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.