Supreme Court Hears Arguments on Double Jeopardy in Conspiracy Cases

IN THE COURTS February 1996

On November 27, the U.S. Supreme Court heard arguments about whether sentencing for both a drug conspiracy and a continuing criminal enterprise conviction constitutes a violation of the Fifth Amendment double jeopardy prohibition (Rutledge v. U.S., No. 94-8769, 58 CrL 3088; for background, see U.S. v. Rutledge, 40 F.3d 879 (7th Cir. 1994)).

Tommy L. Rutledge was convicted of conspiring to distribute cocaine, conducting a continuing criminal enterprise (CCE), distribution of cocaine, possession of a firearm by a felon, and using or carrying a firearm during the commission of a drug felony. Two other defendants, Shelly Henson and Richard Hagemaster, were convicted of conspiring to distribute cocaine.

Rutledge led a cocaine distribution ring out of Youngstown, Illinois, and employed a number of people, including Shelly Henson, Richard Hagemaster, Roger Malott, Kim Mummert, and Randy Mustread. In addition to distributing cocaine, Rutledge dealt and traded firearms.

In July 1989, police arrested Rutledge after Malott told them Rutledge was involved with drugs and guns. Before Malott could testify before a grand jury, however, Rutledge threatened to kill him and Mummert, and Malott told the jury Rutledge had nothing to do with drugs or guns.

Rutledge was again arrested in December 1990, and he was indicted with Henson, Hagemaster, and another employee of the organization in February 1991. Malott, Mummert, Mustread, and one of Rutledge's customers cooperated with the government in their prosecution.

The district court sentenced Rutledge to a life sentence for the CCE offense and a life sentence for the conspiracy charge, which was to be served concurrently to the CCE sentence as it was the lesser of the two charges. The U.S. Court of Appeals for the Seventh Circuit ruled that there were no double jeopardy problems if the judge ordered the sentences to be served concurrently.

Barry Levenstam of Chicago, Illinois, argued for the defense that the two charges were based on the same conduct, and to be convicted of the two was a stigma to the defendant. He relied on Ball v. U.S., 470 U.S. 856 (1985), in which the U.S. Supreme Court found that a conviction for an offense is punishment in and of itself. He argued that Congress did not intend for multiple judgments, much less multiple sentences, to be applied in cases such as Rutledge's.

Justice Souter asked why the second life sentence, when being served concurrently to the other life sentence, was particularly stigmatizing. Levenstam said that the fact that Rutledge was given two life sentences was published in the newspapers, and community members would think that he had committed two offenses. Many of the justices expressed concerns about the administrative consequences of not applying the concurrent sentence for the conspiracy. What if the conviction for CCE is overturned on appeal? Justice Breyer asked.

James A. Feldman, Assistant to the Solicitor General, warned of the dangers of applying double jeopardy in these kinds of cases. In essence, if a defendant is convicted of two offenses, "he gets a windfall." He argued that Congress intended for conspiracy and the CCE charges to be separate; the CCE charge is not just an "aggravated" conspiracy.

Justice Stevens pointed out that there are many cases when a defendant's conviction for a greater offense is overturned on appeal and the defendant still must serve time for the lesser offense. Feldman argued that CCE and conspiracy are two distinct statutes created by Congress, and that a defendant can be guilty of CCE and not of conspiracy. Congress did not intend for convictions on two counts to allow the defendant to escape punishment, Feldman said. He said he did not take issue with Levenstam's argument that conspiracy could be considered a lesser included offense of CCE, as long as if the CCE charge is overturned, the judge could enter a judgment on the conspiracy offense.