United States v. Claudio Calderone, and Domenico Catalano, A/K/A "Micu"

917 F.2d 717, 1990 U.S. App. LEXIS 18720

• Court: Court of Appeals for the Second Circuit
• Decided: October 24, 1990
• Docket: 1200, 1289, Dockets 90-1122, 90-1123
• Status: Published

Opinions

GEORGE C. PRATT, Circuit Judge:

Claudio Calderone and Domenico Catalano appeal on double jeopardy grounds from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, denying their motions to dismiss Indictment 89 Cr. 786 (RJW), which charges them with conspiracy to distribute heroin, use of a telephone to facilitate narcotics crimes, and possession of heroin with intent to distribute it. In a previous prosecution, Calderone and Catalano were acquitted of membership in a larger conspiracy that involved, in addition to the heroin-selling activities alleged here, the distribution of large quantities of cocaine and marijuana. We hold that the “same conduct” test that is now to be applied to double jeopardy claims arising in the context of successive prosecutions, see Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), bars prosecution of all counts of the present indictment. We therefore reverse the order of the district court and remand with a direction to dismiss the indictment.

BACKGROUND

A. The Adamita Indictment.

On June 30, 1988, a grand jury sitting in the Southern District of New York returned an indictment against Calderone, Catalano, and 26 others. United States v. Adamita, 701 F.Supp. 85 (S.D.N.Y.1988). Count One of the Adamita indictment charged all 28 defendants with participating in a wide-ranging, multi-drug conspiracy between January 1, 1985, and June 30, 1988, that involved, among other things, the importation of kilograms of heroin from Europe into the United States, sometimes in exchange for kilograms of cocaine; the distribution of kilograms of heroin and cocaine and multi-tons of marijuana; the use of various businesses as fronts for illegal activities; and the use of weapons to protect the narcotics business.

The Adamita indictment listed 105 overt acts committed in furtherance of the alleged conspiracy, but named Calderone or Catalano in only eight of them. In addition to the conspiracy count, Catalano was charged in only one substantive count; Calderone was charged in no other counts. The remaining 26 defendants were charged in one or more of the numerous substantive counts of possessing and distributing narcotics and using firearms in connection with drug trafficking crimes.

Trial before district judge John E. Sprizzo and a jury commenced on October 31, 1988, against 17 of the original 28 defendants, including Calderone and Catalano. To prove Calderone’s and Catalano’s membership in the alleged conspiracy, the government produced testimony showing that an undercover agent posing as a heroin distributor was introduced by a co-conspirator to Calderone and Catalano, both of whom acknowledged that heroin was available, but neither of whom actually sold any heroin to the agent. The agent also testified that after he had purchased heroin from another source, Calderone was present and received some of the money when the agent returned to pay the outstanding balance. In addition, both Calder-one and Catalano were observed in the company of some of the co-conspirators at various times during the alleged conspiracy.

At the close of the government’s case, all remaining defendants moved for judgments of acquittal pursuant to Fed.R. Crim.P. 29. After extensive argument, Judge Sprizzo granted the motions of seven defendants, including Calderone and Catalano. Judge Sprizzo ruled that proof of Calderone’s and Catalano’s membership in the conspiracy was legally insufficient to go to the jury. During an extensive colloquy with counsel, Judge Sprizzo stated, as to Calderone:

There is no question in my mind, and I will say it for the record, that if the government had proceeded against Mr. Calderone with a more narrowly charged conspiracy, I would have sent it to the jury. But you chose * * * to charge Mr. Calderone in a massive conspiracy, which according to the government’s opening in this case involved all of these things. The fact that he participated in one or two narcotics transactions and that he knows these other conspirators is legally insufficient for that purpose. [Tr. 7700-01].

I am not saying your evidence would not have been sufficient to prove Mr. Calder-one to be a member of a heroin conspiracy involving [two alleged co-conspirators], but you didn’t charge a heroin conspiracy. You charged a * * * broadly based conspiracy that involved different types of drugs. There is no evidence in the record from which I can infer that as to Mr. Calderone. [Tr. 7702-03].

As to Catalano, Judge Sprizzo stated:

[t]here is no evidence to permit a rational jury to find that Mr. Catalano was involved in this massive, all-encompassing multidrug conspiracy, none whatsoever, under the case law as I know it and upon the case law relied upon by the government. [Tr. 7704],

The case against Catalano is not as strong as it is against Calderone. What evidence is there in this record other than the fact that people have a meeting, * * * any knowledge that people were shipping cocaine out of the country, that they were bringing heroin back in exchange for cocaine, or that they were discussing multiton marijuana lots? You have at best an ordinary heroin dealer. * * * And the government says that any time they have a kilogram dealing in heroin that automatically the jury can properly infer that this person is charged with activities relating to other drugs— which is not only other drugs, * * * but the very peculiar aspect of this distribution of cocaine, which is to sell it abroad in exchange for heroin. Nonsense. The motion is granted. [Tr. 7707],

While not relevant to this appeal, the Adamita jury ultimately returned guilty verdicts against five of the remaining seven defendants, and not guilty verdicts against the other two.

B. The Calderone Indictment.

Because Judge Sprizzo issued judgments of acquittal on the ground of insufficient evidence before the Adamita case reached the jury, the government could not appeal the ruling. See 18 U.S.C. § 3731; United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). Instead, in what it characterizes as a decision “to modify the charging instrument so as to charge the separate conspiracy”, Brief of United States 17 n. **, the government filed a new indictment against Calderone and Catalano. United States v. Calderone, 89 Cr. 786 (RJW). In a nutshell, the Calderone indictment alleges that the activities for which Calderone and Catalano were unsuccessfully prosecuted in Adamita are sufficient to implicate them in a smaller conspiracy involving the distribution of heroin in New York.

Specifically, Count One of the Calderone indictment charges both defendants with participating in a conspiracy between January 1, 1987, and March 31, 1988, to distribute and possess with intent to distribute kilogram quantities of heroin in the New York metropolitan area. The indictment lists 21 overt acts in furtherance of the conspiracy, and names either Calderone or Catalano in 19 of them. Counts Two through Twenty-Five charge the defendants with using a telephone to facilitate narcotics crimes, and Counts Twenty-Six through Twenty-Eight charge them with possession of heroin with intent to distribute it.

On December 8, 1989, both defendants filed pre-trial motions to dismiss the indictment on double jeopardy grounds. District Judge Robert J. Ward, to whom the Calderone case had been assigned, denied the motions from the bench on February 2, 1990, following oral argument. The crux of the court’s ruling on Count One (the conspiracy count) was that the government had alleged a different conspiracy in Calderone than it had in Adamita; that is, it had alleged a limited, single-drug conspiracy in Calderone as opposed to the massive, three-drug conspiracy in Adamita. In making this ruling, the court emphasized Judge Sprizzo’s comments in Adamita that the government had, at best, proven a heroin conspiracy against Calderone and Catalano, but had failed to prove the larger conspiracy. As Judge Ward explained,

Let me put it this way. I would have no trouble with your [double jeopardy] argument if Judge Sprizzo had permitted that indictment, that charge to go to the jury, [and] the jury had found your client not guilty. I would have told the government in no uncertain terms this indictment is not appropriate.

But unfortunately what I have here is a directed verdict by a judge who has based his determination on a decision that he made that the government didn’t charge a heroin conspiracy.

Judge Ward concluded that “since [Judge Sprizzo] determined there was no charge of a heroin conspiracy [in Adamita ], the defendants were not placed in jeopardy and therefore the present prosecution alleging a heroin conspiracy does not constitute double jeopardy.” Judge Ward also denied the motions insofar as they sought dismissal of Counts Two through Twenty-Eight of the indictment.

Calderone and Catalano then brought this interlocutory appeal pursuant to Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). After this panel heard oral argument, the Supreme Court announced a new rule for double jeopardy claims arising in the context of successive prosecutions. See Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). We directed the parties to submit letter briefs addressing the impact of Grady on the present appeal. After careful consideration, we conclude that the “same conduct” test announced in Grady bars prosecution of all counts of the Calderone indictment. Accordingly, we reverse the order of the district court and remand for dismissal of the indictment.

DISCUSSION

Grady directs courts to follow a two-step analysis in resolving double jeopardy claims arising in the context of successive prosecutions. First, the court must apply the Blockburger test and its traditional exceptions to determine whether the offense charged in the subsequent prosecution “requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); see generally Grady, 110 S.Ct. at 2090-93 (discussing application of Blockburger and “collateral estoppel” and “component offense” exceptions). If the indictment survives this first stage of analysis — and we assume for the purpose of this opinion that the Calderone indictment does — then the court must apply Grady’s “same conduct” test, which “bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 110 S.Ct. at 2087.

As Justice Brennan’s opinion for the Court acknowledged, application of the “same conduct” test to the facts of Grady was “straightforward.” 110 S.Ct. at 2094. The defendant Corbin drove his car across the center line of a highway while intoxicated, killing the driver of an oncoming vehicle. Through an oversight in the local prosecutor’s office, Corbin was initially charged and convicted only of the misdemeanors of driving while intoxicated and failing to keep right of the median. When the state later indicted Corbin for vehicular homicide, it stated in a bill of particulars that it would establish Corbin’s guilt by proving his intoxication at the time of the accident, his failure to keep right of the median, and the fact that he was driving too fast for the weather conditions.

In Grady, then, the state admitted it would attempt to prove conduct for which Corbin had already been prosecuted (driving while intoxicated and crossing the center line) in order to establish the negligent or reckless acts necessary for a homicide conviction. In other words, the state would “prove conduct that constitutes an offense for which the defendant has already been prosecuted” in order to establish an essential element of the subsequent offense. The Court did emphasize, however, that the state could have prosecuted Corbin for homicide if it had relied only on conduct for which Corbin had not previously been prosecuted, for example, his driving too fast for road conditions. But because the state had indicated in its pleadings that it would rely on conduct for which Corbin had already in fact been prosecuted, double jeopardy barred the second prosecution. Id.

In the present case, the government first disputes whether Grady should be applied at all to successive conspiracy prosecutions, claiming that the decision “represents a narrow response to a relatively limited category of cases.” In place of Grady, the government would have us apply the balancing approach set forth in United States v. Korfant, 771 F.2d 660 (2d Cir.1985) (per curiam). But the government’s attempt to limit Grady to its facts mischaracterizes the intended scope of the Court’s decision.

Although Grady involved the successive prosecution of separate crimes arising from a single event, nothing in the opinion suggests that the Court intended to limit the “same conduct” test to those particular circumstances. Instead, the Court’s concern with the dangers of multiple trials, and its belief that the Blockburger test by itself was insufficient to guard against these dangers, see 110 S.Ct. at 2090-93, suggest that the Grady test was intended to guide double jeopardy analysis in all cases involving successive prosecutions. The “same conduct” test is described in inclusive, generally applicable terms throughout the opinion. See, e.g., id. 110 S.Ct. at 2093 (“the Double Jeopardy clause bars any subsequent prosecution” if Grady test is met) (emphasis added). Indeed, the opinion is structured so that it first declares a general rule, id. 110 S.Ct. at 2090-93, and then applies that rule to the facts of the case. See id. 110 S.Ct. at 2094.

For these reasons, we are persuaded that the “same conduct” test announced in Grady applies to all double jeopardy claims arising in the context of successive prosecutions. To the extent that Korfant and our other opinions in this area conflict with Grady, they are no longer good law.

Turning to the merits, the government contends that the conspiracy count of the Calderone indictment will not require proof of “conduct that constitutes an offense” for which the defendants have already been prosecuted. According to the government, the “conduct that constitutes the offense” in conspiracy cases is the alleged agreement itself rather than the specific conduct from which the agreement can be inferred. Therefore, the government argues, it will not establish an essential element of the conspiracy charged in Calderone by proving the “conduct” (i.e., the “agreement”) prosecuted in Adamita. We reject this argument for several reasons.

To begin with, the “agreement” in nearly all conspiracy prosecutions is not proved directly, such as by testimony of conspirators that “we agreed to sell narcotics”. Rather, the “agreement” is simply alleged, and to prove its existence the government presents evidence of the conspirators’ conduct — what they said and did — and asks the jury to infer from this conduct that the criminal agreement has been established. The conduct in most conspiracy cases, as was the conduct in Adamita, is the focus of the case. Under Grady, this conduct may not be prosecuted a second time in order to establish an “agreement” that differs from the first crime only in that the indictment happens to describe it differently-

Moreover, the government’s approach would nullify Grady by recasting it as an alternative formulation of Blockburger. In conspiracy cases, the agreement “is all but synonymous” with the offense itself, United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 763, 102 L.Ed.2d 927 (1989); it may be proved by, but it is not synonymous with, the conduct that gives rise to the conspiracy. Hence, if we simply were to compare the “agreements” alleged in successive conspiracy prosecutions, we would be looking to the offenses charged, as Blockburger requires, rather than to the conduct that constitutes the offenses, as Grady demands.

The problems with the government’s interpretation of Grady become even clearer if we recall “the ease with which prosecutors can draft indictments that allege what appear to be separate conspiracies”. United States v. Abbamonte, 759 F.2d 1065, 1068 (2d Cir.1985). A double jeopardy test that depends entirely on the agreement charged in the indictment would permit a series of conspiracy prosecutions based on identical conduct, provided that the succeeding indictments allege smaller (or larger, or different) “agreements” than the ones previously charged. Not only would this subject defendants to the “embarrassment, expense and ordeal” of trials seriatim, Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957), it would also give the government “an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction”. Grady, 110 S.Ct. at 2091-92. In short, we conclude that Grady’s “same conduct” test bars prosecution of the conspiracy count of the Calderone indictment.

The “same conduct” test likewise bars prosecution of the substantive telephone and heroin distribution counts. Although Calderone and Catalano were not charged with these specific crimes in Adamita, they were nonetheless prosecuted for the conduct that supports these offenses. And under Grady, they may not again be prosecuted for this conduct, even though the charges are brought under different criminal statutes.

CONCLUSION

For the reasons above, we hold that the “same conduct” rule announced in Grady bars prosecution of all counts of the Calderone indictment. Accordingly, the order of the district court is reversed, and the case is remanded for dismissal of the indictment.