                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2002

USA v. Shreffler
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1062




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Recommended Citation
"USA v. Shreffler" (2002). 2002 Decisions. Paper 612.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/612


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                                                  NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                          No. 02-1062
                          ___________

                   UNITED STATES OF AMERICA

                               v.

                      SCOTT SHREFFLER,

                                         Appellant

                          ___________

        On Appeal from the United States District Court
            for the Middle District of Pennsylvania

      District Court Judge: Honorable William W. Caldwell
                (Criminal Action No. 01-cr-215)
                          ___________

          Submitted Under Third Circuit L.A.R. 34.1(a)
                       September 10, 2002

                        Before: SLOVITER, RENDELL, and FUENTES, Circuit Judges

              (Opinion Filed: September 25, 2002)


                    ________________________

                      OPINION OF THE COURT
                    ________________________



FUENTES, Circuit Judge:
     Appellant Scott Shreffler ("Shreffler") challenges the District Court’s denial of his
motion to dismiss the indictment. For the following reasons, we find that the substantive
offenses with which Shreffler has been charged are not barred under the Double Jeopardy
Clause as a result of his prior prosecution for conspiracy to commit the same offenses.
Accordingly, we affirm the District Court’s denial of Shreffler’s motion to dismiss the
indictment.
     On September 28, 1999, a jury found Shreffler and a co-defendant guilty of
conspiracy to distribute in excess of 100 grams of heroin in violation of 18 U.S.C. 846.
This court reversed Shreffler’s conviction because the Government had failed to prove the
existence of an agreement necessary for conviction of conspiracy. United States v. Pressler,
256 F.3d 144 (3d Cir. 2001). On July 11, 2001, the Government filed an indictment
charging Shreffler with distribution of heroin, a crime not charged in the previous
indictment. On October 15, 2001, Shreffler moved to dismiss the indictment on double
jeopardy grounds. On December 12, 2001, the grand jury returned a more specific,
superseding indictment charging Shreffler with twenty counts of distribution of heroin. On
December 17, 2001, the District Court denied Shreffler’s motion to dismiss the indictment.
Shreffler’s timely interlocutory appeal followed.
     We have jurisdiction over the instant appeal pursuant to 28 U.S.C. 1291. Pretrial
orders denying motions to dismiss an indictment on double jeopardy grounds fall within the
’collateral order exception’ to the final-judgment rule, and are thus ’final decisions’ within
the meaning of 1291. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949);
Abney v. United States, 431 U.S. 651, 657 (1977); United States v. Esposito, 912 F.2d 60,
61-62 (3d Cir. 1990). The applicable standard of review is plenary. United States v.
Grayson, 795 F.2d 278, 281 (3d Cir. 1986).
     Shreffler argues that the indictment must be dismissed because the crimes charged:
1) are based upon the same evidence presented in the earlier conspiracy prosecution; 2) were
lesser included offenses of the charge previously prosecuted; and 3) were previously
adjudicated by the District Court in computing his base offense level in the prior prosecution
under a preponderance of the evidence standard. As a result, Shreffler argues, the charges
are barred by the Double Jeopardy Clause.
     The Double Jeopardy Clause forbids the duplicative prosecution of a defendant for
the "same offence." U.S. Const., Amdt. 5; see also Blockburger v. United States, 284 U.S.
299 (1932). The Court has explained that "the introduction of relevant evidence of
particular misconduct in a case is not the same thing as prosecution for that conduct,"
leading to the conclusion that "a mere overlap in proof between two prosecutions does not
establish a double jeopardy violation." United States v. Felix, 503 U.S. 378, 387 (1992)
(finding no double jeopardy violation where two of nine overt acts supporting conspiracy
charge were previously prosecuted as substantive crimes); see also Esposito, 912 F.2d at 64-
65 (finding no double jeopardy problem where the evidence to be introduced in narcotics
prosecution was, in part, the same evidence introduced during earlier RICO conspiracy).
Here, the superseding indictment charges Shreffler with the illegal conduct of distributing
heroin. The prior indictment charged him with the illegal conduct of conspiring to distribute
heroin. The fact that the same evidence will be used to prove that Shreffler actually
distributed heroin as was used to prove that he conspired to distribute heroin does not bar
the second prosecution under the Double Jeopardy Clause.
     It is true that the Double Jeopardy Clause bars a subsequent prosecution if one of the
two offenses is a lesser included offense of the other, Grady v. Corbin, 495 U.S. 508, 519
(1990), but the conspiracy to commit an offense and the offense itself are separate offenses
for double jeopardy purposes. Felix, 503 U.S. at 390-91. In fact, the Court has said that
"the same overt acts charged in a conspiracy count may also be charged and proved as
substantive offenses, for the agreement to do the act is distinct from the act itself." Unite
States v. Bayer, 331 U.S. 532, 542 (1947). The Government charged Shreffler with
engaging in a conspiracy to distribute heroin in the first prosecution. In the instant
prosecution, however, the Government is charging Shreffler with the actual distribution of
heroin. Underscording this point, this court noted in reversing the conspiracy conviction
that the evidence at trial was more than sufficient to convict Shreffler of the crime of
distribution of heroin even though the proof of an agreement was insufficient. Pressler, 256
F.3d at 156-57. It is clear that the distribution charges are not lesser included offenses of
the conspiracy charge, but rather, entirely distinct crimes.
     Shreffler’s final argument on appeal is that the District Court’s finding at sentencing,
by a preponderance of the evidence, that Shreffler had distributed the heroin that caused the
overdose injuries of Joseph Stoner and Scott Knouse, amounted to a finding that there was
not proof of the same beyond a reasonable doubt. The District Court’s determination at
sentencing that the preponderance of the evidence burden was met is not equivalent to a
finding that the reasonable doubt burden could not be met at trial. Shreffler’s argument is
purely conjectural, and, therefore, meritless.
     We agree with the District Court’s conclusion that the indictment is not barred by the
Double Jeopardy Clause. Accordingly, for the reasons substantially set forth in the written
opinion of the District Court, we will AFFIRM.




                                         /s/ Julio M. Fuentes
                                        Circuit Judg
