Witte v. United States

Facts

In June 1990, various individuals, including the Petitioner, Steven Kurt Witte (the “Petitioner”), arranged to import a substantial amount of marijuana (4400 pounds) and cocaine with an undercover Drug Enforcement Agency agent named Roger Norman (“Norman”). Various members of the conspiracy were arrested on August 12 of the same year, when Norman alerted local Mexican authorities, but the Petitioner was not one of those arrested. In January 1991, Norman solicited the Petitioner to partake in another drug deal. The Petitioner agreed to purchase 1,000 pounds of marijuana from Norman and agreed to provide a $50,000 down payment. The marijuana was to be transported in a horse trailer the Petitioner purchased for the original August transaction. On February 7, 1991, the Petitioner, Norman and an individual named Kelly met in Houston. After the transaction, the Petitioner and Kelly were arrested. In 1991 the Petitioner and Witte were indicted by a federal grand jury for conspiring and attempting to possess marijuana with an attempt to distribute it. The indictment on its face was limited to conduct that occurred on or about January 25 through February 8, 1991. As such, the indictment only covered the later marijuana transaction. On February 21, 1992, the Petitioner plead guilty to a lesser charge and agreed to cooperate with the government. In return, the government agreed to dismiss the conspiracy charge and recommend a downward departure if certain requirements were met. In calculating the Petitioner’s sentence, the weight of drugs used included the first planned August 1990 shipment also. During the sentencing hearing, the Petitioner and the government urged the court to find that the 1990 drug transactions were not part of the same course of conduct as the 1991 marijuana offense to which the Petitioner pled guilty. Irrespective, the District Court concluded that the 1990 importation offenses were part of the same continuing conspiracy and could be taken into account. Accordingly, the court accepted the presentence report’s conclusion that both the 1990 and 1991 episodes should be included in the sentence. The Petitioner was sentenced to 148 months in prison. The Petitioner appealed, but his appeal was dismissed. In September 1992, a second grand jury in the same district indicted the Petitioner and an individual named Pokorney for attempting to import cocaine. The indictment spanned from August 1989 and August 1990. The Petitioner moved to dismiss “arguing that he had already been punished for the cocaine offenses because the cocaine involved in the 1990 transactions had been considered as ‘relevant conduct’ at sentencing for the 1991 marijuana offense.” The District Court dismissed the indictment in February 1993 because punishment based on these grounds would violated the Double Jeopardy Clause of the Fifth Amendment. The Fifth Circuit reversed relying on [Williams v. Oklahoma]. The Fifth Circuit held that ‘the use of relevant conduct to increase the punishment of a charged offense does not punish the offender for the relevant conduct.’ ”