ELIZABETH A. WOLFORD, United States District Judge.
Defendant Andre Jenkins ("Jenkins") is one of 12 remaining defendants
On January 17, 2017, this Court set a day-certain trial scheduled to commence on January 16, 2018. (Dkt. 445).
In his motion to dismiss on double jeopardy grounds, Jenkins recognized that the "dual sovereignty doctrine may allow two separate sovereigns to prosecute a defendant who violates the laws of both sovereigns in a single act" (Dkt. 522 at ¶ 83), but he argued that the doctrine did not apply in this case because the state prosecution was a tool of the federal government (id. at ¶¶ 79-91). Jenkins argued in his initial motion papers that the Government should be required to produce discovery so that Jenkins could "more appropriately be able to prepare and argue the instant motion" (id. at ¶ 88), and he requested an evidentiary hearing (id. at ¶ 91).
On April 7, 2017, the Government filed its opposition to Jenkins' omnibus motions. (Dkt. 554). In response to Jenkins' double jeopardy argument, the Government argued that under the "same elements" test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 S.Ct. 306 (1932), the offenses for which Jenkins was convicted in state court were different than the offenses with which he was charged in this Indictment. (Dkt. 554 at 31-40). The Government also argued that Jenkins' argument that the dual sovereignty doctrine did not apply was without basis, and neither discovery nor an evidentiary hearing was warranted. (Id. at 40-46).
On May 5, 2017, Jenkins filed reply papers in further support of his omnibus pretrial motions, and, among other things, he argued that "the acts for which Mr. Jenkins was previously convicted are the same acts which the government intends to prove at the time of trial." (Dkt. 575 at 11). Jenkins maintained his argument that he was entitled to discovery and a hearing on the dual sovereignty issue, but he failed to respond to the Government's argument about the same elements test under Blockburger. (Id. at 10-12).
Oral argument was held before the undersigned on May 9, 2017. (Dkt. 755). Because Jenkins never responded to the Government's argument that the state and federal offenses involved different elements under the Blockburger test, and because the Court did not believe Jenkins had met his burden on the dual sovereignty issue, the Court allowed Jenkins to file supplemental briefing "addressing whether the offenses of Defendant's state court convictions are the same in fact and in law as those charged in the federal indictment, such that double jeopardy is violated." (Dkt. 585; see Dkt. 755 at 130-33). The Court twice extended the deadlines for Jenkins' supplemental briefing, at the request of defense counsel and without objection from the Government. (Dkt. 601; Dkt. 625).
On June 16, 2017, Jenkins filed two separate memoranda in support of his motion to dismiss on double jeopardy grounds.
On July 24, 2017, this Court issued its Decision and Order denying Jenkins' motion to dismiss on double jeopardy grounds. (Dkt. 689). The Court rejected Jenkins' argument that the dual sovereignty doctrine did not apply, concluding that Jenkins had failed to show that the state was acting as a tool of the federal government as necessary to bring the case within the so-called Bartkus exception. (Id. at 6-18). The Court further found that the crimes with which Jenkins is charged in the federal prosecution are different in law under the "same elements" test articulated in Blockburger, and, as a result, the Double Jeopardy Clause did not bar the federal prosecution. (Id. at 18-22). The Court noted that Jenkins never argued that the offenses for which he was convicted in state court were the same "in law" as the offenses with which he is charged in federal court. (Id. at 19). Instead, Jenkins argued that the Court should "examin[e] the allegations of the indictment rather than simply review[] terms of the statutes" and conclude that double jeopardy was violated because the federal prosecution involves the same conduct as the state prosecution. (Dkt. 636 at 17). But, as the Court noted in its Decision and Order, the "same conduct" test advanced by Jenkins was an inaccurate statement of the law.
On July 28, 2017, Jenkins filed a Notice of Appeal from the Court's Decision and Order concerning double jeopardy. (Dkt. 699). The Government eventually moved to expedite that appeal, and the Second Circuit granted the Government's motion. See Motion Order, United States v. Willson (Jenkins), No. 17-2372 (2d Cir. Nov. 7, 2017). Briefing is scheduled to be completed by December 18, 2017, with oral argument to occur shortly thereafter. See id. However, there is no guarantee that the Second Circuit will render a decision before the trial begins on January 16, 2018, and counsel for Jenkins has argued that requiring "gratuitous trial preparation" is unreasonable. (Dkt. 829 at ¶¶ 9, 17). Thus, in connection with the defendants' severance motions (which were initially argued on October 24, 2017), the Court raised the question of whether it could proceed to trial with Jenkins if the appeal remains undecided and asked for briefing on the issue. (Dkt. 837).
On October 30, 2017, the Government filed its memorandum advancing two arguments in support of maintaining jurisdiction and proceeding with the trial involving Jenkins, regardless of whether the Second Circuit has rendered a decision on the interlocutory appeal by January 16, 2018. (Dkt. 850). First, the Government contends that Jenkins will not "irreparably los[e]" any rights if this Court retains jurisdiction because the offenses charged in the federal indictment go far beyond the factual issues involved with the state court prosecution so that, even if Jenkins prevails on appeal, he will still be tried for the RICO conspiracy and some of the other counts in the federal Indictment. (Id. at 6-10). Second, the Government argues that Jenkins' appeal is frivolous and dilatory, and therefore this Court may retain jurisdiction. (Id. at 10-14).
Jenkins filed a memorandum in response to the Government's submission on November 7, 2017. (Dkt. 857). In that filing, Jenkins recognized that the scope of
(Dkt. 857 at 2). Nonetheless, Jenkins argued that it would be an inefficient use of resources to sever the counts allegedly barred on double jeopardy grounds. (Id. at 2-3). He further argued that his double jeopardy argument was neither dilatory nor frivolous, and therefore he should not proceed to trial until after the Second Circuit resolves the appeal. (Id. at 3-4).
Further oral argument was held before the undersigned on November 8, 2017, after which the Court stated that it found Jenkins' appeal legally frivolous, and therefore it would retain jurisdiction and proceed to trial with Jenkins as scheduled on January 16, 2018, even if the appeal was still pending before the Second Circuit. This Decision and Order sets forth the Court's written findings to support its finding of frivolousness.
Generally, a circuit court lacks jurisdiction to hear an appeal from a decision of the district court in the absence of a final judgment. See 28 U.S.C. § 1291 (providing for appellate jurisdiction over "appeals from all final decisions of the district courts of the United States"). In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court recognized an exception to this general rule, holding that a pretrial order rejecting a claim of double jeopardy is a "final decision" within the meaning of 28 U.S.C. § 1291, and thus immediately appealable. Id. at 662, 97 S.Ct. 2034. The Supreme Court reasoned as follows:
Id. at 660-61, 97 S.Ct. 2034.
Not all double jeopardy claims support appellate jurisdiction. In United States v. Tom, 787 F.2d 65 (2d Cir. 1986), the Second Circuit concluded that it lacked jurisdiction over an interlocutory appeal from a pretrial order denying a motion to dismiss predicate acts from a RICO indictment on double jeopardy grounds, where the defendant was charged with at least two other predicate acts. Id. at 68. In that circumstance, "the defendant will be tried
Thus, at a minimum and as Jenkins concedes, the Court could sever the RICO conspiracy count and retain jurisdiction, since only some of the predicate acts involved with that count involved the alleged murders that were the subject of the state court prosecution.
"A district court may retain jurisdiction and proceed to trial, despite the pendency of a defendant's interlocutory double jeopardy appeal, when the appeal is frivolous." United States v. Millan, 4 F.3d 1038, 1044 (2d Cir. 1993). This principle is sometimes referred to as the "Dunbar rule" based on the Fifth Circuit's en banc decision in United States v. Dunbar, 611 F.2d 985 (5th Cir. 1980), where the court held that "an appeal from the denial of a frivolous double jeopardy motion does not divest the district court of jurisdiction to proceed with trial, if the district court has found the motion to be frivolous." Id. at 986.
The reasoning behind the Dunbar rule is to prevent a criminal defendant from unilaterally obtaining a trial continuance at any time prior to trial "by merely filing a double jeopardy motion, however frivolous, and appealing the trial court's denial thereof." Id. at 988. Thus, the district court must make written findings determining whether the double jeopardy motion is frivolous or non-frivolous, and if frivolous, "the filing of a notice of appeal by the defendant shall not divest the district court of jurisdiction over the case." Id. As explained by the Second Circuit:
The Government argues that Jenkins' appeal is not only substantively frivolous, but also that he pursued the relief in a dilatory manner so as to orchestrate a severance, and that this evidences the frivolous nature of his arguments. (Dkt. 818 ¶ 1; Dkt. 850). Jenkins strongly denies the allegations of dilatory tactics, and responds that the Government unduly delayed its request to expedite the appeal. (Dkt. 829; Dkt. 857). Although dilatory tactics can support a finding of frivolousness, a finding of intentional delay is not necessary to a finding of frivolousness. Thus, because the Court finds that the substance of Jenkins' appeal is frivolous, it need not resolve the parties' competing allegations about delay or reach the issue of whether Jenkins pursued the double jeopardy argument in a dilatory manner so as to orchestrate a severance.
Additionally, while the Court has ruled that Jenkins' dual sovereignty argument is without merit (see Dkt. 689), it has never indicated that the argument is frivolous. However, because Jenkins is not charged in this Indictment with the same offenses for which he was tried in state court, this Court's retention of jurisdiction does not depend on a finding that the dual sovereignty argument is frivolous. In other words, in order to find that double jeopardy bars any of the counts in this Indictment, a court must necessarily find that the Niagara County District Attorney's office was a tool of the federal government and that one or more of the state court charges is the same as one or more of the charged federal offenses. Jenkins has not advanced any non-frivolous argument in support of the latter issue. As a result, his double jeopardy appeal is frivolous, and this Court will retain jurisdiction notwithstanding the pending appeal before the Second Circuit.
As the Court concluded in its Decision and Order dated July 24, 2017, the relevant standard for determining whether offenses are the same for double jeopardy purposes is the same elements test forth by the Supreme Court in Blockburger and reaffirmed in United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). As explained by the Second Circuit:
United States v. Weingarten, 713 F.3d 704, 708 (2d Cir. 2013) (internal quotation marks and alteration omitted).
Even when this Court provided Jenkins an opportunity to convince it that his argument on this point was not frivolous, Jenkins was unable to do so, stating simply in his most recent filing:
(Dkt. 857 at 3).
Jenkins' focus on dual sovereignty misses the point. The dual sovereignty doctrine is irrelevant if Jenkins was prosecuted previously for different offenses than those being pursued in this federal case. See U.S. Const. amend. V ("No person shall be... subject for the same offence to be twice put in jeopardy of life or limb...." (emphasis added)). If Jenkins is not being prosecuted for the same offense, then there is no double jeopardy issue, regardless of the sovereign pursuing those charges. Contrary to Jenkins' position, it does not matter whether the same conduct is at issue in both the state and federal prosecutions if the offenses charged are based on different statutes containing different elements. Basciano, 599 F.3d at 198 (only when the counts charged are based on the same statute does the relevant inquiry become whether the crimes "are the same in fact"); United States v. Estrada, 320 F.3d 173, 180 (2d Cir. 2003) ("A double jeopardy claim cannot succeed unless the charged offenses are the same in fact and in law." (emphasis added)).
The law is clear that, under Blockburger, where a defendant stands accused of crimes under different statutes, the same elements test applies. Jenkins has not attempted to argue that the federal counts with which he is charged in this Indictment contain the same elements as the state court offenses. Plainly, they do not. (See Dkt. 554 at 31-40; see also Dkt. 636 at 8-11). For example, Counts 19 and 20 charge Jenkins with the murders of Maue and Szymanksi, respectively, in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2, and Counts 21 and 22 charge Jenkins with possession and discharge of a firearm in furtherance of the crimes of violence charged in Counts 19 and 20, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 924(j) and 2. Thus, in order to obtain a conviction on any of the counts charged in Counts 19 through 22, the Government must prove, among other elements, murder "for the purpose of ... maintaining or increasing position in an enterprise engaged in racketeering activity." 18 U.S.C. § 1959(a)(1). Proof of motive is completely absent from the elements necessary for the state court convictions. Although evidence of motive may have been introduced during the state prosecution
Put simply, the federal offenses with which Jenkins is charged do not contain the same elements as the state offenses, and Jenkins has not even attempted to argue otherwise. Instead, to accept his double jeopardy challenge, a court would have to adopt a test different than the one enunciated by Blockburger and its progeny, and instead rely upon abrogated case law cited in Jenkins' papers. Given the fact that the Supreme Court has endorsed the same elements test on at least two different occasions, and that the Second Circuit has similarly followed that test, Jenkins' argument that the Court should look beyond the statutes and consider whether the same conduct was at issue in the state prosecution, is frivolous.
For the foregoing reasons, the Court finds that Jenkins' appeal of this Court's Decision and Order denying his motion to dismiss on double jeopardy grounds is frivolous, and therefore, the Court will retain jurisdiction and proceed to trial on January 16, 2018, notwithstanding the pending appeal.
SO ORDERED.