Court rejects argument that second indictment charging a second conspiracy violated double jeopardy

United States v. Leal, 2019 WL 1758851 (10th Cir. April, 22, 2019) (NM): After Leal was convicted of one drug conspiracy, the government filed another indictment for an alleged separate conspiracy. In his motion to dismiss, Leal argued the two conspiracies were interdependent and a conviction on the second indictment would violate his double jeopardy rights. When the district court denied Leal’s motion to dismiss, he filed an interlocutory appeal. The panel found proceeding on the second indictment would not violate the Double Jeopardy clause’s protection against the prosecution for the same offense.

The accused bears the burden of proving that two conspiracies are the same for double jeopardy purposes. To be successful, he must show that the conspiracies shared a common goal, covered a common time, occurred in the same place or involved the same people. Here, there was no evidence establishing any of these factors. Additionally, the activities of the first conspiracy were not necessary or advantageous to success of the second conspiracy and so, neither shared a common goal. Although the government used the same informant in both cases, Leal’s agreement to help him buy drugs was not a conspiracy as a matter of law and so was not evidence that the conspiracies were interdependent.

Stash house and aggravating role enhancements affirmed in drug case

US v. Lozano, 2019 WL 1746941 (10th Cir. 4/19/19) (published): Mr. Lozano pled guilty to conspiracy to distribute and possession with intent to distribute cocaine in a multi-year conspiracy. He challenged a two-level guideline enhancement for maintaining a premise for the purpose of distributing a controlled substance and a three-level enhancement for aggravated role. The Court affirmed both enhancements. The Court applied a “totality of the circumstances” test and affirmed that it is not necessary to show that the drug activity is the sole activity in the house for it to be a primary purpose. In this case, the “stash house” enhancement was supported by evidence that Mr. Lozano leased and paid the utilities at the house, and that it was not where he or his family lived. The district court’s finding that Mr. Lozano had no reason to maintain the house other than as a place to bring, unload, and distribute drugs was not clearly erroneous. The aggravating role enhancement was also not clearly erroneous. The district court relied on Mr. Lozano’s exercise of decision-making authority over two specific co-conspirators, including providing the means to enable their trafficking activities, and his routine claim to a larger share of the profits despite his lack of on-the-ground involvement.