Changing the tide of double jeopardy in the context of the continuing criminal enterprise.

• Author: Kappeler, Amy J.
• Position: Supreme Court Review

Rutledge v. United States, 116 S.Ct. 1241 (1996)

1. INTRODUCTION

   In Rutledge v. United States,(1) the United States Supreme Court addressed the issue of whether a court may convict and impose concurrent sentences for continuing criminal enterprise (CCE)(2) and conspiracy to distribute controlled substances(3) a predicate offense of CCE.(4) The Court held that conspiracy is a lesser included offense of CCE and that convictions for both offenses based upon the same underlying conduct violates the Double jeopardy Clause of the Fifth Amendment to the United States Constitution.(5) This decision ended eighteen years of ambiguity and confusion among the circuits created after Congress passed the CCE statute in 1970 and the Court published an ambiguous decision, Jeffers v. United States.(6) In reaching its decision, the Court relied upon its historical interpretation of the Double jeopardy Clause as prohibiting multiple punishments for the "same offense."(7) The Court looked to the clear language of the CCE and conspiracy statutes in determining that, because the conspiracy statute describes a lesser included offense of CCE, conspiracy is the "same offense" as CCE.(8) Thus, the Court remanded the case for vacation of one the convictions.(9)

   This Note contends that the Court's failure to address inconsistencies between its reasoning in Rutledge and several of its prior decisions in similar contexts will lead to confusion far greater than that resolved by the decision. First, the Court's conclusion that Congress did not intend to provide multiple punishment when CCE and drug conspiracy arise from the same act disregarded and is inconsistent with its analysis of congressional intent in Garrett v. United States(10) where it faced a similar issue.(11) Second, the Court's reliance upon the Blockburger(12) "same-elements test" to conclude that conspiracy is a lesser included offense of CCE shared improper disregard for the question of whether the test should apply to compound offenses such as CCE. Finally, the Court's decision is inconsistent with its pronouncements in an analogous context, the Racketeer Influenced and Corrupt Organizations Act(13) ("RICO"), in which the court has said that convictions for both RICO and conspiracy do not constitute double jeopardy.(14)

2. BACKGROUND

   1. HISTORICAL INTERPRETATION OF THE DOUBLE JEOPARDY CLAUSE

      The Double jeopardy Clause of the Fifth Amendment provides that no person shall be "twice put in jeopardy of life or limb" for the same offense.(15) The United States Supreme Court has interpreted the Clause to provide three constitutional safeguards for defendants.(16) The Clause "protects against a second prosecution for the same offense after acquittal. It protects against prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."(17)

      In determining whether cumulative punishments or successive prosecutions violate the multiple punishment prong of the double jeopardy protection, the Court looks at whether two statutes relate to the "same offense."(18) The Court has traditionally used the test promulgated in Blockburger v. United States,(19) sometimes referred to as the "same-elements" test, to determine whether two statutes punish the "same offense."(20) In Blockburger, the Court said that two offenses are not the same if "each provision requires proof of a fact which the other does not."(21) The Court's subsequent decisions expanded the test to provide that two statutes define the "same offense" if one is a lesser included offense of the other.(22)

      More recently, the Court has used the Blockburger test as a means of determining congressional intent rather than as a strict rule to determine whether there has been a violation of the Double jeopardy Clause.(23) The Court has said that the Double jeopardy Clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."(24) Thus, offenses are not the same for double jeopardy purposes if Congress intended cumulative prosecution and sentencing for an offense and its lesser included offense.(25) Therefore, even if the Blockburger test suggests that the offenses overlap for double jeopardy purposes, courts may still impose punishments for each offense if Congress made clear its intention to authorize such action.(26) However, in analyzing this issue, courts must presume that the legislature did not intend to impose two punishments for the same offense absent clear evidence to the contrary.(27)

      In addition, the Supreme Court has expanded the notion of what constitutes "punishment" for purposes of double jeopardy.(28), First, the Court has said that fines should be treated the same as cumulative prison sentences.(29) Thus, as the Court stated in Jeffers v. United States,(30) when a defendant is convicted of multiple, overlapping offenses, a fine for each constitutes multiple punishment in violation of the Double jeopardy Clause.(31)

      Second, in Ball v. United States,(32) the Court said that collateral consequences may constitute impermissible multiple punishment.(33) The Court's examples of possible collateral consequences included: delaying the defendant's eligibility for parole, an increased sentence for a future offense, impeachment in future legal proceedings, and exacerbated societal stigma.(34) Even when prison sentences run concurrently, the existence of collateral consequences makes it as impermissible to impose a second conviction as to impose a cumulative prison sentence.(35) Therefore, where collateral consequences result, a prosecutor may seek and try more than one indictment, but a court can only convict and sentence a defendant for one of those countS.(36)

   2. CONTINUING CRIMINAL ENTERPRISE

      In 1970, Congress responded to the country's drug problems by enacting the Comprehensive Drug Abuse Prevention and Control Act.(37) This Act shifted the focus of drug enforcement from small time users to drug peddlers, or "kingpins."(38) The Act created the crime of "continuing criminal enterprise" ("CCE"), for which a conviction results in mandatory sentences without parole.(39) Section 848 CCE is a compound crime.(40) The statute provides

      For purposes of subsection (a) of this section, a person is engaged in a

      continuing criminal enterprise if--(1) he violates any provision of this

      subchapter or subchapter II of this chapter the punishment for which is

      a felony and (2) such violation is a part of a continuing series of violations

      of this subchapter or subchapter II of this chapter--(A) which are

      undertaken by such person in concert with five or more other persons

      with respect to whom such person occupies a position of organizer, a

      supervisory position, or any other position of management, and (B)

      from which such person obtains substantial income or resources.(41)

      That is, the government must show that the defendant committed a series of narcotic violations, or "predicate offenses," while organizing or supervising at least five other people and deriving substantial income from the operation.(42)

   3. IMPLICATIONS OF DOUBLE JEOPARDY IN CCE CONTEXT

      Although the CCE offense had been the subject of extensive constitutional scrutiny since its inception in 1970 and amendments in 1984,(43) The Supreme Court did not answer the constitutional question of whether convictions for CCE and any of its predicate offenses based upon the same series of actions violate the Double jeopardy Clause until 1996.(44) Before Rutledge, the Supreme Court had dealt with this issue only two times and had not heard a CCE case since 1985.(45) In the interim, several lines of decisions developed among federal circuit courts as to whether the courts can enter convictions and sentences for both CCE and its predicate offense of narcotics conspiracy where a jury returns verdicts of guilty for both charges.(46)

      1. Supreme Court Decisions

         1. Jeffers v. United States(47)

            Jeffers v. United States was the first case in which the Supreme Court addressed CCE. In Jeffers, a grand jury returned two indictments against Jeffers.(48) The first charged him with [sections] 846 narcotics conspiracy and [sections] 841 substantive distribution, which are both predicate offenses to CCE.(49) The second indictment charged him with operating a CCE.(50) The Government moved to join the indictments under one trial stating that the offensive acts involved a common plan.(51) The court denied this motion.(52) Then the Government made the seemingly contradictory claim, in response to a double jeopardy argument in Jeffers motion to dismiss, that the [sections] 846 conspiracy and [sections] 848 CCE were wholly separate offenses.(53) The trial court denied the motion to dismiss, implicitly accepting the argument that neither the parties nor the charges for each offense were the same.(54)

            After conviction for conspiracy in the first trial, Jeffers moved to dismiss the CCE case against him.(55) Contrary to his argument against the Government's joinder motion, Jeffers said that CCE and conspiracy were the same offense, so prosecution for CCE after his conviction for conspiracy violated the Double jeopardy Clause.(56) The trial court rejected the motion, and the Seventh Circuit affirmed.(57) Jeffers appealed to the Supreme Court.(58)

            The Supreme Court refused to consider whether the Government's use of a single series of actions to prove both [sections] 846 conspiracy and [sections] 848 CCE violated the Double jeopardy Clause.(59) Instead, a plurality held that by electing to have the offenses tried in separate proceedings, the defendant waived any right he may have had to object to the subsequent prosecution for CCE.(60) justice White concurred with the judgment based upon his conclusion that conspiracy is not a lesser included offense of CCE.(61) Thus, the Court allowed both of Jeffers' convictions to stand.(62)

            Although the Court did not squarely decide the constitutionality of...