                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                            December 23, 2011

                                  TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                 Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 11-3062
 v.                                          (D.C. No. 6:06-CR-10237-MLB-1)
                                                         (D. Kan.)
 JONEARL B. SMITH,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before HARTZ and HOLMES, Circuit Judges, and EAGAN, ** District Judge.


      On October 20, 2006, Jonearl B. Smith was charged by complaint with

possession with intent to distribute of five grams or more of a mixture or

substance containing a detectable amount of cocaine base (crack) on October 19,

2006. Smith was later indicted on the same charge. The grand jury returned a

superseding indictment charging Smith with possession with intent to distribute of

cocaine base (crack) on June 16 and October 19, 2006, and possession with intent

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
       Honorable Claire V. Eagan, Chief Judge, United States District Court for
the Northern District of Oklahoma, sitting by designation.
to distribute of cocaine on June 14, 2006. Pursuant to a plea agreement, Smith

entered a guilty plea to all counts charged in the superseding indictment. The

plea agreement did not prohibit the government from bringing additional criminal

charges against Smith for the conduct giving rise to the criminal charges to which

he pleaded guilty. Smith was sentenced to 150 months’ imprisonment on each

count, to run concurrently. The district court entered the judgment and

commitment on July 2, 2007.

      On July 27, 2007, a grand jury returned a sealed indictment in a separate

criminal case, charging Smith and other defendants with additional crimes. In a

fifth superseding indictment in the latter case, Smith was charged with violation

of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et

seq. (RICO) (count one), conspiracy to violate RICO (count two), conspiracy to

distribute 50 grams or more of cocaine base (count twenty-eight), and conspiracy

to distribute marijuana (count twenty-nine) [hereinafter “the RICO case.”] In

count one, the grand jury charged that Smith committed the following

racketeering acts: distribution of cocaine base on June 16 and October 19, 2006,

and distribution of cocaine on June 14, 2006. Smith exercised his right to a jury

trial, and the jury was unable to reach a verdict as to count one. However, Smith

was convicted of counts two and twenty-eight, and acquitted of count twenty-

nine. Smith was sentenced to 77 months’ imprisonment.

      While the RICO case was pending, Smith filed in this case a motion to

                                        -2-
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Smith argued,

inter alia, that his defense attorney did not advise him that he could be subject to

additional criminal charges if he pleaded guilty pursuant to the plea agreement.

The district court denied Smith’s § 2255 motion as untimely, and Smith appealed

the district court’s decision. A panel of this court reversed and remanded for

further proceedings to determine if Smith’s § 2255 motion was timely. United

States v. Smith, No. 09-3095, 352 Fed. Appx. 288 (10th Cir. Nov. 5, 2009)

(unpublished). On remand, the district court granted Smith’s § 2255 motion on

the ground that Smith’s attorney failed to fully advise him of the consequences of

entering a guilty plea, and the district court set the case for a new jury trial.

      Smith filed a motion to dismiss the charges in this case based on the

Double Jeopardy Clause of the Fifth Amendment and the doctrine of collateral

estoppel. Smith argued that he had been convicted of and sentenced for RICO

conspiracy and drug conspiracy charges, and that the Double Jeopardy Clause

barred retrial for additional crimes arising out of the same set of facts. The

district court denied Smith’s motion to dismiss, and Smith filed this interlocutory

appeal. The government asks us to exercise our supervisory authority to

summarily dismiss this appeal on the ground that Smith has not asserted a

colorable double jeopardy or collateral estoppel claim.

                                      Discussion

      Smith argues that the district court erred by denying his motion to dismiss

                                           -3-
on double jeopardy or collateral estoppel grounds, because he has been tried and

convicted on RICO and drug conspiracy charges based on the same conduct

alleged in this case. He claims that possession of cocaine base and cocaine with

intent to distribute are lesser included offenses of the conspiracy charges, and that

the Supreme Court’s decision in Brown v. Ohio, 432 U.S. 161 (1977), bars the

prosecution of Smith for any lesser included offenses of the conspiracy charges.

He also argues that the doctrine of collateral estoppel prevents the government

from proceeding with this case because the same factual issues were fully

litigated as part of the conspiracy charges in the RICO case, for which he has

already been convicted and sentenced.

      The district court’s order denying Smith’s motion to dismiss on double

jeopardy grounds falls within the collateral order exception to the final judgment

rule, and we have jurisdiction under 28 U.S.C. § 1291. Abney v. United States,

431 U.S. 651, 662 (1977); United States v. Wittig, 575 F.3d 1085, 1095 (10th Cir.

2009); United States v. Wood, 950 F.2d 638, 641-42 (10th Cir. 1991). Denial of a

motion to dismiss an indictment on double jeopardy grounds is reviewed de novo,

and any factual findings of the district court are reviewed for clear error. United

States v. Farr, 591 F.3d 1322, 1324 (10th Cir. 2010).

      The government asks us to summarily dismiss this appeal because Smith

has not asserted a colorable double jeopardy or collateral estoppel claim. As we

stated in Wood:


                                         -4-
      Every district court order denying a double jeopardy claim is, by its
      nature, a final decision due to the collateral order doctrine. The
      summary determination of whether a defendant has raised a colorable
      claim is not necessary to our jurisdiction. Rather, it is a
      discretionary action within our “supervisory powers” to ensure that
      defendants do no engage in “dilatory appeals.”

Wood, 950 F.2d at 642. A double jeopardy claim is colorable if there is “some

possible validity” to the claim. Richardson v. United States, 468 U.S. 317, 326

n.6 (1984). The government argues that Smith’s double jeopardy claims have no

merit and, thus, the claims are not colorable. However, the government does not

dispute that Smith’s convictions in the RICO case placed him in jeopardy within

the meaning of the Double Jeopardy Clause, and that the original jeopardy has

terminated. Smith’s prosecution for possession of cocaine base and cocaine with

intent to distribute also arises out of some of the same facts on which his prior

convictions were based. Smith’s arguments on appeal may ultimately prove

unsuccessful, but he has made at least a minimal showing that he was tried for

crimes based on similar facts and original jeopardy has terminated. We find that

Smith has stated a colorable double jeopardy claim and decline to exercise our

supervisory authority to summarily dismiss the appeal.

      The United States Constitution provides that “[n]o person shall be . .

.subject for the same offense to be twice put in jeopardy of life or limb . . . .”

U.S. C ONST . amend V. The Double Jeopardy Clause “was designed to protect an

individual from being subjected to the hazards of trial and possible conviction



                                           -5-
more than once for an alleged offense.” Green v. United States, 355 U.S. 184,

187 (1957). However, successive prosecutions of a defendant are not barred “if

each offense for which the defendant is tried or punished contains a separate

element not present in the other . . . .” Farr, 591 F.3d at 1325 (citing

Blockburger v. United States, 284 U.S. 299 (1932)). It is “‘well settled that

commission of a substantive offense and a conspiracy to commit it are separate

crimes’ because ‘[t]he essence of a conspiracy charge is an agreement to commit’

a substantive offense.” United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir.

1992). Smith conceded at oral argument that he cannot establish a double

jeopardy violation under the Blockburger test.

      Smith argues that the substantive drug charges in this case are lesser

included offenses of the crimes of which he was convicted in the RICO case, and

that the Double Jeopardy Clause prohibits the government from retrying him for

lesser included drug charges. Smith relies on Brown to support his argument. In

Brown, the defendant stole a vehicle in Cuyahoga County, Ohio, and was

apprehended nine days later in Wickliffe, Ohio. Brown, 432 U.S. at 162. The

Wickliffe police charged the defendant with joyriding, and the defendant pleaded

guilty to that charge. Id. After completing his prison sentence, a grand jury in

Cuyahoga County indicted the defendant on charges of automobile theft and

joyriding. Id. at 162-63. He pleaded guilty to automobile theft on the condition

that he be permitted to assert a double jeopardy claim, and the trial court


                                          -6-
considered and rejected the defendant’s argument that he had been subjected to

multiple punishments for the same offense. Id. at 163. On appeal, the Ohio Court

of Appeals acknowledged that joyriding was a lesser included offense of

automobile theft, but it affirmed the defendant’s conviction for automobile theft.

The Supreme Court reversed the defendant’s conviction and held that the Double

Jeopardy Clause “forbids successive prosecution and cumulative punishment for a

greater and lesser included offense.” Id. at 169. Greater and lesser included

offenses are treated as the same offense for double jeopardy purposes, and the

government may not punish a person multiple times for the same offense. Id. at

168. This is true whether multiple punishments are sought in a single proceeding

or a successive prosecution following an earlier conviction. Id. at 169.

      Smith argues that the drug charges in this case are lesser included offenses

of the RICO conspiracy and drug conspiracy charges of which he was convicted

in the RICO case, because the government was required to prove in the RICO

case that defendant possessed cocaine or cocaine base with the intent to distribute

on the three occasions alleged in the superseding indictment in this case. Under

Schmuck v. United States, 489 U.S. 705 (1989), a lesser included offense must

contain all of the elements of the greater offense and a lesser included offense

instruction may not be given if the lesser offense includes an element that is not

part of the greater offense. Id. at 715-16. Possession of drugs with intent to

distribute and distribution of drugs are not lesser included offenses of a drug


                                         -7-
conspiracy charge. United States v. Horn, 946 F.2d 738, 744-45 (10th Cir. 1991).

A conviction for engaging in a RICO conspiracy also does not bar subsequent

prosecution for the predicate acts relied upon to establish the conspiracy, because

Congress plainly intended multiple criminal punishments for participation in a

RICO conspiracy and for commission of the predicate acts. United States v.

Polanco, 145 F.3d 536, 542 (2d Cir. 1998); United States v. Saccoccia, 18 F.3d

795, 798 (9th Cir. 1994); United States v. Grayson, 795 F.2d 278, 282 (3d Cir.

1986). Smith incorrectly assumes that the government was required to prove that

he actually distributed drugs or possessed drugs with the intent to distribute, in

order to have been convicted in the RICO case on the RICO and drug conspiracy

charges. Instead, the essence of a conspiracy charge is that a defendant and

others agreed to commit a certain offense, and a defendant may be criminally

liable for conspiracy even if he does not personally commit the underlying

offense. Johnson, 977 F.2d at 1371. Thus, Brown does not apply and there is no

risk that Smith will be subject to multiple punishments for the same offense if he

is tried for the drug offenses charged in this case.

      Smith asserts that the government is barred by collateral estoppel from

prosecuting him for drug offenses in this case when the jury conclusively

determined he committed these crimes by convicting him in the RICO case of

RICO and drug conspiracy charges. Brown leaves open the possibility that

collateral estoppel may be an alternate basis to prevent the relitigation of factual


                                          -8-
issues in a subsequent or successive criminal prosecution. Brown, 432 U.S. at

166 n.6. Collateral estoppel may apply to prevent the government from retrying a

defendant after a prior acquittal on criminal charges arising out of the same set of

facts. Wittig, 575 F.3d at 1098; see United States v. Rigas, 605 F.3d 194 (3d Cir.

2010) (“The Double Jeopardy Clause . . . embodies principles of collateral

estoppel that can bar relitigation of an issued actually decided in a defendant’s

favor by a valid and final judgment”). In the context of a criminal case, the Court

must consider two questions to determine if collateral estoppel is applicable:

      First, is the issue the [defendant] wish[es] to foreclose from trial the
      actual basis for [his] prior acquittal? Second, is the same issue
      necessary to the prosecutor’s case in this proceeding?

Wittig, 575 F.3d at 1098. The answer to both questions is in the negative, and

Smith’s prosecution for drug charges in this case is not barred by collateral

estoppel. First, Smith was convicted in the RICO case of participation in a RICO

conspiracy and a conspiracy to distribute cocaine, and he was not acquitted of any

criminal charge relating to the drug charges in this case. The jury was unable to

reach a verdict on the substantive RICO charge, but this is not the equivalent of

an acquittal and it does not show that the evidence was insufficient to sustain a

conviction. See Richardson, 468 U.S. at 325-26. Second, it was not necessary for

the jury in the RICO case to reach the issue of whether Smith actually distributed

or possessed with intent to distribute cocaine or cocaine base, in order to have

found him guilty of conspiracy. The jury found only that Smith agreed with


                                         -9-
others to violate the federal drugs laws. Thus, there were no issues decided in the

RICO case that are identical to any issue in this case, and collateral estoppel does

not bar the prosecution of Smith on drug charges.

      Accordingly, the government’s motion to dismiss the appeal is DENIED,

and the district court’s denial of Smith’s motion to dismiss is AFFIRMED.



                                       Entered for the Court



                                       Claire V. Eagan
                                       District Judge




                                        -10-
