Summary
concluding that prosecution for dynamiting radio towers was not barred by double jeopardy, even when the same offense served as a predicate offense in an earlier RICO prosecution
Summary of this case from State v. LozaOpinion
No. 91-8047.
May 29, 1991.
Jay L. Strongwater, Atlanta, Ga., for J.T. Lequire.
Michael J. Trost, Atlanta, Ga., for Jerry Allen Lequire.
William Morrison, Atlanta, Ga., for Charles L. Lequire.
Douglas N. Peters, Decatur, Ga., for Gene Lequire.
Glenn Zell, Atlanta, Ga. (Court-appointed), for Wm. Michael Lequire.
Barry W. Lombardo, Atlanta, Ga. (Court-appointed), for Bonnie Sue Anders.
Martin J. Weinstein, Asst. U.S. Atty., Atlanta, Ga., for U.S.
Appeal from the United States District Court For the Northern District of Georgia.
Before HATCHETT, CLARK and DUBINA, Circuit Judges.
In this expedited appeal, all the appellants claim that the district court erred in ruling that the present prosecution for dynamiting radio towers in the Northern District of Georgia does not constitute double jeopardy, in view of the appellants' prior prosecutions and convictions in the Middle District of Alabama for Racketeer Influenced and Corrupt Organizations Act (RICO) charges, and conspiracy to commit RICO, where the present indictment charges as offenses three activities which were predicate acts in the first prosecution. In a simpler form, the appellants claim that they may not be prosecuted in the Northern District of Georgia for dynamiting radio towers because those acts were predicate acts in a RICO case in the Middle District of Alabama.
We recently spoke to this issue in United States v. Gonzalez, 921 F.2d 1530 (11th Cir. 1991). In Gonzalez, we held that the double jeopardy doctrine does not preclude a prosecution for violating RICO, or for conspiring to participate in drug smuggling operations, even though predicate acts of transporting conspiracy members in interstate commerce and introducing them to the leader of the smuggling operation had been part of the conduct for which defendant had previously been convicted.
Gonzalez is a companion case to the first case in which these appellants were convicted.
The appellants urge us to find that the sequence of prosecutions in this case is so different from that in Gonzalez, that a different rule should apply. In Gonzalez, in the second case, the government charged the appellant with RICO, which contained predicate acts from the first prosecution. In this case, the appellants were convicted of RICO substantive and conspiracy charges and in this second prosecution the government has charged overt acts from the first prosecution. The only difference in the cases is that in Gonzalez, the RICO action came second while in this case the RICO action came first. The reversal in sequence does not require a change in the law. The situations are not distinguishable. We are bound by Gonzalez.
In Gonzalez we considered the views of other circuits on this issue.
Accordingly, the district court is affirmed.
AFFIRMED.