ORDER ON DEFENDANT'S MOTION TO DISMISS

JOHN A. WOODCOCK, JR., District Judge.

A defendant raises a double jeopardy claim based on the Government's prior conviction of the defendant for distribution of cocaine base and heroin and its subsequent indictment for his participation in a drug trafficking conspiracy, based in part on the conduct underlying the previous prosecution. Because the defendant fails to establish a prima facie double jeopardy claim on the current record, the Court denies the motion to dismiss without prejudice.

I. BACKGROUND

A. The 2016 Indictment and Conviction for Distribution

On October 8, 2015, Mr. Hernandez was arrested by the Maine State Police and charged with trafficking scheduled drugs. Def.'s Mot. to Dismiss at 1 (ECF No. 188) (Def.'s Mot.). The state charge was later dropped, and on February 2, 2017, a federal grand jury indicted Mr. Hernandez on the charge of Distribution of Cocaine Base and Heroin in violation of 21 U.S.C. § 841(a)(1). Id., Ex. 1, Indictment (ECF No. 188-1) (Distribution Indictment). Mr. Hernandez pleaded guilty and the Court sentenced him to one year in prison and three years of supervised release. Def.'s Mot. at 1; USA v. Hernandez, Docket No. 17-cr-00026-JAW-1 (Prior Case). The indictment reads:

COUNT ONE

(Distribution of Cocaine Base and Heroin)

LUIS HERNANDEZ

Distribution Indictment at 1.

B. The 2018 Conspiracy Indictment

On July 18, 2018, a federal grand jury indicted Luis Hernandez along with several other defendants for engaging in a drug trafficking conspiracy in violation of federal criminal law. Indictment, Docket 1:18-cr-00098-JAW-3 (ECF No. 2) (Conspiracy Indictment). The indictment reads:

COUNT ONE

(Conspiracy to Distribute and to Possess With Intent to Distribute Controlled Substances)

QUANTITY OF HEROIN AND COCAINE BASE INVOLVED IN THE CONSPIRACY

Id. at 1-2.1

II. THE POSITIONS OF THE PARTIES

A. The Defendant's Motion

Mr. Hernandez states that Blockburger v. United States, 284 U.S. 299, 304 (1932), established the traditional test for double jeopardy when two conspiracies are not involved. Def.'s Mot. at 2. Under Blockburger, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. (quoting Blockburger, 284 U.S. at 304). Mr. Hernandez contends that "the criminal conduct underlying the present conspiracy count is that of distribution of heroin and cocaine base, the same charge which Hernandez pleaded guilty to on February 2, 2016, and for which he served 1 year of incarceration and 36 months on supervised release."2 Id. at 3. Furthermore, Mr. Hernandez says the First Circuit has expressed concern about instances where the government may comply literally with Blockburger "while actually carving up a single conspiracy to commit several crimes into separate prosecutions." Id. (citing United States v. Laguna-Estela, 394 F.3d 54, 57 (1st Cir. 2005)).

Mr. Hernandez compares his past conviction with the current indictment under the five-factor test used "to determine whether two charged conspiracies are the same offense for the purposes of double jeopardy." Id. at 4 (quoting Laguna-Estela, 394 F.3d at 57 (quoting United States v. Gomez-Pabon, 911 F.2d 847, 860-61 (1st Cir. 1990)). He argues the time periods of the alleged crimes, the individuals involved, and the locations of the charged conduct overlap. Id. at 4-6. He contends that because Mr. Hernandez's alleged role in the conspiracy was that of a distributor, the Government would have to use the same evidence that supported the earlier conviction to prove that Mr. Hernandez participated in the conspiracy. Id. at 6.

With regard to the final element—whether the same statutory provision was involved in both matters—Mr. Hernandez concedes that he was charged under separate statutory provisions in each of the two matters, which require proof of different elements, but he contends that "under the circumstances it would be a gross injustice and violate the concept of fundamental fairness to allow the present prosecution to continue as to Luis Hernandez when he has already been punished for his alleged role in the instant conspiracy." Id. at 7.

B. The Government's Opposition

The Government objects to the Defendant's motion to dismiss, stating that "[t]he defendant's argument . . . is contrary to well-settled law that conspiracy to commit a crime is not the same offense as the substantive crime for double jeopardy purposes." Gov't's Resp. in Opp'n (ECF No. 202) (Gov't's Opp'n). Citing United States v. Fornia-Castillo, 408 F.3d 52 (1st Cir. 2005), the Government argues the Blockburger test is fully satisfied with regard to sequential prosecutions for a substantive drug offense and a conspiracy, "because the agreement to do the act is distinct from the completed act itself." Gov't's Opp'n at 3 (quoting Fornia-Castillo, 408 F.3d at 69) (quoting United States v. Felix, 503 U.S. 378, 390-91 (1992) (internal quotation marks omitted)). The Government cites additional caselaw in support of this proposition. Id. (citing Ottomano v. United States, 468 F.2d 269, 271 (1st Cir. 1973); Iannelli v. United States, 420 U.S. 770, 777 (1975)).

The Government claims Mr. Hernandez used the incorrect double jeopardy standard in his analysis, because the test set forth in Laguna-Estela "is appropriately considered when the court is evaluating whether successive conspiracy prosecutions are involved, and he acknowledges that he was prosecuted for a substantive offense prior to the instant conspiracy prosecution." Gov't's Opp'n at 3-4 (citing Laguna-Estela, 394 F.3d at 54).

Finally, the Government rejects Mr. Hernandez's contention that the second prosecution is a due process violation and is fundamentally unfair "because he has already been punished for his alleged role in the conspiracy." Id. at 4 (citing Def.'s Mot. at 8). The Government alleges that it gave Mr. Hernandez the opportunity to have the conduct that is the basis of the current conspiracy charge considered as part of his sentence in the prior case, but Mr. Hernandez declined the offer. Id. at 4-5. The Government notes that Mr. Hernandez referenced an earlier version of the Presentence Investigation Report (PSR), which described the conduct that is the subject of the current conspiracy charge, in support of his argument, but the final PSR was amended to remove such reference. Id. at 5. According to the Government, "the final PSR in [Mr. Hernandez's] 2017 case removed reference to the 2015 drug seizure and calculated his drug quantity solely upon the events of November 30, 2016." Id. at 5. Because the Government made Mr. Hernandez aware of its intention to prosecute him further at the time of the prior conviction, it argues that Mr. Hernandez "cannot now plausibly claim that he was treated in an unfair or indecent manner by the Government." Id.

III. LEGAL STANDARD

A. Motions to Dismiss an Indictment: General Rules

"[D]ismissing an indictment is an extraordinary step." United States v. Li, 206 F.3d 56, 62 (1st Cir. 2000) (quoting United States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997)). Because dismissing an indictment "`directly encroaches upon the fundamental role of the grand jury,'" the Court is mindful that it "should exercise its authority to dismiss cautiously." United States v. Thomas, 519 F.Supp.2d 141, 143-44 (D. Me. 2007) (quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir. 1995)). For this reason, unlike a complaint initiating a civil action, "an indictment is not generally subject to dispositive motion practice." United States v. Ayotte, 841 F.Supp.2d 398, 403 (D. Me. 2012) (quoting United States v. Poulin, 645 F.Supp.2d 17, 22 (D. Me. 2009)). Dismissal of an indictment by a federal court "is appropriately reserved, therefore, for extremely limited circumstances." Whitehouse, 53 F.3d at 1360 (1st Cir. 1995) (citing Bank of N.S. v. United States, 487 U.S. 250, 263 (1988)).

B. The Law of Double Jeopardy

Under the Fifth Amendment, no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST., AM. V. The double jeopardy clause "protects against multiple punishments for the same offense." United States v. Chiaradio, 684 F.3d 265, 272 (1st Cir. 2012) (quoting United States v. Pires, 642 F.3d 1, 15 (1st Cir. 2011)). The seminal double jeopardy case from the United States Supreme Court is Blockburger v. United States, 284 U.S. 299 (1932). In Blockburger, the Supreme Court described the proper analysis: "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. at 304; United States v. Stefanidakis, 678 F.3d 96, (1st Cir. 2012) ("Blockburger. . . prohibits charging the same conduct under two separate statutes unless each statute requires proof of a fact that that other does not").

"A defendant claiming double jeopardy has the burden of presenting evidence to establish a prima facie nonfrivolous double jeopardy claim. Once such a claim is established, the burden shifts to the government to prove by a preponderance of the evidence that the indictments charge separate offenses." Laguna-Estela, 394 F.3d at 56 (quoting United States v. Booth, 673 F.2d 27, 30-30 (1st Cir. 1992)).

IV. ANALYSIS

A. The Presentence Investigation Report

As a threshold issue, the parties dispute whether Mr. Hernandez was already punished for his alleged role in the present conspiracy when he was sentenced in the prior case. Gov't's Opp'n at 5; Def.'s Mot. at 7. Mr. Hernandez contends that "[t]he defendant here has already been punished for both the 2015 search warrant execution at the Colonial Motor Lodge in Ellsworth, Maine, and the November 29, 2016 controlled sell to an informant," Def.'s Mot. at 8, because "the offense conduct according [to] the Presentence Investigation Report in that prior case also included an October 8, 2015 search warrant execution at the Colonial Motor Lodge in Ellsworth, Maine, where the defendant was arrested for possession of Oxycodone." Id. at 4 (citing Sealed Additional Attach. re Mot. to Dismiss, Presentence Investigation Report, at ¶ 5 (ECF No. 194) (6/13/17 PSR)). He further states that "[t]he Presentence Investigation Report for the prior conviction noted that `there is a common scheme or plan between the incidents.'" Id. at 7.

The Government disagrees, arguing that defense counsel mistakenly cited an earlier version of the PSR. According to the Government, it "offered the defendant the opportunity to have that conduct considered as part of the 2017 sentencing proceeding," but Mr. Hernandez refused, which is why the PSR was amended on June 30, 2017 to remove reference to conduct alleged prior to November 30, 2016. Gov't's Opp'n at 5.3

The record in large part supports the Government's contention, although a second revised PSR, dated July 19, 2017, informed Mr. Hernandez's sentencing in the prior case. (See Prior Case, Second Revised PSR, dated 7/19/17 (7/19/17 PSR)). Under the title "Offense Conduct", the Second Revised PSR references only conduct that took place on November 29 and November 30, 2016. It does include a description of the execution of a search warrant at the Colonial Motor Lodge in Ellsworth Maine on October 8, 2015 in the "Other Arrests" section of the Second Revised PSR, but this information is not factored into Mr. Hernandez's Criminal History Computation. Id. at ¶¶ 23, 25A.

The Court agrees with the Government that the evidence cited by Mr. Hernandez, as well as the PSR relied upon by the Court in the prior case, do not support Mr. Hernandez's contention that he was previously punished for his alleged conduct underlying in the present prosecution.4

B. The Indictments and Double Jeopardy

Mr. Hernandez contends that the present indictment for conspiracy to distribute and to possess with intent to distribute controlled substances pursuant to 21 U.S.C. § 846 violates the double jeopardy provisions of the Fifth Amendment due to his prior conviction for distribution of cocaine base and heroin under 21 U.S.C.§ 841(a)(1). Def.'s Mot. at 1-2. He concedes that the two prosecutions are based on two separate statutory provisions but argues that the Government "has clearly carved up `a single conspiracy to commit several crimes into separate prosecutions.'" Id. at 3 (quoting Laguna-Estela, 394 F.3d at 57). He further avers that the five-factor double jeopardy test used when two charges of conspiracy are brought successively weighs in favor of a constitutional violation. Id. at 4-8.

"In determining whether two charged conspiracies that allege violations of the same substantive statute are actually the same offense for double jeopardy purposes," courts generally employ a more nuanced five-factor test in place of Blockburger to compare the two prosecutions. United States v. Gomez-Pabon, 911 F.2d 847, 860 (1st Cir. 1990) (citing United States v. Garcia-Rosa, 876 F.2d 209, 228 (1st Cir. 1989), cert. denied, 493 U.S. 1030 (1990); United States v. Booth, 673 F.2d 27, 29 (1st Cir.), cert. denied, 456 U.S. 978 (1982)). This modification is to account for the "ease with which prosecutors can draft indictments that allege what may appear to be separate conspiracies but may actually be parts of an overall conspiracy." Id. (quoting United States v. Abbamonte, 759 F.2d 1065, 1068 (2d Cir. 1985)). However, this test is not applied when one of the prosecutions is for conspiracy, and the other for a substantive offense. See Fornia-Castillo, 408 F.3d at 69 (analyzing a drug conspiracy and subsequent substantive drug offense under the Blockburger test); see also United States v. Finazzo, 520 F.Supp. 1085, 1091 (E.D. Mich. 1981), aff'd, 704 F.2d 300 (6th Cir. 1983). Instead, the standard Blockburger analysis governs. Fornia-Castillo, 408 F.3d at 69.

Consistent with Blockburger, "[i]t is settled law in this country that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction for both." Pereira v. United States, 347 U.S. 1, 11, 74 (1954) (citing Pinkerton v. United States, 328 U.S. 640, 643-44 (1946)). Similarly, the First Circuit described a defendant's argument that he could not be prosecuted "for substantive drug offenses that were the objects of a drug conspiracy for which [he] had already been prosecuted . . . [as] futile." Fornia-Castillo, 408 F.3d at 69. It is only when "the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy." Id. (citing Gavieres v. United States, 220 U.S. 338 (1911)). "To determine whether two offenses constitute the same offense, we examine whether each crime requires proof of an additional fact that the other does not." Com. v. D'Amour, 428 Mass. 725, 747-48, 704 N.E.2d 1166, 1182 (1999) (citing Blockburger, 284 U.S. at 299).

In Fornia-Castillo, the First Circuit considered whether subsequent prosecutions under § 841(a)(1) and § 846, the exact statutory provisions at issue in the present case, satisfy the Blockburger test. 408 F.3d at 55. The First Circuit stated:

Id. at 69.

Mr. Hernandez has failed to show why Fornia-Castillo's holding does not apply. The Court sees no basis on which to distinguish the cases. Mr. Hernandez instead contends that the Court should look beyond the Blockburger test because the Government has done what the First Circuit warned about with successive conspiracy cases: carved up a single conspiracy into separate prosecutions, thereby complying with Blockburger in a literal sense but violating the constitutional protection against double jeopardy. See Laguna-Estela, 394 F.3d at 57 (internal citations omitted).

This argument is misapplied. The First Circuit voiced this concern with regard to successive conspiracy prosecutions, not to a prosecution for a substantive offense followed by a prosecution for a related conspiracy. Id.; see also Fornia-Castillo, 408 F.3d at 55. "In addition, mere overlap in proof between two prosecutions does not establish a double jeopardy violation." Felix, 503 U.S. at 379 (citing Dowling v. United States, 493 U.S. 342 (1992)).

C. Due Process Claim

Mr. Hernandez also claims that the current prosecution constitutes a deprivation of due process, because he "has already been punished for his alleged role in the conspiracy." He alleges:

Def.'s Mot. at 7. As explained above, the final PSR makes no reference to conspiratorial conduct, and the Defendant has submitted no evidence that suggests that the Court considered Mr. Hernandez's alleged role in the conspiracy in calculating his sentence in the previous prosecution. However, even if Mr. Hernandez had already been punished for his alleged role in the conspiracy, his Due Process Claim would fail.

The Supreme Court addressed a similar claim in Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), in which a defendant "contend[ed] that, regardless of whether the imposition of the death sentence violated the Double Jeopardy Clause, it unfairly deprived him of his `life' and `liberty' interests." Id. at 115. The Supreme Court concluded that "[a]t bottom, petitioner's due process claim is nothing more than his double-jeopardy claim in different clothing." Id. at 115-16. The Sattazahn Court explained:

Id. (quoting Medina v. California, 505 U.S. 437, 443 (1992)); see also United States v. Neto, 659 F.3d 194, 201 (1st Cir. 2011) (rejecting a defendant's contention that the Due Process Clause of the Fifth Amendment supplements the protections provided by the Double Jeopardy Clause). Here, Mr. Hernandez claims a Due Process violation using exactly the same reasoning as his double jeopardy claim. The Court views Mr. Hernandez's due process claim as more like his double jeopardy claim than the Due Process claim alleged by the defendant in Sattazahn, and as a result, the Court views his Due Process claim as even more problematic.

Furthermore, the First Circuit has held that in light of the Supreme Court's decision in United States v. Dixon, 509 U.S. 688, 712 (1993), "the performance of a Blockburger analysis completes the judicial task in a successive prosecution case." United States v. Morris, 99 F.3d 476, 480 (1st Cir. 1996) (citing Dixon, 509 U.S. at 712). Put simply, the Court cannot consider Mr. Hernandez's double jeopardy claim under the Due Process Clause of the Fifth Amendment. To do so would be to "hold that the Due Process Clause provides greater double-jeopardy protection than does the Double Jeopardy Clause." Id.

V. CONCLUSION

The Court DISMISSES without prejudice Luis Hernandez's Motion to Dismiss Double Jeopardy (ECF No. 188).

SO ORDERED.