{ "id": 1884237, "name": "STATE of Arkansas v. Jack McMULLEN", "name_abbreviation": "State v. McMullen", "decision_date": "1990-05-14", "docket_number": "CR 90-13", "first_page": "252", "last_page": "261", "citations": [ { "type": "official", "cite": "302 Ark. 252" }, { "type": "parallel", "cite": "789 S.W.2d 715" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 5-52-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7 841", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7 846", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-1-114", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-64-401", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)(l)(iv)" } ], "opinion_index": 2 }, { "cite": "261 Ark. 259", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678909 ], "weight": 2, "year": 1977, "opinion_index": 2, "case_paths": [ "/ark/261/0259-01" ] }, { "cite": "332 U.S. 575", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 365183 ], "year": 1948, "opinion_index": 2, "case_paths": [ "/us/332/0575-01" ] }, { "cite": "347 U .S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299228 ], "year": 1954, "opinion_index": 2, "case_paths": [ "/us/347/0001-01" ] }, { "cite": "265 Ark. 307", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664739 ], "weight": 2, "year": 1979, "opinion_index": 2, "case_paths": [ "/ark/265/0307-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-52-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 5-1-114", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(1)(A)(1987)" } ], "opinion_index": 2 } ], "analysis": { "cardinality": 682, "char_count": 18244, "ocr_confidence": 0.883, "pagerank": { "raw": 1.3061430802636296e-07, "percentile": 0.6232440578581995 }, "sha256": "838fa78c41b464fbe92ec9495cde201bc7079039d88329aaf0fc7a8559613f41", "simhash": "1:9022c4f5eb8789a2", "word_count": 2970 }, "last_updated": "2023-07-14T14:34:09.444418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs.", "Dudley and Newbern, JJ., concur in part and dissent in part." ], "parties": [ "STATE of Arkansas v. Jack McMULLEN" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis is an appeal by the State of Arkansas, pursuant to Ark. R. Crim. P. 36.10(b) and (c),from the Randolph County Circuit Court\u2019s dismissal by.pretrial motion of the criminal charges against the appellee, Jack McMullen, on the basis of former jeopardy.\nOn June 7, 1989, the State charged McMullen with the offenses of public servant bribery and possession of less than ten pounds of marijuana with intent to deliver.\nOn September 18, 1989, McMullen pleaded guilty in the United States District Court for the Southern District of Texas to the federal offenses of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute, possession of more than 100 kilograms of marijuana with intent to distribute, and travel in interstate commerce with the intent to promote, manage, or carry on the unlawful activity of possession of marijuana with intent to distribute.\nOn October 11, 1989, McMullen made a motion to dismiss the State\u2019s charges predicated on Ark. Code Ann. \u00a7 5-1-114 (1987); the trial court granted the pretrial motion to dismiss, from which the State appeals.\nSection 5-1-114 addresses the former prosecution in another jurisdiction as an affirmative defense to subsequent prosecution and provides as follows:\nWhen conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or territory thereof, a prosecution in any such other jurisdiction is an affirmative defense to a subsequent prosecution in this state under the following circumstances:\n(1) The first prosecution resulted in an acquittal or in a conviction as set out in \u00a7 5-1-112, and the subsequent prosecution is based on the same conduct unless:\n(A) The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil ....\n(Emphasis added.)\n* * * *\nThe State argues on appeal that the trial court erred when it dismissed the charges of public servant bribery and possession of a controlled substance with intent to deliver against McMullen on former jeopardy grounds because these offenses have different elements and are intended to prevent substantially different harms than the federal offense of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute.\nWe find that it is not necessary to distinguish the elements of the State offenses from the federal offenses inasmuch as the State\u2019s charges of possession of a controlled substance with intent to deliver and public servant bribery are based on different conduct at different times and places from the underlying conduct upon which the various federal offenses relating to conspiracy to possess and possession of more than 100 kilograms of marijuana with intent to distribute are based, and we reverse.\nThe facts underlying this case are that McMullen, as an Arkansas State Police Officer, stopped a vehicle for speeding in Randolph County, Arkansas, in January or February of 1989. McMullen subsequently discovered approximately one-quarter pound of marijuana in the vehicle. The two male occupants of the vehicle told McMullen that they could make him rich; as a result, McMullen did not arrest the two men for possession of marijuana, did not issue a speeding ticket, and did not make a report that he had stopped the vehicle. McMullen kept the marijuana, which was subsequently found at his residence after his arrest.\nMcMullen thereafter traveled to Pasadena, Texas, on two occasions at the invitation of the two men. On March 7, 1989, during his second trip, McMullen received twelve trash bags of marijuana, weighing a total of 302 pounds, from the two men. After loading the marijuana into his car and beginning the return trip to Arkansas, McMullen was arrested by Pasadena police officers and later charged with criminal offenses by the United States of America and the State of Arkansas.\nMcMullen pleaded guilty, for purposes of this appeal, to the federal offense of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute. 21 U.S.C. \u00a7 846 and 21 U.S.C. \u00a7 841(a)(1).\nSection 846 provides that \u201c[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both . . .,\u201d and section 841(a)(1) provides in pertinent part that \u201c. . . it shall be unlawful for any person knowingly or intentionally \u2014 (1) to . . . possess with intent to . . . distribute ... a controlled substance . . . .\u201d\nArkansas Code Ann. \u00a7 5-64-401 (a)(l)(iv) (1987) addresses the State charge of possession of less than ten pounds of marijuana with intent to deliver and provides, in pertinent part, as follows:\n(a) . . . [i]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.\n(1) Any person who violates this subsection with respect to:\n* * * *\n(iv) A controlled substance classified in Schedule VI shall be guilty of a felony ....\nThe conduct upon which the federal conviction was based was McMullen\u2019s activities in Pasadena, Texas, on March 7,1989, in conjunction with the two men and relating to the 302 pounds of marijuana seized in McMullen\u2019s car. In contrast, the Arkansas charge relates to McMullen\u2019s conduct on January or February of 1989 when he took possession of the one-quarter pound of marijuana from the two men in Randolph County, Arkansas.\nConsequently, the underlying conduct upon which the federal conviction and the Arkansas charge are based is not the same, and the former jeopardy protection provided in section 5-1-114 does not apply.\nThe State charge of public servant bribery is addressed in Ark. Code Ann. \u00a7 5-52-103 (1987) and provides, in pertinent part, as follows:\n(a) A person commits public servant bribery if:\n(1) He offers, confers, or agrees to confer any benefit upon a public servant as consideration for the recipient\u2019s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant; or\n(2) He solicits, accepts, or agrees to accept any benefit, the conferring of which is prohibited by this section.\nThe conduct underlying this Arkansas charge is that of McMullen\u2019s acceptance in January or February of 1989, while employed as a state police officer, of one-quarter pound of marijuana in exchange for not arresting the two men for possession of marijuana or issuing a ticket for speeding in Randolph County, Arkansas.\nAgain, this conduct is not the same as the conduct underlying the various federal convictions relating to conspiracy to possess and possession of more than 100 kilograms of marijuana with intent to distribute because McMullen\u2019s underlying conduct for the federal conviction occurred on March 7, 1989, in Pasadena, Texas, in conjunction with the two men and relating to the 302 pounds of marijuana seized in McMullen\u2019s car.\nConsequently, McMullen\u2019s federal convictions will not prevent, on the grounds of former jeopardy, the State from proceeding with its prosecution of the charges against McMullen.\nReversed and remanded for trial.\nGlaze, J., concurs.\nDudley and Newbern, JJ., concur in part and dissent in part.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. While I concur with the majority\u2019s holding that McMullen\u2019s federal convictions do not bar the state, on the grounds of double jeopardy, from proceeding with its prosecution of the charges against McMullen, I do so on other grounds.\nThe majority contends that McMullen cannot prevail on his double jeopardy affirmative defense because the federal convictions and the state charges are not based on the same conduct. In other words, the majority concludes that the federal convictions were based on McMullen\u2019s activities in Pasadena, Texas, during March of 1989, while the state charges are based on McMullen\u2019s activities in Randolph County, Arkansas, during a traffic stop in January or February of 1989.\nThe trial court\u2019s order granting McMullen\u2019s motion to dismiss only discusses McMullen\u2019s federal conviction of conspiracy to possess more than 100 kilograms of marijuana with the intent to distribute. And, as shown from the following colloquy between the federal judge and McMullen during the plea arrangement, the federal conviction for conspiracy was based on the same conduct as the Arkansas charges:\nNow, the Government has charged, count one, a conspiracy. That is, during the months of January through Marijuana [sic] (March) of1989, here in Houston and in other places, the individuals named in this indictment, Jesus Rodriguez, Francisco Gonzales, Irene Gonzales, Rutilio Tinajero, you and Jackie McMullen, unlawfully, willfully and knowingly and intentionally conspired, combined, confederated and agreed with each other and with the other persons to possess with the intent to distribute, and to distribute, more than a hundred kilograms of marijuana . . .\n* * *\nMr. McMullen was talked to by Special Agent Cummins of D.E.A. and during that discussion indicated, among other things, that two months prior to what. . . would have been March 7th, he had stopped in Randolph County, Arkansas, had talked to the people who subsequently were identified as Francisco Javier Gonzales and Jesus Vera. The gist of that conversation I don\u2019t suppose is of any great moment aside from the fact that during that car stop he seized roughly a half a kilo of marijuana from them, and during the discussion he had with them, (they) indicated to (him) if (he\u2019d) come to Houston, (they) could make (him) rich.\nHe was given a telephone number . . . There were several telephone calls involving these folks back and forth . . . (Emphasis added.)\nObviously, evidence of McMullen\u2019s first meeting with the drug dealers in Randolph County, Arkansas, was used as part of the evidence for the federal conspiracy conviction. Therefore, the federal conviction for conspiracy and the state charges are based on the same conduct.\nI believe that this case should be reversed on the only argument made by the state \u2014 that the harm sought to be prevented and the elements of the federal charges for public servant bribery and possession with intent to deliver are different. Instead of reversing on this argument, the majority chooses an argument that not only is wrong but is not argued by the state.\nMcMullen was also convicted of two other federal crimes involving possession of more than 100 grams of marijuana but the basis of the trial court\u2019s ruling is limited to McMullen\u2019s conspiracy conviction.\nFrom the facts of this case, it is clear that the record contains an obvious mistake which I have corrected parenthetically.", "type": "concurrence", "author": "Tom Glaze, Justice," }, { "text": "David Newbern, Justice,\nconcurring in part and dissenting in part. The majority opinion ignores the arguments presented in this appeal and concludes the events charged in the Randolph County Circuit Court are separated in time from those of which McMullen was convicted in the United States District Court in Texas, and for that reason, the federal conviction does not bar the trial in an Arkansas court. In my view, the majority of the members of the court have incorrectly analyzed this case.\nThe transcript of the hearing in the federal court at which McMullen pleaded guilty to five counts showed that the judge, in discussing count one, which was the charge of conspiracy to possess marijuana with intent to distribute, stated the acts were charged to have occurred \u201cduring the months of January through marijuana of 1989, here in Houston and in other places. . . .\u201d The word \u201cmarijuana\u201d is obviously an error which probably occurred in the transcription of the court\u2019s remarks. (The copy of the transcript we have been furnished shows that the transcription is a \u201ccomputer aided\u201d one.) The important point, however, is that the charge covered acts as early as J anuary, 1989. That alone would not necessarily show that the alleged acts of McMullen, occurring in Arkansas in January or February of that year were included in the federal conviction. But there is more.\nAfter reciting the counts of the federal indictment to McMullen, the federal court asked the prosecutor what the evidence showed \u201cwith regard just to Mr. McMullen.\u201d The response included the following:\nMr. McMullen was talked to by Special Agent Cummins of D.E.A. and during that discussion indicated, among other things, that two months prior to what would have been March \u2014 yes, which would have been March 7th, he had stopped the van in Randolph County, Arkansas, had talked to the people who subsequently were identified as Francisco Javier Gonzalez and Jesus Vera.\nThe gist of that conversation I don\u2019t suppose is of any great moment aside from the fact that during that car stop he seized roughly a half a kilo of marijuana from them, and during the discussion he had with them he indicated to them if they\u2019d come to Houston, he could make them rich.\nDespite the somewhat garbled remarks of the prosecutor, it is apparent that the federal conspiracy conviction included the conduct which occurred in Arkansas for which McMullen is charged in Randolph County. The state argues that the statement about the Arkansas activities of McMullen was put on record only as background information. We have no way of knowing that, and as it constituted evidence of acts which it cannot be said were not part of the whole conspiracy, we will consider it as such.\nThat brings us to the principal arguments made by the parties in this case. The state contends that the trial court erred by determining the federal offense by reference to the government\u2019s presentation of evidence of McMullen\u2019s Arkansas activities as part of the conspiracy. The test is said to be an \u201celements\u201d rather than an \u201cevidence\u201d test, and the state argues that the offenses of public servant bribery and possession of less than ten pounds of marijuana with intent to deliver contain elements different from those composing the federal conspiracy charge.\nIn Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979), the facts were similar to those here. Federal and state prosecutions arose out of a series of events surrounding the receipt in Arkansas and transportation to Tennessee of stolen firearms. We wrote:\nAt one time the same conduct could give rise to identical federal and state offenses, because the offenses were deemed to have been committed against different sovereigns, but that view no longer prevails. Our General Assembly, in enacting the Criminal Code of 1976, provided that when the same conduct constitutes an offense within concurrent federal and state jurisdiction, a federal conviction or acquittal is an affirmative defense to a state prosecution unless:\n(a) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil. [Emphasis added.]\nThat language is consistent with Ark. Code Ann. \u00a7 5-1-114(1)(A)(1987) which provides for a defense based on a federal conviction unless the offense of which the accused was formerly convicted \u201cand the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil. . . .\u201d\nIt does not constitute double jeopardy to convict a person of a conspiracy to commit an offense and then to try him for having committed the offense with respect to which he conspired. Pereira v. United States, 347 U .S. 1 (1954); Sealfon v. United States, 332 U.S. 575 (1948). A state may try one for the same offense of which he has been convicted in a federal court on the basis of the separate sovereignty doctrine unless the state has narrowed its power to do so as our general assembly has done by enacting \u00a75-1-114. See Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977). The next phase of the issue becomes whether the offenses charged in Randolph County and the conspiracy conviction \u201ceach\u201d have at least one different element.\nNo doubt the conspiracy conviction required proof of an element not required in either of the Arkansas charges. It required the knowing, willful combination, conspiracy, or agreement with other persons. The Arkansas possession with intent to deliver charge contained the element of possession which was not an element of the federal conspiracy charge. The Arkansas public servant bribery charge contained several elements not contained in the federal conspiracy charge, e.g., that it be shown that McMullen was a public servant. See Ark. Code Ann. \u00a7 5-52-103(a)(1) (1987). The harm or evil addressed by the statute is corruption of public officials which is not an element of the federal conviction.\nThe last question to be answered is whether the federal conspiracy to possess conviction and the Arkansas possession with intent to deliver charge were intended to address the same harm or evil.\nAs pronounced by the federal judge, the count of which McMullen stands convicted was conspiracy \u201cto possess with the intent to distribute, and to distribute, more than a hundred kilograms of marijuana, which is a schedule one controlled substance.\u201d I can see no difference between the obvious harm or evil addressed in that charge and the harm or evil addressed in Ark. Code Ann. \u00a7 5-64-401(a)(l)(iv) (1987) which makes it unlawful to possess a controlled substance with intent to deliver. In both cases it is apparent to me that the harm or evil addressed is the distribution of, in this case, marijuana.\nThe decision barring trial on the public servant bribery charge should be reversed, and the decision barring trial on the charge of possession of less than 10 pounds of marijuana with intent to deliver charge should be affirmed.", "type": "concurring-in-part-and-dissenting-in-part", "author": "David Newbern, Justice," } ], "attorneys": [ "Steve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellant.", "Riff el, King and Smith, by: Kirby Riffel, for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Jack McMULLEN\nCR 90-13\n789 S.W.2d 715\nSupreme Court of Arkansas\nOpinion delivered May 14, 1990\nSteve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellant.\nRiff el, King and Smith, by: Kirby Riffel, for appellee." }, "file_name": "0252-01", "first_page_order": 278, "last_page_order": 287 }