Charles Leroy TIMBERLAKE and Mitchell Skiff Engelhart, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Nos. 84-2563, 2564.
United States Court of Appeals, Tenth Circuit.
July 23, 1985.
McKay, Circuit Judge, concurred in part, dissented in part, and filed an opinion.
Thomas H. Connors, Miami, Fla., for plaintiffs-appellants.
Donn F. Baker, U.S. Atty., E.D. Oklahoma, Paul G. Hess, Asst. U.S. Atty., E.D. Oklahoma, Muskogee, Okl., for defendantappellee.
Before McKAY, DOYLE and LOGAN, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
Appellants Mitchell Skiff Engelhart and Charles Leroy “Chuck” Timberlake, airplane pilots by trade, became involved in a summer 1983 drug run from Colombia. On June 30, 1983, Engelhart and Timberlake left Grand Prairie, Texas, in a twin-engine Cessna Titan airplane. They flew to an isolated airfield in Colombia, where they picked up 23 duffel bags containing approximately 460 pounds of 97 percent pure cocaine. They flew to an isolated airfield located near Talihina, in the Eastern District of Oklahoma. They arrived at about 3:35 a.m., CDT, on July 1, 1983. The cocaine was removed from the plane. Appellants then flew to Dallas-Fort Worth, Texas, where they were arrested later that day. Engelhart had an understanding that he would be paid $175,000 for this flight; Timberlake was to be paid $70,000.
Appellants were indicted by a federal grand jury in the Eastern District of Oklahoma on July 27, 1983. This was for their transportation of the drugs as part of a conspiracy. Timberlake was indicted on six specific counts; Engelhart was indicted on seven. Both appellants entered into plea agreements with the United States Attorney whereby each pleaded guilty to three counts of the indictments and agreed to cooperate with the government in connection with the prosecution of the other conspirators. No promises were made by the government as to the sentences that appellants would receive. The government’s only promise was to bring appellants’ cooperation to the attention of the court at the time of sentencing. Both the government and the appellants kept their portions of the bargain.
The United States District Court for the Eastern District of Oklahoma, after ascertaining that there was a sufficient factual basis for appellants’ guilty pleas and determining that the pleas were knowingly and voluntarily entered, accepted the guilty pleas on September 2, 1983. On October 26, 1983, the court sentenced each appellant to twenty-five years imprisonment. Appellants retained new counsel and launched collateral attacks on their sentences by means of motions to vacate them pursuant to 28 U.S.C. § 2255. However, the district court denied their motions in memorandum opinions and judgments which were issued September 25, 1984 to Timberlake, and on September 27, 1984 to Engelhart. These appeals are from the district court’s denial of the motions under § 2255.
Appellants have advanced several arguments in support of their appeal. Both of them argue that their convictions on multiple conspiracy counts violate the double jeopardy clause of the Fifth Amendment. The appellants also contend that they were denied effective assistance of counsel in violation of the Sixth Amendment. A final contention from appellant Engelhart maintains that the district court failed to ascertain whether there was a factual basis for his guilty pleas to Counts 3 and 5 of the indictment. We are unable to find any merit in any of appellants’ arguments and thus affirm the district court’s denial of their § 2255 motions.
We now address ourselves to the contention that there was double jeopardy which voids the pleas of guilty. Engelhart pleaded guilty to conspiracy to import cocaine in violation of 21 U.S.C. § 963, conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and conspiracy to travel in interstate and foreign commerce with intent to promote an unlawful activity contrary to 18 U.S.C. § 371. Appellant Timberlake pleaded guilty to the conspiracy counts. He was charged with violating 21 U.S.C. § 963 and 18 U.S.C. § 371. The appellants now contend that there was but a single conspiracy, and that imposition of several punishments for that single conspiracy under several statutes violates the double jeopardy clause.
We disagree with this contention. It is settled that a single illegal transaction may be punished under several statutory provisions if conviction under each statutory provision requires proof of a fact not required for conviction under the other statutory provisions. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). After all, these are separate and distinct violations, the conspiracy and the actual carrying out of the conspiracy. This double jeopardy test focuses on the elements of the crimes, and not on the specific acts charged in the indictment or the evidence presented at trial. United States v. Rodriquez, 612 F.2d 906, 919 (5th Cir.1980), aff'd. sub nom., Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); see also United States v. Solano, 605 F.2d 1141 (9th Cir.1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 677, 62 L.Ed.2d 652 (1980); United States v. Peterson, 524 F.2d 167 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). It is also settled that a single illegal activity may be punished under two distinct and specific conspiracy statutes, see American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), or under the general conspiracy statute (18 U.S.C. § 371) and a more specific conspiracy statute, United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981).
When one applies the rulings in the authorities which are set forth above, we can see that those convictions do not violate any double jeopardy clause. The Supreme Court has already ruled that a single conspiracy may support convictions under both 21 U.S.C. § 963 and 21 U.S.C. § 846. Albernaz v. United States, 450 U.S. 333, 339, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981). The holding in Albernaz effectively disposes of one of appellant Engelhart’s double jeopardy arguments. With respect to both appellants’ double jeopardy challenges to convictions under both 18 U.S.C. § 371 and 21 U.S.C. § 963, we find that the elements of proof under the two statutes diverge sufficiently that a single conspiracy can support separate violations of the two statutes. 18 U.S.C. § 371 requires proof of an overt act in furtherance of the conspiracy. See, e.g., United States v. Sterkel, 430 F.2d 1262, 1263 (10th Cir. 1970). The Fifth Circuit has ruled that no overt act need to be proven in order to obtain a conspiracy conviction under 21 U.S.C. § 963. See, e.g., United States v. Pool, 660 F.2d 547, 560 (5th Cir. 1981). Inasmuch as the elements required to prove conspiracies under the two statutes diverge, they constitute separate offenses under the Blockburger test, and conviction of both offenses does not violate the double jeopardy clause. Finally, with respect to appellant Engelhart’s conviction of conspiracies under both 21 U.S.C. § 846 and 18 U.S.C. § 371, it is to be noted that the elements of proof once again diverge. Conviction on the § 371 count requires proof of an element, intent to travel in interstate commerce to promote an unlawful activity. It does not require the sustaining of a conviction for conspiracy unlawfully to distribute controlled substances under 21 U.S.C. § 846. Consequently, Engelhart’s conviction on both of these conspiracy counts does not bring the double jeopardy clause into action. Cf. United States v. Stevens, 612 F.2d 1226, 1231 (10th Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). In summary, we find no merit to any of the appellants’ double jeopardy arguments.
The next argument is that appellants were denied the effective assistance of counsel guaranteed to them by the Sixth Amendment during plea bargaining and at the time of sentencing. They maintain that their earlier counsel did not advise them of proffered plea bargains more favorable than the ones that they ultimately accepted. They also contend that their counsel advised them to plead guilty to charges that violated the double jeopardy clause. This suggests that we must measure these contentions against our rule that “[t]he Sixth Amendment demands that defense counsel exercise the skill, judgment, and diligence of a reasonably competent defense attorney.” Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.) (en banc), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). When we consider appellants’ arguments in light of this rule, we are compelled to reject them. We hold that appellants’ Sixth Amendment right to effective representation was not infringed.
The appellants claim that their attorneys were approached by the United States Attorney and offered more advantageous plea bargains than those which they accepted. However, there is no evidence in the record to support such contentions. In fact, the affidavit of Donn F. Baker, the Assistant United States Attorney who handled this case, dispels that contention. No such offers were ever made to the appellants’ attorneys. If the U.S. Attorney had offered a more advantageous plea bargain that was not conveyed to the appellants, and no such offer is at all likely, it is doubtful whether this would justify our reversing these defendants’ convictions. See United States v. Geittmann, 733 F.2d 1419, 1422 (10th Cir.1984).
Finally, the appellants also claim that their attorneys’ failure to develop double jeopardy arguments and advice that they plead guilty to counts that they now allege violated the double jeopardy clause shows the ineffectiveness of their earlier counsel. We find this argument to be without merit. As noted above, there is no legal support for the appellants’ double jeopardy arguments. We must conclude, therefore, that trial counsel’s failure to pursue those double jeopardy arguments at an earlier stage of this case does not add up to ineffective assistance of counsel.
We turn now to appellant Engelhart’s final argument. His contention is that the district court failed to ascertain that there was a sufficient factual basis for his guilty plea. This, however, is without merit. The transcript shows that Engelhart’s Rule 11 hearing was sufficient. The district court was correct in concluding there was a factual basis for Engelhart’s guilty plea. Therefore, we reject Engelhart’s argument.
Our conclusion is that the judgments below should be and they are affirmed.