Insufficient Evidence Varied too Far from the IndictmentThe defendants appealed to the First Circuit which vacated the convictions reasoning that the trial court should have granted motions for acquittal. The opinion considered two main issues: First, the court found that the evidence was insufficient to prove defendant's involvement in conspiracy to distribute both drugs; the only evidence about Dellosantos and Szpyt had to do with cocaine. Second, the evidence at trial varied from the indicted charge to such a degree that the defendants were unfairly prejudiced. The First Circuit reasoned that when the charged conduct varies substantially from the evidence at trial, there are three potential problems:
- A defendant may receive inadequate notice of the charge against him and thus be taken by surprise at trial.
- A defendant may be twice subject to prosecution for the same offense.
- A defendant may be prejudiced by "evidentiary spillover": the "transference of guilt" to a defendant involved in one conspiracy from evidence incriminating defendants in another conspiracy in which the particular defendant was not involved. P. 125.
New Conspiracy Indictment Dismissed for Double JeopardyOf course, the US Attorney's office got a new indictment and this one charged only a cocaine conspiracy, no marijuana. Dellosantos and Szypt moved to dismiss on double jeopardy grounds arguing that the first acquittal was a bar to retrial. The Government argued that the nothing-but-cocaine conspiracy was a separate offense and that the prior acquittal on a different conspiracy was no bar to the second trial.
After reviewing the motions, District Court Judge George Z. Singal asked the government to make some showing that the evidence at trial on the second indictment would differ from that presented in the first. In response, the governemnet field a copy of the transcript from the first trial. Singal was left then to compare the following factors to determine if the second conspiracy was seperate from the one already tried to an acquittal:
- time periods of the conspiracies, with an overlap tending to support a single conspiracy
- the personnel involved, again with “significant overlap” denoting a single conspiracy;
- location(s), with identical place(s) supporting a single conspiracy;
- evidence of overt acts, where the same acts would denote a single conspiracy; and
- statutory provisions, with the same statutes suggesting possible overlap. From Singal's opinion citing, United States v. Hart, 933 F.2d 80, 85-86 (1st Cir. 1991).
Judge Singal found that on every factor, the cases overlapped completely and he granted the motions to dismiss:
The First Circuit has long recognized that the Double Jeopardy Clause "prohibit[s] successive prosecutions for conspiracies with identical features.” United States v. Fornia-Castillo, 408 F.3d 52, 69 (1st Cir. 2005). Likewise, the Second Circuit has explained, “[t]he Government cannot be permitted to retry defendants on smaller and smaller conspiracies, wholly contained within the scope of a large conspiracy, until it finds one small enough to be proved to the satisfaction of a jury.” United States v. Calderone, 982 F.2d 42, 48 (2d Cir. 1992)...[At the first trial] jeopardy attached and the Government bears the burden of proving that its pending conspiracy charge does not completely overlap with the previous charge on one or more of the factors already discussed. Having failed to meet this burden, the Court concludes that Count I represents a successive prosecution that violates the Double Jeopardy Clause. p. 7-8.The Conspiracy count was the only one pending against Dellosantos and, after several years in custody, he is now discharged. Szypt, who got a life sentence the first time around, now faces prosecution on three counts of violating 21 U.S.C. § 843(b), use of a telephone to facilitate drug distribution. Those charges would carry a maximum of 4 or 8 years in prison depending on criminal history.