23-7204 United States v. Blanding

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of October, two thousand twenty-four.

PRESENT: JOSEPH F. BIANCO, EUNICE C. LEE, MARIA ARAÚJO KAHN, Circuit Judges. __________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 23-7204

DIMITRI BLANDING,

Defendant-Appellant,

GABRIEL PULLIAM, a/k/a G, TAHJAY LOVE, a/k/a Goon, ZAEKWON MCDANIEL, a/k/a Gap, a/k/a Yung Gap, EZRA ALVES, a/k/a EJ, a/k/a Ezzy, D’ANDRE BURRUS, a/k/a Dopeman, MALIK BAYON, a/k/a Pop, a/k/a Dirt, JUSTIN CABRERA, a/k/a J.U., LADERRICK JONES, a/k/a Lexus, JAIVAUN MCKNIGHT, a/k/a Sav, JULIAN SCOTT, a/k/a Ju Sav, DAYQUAIN SINISTERRA, a/k/a Quan, AHMED ALVES, a/k/a Stones, ADRIAN FLEMING, a/k/a Big A, a/k/a Goldo, JAMES GRAHAM, a/k/a Little Cuz, TAVAUGHN WRIGHT, a/k/a Teddy,

Defendants. __________________________________________

FOR APPELLEE: DANIEL P. GORDON, Assistant United States Attorney (Conor M. Reardon, Assistant United States Attorney, on the brief), for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, Connecticut.

FOR DEFENDANT-APPELLANT: WILLIAM T. KOCH, JR., Old Lyme, Connecticut.

Appeal from an order of the United States District Court for the District of Connecticut

(Kari A. Dooley, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court, entered on September 19, 2023, is AFFIRMED.

Defendant-Appellant Dimitri Blanding appeals from the district court’s order denying his

motion to dismiss the federal criminal charges against him on the ground that the charges violate

the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. In 2020, Blanding

was convicted in Connecticut state court of two counts of possessing narcotics, namely heroin, on

June 27, 2019, in violation of Connecticut General Statutes § 21a-279(a)(1) (the “State Charges”),

for which he received a two-year suspended sentence and two years of probation. On September

14, 2021, Blanding was indicted in federal court on two counts: conspiring to distribute and to

possess with intent to distribute controlled substances, namely heroin and fentanyl, between June

2018 and February 2020, in violation of

; and distributing and possessing with

intent to distribute heroin and fentanyl on June 18, 2019, in violation of

(a)(1)

2 and 841(b)(1)(C) (the “Federal Charges”). On September 19, 2023, the district court denied

Blanding’s motion to dismiss, concluding that the Federal Charges did not constitute the same

offenses as the State Charges for double jeopardy purposes. This appeal followed.

Although we generally lack jurisdiction to review rulings in criminal cases until a final

judgment has been entered, “[d]enials of motions to dismiss on double jeopardy grounds qualify

as appealable orders within the collateral order doctrine.” United States v. Olmeda,

(2d Cir. 2006). Moreover, we review de novo the denial of Blanding’s motion to dismiss on

double jeopardy grounds because it “raises a question of law, or, at most, a mixed question of law

and fact.”

In so doing, we assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal, to which we refer only as necessary to explain our decision to affirm.

The Double Jeopardy Clause provides that “[n]o person shall be . . . subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. “A double jeopardy

claim cannot succeed unless the charged offenses are the same in fact and in law.” United States

v. Estrada,

(2d Cir. 2003). Two successively charged offenses “are the same

in fact” only if “a reasonable person familiar with the totality of the facts and circumstances would

construe the initial indictment, at the time jeopardy attached in the first case, to cover the offense

that is charged in the subsequent prosecution.” Olmeda,

. Furthermore, those

offenses are the same in law only if they meet the “same-elements test” that the Supreme Court

established in Blockburger v. United States,

(1932). United States v. Garavito-

Garcia,

(2d Cir. 2016). Under that test, if “each offense contains an element

not contained in the other,” then the offenses are not the “same offence” for purposes of the Double

Jeopardy Clause. United States v. Weingarten,

(2d Cir. 2013) (internal

3 quotation marks and citation omitted); see also Blockburger,

.

Moreover, even if two successively charged offenses are the same, under “the principle of

dual sovereignty, a defendant in a criminal case may be prosecuted [for the same offense] by more

than one sovereign without violating principles of double jeopardy.” United States v. Sewell,

(2d Cir. 2001) (internal quotation marks and citation omitted). Therefore, as a

general matter, under the dual-sovereignty doctrine, the Double Jeopardy Clause is not violated by

successive state and federal prosecutions for the same conduct. See United States v.

Aboumoussallem,

, 909–10 (2d Cir. 1984). However, “[a] narrow exception to the

dual sovereignty doctrine, carved out in Bartkus v. Illinois, [

(1959)], bars a second

prosecution where one prosecuting sovereign can be said to be acting as a tool of the other, or

where the second prosecution amounts to a sham and a cover for the first.” Id. at 910 (internal

quotation marks and citation omitted).

Here, the district court determined that there was no double jeopardy violation because the

State Charges and the Federal Charges were not the same offense under the Blockburger test and,

thus, that it need not proceed to analyze whether the Bartkus exception to the dual-sovereignty

doctrine would apply. We conclude, on de novo review, that the district court’s analysis under the

Blockburger test, finding that the State Charges and Federal Charges are different offenses, is

correct. In particular, the substantive federal charge, that Blanding sold heroin and fentanyl on

June 18, 2019, is a factually distinct offense from the State Charges, which charged him with

possessing narcotics more than one week later. See Blockburger,

(“Each of several

successive [narcotics] sales constitutes a distinct offense, however closely they may follow each

other.”); accord United States v. Malachowski,

(2d Cir. 2015) (summary

4 order). Similarly, although the federal conspiracy charge included the drugs seized from

Blanding’s residence on June 27, 2018, which were also part of the substantive offenses contained

in the State Charges, under the Blockburger test, “a conspiracy to commit a crime is a separate

offense” from the substantive crime itself. United States v. Felix,

(1992); see

also United States v. Sessa,

(2d Cir. 1997) (“A conspiracy to commit a crime and

the substantive crime itself are different offenses because each requires an element that the other

does not.”).

On appeal, Blanding does not dispute that, if the Blockburger test applies, his Federal and

State Charges do not constitute the same offense for purposes of double jeopardy. Instead,

Blanding argues that the Blockburger test applies only to successive prosecutions by the same

sovereign, not, as here, to successive prosecutions by different sovereigns. Thus, according to

Blanding, because his Federal and State Charges involve the “same acts” and the Blockburger

“same elements” framework is irrelevant, the district court erred in failing to determine whether

the Bartkus exception to dual sovereignty applies in this case. We disagree.

It is well settled that the definition of “same offence” under the Double Jeopardy Clause is

not contingent upon whether the successive prosecutions are brought by the same or different

sovereigns. See United States v. Dixon,

(1993) (noting that “it is embarrassing

to assert that the single term ‘same offence’ (the words of the Fifth Amendment at issue here) has

two different meanings” in two different contexts). Indeed, both the Supreme Court and this Court

have referenced the Blockburger test in cases analyzing whether successive prosecutions violate

the Double Jeopardy Clause in the dual-sovereignty context. See Gamble v. United States,

, 683 n.1, 685 (2019) (“assum[ing], without deciding, that the state and federal offenses

5 at issue” were the “same offence” under Blockburger and then holding there was no double

jeopardy violation due to the dual-sovereignty doctrine); Heath v. Alabama,

, 87–88

(1985) (assuming that the offenses at issue were the same under the Blockburger test and then

holding that the successive prosecutions were permissible under the dual-sovereignty doctrine);

United States v. Nelson,

(2d Cir. 2002) (“assuming” that the defendant’s state

and federal prosecutions “satisf[ied] the ‘same elements’ test for double jeopardy established in

Blockburger” before holding that the Bartkus exception to the dual-sovereignty doctrine did not

apply because of a lack of evidence to support the exception); Archer v. Comm’r of Correction of

State of N.Y.,

, 47 n.2 (2d Cir. 1981) (explaining that “apart from the dual sovereignty

doctrine, the case might come within the formulation of Blockburger,” but it was unnecessary to

decide that issue because “the dual sovereignty doctrine [was] fatal to [the defendant’s] claim”). 1

Indeed, in Gamble, the Supreme Court declined a request to overrule the dual-sovereignty rule,

explaining that “[e]liminating the dual-sovereignty rule would do little to trim the reach of federal

criminal law, and it would not even prevent many successive state and federal prosecutions for the

same criminal conduct unless we also overruled the long-settled rule that an ‘offence’ for double

jeopardy purposes is defined by statutory elements” under Blockburger.

. This

reference in Gamble to the application of the Blockburger test in successive state and federal

prosecutions was a reaffirmation of the long-standing application of the Blockburger test in the

1 Other courts have similarly applied the Blockburger test in the dual-sovereignty context. See, e.g., United States v. Perez-Perez,

(1st Cir. 1995) (holding that, even if the doctrine of dual sovereignty did not apply, the double jeopardy claim would fail under Blockburger); United States v. Andrade, C.A. No. 18-145-JJM-LDA,

, at *2 (D.R.I. Jan. 11, 2022) (same); United States v. Gray, Case No. 1:18-CR-272-WKW-GMB,

, at *1 n.1 (M.D. Ala. Sept. 13, 2018) (same); United States v. Donaldson, No. 4:05-CR-38,

, at *3–6 (E.D. Tenn. Dec. 20, 2007) (same, in Sixth Amendment context).

6 dual-sovereign context and a rejection of the novel double jeopardy theory raised by Blanding in

this case.

Blanding’s reliance on the Supreme Court’s decisions in Bartkus and Abbate v. United

States,

(1959), is entirely misplaced. In particular, Blanding notes that in neither

Bartkus nor Abbate did the Supreme Court “mention[]” the Blockburger test. Appellant’s Br. at

9. However, in both cases, the Supreme Court held that there was no double jeopardy violation

under the dual-sovereignty doctrine, regardless of whether the state and federal charges constituted

the same offense. See Bartkus,

; Abbate, 359 U.S. at 194–95. Thus, because the

Court affirmed the convictions on other grounds, it did not need to address whether the successive

prosecutions in Abbate and Bartkus were separately permissible under the Blockburger test for the

“same offence.” In fact, in a separate concurrence in Abbate, Justice Brennan, who also authored

the majority opinion, noted that, because of the Court’s disposition of the case under the dual-

sovereignty doctrine, “the Court considered that it was unnecessary to discuss” the government’s

separate arguments under Blockburger. 359 U.S. at 196–97 (Brennan, J., concurring).

Blanding’s reliance on our decision in United States v. All Assets of G.P.S. Automotive

Corp.,

(2d Cir. 1995), is similarly unavailing. In All Assets, in the context of a claim

that an in rem civil forfeiture action brought in federal court constituted a second punishment for

conduct that had been the subject of a conviction in New York state court, we held that the

forfeiture action did not constitute a double jeopardy violation because of the dual-sovereignty

doctrine, but remanded for “a consideration of whether th[e] case is one of those rare cases in

which the Bartkus exception might apply.”

at 496–97 (Calabresi, J., concurring). Blanding

argues that, because in All Assets we “did not engage in a threshold analysis under Blockburger,”

7 and, instead, “went directly to the questions of whether the civil in rem proceeding violated the

Double Jeopardy Clause and the potential applicability of the Bartkus exception to the dual

sovereignty doctrine,” we were implicitly holding that Blockburger does not apply in the dual-

sovereignty context. Appellant’s Br. at 12 (italics added). We disagree. Indeed, we explicitly

declined in All Assets to address other double jeopardy issues because the parties had “focused

almost exclusively on the dual sovereignty doctrine.”

; see also

(noting

that “a final determination that the dual sovereignty doctrine applies would, obviously, make

superfluous any consideration of the broader double jeopardy issues implicated in this

proceeding”). Thus, the analysis in All Assets provides no support for Blanding’s position in this

case.

In sum, the district court correctly denied Blanding’s motion to dismiss the indictment

under the Double Jeopardy Clause because his Federal Charges were not the “same offence” as

his State Charges under the Blockburger test, and thus it was unnecessary to separately determine

whether the federal prosecution also was permissible under the dual-sovereignty doctrine.

* * *

We have considered Blanding’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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