DOUBLE JEOPARDY BARS MULTIPLE PROSECUTIONS FOR THE SAME OFFENSE
“Specifically, the double jeopardy bar provides three categories of protection:
“[I]t protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (emphasis supplied) US v. Nichols, 741 F.2d 767 (5th Cir. 1984).
See: Brown v. Ohio, 432 US 161, 165 (1977);
North Carolina v. Pearce, 395 US 711 (1969);
US v. Kalish, 734 F.2d 194 (5th Cir. 1984).
See also: US v. Miller, 870 F.2d 1067 (6th Cir. 1989) [manufacturing marijuana and possession of marijuana with intent to distribute are separate offenses].
And where alleged “conspiracy” involves one continuing “pattern” then the Government should be entitled to but “one pound of flesh” regardless whether the personnel involved shifted.
“Whether one uses similes of wheels, hubs, or spokes, the result should be the same. A mere shuffling of personnel in an ongoing operation with an apparent continuity will not, alone, suffice to create multiple conspiracies.” US v. Nichols, Supra, 741 F.2d 767 (5th Cir. 1984).
See also: US v. Bernhardt, 831 F.2d 181 (9th Cir. 1987) [federal prosecution after unsuccessful state prosecution might be an impermissible sham to give the state another bite at the apple where state was paying salary of the state prosecutor who had been made a special U.S. Attorney for purposes of pursuing the second action and where action was not pursued until federal authorities were contacted by the state prosecutor];
US v. Kalish, 690 F.2d 1144 (5th Cir. 1977); and
US v. Scott, 555 F.2d 522 (5th Cir. 1977);
“[T]he participants shared a continuing, common goal of buying and selling [drugs] for profit; the operations of conspiracy followed an unbroken and repetitive pattern; and the cast of conspirators remained much the same.” US v. Ruigonez, 576 F.2d 1149, 1151 (5th Cir. 1978).
