Habeas Corpus: Drug conspiracy convictions violated Double Jeopardy Clause

Where a man showed he was convicted and sentenced twice for the same offense charged in a multiplicitous indictment, he established a double jeopardy violation. On remand, the district court must analyze whether he was denied effective assistance of counsel.

Background

Willie Slocum Jr. was indicted on two counts of drug conspiracy under 21 U.S.C. § 846, but Slocum argues that the two charged conspiracies were really one. Insisting that he was punished twice for the same conspiracy in violation of the Fifth Amendment’s Double Jeopardy Clause, Slocum argues that his trial counsel rendered ineffective assistance by failing to raise a double jeopardy challenge before the trial court. The district court denied his 28 U.S.C. § 2255 motion to correct, vacate or set aside his convictions.

Double Jeopardy

The Double Jeopardy Clause’s protection against the imposition of cumulative punishments “attaches if the subject offenses ‘are in law and in fact the same offense.’” In the context of multiple conspiracies charged under the same statute, the central question is whether the counts involve the same or different conspiracies in fact. The court analyzes Slocum’s double jeopardy claim by considering the overlap in time periods, locations, co-conspirators, as well as the nature and scope of the charged conspiracies, including methods and goals.

Here, the court must determine whether the separately charged heroin and oxycodone conspiracies were, in fact, separate conspiracies or were really a single conspiracy. Ultimately, the substantial overlap in the time periods, locations, co-conspirators and nature and scope of the prosecuted activities suggests there was one overall agreement to distribute both heroin and oxycodone.

In fact, the government identifies no evidence to support a contrary finding. So, based on the totality of the circumstances, the heroin and oxycodone conspiracies were, in fact, one conspiracy. Because Slocum was convicted and sentenced twice for the same offense charged in a multiplicitous indictment, he has demonstrated a double jeopardy violation.

Ineffective assistance

While the court has found that Slocum established a double jeopardy violation, that determination does not resolve whether he is entitled to habeas relief based on the alleged ineffective assistance of his trial counsel for failure to raise a double jeopardy challenge before the trial court. To prove ineffective assistance, Slocum must prove that (1) his counsel’s performance was deficient and (2) his counsel’s deficient performance prejudiced him.

Because the district court neither held an evidentiary hearing nor ordered a response to Slocum’s motion from the government, there is nothing in the record from Slocum’s trial counsel that sheds light on whether he had a strategic reason to not raise a double jeopardy challenge before the trial court. Without any insight into trial counsel’s decision, the court finds it premature to decide whether his performance was deficient.

In other words, Slocum has presented a colorable Sixth Amendment claim in which disputed facts — namely trial counsel’s reasoned strategy or lack thereof — remain beyond the record. Accordingly, the district court’s denial of Slocum’s § 2255 motion is vacated and remanded for an evidentiary hearing on whether trial counsel’s performance was deficient. If the district court finds that trial counsel’s performance was deficient, Slocum was necessarily prejudiced by that performance given this court’s recognition of a Double Jeopardy violation.

Vacated and remanded.

Concurring opinion

Diaz, J., concurring:

I agree with my colleagues in the majority that Slocum’s indictment was multiplicitous and that his subsequent conspiracy convictions and sentences violated the Double Jeopardy Clause. That said, the majority leaves it to the district court to also resolve whether “relevant authority strongly suggest[ed]” the objection.

But in my view, “relevant authority” did “strongly suggest” that Slocum had a meritorious objection based on the double jeopardy issue at the time of his trial. For these reasons, I would remand only on whether Slocum’s counsel had a strategic reason for failing to raise the objection.

United States v. Slocum, Case No. 21-7283, July 1, 2024. 4th Cir. (Quattlebaum), from SDWVA at Charleston (Copenhaver Jr.). Salvatore Mills Mancina for Appellant. Joshua Clarke Hanks for Appellee. VLW 024-2-183. 20 pp.