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United States v. Massat

United States District Court, D. South Dakota, Western Division

July 15, 2016





         Defendant Robert Massat filed a motion to dismiss the indictment on the basis of double jeopardy and also moved to compel the government to disclose grand jury transcripts in support of the motion to dismiss. (Dockets 38 & 40). The government resists the defendant’s motions. (Dockets 44 & 45). For the reasons stated below, defendant’s motions are denied.



         On July 21, 2015, Mr. Massat was indicted for the offense of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). (Docket 1). The indictment alleges:

Beginning on or about 2013, and continuing through the date of this Indictment, in the District of South Dakota and elsewhere, the defendant, Robert Charles Massat, did knowingly and intentionally combine, conspire, confederate and agree with others known and unknown to the Grand Jury to knowingly and intentionally distribute and to possess with the intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers, a Schedule II controlled substance . . . .

Id. Trevor Ray, an alleged co-conspirator was separately indicted and convicted at jury trial of the same conspiracy offense.[1] See United States v. Trevor Ray, 15-50043-JLV (D.S.D. 2015), Dockets 33 at p. 1 & 60 at pp. 1-2.

         Mr. Massat argues his prosecution is prohibited by the Double Jeopardy Clause of the Fifth Amendment because “[t]he evidence being used to prosecute [him] for conspiracy . . . duplicates the evidence used to prosecute and convict Ray for conspiracy under the same statutes. The conspiracy charged in Massat’s Indictment, therefore, is ‘in law and fact the same offense’ as charged in Ray’s Indictment . . . .” (Docket 39 at p. 2).

         Mr. Massat “bears the initial burden of showing a non-frivolous claim of double jeopardy. . . . Once the defendant has made that initial showing, the burden shifts to the government to show by a preponderance of the evidence” that jeopardy has not attached. United States v. Okolie, 3 F.3d 287, 289 (8th Cir. 1993) (internal citations omitted). The United States Court of Appeals for the Eighth Circuit “reviews the issue of double jeopardy de novo.” Id.

         “The denial of a motion to dismiss on double jeopardy grounds may be raised in an interlocutory appeal.” United States v. Brown, 926 F.2d 779, 781 (8th Cir. 1991). “[I]f the district court finds a defendant has failed to make a colorable showing of ‘previous jeopardy and the threat of repeated jeopardy, ’ the filing of a notice of appeal from the denial of the double jeopardy motion does not divest the district court of jurisdiction.” Id. (internal citation omitted). The district court is expected “to make a written finding of whether a double jeopardy claim is frivolous or nonfrivolous (i.e., colorable), with a ‘frivolous’ finding to be followed by expedited review on appeal.” Id. (parentheticals in original; internal citation omitted). “Upon such review, [the Eighth Circuit] should dismiss the appeal for lack of jurisdiction if [it] also find[s] the claim is frivolous.” Id.

         Mr. Massat asserts that “[o]nce Ray was convicted . . . any Indictment based on the same conspiracy filed after that conviction (as has occurred in Massat’s case), violates the Double Jeopardy Clause of the United States Constitution.” (Docket 39 at pp. 6-7) (parentheticals in original). Mr. Massat acknowledges there is “no case directly on point, but that is because it appears this specific issue has not previously been litigated.” (Docket 46 at p. 1). He admits “[t]he majority of the cases that have analyzed Double Jeopardy in context of agency or vicarious liability relationships would, at first impression, seem to foreclose the argument advanced by Massat.” Id. at pp. 1-2. However, Mr. Massat argues “where the Government has filed a separate indictment against an alleged co-conspirator, and jeopardy has already attached in that other indictment for the same criminal agreement, Double Jeopardy is violated when the Government files an Indictment against another alleged co-conspirator based on the same facts used to secure a conviction for the criminal agreement in which jeopardy had already attached. . . . Therefore, since there has already been a ‘finding of guilt’ of the criminal agreement, jeopardy has attached.” Id. at p. 6 (italics removed) (referencing Pinkerton v. United States, 328 U.S. 640, 643 (1946) (“ ‘conspiracy is a partnership in crime’ distinct from any substantive offense”) and Serfass v. United States, 420 U.S. 377, 391-92 (1975) (“[w]ithout risk of a determination of guilt, jeopardy does not attach . . . .”)).

         “The Fifth Amendment assures that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ ” United States v. Abboud, 273 F.3d 763, 766 (8th Cir. 2001) (citing U.S. Const. amend. V). “The clause provides three separate protections for criminal defendants: protection against a second prosecution for the same offense after acquittal, protection against prosecution for the same offense after conviction, and protection against multiple punishments for the same offense.” Id. “The clause also prohibits government from dividing a single criminal conspiracy into multiple conspiracy convictions. . . . The alleged agreement itself is the prohibited conduct targeted by the conspiracy statute, and there is only one offense where there is only one agreement.” Id. (internal citations omitted).

         “The constitutional protection against double jeopardy is ‘intrinsically personal.’ . . . A defendant cannot invoke it to prevent his punishment on the ground that another already has been punished. . . . a double jeopardy claim . . . requires at least a colorable showing that a defendant once before has been in jeopardy. . . . [W]ithout risk of a determination of guilt, jeopardy does not attach . . . .” United States v. Andrews, 146 F.3d 933, 937-38 (D.C. Cir. 1998) (internal quotation marks, bracketing and citations omitted). The Double Jeopardy Clause has “two prongs: it protects not only against successive prosecution, but also against successive punishment.” Id. at 936 (internal quotation marks and citation omitted). “The Court has described the successive prosecution prong as protecting against two more distinct abuses: ‘a second prosecution for the same offense after acquittal [and] a second prosecution for the same offense after conviction.’ ” Id. at 937 n.3 (citing North Carolina v. Pearce, 395 U.S. 711, 717 ...

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