United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2004
Charles R. Fulbruge III
Clerk
No. 03-10290
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
L J BRITT, also known as Capone,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-260-15-Y
--------------------
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
*
FORTUNATO P. BENAVIDES, Circuit Judge:
In this direct criminal appeal, L.J. Britt, Appellant,
challenges his murder convictions for the drug-related killings
of Johnny Lee Shelton and Rudolfo Resendez. For the reasons that
follow, we affirm in part, vacate in part, and remand in part.
I. Background
As early as 1996, Britt participated in a narcotics
trafficking and distribution organization operated by his
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
childhood friend Julius Robinson.
On the night of December 2, 1998, Britt and Robinson
participated in the murder of Johnny Lee Shelton. In a case of
mistaken identity, members of Robinson’s organization incorrectly
identified Shelton’s white Cadillac as that of a drug dealer who
had robbed Robinson. Britt and Robinson fired bullets into
Shelton’s vehicle, fatally wounding him.
On July 12, 1999, Britt shot drug-dealer Rudolfo Resendez in
the head, killing him. The apparent motivation for this crime
was pecuniary, as Resendez’s drugs were divided among the murder
participants for resale.
On November 2, 2000, Britt and 36 other defendants were
indicted and charged with various narcotics-related offenses.
Britt’s final indictment charged him with various felony offenses
as follows:
Count One – Conspiracy to Distribute More Than 100 Kilograms
of Marijuana in violation of 21 U.S.C. § 846 and 21 U.S.C. §
841(b)(1)(B). The indictment alleged Britt’s knowing
participation in a conspiracy, along with Robinson and others, to
distribute marijuana.
Count Two – Conspiracy to Distribute More Than 5 Kilograms
of Cocaine and Murder in violation of 21 U.S.C. § 846, 21 U.S.C.
§ 841(b)(1)(A), and 21 U.S.C. § 848(e)(1)(A). The indictment
alleged Britt’s knowing participation in a conspiracy to
2
distribute cocaine and his intentional killing of Resendez.
Count Three – Murder in Furtherance of A Continuing Criminal
Enterprise in violation of 21 U.S.C. § 848(e)(1)(A). The
indictment alleged the existence of a continuing criminal
enterprise and that Britt murdered Shelton in furtherance of that
enterprise.
Count Four – Murder in Furtherance of A Continuing Criminal
Enterprise in violation of 21 U.S.C. § 848(e)(1)(A). The
indictment alleged the existence of a continuing criminal
enterprise and that Britt murdered Resendez in furtherance of
that enterprise.
Count Five – Knowing Possession of a Firearm in Furtherance
of Drug Trafficking Crime in violation of 18 U.S.C. §
924(c)(1)(A)(I). The indictment alleged that Britt possessed a
firearm in furtherance of the offenses charged in Counts One and
Three.
Count Six – Murder Using a Firearm in Relation to a Drug
Trafficking Crime in violation of 18 U.S.C. § 924(c) and 18
U.S.C. § 924(j). The indictment alleged that Britt used a
firearm to murder Shelton.
Count Seven – Murder While Engaging in Conspiracy to
Distribute More Than 5 Kilograms of Cocaine in violation of 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 848(e)(1)(A). The indictment
alleged that, while in possession of more than five kilograms of
3
cocaine, Britt murdered Resendez.
Count Eight – Knowing Possession of a Firearm in Furtherance
of Drug Trafficking Crime in violation of 18 U.S.C. §
924(c)(1)(A)(I). The indictment alleged that Britt possessed a
firearm in furtherance of the offenses charged in Counts Two,
Four, and Seven.
Count Nine – Murder Using a Firearm in Relation to a Drug
Trafficking Crime in violation of 18 U.S.C. § 924(c) and 18
U.S.C. § 924(j). The indictment alleged that Appellant used a
firearm to murder Resendez.
Britt was found guilty on all counts. The District Court
sentenced Britt to 480 months in prison on Count One. He was
sentenced to life in prison on Counts Two, Three, Four, and
Seven, to be served concurrently. And, he received life in
prison on Counts Six and Nine, to be served consecutively to each
other and the other counts. He was also ordered to pay a special
assessment of $100 for each of these seven counts. The District
Court did not issue sentences for Counts Five and Eight because
they would have been duplicitous with Counts Six and Nine.
II. Discussion
Britt argues on appeal that the District Court committed
numerous reversible errors. We treat each of his claims in turn.
A. Jury instructions regarding Count Three and Count Four
Britt argues that the District Court committed reversible
4
error when it issued its jury instructions regarding Count Three
and Count Four. Because both sides concede that Britt objected
to the jury instructions so as to preserve the issue for appeal,
the standard of review appropriate in this case is abuse of
discretion. See United States v. Daniels, 281 F.3d 168, 183 (5th
Cir. 2002). This Court can find reversible error “if the jury
charge, as a whole, misled the jury as to the elements of the
offense.” United States v. Pace, 10 F.3d 1106, 1121 (5th Cir.
1993) (citing United States v. Kington, 875 F.2d 1091, 1098 (5th
Cir. 1989)) (internal quotation marks omitted).
The instruction is in compliance with Pinkerton v. United
States. 328 U.S. 640 (1946). A Pinkerton charge allows a
defendant whom the jury has found guilty of conspiracy to be
found “guilty of any substantive act committed in furtherance
thereof.” United States v. Thomas, 348 F.3d 78, 84-85 (5th Cir.
2003) (applying Pinkerton). Any crime perpetrated by a
co-conspirator in furtherance of the conspiracy or constituting a
foreseeable consequence of the conspiracy subjects the defendant
to criminal liability for that crime. See id. In this case, the
District Court properly applied the ruling in Pinkerton.
B. Constitutionality of federal murder convictions
The District Court sentenced Britt to life in prison for
committing murder in violation of 21 U.S.C. § 848(e) and 18
5
U.S.C. § 924(j). Britt argues that these statutes run afoul of
the Tenth Amendment of the U.S. Constitution, which provides that
“[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.” U.S. Const. amend.
X. He contends that the Constitution’s Commerce Clause (U.S.
Const. art. I, § 8, cl. 3) does not confer upon the U.S. Congress
the power to enact these laws. As this is a constitutional
matter, we review de novo.
These statutes outlaw murder in the context of illegal
narcotics activities. This Court has noted that, with regards to
the “federal regulation of controlled substances,” “there is a
rational basis to conclude that federal regulation of intrastate
incidents of transfer and possession is essential to effective
control of the interstate incidents of such traffic.” United
States v. Kirk, 70 F.3d 791, 797 (5th Cir. 1995). See also
United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1995), aff’d,
514 U.S. 549 (1995), (noting that “all drug trafficking,
intrastate as well as interstate, has been held properly subject
to federal regulation on the basis of detailed Congressional
findings that such was necessary to regulate interstate
trafficking”). Murder relating to or in furtherance of such
properly regulated activity can clearly be proscribed by the
federal government. The Supreme Court’s recent federalism
6
opinions do not alter this holding. See generally United States
v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514
U.S. 549 (1995). Britt’s claim is without merit.
C. Double jeopardy for conspiracy & continuing criminal
enterprise
Britt challenges his convictions for Count One, Count Two,
Count Three, and Count Four. He argues that he was subjected to
double jeopardy by conviction and sentencing for violations of
both 21 U.S.C. § 846 and 21 U.S.C. § 848(e). We review double
jeopardy claims de novo. See United States v. Arreola-Ramos, 60
F.3d 188, 191 (5th Cir. 1995).
The Fifth Amendment guarantees that no person may “be
subject for the same offence to be twice put in jeopardy of life
or limb.” U.S. Const. amend. 5. For present purposes, this
provision serves as “protection against cumulative punishments”;
it “is designed to ensure that the sentencing discretion of
courts is confined to the limits established by the legislature.”
Ohio v. Johnson, 467 U.S. 493, 499 (1984).
The Government contends that Congress clearly intended these
to be cumulative punishments for the same act and therefore there
are no double jeopardy concerns. This is the position of several
of our sister circuits. See United States v. Collazo-Aponte, 216
F.3d 163, 200 (1st Cir. 2000); United States v. McCullah, 76 F.3d
1087, 1105 (10th Cir. 1996).
7
Even if we were to choose not to echo these opinions, the
statutes at issue here clearly pass the Blockburger test,
established by the Supreme Court to ferret out legislative intent
with regards to double jeopardy: “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.” Blockburger v. United States, 284 U.S. 299, 304 (1932).
It is clear that § 846 and § 848(e) each require proof of an
element the other does not. In order to be adjudged guilty of
violating § 846, it must be proved that the defendant knowingly
joined a conspiracy. See United States v. Diaz, 655 F.2d 580,
584 (5th Cir. 1981). However, under § 848(e), the defendant need
only act in furtherance of the conspiracy (which is included in
the continuing criminal enterprise offense)1; he need not
actually knowingly join it. Likewise, in order to be guilty
under § 848(e), there needs to have been a murder. This is
obviously not needed for a conviction under § 846.
The Blockburger test shows these to be separate offenses.
We therefore find Britt’s double jeopardy argument to be
meritless.
1
See Rutledge v. United States, 517 U.S. 292, 307 (1996).
8
D. Double jeopardy on various murder counts
Britt argues that he was subjected to double jeopardy in
violation of the Fifth Amendment by being sentenced three times
for the Resendez murder (Counts Two, Four, and Seven). We review
de novo.
The first issue to be addressed is whether Congress intended
to create multiple offenses for the same act with 21 U.S.C. §
848(e)(1)(A). The provision applies to:
any person engaging in or working in furtherance of a
continuing criminal enterprise, or any person engaging in
an offense punishable under section 841(b)(1)(A) or
section 960(b)(1) [21 USCS § 841(b)(1)(A) or 960(b)(1)]
who intentionally kills or counsels, commands, induces,
procures, or causes the intentional killing of an
individual and such killing results . . . .
21 USC § 848(e)(1)(A). There is no indication that the District
Court was permitted to use this statute to punish the same act,
the Resendez murder, three times.
The Government’s brief, following the wording of the
indictment, mischaracterizes the nature of § 848(e), which Britt
was accused of violating. Both treat the section as a penalty
provision. As this Court has pointed out, § 848(e) is not a
penalty enhancement or sentencing provision for already
established crimes; rather, it sets forth “an entirely new group
of offenses–-intentional murders committed during certain
specified felonies.” United States v. Villarreal, 963 F.2d 725,
9
728 (5th Cir. 1992). The Resendez murder is punishable because
it violated § 848(e). Indeed, neither § 846 nor § 841
criminalizes homicide.
Naturally, Britt could be punished three times under the
same statute if it were determined that he violated § 848(e)
three times. Such a determination in this case would be
virtually nonsensical. Each count was for a single murder, and
§ 848(e) criminalizes the “killing of an individual” in
different contexts or through different methods, not the methods
or contexts. See 21 U.S.C. § 848(e)(1)(A). As one district
court summarized in a similar situation: “[the defendant was
charged] with committing murder (one act) in violation of 21
U.S.C. § 848(e)(1)(A) (one statute) while working in furtherance
of a continuing criminal enterprise and while possessing with
intent to distribute cocaine (two different contexts).” United
States v. Vest, 913 F. Supp. 1345, 1353 (W.D. Mo. 1995).
Thus, Britt is correct that the murder charges in Counts
Two and Seven, along with Count Four, were multiplicitous. The
central inquiry needs to be whether Britt was subjected to
multiple punishments, as opposed to just multiple convictions,
in violation of the Fifth Amendment.
The Supreme Court has clearly stated that even concurrent
sentences can comprise multiple punishments violative of the
Double Jeopardy Clause:
10
The second conviction, whose concomitant sentence is
served concurrently, does not evaporate simply because of
the concurrence of the sentence. The separate
conviction, apart from the concurrent sentence, has
potential adverse collateral consequences that may not be
ignored. For example, the presence of two convictions on
the record may delay the defendant’s eligibility for
parole or result in an increased sentence under a
recidivist statute for a future offense. Moreover, the
second conviction may be used to impeach the defendant’s
credibility and certainly carries the societal stigma
accompanying any criminal conviction.
Ball v. United States, 470 U.S. 856, 864-65 (1985). However,
while declining to rule conclusively, the Court has mentioned
the possibility that a defendant “will never be exposed to the
collateral consequences like those described in Ball because he
is subject to multiple life sentences without possibility of
release.” Rutledge v. United States, 517 U.S. 292, 302 (1996).
One might argue that is what occurred in this case. Britt
will serve concurrent life sentences for the same offense.
However, it appears that Britt was subjected to $100 special
assessments on each of the counts we have found to be
duplicitous. The imposition of additional assessments would be
a collateral consequence of the § 848(e) offenses.
Accordingly, we vacate the three murder convictions on
Counts Two, Four, and Seven, and remand to the District Court
with instructions to reinstate only one of the duplicitous
convictions.
AFFIRMED in part, VACATED in part, and REMANDED in part.
11