by Matthew Thomas Clarke

The U.S. Court of Appeals for the Fourth Circuit vacated the U.S. District Court for the Southern District of West Virginia’s order denying a federal prisoner’s 28 U.S.C. § 2255 motion on whether his trial counsel was ineffective for failing to object to duplicative conspiracy counts in violation of the Double Jeopardy Clause. The Court remanded for an evidentiary hearing on whether counsel had a strategic reason for failing to challenge the double jeopardy violation.

Willie Slocum, Jr., was convicted in federal court on two counts of drug conspiracy and three other drug-related charges. The conspiracy counts charged him with conspiring under 21 U.S.C. § 846 to violate 21 U.S.C. § 841(a)(1) by delivering more than one kilogram of heroin (Count One) and a quantity of oxycodone (Count Two).

During opening arguments, the prosecutor told the jury that “Slocum recruited ‘people to sell drugs,’ often drug addicts who sold ‘heroin and pills’ to support their own addictions.” Most of the 16 prosecution witnesses testified that they sold both heroin and oxycodone for Slocum or knew others who sold or transported both drugs for him.

The prosecutor closed by summarizing the evidence of “a big drug conspiracy.” The jury convicted Slocum on all counts. The District Court sentenced him to 360 months’ imprisonment for the heroin conspiracy, 240 concurrent months for the oxycodone conspiracy, lesser concurrent sentences for the other counts, and five years of supervised release for the heroin conspiracy with concurrent three-year supervised release terms for each of the other counts. It also imposed a total fine of $5,000 plus a $100 special assessment on each count.

“Following his unsuccessful direct appeal, Slocum filed a pro se § 2255 motion. Among other claims, Slocum argued that his trial counsel was ineffective in failing to challenge his conspiracy charges, convictions, and sentences as violating the Double Jeopardy Clause. Underlying this claim was Slocum’s assertion that the heroin and oxycodone conspiracies for which he was charged and convicted amounted to the same offense—a single conspiracy.” The District Court denied the motion without ordering the Government to respond or holding an evidentiary hearing. Slocum timely appealed.

The first issue the Court addressed was whether Slocum had, in fact, been placed in double jeopardy because if he hadn’t been, then there was no basis for an ineffective assistance of counsel claim. The Court noted that the Double Jeopardy Clause consists of two components: “The first provides protection against the imposition of cumulative punishments for the ‘same offense’ in a single criminal trial; the second against being subjected to successive prosecutions for the ‘same offense,’ without regard to the actual imposition of punishment.” United States v. Ragins, 840 F.2d 1184 (4th Cir. 1988).

The Court stated that the first component is at issue in the case because Slocum contends that he was “punished twice for the same conspiracy based on a multiplicitous indictment.” That type of indictment charges multiple counts based on a single offense. United States v. Burns, 990 F.2d 1426 (4th Cir. 1993). The problem with such an indictment is that the defendant may receive multiple punishments for the same crime. United States v. Goodline, 400 F.3d 202 (4th Cir. 2005). The U.S. Supreme Court has ruled that a single conspiracy cannot be punished as multiple conspiracies, which is what Slocum argues occurred in this case. Braverman v. United States, 317 U.S. 49 (1942).

The Court noted that the District Court reasoned Slocum failed to show that the two conspiracy counts were based on the same offense using the “same evidence” test of Blockburger v. United States, 284 U.S. 299 (1932), or the “totality of the circumstances” test of United States v. MacDougall, 790 F.2d 1135 (4th Cir. 1986), which are the two primary tests for determining whether a double jeopardy violation occurred. However, the Court explained that there are problems with the District Court using these tests.

The Court explained that the Blockburger test isn’t even applicable to this case because that test applies in situations where two counts allege violations of different statutes. Sanabria v. United States, 437 U.S. 54 (1978). But Slocum is accused of two violations of the same statute, the Court stated.

Turning to the MacDougall test, the Court explained that it has been modified from its original form, which had focused on five factors: (1) time periods in which the alleged activities of the conspiracy occurred, (2) the statutory offenses charged in the indictments, (3) the places where the alleged activities occurred, (4) the persons acting as co-conspirators, and (5) the overt acts or any other descriptions of the offenses charged which indicate the nature and scope of the activities to be prosecuted. Both the Fourth Circuit and the Supreme Court have eliminated the proof of an “overt act” from the totality of the circumstances test. United States v. Shabani, 513 U.S. 10 (1993); United States v. Clark, 928 F.2d 639 (4th Cir. 1991).

The Court stated: “In the context of multiple conspiracies charged under the same statute, the central question is whether the counts involve the same or different conspiracies in fact.” Where there is “one overall agreement” or “one general business venture,” there’s a single conspiracy. United States v. Stockton, 349 F.3d 755 (4th Cir. 2003). That’s also the case where the one agreement or business venture is for the commission of multiple crimes, United States v. Broce, 488 U.S. 563 (1989), such as a single conspiracy with respect to multiple different controlled substances, see, e.g., United States v. Mackins, 315 F.3d 399 (4th Cir. 2003). Consequently, the Court examined Slocum’s double jeopardy claim under both the modified MacDougall test and its multiple conspiracy case law by focusing on “the overlap in time periods, locations, co-conspirators, as well as the nature and scope of the charged conspiracies, including methods and goals.”

Examining the times, places, persons, overt acts, and offenses set forth in the indictment and witness testimony, the Court held that there was “one overall agreement” or “one general business venture” and thus only one conspiracy. See Stockton. Thus, Slocum’s conviction on two counts violated the Double Jeopardy Clause, and failing to object would constitute deficient performance unless counsel had a strategic reason for failing to object, according to the Court.

Accordingly, the Court vacated the order denying the motion and remanded for an evidentiary hearing on whether trial counsel’s performance was deficient or strategic. See: United States v. Slocum, 106 F.4th 308 (4th Cir. 2024).  

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