United States v. Cruce

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-1843
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES R. CRUCE and THOMAS A. BURGER,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court for the
Northern District of Texas

_________________________________________________________________
(May 3, 1994)

Before GOLDBERG, JOLLY, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Cruce and Burger face a criminal prosecution, which they seek

to bar on grounds of double jeopardy. They have been previously

convicted and sentenced in Kansas for a bank-fraud conspiracy

involving a savings and loan. They now stand indicted in Texas for

a bank-fraud conspiracy affecting the same institution. They

contend that the Texas prosecution is barred by the Double Jeopardy

Clause because the conduct that now constitutes the basis for the

Texas prosecution was previously considered in Kansas as relevant

conduct under the Sentencing Guidelines. We hold that the Double

Jeopardy Clause does not bar punishment of the Texas conspiracy
offense. This is true for the simple reason that the Texas offense

is separate and distinct from the Kansas offense. Accordingly, we

affirm the district court's ruling denying the defendants' motion

to dismiss the indictment and remand the case for further

prosecution.

I

FACTS AND PRIOR PROCEEDINGS

James Cruce was the president and a director of Peoples

Heritage Federal Savings and Loan Association ("Peoples Heritage").

Thomas Burger was executive vice-president, chief lending officer,

and a director of Peoples Heritage. Cruce and Burger engaged in

various schemes at the expense of Peoples Heritage and its federal

insurer, the Federal Home Loan Bank Board (the "FHLBB").

In Kansas, on January 10, 1991, a federal grand jury returned

two indictments against Cruce and Burger for various crimes

concerning their dealings with Peoples Heritage and the FHLBB from

1984 through 1990. The first Kansas indictment charged Cruce and

Burger, along with four other defendants,1 with a bank-fraud

conspiracy under 18 U.S.C. § 371 and 18 U.S.C. § 1344, and making

false statements to the government in violation of 18 U.S.C. §

1001. The second Kansas indictment charged Cruce, Burger, and five

1
Thomas Dunn, Roy Gressett, James Savage, and R. J. Fellows
are not parties to this appeal.

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other defendants2 with conspiracy to commit bank fraud under 18

U.S.C. § 371, bank fraud under 18 U.S.C. § 1344, aiding and

abetting under 18 U.S.C. § 2, and making false statements to the

government in violation of 18 U.S.C. § 1001. In exchange for

Cruce's and Burger's guilty pleas to the conspiracy and bank-fraud

counts charged in the second Kansas indictment, the government

dropped all the counts in the first Kansas indictment and the

remaining counts in the second indictment.

The Kansas district court adopted the presentence reports in

setting Cruce's and Burger's sentences. The presentence reports

included a $6.5 million transaction known as the "Flower Mound

Loan." This transaction occurred in Texas and was not listed in

the Kansas indictments. Cruce and Burger each received the maximum

offense level of 24, which U.S.S.G. §§ 2F1.1(a) and (b) provide for

losses in excess of $80 million caused by fraud. The presentence

reports then enhanced both Cruce's and Burger's offense levels by

four points under U.S.S.G. § 3B1.1 because of each defendant's

extensive involvement in the broad conspiracy that caused severe

damage to the savings and loan and its federal insurer. Other

adjustments resulted in offense levels of 34 for Cruce and 33 for

Burger. These offense levels, in turn, resulted in prison terms of

168 months for Cruce and 144 months for Burger. Cruce and Burger

also received fines of $8 million and $6 million, respectively.

2
Thomas Dunn, Jr., Sherwood Blount, Jr., Kim Wise, Cathy
Cruce, and Joseph Grosz are not parties to this appeal.

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 II

PROCEEDINGS BELOW

On December 12, 1991, a federal grand jury in Dallas, Texas,

returned an indictment against Cruce and Burger. The Texas

indictment focuses on a conspiracy encompassing three bribe and

kickback transactions--including the Flower Mound Loan--that Cruce

and Burger allegedly effected with James McClain from 1984 to 1986,

as officers of Peoples Heritage. The indictment charged conspiracy

under 18 U.S.C. § 371, unlawful receipt under 18 U.S.C. § 215(a),

bank fraud under 18 U.S.C. § 1344, wire fraud under 18 U.S.C. §

1343, and misapplication of funds under 18 U.S.C. § 657. Cruce and

Burger filed motions to dismiss the Texas indictment on double

jeopardy grounds, arguing that the Texas proceeding would result in

a second punishment for the conspiracy encompassing the Flower

Mound Loan conduct that had been reflected in the Kansas

presentence report. The district court denied the motions, and

Cruce and Burger filed this appeal.

III

QUESTION PRESENTED

In this case, we address the Double Jeopardy Clause as it bars

a second punishment for a crime that has already been once

punished. The criminal conduct that was not charged or prosecuted

in the Kansas case was nevertheless used, as relevant conduct under

the Sentencing Guidelines, to enhance the punishment for the Kansas

offense. Now, the same conduct is the subject of this Texas

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indictment. We must determine whether a punishment in this case

would constitute a second punishment barred by the Double Jeopardy

Clause.

IV

OVERVIEW OF CONTROLLING LAW

The text of the Double Jeopardy Clause provides, "[N]or shall

any person be subject for the same offence to be twice put in

jeopardy of life or limb." U.S. Const. amend. V. (emphasis added).

The Supreme Court has interpreted the Clause as providing

protections against multiple prosecutions and multiple punishments

for the "same offense." North Carolina v. Pearce, 395 U.S. 711,

717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In applying the

protections against a second prosecution and a second punishment,

the traditional focal point of double jeopardy analysis has been

the "offense" for which the defendant is prosecuted and punished--

not the conduct criminalized by, or related to, that offense. In

Gavieres v. United States, 220 U.S. 338, 345, 31 S.Ct. 421, 423, 55

L.Ed. 489 (1911), the Supreme Court held that even though the

defendant only made one statement, double jeopardy principles did

not preclude a second prosecution for that statement simply because

the same conduct was involved. This was so because the same

conduct constituted two separate "offenses" under the same elements

test. Id. Similarly, in Blockburger v. United States, 284 U.S.

299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court

provided that even though the defendant only made one sale of

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narcotics, double jeopardy principles did not preclude a second

punishment for the same conduct because that conduct constituted

two separate "offenses" under the same elements test. Thus, the

focal point of the double jeopardy protections against a second

prosecution in Gavieres and a second punishment in Blockburger was

the "offense" for which the defendants were prosecuted, convicted,

and punished--not the conduct encompassed by those offenses.3

3
Despite this traditional focus of both the multiple
prosecutions' bar and the multiple punishments' bar on the
"offence" (the word specifically used in the Constitution) a
short-lived opinion by the Supreme Court shifted the focal point
of the multiple prosecutions' bar from the offense to the conduct
underlying the offense. In Grady v. Corbin, 495 U.S. 508, 510,
110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), the Supreme Court
imposed an additional conduct test on the Blockburger same
elements test for determining if a second prosecution was barred.
Id. at 510, 110 S.Ct. at 2087. The conduct emphasis did not last
long, however, as the Supreme Court recently--and soundly--
rejected the Grady "same conduct" test in United States v. Dixon,
___ U.S. ___, ___, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993).
Thus, instead of achieving consistency in double jeopardy
analysis by pivoting the focus of the multiple punishments' bar
toward the Grady "same conduct" test, the Supreme Court
reasserted that the focus of the multiple prosecutions' bar is
the "same offense," as defined by Blockburger. Id. at ___, 113
S.Ct. at 2860. Justice Scalia stated for a majority of the Dixon
Court:

We have often noted that the [Double Jeopardy] Clause
serves the function of preventing both successive
punishment and successive prosecution, . . . but there
is no authority, except Grady, for the proposition that
it has different meanings in the two contexts. That is
perhaps because it is embarrassing to assert that the
single term "same offence" (the words of the Fifth
Amendment at issue here) has two different meanings--
that what is the same offense is yet not the same
offense.

Id., at ___, 113 S.Ct. at 2860 (emphases in original) (citations
omitted).

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 Because the Double Jeopardy Clause focuses on the "offense"

for which the defendant is prosecuted and convicted, the intent of

the legislature is important because it is the legislature that

defines the "offense" and prescribes the punishment for that

offense. See Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct.

1432, 1436, 63 L.Ed.2d 715 (1980).4 In interpreting these

statutes, we use the Blockburger rule of construction under which

we presume that when the legislature writes two criminal statutes,

and each statute contains an independent element from the other

statute, it intends to define two separate offenses that generally

entail two punishments. See Missouri v. Hunter, 459 U.S. 359, 367,

103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983).5 Once established,

the Blockburger presumption, at least with respect to separate

punishments for separate offenses, can only be overcome by a "clear

4
The Supreme Court stated:

The Fifth Amendment guarantee against double jeopardy
embodies in this respect simply one aspect of the basic
principle that within our federal constitutional
framework the legislative power, including the power to
define criminal offenses and to prescribe the
punishments to be imposed upon those found guilty of
them, resides wholly with the Congress.

Whalen, 445 U.S. at 689, 100 S.Ct. at 1436.
5
In Hunter, 459 U.S. at 367, 103 S.Ct. at 678-79, the Court
provided that "cumulative punishment can presumptively be
assessed after conviction for two offenses that are not the
`same' under Blockburger"; (citing Albernaz v. United States, 450
U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981)
(allowing separate punishments for conspiracy to import marijuana
and conspiracy to distribute marijuana because there was no clear
congressional intent not to impose separate punishments)).

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indication of contrary legislative intent." Id. at 367, 103 S.Ct.

at 679.

V

ANALYSIS

In the instant case, we first determine that Cruce and Burger

have established a prima facie double jeopardy challenge that the

Texas indictment charges an offense that encompasses conduct

considered in setting sentence for the Kansas offenses. Second, we

hold that the Double Jeopardy Clause continues to focus on the

Kansas and Texas offenses instead of any conduct related to those

offenses. Third, we hold that the Kansas conspiracy offense is a

separate offense from the Texas conspiracy offense, thus, evoking

the presumption that Congress intended a separate punishment for

each. Fourth, we hold that Congress has not (in the Sentencing

Guidelines) evinced the clear intent necessary to preclude

punishment for a separate and distinct offense, even though the

underlying conduct has been used previously to enhance another

sentence. In making these determinations, we review Cruce and

Burger's legal challenge de novo. United States v. Deshaw, 974

F.2d 667, 669 (5th Cir. 1992).

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 A

The Prima Facie Case

In order to establish a double jeopardy claim, the defendant

must first present a prima facie claim that double jeopardy

principles have been violated. See generally United States v.

Goff, 847 F.2d 149, 169 (5th Cir.), cert. denied, 488 U.S. 932, 109

S.Ct. 324, 102 L.Ed.2d 341 (1988); United States v. Stricklin, 591

F.2d 1112, 1118 (5th Cir. 1979), cert. denied, 444 U.S. 963, 100

S.Ct. 449, 62 L.Ed.2d 375 (1979). Once the defendant proffers

sufficient proof to support a nonfrivolous claim, the burden shifts

to the government to show that double jeopardy does not bar the

proceeding. Id. at 1118-19.

Cruce and Burger contend that they have met the burden of

establishing a nonfrivolous double jeopardy claim by showing that

the Kansas district court punished them under the Sentencing

Guidelines, at least in part, because of the Flower Mound Loan

conduct, which is encompassed in the instant Texas conspiracy

charge.6 In justifying the four-point enhancement of Cruce's and

Burger's offense levels under U.S.S.G. § 3B1.1, the Kansas

presentence reports stated that the defendants caused total losses

"approaching $149,000,000 [and `exceeding $127,000,000,'

6
Cruce and Burger rely on Tenth and Second Circuit cases,
United States v. Koonce, 945 F.2d 1145 (10th Cir. 1991), cert.
denied, ___ U.S. ___, 112 S.Ct. 1705, 118 L.Ed.2d 413 (1992), and
United States v. McCormick, 992 F.2d 437 (2d Cir. 1993), for the
proposition that sentencing enhancement based on conduct bars
subsequent punishment of offenses encompassing such conduct.

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respectively]." These total net loss figures include the $6.5

million loss attributable to the Flower Mound Loan.7 In response,

the government merely offers its conclusory assertion that the

Flower Mound Loan did not enhance the defendants' offense levels.

The government offers no basis to support this assertion. We

therefore hold that Cruce and Burger have established a prima facie

double jeopardy claim that the Kansas district court increased

their respective sentences because of the Flower Mound Loan conduct

and that same conduct underlies the conspiracy offense charged in

the Texas indictment. Thus, we will consider the merits of their

claim.

B

Is It Significant Whether The Same Conduct Is Involved In Both

Kansas And Texas? The Offense Focus

Cruce and Burger contend that, as held in United States v.

Koonce, 945 F.2d 1145, 1152-53 (10th Cir. 1991), cert. denied, ___

U.S. ___, 112 S.Ct. 1705, 118 L.Ed.2d 413 (1992), and United States

v. McCormick, 992 F.2d 437, 440-41 (2d Cir. 1993), the Double

Jeopardy Clause bars this Texas proceeding because it could result

7
The record reveals the following total net loss figures:

Losses Relating to
Transactions Listed in: Cruce Burger
First Indictment $ 21,570,000 $ 21,570,000
Second Indictment 90,197,577 90,197,577
Unindicted Acts* 37,592,953 15,898,165
Totals $149,360,530 $127,665,742
*
Including the $6.5 million Flower Mound Loan.

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in a second punishment of conduct previously punished in a prior

criminal trial. This argument fails, however, because it

misconceives the focal point of the double jeopardy protection

against a second punishment as the conduct considered in setting

the Kansas sentence, instead of the conviction offense that

prompted the Kansas sentence.

As previously explained, the Double Jeopardy Clause precludes

a second punishment for the same "offense," not a second punishment

for the same conduct. See United States v. Dixon, ___ U.S. ___,

___, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993); Blockburger, 284

U.S. at 304, 52 S.Ct. at 182.8 Accordingly, we must address

8
Despite the holdings, without citation to authority, of
both Koonce, 945 F.2d at 1150, and McCormick, 992 F.2d at 439,
that an increase in a guidelines offense level because of the
consideration of relevant nonconviction offense conduct
constituted punishment of the relevant conduct, instead of
punishment of the offense of conviction, the traditional focus of
double jeopardy punishment analysis has not shifted from the
offense. Our review of binding authority confirms this
observation.
In McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45
L.Ed. 542 (1901), the Supreme Court rejected the defendant's
double jeopardy claim that his sentence for his latest crime
could not be increased based on prior crimes for which he had
already been punished. The Supreme Court reasoned:

The fundamental mistake of the [defendant] is his
assumption that the judgment below imposes an
additional punishment on crimes for which he had
already been convicted and punished. . . .
But it does no such thing. . . . The punishment is for
the new crime only, but is the heavier if he is an habitual
criminal.

Id. at 312, 21 S.Ct. 390; see Williams v. Oklahoma, 358 U.S. 576,
585, 79 S.Ct. 421, 427, 3 L.Ed.2d 516 (1959) (holding that
consideration of a prior conviction in sentencing the defendant

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whether Cruce and Burger's Texas conspiracy offense is the "same"

as their Kansas conspiracy offense for which they have already been

punished.

C

The Kansas and Texas Conspiracies Are Separate Offenses;

Consequently, We Presume They Carry Separate Punishments

Where the government charges two offenses under the same

statute, (here 18 U.S.C. § 371), we must determine, in our double

jeopardy analysis, if the offenses are the same in "fact." United

States v. Marable, 578 F.2d 151, 153 (5th Cir. 1978), overruled on

other grounds by United States v. Rodriguez, 612 F.2d 906 (5th Cir.

for a subsequent conviction did not violate double jeopardy
principles because the convictions involved separate offenses,
and the sentencing judge was "authorized, if not required, to
consider all of the mitigating and aggravating circumstances" in
setting sentence); Sekou v. Blackburn, 796 F.2d 108 (5th Cir.
1986) (holding no double jeopardy violation occurred when after
considering nonoffense conduct in imposing sentence for the
conviction offense, the state later tried the defendant for the
separate offense that encompassed the previously considered
nonoffense conduct). Thus, the Supreme Court and our own
precedent confirm that although the Kansas sentence enhancement
may factually relate to the Flower Mound Loan conduct considered
by the Kansas sentencing court, the enhancement functioned
legally to punish only the Kansas conviction offense.
We note further, however, that the Koonce and McCormick
Courts may have been influenced by the Supreme Court's short-
lived decision in Grady. In Grady, 495 U.S. at 510, 110 S.Ct. at
2087, the Court appeared ready to move toward adopting a conduct
focus for both prosecutions and punishments. After the Koonce
and McCormick decisions were rendered, however, the Supreme Court
reversed Grady. Dixon, ___ U.S. at ___, 113 S.Ct. at 2860. In
Dixon, the Court reaffirmed that the focal point of the double
jeopardy protections against both multiple prosecutions and
multiple punishments is the "offense" of conviction, instead of
the conduct underlying or related to that offense. Id.

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1980) (en banc), aff'd sub nom. Albernaz v. United States, 450 U.S.

333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); see Blockburger, 284

U.S. at 301-03, 52 S.Ct. at 181-82. To determine whether a

previous conspiracy conviction (the Kansas conspiracy conviction)

involved the "same offense" as a subsequently charged conspiracy

(the Texas conspiracy charge) we examine the following factors:

(1) time, (2) persons acting as co-conspirators, (3) the
statutory offenses charged in the indictments, (4) the
overt acts charged by the government or any other
description of the offense charged which indicates the
nature and scope of the activity which the government
sought to punish in each case, and (5) places where the
events alleged as part of the conspiracy took place.

Marable, 578 F.2d at 154; see United States v. Ellender, 947 F.2d

748 (5th Cir. 1991). The Kansas conspiracy occurred over a time

period, 1984 to 1990, that included the time period that the Texas

conspiracy is alleged to have involved, 1984 to 1986. Both the

Kansas conspiracy and the Texas conspiracy took place at Peoples

Heritage's Kansas and Texas facilities. Both the Kansas indictment

and the Texas indictment charged the statutory offenses of

committing bank fraud, 18 U.S.C. § 1344; and making false

statements, 18 U.S.C. § 1001. Thus, there are some similarities

between the Kansas conspiracy and the Texas conspiracy.

The Texas indictment, however, further charged the offenses of

unlawful receipt, 18 U.S.C. § 215; misapplication, 18 U.S.C. § 657;

and wire fraud, 18 U.S.C. § 1343--all unalleged in the Kansas

indictment. More importantly, there is no overlap in the overt

acts set out in the Kansas indictment and those enumerated in the

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Texas indictment. Finally, while the Kansas indictment did not

name McClain as a coconspirator of Cruce and Burger, the Texas

indictment charges that McClain was the coconspirator of Cruce and

Burger in all three of the illegal transactions alleged.

Consequently, it is clear to us that the Kansas conspiracy

constitutes a separate and distinct offense from the conspiracy

offense charged in the Texas indictment.9 Because the conspiracy

offenses are separate, we presume that Congress intended separate

punishments for each. See Hunter, 459 U.S. at 367, 103 S.Ct. at

678-79. Only a clear indication of contrary congressional intent

can overcome this presumption. See Albernaz, 450 U.S. at 340, 101

S.Ct. at 1143.

D

The Sentencing Guidelines Evince No Contrary Congressional Intent

9
In their briefs, Cruce and Burger argued that the "same
conduct" test of Grady, 495 U.S. at 510, 110 S.Ct. at 2087,
barred the Texas indictment as a second prosecution for the same
offense. After Cruce and Burger submitted their briefs, however,
the Supreme Court--in Dixon, ___ U.S. at ___, 113 S.Ct. at 2860--
overruled its short-lived "same conduct" test thus reestablishing
pre-Grady law. Under the retroactivity rule of Griffith v.
Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649
(1987), Dixon controls this appeal. We note, however, that even
if Grady's now-defunct "same conduct" test was applicable, we
would still hold that the Kansas conspiracy prosecution would not
preclude the Texas indictment because the conduct charged in
Kansas did not involve the three transactions with McClain
charged in the Texas indictment. This holding would be
consistent with our unpublished decision involving one of Cruce
and Burger's coconspirators in the Kansas indictments, who was
subsequently indicted in Texas for bank-fraud charges arising out
of transactions with McClain. United States v. Grosz, No. 92-
1451 (5th Cir. Oct. 8, 1992).

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 We now turn to address specially whether, by adopting the

Sentencing Guidelines, Congress clearly intended for the

consideration of relevant conduct to preclude future prosecutions

and punishments of separate offenses encompassing that same

conduct. Unlike the Koonce and McCormick Courts, we are not

convinced that Congress intended to mandate the radical change of

precluding all future punishment of offenses that encompass conduct

that was previously used to enhance the sentence for a separate

offense--effectively imposing the requirement of mandatory joinder

of offenses in a single trial.10 Instead, we are persuaded that

Congress intended to continue the traditional judicial practice of

considering aggravating and mitigating circumstances in determining

an appropriate sentence for the conviction offense. See Williams

v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337

(1949). Our conclusion is buttressed by the statement of the

10
We cannot overlook the point that Federal Rule of Criminal
Procedure 8(a) continues to allow the permissive joinder of
criminal offenses. In a related matter, the Supreme Court
recently noted:

The collateral-estoppel effect attributed to the Double
Jeopardy Clause . . . may bar a later prosecution for a
separate offense where the Government has lost an
earlier prosecution involving the same facts. But this
does not establish that the Government "must . . .
bring its prosecutions . . . together." It is entirely
free to bring them separately, and can win convictions
in both.

Dixon, ___ U.S. at ___, 113 S.Ct. at 2860 (emphasis added). If
the government can attain separate convictions for separate
offenses involving the "same facts," courts most assuredly can
impose punishments for those offenses.

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Chairman and the General Counsel of the Sentencing Commission that

the relevant conduct portion of the guidelines "simply formalizes

the pre-guidelines practice of considering the full range of a

defendant's conduct for sentencing purposes, regardless of whether

all of such criminal activity was encompassed within counts of

conviction." William W. Wilkins, Jr. & John R. Steer, Relevant

Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41

S.C. L. Rev. 495, 516 (1990). Other courts of appeal have echoed

this interpretation. See, e.g., United States v. Wright, 873 F.2d

437, 441 (1st Cir. 1989); United States v. Scroggins, 880 F.2d

1204, 1211-12 (11th Cir. 1989), cert. denied, 494 U.S. 1083, 110

S.Ct. 1816, 108 L.Ed.2d 946 (1990).

Furthermore, Congress and the Sentencing Commission have

manifested the express recognition that the guidelines do not

preclude future criminal proceedings, including the consequent

punishments, for criminal conduct that was used to enhance an

earlier sentence. In this connection, U.S.S.G. § 5G1.3(b) provides

for the imposition of concurrent or consecutive--albeit abridged--

sentences when the defendant is currently serving a term of

imprisonment for a separate offense that encompassed the same

conduct as the instant offense.11 Thus, when Congress spoke to the

11
The commentary of the current amended version of U.S.S.G.
§ 5G1.3(b) provides:

[The situation requiring concurrent sentences] can
occur, for example, where a defendant is prosecuted in
both federal and state court, or in two or more federal

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subject of two prosecutions and punishments for the same conduct,

it chose only to limit punishments in the second proceeding--not to

preclude that proceeding and the consequent punishment altogether.12

Because Congress did not clearly preclude punishment of offenses

that encompass previously considered conduct, we should not and

will not.

Accordingly, in the instant case, we hold that the Blockburger

presumption that separate punishments are allowed for separate

jurisdictions, for the same criminal conduct or for
different criminal transactions that were part of the
same course of conduct.

U.S.S.G. § 5G1.3(b) commentary n.2 (Nov. 1993) (emphasis added).
See 28 U.S.C. § 994(p) (1988) (providing that the Sentencing
Commission must submit amendments to the guidelines to Congress
and that Congress may disapprove any such amendment); William W.
Wilkins, Jr. & John R. Steer, The Role of Sentencing Guideline
Amendments in Reducing Unwarranted Sentencing Disparity, 50 WASH.
& LEE L. REV. 63, 64-69 (1993) (discussing the congressionally
envisioned role of the Sentencing Commission in refining the
guidelines via amendment). Consequently, it is clear that
Congress and the Sentencing Commission anticipated the imposition
of punishment--whether concurrent or consecutive--in a second
proceeding and, thus, did not intend to preclude such proceeding.
See Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668,
1673-74, 84 L.Ed.2d 740 (1985) (holding that even a concurrent
sentence constitutes punishment).
12
In addition to U.S.S.G. § 5G1.3's failure to preclude
further proceedings involving previously considered conduct,
neither the grouping guidelines, §§ 3D1.1 -.5, nor the fraud
guideline, § 2F1.1, do so. Instead, these guidelines deal with
multiple punishments or count manipulation within the same
proceeding, or simply reduce sentencing disparity between similar
crimes, without even addressing future proceedings. See U.S.S.G.
Ch. 1, Pt. A.4(a) (Nov. 1993); id. (Nov. 1990) (same); Ch. 3, Pt.
D introductory commentary (Nov. 1993); id. (Nov. 1990) (same);
U.S.S.G. § 3D1.1(a)(1) (Nov. 1993); id. (Nov. 1990) (same);
U.S.S.G. Ch. 1, Pt. A.3 (Nov. 1993); id. (Nov. 1990) (same).

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offenses--the Kansas conspiracy and the Texas conspiracy--has not

been overcome by a "clear indication of contrary legislative

intent." See Hunter, 459 U.S. at 367, 103 S.Ct. at 679 (quoting

Albernaz, 450 U.S. at 340, 101 S.Ct. at 1143).

VI

For the foregoing reasons, the order of the district court

denying the defendants' motion to dismiss the Texas indictment is

AFFIRMED, and the case is REMANDED for trial.

A F F I R M E D and R E M A N D E D.

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