APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. George Z. Singal, U.S. District Judge.
Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellant.
Caleigh Shea Milton, with whom Leonard I. Sharon, were on brief, for appellee Szpyt.
James S. Hewes, for appellee Dellosantos.
Before Torruella, Howard, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
Appellant, the United States, appeals the district court's order dismissing an indictment against Appellees Richard Szpyt and Ramón Dellosantos (collectively, " Appellees" or " Defendants" ) as a violation of the Fifth Amendment's Double Jeopardy Clause. Specifically, the United States contends that the current indictment alleges a factually distinct and separate conspiracy from an earlier, related indictment and conviction which this court vacated due to a material variance. Appellees, meanwhile, contend that the dismissal was proper because their first convictions were vacated due to the insufficiency of the evidence and the current indictment is merely charging a subset of the broader conspiracy they were acquitted of. After careful consideration, we agree with the government and reverse.
On October 22, 2008, the government returned an indictment charging Szpyt, Dellosantos, and sixteen others (the " First Indictment" ). According to the First Indictment:
Beginning on a date unknown, but not later than 2004 and continuing until a date unknown, but no earlier than December 2007, in the District of Maine and elsewhere, Defendants . . . knowingly and intentionally conspired with one another and with others known and unknown to the Grand Jury to commit offenses against the United States, namely, distribution and possession with intent to distribute controlled substances, including 5 kilograms or more of cocaine, and marijuana, and did aid and abet such conduct.
At trial, the government presented evidence from a number of witnesses, including several cooperating witnesses. The evidence showed that from 2004 to 2007 (until their arrest), Szpyt and Dellosantos, both residents of Massachusetts, sold cocaine which they received solely from Plino Vizcaíno, a Massachusetts-based drug distributor. Specifically, Dellosantos would purchase cocaine from Vizcaíno and later sell some of that cocaine to Szpyt.
Szpyt, after purchasing cocaine from Dellosantos, would sometimes sell it from his Massachusetts home to his Maine customers and, other times, deliver it directly to his Maine customers. Both Szpyt and many of his Maine customers were members
of the " Iron Horsemen" motorcycle gang. Not only was Szpyt formerly the president of the Maine chapter of the Iron Horsemen, but he was also the owner of the gang's Maine clubhouse.
During this same time frame, one of Szpyt's fellow gang members and cocaine customers, Robert Sanborn, also sold cocaine to motorcycle gangs in Maine. He obtained his cocaine primarily, but not exclusively, from Szpyt. In addition to selling cocaine, Sanborn also sold marijuana to customers in Maine, starting sometime in 2005 and ending in either late 2007 or early 2008, following his arrest. Sanborn obtained his marijuana from sources unaffiliated with Szpyt and Dellosantos. Sanborn did, however, sometimes use the proceeds from his marijuana sales to buy cocaine from Szpyt.
Twice during the trial, both Szpyt and Dellosantos moved for judgments of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure: once at the close of the government's case and once at the close of their own cases. The district court denied the motions. Subsequently, on May 13, 2009, Szpyt and Dellosantos, along with one other defendant, were found guilty of conspiracy to distribute and possess with intent to distribute cocaine and marijuana. In addition, the jury found Szpyt guilty of using a communication facility to facilitate the commission of the charged conspiracy.
On appeal, Appellees asserted that " the evidence presented at trial was insufficient to support their convictions." In a 2-1 decision, we reversed, finding that
there was insufficient evidence to support the finding of a single conspiracy. Rather, the evidence pointed to at least two distinct conspiracies: (1) the Massachusetts-based Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine, and (2) the Maine-based Sanborn-centered conspiracy to distribute both cocaine and marijuana.
Dellosantos, 649 F.3d at 119. In coming to this conclusion, we were
[m]indful of this variance, [and found] that the Defendants' convictions cannot stand for two reasons. First, we f[ou]nd that the evidence was insufficient to support a verdict that either Szpyt or Dellosantos knowingly and voluntarily joined the Sanborn-centered conspiracy to distribute both cocaine and marijuana. Second, assuming without deciding that the evidence was sufficient to permit a jury to find the Defendants guilty of joining the Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine, we f[ou]nd that the Defendants would be unfairly prejudiced by the difference between the conspiracy specified in the indictment and the Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine.
Id. at 121.
After opining on why the evidence was insufficient to conclude beyond a reasonable doubt that the Appellees joined the Sanborn-centered conspiracy to distribute both cocaine and marijuana, we then turned to " whether the Defendants' convictions c[ould] nonetheless stand based on a finding that the Defendants joined the other conspiracy proven by the United States,
i.e., the Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine." Id. at 124. Looking at this conspiracy, we concluded that " the evidence was arguably sufficient to support a finding that the Defendants joined the other conspiracy proven by the government." Id. We added that " because the statutory violation for joining the Vizcaíno-Dellosantos-Szpyt conspiracy remain[ed] the same as that alleged in the indictment, the jury, under a proper set of instructions, could arguably have convicted the Defendants of participating in the Vizcaíno-Dellosantos-Szpyt conspiracy so long as the difference between the conspiracy specified in the indictment and the Vizcaíno-Dellosantos-Szpyt conspiracy 'd[id] not cause unfair prejudice.'" Id.
Despite the sufficiency of the evidence on the Vizcaíno-Dellosantos-Szpyt cocaine-only conspiracy, though, we found that the convictions could not stand. We held that " the difference between the conspiracy specified in the indictment and the Vizcaíno-Dellosantos-Szpyt conspiracy unfairly prejudiced the Defendants," id. at 125, because
under the guise of its single conspiracy theory, the government subjected the Defendants to voluminous testimony relating to unconnected crimes in which they took no part. This situation created a pervasive risk of " evidentiary spillover," where the jury might have unfairly transferred to the Defendants the guilt relating to the other sixteen indicted individuals.
Id. In conclusion, we crystallized our holding:
The evidence established at least two conspiracies, (1) the Sanborn-centered conspiracy, and (2) the Vizcaíno-Dellosantos-Szpyt conspiracy. With regards to the first conspiracy (i.e., the Sanborn-centered conspiracy), the evidence was insufficient to support a finding that the Defendants joined the same. In addition, although the evidence was arguably sufficient to support a finding that the Defendants joined the second conspiracy proven (i.e., the Vizcaíno-Dellosantos-Szpyt conspiracy), we find that the variance between the conspiracy specified in the indictment and the Vizcaíno-Dellosantos-Szpyt conspiracy unfairly prejudiced the Defendants.
Id. at 125-26. As a result, the court " vacate[d] both Dellosantos' and Szpyt's convictions." Id. at 126.
Following the vacatur, the district court entered a judgment of acquittal. The government, meanwhile, obtained a new indictment against Szpyt and Dellosantos (the " Current Indictment" ). According to this indictment:
Beginning on a date unknown, but not later than 2006 and continuing until a date unknown, but no earlier than December 2007, in the District of Maine and elsewhere, Defendants . . . knowingly and intentionally conspired with one another and with others known and unknown to the Grand Jury to commit an offense against the United States, namely, distribution and possession with intent to distribute 5 kilograms or more of a mixture or substance containing cocaine, and did aid and abet such conduct.
In response to the Current Indictment, Szpyt and Dellosantos separately filed motions to dismiss on double jeopardy grounds. On April 3, 2013, the district court granted the motions and dismissed the Current Indictment. It reasoned that the two conspiracies " amount to the same offense" because the time frame of the cocaine-only conspiracy is " completely subsumed" in the time frame of the cocaine-and-marijuana conspiracy, because there was a complete ...