Supreme Court Will Rule on Key Double Jeopardy Issue

SENTENCING February 1995

On Jan. 6, 1995, the U.S. Supreme Court said that it will review the case Wittie v. U.S.,* which involves the question of whether a court can convict a defendant of one crime, determine proper sentencing by this crime and a related crime, and then prosecute the defendant for the related crime ("'Double Jeopardy' in Sentencing To Get Supreme Court Review," Drug Enforcement Report, Jan. 23, 1995, p. 5; for case background, see U.S. v. Wittie, No. 93-2245, 25 F.3d 250 (5th Cir. 1994)).

Undercover Drug Enforcement Administration (DEA) agent Roger Norman worked with Steven Kurt Witte of Denver, Colorado and others to import marijuana from Mexico and cocaine from Guatemala in 1989 and 1990. In July 1990, Norman arranged with the others to fly 4,400 pounds of marijuana to the U.S. When DEA agents met the plane, they found and seized 591 kilograms of cocaine instead of the marijuana. Witte was not charged in the incident because key witnesses were incarcerated in Mexico or were missing. Witte would have faced charges of conspiracy or attempt to import cocaine.

Norman again made contact with Witte in Jan. 1991 and offered to sell Witte 1000 pounds of marijuana. On Feb. 7, 1991, the two met and Witte paid a downpayment of $25,000 in exchange for 1000 pounds of marijuana. Witte was then arrested.

Witte pleaded guilty to charges of aiding and abetting possession with intent to distribute marijuana and agreed to help the government with other cases. The government agreed to drop charges of conspiring to possess with intent to distribute more than 100 kilograms of marijuana.

The district court found the marijuana and the cocaine incidents were parts of the "same course of conduct." The court included the cocaine in determining Witte's base level offense, although the government and Witte objected. The government argues against the inclusion because it intended to file charges in the cocaine offense. Witte was sentenced to 144 months imprisonment, 148 months below the minimum of the Sentencing Guidelines range due to his cooperation with the government.

The government then indicted Witte on charges of conspiring to import cocaine and aiding and abetting in the attempt to import cocaine between Aug. 1989 and Aug. 1990.

The U.S. District Court for the Southern District of Texas dismissed the second indictment citing double jeopardy prohibition, and the government appealed.

The Court of Appeals for the Fifth Circuit unanimously reversed that ruling, finding that:

(1) even if use of cocaine to enhance defendant's base offense level on marijuana charges was punishment, subsequent indictment on cocaine charges would not violate double jeopardy, and (2) defendant did not establish that he has a reasonable belief that plea agreement would provide immunity from prosecution in other cases arising from the same course of conduct.

Further, the court found that the Sentencing Guidelines required the court to examine all "relevant conduct" when figuring a sentence, with the cocaine trafficking being relevant. Such sentencing does not violate the double jeopardy prohibition because, in the opinion of the court, Congress intended that

the government may convict ... [a defendant] of one offense and punish him for all relevant conduct, then indict and convict him for a different offense that was part of the same course of conduct as the first offense, and sentence him again for all relevant conduct. (emphasis original)

In its opinion, the Court of Appeals considered and distinguished U.S. v. Koonce (945 F.2d 1145 (10th Cir. 1991)), in which the court found double jeopardy in a similar case.

* The correct spelling of the defendant's name is Witte, not Wittie. Readers will find the case indexed under the name Wittie, however.