Witte v. United States

Steven Witte (defendant) arranged with an undercover federal agent, Roger Norman, to import marijuana and cocaine from Mexico and Guatemala in June 1990. Norman was to fly the drugs into the United States from Mexico, where Witte was to receive the drugs and transport them by ground. In August, Norman learned the location of the airstrip in Mexico where the drugs were supposed to be transported to and from. Federal agents coordinated with local authorities to arrest several men involved and seize 591 kilograms of cocaine at the airstrip. Witte was not arrested. Norman’s cover remained intact. The drug-conspiracy activities ceased for several months. In January 1991, Witte agreed to purchase 1,000 pounds of marijuana form Norman. In February, Norman, Witte, and Sam Kelly, Witte’s associate, met face-to-face to conduct the marijuana transaction. Witte and Kelly provided a trailer and motorhome to undercover agents to load with marijuana. Witte showed Norman the cash he had for payment. The undercover agents returned the trailer and motorhome the next day loaded with marijuana. Witte and Kelly were arrested after they took possession of the vehicles. Witte and Kelly were indicted for intent to distribute marijuana for their conduct in January and February of 1991. Witte pleaded guilty and agreed to cooperate with the government. Witte’s presentence report included information about Witte’s involvement in the attempt to import 591 kilograms of cocaine from Guatemala via Mexico in 1990. During the sentencing hearing, the court found that the conduct from 1990 was part of the same continuing conspiracy, so it was considered relevant conduct to be considered for purposes of sentencing. Several months later, a grand jury indicted Witte and another associate for conspiring and attempting to import cocaine in 1990. Witte moved to dismiss the indictment because the cocaine involved in the 1990 transactions already had been factored into his punishment for the 1991 marijuana offense. The district court dismissed the indictment, finding that punishment for the indicted cocaine offenses would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The court of appeals reversed. The United States Supreme Court granted certiorari.