Opinion
Case No.: 91-CR-80936-D12
January 23, 2001
OPINION
This matter is currently before the Court on remand from the United States Court of Appeals for the Sixth Circuit for resentencing and for consideration regarding the viability of Defendant's continuing criminal enterprise ("CCE") conviction under Richardson v. United States, 526 U.S. 813, 199 S.Ct. 1707, 143 L.Ed.2d 985 (1999). On June 2O, 2000, Defendant filed a "Motion to Vacate Judgment Made Pursuant to Remand Order," seeking a new trial. Oral argument regarding Defendant's motion was heard on January 4, 2001. For the reasons that follow, Defendant's "motion to vacate" shall be denied.
This Opinion shall address only the continued viability of Defendant's CCE conviction after Richardson.
Federal law prohibits any person from "engag[ing] in a continuing criminal enterprise." 21 U.S.C. § 848(a). In general, a "continuing criminal enterprise" is defined as "a continuing series of violations of [the federal narcotics statutes] . . . which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and . . . from which such person obtains substantial income or resources." Id. § 848(c). The Sixth Circuit has held that a "continuing series" requires at least three violations. See Murr v. United States, 200 F.3d 895, 905 (6th Cir. 2000); United States v. King, 169 F.3d 1035, 1040 (6th Cir. 1999).
In Richardson, the Supreme Court held that with respect to a CCE charge, the jury must agree "unanimously about which specific violations make up the `continuing series of violations.'" Richardson, 526 U.S. at 815, 119 S.Ct. at 1709. According to the Supreme Court, "a jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some `continuing series of violations' but also that the defendant committed each of the individual `violations' necessary to make up that `continuing series.'" Id. "[U]namity in respect to each individual violation is necessary." Id. at 816, 119 S.Ct. at 1709.
In the wake of Richardson, district courts are now required to instruct the jury that they must "unanimously agree about which narcotics violations constitute the `continuing series' of violations for continuing criminal enterprise purposes." Murr, 200 F.3d at 904. Furthermore, in Murr, the Sixth Circuit determined that Richardson "involves the substantive construction of a criminal statute" and therefore, applies retroactively. Id. at 906.
It is undisputed that the Court did not instruct the jury in this action that they were required to unanimously agree with respect to the three or more violations constituting the "continuing series" for purposes of Defendant's CCE conviction. ( See Gov't Resp., Tr. Vol. XXVIIIa at 23-26). In fact, with respect to the "continuing series" element, the Court stated only: "The phrase `continuing series of violations' means three or more violations of the federal narcotics laws which are in some way related to one another." ( Id. at 25). In light of Richardson, this Court's jury instructions were erroneous. However, as the Sixth Circuit confirmed in Murr, the inquiry does not end here. Murr, 200 F.3d at 906. Rather, the Court must determine whether this error was harmless. Id. See also United States v. King, 169 F.3d 1035, 1041 (6th Cir. 1999) (applying harmless error doctrine to same issue).
Under a harmless error analysis, the Court must determine whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Id. If the Court "is sure that the error had no or very slight effect or influence on the jury's decision, the verdict and judgment must stand." Id. "`[W]here an error is not of constitutional dimension, it is harmless unless it is more probable than not that the error materially affected the verdict.'" King, 169 F.3d at 1041.
The Government asserts that this Court should not entertain Defendant's motion because he did not object to the jury instructions at trial and such error does not amount to plain error. (Gov't Resp. at 2) (citing FED.R.CR.P. 30). This matter, however, has been specifically remanded to this Court for consideration in light of Richardson. Moreover, with respect to retroactive laws such as this, the Sixth Circuit has held that a failure to object at trial does not necessarily bar review. See Rattigan v. United States, 151 F.3d 551, 555-56 (6th Cir. 1998) (discussing Supreme Court's retroactive decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)).
The Government contends that the erroneous jury instructions were harmless because the jury unanimously convicted Defendant of five felony drug counts in the superseding indictment and therefore, it is clear that the jury unanimously agreed that Defendant had committed three or more drug violations as required by Richardson. (Gov't Resp. at 3-4). With respect to the counts listed as predicate violations supporting Defendant's CCE charge in Count Two of the superseding indictment, Defendant was found guilty of conspiracy to possess with intent to distribute and distribution of heroin and cocaine, 21 U.S.C. § 846, 841 (Count One), distribution of a controlled substance, aiding and abetting, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Three), distribution of a controlled substance, aiding and abetting, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Four), possession with intent to distribute, 21 U.S.C. § 841(a)(1) (Count Ten), and unlawful use of a telephone, 21 U.S.C. § 843(b) (Count Forty-Five). In addition, although not listed as a predicate violation in support of Defendant's CCE charge, the jury also found Defendant guilty on Count Forty-Seven, unlawful use of a telephone, 21 U.S.C. § 843(b).
Count Two of the superseding indictment actually listed the predicate CCE violations as Counts One, Three, Four, Eight, Ten, Forty, Forty-Two, Forty-Five, and Forty-Nine. Count Forty-Two, however, was dismissed due to a Rule 29 motion. Furthermore, Counts Eight and Forty-Nine appear to be a clerical, error on behalf of the Government as those counts did not pertain to Defendant, and Defendant was found not guilty with respect to Count Forty. Therefore, for purposes of this motion, the Court shall not consider Counts Eight, Forty, Forty-Two, or Forty-Nine.
The jury was specifically instructed that it had to unanimously agree as to Defendant's guilt with respect to each particular count in order to return a guilty verdict thereon. (Gov't Resp., Tr. Vol. XXVIIIa at 44-45). Although Count One has since been vacated, it is clear from the guilty verdicts on the other five counts (i.e., Counts Three, Four, Ten, Forty-Five, and Forty-Seven) that the jury unanimously agreed that Defendant had committed more than three felony narcotics violations as required under the CCE statute. Therefore, this Court is satisfied that its erroneous jury instructions were harmless.
Count One was vacated on a previous remand from the Sixth Circuit.
Addressing a substantially similar scenario in Murr, the Sixth Circuit found that the district court's failure to instruct the jury in accordance with Richardson was harmless error because the jury had nonetheless found the defendant guilty of each of the ten counts asserted as the predicate violations under the CCE statute. See Murr, 200 F.3d at 906; see also United States v. Long, 190 F.3d 471, 476 n. 3 (6th Cir. 1999); King, 169 F.3d at 1041. According to the Sixth Circuit, the jury's decision regarding the predicate violations "`ensure[d] that the concern at the core of the Richardson decision — namely, that jurors might convict on the basis of violations for which there was non-unanimty — is not present.'" Id. (quoting United States v. Escobar-de Jesus, 187 F.3d 148, 162 (1st Cir. 1999)).
Furthermore, given the evidence adduced at trial, in finding Defendant guilty of Counts Three, Four, Ten, Forty-Five, and Forty-Seven the jury necessarily made factual findings establishing that these violations were related to one another. Counts Three and Four charged that Defendant aided. and abetted the distribution of heroin in the Eastern District of Michigan on or about February 23, 1990, and again on or about March 21, 1990. Count Ten charges that Defendant was in the possession of heroin on or about May 3, 1990. Counts Forty-Five and Forty-Seven charge that on or about November 11, 1990, and November 13, 1990, respectively, Defendant used a telecommunication facility in facilitating a drug transaction. At trial, the Government presented substantial evidence that these violations were committed as part of a wide-ranging conspiracy headed by Defendant.
Although Count One has since been vacated for other reasons, it is obvious from the jury's guilty verdict regarding the conspiracy charged in Count One that the jury found the Government's conspiracy theory to be true. Therefore, the Court is satisfied that its error in instructing the jury was harmless. See Murr, 200 F.3d at 906-07 (holding that district court's failure to instruct jury in accordance with Richardson was harmless error because "the jury's guilty verdicts on Counts 2 through 11 required the jurors to unanimously agree that Petitioner had committed at least three predicate narcotics violations and that these violations were related to one another because they were all part of the cocaine distribution conspiracy") (discussing King, 169 F.3d at 1041).
In support of his motion, Defendant has asserted a number of other errors that are unrelated to the Court's jury instruction regarding the CCE charge. As this action was not remanded for consideration regarding these other errors, nor is there any indication that Defendant has challenged such errors before this time, Defendant has waived such errors. See FED.R.CR.P. 30. In any event, Defendant's arguments are without merit and do not entitle Defendant to the relief he seeks.
Defendant first contends that it was improper for the Government to submit Count One as a predicate violation in support of Defendant's CCE charge. (Def.'s Br. at 5). As previously noted, Count One was subsequently vacated. However, even if Count One is not considered, it is clear that the jury returned guilty verdicts with respect to three or more federal narcotics violations, i.e., Counts Three, Four, Ten, Forty-Five, and Forty-Seven.
Next, Defendant contends that as a Title 18 offense, aiding and abetting, 18 U.S.C. § 2, is not a valid predicate violation under the CCE statute and therefore, Counts Three and Four should not have been submitted to the jury as predicate violations. (Def.'s Br. at 5-6). In support of his argument, Defendant cites authority from the Fourth and Fifth Circuits. Defendant, however, has misinterpreted such authority. Such authority stands only for the proposition that the Government cannot convict a defendant on a substantive CCE charge based upon a theory that the defendant aided and abetted another in conducting a CCE; not that a substantive narcotics charge based upon a theory of aiding and abetting cannot constitute a predicate violation under § 848(c). See State v. Walker, 142 F.3d 103, 113 (2d Cir. 1998) (stating that "aiding and abetting liability does not apply to violations of § 848(a) and (c)"); United States v. Benevento, 836 F.2d 60, 71-72 (2d Cir. 1987) (holding that it was error for district court to instruct jury that it could find defendant guilty of CCE if he aided and abetted another in conducting a CCE); United States v. Amen, 831 F.2d 373, 381-82 (2d Cir. 1987) (holding that defendant cannot be convicted under CCE statute based upon theory that defendant aided and abetted another in a CCE).
In United States v. Ricks, 776 F.2d 455, 463 (4th Cir. 1985), cited by Defendant in support of his argument, the Fourth Circuit did state that "since § 848(b) refers to `violations of this subchapter or subchapter II of this chapter [ 21 U.S.C. § 801-966],' violations of 18 U.S.C. § 2 and 1952 do not qualify as predicate felonies for a CCE charge." However, a close examination of the Fourth Circuit's decision in Ricks clearly indicates that the court meant that a charge of aiding and abetting ( 18 U.S.C. § 2) another in violating the Travel Act ( 18 U.S.C. § 1952) is not a predicate violation under the CCE statute. This conclusion is evident from the fact that the court specifically excluded the defendant's charge of aiding and abetting another in violating the Travel Act as a predicate violation under the CCE statute, but then specifically relied upon the defendant's three charges of aiding and abetting ( 18 U.S.C. § 2) the distribution of narcotics (28 U.S.C. § 841) in determining that the defendant had no valid argument in regard to overturning his CCE conviction. See Ricks, 776 F.2d at 463; see also United States v. Webster, 639 F.2d 174, 181 (4th Cir. 1981) (finding that aiding and abetting another in violating the Travel Act does not constitute a predicate violation under CCE statute).
Moreover, in Murr, the Sixth Circuit specifically relied upon the fact that the defendant had been convicted often substantive counts of possession with intent to distribute and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, in upholding the defendant's CCE conviction. See Murr, 200 F.3d at 897, 906-07. Therefore, the Court is satisfied that it was not improper to submit Counts Three and Four, which were based upon a theory of aiding and abetting, to the jury as predicate violations under the CCE statute.
Next, Defendant contends that Counts Three and Four should not have been used as predicate violations under the CCE statute because the Court gave an erroneous instruction on aiding and abetting. (Def.'s Br. at 6). With respect to aiding and abetting, the Court instructed the jury:
[F]or you to find the Defendant guilty, it is not necessary for you to find that the Defendant actually committed the crime itself. It is enough if he intentionally helped someone else commit the crime. We call this aiding and abetting.
To find a defendant guilty of aiding and abetting, you must be convinced that the Government has proven each and every one of the following elements beyond a reasonable doubt; first, that the crime was committed; second, that a defendant helped commit the crime charged; third, that such defendant intended to help commit the crime charged.
It is not enough if the Defendant knew about the crime or was there to help. He must have intentionally done something to help.
It is not necessary to approve — to prove that the accused physically did every act constituting the offense charged. As a general rule, whatever any person is legally capable of doing himself, he can do through another as his agent. So if the acts or conduct of an employee or other agent are willfully ordered or directed, or willfully authorized or consented to by the accused, then the law holds the accused responsible for such acts or conduct the same as if he personally — the same as if personally done by the accused.
(Gov't Resp., Tr. Vol. XXVIIIa at 27-28).
Defendant contends that the above instruction is erroneous because "merely acquiesce [sic] is not sufficient to convict on aiding and abetting." (Def.'s Br. at 6) (emphasis in original). As an initial matter, the Count notes that Defendant did not object to such instruction during trial and in fact, trial counsel for defendant specifically approved of such instruction. ( See Gov't Resp., Tr. Vol. XXVIII at 6). Furthermore, after examining this portion of the instruction as a whole, it is clear that with respect to aiding and abetting, the Court specifically instructed the jury that "[i]t is not enough if the Defendant knew about the crime or was there to help. He must have intentionally done something to help." This statement clearly indicated that mere acquiescence was not sufficient under an aiding and abetting theory.
It appears that Defendant actually contests the Court's "Agent of the Defendant" instruction set out in the last section of the instructions set forth above. This instruction, however, in no way conflicts with the Court's instruction that under a theory of aiding and abetting, it is not sufficient that Defendant knew about the crime or was there to help; rather Defendant must have intentionally done something to help. Therefore, Defendant's argument does not entitle him to the relief he seeks.
Defendant also contends that his conviction on Count Forty-Five, unlawful use of a telephone in violation of 21 U.S.C. § 843(b), should not have been used as a predicate violation under the CCE statute because it "is unrelated due to lack of evidence showing any income derived or any supervising or managing of anyone." (Def.'s Br. at 7). Defendant, however, misreads the CCE statute. 21 U.S.C. § 848(c) requires that the defendant "obtain substantial income or resources" from the "continuing series of violations." There is no requirement that the defendant obtain substantial income from each predicate violation. Furthermore, the defendant must supervise or manage five or more other persons in completing a "series of violations," not each predicate act, i.e., not each phone call.
Defendant next contends that the Court erred by not advising the jury that Counts Twelve and Forty-Two were dismissed pursuant to a Rule 29 motion. (Def.'s Br. at 8). Count Twelve, however, was never presented as a predicate violation underlying Defendant's CCE charge. Furthermore, Count Forty-Two was redacted from the superseding indictment submitted to the jury. Therefore, this Court has no reason to believe that its failure to inform the jury regarding these counts in any way affected the jury's unanimous decisions with regard to Counts Three, Four, Ten, Forty-Five, and Forty-Seven. Defendant also raises a significant amount of speculation regarding what the jury "might have done" in reaching their verdict with respect to the CCE charge. ( Id. at 10). It is clear, however, that the jury found Defendant guilty on four of the counts listed as predicate violations under Defendant's CCE charge, and five federal narcotics violations in all. Therefore, the Court is satisfied that its error in instructing the jury with respect to the CCE charge was harmless.
The Court also notes that Counts Twelve and Forty-Two were omitted from the verdict form submitted to the jury.
Conclusion
For the reasons stated above, Defendant's "motion to vacate" shall be denied. An Order consistent with this Opinion shall issue forthwith.