Supreme Court Rules on Double Jeopardy Sentencing Issue

SENTENCING September 1995

The Supreme Court ruled on June 14 that prosecuting a defendant for a crime that had already been used to determine a base offense category in sentencing for another crime does not violate the Fifth Amendment's Double Jeopardy prohibition against multiple punishments (Witte v. U.S., No. 94-6187, June 14, 1995; 57 CrL 2159-2168; for case background, see U.S. v. Wittie,* No. 93-2245, 25 F.3d 250 (5th Cir. 1994); "Supreme Court Will Rule on Key Double Jeopardy Issue," NewsBriefs, February 199).

In an 8-1 split, the court found that the government can prosecute Steven Kurt Witte of Denver, Colorado on a cocaine charge even though the fact of the cocaine offense was used to increase his sentence for another crime.

Undercover Drug Enforcement Administration (DEA) agent Roger Norman worked with Witte 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 January 1991 and offered to sell Witte 1000 pounds of marijuana. On February 7, 1991, the two met and Witte made a downpayment of $25,000 in exchange for the 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.

A district court found that 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 argued 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 August 1989 and August 1990.

The U.S. District Court for the Southern District of Texas threw out the second indictment, citing double jeopardy. The Court of Appeals for the Fifth Circuit unanimously reversed that ruling.

In the Supreme Court's majority opinion, Justice O'Connor cited Williams v. Oklahoma (358 U.S. 576 (1976)), which held that sentence enhancement based on a separate yet related offense is not punishment under the Double Jeopardy Clause. She wrote that the majority saw no reason to depart from that decision.

"Consideration of information about the defendant's character and conduct at sentencing does not result in punishment for any offense other than the one of which the defendant was convicted," she wrote.

Judges are able to consider past criminal behavior in arriving at a sentence, she wrote. The act of handing down a sentence is punishment for the conviction offense, not for other considered behavior and action.

Justice Stevens dissented, arguing that the second prosecution clearly violated the Double Jeopardy prohibition. "Under these facts, it is hard to see how the Double Jeopardy Clause is not implicated," he wrote. "In my view, quite simply, petitioner was put in jeopardy of punishment for the cocaine transactions when, as mandated by the Guidelines, he was in fact punished for tose offenses. The Double Jeopardy Clause should thus preclude any subsequent prosecution for those cocaine offenses."

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