The judge is still arguing about whether a person who conspires to commit more than one offense is guilty of only one conspiracy when such offenses are the object of the same agreement or "continuous conspiratorial relationship." In this instance, the question of double jeopardy or multiple punishments does not arise.
Whichever way you look at it, the heroin traffickers and Bill Scott certainly had a continuous conspiratorial relationship. They just wanted to offload as much heroin as they could, and to hell with the prospect of people likely to overdose on their 85% pure heroin as long as they continued to collect the money.
Read the court extracts here.
Below are extracts from the court records, 100% original, not edited.
Next, let us consider the first, eighth and ninth complaints concerning the looseness of the language. This attack is without merit. All of the words used have a clear and precise dictionary meaning, which will lend well to [*32] case-by-case interpretation. The proscribed conduct is defined so that those who desire to obey the law will not have to guess at its meaning. We believe, and so hold, that the word "gain" as used in R.C. 2923.04(C)(7) means "financial" gain.
The second complaint objects to the sweeping aspects of the statute converting minor misdemeanors into first-degree felonies if done by five or more persons with the requisite scienter on a continuing basis. While this has caused some difficulty in the thinking of those courts, which have struck down all or part of the organized crime statute, it does not affect our judgment. It is obvious that the proscribed conduct is clear and definite; otherwise, those courts would not speculate on whether enforcement was to be extended to those "innocuous" social crimes. However, the broad scope of the statute is within the discretion of the legislature. It is not our function to hypothesize and conjecture as to the extent of enforcement or about every possible situation that may be included. The proscribed conduct is clear and definite and requires scienter. The statute has a constitutionally explicit and ascertainable standard of guilt.
The seventh [*33] point seeks a rational basis for the use of the number five in the definition of "criminal syndicate." This is a reasonable classification and applies equally to all persons. The number suggests only that the purpose of the statute is directed at large organized criminal groups. We note that at least three federal anti-criminal enterprise statutes use the number five as a jurisdictional requisite. See, 18 U.S.C. § 1511(B)(1)(ii); 18 U.S.C. § 1955(b)(1)(ii); 21 U.S.C. § 848(b)(2)(A). The constitutionality of these statutes has been sustained.
The 12th point above concerns primarily furnishing of legal services under R.C. 2923.04(A(4). [*34] This section was found unconstitutional by the federal district court for the Southern District of Ohio in Amusement Devices Association v. Ohio, 443 F. Supp. 1040 (S.D. Ohio, 1977). The district court granted declaratory judgment relief because it believed the phrase was incapable of a narrowing construction which would avoid the protected areas of the first and fourteenth amendments. We are not confronted with that issue in this case. Certainly, the rest of the statute can stand constitutional muster.
We note in Amusement Devices, Supra, that the court took jurisdiction under the grandfather clause of a repealed statute and then struck down part of a state statute in a case in which standing and abstention were viable issues. We feel the Ohio Supreme Court should be given the opportunity to construe subsection (A)(4) to avoid the protected areas of the first and fourteenth amendments.
JOINT ASSIGNMENT OF ERROR THREE
"III. Given the charge made here, of engaging in organized crime, which charge comprehended various ancillary conspiratorial agreements (between the parties thereto to commit various and numerous offenses in furtherance thereof); the absence of any elements [*35] in such conspiracies that are not included within contemplation of the organized crime charge itself (under the facts of this case) violated the double jeopardy rights of those accused. (Case 8883).
"7. It was error for the trial court to sentence the defendant-appellant to all four conspiracy convictions. (Case 8890).
"4. The court committed prejudicial error in sentencing the defendant to both counts I and II of the indictment when all of the acts which constituted the substance of those charges were identical and were the result of the same agreement or continuous conspiratorial relationship. (Case 8891).
"10. The trial court erred in sentencing the defendant to all of the conspiracy counts contained in the indictment, including the count charging engaging in organized crime, when all of the acts which constituted the substance of those charges were the result of the same agreement or continuous conspiratorial relationship. This error was prejudicial to the defendant. (Case 8892).
"12. The trial court prejudicially erred in failing to require the state to elect which conspiracy count on which it was going to proceed. (Case 8950)."
"13. The multiple [*36] convictions of the defendant is a violation of the double jeopardy clause of the Fifth and Fourteenth Amendments to the United States Constitution. (Case 8950)."
These assignments of error question whether there was a single overall conspiracy or multiple conspiracies and whether, as a result, sentencing and conviction on multiple conspiracies would be double jeopardy to one or more of the defendants. The issues are complicated by the evidentiary period which covers from early 1971 to January 19, 1978. None of the statutes, upon which counts one, two, four, five, six and seven of the indictment are predicated, were in full force during the entire period of time. The organized crime statute, R.C. 2923.04, involved in count one became law on January 1, 1974. The conspiracies alleged in counts two and four to "corrupt another with drugs" under R.C. 2923.01(A) did not become effective until July 1, 1976. However, the general conspiracy statute, R.C. 2923.01, including subsections (F) and (K) went into effect on January 1, 1974. On July 1, 1976, R.C. 3719.20(H), the drug conspiracy section was repealed, as were R.C. 3719.09 (A), and R.C. 3719.101 upon which counts five, six and [*37] seven are based. We must determine the effect of those statutory enactments on the issues set forth above.
The defendants collectively argue that there was (if proven) only one overall continuous conspiracy. Some of them argue that even if proven, the other conspiracies merge into the one organized crime conspiracy under R.C. 2941.25(A). Other defendants argue that the state should have been required to elect between the conspiracy counts. Another argument is the applicability of R.C. 2923.01(F) and (K)(2) to limit the conviction to one if there is more than one conspiracy.
Our first task is to determine what sort of conspiracy or conspiracies or crimes we are dealing with. The general rule is laid down in Braverman v United States, 317 U.S. 49, 52-54 (1942):
"The gist of the crime of conspiracy as defined by the statute is the agreement or confederation of the conspirators to commit one or more unlawful acts 'where one or more of such parties do any act to effect the object of the conspiracy.' The overt act, without proof of which a charge of conspiracy cannot be submitted to the jury, may be that of only a single one of the conspirators and need not be itself a crime. [Citations omitted].
"For when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of [*39] several statutes rather than one.
"The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for 'The conspiracy is the crime, and that is one, however diverse its objects.' Frohwerk v. United States, 249 U.S. 204, 210; [Citations omitted]. A conspiracy is not the commission of the crime which it contemplates, and neither violates nor 'arises under' the statute whose violation is its object. [Citations omitted]. Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U.S. 299, 301-4; *** *."
Once we have determined the nature of the instant conspiracies, we are confronted with the question of double jeopardy. The test is laid down in Blockburger v. United States, supra, at 304:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision [*40] requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, and authorities cited. In that case, this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonweath, 108 Mass. 433. 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.' * * *."
We first conclude that R.C. 2923.04, the so-called "engaging in organized crime offense" is, in effect, a conspiracy-type offense. Whether you call it conspiracy, collaborating, agreeing or "acting in concert," you still come out at the same place. Your net result is people acting together by an accord to produce a desired result or results. Thus, we conclude that all of the six counts (one, two, four, five, six and seven) deal with conspiracies of one kind or another.
Our next step is to apply the Braverman test and determine the nature of the conspiracies. The evidence offered by the state was not isolated or departmentalized to distinguish between [*41] the various conspiracies claimed. Such a task is almost insurmountable in a trial of this nature and is a real burden upon the state. Our analysis of the evidence is that we are dealing with an overall agreement of five or more persons to commit as many crimes as were necessary to carry on the overall objective of the illegal trafficking in drugs of abuse by the unlawful acquisition, possession, and distribution of heroin and other illicit drugs. This overall fabric would include many interwoven conspiracies and probable and foreseeable consequences that others would be corrupted and houses and automobiles would be used to facilitate the illegal objectives. All of the evidence was used to prove all of the conspiracies. There is no specific breaking point where the ongoing conspiracy fractured or splintered off into separate or new conspiracies with new objectives.
The overall time period should be divided into three time frames. The first, from 1971 to January 1, 1974, covers the conspiracies charged in counts five, six and seven to possess narcotics and to permit the use of a dwelling house and automobiles for such keeping, distributing, etc. The overall conspiracy as set [*42] forth above would have included agreement to do everything necessary to possess narcotic drugs. Thus, the conspiracy is a violation of R.C. 3719.20(H) which covers conspiracies to violate R.C. 3719.09 as described in count five, and to violate R.C. 3719.101 by unlawful uses of a dwelling house in count six and a motor vehicle in count seven. The evidence reveals that the conspirators actually used several dwelling houses and several motor vehicles for the illegal possession, etc. The trial court specified several houses and vehicles, which the jury could consider in counts six and seven. The overall conspiracy to possess narcotics in count five includes the agreement to use houses and vehicles to facilitate the objective. Consequently, counts six and seven are merged into count five.
The second time frame would cover the period from January 1, 1974, with the enactment of the organized crime statute, R.C.2923.04, to January 19, 1978. The same overall, ongoing conspiracy in violation of R.C. 3719.20(H), continued into a violation of R.C. 2923.04 under count one. Counts five, six and seven as of that time were merged into count one. Such a merger would be because of the same reasoning [*43] used as to the first time frame. Even if the overall agreement (after January 1, 1974) is aimed at a series of separate and distinct objectives, then there is a merger into count one under R.C. 2923.01(F) and (K) which became effective on January 1, 1974.
Those sections provide:
"(F) A person who conspires to commit more than one offense is guilty of only one conspiracy, when such offenses are the object of the same agreement or continuous conspiratorial relationship.
"(K) This section does not define a separate conspiracy offense or penalty where conspiracy is defined as an offense by one or more sections of the Revised Code, other than this section. In such case, however:
"(1) ***
"(2) Divisions (B) to (I) of this section are incorporated by reference in the conspiracy offense defined by such other section or sections of the Revised Code."
Thus, we conclude that counts six and seven are merged into count five, which covers the time period until January 1, 1974.
Thereafter, the same evidence puts the principals in violation of count one. Additionally, we conclude that counts two and four merge into count one from and after July 1, 1976. Therefore, we do not reach the question of double jeopardy or multiple punishments because of the mergers we have found. Blockburger, supra, is inapplicable. R.C. 2941.25(A) is also inapplicable. Likewise, the question of forcing the prosecution to elect among [*45] the conspiracies charged is moot.
