Charles Leroy Timberlake and Mitchell Skiff Engelhart v. United States

767 F.2d 1479, 1985 U.S. App. LEXIS 20862
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 23, 1985
Docket84-2563, 2564
StatusPublished
Cited by14 cases

This text of 767 F.2d 1479 (Charles Leroy Timberlake and Mitchell Skiff Engelhart v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charles Leroy Timberlake and Mitchell Skiff Engelhart v. United States, 767 F.2d 1479, 1985 U.S. App. LEXIS 20862 (10th Cir. 1985).

Opinions

WILLIAM E. DOYLE, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Appellants Mitchell Skiff Engelhart and Charles Leroy “Chuck” Timberlake, airplane pilots by trade, became involved in a summer 1983 drug run from Colombia. On June 30, 1983, Engelhart and Timberlake left Grand Prairie, Texas, in a twin-engine Cessna Titan airplane. They flew to an isolated airfield in Colombia, where they picked up 23 duffel bags containing approximately 460 pounds of 97 percent pure cocaine. They flew to an isolated airfield located near Talihina, in the Eastern District of Oklahoma. They arrived at about 3:35 a.m., CDT, on July 1, 1983. The cocaine was removed from the plane. Appellants then flew to Dallas-Fort Worth, Texas, where they were arrested later that day. Engelhart had an understanding that he would be paid $175,000 for this flight; Timberlake was to be paid $70,000.

Appellants were indicted by a federal grand jury in the Eastern District of Oklahoma on July 27, 1983. This was for their transportation of the drugs as part of a conspiracy. Timberlake was indicted on six specific counts; Engelhart was indicted on seven. Both appellants entered into plea agreements with the United States Attorney whereby each pleaded guilty to three counts of the indictments and agreed to cooperate with the government in connection with the prosecution of the other conspirators. No promises were made by the government as to the sentences that appellants would receive. The government’s only promise was to bring appellants’ cooperation to the attention of the court at the time of sentencing. Both the government and the appellants kept their portions of the bargain.

The United States District Court for the Eastern District of Oklahoma, after ascertaining that there was a sufficient factual basis for appellants’ guilty pleas and determining that the pleas were knowingly and voluntarily entered, accepted the guilty pleas on September 2, 1983. On October 26, 1983, the court sentenced each appellant to twenty-five years imprisonment. Appellants retained new counsel and launched collateral attacks on their sentences by means of motions to vacate them pursuant to 28 U.S.C. § 2255. However, the district court denied their motions in memorandum opinions and judgments which were issued September 25, 1984 to [1481]*1481Timberlake, and on September 27, 1984 to Engelhart. These appeals are from the district court’s denial of the motions under § 2255.

Appellants have advanced several arguments in support of their appeal. Both of them argue that their convictions on multiple conspiracy counts violate the double jeopardy clause of the Fifth Amendment. The appellants also contend that they were denied effective assistance of counsel in violation of the Sixth Amendment. A final contention from appellant Engelhart maintains that the district court failed to ascertain whether there was a factual basis for his guilty pleas to Counts 3 and 5 of the indictment. We are unable to find any merit in any of appellants’ arguments and thus affirm the district court’s denial of their § 2255 motions.

We now address ourselves to the contention that there was double jeopardy which voids the pleas of guilty. Engelhart pleaded guilty to conspiracy to import cocaine in violation of 21 U.S.C. § 963, conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and conspiracy to travel in interstate and foreign commerce with intent to promote an unlawful activity contrary to 18 U.S.C. § 371. Appellant Timberlake pleaded guilty to the conspiracy counts. He was charged with violating 21 U.S.C. § 963 and 18 U.S.C. § 371. The appellants now contend that there was but a single conspiracy, and that imposition of several punishments for that single conspiracy under several statutes violates the double jeopardy clause.

We disagree with this contention. It is settled that a single illegal transaction may be punished under several statutory provisions if conviction under each statutory provision requires proof of a fact not required for conviction under the other statutory provisions. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). After all, these are separate and distinct violations, the conspiracy and the actual carrying out of the conspiracy. This double jeopardy test focuses on the elements of the crimes, and not on the specific acts charged in the indictment or the evidence presented at trial. United States v. Rodriquez, 612 F.2d 906, 919 (5th Cir.1980), aff'd. sub nom., Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); see also United States v. Solano, 605 F.2d 1141 (9th Cir.1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 677, 62 L.Ed.2d 652 (1980); United States v. Peterson, 524 F.2d 167 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). It is also settled that a single illegal activity may be punished under two distinct and specific conspiracy statutes, see American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), or under the general conspiracy statute (18 U.S.C. § 371) and a more specific conspiracy statute, United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981).

When one applies the rulings in the authorities which are set forth above, we can see that those convictions do not violate any double jeopardy clause. The Supreme Court has already ruled that a single conspiracy may support convictions under both 21 U.S.C. § 963 and 21 U.S.C. § 846. Albernaz v. United States, 450 U.S. 333, 339, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981). The holding in Albernaz effectively disposes of one of appellant Engelhart’s double jeopardy arguments.

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767 F.2d 1479, 1985 U.S. App. LEXIS 20862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-leroy-timberlake-and-mitchell-skiff-engelhart-v-united-states-ca10-1985.