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United States v. Russell

United States District Court, E.D. Michigan, Southern Division

June 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DEVONTAE RUSSELL, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT (DKT. 132)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         On 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.

         As it 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 Ohio.[1]

Id. ¶ 12.

         II. ANALYSIS

         In his 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.

         A. Double Jeopardy

         The 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.

         Even if 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.”).

         To 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 ...


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