Conviction of Both Drug Conspiracy and CCE Counts Violate Double Jeopardy; Other Arguments Rejected
US v. Hutchinson et al, -- F.3d --, 2009 WL 2217521 (10th Cir. 7/27/09) - appeal of crack convictions on retrial, after first jury hung and a mistrial was declared, of several defendants who ran a curbside crack operation out of a Denver motel.
Until a drug-related murder messed things up, defendants exhibited a powerful, if "peculiar," community spirit; they ran a Mother's Day "crack scramble" involving crack tossed from a balcony onto a parking lot for moms to grab, as well as an Easter egg hunt with crack rocks substituted for eggs. The jury was adequately instructed on the structure required to meet RICO's enterprise element in light of recent Boyle v US, 129 S.Ct. 2237 (2009), decision. As gov't conceded, because drug conspiracy is a lesser included offense of CCE, convictions of both violate double jeopardy, so case is remanded to district court for one of the two convictions to be vacated.
Suppression motion was properly denied as arrest was pursuant to warrant and officers reasonably believed the defendant in question lived in the house and was there at the time of the arrest. District court did not abuse its discretion by denying motion to substitute counsel as evidence showed defendant and his counsel were still capable of communicating. Severance of defendants' cases was properly denied as there was insufficient showing of "actual prejudice" to the defense from joint trials and a curative instruction was given. There was no speedy trial violation on retrial. There was sufficient evidence that one of the defendants participated in the conspiracy to distribute crack and the RICO enterprise and exercised "broad discretion" and managerial power. District court did wrongly conclude that a 20-year statutory minimum applied to convictions for possession with intent to distribute. District court did not err by denying acceptance of responsibility reduction.
Until a drug-related murder messed things up, defendants exhibited a powerful, if "peculiar," community spirit; they ran a Mother's Day "crack scramble" involving crack tossed from a balcony onto a parking lot for moms to grab, as well as an Easter egg hunt with crack rocks substituted for eggs. The jury was adequately instructed on the structure required to meet RICO's enterprise element in light of recent Boyle v US, 129 S.Ct. 2237 (2009), decision. As gov't conceded, because drug conspiracy is a lesser included offense of CCE, convictions of both violate double jeopardy, so case is remanded to district court for one of the two convictions to be vacated.
Suppression motion was properly denied as arrest was pursuant to warrant and officers reasonably believed the defendant in question lived in the house and was there at the time of the arrest. District court did not abuse its discretion by denying motion to substitute counsel as evidence showed defendant and his counsel were still capable of communicating. Severance of defendants' cases was properly denied as there was insufficient showing of "actual prejudice" to the defense from joint trials and a curative instruction was given. There was no speedy trial violation on retrial. There was sufficient evidence that one of the defendants participated in the conspiracy to distribute crack and the RICO enterprise and exercised "broad discretion" and managerial power. District court did wrongly conclude that a 20-year statutory minimum applied to convictions for possession with intent to distribute. District court did not err by denying acceptance of responsibility reduction.
posted by Anonymous at 1:23 PM
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