United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS INDICTMENT (DKT. 132)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Devontae
Russell's motion to dismiss the indictment (Dkt. 132).
The Government has filed a response (Dkt. 172), to which
Russell has replied (Dkt. 190). The Court concludes that oral
argument would not assist in resolution of this matter.
See Local Rule 7.1(f)(2). For the reasons discussed
below, the Court denies Russell's motion.
January 31, 2017, the Government filed its First Superseding
Indictment, which charges Russell and the other Defendants
with one count of racketeering conspiracy in violation of 18
U.S.C. § 1962(d). See generally 1st Superseding
Indictment (Dkt. 39). The indictment alleges that Russell and
the other Defendants were members or associates of a street
gang known as 6 Mile Chedda Grove. Id. ¶ 1.
Based on territory on the east side of Detroit, the purpose
of the gang allegedly includes “[p]reserving and
protecting the power, territory, reputation, and profits of
the enterprise through murder, robberies, intimidation,
violence, and threats of violence.” Id. ¶
9. The indictment alleges that the gang's profits derive
primarily from the sale and distribution of controlled
substances, including crack cocaine, heroin, and morphine.
Id. ¶ 6. The sale and distribution allegedly
was not limited to just Michigan. According to the
indictment, gang members and associates sold and distributed
controlled substances in Ohio, Kentucky, Tennessee, Alabama,
and West Virginia. Id.
relates to Russell in particular, the indictment alleges that
he committed the following overt acts:
(29) On or about September 11, 2014, DEVONTAE RUSSELL and
MARIO JACKSON were together in a car in which oxycodone and
morphine were found in Tennessee.
(30) On or about September 23, 2014, DEVONTAE RUSSELL was in
a car in which oxycodone and morphine were found in
Id. ¶ 12.
motion, Russell argues that these two acts resulted in
state-court convictions in Tennessee and Ohio and that, as a
result, charging him for these incidents in the indictment
violates the Fifth Amendment's Double Jeopardy Clause.
Russell also argues that the indictment fails to sufficiently
allege a nexus between these acts and the 6 Mile Chedda Grove
criminal enterprise. Each argument lacks merit.
Double Jeopardy Clause of the Fifth Amendment provides that
“[n]o person [shall] be subject for the same offense to
be twice put in jeopardy of life of limb.” That
guaranty protects against a second prosecution for the same
offense after acquittal or conviction, and prohibits multiple
punishments for the same offense. Ohio v. Johnson,
467 U.S. 493, 498 (1977). However, the Supreme Court has long
held that “two prosecutions . . . are not for the same
offense if brought by different sovereigns - even when those
actions target the identical criminal conduct through
equivalent criminal laws.” Puerto Rico v. Sanchez
Valle, 136 S.Ct. 1863, 1870 (2016). Russell was
convicted under the laws of Tennessee and Ohio, two
sovereigns distinct from the federal government. As a result,
the Government's prosecution of Russell for racketeering
conspiracy does not violate his Fifth Amendment rights.
this case involved the same sovereign, Russell's
successive prosecution would not violate the Double Jeopardy
Clause. To determine whether a successive prosecution
violates double jeopardy, courts conduct the
“same-elements” test as articulated by the
Supreme Court in Blockburger v. United States, 284
U.S. 299, 304 (1932) (“The applicable rule is that,
where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the
other does not.”).
convict a defendant of racketeering conspiracy, the
Government must prove beyond a reasonable doubt: (i) the
existence of a criminal enterprise; (ii) association with the
enterprise; (iii) knowing agreement to participate in the
conduct of the enterprise; (iv) the defendant and at least
one other conspirator agreed that the defendant, or a
conspirator, would commit at least two acts of racketeering
in furtherance of the enterprise; and (v) the activities
affected interstate commerce. See United States v.
Fowler, 535 F.3d 408, 418 (6th Cir. 2008). To prove
aggravated possession of drugs as a third-degree felony, Ohio
Rev. Code § 2925.11(C)(1)(b), the state of Ohio had to
establish Russell's (i) knowing possession of (ii) a
schedule two controlled substance in an amount equal to the
bulk amount, but less than five times the bulk amount.
See State v. Cook, No. 77101, 2000 WL 1806994, at *3
(Ohio Ct. App. Dec. 7, 2000). An examination of both offenses