Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 83-CR-36-07-Michael S. Kanne, Judge.
Cudahy and Posner, Circuit Judges, and Fairchild, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
In July, 1983, defendant George Chiattello*fn1 was charged in seventeen (17) counts of a thirty-one (31) count indictment. In all, this indictment in the Northern District of Indiana, charged forty-one (41) defendants and named thirty-seven (37) unindicted co-conspirators. Count II charged Chiattello with engaging in a Continuing Criminal Enterprise (CCE) in violation of 21 U.S.C. § 848. In other counts, he was charged with eleven (11) counts of violating the Travel Act, 18 U.S.C. § 1952; one (1) count of obstruction of justice, 18 U.S.C. § 1503; two (2) counts of possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1); one (1) count of conspiracy to violate § 841(a)(1), in violation of 21 U.S.C. § 846; and one (1) count of conspiracy to import a controlled substance (21 U.S.C. § 952) in violation of 21 U.S.C. § 963.
Two days into the trial in November, 1983, Chiattello, pursuant to a plea agreement, pleaded guilty to Count II, the CCE count, and the Government agreed to dismiss the remaining counts. Before trial, Chiattello had filed a motion to dismiss the two conspiracy counts and the CCE count on grounds of double jeopardy. The motion had been denied and he had taken an appeal. At the time of pleading guilty to the CCE count, Chiattello reserved the right to appeal his double jeopardy claim.*fn2
In this court, Chiattello argues his double jeopardy claim. He also argues that Count II did not charge an offense and that his guilty plea was involuntary because based on incorrect legal advice.
Chiattello's double jeopardy claim is based on his prosecution and conviction in September, 1983 in the Southern District of Mississippi. He was charged there with one (1) count of conspiracy to possess marijuana with intent to distribute it (21 U.S.C. § 841(a)(1)) in violation of 21 U.S.C. § 846, and one (1) count of violating the Travel Act, 18 U.S.C. § 1952. The conspiracy was alleged to have occurred on or about May 3, 1982, continuing through May 22, 1982. Chiattello pled guilty and was sentenced to eighteen months on the conspiracy count. He was placed on probation on the Travel Act count on condition that he pay a $10,000 fine. It was apparently his theory that the Mississippi conspiracy was the same conspiracy charged in Indiana, and was thus a lesser included offense of the CCE charged in Indiana.
The district court in Indiana denied the double jeopardy motion, finding it to be frivolous. Chiattello appealed (No. 83-3002). This court denied a stay pending appeal November 16, 1983. In briefs submitted in No. 83-3002 by former counsel, Chiatello seems to contend that we must find that the district judge erred in terming the motion frivolous, and thus proceeded without jurisdiction. We view our role at this point as reviewing the merits of the double jeopardy claim. In Abney v. United States, 431 U.S. 651, 662, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977) the Supreme Court held that pretrial orders rejecting claims of former jeopardy constitute "final decisions" and are thus immediately appealable. It is clear that an important consideration was that the provision against double jeopardy "is a guarantee against being twice put to trial for the same offense," id. at 661, and that "if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." Id. at 662. It is no longer within our power to avoid that "exposure" in this case.
This court has already taken the position that an appeal from denial of a double jeopardy motion does not divest the district court of jurisdiction to proceed with trial if the district court has found the motion frivolous. United States v. Cannon, 715 F.2d 1228, 1231 (7th Cir.), cert. denied, 464 U.S. 1045, 79 L. Ed. 2d 178, 104 S. Ct. 716 (1983). Leave to proceed was implicit in our denial of a stay.
The double jeopardy clause prohibits prosecution of a single conspiracy as two separate conspiracies. Braverman v. United States, 317 U.S. 49, 53, 87 L. Ed. 23, 63 S. Ct. 99 (1942). "The gist of the crime of conspiracy and the characteristic which defines its breadth is the unlawful agreement." United States v. Marable, 578 F.2d 151, 153 (5th Cir. 1978); Braverman v. United States, 317 U.S. at 53. Therefore, a determination of whether the Government can prosecute on more than one conspiracy rests on whether there exists more than one agreement.
A defendant claiming that he has been subjected to double jeopardy bears the burden of establishing that both prosecutions are for the same offense. United States v. West, 670 F.2d 675, 681 (7th Cir. 1982); United States v. Castro, 629 F.2d 456, 461 (7th Cir. 1980). The defendant must show that "the evidence required to support a conviction on one indictment would have been sufficient to warrant a conviction on the other [indictment]." United States v. Buonomo, 441 F.2d 922, 925 (7th Cir.), cert. denied, 404 U.S. 845, 92 S. Ct. 146, 30 L. Ed. 2d 81 (1971). In determining whether the defendant has met this "same evidence test" and demonstrated that a conspiracy has been subdivided arbitrarily, resulting in multiple indictments for a single illegal agreement, a reviewing court will
look to both the indictments and the evidence and consider such factors as whether the conspiracies involve the same time period, alleged co-conspirators and places, overt acts, and whether the ...