                                                        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that this opinion should not be published and is not precedent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.


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