Separate Convictions for Conspiracy to Distribute Different Drugs Violates Double Jeopardy, Could Support Ineffective Assistance Claim

US v. Slocum: In 2013, Slocum was charged with (among other things) one count of conspiracy to distribute heroin and one count of conspiring to distribute oxycodone, both occurring “from before May 2012 through October 2013, at or near Charleston, Kanawha County, West Virginia.” He went to trial, where the Government argued to the jury that Slocum recruited addicts who sold “heroin and pills” for him, many of which testified at trial. It was, in the Government’s words, “a big drug conspiracy.” Slocum was convicted on all counts and received concurrent sentences of 360 months and 240 months on the conspiracy counts.

In 2017, Slocum filed a 2255 motion alleging he had received ineffective assistance of counsel when trial counsel failed to object to this convictions and sentences on both conspiracy counts as violating Double Jeopardy because his case involved a single conspiracy. The district court concluded Slocum was “clearly not entitled to relief” and denied the motion, without having an evidentiary hearing on the underlying ineffective assistance of counsel claim, holding that there were two separate conspiracies under the Blockburger analysis.

On appeal, the Fourth Circuit reversed the denial of Slocum’s 2255 motion and remanded with instructions to hold an evidentiary hearing. The court concluded that the Blockburger test, with its focus on elements and comparing offenses to another, “is a poor fit for a double jeopardy challenge . . . which concerns two counts alleging distinct violations of the same statute.” Instead, the court applied a test from a prior Fourth Circuit case, MacDougall, which involves a “flexible consideration of five factors” examining the totality of the circumstances. Reviewing the evidence in this case, the court concluded that the “level of overlap in the facts underlying the two charged conspiracies leads us to conclude that there was one overall agreement with multiple objects.” While the court concluded that Slocum had a Double Jeopardy claim, it did not reach the underlying vehicle for the district court to review that claim – whether trial counsel was ineffective in the first instance by failing to raise it. The court remanded with instructions to hold an evidentiary hearing into trial’s decision not to make such an objection.