Opinion
Criminal No. 2007-41.
October 10, 2007
Delia L. Smith, AUSA, St. Thomas, U.S.V.I., For the Plaintiff.
Jesse A. Gessin, AFPD, St. Thomas, U.S.V.I., For the defendant.
ORDER
Before the Court is the motion of the defendant, Ricardo Rhymer ("Rhymer"), to dismiss Count II of the Indictment. For the reasons set forth below, the Court will deny the motion.
I. FACTS
Rhymer is charged in a two-count indictment that was issued on July 5, 2007. Count I charges Rhymer with violations of Title 21 U.S.C. §§ 841(a)(1) ; 841(b)(1)(B)(iii); and 860(a). The charges in Count I arise from an incident that allegedly occurred on or about October 19, 2006. Count II charges Rhymer with violations of Title 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). The charges in Count II arise from an incident that allegedly occurred on or about January 26, 2007.
21 U.S.C. § 841(a)(1) provides that:
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally —
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. . . .
21 U.S.C. § 860(a) punishes:
Any person who violates section 841(a)(1) of this title or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground. . . .
Rhymer now moves to dismiss Count II of the indictment pursuant to Federal Rules of Criminal Procedure 7 and 12, the Fifth Amendment, and the Court's inherent powers.
II. DISCUSSION
The Fifth Amendment's Double Jeopardy Clause protects defendants from multiple punishments for the same offense. See U.S. Const. Amdt. V; Blockburger v. United States, 284 U.S. 299, 304 (1932); Garcia v. Virgin Islands, No. 2005-018, 2006 U.S. Dist. LEXIS 76248, at *19 (D.V.I. Sept. 25, 2006). Thus, where two statutes refer to the same offense, separate punishments are prohibited unless there is clear legislative intent to the contrary. See United States v. Xavier, 2 F.3d 1281, 1291 (3d Cir. 1993). Moreover, double jeopardy applies only where the defendant's conduct arises out of the same transaction. See Blockburger, 284 U.S. at 301. Separate transactions constitute distinct and separate acts that occur at different times. Id.
The Fifth Amendment of the U.S. Constitution is applicable in the Virgin Islands pursuant to § 3 of the 1954 Revised Organic Act, as amended, 48 U.S.C. § 1561.
In United States v. Jackson, 443 F.3d 293 (3d Cir. 2006), the Third Circuit overturned the defendant's conviction for violations of §§ 841(a)(1) and 860(a) on facts arising from the same incident. The Third Circuit reasoned as follows:
To find [the defendant] guilty of § 860(a), the Court must have first found him guilty of § 841(a)(1). . . . Because a conviction under § 860(a) only requires a finding of one additional element, the 1,000-foot proximity to a school, we agree that the possession of cocaine base with intent to distribute under 21 U.S.C. § 841(a)(1) is a lesser-included offense of possession with intent to distribute within 1,000 feet of a school under 21 U.S.C. § 860(a).Jackson, 443 F.3d at 301.
Here, Counts I and II of the indictment charge Rhymer with violations of §§ 841(a)(1) and 860(a) on facts arising from two separate alleged incidents. The U.S. Supreme Court has ruled that double jeopardy applies where the charges against the defendant arise from a single act. See Blockburger, 284 U.S. at 304. Moreover, the Jackson Court explicitly found that the district court had erred in not considering § 841(a)(1) as a lesser-included offense of § 860(a) on facts arising from the same incident. Jackson, 443 F.3d at 301 (italics added). The reasoning in Jackson is thus inapposite in this case.
Because the indictment charges Rhymer with offenses arising from separate transactions, there is no double jeopardy violation. Rhymer's motion to dismiss Count II of the Indictment will thus be denied.
III. CONCLUSION
For the reasons stated above, it is hereby ORDERED that Rhymer's motion to dismiss Count II of the Indictment is DENIED.