UNITED STATES SUPREME COURT DECISIONS ON-LINE

In March, 1981, petitioner was charged in a multicount indictment in the Western District of Washington for his role in the off-loading and landing of marihuana from a "mother ship" at a Washington location on specified days in October, 1979, and August, 1980. He pleaded guilty to one count of importation of marihuana and was sentenced to five years' imprisonment and a $15,000 fine. The remaining counts were dismissed without prejudice to the Government's right to prosecute petitioner on any other offenses he might have committed. Thereafter, in July, 1981, petitioner was indicted in the Northern District of Florida on several drug counts, including a count for engaging in a continuing criminal enterprise (CCE) from January, 1976, to July, 1981, in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 848. The District Court denied petitioner's pretrial motion to dismiss the CCE charge on the asserted ground that it encompassed the Washington importation operation in violation of the Double Jeopardy Clause of the Fifth Amendment. At trial, evidence underlying petitioner's prior conviction was introduced to prove one of three predicate offenses that must be shown to make out a CCE violation, and petitioner was convicted on the CCE count and on other counts. He was sentenced to 40 years' imprisonment and a $100,000 fine on the CCE count, the prison term being concurrent with the prison terms on the other counts but consecutive to the prison term from the Washington conviction. Rejecting petitioner's contention that his Washington conviction barred the subsequent CCE prosecution in Florida, the Court of Appeals held that the Washington offense and the CCE offense were not the same under the Double Jeopardy Clause, and hence that successive prosecutions and cumulative sentences for these offenses were permissible.

Held:

1. The language, structure, and legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970 show that Congress intended the CCE offense to be a separate offense that is punishable in addition to, and not as a substitute for, the predicate offenses. It would be illogical for Congress to intend that a choice be made between the predicate offenses and the CCE offense in pursuing major drug dealers. Pp. 471 U. S. 777-786. clubjuris

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2. It did not violate the Double Jeopardy Clause to prosecute the CCE offense after the prior conviction for one of the predicate offenses. The CCE offense is not the "same" offense as one or more of its predicate offenses within the meaning of that Clause. Nor was the Washington offense a "lesser included" offense of the CCE offense. Brown v. Ohio, 432 U. S. 161, distinguished. The conduct with which petitioner was charged in Florida, when compared with that with which he was charged in Washington, does not lend itself to the simple analogy of a single course of conduct comprising a lesser included misdemeanor within a felony. The CCE was alleged to have spanned more than five years, whereas the acts charged in Washington were alleged to have occurred on single days in 1979 and 1980. But even assuming that the Washington offense was a lesser included offense, petitioner's double jeopardy claim is not sustainable. The CCE charge in Florida had not been completed at the time the Washington indictment was returned, and evidence of the importation in Washington could be used to show one of the predicate offenses. Diaz v. United States, 223 U. S. 442. Pp. 471 U. S. 786-793.

3. The Double Jeopardy Clause does not bar the cumulative punishments. The presumption when Congress creates two distinct defenses, as it did here, is that it intended to permit cumulative sentences. To disallow cumulative sentences would have the anomalous effect in many cases of converting into ceilings the large fines provided by 21 U.S.C. § 848 to deprive big-time drug dealers of their enormous profits. Logic, as well as the legislative history, supports the conclusion that Congress intended separate punishments for the underlying substantive predicate offenses and for the CCE offense. Pp. 471 U. S. 793-795.

727 F.2d 1003, affirmed.

REHNQUIST, J., delivered the opinion of the Court in which BURGER, C.J.,and WHITE, BLACKMUN, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 471 U. S. 795. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 471 U. S. 799. POWELL, J., took no part in the decision of the case. clubjuris

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