People v. Wilson

563 N.W.2d 44, 454 Mich. 421

• Court: Michigan Supreme Court
• Decided: May 28, 1997
• Docket: Docket Nos. 101870, 102007, Calendar Nos. 3, 4
• Status: Published

Opinions

Brickley, J.

The defendants were charged in Oakland County with conspiracy to possess with intent to deliver over 650 grams of a controlled substance. They were previously convicted in Muskegon County of conspiracy to possess with intent to deliver cocaine. Because both prosecutions center on the same dates, witnesses, and evidence, we granted leave to appeal, limited to the double jeopardy implications of the defendants’ prosecutions in Oakland County.

We hold that the subsequent prosecution in Oakland County is barred by the Constitution of the United States and the Michigan Constitution. Therefore, the later convictions are reversed and vacated.

i

A

On December 11, 1989, Ronald Gardner,. Cato Peterson, Amir Wilson, and Aaron Banks were traveling in a white Cougar automobile from Detroit to Muskegon. Muskegon County Sheriff Deputy A1 VanHemert received a tip from a confidential informant that Aaron Banks and several other persons would be transporting crack cocaine to a Muskegon Heights neighborhood that afternoon.

Deputy VanHemert and another deputy, Stanley Berdinski, executed a legal stop and search of the vehicle. The deputies seized approximately 222 grams of crack cocaine and arrested the occupants of the vehicle.

Ronald Gardner, Cato Peterson, and Amir Wilson each made statements to the officers. Mr. Gardner stated that he was paid two hundred dollars by Ricky Franklin to drive Messrs. Peterson, Wilson, and Banks to the Muskegon Heights area and that he had previously transported sellers and drugs to that area. He also stated he had picked up money at the home of “Miss Louise” in Muskegon and transported the cash back to Detroit.

Further, Gardner stated that Mr. Franklin was the head of the organization. He stated that cocaine was sometimes transported in the spare tire in the trunk, that the cocaine would be placed into the spare tire at a gas station in Detroit, and the tire would be left behind a warehouse in Muskegon after the cocaine was removed. He knew where Ricky Franklin lived and was willing to show the officers where the warehouse was located. Additionally, Gardner stated he sold drugs for Aaron Banks, that Banks was the boss of the Muskegon operation, and that Franklin gave the drugs to Banks to sell.

Mr. Peterson stated to the officers that he was traveling to Muskegon to sell crack cocaine, that this was his second trip to Muskegon, and that Mr. Franklin was the head of the organization.

Defendant Wilson also made a statement to the Muskegon authorities after his arrest. He stated that he sold crack cocaine for Ricky Franklin and that he had sold drugs on three previous trips to Muskegon. He stated that Mr. Banks would stay at Miss Louise’s house and dispense the crack baggies to the sellers there. Further, he stated that the cocaine was transported in the spare tire in the trunk, that it was easy to recruit sellers from Detroit, and that Mr. Robert Johnson was also involved in the sale of cocaine.

The Muskegon County Prosecutor charged defendants Wilson and Banks with possession of a controlled substance with intent to deliver between 225 and 650 grams.¹ The charges were reduced after the cocaine was weighed to possession with intent to deliver between 50 and 225 grams of cocaine and conspiracy to possess with intent to deliver.²

On June 6, 1990, Amir Wilson was convicted by a Muskegon County jury of possession with intent to deliver and conspiracy to deliver between 50 and 225 grams of cocaine. On July 3, 1990, Mr. Wilson was sentenced to two concurrent prison terms of eight to twenty years. On June 11, 1990, Mr. Banks was convicted in Muskegon County of possession of less than 50 grams of cocaine³ and conspiracy to possess less than 25 grams⁴ arising out of the December 11, 1989, arrest. He was sentenced to ten to twenty years in prison and two years eight months to four years in prison, respectively.⁵

B

On July 5, 1990, Southfield police arrested Gerald Hill for possession with intent to deliver between 225 and 649 grams of cocaine.⁶ Oakland County officials began an investigation into Mr. Franklin’s drag activities. At this time, the Muskegon and Oakland Counties Sheriff Departments joined efforts to investigate the “Franklin organization.”

In December 1990, an Oakland County citizens grand jury indicted Messrs. Wilson, Banks, Hill, Johnson, and another individual, Terrence Moore,⁷ on charges of conspiring from October 1988 to December 1990 to possess with intent to deliver over 650 grams of cocaine.⁸

Defendants Wilson and Banks moved to set aside the indictment on the basis of a violation of double jeopardy. Their motion was denied. Messrs. Wilson, Banks, Hill, and Johnson were jointly tried in September of 1991. Messrs. Wilson and Banks renewed their motion to dismiss at trial, and, again, the motion was denied. After the second trial, defendant Wilson was found guilty of conspiracy to deliver between 50 and 250 grams of cocaine. Defendant Banks was found guilty of conspiracy to possess with intent to deliver more than 650 grams of cocaine. The defendants appealed, and the Court of Appeals affirmed.⁹ We granted leave, limited to the double jeopardy issue. 450 Mich 904 (1995).

n

The Fifth Amendment of the United States Constitution provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb . . . .” The Fifth Amendment double jeopardy protections are applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). “The language of the Michigan Constitution’s double jeopardy provision is substantially similar to that of the United States Constitution.” People v Mezy, 453 Mich 269, 279; 551 NW2d 389 (1996). Michigan’s Constitution, art 1, § 15, declares that “[n]o person shall be subject for the same offense to be twice put in jeopardy.” Further, Michigan had codified the guarantee against double jeopardy.¹⁰

The double jeopardy guarantee protects against successive prosecutions for the same offense and protects against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The double jeopardy protections are inherent in our system of jurisprudence because we believe that

the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).]

We follow the federal rule that if a defendant can make a prima facie showing of a violation of the Double Jeopardy Clause, a second prosecution is barred unless the government can demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. Mezy, supra at 277.

In order to make a prima facie case of double jeopardy, the defendant must show that he was prosecuted twice for the same offense. The same offense includes prosecution for a greater crime after conviction of the lesser included offense. See Brown v Ohio, 432 US 161, 169; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Conspiracy to possess with intent to deliver 50 to 224 grams of cocaine is a lesser included offense of conspiracy to possess with intent to deliver over 650 grams. See People v Marji, 180 Mich App 525, 531; 447 NW2d 835 (1989).

Initially, in its brief to this Court in Wilson, the prosecution’s only argument that more than one conspiracy existed is as follows,

In People v Mezy, 453 Mich 269; 551 NW2d 389 (1996), this Honorable Court recently discussed the problem of determining whether there were two separate drag conspiracies or only one. A further problem is presented in dealing what the Court of Appeals has previously referred to as a “chain conspiracy.” People v Meredith (On Remand), 209 ; 531 NW2d 749 (1995), lv den 450 Mich 852 (1995).

As can be .seen from the People’s counter-statement of facts, drug conspiracies involve many individuals, who may have no knowledge of other conspirators or even the extent of the conspiracy when they become involved in it. In addition, as is again demonstrated in this case, certain individuals may only be known to others by a nickname. Further complicating prosecution in drug offenses is the fear inspired by such organizations, resulting in uncooperative witnesses and, as evidenced by Gardner’s and Cato Peterson’s statements in this case, a failure to fully disclose their own or others’ participation in the conspiracy.[¹¹]

Contrary to the position of the dissent, the people’s argument is not that this Court should find that more than one conspiracy existed, it is that this Court should hold that the Brown exception applies.

Moreover, in the Oakland County case, the people did not charge the defendants with separate conspiracies for agreements that occurred after the December 11, 1989, arrest of these defendants. The defendants were bound over only on one count of conspiracy to deliver or manufacture a controlled substance, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).

Even assuming that the prosecution makes the argument alleged by the dissent, I would still hold that there was only one conspiracy. “The gist of the crime of conspiracy is the agreement of the conspirators to commit one or more unlawful acts, where one or more of the coconspirators do ‘any act to effect the object of the conspiracy.’ ” Mezy at 284, quoting Braverman v United States, 317 US 49, 53; 63 S Ct 99; 87 L Ed 23 (1942). We continued in Mezy:

In order to determine what the extent of the agreement is, so that we may determine whether there are two conspiracies or only one, we will use the same “totality of the circumstances” test used in constitutional double jeopardy analysis. This test includes the following factors: 1) time, 2) persons acting as coconspirators, 3) the statutory offenses charged in the indictments, 4) the overt acts charged by the government or any other description of the offenses charged that indicate the nature and scope of the activity that the government sought to punish in each case, and 5) places where the events alleged as part of the conspiracy took place. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement each with a separate object. [Mezy, supra at 285, citing United States v Thomas, 759 F2d 659 (CA 8, 1985).[¹²]

First, we will explore the time factor. The time frames of the two alleged conspiracies overlap. The felony information for the Muskegon conspiracy does not list a specific time frame. However, at Wilson’s trial in Muskegon, the prosecutor argued that the agreement took place between December 7 and December 11. Also, the jury in Banks’ case was instructed that the prosecution alleged the agreement was made between December 7 and 11, 1989. The overlap in time does not prove that there was only one conspiracy because “many drug offenses occur at the same time without being connected,” Mezy, supra at 288 (Brickley, C.J., concurring in part and dissenting in part). However, unlike Mezy, the facts of this case indicate that there was only one agreement when the other elements of the test are reviewed.

The Muskegon trial was based on an alleged conspiracy between Cato Peterson, Ronald Gardner, Rick Franklin, Amir Wilson, and Aaron Banks. It was alleged by the Muskegon authorities that Franklin was the leader of the conspirators, Aaron Banks acted as a distributor of the cocaine in Muskegon, and cocaine was brought to Muskegon from the Metro Detroit area. In the Oakland County prosecution, it was alleged that Ricky Franklin was the leader of the conspirators, that Aaron Banks acted as a distributor (as did Robert Johnson), and that the cocaine was transported to Muskegon from the City of Detroit and certain areas of Oakland County. The difference was that additional conspirators were indicted in the Oakland County case. All the conspirators in the Muskegon case were considered conspirators in the Oakland County case, whether indicted or not.

Additionally, the statutory offenses were essentially the same. In Muskegon County, the defendants were charged with possession with intent to deliver between 50 and 225 grams of cocaine and conspiracy to possess with intent to deliver. However, no amount was addressed with respect to the conspiracy count. In Oakland County, the defendants were charged with conspiracy to possess with intent to deliver more than 650 grams of a controlled substance. Therefore, the defendants were charged with a greater crime after being convicted of the lesser included offense. Marji, supra at 531.

The overt acts and offenses described by the people for both cases were similar. In fact, in the Oakland County case, the people spent one and one-half days recounting to the jury the facts of the Muskegon case. The same police officers and detectives testified about the same events, in the same location, involving the same evidence. Further, the same witnesses testified about the same events, in the same location, involving the same evidence. Essentially, the Oakland County trial was the Muskegon trial, plus more evidence of events that occurred after the defendants’ roles in the conspiracy ended.¹³

Also, the locations of the conspiracies were the same. The dissent makes much of the fact that one witness, Jeremiah Perry, testified that he told the police that Ricky Franklin sold drugs in Muskegon, Grand Rapids, Benton Harbor, Kalamazoo, Minnesota, Pittsburgh, Ft. Wayne, Indiana, and Lima, Ohio. However, this information was brought out on cross-examination when counsel for codefendant Terrence Moore indicated that Perry could only link Mr. Moore to transactions in Muskegon, not to any other sales he may have mentioned to the police. Furthermore, the prosecution did not link any of these sales to the conspiracy that was charged, and Perry only testified to agreements to sell in Muskegon.¹⁴

Finally, we note that Wilson’s and Banks’ parts in this conspiracy ended when they were arrested on December 11, 1989. In United States v Goff, 847 F2d 149, 169 (CA 5, 1988), the United States Court of Appeals for the Fifth Circuit differentiated between the end of a conspiracy and the end of an individual’s role in a conspiracy. “ ‘It is well settled that a person’s participation in a conspiracy ends when the person is arrested for his role in the conspiracy.’ ” (Quoting United States v Dunn, 775 F2d 604, 607 [CA 5, 1985].) However, solely because a single individual’s part may have ended, the conspiracy does not necessarily end. “Even when several members of a conspiracy are arrested, the conspiracy itself is not thereby necessarily terminated.” Goff at 170, citing United States v Kalish, 690 F2d 1144, 1151 (CA 5, 1982). “Drug conspiracies involving multiple importation episodes may continue for many months.” Goff at 170.

In Goff, the same four persons were involved in multiple shipments. The court found that even though other personnel continually changed, there was only one conspiracy. The same is true in the instant case. Ricky Franklin and Martese Weidaman were the constant leaders of this conspiracy. Wilson’s and Banks’ involvement in the conspiracy ended after their arrest on December 11, 1989. There was no evidence that Wilson or Banks continued to conspire with Franklin, nor was there evidence that they participated in any activity in furtherance of the conspiracy.¹⁵

Wilson and Banks made only one agreement with the other members of their conspiracy. That agree-merit was to transport cocaine that was obtained by Ricky Franklin to Muskegon, and to sell the same cocaine in a neighborhood in Muskegon known as the “danger zone.” Each trip to Muskegon was not a separate conspiracy. To say that each trip could be considered a separate conspiracy, or that each sale could be a separate conspiracy, would lead to the exact results sought to be prevented by the Double Jeopardy Clause — subjecting the defendant to the “hazards of trial and possible conviction more than once for an alleged offense.” Green, supra at 187. Therefore, we find that only one conspiracy existed under the facts of this case, and that the defendants have made a showing of double jeopardy.

The burden now shifts to the people to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. Mezy, supra at 277. The people argue that the second prosecution was valid under the exception in Brown, supra at 169. The United States Supreme Court held in Brown that “[w]hatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulátive punishment for a greater and lesser included offense.” Id. The Court further stated:

An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. [Id. at 169, n 7, citing Diaz v United States, 223 US 442, 448-449; 32 S Ct 250; 56 L Ed 500 (1912); Ashe v Swenson, 397 US 436, 453, n 7; 90 S Ct 1189; 25 L Ed 2d 469 (1970) (Brennan, J., concurring).[¹⁶]

The people rely on this exception for its authority to circumvent double jeopardy requirements. However, the people have failed to show this Court why they could not have discovered the greater conspiracy despite the exercise of due diligence. In fact, the testimony at the Muskegon trial indicates that the Muskegon authorities knew that these two defendants were part of a larger conspiracy when they were tried in Muskegon.

The people argue that this Court should rely on the decision in United States v Tolliver, 61 F3d 1189 (CA 5, 1995). The Tolliver court held that “[f]rom the record, it is apparent that while the government may have suspected the existence of [a] conspiracy during the prosecution of [the defendant], at that time the government did not have sufficient evidence to indict [the defendant] for his participation in the . . . conspiracy.”¹⁷ Id. at 1211.

Unlike the facts of Tolliver, the Muskegon authorities knew of the existence of the Franklin organization. They knew that these defendants were directly involved in the conspiracy. The statements of Messrs. Gardner, Peterson, and Wilson indicated the manner in which the cocaine was transported (in spare tires), where the defendants stayed while in Muskegon (Miss Louise’s home), that the organization was headed by Ricky Franklin in Detroit, that others were involved, and that they had made previous trips to sell drugs in Muskegon.

There is evidence that Muskegon authorities had actual knowledge of the greater criminal organization. The testimony of the officers indicate that they had Miss Louise’s home and her neighborhood and Aaron Banks under surveillance for some time. Further, the Muskegon authorities had arrested another member of the organization only weeks before the December 11, 1989, arrest.

The most telling reason for holding that the Muskegon authorities knew of the greater conspiracy, and with the exercise of due diligence could have produced additional evidence to support the greater charge, was the statement made by Mr- Wilson to Deputies VanHemert and Berdinski. Mr. Wilson stated that he had sold as much as $3,000 worth of crack cocaine in a single trip to Muskegon. Further, Mr. Wilson stated that Mr. Banks routinely transported money back to Detroit. When asked what was the most money he had seen transported back to Detroit, he responded, “Around a hundred thousand,” and that was in the summer of 1989. This could have formed the basis for additional investigation by the Muskegon authorities.

Additionally, the convictions were based on the same arrest and seizure of cocaine. The initial convictions were for the December 11, 1989, incident and the second convictions were for a continuing conspiracy from October 1988 to December 1990. The people based the case against these defendants on the same cocaine that was seized on December 11, 1989. The Oakland prosecution was based on the testimony of the same witnesses who testified at the Muskegon trial.¹⁸ Any additional witnesses provided by the prosecution in the Oakland County case only added weight to the prosecution’s case and did not form the basis for an additional separate crime.

Even though the Muskegon authorities did have actual knowledge of the greater conspiracy, the people failed to provide any evidence that the Muskegon authorities exercised due diligence in investigating this organization.

The people argue that Messrs. Gardner and Peterson minimalized their involvement in the organization and that therefore the people could not have known of the greater organization at the time of the first trial. However, the actual statements and trial testimony given by the witnesses show that Messrs. Gardner and Peterson were willing to fully aid the investigation. Moreover, Oakland County had the necessary information to get a grand jury indictment within six months of the sentencing following the first trial of Messrs. Wilson and Banks.

Finally, the knowledge of the Muskegon authorities is imputed to the Oakland County authorities. Therefore, Oakland County is deemed to know all that the Muskegon County authorities knew. As stated in Waller v Florida, 397 US 387, 392; 90 S Ct 1184; 25 L Ed 2d 435 (1970):

“Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” [Quoting Reynolds v Sims, 377 US 533, 575; 84 S Ct 1362; 12 L Ed 2d 506 (1964).]

In Waller, the United States Supreme Court overturned the second conviction of the defendant in a state court because the defendant had been tried and convicted previously in a municipal court. The Court held that the second prosecution violated the Double Jeopardy Clause because the prosecutions were by the same sovereign. The counties of Muskegon and Oakland are not separate sovereigns; they are subdivisions of this state. Therefore, we impute the knowledge of the Muskegon authorities to the Oakland County authorities. Any information that the Muskegon authorities knew or could have known if they exercised due diligence in investigating this drug conspiracy will be imputed to the Oakland authorities. Therefore, the state is allowed only one prosecution and that occurred in Muskegon.

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CONCLUSION

On the basis of the statements of Messrs. Gardner, Peterson, and Wilson, and the evidence introduced at the first trial, the Muskegon prosecutor could have charged Messrs. Wilson and Banks with conspiracy to possess with intent to deliver over 650 grams of cocaine. The prosecutor chose not to do so and charged the defendants with the lesser offense. The second prosecution for the greater offense constituted double jeopardy. The people failed to prove to this Court by a preponderance of evidence that the exception articulated in Brown applies to this case. Therefore, we conclude that the second prosecution for the greater offense is barred.

Mat,lktt, C.J., and Cavanagh, J., concurred with Brickley, J.

1 MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii).

2 MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(üi). The conspiracy count was not for a specific amount of cocaine.

3 MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv).

4 MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v).

5 Cato Peterson and Ronald Gardner were both given reduced sentences for their cooperation with the investigation, including testifying against defendants Wilson and Banks.

6 Southfield police made the arrest after a routine traffic stop of the vehicle in which Mr. Hill was a passenger. The vehicle was also occupied by Ricky Franklin. The police allowed Mr. Hill to go into a store across the street from where the vehicle was stopped. After Mr. Hill left the area, store employees alerted police officers that they had found cocaine in a jacket behind the store.

7 The record indicates that Mr. Franklin has fled this state in order to avoid prosecution.

8 MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).

9 The Court of Appeals did not inquire into the argument that there was more than one conspiracy. The Court stated:

It is clear that Muskegon County could not have known the extent of the conspiracy at the time of defendants’ convictions. Because the crime could not be discovered, despite diligence on the part of the police, until after the commencement of the prosecution for other crimes arising from the same transaction, an exception to the same transaction rule allows a separate prosecution. People v Harding, 443 Mich 693; 506 NW2d 482 (1993). [People v Moore, unpublished opinion per curiam, issued November 28, 1994 (Docket No. 145614), p 3.]

10 When a defendant shall be acquitted or convicted upon any indictment for an offense, consisting of different degrees, he shall not thereafter be tried or convicted for a different degree of the same offense; nor shall he be tried or convicted for any attempt to commit the offense charged in the indictment or to commit any degree of such offense. [MCL 768.33; MSA 28.1056.]

11 In its brief in Banks, the people merely incorporate its brief for codefendant Wilson, and then argue that the Brown exception should apply to this case.

12 In Thomas, the court held that there was more than one agreement. However, the facts of Thomas are significantly different than those in this case. In Thomas, the defendants were charged with conspiracy to travel interstate for the promotion of unlawful activity arising out of hidden interests by organized crime groups in casinos. The defendants were skimming off of different casinos with different partners in the second conspiracy. Therefore, there was more than one agreement.

13 The testimony of Mr. Dwayne Albert Winn was read into the record. Mr. Winn stated that Aaron Banks distributed the cocaine and collected the money from the sellers in Muskegon. However, this was known by the Muskegon authorities and alleged at the trial in Muskegon. Mr. Winn’s testimony did no more than add weight to the testimonies of Detective VanHemert, Cato Peterson, and Ronald Gardner.

14 Perry’s testimony dealt only with sales in Muskegon.

15 There was an inference made that Aaron Banks contacted one of the witnesses, Ronald Gardner, just after their arrest in Muskegon and suggested that Gardner should hire Banks’ attorney. However, the Oakland County judge ruled that this testimony was irrelevant because there was no indication that this was done to silence Gardner.

16 We adopted this exception in People v Harding, 443 Mich 693, 699-705; 506 NW2d 482 (1993); People v White, 390 Mich 245, 258, n 6; 212 NW2d 222 (1973).

17 In Tolliver, the defendant argued that the conspiracy count he was charged with was the same offense for which he had been previously convicted. He had been convicted of conspiracy with intent to distribute cocaine, possession with intent to distribute cocaine, and using and carrying firearms in relation to a drug trafficking offense.

The government did not dispute that the overt acts referred to in the superseding indictment were also the overt acts in the first conspiracy. The United States Court of Appeals for the Fifth Circuit held that the defendant proved a prima facie double jeopardy claim. The court then looked to see if the people could prove an exception by a preponderance of the evidence.

18 Ronald Gardner, Cato Peterson, Deputies Dale Gooden and August Panici testified at both trials. Deputy Berdinski had died between the two trials. Deputy VanHemert’s Oakland County preliminary examination testimony was read into the record in the Oakland County trial.