United States v. Warda

921 F. Supp. 580, 1996 U.S. Dist. LEXIS 4372, 1996 WL 157168
CourtDistrict Court, E.D. Wisconsin
DecidedMarch 25, 1996
DocketNo. 96-CR-13
StatusPublished

This text of 921 F. Supp. 580 (United States v. Warda) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Warda, 921 F. Supp. 580, 1996 U.S. Dist. LEXIS 4372, 1996 WL 157168 (E.D. Wis. 1996).

Opinion

DECISION AND ORDER

WARREN, District Judge.

Before the Court is the Recommendation of Magistrate Judge William E. Callahan, Jr. on the defendant’s Motion to Dismiss Superseding Indictment. On March 15, 1996, Magistrate Judge Callahan recommended that the defendant’s Motion to Dismiss be denied. On March 20, 1996, the defendant filed an Objection to the Magistrate Judge’s Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 13.03 requesting a de novo review of the Magistrate Judge’s decision. For the following reasons, this Court adopts Magistrate Judge Callahan’s Recommendation and the defendant’s Motion to Dismiss is DENIED.

I. PROCEDURAL AND FACTUAL BACKGROUND

On February 6, 1996, a federal grand jury sitting in the Eastern District of Wisconsin returned a one-count superseding indictment against the defendant, John Warda, charging him with escaping from the Ozaukee County Jail in violation of Title 18, United States Code, Section 751(a) where he was being held by virtue of his lawful arrest for a felony offense, conspiracy to possess with intent to distribute cocaine, in violation of Title 21, United States Code, Section 846. The defendant was arraigned on February 15, 1996, before Magistrate Judge Callahan and pleaded not guilty. On February 22, 1996, the defendant filed a motion to dismiss the superseding indictment on the grounds that it constitutes a successive prosecution and subjects the defendant to multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. On March 4,1996, the government responded to the defendant’s motion to dismiss. On March 15, 1996, the Magistrate Judge issued a Recommendation now under review by this Court.

By way of brief factual background, on August 31,1994, the defendant escaped from the Ozaukee County Jail where he was being held awaiting sentencing on a federal drug conspiracy charge. After his escape, the defendant was arrested in Mexico and was extradited back to the United States. The defendant arrived in the Eastern District of Wisconsin on January 11, 1996, and was returned to the Ozaukee County Jail where he currently remains in custody. Pursuant to Ozaukee County Jail procedures, correctional officers initiated disciplinary proceedings against the defendant for the following violations of internal jail rules and regulations: (1) escape, (2) possession of contraband, (3) being unsanitary, (4) extortion/blackmail and/or protection, (5) destruction of jail property and (6) offering a staff member a bribe. Each of these charges related to the August 31, 1994 escape. On January 12, 1996, the defendant was afforded a due process hearing regarding these charges, was found to have substantially violated jail rules, and consequently, received a ten-day suspension of jail privileges for each violation. As a result, [582]*582the defendant’s visitation, commissary, recreation and telephone privileges were suspended for 60 days, although the defendant was allowed access to his attorney and received essential medical and personal hygiene items. The defendant appealed the decision through the proper administrative channels, however, the decision was affirmed on January 18, 1996. The defendant claims that the disciplinary sanctions imposed on him by officials at the Ozaukee County Jail preclude prosecution of the federal escape charge on double jeopardy grounds.

II. STANDARD OF REVIEW

A district court must review de novo the recommendations of the Magistrate Judge to which either party timely objects. 28 U.S.C. § 636(b)(1)(C); United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 2410-12, 65 L.Ed.2d 424 (1980). The court may review de novo any other aspect of the Recommendation as it sees fit. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986) (“[T]he statute should be read as permitting modifications and de novo determinations by the district judge at all times but mandating de novo determinations when objections are raised.”) (emphasis in original) (citations omitted). See also Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In the absence of such objections, the court need not make any review, however “the better practice” is to afford “some level of review” to dispositive issues, even though a de novo determination is not required. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 120, 98 L.Ed.2d 79 (1987). The court may adopt the Recommendation in its entirety, or in part; the court retains final authority of judgment in the case. Delgado, 782 F.2d at 82.

III. ANALYSIS

The Double Jeopardy Clause provides “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” and rests on the premise that an individual should not be required to defend himself more than once against charges based on the same alleged criminal conduct. Abbate v. United States, 359 U.S. 187, 198-99, 79 S.Ct. 666, 673, 3 L.Ed.2d 729 (1959) (opinion of Brennan, J.). Moreover, the Double Jeopardy Clause has been interpreted to protect an individual from three types of abusive prosecution: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Penny, 60 F.3d 1257, 1261-62 (7th Cir.1995), cert. denied,—U.S.-, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996) (citations omitted).

The defendant argues that the superseding indictment constitutes a successive prosecution for the same offense after conviction as well as an attempt to impose multiple punishments for the same offense, and therefore, violates the Double Jeopardy Clause of the Fifth Amendment. As the Magistrate Judge correctly noted and the defendant acknowledged, the United States Court of Appeals for the Seventh Circuit has explicitly rejected defendant’s argument. See Garrity v. Fiedler, 41 F.3d 1150 (7th Cir.1994), cert. denied,—U.S.-, 115 S.Ct. 1420, 131 L.Ed.2d 303 (1995). In Garrity, the Seventh Circuit held that prison disciplinary proceedings covering the same conduct alleged in a later criminal prosecution do not amount to a violation of the Double Jeopardy Clause. Garrity, 41 F.3d at 1152-53.

The facts and procedural background underlying Garrity are somewhat similar to the instant case. In Garrity, a prisoner was caught passing a note to a visitor, which discussed plans for several burglaries. Prison officials initiated disciplinary proceedings against the prisoner for violating institutional regulations.

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Related

Abbate v. United States
359 U.S. 187 (Supreme Court, 1959)
United States v. Raddatz
447 U.S. 667 (Supreme Court, 1980)
Thomas v. Arn
474 U.S. 140 (Supreme Court, 1986)
United States v. Halper
490 U.S. 435 (Supreme Court, 1989)
Austin v. United States
509 U.S. 602 (Supreme Court, 1993)
Daniel J. Garrity v. Patrick Fiedler
41 F.3d 1150 (Seventh Circuit, 1994)
United States v. Jonathan Penny
60 F.3d 1257 (Seventh Circuit, 1995)
Department of Revenue of Mont. v. Kurth Ranch
511 U.S. 767 (Supreme Court, 1994)
Henderson v. Carlson
812 F.2d 874 (Third Circuit, 1987)
United States v. Aguilar
883 F.2d 662 (Ninth Circuit, 1989)
Montenegro-Pedrozo v. United States
514 U.S. 1044 (Supreme Court, 1995)
Homrich v. United States
516 U.S. 1121 (Supreme Court, 1996)

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Bluebook (online)
921 F. Supp. 580, 1996 U.S. Dist. LEXIS 4372, 1996 WL 157168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-warda-wied-1996.