holding that they were not, the court cannot be said to have passed upon or resolve the questions presented here. If those questions had been presented and passed, if those questions had been resolved in Waller or in Robinson, then presumably the court could have decided Blackledge against Perry on double jeopardy grounds, and presumably the court or perhaps the court would not have granted a writ of certiorari and the case to be argued next Brown against Ohio. I think that the issue was an open one, I think this is the first time it is presented to the court and I would repeat enclosing that the Due Process Clause is available to prevent the prosecutor from carving up crimes and bringing a series of prosecutions for no good reason. The Double Jeopardy Clause however applies only when a defendant is twice put in jeopardy for the same offence.
Stephen C. Bower: Mr. Justice may it please the Court. Direct my rebuttal time directly to the allege waiver issue, and I must agree with Justice Stevens when he queried the government’s representative as to whether or not this in fact is in the stopper or a waiver argument.
Speaker: What do you call it; what would you call it when defendant moves for a mistrial after he has been closed to jeopardy and this trial is granted and then he has tried again, you would call it waiver or stopple or ---
Stephen C. Bower: I would call it, Judge Your Honor a waiver with a small w, I do not think there has been a name for it, we must agree with Mr. Sheehan in this sense, since then I find no problems with the retrial after a granted motion for mistrial when made by the defendant, and quite frankly I do not see how it is controlling here, and the reason why is that in this case there was a ten defendant conspiracy indictment, and the objections to the consolidation were filed one by all of the defendants. The pleading is in the file, is in the appendix, much of the argument in there is by the other remaining defendants and not wanting to be tried with Jeffers on the continued criminal enterprise trial. Jeffers argument also, may it please to court on page 20 points out that he is talking about a steamroller effect upon the minds of the jury, the sheer aggregate of evidence have massed by the government and provided to the jury would create an inference of criminal disposition, based upon mere association with other defendants with whom the evidence is stronger. So what we have is a standard assertion that all of the defendants will not receive a fair trial by this prejudicial joiner or this trial together. I submit to the court that United States versus Simmons holds that you cannot panelize the exercise of a constituently protected right by requiring an order to exercise that you must waive another right. The government would ask this court to rule that when Jeffers, including the other nine defendants in the conspiracy, when Jeffers sought to prevent the trial together, which is a Sixth Amendment right to have a fair trial, he of necessity had to waive Fifth Amendment rights and this goes back to Justice Steven’s comments or question to the government, is this a waiver of constitutional rights. I submit that for the court to rule there is a waiver, there has been a waiver of double jeopardy rights of Fifth Amendment rights and that the record is simply absent in showing the type of knowing intelligent and voluntary waiver that is required of a basic fundamental constitutional right.
Speaker: You think each of these indictments required exactly the same proof or was there some proof required for each that was not required in the other.
Stephen C. Bower: The continued criminal enterprise required more proof especially concerning income Your Honor, but the conspiracy evidence was identical, as a matter of fact…
Speaker: That is not the issue whether it was identical, what is the government required to prove or something as to each indictment and that was not required to prove the other, and not whether they did in fact.
Stephen C. Bower: Concerning Jeffers, no Your Honor, the government accords with a multi-defendant conspiracy would have to prove tie in of each defendant into the conspiracy that was not required in the Jeffers case, but also Jeffers had to be tied in.
Speaker: Was not it almost a definition of a lesser included offence that the lesser included offence involves the same proof as a greater included offence, but that the greater involved the proof of the lesser included offence plus x plus something more.
Stephen C. Bower: That is correct.
Speaker: That is what it means.
Stephen C. Bower: That is right, and here.
Speaker: By man slaughter and first to be murdered.
Stephen C. Bower: Right, you have got a question of intent. In this instance, if I may go back to the waiver, we do not know why the trial court refused to grant the motion for trial together and I must point out that Jeffers did not object or did not take a stance that they could never be a trial together, what he claimed was that there will be prejudicial joinder if the ten defendant conspiracy was tied with the continued criminal enterprise. Now when the trial court granted his objections, the government was in this position. They had a pending conspiracy charge against him and a pending continued criminal enterprise. The government then was the one that proceeded the trial on the conspiracy first. Jeffers did not cause demand or was responsible for the conspiracy trial being tried first. The government had a very simple option. They could have moved to (Inaudible) Jeffers from the conspiracy trial and tried him with the continued criminal enterprise later. What I am submitting to the court is that Jeffers actions in seeking a fair trial free of prejudicial joinder in no way can be interpreted or should in no way be interpreted to mean that he had forever waive double jeopardy rights.
Speaker: If the government had followed the option that you just suggested could it have properly requested a lesser included offence instruction in the trial?
Stephen C. Bower: Most assuredly, and I would suggest that Justice Powell in Iannelli in Footnote 17 and 18 pointed out the proper procedure and I reiterated to the Court that that is the way they handle it, and that is a very practical, sensible way to handle it, because the penalty for continued criminal enterprise obviously covers the evil sought to be prohibited by a conspiracy. I would submit that at least Justice Burger has recognized that the same evidence rule is a matter of constitutional import. I would suggest also to the court that if this court recognizes the same evidence rule, it must have necessity, follow along with a lesser included offence rule because by the definition set forth in Blockburger, applying it to the case at bar the conspiracy was proven, both in the conspiracy case in the continued criminal enterprise, the only additional elements in the continued criminal enterprise had to do with Jeffers position as manager and the fact he receives substantial income. So I submit to the court that the first trial in conviction on the conspiracy as a lesser included offence or continued criminal enterprise should under the rules of double jeopardy, bar subsequent prosecution for the continued criminal enterprise.
Speaker: But Blockburger was not rested on the Double Jeopardy Clause.
Stephen C. Bower: Correct.
Speaker: Then why do you site Blockburger for the proposition that you just said?
Stephen C. Bower: I site this because it has traditionally been viewed and used by lower courts for these purposes.
Speaker: Are those decisions binding on us?
Stephen C. Bower: No, but I think if there is any doubt, I urge this court to adopt it, to make it clear that we have this constitutional protection, the double jeopardy and that the way we apply it is through the same evidence test. For years, cases have been coming before this court concerning with same evidence versus same transaction, and the courts repeatedly held that the same transaction rule is not what the Double Jeopardy Clause was meant to cover. If it is not the same evidence rule, I would submit we have no viable double jeopardy provision. So I would urge the Court that the lesser included offence rule is simply an extension of the save (ph) evidence rule that that if not elevated to constitutional standards by this Court, should be elevated to such standard. Thank you.
Warren E. Burger: Thank you gentleman, the case is submitted.