PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4154

JERRY ANTONIO WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-97-355-WMN)

Argued: May 7, 1998

Decided: August 27, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Murnaghan and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Fred Warren Bennett, BENNETT & NATHANS, L.L.P.,
Greenbelt, Maryland, for Appellant. Jamie M. Bennett, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Walter McCord, Baltimore, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Robert R. Harding, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Jerry Antonio Williams appeals an order of the district court deny-
ing his motion to dismiss the indictment against him on double jeop-
ardy grounds. Finding no error, we affirm.

I.

Williams was indicted with numerous others in criminal action
number 96-0458 ("the previous indictment") in the United States Dis-
trict Court for the District of Maryland on charges of conspiracy to
kidnap and murder Elway Williams in aid of racketeering, see 18
U.S.C.A. § 1959(a)(5) (West Supp. 1998); conspiracy to retaliate
against witnesses, see 18 U.S.C.A. #8E8E # 371, 1513(a) (West 1966 &
Supp. 1998); and conspiracy to distribute heroin and cocaine, see 21
U.S.C.A. § 846 (West Supp. 1998). These charges stemmed from
Williams' involvement in the "Jones organization," a narcotics distri-
bution ring in the Baltimore, Maryland area. One of the overt acts of
the alleged conspiracy to retaliate against witnesses was the murder
of John Jones. Williams was convicted of all charges and sentenced
to life imprisonment.

Approximately one week before trial commenced on the previous
indictment, the Government obtained an indictment in criminal action
number 97-0355 ("the current indictment") charging Williams with
conspiracy to commit murder in aid of racketeering, see 18 U.S.C.A.
§ 1959(a)(5); and with murder in aid of racketeering, see 18 U.S.C.A.
§ 1959(a)(1) (West Supp. 1998). Both counts related to the murder of
John Jones. Following his conviction on the charges in the previous
indictment, Williams moved to dismiss the current indictment on dou-
ble jeopardy grounds, maintaining that he had already been prose-
cuted for his participation in the Jones organization generally and for
the murder of John Jones in particular. After the Government dis-
missed the conspiracy count of the current indictment, the district
court denied the motion to dismiss. Williams now appeals.

II.

The Double Jeopardy Clause of the Fifth Amendment provides that
no one shall "be subject for the same offence to be twice put in jeop-

                    2
ardy of life or limb." U.S. Const. amend. V. Among the protections
provided by this Clause is the assurance that a criminal defendant will
not be subjected to "repeated prosecutions for the same offense."
Oregon v. Kennedy, 456 U.S. 667, 671 (1982). In determining
whether a successive prosecution is for the same offense as a previous
one, the court should apply the test established in Blockburger v.
United States, 284 U.S. 299, 304 (1932). See United States v. Dixon,
509 U.S. 688, 696 (1993). Under the Blockburger standard, succes-
sive prosecutions do not violate the Double Jeopardy Clause if "each
offense contains an element not contained in the other." Dixon, 509
U.S. at 696.

There is no dispute that Blockburger does not prohibit successive
prosecution on the charges related to the murder of Jones in the previ-
ous and current indictments--conspiracy to retaliate against Govern-
ment witnesses and murder in aid of racketeering. See United States
v. Felix, 503 U.S. 378, 387-92 (1992) (holding that the Double Jeop-
ardy Clause does not bar successive prosecutions for a conspiracy and
a substantive offense alleged as an overt act of the conspiracy). Wil-
liams contends, however, that the Blockburger analysis is only the
starting point in assessing a double jeopardy claim. According to Wil-
liams, principles of double jeopardy prohibit his prosecution irrespec-
tive of Blockburger because trial on the current indictment would
require presentation of the same evidence as that used in the previous
trial; the charge of murder in aid of racketeering in the current indict-
ment is a type of lesser-included offense of the charge of conspiracy
to commit murder in aid of racketeering of which Williams has
already been convicted; the Government failed to exercise due dili-
gence; and the previous and current indictments allege the same rack-
eteering enterprise. We address these arguments in turn.

A.

Williams first maintains that a successive prosecution otherwise
permissible under Blockburger is barred if it is based on facts and evi-
dence presented in a previous prosecution. As support for this propo-
sition, Williams relies on Rashad v. Burt, 108 F.3d 677 (6th Cir.
1997), cert. denied, 118 S. Ct. 850 (1998). In Rashad, the Sixth Cir-
cuit held that successive state prosecutions for possession with intent
to deliver narcotics violated the Double Jeopardy Clause regardless of

                     3
the Blockburger test, concluding that although the drugs on which the
respective prosecutions were based were discovered during separate
searches of the defendant's home and automobile, the possession of
them was part of a single transaction. The court reasoned:

          [T]he Blockburger test is insufficient where, as here, the
          concern is not multiple charges under separate statutes, but
          rather successive prosecutions for conduct that may consti-
          tute the same act or transaction. Indeed, multiple charges
          that satisfy the Blockburger standard, and thus may properly
          be joined in a single prosecution, may nevertheless violate
          double jeopardy if prosecuted successively. Jordan v. Com-
          monwealth of Virginia, 653 F.2d 870, 873 (4th Cir. 1980)....

           ... [In this situation, t]he proper standard ... is to ask
          whether the actual evidence needed to convict the defendant
          in the first trial is the same as the evidence needed to obtain
          the second conviction. If the same evidence will serve for
          both convictions--irrespective of whether the convictions
          are under statutes that satisfy Blockburger's "same ele-
          ments" test--the second prosecution is barred by double
          jeopardy.

Rashad, 108 F.3d at 679-80. Our decision in Jordan, on which the
Sixth Circuit relied, involved a similar scenario. There, the defendant
was prosecuted twice--first for obtaining a drug by means of a forged
prescription, then for possessing a controlled substance--based on a
single sequence of events in which the defendant obtained a drug with
a forged prescription and then was observed in a parking lot in pos-
session of the drug. See Jordan, 653 F.2d at 871-72. This court held
that the successive prosecutions violated the Double Jeopardy Clause
even though the two charged offenses satisfied Blockburger, reason-
ing that a defendant should "not be required to run essentially the
same gauntlet" twice. Id. at 873.

Based on these decisions, Williams asserts that because trial on the
current indictment would involve presentation of the same facts and
evidence as produced in the previous trial, prosecution is constitution-
ally impermissible. The Supreme Court, however, repeatedly has
rejected the notion that a successive prosecution is barred by the Dou-

                    4
ble Jeopardy Clause merely because it involves the same transaction
or the same evidence that was the subject of a previous prosecution.
See, e.g., Dixon, 509 U.S. at 705 (noting that while "[t]he 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," nothing in the
Constitution requires the Government to charge all offenses arising
from the same factual predicate in a single prosecution (citation omit-
ted)); Felix, 503 U.S. at 386 (stating that"our precedents hold that a
mere overlap in proof between two prosecutions does not establish a
double jeopardy violation"); Garrett v. United States, 471 U.S. 773,
790 (1985) (observing that the Court has "steadfastly refused to adopt
the `single transaction' view of the Double Jeopardy Clause").

To the extent that our prior decision in Jordan requires a different
result, its holding is clearly undermined by the more recent Supreme
Court decisions in Dixon, Felix, and Garrett. Accordingly, we are not
bound to follow it. See Hoffman v. Hunt, 126 F.3d 575, 584 (4th Cir.
1997) ("A decision of a panel of this court becomes the law of the cir-
cuit and is binding on other panels unless it is overruled by a subse-
quent en banc opinion of this court or a superseding contrary decision
of the Supreme Court." (internal quotation marks omitted)), cert.
denied, 66 U.S.L.W. 3755, 3757 (U.S. May 26, 1998) (No. 97-1322).
And, although Rashad was decided after Dixon, we find its reasoning
to be inconsistent with a wealth of Supreme Court authority and
therefore decline to follow it.

B.

Williams next contends that even if successive prosecutions based
upon the same evidence do not violate the Double Jeopardy Clause,
prosecution on the current indictment nevertheless is constitutionally
impermissible because the current charge of murdering John Jones in
aid of racketeering is "a species of a lesser-included offense" of the
previously charged crime of conspiracy to commit kidnaping and
murder in aid of racketeering. Brief of Appellant at 22 (internal quota-
tion marks omitted) (citing Illinois v. Vitale , 447 U.S. 410, 420-21
(1980)). Williams asserts that because evidence of Jones' murder was
introduced as part of the proof of the racketeering enterprise charged
in the previous indictment, the jury necessarily determined his guilt

                    5
with respect to the murder of Jones, therefore barring reprosecution
for that offense.1

In support of this argument, Williams relies on Harris v.
Oklahoma, 433 U.S. 682 (1977) (per curiam), in which the Supreme
Court held that the Double Jeopardy Clause precluded the State of
Oklahoma from prosecuting a defendant for robbery with a firearm
after convicting him of felony murder, when robbery with a firearm
was the underlying felony. See id. at 682-83. Williams reads Harris
as holding that the Government may not bring a successive prosecu-
tion when a previous conviction rested in part on conduct sought to
be charged in the later prosecution. In Dixon , however, the Court
squarely rejected this reading of Harris. See Dixon, 509 U.S. at 706-
07 (concluding that Harris focused only on the elements of the
offenses charged, not on the conduct underlying the charges). Harris
thus provides no support for Williams' argument.

C.

Williams also argues that the Double Jeopardy Clause bars prose-
cution on the current indictment because the Government failed to
exercise due diligence in charging him with the murder of John Jones.
Williams points out that the Government knew all of the facts neces-
sary to prosecute him on the current indictment prior to trial on the
previous indictment. Under these circumstances, Williams contends,
the Government should have been required to bring all charges
against him in a single proceeding. We disagree.

The Supreme Court has indicated that an exception to the double
jeopardy bar may exist when a state seeks to prosecute a defendant
following a prosecution for a lesser included offense if "the State
_________________________________________________________________
1 Williams' argument is strikingly similar to the position adopted by the
Supreme Court in Grady v. Corbin, 495 U.S. 508, 510 (1990) (holding
"that the Double Jeopardy Clause bars a subsequent prosecution if, to
establish an essential element of an offense charged in that prosecution,
the government will prove conduct that constitutes an offense for which
the defendant has already been prosecuted"). Grady, however, has been
overruled. See Dixon, 509 U.S. at 703-12 (describing Grady as "wrong
in principle" and "unstable in application").

                    6
[was] unable to proceed on the more serious charge at the outset
because the additional facts necessary to sustain that charge [had] not
occurred or [had] not been discovered despite the exercise of due dili-
gence." Brown v. Ohio, 432 U.S. 161, 169 n.7 (1977); see Jeffers v.
United States, 432 U.S. 137, 151-52 (1977) (opinion of Blackmun,
J.). Thereafter, a panel of the Eleventh Circuit stated in dicta that the
inverse of this rule also applies, so that a successive prosecution that
otherwise would be permissible under Blockburger is precluded if, in
the exercise of due diligence, "the government`knew or should have
known of the'" facts necessary to support the second prosecution dur-
ing the first trial. United States v. Reed, 980 F.2d 1568, 1580 (11th
Cir. 1993) (quoting United States v. Boldin, 772 F.2d 719, 732 (11th
Cir. 1985)). Williams urges us to adopt this rule and hence to con-
clude that the Government's lack of diligence forecloses prosecution
on the current indictment.

We decline to follow Reed. In the first place, nothing in Brown or
Jeffers suggests that the potential exception to the double jeopardy bar
identified in those cases would also operate to prohibit a successive
prosecution. Moreover, a subsequent panel of the Eleventh Circuit has
rejected the very argument accepted by the Reed panel:

           In the present case the District Court applied the due dili-
          gence concept to preclude a second prosecution which he
          had already decided was not barred by double jeopardy.
          This is precisely the reverse order of the correct application
          of the doctrine. The Double Jeopardy Clause does not pre-
          clude bringing in a second action any charge which might
          have been brought in the first action. Rather, it only pre-
          cludes those which must have been brought in the first or be
          forever lost. The due diligence doctrine provides an excep-
          tion in this latter situation. Thus, it follows, that if the gov-
          ernment need not have brought all of its charges in the first
          action, there was nothing for it to be diligent about.

United States v. Maza, 983 F.2d 1004, 1008 (11th Cir. 1993).2 We
find this reasoning persuasive.
_________________________________________________________________
2 Maza did not cite Reed. However, Maza did discuss UnitedStates v.
Boldin, 772 F.2d 719, 732 (11th Cir. 1985), on which Reed relied. Maza
rejected as dicta language in Boldin indicating that the Government's
lack of diligence may bar an otherwise permissible successive prosecu-
tion. See Maza, 983 F.2d at 1008 n.8.

                     7
D.

Finally, Williams maintains that prosecution on the current indict-
ment is prohibited by the Double Jeopardy Clause because both the
previous and current indictments charge his involvement in the same
racketeering enterprise. In support of this position, Williams points to
cases holding that a successive prosecution for violation of 18
U.S.C.A. § 1962 (West 1984 & Supp. 1998) is constitutionally per-
missible when either the racketeering enterprise or the pattern of rack-
eteering activity differs from that charged in a previous indictment.
See United States v. Pungitore, 910 F.2d 1084, 1113 (3d Cir. 1990);
United States v. Russotti, 717 F.2d 27, 33 (2d Cir. 1983). These cases
are inapposite, however, because--as Williams concedes--none of
the offenses with which Williams was charged in the previous and
current indictments requires proof of a pattern of racketeering activ-
ity. Accordingly, we decline to reverse the district court on this basis.

III.

For the reasons set forth above, we conclude that the district court
correctly determined that prosecution of Williams on the current
indictment is not barred by the Double Jeopardy Clause. Accordingly,
we affirm.

AFFIRMED

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