United States v. Charles Edward Clonts, 986 F.2d 1430, 10th Cir. (1992)
United States v. Charles Edward Clonts, 986 F.2d 1430, 10th Cir. (1992)
2d 1430
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Charles Edward Clonts appeals his drug conspiracy conviction raising issues of
double jeopardy, the admission of Rule 404(b) evidence, and claims of
outrageous government conduct. We are unable to decide the double jeopardy
issue without findings of fact; therefore, we remand this matter to the district
court for further proceedings and defer ruling on the remaining issues.
On June 29, 1990, U.S. Customs Service Agent James Searles, acting in an
undercover capacity, met with Oscar Bernal and Charles Clonts to discuss a
narcotics transaction. Mr. Clonts informed Agent Searles that he and Mr.
Bernal were partners in a marijuana smuggling organization. He also told
Agent Searles that the organization recently had lost two airplanes and 700
pounds of marijuana during a smuggling operation, and thus he and Mr. Bernal
were so financially insolvent they could not afford to pay the maintenance bill
on their remaining aircraft.
Mr. Clonts then asked Agent Searles if he would "front" the organization
money to bring up a load of marijuana. Agent Searles countered by offering to
sell 1,000 pounds of marijuana to the organization.
At this point, Mr. Bernal joined the meeting and was introduced to Agent
Searles. Mr. Bernal also stated that he and Mr. Clonts were partners in a
marijuana smuggling operation which used airplanes to bring marijuana into
the country from Mexico. Mr. Bernal told Agent Searles that their aircraft had
crashed, and they were unable to get their remaining aircraft "out of hock."
Both Mr. Bernal and Mr. Clonts stated they would obtain buyers for the 1,000
pounds of marijuana and arrange for its transportation.
On July 13, 1990, Mr. Bernal contacted Agent Searles to inform him the
money for the deal had arrived. At the arranged meeting place, Mr. Bernal and
several coconspirators were arrested. However, Mr. Clonts was not present at
the scene of the arrest.1
Mr. Clonts was at the Las Cruces airport engaged in another marijuana deal.
On the previous day, Mr. Clonts asked Agent Searles to front him twenty-five
pounds of marijuana to sell in Tucson. That same day, Mr. Clonts contacted an
acquaintance, Steve Webster, a pilot, who agreed to fly twenty-five pounds of
marijuana from the Las Cruces airport out to his home in Aleka, New Mexico, a
distance of approximately twenty-seven miles.
The following day, Agent Searles called Mr. Clonts and offered to front him
one hundred pounds of marijuana. Mr. Clonts accepted the offer, and Mr.
Webster agreed to fly the load. After the arrests of defendant's coconspirators,
Agent Searles delivered one hundred pounds of marijuana to Mr. Clonts at the
Las Cruces airport. This load was part of the 1,000 pounds which had earlier
been delivered to Mr. Clonts' codefendants. The marijuana was loaded onto the
plane, and both Mr. Webster and Mr. Clonts were arrested. The two men were
charged with conspiring to distribute and possession with intent to distribute
less than fifty kilograms of marijuana from on or about the 12th day of July,
1990, through on or about the 13th day of July, 1990.
Mr. Clonts moved to join the case involving the one hundred pound transaction
with the present case, claiming the interlocking nature of the two cases would
make much of the testimony identical. The trial court denied the motion.
In both cases, Agent Searles testified concerning his contacts with Mr. Clonts
from June 29, 1990, to July 13, 1990, and the events leading up to the arrests in
both cases. He stated that Mr. Clonts arranged the second deal "so that we can
keep our relationship going."
10
Mr. Webster entered a guilty plea and testified against defendant in both cases.
He testified that defendant told him that the one hundred pounds of marijuana
were being fronted to him as a reward for setting up the one thousand pound
deal.
11
Mr. Clonts was sentenced to forty-one months of imprisonment with three years
of supervised release after conviction on the one hundred pound transaction. In
the present case, he was sentenced to seventy-eight months' imprisonment,
followed by four years of supervised release.
12
Prior to trial in this case, and after conviction on the one hundred pound
transaction, Mr. Clonts filed a motion to dismiss on the ground prosecution in
this case would violate the Double Jeopardy Clause. The trial court summarily
denied the motion without setting forth findings upon which its decision was
made or reasons for its conclusion.
13
The Double Jeopardy Clause protects against multiple punishments for the
"same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Under the
traditional Blockburger test, Blockburger v. United States, 284 U.S. 299
(1932), if two offenses have identical statutory elements, or if one is a lesser
included offense of the other, then the subsequent prosecution is barred. Grady
v. Corbin, 495 U.S. 508, ----, 110 S.Ct. 2084, 2090 (1990). However, the Court
has since held that "a subsequent prosecution must do more than merely
survive the Blockburger test." Grady, 110 S.Ct. at 2093.
14
In Grady, a defendant who had driven his car across the median line of a twoway highway struck an oncoming car, killing one of the occupants. The State
charged the defendant with driving while intoxicated and failing to keep right
of the median, and the defendant pled guilty to those two traffic violations. Two
months later, the State prosecuted the defendant on homicide and assault
charges arising from the accident, and defendant argued this violated the
Double Jeopardy Clause.
15
Citing to dicta in Illinois v. Vitale, 447 U.S. 410 (1980), the Court stated that
"the Double Jeopardy Clause bars any subsequent prosecution in which the
government, to establish an essential element of an offense charged in that
prosecution, will prove conduct that constitutes an offense for which the
defendant has already been prosecuted." Grady, 110 S.Ct. at 2093. Emphasizing
this is not a "same evidence test," the Court stated the critical inquiry is what
conduct the State will prove, not the evidence the State will use to prove that
conduct. Id. Because the State admitted it would prove the entirety of the
conduct for which Mr. Corbin was convicted--driving while intoxicated and
failing to keep right of the median--to establish essential elements of the
homicide and assault offenses, the Court found the Double Jeopardy Clause
barred the subsequent prosecution. Id. at 2094.
16
In United States v. Felix, --- U.S. ----, 112 S.Ct. 1377, 1383-84 (1992), the
Court declined to read Grady expansively because of the context in which it
arose and the difficulties which resulted in its interpretation. In Felix, the
defendant operated a methamphetamine facility in Beggs, Oklahoma, which
was closed during a DEA raid. Shortly thereafter, defendant ordered precursor
chemicals and equipment for the manufacture of methamphetamine to be
delivered to him in Joplin, Missouri. DEA agents observed the transfer of these
items and arrested defendant shortly afterwards. He was charged and tried in
Missouri for the offense of attempting to manufacture the illegal drug, based on
the delivery of materials to him at Joplin. At trial, pursuant to Rule 404(b), the
government introduced evidence that defendant had manufactured
methamphetamine in Oklahoma earlier in the year in order to establish intent.
17
18
19
where certain of the overt acts relied upon by the Government are based on
substantive offenses for which the defendant has been previously convicted,
does not violate the Double Jeopardy Clause." Felix, 112 S.Ct. at 1380
(emphasis added). Although recognizing that taken out of context and read
literally, Grady would support the defense of double jeopardy on this count, the
Court based its decision on the long-standing rule that "a substantive crime, and
a conspiracy to commit that crime, are not the 'same offense' for double
jeopardy purposes." Id. at 1383-84.
20
In the present case, Mr. Clonts advances two related arguments. First, he argues
the two prosecutions involve offenses linked by common conduct and thus
violate the Double Jeopardy Clause. Second, he argues the transactions at issue
in both cases were part of a single conspiracy and thus part of a single offense.
21
First, Mr. Clonts contends that unlike Felix, this case involves successive
prosecutions brought on the same charge, conspiracy, thus necessitating proof
of the same elements as prohibited in Grady. He asserts the times, places, and
conduct involved in the conspiracy charged in this case are closely linked with
those in the previous case. Additionally, he argues the one thousand pound deal
was the factual basis for the one hundred pound deal. Further, Mr. Clonts
argues his goal in both deals was the same: to realize a financial profit. Thus,
he contends this case involves common conduct already prosecuted in the first
case.
22
Second, Mr. Clonts contends both marijuana deals were part of a single, overall
continuous scheme to distribute marijuana in the Tucson area. He alleges the
goal behind both transactions was to maintain a continuing business
relationship with Agent Searles to realize profit from marijuana distribution.
See United States v. Beachner Const. Co., 729 F.2d 1278, 1281 (10th Cir.1984)
("the pertinent inquiry is whether the record ... is sufficient to establish that [all
conspirators] had a single, common and continuing objective.... If so, there
would be but one conspiracy even though its purposes were advanced ... by
diverse parties."). Mr. Clonts claims the fact that Mr. Webster did not
participate in the one thousand pound deal is not determinative because
continuity of conspiracy does not require complete continuity of membership
and Mr. Webster played a insubstantial part in the one hundred pound deal.
23
Further, Mr. Clonts argues the numerous commonalities between the two
transactions compel the conclusion they were the product of the same
conspiracy. He contends the one hundred pound transaction occurred within the
same time frame as the other transaction; the supplier was the same; there was
extensive overlap in conduct; the one hundred pound deal resulted from the
The government counters the trial court properly rejected Mr. Clonts' claim
because the evidence shows there were indeed two separate conspiracies. The
prosecution contends the two cases differed in identity and number of
coconspirators, amounts of marijuana, plan, method of transportation and
transfer, and goals. The government argues that although the time frame of both
transactions overlapped, the duration of the two conspiracies and the place of
occurrence differed.
25
26
The prosecution also argues the distinguishing factor in this case is the
difference in players. Because Mr. Webster was unaware of the larger
marijuana deal until he and Mr. Clonts were en route to pick up the one
hundred pounds of marijuana, the government contends there is no evidence of
a core of interdependent conspirators sharing a common objective. It argues the
fact that Agent Searles was the common source for the marijuana is not
controlling because he was not a conspirator. Thus, because the identities of the
coconspirators do not overlap in the two transactions, the agreements
necessarily were separate.
27
28
29
Mr. Clonts contends the differing amounts of marijuana involved do not negate
the existence of a single conspiracy. Although the duration of the two
transactions differed, Mr. Clonts claims the government's position overlooks
the fact the one hundred pound deal could be accomplished in such a short time
only because it was so closely connected to the one thousand pound deal.
30
After reviewing the record and the briefs, we have come to two conclusions.
First, we do not agree with Mr. Clonts that the two offenses involve successive
prosecutions brought on the same charge. Second, whether the transactions
charged in the two indictments were part of one conspiracy or two separate
conspiracies is essentially a matter of fact.
31
32
That resolution does not help us, however, because the real issue is whether the
conspiracies alleged in the two cases were separate or the same. That
determination is dependent upon resolution of factual issues beyond our scope.
Therefore, we must remand this matter for specific findings. In doing so, we are
not suggesting any particular result; however, the district court must resolve
those disputes raised by the parties and noted here.
33
Mr. Clonts has raised other issues which may be mooted should the district
court find he participated in only one conspiracy. Therefore, we defer ruling on
those issues.
34
the factual issues outlined in this order and judgment. The district court shall
proceed as quickly as its docket will permit. In the meantime, the parties shall,
within ninety days, or sooner if circumstances permit, file with this court a
report indicating the status of this case. If the district court concludes the issues
contrary to the contentions of Mr. Clonts, he shall have ten days thereafter to
file notice thereof with this court and seek reinstatement of his appeal. In the
meantime, the Clerk shall hold this case in abeyance.
Honorable Frank G. Theis, Senior Judge for the United States District Court,
District of Kansas, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
In connection with the 1,000 pounds of marijuana, Mr. Clonts and seven
coconspirators were charged with conspiring to distribute more than 100
kilograms of marijuana from on or about June 29, 1990, to July 13, 1990