                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 08a0274p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                        X
                                   Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                         -
                                                         -
                                                         -
                                                              No. 05-3140
            v.
                                                         ,
                                                          >
 JAMES L. WHEELER,                                       -
                                Defendant-Appellant. -
                                                        N
                          Appeal from the United States District Court
                          for the Northern District of Ohio at Toledo.
                         No. 03-00739—David A. Katz, District Judge.
                                    Argued: April 24, 2008
                              Decided and Filed: August 1, 2008
                 Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
                                      _________________
                                          COUNSEL
ARGUED: Gary W. Crim, LAW OFFICE, Dayton, Ohio, for Appellant. Joseph R. Wilson,
ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee. ON BRIEF: Gary W.
Crim, LAW OFFICE, Dayton, Ohio, for Appellant. Joseph R. Wilson, Ava M. Rotell Dustin,
ASSISTANT UNITED STATES ATTORNEYS, Toledo, Ohio, for Appellee.
                                      _________________
                                          OPINION
                                      _________________
       ROGERS, Circuit Judge. This case is part of a consolidated appeal involving thirteen
defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international
motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau
of Investigation and state law enforcement agencies began an investigation into the Green region
of the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville,
Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation,
a grand jury in the Northern District of Ohio returned a 40-count indictment in 2003 charging the
defendants with various federal offenses, including Racketeer Influenced and Corrupt Organizations
Act (“RICO”), drug trafficking, and firearms offenses. The defendants were tried together before
an anonymous jury.
       Defendant James “Frank” Wheeler was formerly the head of the Indianapolis chapter and
Green region of the OMC. Wheeler later served as president of the entire international OMC
organization. Following trial, Wheeler was convicted on one count of substantive RICO, in

                                                1
No. 05-3140                          United States v. Wheeler                                                    Page 2


violation of 18 U.S.C. § 1962(c), one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d),
and one count of conspiracy to possess with intent to distribute narcotics, in violation of 21 U.S.C.
§ 846. On January 5, 2005, Wheeler was sentenced to life imprisonment on the substantive RICO
and drug conspiracy counts, to run concurrently, and to 20 years’ imprisonment on the RICO
conspiracy count, to run consecutively.
       Wheeler raises two issues on appeal: (1) that his indictment for the substantive RICO, RICO
conspiracy, and drug conspiracy offenses violated the Double Jeopardy Clause because of    an earlier
prosecution; and (2) that his sentence was improperly imposed for various reasons.1 Because
Wheeler’s indictment for the substantive RICO and RICO conspiracy offenses violated the Double
Jeopardy Clause, we reverse those convictions and sentences. We affirm, however, Wheeler’s
conviction and sentence for the drug conspiracy.
                                                           I.
        Prior to the instant prosecution in the Northern District of Ohio, Wheeler was indicted in the
Middle District of Florida for offenses that stemmed from his association with the OMC. The
Florida indictment consisted of six counts, four of which charged one substantive RICO count under
18 U.S.C. § 1962(c), one RICO conspiracy count under 18 U.S.C. § 1962(d), and two counts of drug
conspiracy under 21 U.S.C. § 846. Though Wheeler was convicted of the substantive RICO and
RICO conspiracy offenses, he was acquitted on one drug conspiracy count (Count 3) and the second
drug conspiracy count was dismissed (Count 4).
        Subsequent to his indictment in Florida, a grand jury returned the instant indictment against
Wheeler in the Northern District of Ohio, charging Wheeler with one count each of substantive
RICO (Count 1), RICO conspiracy (Count 2), drug conspiracy (Count 3), and firearms conspiracy
under 18 U.S.C. § 924(o) (Count 4). Based on the Florida prosecution, Wheeler filed a motion in
the district court contending that his indictment in Ohio for the substantive RICO, RICO conspiracy,
and drug conspiracy offenses placed him in jeopardy twice for the same crimes. After hearing oral
argument, the district court denied Wheeler’s motion, concluding that each indictment charged
Wheeler with separate crimes. Following trial, Wheeler was found guilty of the substantive RICO,
RICO conspiracy, and drug conspiracy offenses, but acquitted of the firearms conspiracy. On
appeal, Wheeler again claims that double jeopardy precluded his prosecution in Ohio for both RICO
offenses and the drug conspiracy offense. We review these claims de novo. United States v.
Dakota, 197 F.3d 821, 826 (6th Cir. 1999).
                                                          II.
        Because Wheeler was placed in jeopardy twice for the same substantive RICO and RICO
conspiracy crimes, we vacate those convictions. See U.S. Const. Amend. V (“[N]or shall any person
be subject for the same offence to be twice put in jeopardy of life or limb”). In United States v.
Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983), this court set out a “totality of the circumstances” test
to address a double jeopardy claim in the context of successive RICO conspiracy prosecutions. The
test consisted of five 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 offenses 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.” Id. The Sinito court explained that “[w]here several of these factors differ


         1
           In his brief, Wheeler also incorporated by reference two arguments raised in the brief of his co-defendant John
Walker. We find no merit to those arguments for the reasons given in United States v. Walker, No. 04-4478, __ WL __
(6th Cir. 2008).
No. 05-3140                     United States v. Wheeler                                          Page 3


between the conspiracies, the conclusion follows that the alleged illegal conspiracies are separate
and distinct offenses.” Id. at 1256-57.
        Although Sinito did not involve a successive prosecution for the substantive RICO offense,
a similar analysis should be applied, as other courts have recognized. In United States v. Russotti,
717 F.2d 27, 32-33 (2d Cir. 1983), the Second Circuit faced the question of whether a successive
prosecution for both the substantive RICO offense and the RICO conspiracy offense violated the
Double Jeopardy Clause. The court determined that double jeopardy is implicated in successive
RICO prosecutions only if both the enterprise and the pattern of racketeering activity alleged in each
indictment are the same. The court explained that
        it is neither the enterprise standing alone nor the pattern of racketeering activity by
        itself which RICO criminalizes. Rather, the combination of these two elements is the
        object of punishment under RICO. Therefore, in order for the present indictment to
        give rise to a valid claim of double jeopardy, both the enterprise and the pattern of
        activity alleged in the [previous] indictment must be the same as those alleged in the
        [instant] indictment.
Id. at 33 (citations omitted); see also United States v. DeCologero, 364 F.3d 12, 18 (1st Cir. 2004)
(“Every circuit to have examined the issue has agreed that double jeopardy only bars successive
RICO charges involving both the same enterprise and the same pattern of racketeering activity.”).
In evaluating whether the pattern of racketeering activity alleged in each indictment was the same,
the Second Circuit adopted a five factor “totality of the circumstances” test similar to the test set out
in Sinito: “(1) the time of the various activities charged as parts of separate patterns; (2) the identity
of the persons involved in the activities under each charge; (3) the statutory offenses charged as
racketeering activities in each charge; (4) the nature and scope of the activity the government seeks
to punish under each charge; and (5) the places where the corrupt activity took place under each
charge.” Russotti, 717 F.2d at 33 (quoting United States v. Dean, 647 F.2d 779, 788 (8th Cir.
1981)). The court noted that the fourth factor is “most significant.” 717 F.2d at 34.
        In this case, both Wheeler and the government agree that the same enterprise was implicated
in the Florida and Ohio RICO prosecutions. Indeed, both indictments alleged that Wheeler and
others engaged in a pattern of racketeering activity through the OMC enterprise. Thus, the only
question this court must address is whether each indictment charged the same pattern of racketeering
activity. And because the Sinito test essentially mirrors the five-factor test expressed in Russotti,
Wheeler’s double jeopardy arguments for both the substantive RICO offense and the RICO
conspiracy offense can be analyzed at the same time. For the reasons stated below, the Sinito and
Russotti factors indicate that Wheeler was indicted for the same “pattern of racketeering activity”
in the Florida and Ohio prosecutions. Accordingly, Wheeler’s substantive RICO and RICO
conspiracy charges unconstitutionally placed him in double jeopardy.
        With respect to the first factor, the time periods covered by the two indictments overlap
significantly. The Florida indictment alleged conduct occurring between 1990 and 2004, and the
Ohio indictment alleged conduct occurring between 1988 and 2003. It is true, as the government
argues, that much of the conduct alleged of Wheeler in the Florida indictment occurred between
1994 and 1995. Conversely, the Ohio indictment charged Wheeler with racketeering acts that
generally occurred between 2000 and 2002. Even so, Racketeering Act 16 in the Florida indictment
charged Wheeler with conduct that occurred in 2002, the year that Wheeler also allegedly committed
Racketeering Act 15 of the Ohio indictment. And Racketeering Act 1(A) of the Ohio indictment
charged a drug conspiracy—of which Wheeler was alleged to be part—that began in 1990 and
carried through to the time of the indictment, April 2003. This time period obviously includes 1994
and 1995, the years that much of the conduct alleged of Wheeler in the Florida indictment took
place. Finally, for purposes of the RICO conspiracy convictions, many of the predicate acts
No. 05-3140                         United States v. Wheeler                                                  Page 4


allegedly perpetrated by Wheeler’s co-conspirators in the Ohio indictment occurred during the same
time period as the predicates alleged in the Florida indictment. For example, Racketeering Acts 9
and 10 of the Florida indictment and Racketeering Acts 27 and 28 of the Ohio indictment all involve
the same incident, which occurred in October 1994.
        Whether the second factor—the identity of the persons involved in the activities charged
under each indictment—weighs in favor of a double jeopardy violation is less clear. The
government argues that the Florida indictment charges only Wheeler and does not charge the other
persons indicted as Wheeler’s co-conspirators in the Ohio case. But this argument fails to address
the issue completely. Although the government is correct that only Wheeler was charged in the
Florida indictment, the relevant question under the second factor is not whether the same persons
were actually charged in each indictment, but rather whether the same persons were involved in the
activities charged under each indictment, unindicted persons included. See, e.g., DeCologero, 364
F.3d at 19 (noting that at least one defendant from the current case may have been an unindicted co-
conspirator in the earlier case). Consequently, the inquiry here extends beyond mere consideration
of those actually indicted in each prosecution.
        Although many of the racketeering acts charged in the Florida indictment alleged that
Wheeler conspired with other individuals, it is not clear from the face of that indictment who besides
Wheeler participated in the RICO activities alleged of Wheeler in Florida. A bill of particulars filed
in the Florida case is somewhat helpful in this regard. In that bill, the government listed Wheeler’s
co-conspirators for purposes of Count 4 of the Florida indictment. Count 4 charged Wheeler with
conspiring to traffic in cocaine and methamphetamine. Among the co-conspirators listed in the bill
of particulars were twenty-one of the thirty-eight co-defendants charged in the instant Ohio case.
While these co-conspirators were listed in connection with an offense separate from the substantive
RICO and RICO conspiracy counts in the Florida indictment, Racketeering Act 17 of that same
indictment—a predicate act alleged in connection with the RICO counts—alleged a drug conspiracy2
similar to, and occurring during the same time period, as the drug conspiracy alleged in Count 4.
From this, an inference can be drawn that at least some of the persons involved in the Count 4
activity were also involved in Wheeler’s RICO activity for purposes of the Florida indictment. And
because twenty-one of Wheeler’s Ohio co-coconspirators were implicated as co-conspirators for
purposes of Count 4 of the Florida indictment, a further inference can be drawn that the Ohio RICO
prosecution involves some of the same persons who were also involved in the RICO conduct
charged against Wheeler in Florida.


        2
            Racketeering Act 17 alleged:
        From in or about January 1990 through in or about November 1997, in the Middle District of Florida,
        the Eastern District of Michigan, the Southern District of Indiana, and elsewhere, the defendant,
        JAMES LEE WHEELER a/k/a Frank Wheeler, did knowingly, intentionally, and willfully combine,
        conspire, confederate and agree with persons both known and unknown to the grand jury, to possess
        with intent to distribute and distribute 5 kilograms or more of a mixture or substance containing a
        detectable amount of cocaine and a quantity of methamphetamine, schedule II controlled substances,
        contrary to the provisions of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A) and
        (C), in violation of Title 21, United States Code, Section 846.
Count 4 alleged:
        From in or about 1990 through in or about November 1997, in the Middle District of Florida and
        elsewhere, the defendant, JAMES LEE WHEELER a/k/a Frank Wheeler, did knowingly and
        intentionally combine, conspire, confederate and agree with other persons who are both known and
        unknown to the grand jury, to distribute 5 kilograms or more of a mixture or substance containing a
        detectable amount of cocaine and a quantity of methamphetamine, Schedule II Controlled Substances,
        contrary to the provisions of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A) and
        (C). All in violation of Title 21, United States Code, Section 846.
No. 05-3140                    United States v. Wheeler                                        Page 5


        Strengthening this inference, to some extent, are Racketeering Acts 9 and 10 of the Florida
indictment and Racketeering Acts 27 and 28 of the Ohio indictment. These racketeering acts
involve the same event, a bombing and attempted bombing of the clubhouse of the Sons of Silence,
a rival motorcycle club. According to both indictments, this conduct occurred in October 1994.
Although Wheeler was charged with the Sons of Silence bombing in the Florida indictment, he was
not charged with that incident in the Ohio indictment. Instead, OMC member David Mays was
charged with the Sons of Silence incident in the Ohio indictment. The fact that both Wheeler and
Mays were connected to this incident across indictments establishes that at least one Ohio co-
conspirator was in fact a common participant in Wheeler’s Florida and Ohio activities. The record
therefore establishes that there is some commonality with respect to the persons involved in the
RICO activities charged in each indictment.
        Under the third factor, the record indicates a significant overlap between the statutory
offenses charged as racketeering acts for both substantive RICO and RICO conspiracy in each
indictment. In the Florida indictment, Wheeler was charged with racketeering acts involving the
following statutory offenses: extortion and conspiracy to commit extortion in violation of Fla. St.
§§ 836.05, 777.011, 777.04; conspiracy to commit murder in violation of Ind. Code §§ 35-41-5-2,
35-42-1-1; distribution of cocaine in violation of 21 U.S.C. § 841(a)(1); possession of a stolen motor
vehicle in violation of 18 U.S.C. § 2313; conspiracy to commit murder and aiding and abetting
murder in violation of N.Y. Penal Law §§ 125.25, 105.15, 20.00; arson and attempted arson in
violation of Ind. Code §§ 35-43-1-1, 35-41-5-1, 35-41-2-4; traveling in interstate commerce with
the intent to carry on an unlawful activity in violation of the Travel Act, 18 U.S.C. § 1952; arson and
conspiracy to commit arson in violation of Fla. St. §§ 777.04, 806.01 and 720 Ill. Comp. St. 5/20-
1(a), 5/5-1; extortion in violation of Ind. Code §§ 35-45-2-1, 35-41-2-4; obstruction of justice in
violation of 18 U.S.C. § 1503; and narcotics conspiracy in violation of 21 U.S.C. § 846. In the Ohio
indictment, Wheeler was charged with racketeering acts involving the following statutory offenses:
drug conspiracy in violation of 21 U.S.C. § 846 (Racketeering Act 1(A)); traveling in interstate
commerce with the intent to carry on an unlawful activity in violation of the Travel Act, 18 U.S.C.
§ 1952 (Racketeering Acts 10, 11, 12); and intimidation of a witness/obstruction of justice in
violation of 18 U.S.C. § 1512 (Racketeering Acts 13, 14, 15).
        With respect to the substantive RICO charges leveled against Wheeler, a comparison of the
statutory offenses charged in each indictment indicates that four of the seven racketeering acts that
Wheeler was charged with in the Ohio indictment involve statutory offenses that were also charged
as racketeering acts in the Florida indictment. Those statutory offenses are 21 U.S.C. § 846 and
18 U.S.C. § 1952. This contrasts with the situation in DeCologero, 364 F.3d at 19, in which the
First Circuit found no double jeopardy violation, noting that “all of the incidents constituting
substantive non-RICO crimes and all of the RAs in the present indictment are different from those
charged in the [previous] case.” It also contrasts with Russotti, 717 F.2d at 33-34, where the Second
Circuit found no double jeopardy violation, noting that “the racketeering activities charged in each
indictment have only one point of conjunction.” The remaining three racketeering acts alleged of
Wheeler in the Ohio indictment involve Wheeler’s participation in conduct that obstructed
justice—namely, the use of a “voice stress analyzer” to intimidate persons from communicating with
law enforcement. Notably, Wheeler was also charged with obstructive conduct in the Florida
indictment, though under a different statute (18 U.S.C. § 1503 rather than 18 U.S.C. § 1512), and
for conduct related to the harboring and concealing of a fugitive.
        As to the RICO conspiracy charges leveled against Wheeler, a comparison of the indictments
indicates that the RICO conspiracies alleged in each indictment involve similar predicate offenses.
In the Ohio indictment, Wheeler’s RICO co-conspirators—like Wheeler in the Florida
indictment—were charged with the following statutory predicate offenses: drug conspiracy in
violation of 21 U.S.C. § 846 (Racketeering Act 1(A)); distribution of drugs in violation of 21 U.S.C.
§ 841(a)(1) (Racketeering Acts 2, 3, 4, 5, 6, 7); traveling in interstate commerce with the intent to
No. 05-3140                           United States v. Wheeler                                                      Page 6


carry on an unlawful activity in violation of the Travel Act, 18 U.S.C. § 1952 (Racketeering Acts
10, 12); possession of stolen/fraudulently obtained motor vehicles in violation of 18 U.S.C. §§ 2313,
2314 (Racketeering Acts 17, 18); attempted murder and murder in violation of Ind. St. §§ 35-42-1-1,
35-41-5-1 (Racketeering Acts 23, 24, 26); and arson and attempted arson in violation of Ind. Code
§§ 35-43-1-1, 35-41-5-1 (Racketeering Acts 27, 28). Thus, of the twenty-seven racketeering acts
charged against Wheeler’s co-conspirators in the Ohio indictment, sixteen involved statutory
offenses also charged in the Florida indictment. And notably, the remaining eleven predicates
allegedly perpetrated by Wheeler’s co-conspirators in the Ohio indictment involved conduct related
to extortion, wire fraud, obstruction of justice, and murder. With the exception of wire fraud, similar
conduct was charged in the Florida indictment, although pursuant to different statutory provisions.
        The government acknowledges the substantial overlap in the indictments with respect to the
statutory offenses charged as racketeering acts against Wheeler and his co-conspirators. It argues,
however, that the overlap is not significant because, generally, the factual bases underlying those
charged offenses are dissimilar. The government’s argument is not persuasive. The relevant
question here is whether Wheeler was charged with the same pattern of racketeering activity in each
indictment. A showing that different predicate crimes are charged as predicates from one indictment
to the next is significant because it tends to prove a different pattern of activity and, accordingly, that
the defendant is being punished for different RICO conduct. In contrast, a showing that the same
predicate crimes were committed under different factual circumstances only tends to prove that the
pattern of activity was more widespread than3 the initial indictment originally conveyed. It does not
tend to prove a separate pattern of conduct. This contrasts with the situation in DeCologero, 364
F.3d at 18-19, where the first indictment charged racketeering acts consistent with a pattern of
murder, while the second centered on a pattern of robbery and drug trafficking. And in Sinito, 723
F.2d at 1258, the first prosecution was based on loansharking while the second prosecution was
based on murder, drug trafficking, and illegal gambling. Thus, notwithstanding the different factual
bases underlying the predicates charged in each indictment, substantial overlap exists regarding the
statutory offenses charged with respect to those predicates.
        Fourth, and most significantly, both indictments sought to punish activity of the same nature
and scope. The government argues that the Florida indictment is mainly directed at punishing
Wheeler’s murderous and extortionate activities against rival motorcycle gangs in Florida, while the
Ohio indictment is directed against Wheeler’s activities in the Green region of the OMC. A simple
examination of the indictments, however, reveals that both are directed at activities of the same
general nature and scope. First, belying the government’s main contention is the fact that the Green
region of the OMC was explicitly mentioned in the Florida indictment. This indicates that the
government thought that Wheeler’s Green region activities were at least somewhat relevant to the
Florida prosecution. In any event, an examination of the places where the alleged activities charged
in each indictment occurred is more pertinent to the fifth double jeopardy factor, as discussed below.
        There is also striking similarity between the overall schemes alleged in the Florida and Ohio
indictments. As discussed in connection with the third double jeopardy factor, the indictments
charge many of the same statutory offenses as predicates. Moreover, both indictments involve
schemes to further the OMC enterprise through violence, narcotics trafficking, extortion, obstruction
of justice, and dealing in stolen vehicles. A cursory reading of the “Means and Methods” portions
of each indictment reflects this similarity. Of the eighteen “means and methods” listed in the Ohio
indictment, seventeen have a corresponding “means and method” in the Florida indictment, and the



         3
            Of course, if the question here were whether Wheeler was placed in jeopardy twice for the substantive crimes
that are listed as predicates in the indictment, the factual bases underlying the charges for those crimes would be relevant.
The RICO offense, however, is an offense separate from the offenses charged as predicates.
No. 05-3140                    United States v. Wheeler                                        Page 7


language used across the indictments in describing the “means and methods” of the enterprise is very
similar. This congruity indicates that both indictments are directed at the same pattern of conduct.
         Indeed, the congruity between the RICO charges in each indictment becomes even more
apparent when Wheeler’s case is compared to the Russotti, DeCologero, and Sinito cases. In those
cases, it was clear that there were two separate overall criminal schemes alleged in each indictment.
In Russotti, the court found that there was “plainly no convergence” of the two indictments with
respect to the fourth double jeopardy factor because one indictment concerned a scheme to defraud
insurance companies by deliberately setting fires to buildings, while the other indictment was
directed at a scheme to extort money from gambling clubs and to protect the affairs of the enterprise
through threats, murder, arson, and obstruction of justice. Russotti, 717 F.2d at 34. In DeCologero,
the court noted that one indictment charged racketeering acts consistent with a pattern of murder,
while the other indictment centered on a pattern of robbery and drug trafficking. DeCologero, 364
F.3d at 18-19. In Sinito, the court explained that the second indictment indicated a “clear and
permissible intent to punish activity divorced from loansharking, which was the sole scope of the
first indictment.” Sinito, 723 F.2d at 1258. In Wheeler’s case, by contrast, it is difficult to discern
the difference between the two schemes alleged in the indictments. Both indictments are directed
at acts of murder, extortion, drug trafficking, obstruction of justice, and possession of stolen motor
vehicles. And both indictments allege that these actions were taken to accomplish the purposes of
the same enterprise. The nature of the conduct alleged in each indictment is therefore very similar,
and the scope of the conduct charged, while perhaps more limited in the Florida indictment, is not
significantly different. In sum, the fourth double jeopardy factor strongly indicates that Wheeler was
prosecuted for the same pattern of racketeering activity in each indictment.
       Lastly, the fifth factor weighs slightly against a double jeopardy violation. The Florida
indictment involves conduct that occurred in Florida, Indiana, Michigan, New York, and Illinois.
The Ohio indictment alleges conduct that occurred mainly in Ohio and Indiana. Even so, there is
some overlap between the indictments in this regard as well. For example, both indictments involve
conduct in Indiana and, as discussed earlier, both indictments charge conduct related to the same
incident, a bombing and attempted bombing of the Sons of Silence clubhouse in Indianapolis.
        Viewed in its totality, the analysis above indicates that Wheeler was indicted in Ohio for the
same pattern of racketeering activity that he was previously indicted for in Florida. Most
significantly, each prosecution was directed at conduct of a strikingly similar nature and scope.
There is very little difference between the criminal schemes alleged in each indictment. Where the
indictments also involve an overlap in time period, participants, and statutory offenses charged, the
conclusion is inescapable that Wheeler’s prosecution in Ohio sought to punish the same pattern of
racketeering activity that he was previously prosecuted for in Florida. Because the same enterprise
was implicated in each indictment, Wheeler’s prosecution in Ohio for the substantive RICO and
RICO conspiracy offenses violated the Double Jeopardy Clause. Wheeler’s convictions regarding
those two offenses must therefore be reversed.
                                                 III.
        Wheeler’s successive indictment for drug conspiracy, however, does not constitute a double
jeopardy violation. As noted above, the government charged Wheeler with drug conspiracy, in
violation of 21 U.S.C. § 846, in both the Florida and Ohio indictments (in Count 3 of the Ohio
indictment and in Counts 3 and 4 of the Florida indictment). Wheeler was acquitted of the drug
conspiracy charge in Count 3 of the Florida indictment, and Count 4 of that indictment was
dismissed. In Ohio, Wheeler was convicted of the drug conspiracy charge.
       In determining whether successive indictments charge the same drug conspiracy for purposes
of double jeopardy, we again apply Sinito’s five-factor test. Application of the Sinito factors
No. 05-3140                          United States v. Wheeler                                                   Page 8


indicates that Wheeler’s prosecution in Ohio for drug conspiracy did not run afoul of the Double
Jeopardy Clause. Although the conspiracies were charged under the same statute (21 U.S.C. § 846),
and the statutory offense underlying each conspiracy charge was the same (21 U.S.C. § 841(a)), the
factors nonetheless indicate that Wheeler was charged in Ohio for an agreement separate from the
agreements charged in the Florida indictment. As the Eighth Circuit held in United States v. Ledon,
49 F.3d 457, 460 (8th Cir. 1995), even if “the statutory offenses charged are the same, . . . in context
with the other factors, this is a minor point, since one can certainly enter two conspiracies to commit
the same type of crime.”
        The drug conspiracy charged in Count 3 of the Florida indictment is separate from the drug
conspiracy charged in the Ohio indictment. First, the time covered by both conspiracies differs
significantly. The Florida indictment charged a conspiracy beginning in 2002, while the Ohio
indictment charged conduct beginning in 1990 and carrying through the time of the indictment, April
2003. The Ohio indictment thus charged Wheeler with participation in a drug conspiracy that
endured for a much longer period of time than the conspiracy charged in Count 3 of the Florida
indictment. Second, the charged conspiracies involved different participants. For purposes of Count
3 of the Florida indictment, the government named as Wheeler’s co-conspirators Dennis Pelligrini,
Greg Driver, and Roy Eugene Edwards. In the Ohio indictment, the government alleged thirty-four
co-conspirators in the drug conspiracy count, and only Driver was alleged to have participated in
both conspiracies. With respect to the fourth and most significant factor, the scope and nature of
the conduct charged in each count is dissimilar. Count 3 of the Florida indictment charges a limited
drug conspiracy between Wheeler and two others that involved only cocaine. The Ohio conspiracy
charges a wide-ranging conspiracy between Wheeler and thirty-four other persons, with almost 300
overt acts charged. Moreover, in addition to cocaine, the Ohio conspiracy involved the distribution
of methamphetamine, LSD, marijuana, ecstasy, and valium. Regarding the fifth factor, each
indictment charges conduct that occurred in different places. Count 3 of the Florida indictment
involved conduct that occurred mainly in Florida and Michigan, while the Ohio indictment alleged
conduct that generally occurred in Ohio, Kentucky, and Indiana (though a few of the overt acts listed
allegedly occurred in Florida and Michigan as well). In combination, these factors indicate that
Count 3 of the Florida indictment charged a conspiracy separate from the conspiracy charged in the
Ohio indictment.
         Though a closer call, we conclude that the conspiracy charged in Count 4 of the Florida
indictment was also a conspiracy separate from the conspiracy charged in the Ohio indictment.4
First, although the time periods charged for each conspiracy overlap, Count 4 of the Florida
indictment charged a conspiracy of a significantly shorter duration. That count alleged a conspiracy
beginning in 1990 and ending in or about November 1997. The Ohio indictment, by contrast,
alleged a conspiracy beginning in 1990 and carrying through to the time of the indictment, April
2003. This aspect compares with the Eighth Circuit’s holding in Ledon, 49 F.3d at 460, that two
separate conspiracies existed when the second conspiracy continued three and a half years after the
end of the first conspiracy. In fact, for purposes of the Ohio indictment, Wheeler was implicated
in overt acts occurring as late as December 2001, four years after the conspiracy in Florida allegedly
ended. Under the second factor, there is admittedly some overlap among the co-conspirators alleged
in Count 4 of the Florida indictment and the co-conspirators alleged in the Ohio indictment. Of the
thirty-four co-conspirators alleged in the Ohio indictment, twenty were named as co-conspirators
in the bill of particulars for Count 4 of the Florida indictment. Even so, the Florida bill of particulars
named eighteen co-conspirators that were not named in the Ohio indictment, and fourteen of the co-


         4
           Count 4 of the Florida indictment was dismissed and thus not tried to verdict. Wheeler asserts, however, that
Count 4 was not dismissed until after jeopardy attached. The record is not clear on this point and the government offers
no response in its brief. We therefore assume for purposes of our analysis that jeopardy attached to Count 4 prior to its
dismissal.
No. 05-3140                    United States v. Wheeler                                       Page 9


conspirators listed in the Ohio indictment were not named in the Florida bill of particulars. Thus,
the conspiracies do not completely overlap with respect to participants.
        With respect to the fourth, and most significant factor, the scope of the activity that the
government sought to punish under each conspiracy charge is different. Count 4 of the Florida
indictment alleged that Wheeler and his co-conspirators combined and conspired to distribute 5
kilograms or more of a mixture containing a detectable amount of cocaine and a quantity of
methamphetamine. The Ohio indictment, on the other hand, sought to punish not only the
distribution of cocaine and methamphetamine, but also the distribution of LSD, marijuana, ecstacy,
and valium. Thus, the Ohio indictment charged a conspiracy of a wider scope and of a different
nature than the conspiracy charged in Count 4 of the Florida indictment. The Eighth Circuit, in
United States v. Aguilera, 179 F.3d 604, 608-09 (8th Cir. 1999), similarly concluded that two
separate conspiracies were charged when the first conspiracy involved one instance of marijuana
distribution and the second conspiracy involved multiple shipments of cocaine and
methamphetamine. Finally, each count charged conduct that generally occurred in different places.
Count 4 of the Florida indictment involved conduct that occurred in “the Middle District of Florida
and elsewhere,” while the Ohio indictment alleged conduct that for the most part occurred in Ohio,
Kentucky, and Indiana (though a few of the overt acts listed in the Ohio indictment allegedly took
place in Florida).
       In sum, the totality of the circumstances indicates that Wheeler’s indictment for the drug
conspiracy in Ohio did not violate the Double Jeopardy Clause. With respect to Count 3 of the
Florida indictment, four of the five Sinito factors indicate that the conspiracies charged were
separate. With respect to Count 4, though there is some overlap between the co-conspirators
allegedly involved in each conspiracy, the conduct that the government sought to punish in the Ohio
indictment was of a scope and nature different from the conduct charged in the Florida indictment.
Additionally, the conspiracy charged in the Ohio indictment was of a longer duration and generally
implicated different geographical locations. These factors indicate that the Ohio indictment charged
Wheeler with an agreement separate from those alleged in the Florida indictment. Wheeler’s drug
conspiracy conviction therefore did not violate the Double Jeopardy Clause.
                                                IV.
        Although Wheeler raised various sentencing arguments on appeal, we need not address those
arguments in light of our determinations above. Wheeler was sentenced to life imprisonment on the
substantive RICO and drug conspiracy convictions, to run concurrently, and to 20 years’
imprisonment on the RICO conspiracy conviction, to run consecutively. In accordance with our
determination that Wheeler’s RICO convictions must be reversed, we vacate his sentences for those
two convictions. We affirm, however, Wheeler’s life sentence for the drug conspiracy. That
sentence was properly imposed pursuant to 21 U.S.C. § 841(b)(1)(A), which provides for a
mandatory life sentence if the defendant has two or more prior convictions for a felony drug offense.
In turn, 21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the . . . conspiracy.” In his brief, Wheeler does
not contest the imposition of the mandatory life sentence under § 841(b)(1)(A), or that he had two
qualifying prior felony drug convictions. His sentencing arguments relate instead to Booker, the
Sixth Amendment, and reasonableness. Because the district court was bound to impose the
mandatory life sentence for the drug conspiracy conviction, any sentencing error would be harmless,
as Wheeler cannot receive a sentence lower than the statutory minimum. Cf. United States v. Joiner,
123 F. App’x 681, 683 (6th Cir. 2005).
No. 05-3140                 United States v. Wheeler                                  Page 10


                                             V.
       For the foregoing reasons, we reverse Wheeler’s convictions and sentences for the
substantive RICO and RICO conspiracy offenses and affirm Wheeler’s conviction and sentence for
the drug conspiracy.
