Petition — Graziano v. United States

NO, ____

Supreme Court of the United States

OCTOBER TERM, 1983

BRUCE GRAZIANO,

Petitioner,

v.

UNITED STATES OF AMERICA.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Epwarp T. M. Garuanp

Srzven H. Sapow

Donat F. Samvn.

GARLAND, NUCKOLILS & CATTS, P.C.

92 Luckie &., N.W.

Atlanta, Ge. 30303

>, J

QUESTION PRESENTED FOR REVIEW

Whether the statutory requirement of the Continuing

Criminal Enterprise statute (21 U.S.C. § 848) that a de-

fendant obtain substantial income or resources through

the commission of three predicate drug offenses is satisfied

by proof only that the defendant possessed drugs but

obtained no money or resources.

, Sam

PARTIES TO PROCEEDINGS BELOW

In addition to the petitioner, Bruce

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CONTENTS

QUESTION PRESENTED FOR REVIEW........ i

I. WHETHER THE STATUTORY UIRE-

MENT OF THE CONTINUING CRIMINAL

ENTERPRISE STATUTE (21 U.S.C. § 848) ‘

THAT A DEFENDANT OBTAIN 8

STANTIAL INCOME OR RESOURCES

THROUGH THE COMMISSION OF THREE

PREDICATE DRUG OFFENSES IS SATIS-

FIED BY PROOF ONLY THAT THE

DEFENDANT POSSESSED DRUGS BUT

OBTAINED NO MONEY OR RESOURCES?

PARTY TO PROCEEDINGS BELOW............ ii

TABLE OF AUTHORITIES.................... V, Vi

EPO CLEC CVA tas veces nericcevden 1

CO See ere ee 2

STATUTORY PROVISIONS..................... 2

STATEMENT OF THE CASE................... 2

(i) PROCEEDINGS BELOW................. 2

(ii) STATEMENT OF THE FACTS............ 3

REASONS FOR GRANTING THE WRIT........ 4

ARGUMENT

THE STATUTORY UIREMENT OF THE

CONTINUING CRIMINAL ENTERPRISE

STATUTE (21 U.S.C. § 848) THAT A DEFEN-

DANT OBTAIN SUBST IAL INCOME OR

RESOURCES THROUGH THE COMMISSION

OF THREE PREDICATE DRUG OFFENSES

IS NOT SATISFIED BY PROOF ONLY THAT

DEFENDANT POSSESSED DRUGS BUT OB-

TAINED NO MONEY OR RESOURCES....... 4

iii

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f he

Pies.

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a ee ee OT ee ee Me eee eee (Oe ER Bs eee Nee ene Y

CONTENTS (Continued)

CURIOS 5 0 esis fabs 6401s 06-9 y toate ke

CERTIFICATE OF SERVICE................... 15

ee ee ee Se ks eee ee

TABLE OF AUTHORITIES

Page

Cases:

Addison v. Holly Hill Fruit Products, Inc.,

Dis ss awchccccecceces 12

Jeffers v. United States, 482 U.S. 137 (1977)......... 10

Philbrook v. Glodgett, 421 U.S. 707 (1975)........... 12

Zeigler Coal Co. v. Klepper, 536 F.2d 398

“DC. Oa 12

United States v. Chagra, 669 F.2d 241

Sioa Rin Os Gc 4 Cuvee 0's ov bic 10, 11

United States v. Dinerstein, 362 F.2d 852

i veces ped sewees 12

United States v. Gantt, 617 F.2d 831

i ahaa Sa hvu se ccceuscscsess 11

United States v. Bruce Graziano, 710 F.2d 691

TRESS MA Se 1

United States v. Jeffers, 532 F.2d 1101, 116

EE Sy MS Nee ne re ee 10

United States v. Losada, 674 F.2d 167

Te Te ee Os aces cogeeus 10

United States v. Manfredi, 488 F.2d 588

te Mat Sin CS iia W'ce-< ede vb sce 10

United States v. Phillips, 664 F.2d 971

tan a ae 11, 12

United States v. Raffone, 693 F.2d 1343

Ee oe ic UN esse ba bed sce cseccues 13

United States v. Sisca, 503 F.2d 1337

CME S , ood a cney ¥Gbgbleb\s sopvcvesee’s 10, 11

ST MMIII SY 6 0 asco edb ed wi ces cece yeevesons

United States v. Webster, 639 F.2d 174

PE RS 5 Voieuis one h Cnbivianvissoscce cn 2a

TABLE OF AUTHORITIES (Continued)

Page

Statutes:

2 oes Sar rare 1, 2, 3, 4, 5, 9, 12, 13

28 U.S.C. § 1254(1)............ eet arr gn eo 2

Other Authority: |

H.R. Rep. No. 1444, 91st Cong. 2d Sess. reprinted

in 1970 U.S. Code Cong. & Ad. News 4566,

Ee I CR a sare 6 osw vin Bee oy valvivd’. 6

S.Rep. No. 613, 91st Cong., Ist Sess. (1969)........ 7

Conf. Rep. No. 91-1503, reprinted in 1970 U.S.

Code Cong. & Ad. News 4566, 4659.............. 7

H.R. 18583, Dingell Amendment, 1970 U.S. Code

Cong. & Ad. News 4566, 4650-51............. 6, 7,8

1970 U.S. Code Cong. & Ad. News 4566, 4651.... 8,9

2A SUTHERLAND STATUTORY CONSTRUC-

TION, § 46.06 (1973)............. cc cece eee eee 12

Webster’s New Collegiate Dictionary........... 6, 9, 13

BOOS eset

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

BRUCE GRAZIANO,

Petitioner,

v.

UNITED STATES OF AMERICA.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioner, Bruce Graziano, respectfully asks that

a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Eleventh Circuit.

OPINIONS BELOW

On July 25, 1983, the United States Court of Appeals

for the Eleventh Circuit issued. its decision in United

States v. Bruce Graziano, 710 F.2d 691 (11th Cir. 1983)

(see appendix) affirming the conviction of petitioner on

charges of violating 21 U.S.C. § 848, while vacating his

conspiracy cr viction. The trial was held in the Brunswick

Division of the Southern District of Georgia.

1

2

A petition for rehearing en banc and for panel rehearing

was filed on August 29, 1983. It was denied without

opinion, and the mandate was issued on November 21,

1983.

JURISDICTION

Jurisdiction for this appeal lies under Title 28 U.S.C.

§ 1254(1) in that the petition seeks review of a case in the

Court of Appeals.

STATUTORY PROVISIONS

28 U.S.C. § 848(b) provides:

(b) [A] person is engaged in a continuing criminal

enterprise if —

(1) He violates any provision of this subchapter or

subchapter II of this chapter, the punishment for

which is a felony, and

(2) Said violation is a part of a continuing series of

violations of this subchapter or subchapter II of this

chapter —(A) 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 pa nteti ged ition, or any other posi-

tion of management, and (B) from which such per-

son obtains substantial income or resources.

STATEMENT OF THE CASE

(i) Proceedings Below

Petitioner was convicted on May 17, 1981, of eleven

counts relating to a drug smuggling operation. He was

sentenced to thirty years and $100,000 fine on count one,

the continuing criminal enterprise (21 U.S.C. § 848) of-

fense. The remaining sentences, totaling 86 years, were

to run concurrent with the thirty-year term.

es -

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s ene dee, Se ee a ETT 7

: 3

The Court of Appeals for the Eleventh Circuit affirmed

the conviction, except as to Count XI, which charged a

conspiracy to possess with intent to distribute marijuana.

In connection with the continuing criminal enterprise

offense, the Court of Appeals acknowledged that there

was no evidence that the defendant obtained any income

or resources apart from the drugs themselves through his

drug offenses. The Court held, however, that the drugs

were sufficient to satisfy the “substantial income or re-

sources” requirement of 21 U.S.C. § 848.

(ii) Statement of the Facts

For purposes of this appeal, there are no disputed facts.

The facts as set out in the Eleventh Circuit decision are

sufficient :

“The government’s evidence showed that Graziano

occupied a supervisory position in three separate inci-

dents. First, the evidence indicated that Graziano directed

the attempted importation of approximately 40,000

pounds of marijuana and that this attempted offload was

thwarted by the Coast Guard’s capture of the mother

ship. Second, the evidence detailed Graziano’s participa-

; tion in an attempt to import 60,000 to 80,000 pounds of

marijuana. This offloading operation never took place.

Third, the evidence outlined the arrangements which

Graziano had made for transporting marijuana from a

stashhouse in South Carolina to New York City. As it

turned out, Graziano had engaged undercover agents to

drive the delivery truck. Four thousand eight hundred

pounds of marijuana were loaded into the truck, but since

the undercover agents drove the delivery truck, this 4

_>peration also ended in failure.”’ 4

4

REASONS FOR GRANTING THE WRIT

Introduction

The decision of the Eleventh Circuit has eliminated one

of the four basic elements of the continuing criminal

enterprise offense: The requirement that the defendant

obtain “substantial income or resources” from his viola-

tion of a drug offense. The Congressional intent is clearly

expressed in the history of the legislation: The defendant

must obtain some resource other than the contraband it-

self to satisfy this element of the offense. No other Court

of Appeals has ventured to expand the coverage of 21

U.S.C. § 848 as has the Eleventh Circuit in this case.

Neither the caselaw, the legislative history, nor funda-

mental principles of statutory construction support the

decision of the Court of Appeals. If the decision here is

not reviewed, the government will never have to prove

the obtention of substantial income or resources in any

continuing criminal enterprise case as long as it has proven

three violations of the federal drug laws. Thus, 21 U.S.C.

§ 848(b)(1)(B) becomes a nullity, a redundant and super-

fluous section of the Act.

ARGUMENT

THE STATUTORY REQUIREMENT OF THE CON-

- TINUING CRIMINAL ENTERPRISE STATUTE (21

U.S.C. § 848) THAT A DEFENDANT OBTAIN SUB-

STANTIAL INCOME OR RESOURCES THROUGH

THE COMMISSION OF THREE PREDICATE DRUG

OFFENSES IS NOT SATISFIED BY PROOF ONLY

THAT THE DEFENDANT POSSESSED DRUGS BUT

OBTAINED NO MONEY OR RESOURCES.

5

The offense of engaging in a continuing criminal enter-

prise is defined at 21 U.S.C. § 848:

(b) [A] person is engaged in a continuing criminal

enterprise if —

(1) He violates any provision of this subchapter or

subchapter II of this chapter, the punishment for

which is a felony, and

(2) Said violation is a part of a continuing series of

violations of this subchapter or subchapter II of this

chapter —(A) 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 posi-

tion of management, and (B) from which such person

obtains substantial income or resources.

There are four basic elements of this offense, each of

which the government must prove beyond a reasonable

doubt: (1) a violation of a specified drug law (2) the viola-

tion is one of a series (three or more violations) of such

offenses; (3) the defendant occupies a management status

among five or more members of the enterprise, and (4) the

defendant obtains substantial income or resources from

his drug offenses.

The focus of this appeal is the fourth ingredient of the

offense: the obtention of substantial income or resources.

The Court of Appeals acknowledged that the evidence —

circumstantial or direct —did not justify the jury in con-

cluding that the petitioner obtained any money, to say

nothing of ‘‘substantial income,” from the drug offenses

set out in the indictment.

The court concluded, however, that the drugs them-

selves satisfied the ‘‘substantial income or resources’’ re-

quirement of § 848 in that the 4,800 pounds of marijuana

which petitioner had constructively possessed constituted

6

“substantial resources’ which the appellant obtained

from his drug law violations. This conclusion is unsup-

ported by the legislative history, the caselaw, or funda-

mental principles of statutory construction.

A. Legislative History

The Court of Appeals ostensibly endeavored to plumb

the legislative history for a definition of ‘‘resources. ”’ 710

F.2d at 698 n. 12. finding none, it resorted to Webster’s

New Collegiate Directory and decided that marijuana is

‘“‘a natural source of wealth or revenue.” Jd. at 698. The

legislative history, however, is not as barren as the Court

of Appeals suggests.

The House Report, at two separate places in the intro-

ductory pages, refers to the substantial income require-

ment and omits the term “resources.”’ H.R. Rep. No.

1444, 91st Cong. 2d Sess. reprinted in 1970 U.S. Code

Cong. & Ad. News 4566, 4570 & 4575 (1969). The first

reference (p. 4570) merely states that the defendant must

obtain ‘‘substantial income.” The second reference ex-

plains that:

The reported bill provides severe criminal penalties

for persons engaged in illicit manufacture or sale of

controlled drugs primarily for the profits to be derived

therefrom. Section 408 of the bill provides that per-

sons engaged in continuing criminal enterprises in-

volving violations of the bill from which substantial

profits are derived, shall, upon conviction, be sen-

tenced.

Clearly, the House Committee was concerned with drug

dealers who derived an economic benefit from their en-

deavors. Since the term “resources” was already in the

reported bill, H.R. 18583, the House Committee’s short-

hand reference to the requirement suggests that ‘‘re-

7

sources’ was considered to be somewhat redundant, and

certainly not a separate or alternative requirement.

The Senate Report of 8. 3246, a companion bill travel-

ing through the Senate simultaneously with H.R. 18583

sheds even more light on the nature of the “substantial

income or resources’’ requirement. Senate Bill 3246, re-

ported at S.Rep. No. 613, 91st Cong., Ist Sess. (1969),

contained a provision akin to the “substantial income or

resources”’ requirement found in H.R. 18583:

Sec. 509(f): A defendant shall be deemed involved in

a continuing criminal arg for purposes of this

section if the court determines, by a preponderance of

the evidence, that the cbaviebed : person —(1) played

a substantial role in a continuing criminal enterprise

involving any violation of this Act punishable by

ay omy wept for more than one year in concert wit

t five other persons and occupied a position of

cuutdant, a supervisory position, or other position of

management, or

(2) played a substantial role in a continuing criminal

i involving any violation of this Act punish-

able by imprisonment for more than one year and

has or has had in his own name or under his control

substantial income or resources not demonstrated to

have been derived from lawful activities or interests.

S. 3246 was ultimately abandoned, and H.R. 18583

enacted following minor amendments by the Conference

Committee. Conf. Rep. No. 91-1503, reprinted in 1970

U.S. Code Cong. & Ad. News 4566, 4659. The Senate bill

clearly envisions resources which are derived with funds

or as barter in connection with drug trade. The burden

was placed on the convicted drug defendant to prove that

his resources were obtained with legitimate funds. If the

resources could include the drugs themselves, it would be

impossible for a defendant to sustain this burden. The

8

Senate contemplated drug offenders with yachts and

seaside villas. If they could not explain how they were

obtained, the defendant would be sentenced pursuant to

the continuing criminal enterprise provisions.

H.R. 18583 initially had the same burden of proof.

However, it was amended by the Dingell Amendment.

which adopted the language ultimately enacted into law.

The Dingell Amendment was proposed because of the

concern of the House Committee with the burden of

proof falling on the defendant. It was not offered to

broaden the definition of ‘‘resources.’’ 1970 U.S. Code

Cong. & Ad. News 4566, 4650-51. Thus, the House en-

visioned the same type of resources— yachts and houses

and other ill-gotten gains—as the Senate; the House

changed the language only for the purpose of shifting the

the burden of proof back to the government. Finally, the

‘Additional Views’ offered by Congressmen John E.

Moss, John D. Dingell, Brock Adams and Bob Eckhardt

in the House Report disclose that the drugs themselves

were not contemplated as the ‘“‘resources.”’ 1970 U.S.

Code Cong. & Ad. News 4566, 4651. They posed a hypo-

thetical situation:

5 .. . that six young men attending college

reside together in a cooperative boarding house. All

of them have engaged in the practice of smoking

marijuana cigarettes and there has been, on a day or

more, free exchange between them of such forbidden

drug. Each incident of giving a cigarette to another

constitutes a felony.

They then queried whether the ‘‘substantial income or

resources’’ requirement would be satisfied if,

[the house manager] [o]n one occasion . . . purchases

$100 worth of marijuana and divides it with the other

five members, selling it to them at cost. Has he then

a

9

obtained ‘substantial income or resources”’ in con-

nection with the enterprise?

Or what if such common purchase by one of the

group is done each week? Also, does ‘‘substantial

income or resources”’ relate to profits or, on the other

hand, to mere receipt of money? Would “income or

resources” include the advantage to the house mana-

ger of obtaining his own share of the marijuana at a

cheaper rate because it was bought in bulk?

Id. at 4651-52. If, as the panel concluded here, the mari-

juana itself could be a “substantial resource’ their

ponderings would be rendered meaningless, for the house

manager would have obtained ‘‘substantial resources’’

simply because he possessed the marijuana.

Congress never envisioned that “resources” would in-

clude the proscribed drugs. Both the Senate and the

House committees made their views to the contrary clear.

The panel’s cursory review of the legislative history —

searching in vain for a definition—overlooked the reveal-

ing footprints of the bills as they marched through

Congress. Webster’s New Collegiate Dictionary may

sometimes be a persuasive source. But not in this situa-

tion. Congressional intent must be gleaned from the

legislative history, not from the dictionary.

B. Caselaw

Many courts have wrestled with the “substantial in-

come or resources’ requirement. In every case, the defen-

dant had at least constructive possession of drugs; never

has a court held that the possession of drugs alone satis-

fied the substantial income or resources requirement. The

panel opinion, for the first time, has coomes drugs to be a

“resource” under § 848.

7S

2

10

In United States v. Losada, 674 F.2d 167 (2d Cir. 1982),

although there was an abundance of evidence that the

defendant possessed substantial quantities of cocaine, the

court focused on the question of whether $2,000—the

only income shown to have been derived from drug sales —

was substantial. It was never suggested that the cocaine

itself would constitute a resource.

Other cases recognize that it was substantial financial

benefit that concerned Congress. Sce, e.y.. United States v.

Jeffers, 582 F.2d 1101, 116 (7th Cir. 1976) (Clearly,

when Congress passed the statute it intended that the

continuing criminal enterprise section reach those per-

sons who were reaping large profits from illegal drug

traffic’) rev’d in part on other grounds sub nom, Jeffers v.

United States, 432 U.S. 137 (1977); United States v. Man-

fredi, 488 F.2d 588, 603 (2d Cir. 1973) (The statute was

aimed at those who were engaged in ‘‘the continuous sale

and trafficking in heroin with a number of other people

and with substantial sums of money changing hands’’);

United States v. Sisca, 503 '.2d 1337, 1346 (2d Cir. 1974)

(“substantial economic benefit’’); United States v. Chagra,

669 F.2d 241, 257 (5th Cir. 1982) (‘‘handsome return’’);

United States v. Webster, 639 F.2d 174, 182 (4th Cir. 1981)

(substantial income or resources requirement is a ‘‘finan- o

cial limitation’).

To be sure, many cases, including some of those cited

above, have focused on the quantity of drugs —but not to

support the finding of substantial resources. Rather, the

cases detail the quantity of drugs to show that the jury

could infer from this circumstantial evidence that sub-

stantial income could have been (or was) obtained. That is,

the quantity of drugs is circumstantial evidence that the

substantial income or resources requirements was met.

11

For example, in United States v. Chagra, the court con-

cluded, ‘‘The jury is entitled to draw the eminently

reasonable inference that a defendant running an expen-

sive drug trafficking operation without another, legiti-

mate and remunerative occupation is obtaining the funds

to transact his business from his drug transactions.’’ 669

F.2d at 258. Similarly, in United States v. Sisca, the

court wrote,

[I]jn view of his position in the distribution net-

work, the enormous quantity of narcotics involved

(over 200 kilograms annually) and the substantial

sums of money changing hands ($5,000,000 annual-

ly), the jury surely was justified in finding that

Abraham derived substantial income from this

immensely profitable narcotics enterprise.

503 I'.2d at 1346. The court in United States v. Webster

held ‘‘Given the quantity of drugs which were shown to

have been moving in and out of Webster’s possession, the

jury would have been justified in concluding that he had

received tens of thousands or even hundreds of thousands

of dollars from his drug business.’’ 639 F.2d at 182. See

also United States v. Gantt, 617 F.2d 831, 847 (D.C. Cir.

1980); United States v. Valenzuela, 596 F.2d 1361, 1368

(9th Cir. 1979); United States v. Phillips, 664 F.2d 971,

1035 (5th Cir., Unit B, 1981).

In all of these cases, the courts either found direct evi-

dence of substantial income or concluded that the quan-

tities of drugs involved justified an inference that sub-

stantial income was obtained from the sales.

No such inference can be made in this case. The three

drug transactions set out in the indictment did not result

in any income or resources to the defendant. Each of the

smuggling ventures was thwarted.

i2

C, Statutory Construction

The Court of Appeals decision was premised, in part, on

“one fundamental principle of statutory construction,

‘words will be interpreted as taking their ordinary, con-

temporary, common meaning.’”’ 710 F.2d at 698. How-

ever, equally profound principles of statutory construc-

tion were overlooked by the court.

A statute should be construed so that effect is given to

all its provisions, so that no part will be inoperative or

superfluous, void or insignificant. United States v. Diner-

stein, 362 F.2d 852 (2d Cir. 1966); Zeigler Coal Co. v.

Klepper, 536 F.2d 398 (D.C. Cir. 1976); 2A SUTHER-

LAND STATUTORY CONSTRUCTION, § 46.06

(1973). The court’s holding virtually negates the ‘‘sub-

stantial income or resources’’ requirement. All § 848 cases

involve drug transactions by ‘‘Kingpins.” United States v.

Phillips, 664 F.2d at 1013 n. 62. In every case where the

other elements of the offense are proven, there will neces-

sarily be at least constructive possession of drugs. Con-

sequently, a defendant will always derive ‘‘resources’’ as

defined by the Court of Appeals and the element will

become superfluous.

The Court of Appeals’ error results from its violation of

an even more fundamental principle of statutory con-

struction: It is always an unsafe way of construing a

statute or contract to divide it by a process of etymologi-

cal dissection, and to separate words and then apply to

each, thus separated from its context, some particular

definition given by lexicographers and then reconstruct

the instrument upon the basis of these definitions. Addi-

son v. Holly Hill Fruit Products, Inc. 322 U.S. 607 (1944);

Philbrook v. Glodgett, 421 U.S. 707 (1975).

,

13

The court’s dictionary definition of the term “re-

sources” gives content to one word at the expense of the

integrity of § 848 as a whole.

D. The Trial Judge Did Not Instruct the Jury That

Drugs Could Constitute “Substantial Resources.”

Finally, it should be noted that the trial judge did not

instruct the jury that drugs could constitute substantial

resources. Whether the jurors had a copy of Webster’s

dictionary during their deliberations is not known. But

because the jury was not instructed on this matter, their

verdict cannot be upheld on the novel theory announced

for the first time in the Court of Appeals. Cf. United

States v. Raffone, 693 F.2d 1343, 1346 (11th Cir. 1982)

(failure to give “‘Pinkerton’’ liability instructions pre-

cludes upholding verdict on this theory).

CONCLUSION

The Continuing Criminal Enterprise statute provides

for the most Draconian penalties in the Federal Criminal

Code. Sentences which cannot be probated or suspended

and the unavailability of parole (21 U.S.C. § 848(C)) re-

sults in prison terms far in excess of those imposed in

capital cases. To broaden by judicial fiat the category of

offenders punishable under this section is unconscionable.

Congress has singled out those persons who have made

substantial income or resources from three drug law viola-

tions. It is not the office of the courts to ignore this re-

quirement or to render it superfluous by allowing proof of

the drug law violations themselves to satisfy this inde-

pendent requirement.

14

For the foregoing reasons, Petitioner respectfully urges

the Court to issue a writ of certiorari to the Eleventh

Circuit to review the decision of that Court affirming the

conviction of Petitioner.

Respectfully submitted,

GARLAND, NUCKOLLS & CATTS, P.C.

Epwarp T. M. GARLAND

STEVEN H. Sapow

DonaLp F. SAMUEL

92 Luckie St., N.W.

Atlanta, Ga. 30303

404/577-2225

15

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the fore-

going Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit upon Melissa

Mundell, AUSA, U.S. Courthouse, Bull & State Streets,

Savannah, Ga. 31412, by depositing same into the

United States Mail with the correct amount of postage

affixed thereto to ensure delivery.

This day of January, 1984.

Dona.p F. SAMUEL

APPENDIX

APPENDIX

UNITED STATES of America,

Plaintiff- Appellee,

v.

Bruce GRAZIANO, Sam Ward,

Defendants- Appellants.

UNITED STATES of America,

Plaintiff- Appellee,

Vv.

Bruce GRAZIANO, Defendant- Appellant.

Nos. 81-7569, 81-7657.

United States Court of Appeals,

Eleventh Circuit.

July 25, 1983.

Rehearing and Rehearing En Banc

Denied Nov. 1, 1983.

Defendants were convicted before the United States

District Court for the Southern District of Georgia,

Anthony A. Alaimo, C.J., of drug offenses, and they ap-

pealed. The Court of Appeals, R. Lanier Anderson, III,

Circuit Judge, held that: (1) since defendant’s attorney

did not have to comment on jointly tried codefendant’s

silence to avoid real prejudice to defendant denial of

severance was not abuse of discretion; (2) there was no

plain error in use of phrase ‘‘anticipated profits” in defining

the “substantial income’’ element of offense of engaging

la

2a

in a continuing criminal enterprise; (3) subject marijuana

itself was a “resource’’ for purpose of the continuing

criminal enterprise conviction; (4) the 4,800 pounds of

marijuana was a “‘substantial’” amount; and (5) offense of

conspiracy to possess marijuana with intent to distribute

was a lesser included offense of engaging in a continuing

criminal enterprise.

Affirmed in part and vacated in part.

See also, 11th Cir., 682 F.2d 1384.

1. Criminal Law 622(1), 1148

District court has discretion to grant or deny a sever-

ance of defendants and its judgment will not be over-

turned absent abuse. Fed.Rules Cr.Proc.Rule 14, 18 U.S.

C.A.

2. Criminal Law 622(1)

Real prejudice requiring severance occurs only if the

defenses offered by jointly tried defendants are antagonis-

tic and mutually exclusive. Fed.Rules Cr.Proc.Rule 14,

18 U.S.C.A.

3. Criminal Law 622(2)

Denial of defendant’s severance motion was not abuse

of discretion as counsel did not need to comment on joint-

ly tried codefendant’s silence to avoid real prejudice. Fed.

Rules Cr.Proc.Rule 14, 18 U.S.C.A.

4. Drugs and Narcotics 73

A person is engaged in a “continuing criminal enter-

prise” only if he obtains substantial income or resource

from a continuing series of violations of the Comprehen-

sive Drug Prevention and Control Act. Comprehensive

Pad

3a

Drug Abuse Prevention and Control Act of 1970, § 408,

21 U.S.C.A. § 848.

See publication Words and Phrases for other judicial

constructions and definitions.

5. Criminal Law 1043(1)

Where defendant did not sufficiently object to use of

phrase ‘‘anticipated profits” in proposed instruction on

offense of engaging in a continuing criminal enterprise the

instruction was reviewed under the plain error standard.

Comprehensive Drug Abuse Prevention and Control Act

of 1970, § 408, 21 U.S.C.A. § 848.

6. Criminal Law 844(1)

It is defense counsel’s duty to identify a jury instruc-

_ tion’s erroneous language. Il’ed.Rules Cr.Proc.Rule 30,

18 U.S.C.A.

7. Criminal Law 1043(2)

Where in objecting to the “substantial income”’ ele-

ment of instruction defining continuing criminal enter-

prise liability under Comprehensive Drug Prevention and

Control .\ct counsel’s concern was not directed at antici-

pated income but income obtained from prior conduct

not connected with the charged offenses, appellate review

was limited to whether the instruction was plain error,

notwithstanding that counsel objected generally to the

instruction on substantial income. Comprehensive Drug

Abuse Prevention and Control Act of 1970, § 408, 21

U.S.C.A. § 848.

8. Criminal Law 1043(2)

Although requested instructions did not use the word

“anticipated,” the instructions did not substitute for

4a

specific objection that the phrase ‘‘anticipated income”’ in

the court’s instructions did not meet requirements of the

“substantial income” aspect of continuing criminal enter-

prise liability under drug laws. Comprehensive Drug

Abuse Prevention and Control Act of 1970, § 408, 21

U.S.C.A. § 848; Fed.Rules Cr.Proc.Rule 30, 18 U.S.C.A.

9. Criminal Law 1043(3)

Plain error standard applies even where a defendant

objects on one ground at trial and then argues on appeal

that the objection should have been sustained on another

ground.

10. Drugs and Narcotics 132

There was no plain error in inclusion of phrase “‘antici-

pated profits’ in instruction on the “substantial income’”’

element of offense of engaging in a continuing criminal

enterprise in violation of Comprehensive Drug Abuse

Prevention and Control Act. Comprehensive Drug Abuse

Prevention and Control Act of 1970, § 408, 21 U.S.C.A.

§ 848.

11. Criminal Law 1043(2)

Plain error rule must be carefully applied to avoid con-

flicting with rule barring one from assigning error to an

instruction unless objection is distinctly stated. Fed.Rules

Cr.Proc.Rule 30, 18 U.S.C.A.

12. Criminal Law 561(1)

Evidence is sufficient to sustain conviction if a reason-

able trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt.

ee is &

5a

13. Criminal Law 1144.13(3)

To evaluate sufficiency of the evidence, the evidence is

viewed in the light most favorable to the government.

14. Drugs and Narcotics 123

Evidence in prosecution for engaging in a continuing

criminal enterprise in violation of Comprehensive Drug

Abuse Prevention and Control Act supported conviction

as reasonable jury could find that defendant obtained

substantial resources from a continuing series of federal

drug violations and that he occupied a supervisory posi-

tion in three separate drug incidents. Comprehensive

Drug Abuse Prevention and Control Act of 1970, § 408,

21 U.S.C.A. § 848.

15. Drugs and Narcotics 123

Marijuana which was subject of importation and trans-

portational schemes was itself a ‘‘resource’’ for purpose of

engaging in a continuing criminal enterprise in violation

of Comprehensive Drug Abuse Prevention and Control

Act. Comprehensive Drug Abuse Prevention and Control

Act of 1970, § 408, 21 U.S.C.A. § 848.

See publication Words and Phrases for other judicial

constructions and definitions.

16. Statutes 188

An interpretation according to plain meaning should

give effect to Congress’ intention.

17. Drugs and Narcotics 73

The 4,800 pounds of marijuana loaded into delivery

truck was a “‘substantial’’ amount for purpose of convic-

tion of engaging in the continuing criminal enterprise in

6a

violation of Comprehensive Drug Abuse Prevention and

Control Act. Comprehensive Drug Abuse Prevention and

Control Act of 1970, § 408, 21 U.S.C.A. § 848.

See publication Words and Phrases for other judicial

constructions and definitions.

18. Criminal Law 29

Indictment and Information 191

Conspiracy to possess marijuana with intent to distrib-

ute was a lesser included offense of offense of engaging in a

continuing criminal enterprise in violation of Comprehen-

sive Drug Abuse Prevention and Control Act and proper

remedy was to vacate conviction and sentence for the

conspiracy offense. Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, §§ 406, 408, 21 U.S.C.A.

$$ 846, S48.

Gerland, Nuckolls & Cetts, Edward T. M. Gerland,

Steven H. Sadow, Atlanta, Ga., for Graziano.

Orion Douglass (Court-appointed), Brunswick, Ga., for

Ward.

William H. McAbee, Melissa 8. Mundell, II, Asst. U.S.

Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the

Southern District of Georgia.

Before KRAVITCH, HENDERSON and ANDER-

SON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

7a

Appellants Bruce Graziano and Sam Ward were con-

victed of several drug-related offenses.'! After reviewing

appellants’ several claims of error, we vacate Graziano’s

con\ iction and sentence for the offense charged in Count

XI under 21 U.S.C.A. § 846 (West 1981) (conspiracy to

possess marijuana with intent to distribute). We affirm

Graziano’s other convictions and sentences, and we affirm

Ward’s convictions and sentences. Our analysis of appel-

lants’ principal contentions is detailed below.

I, SEVERANCE

{1} Ward argues that the district court erred in not

granting his motion for severance under Fed.R.Crim.P.

14.2 The district court has discretion to grant or deny a

Rule 14 motion for severance of defendants, and the dis-

trict court’s judgment. will not be overturned in the

absence of an abuse of that discretion. United States v.

Butera, 677 F.2d 1376, 1385 (11th Cir. 1982), cert. denied,

' Graziano was found guilty of engaging in a continuing criminal

enterprise (21 U.S.C.A. § 848 (West 1981)), attempting to import

marijuana (21 U.S.C.A. § 963 (West 1981)), possessing marijuana

with intent to distribute (21 U.S.C.A. § 841(a)(1) (West 1981)), using

a communication facility to facilitate a felony (21 U.S.C.A. § 843(b)

(West 1981)), attempting to possess marijuana with intent to dis-

tribute (21 U.S.C.A. § 846 (West 1981)), conspiring to possess mari-

juana with intent to distribute (21 U.S.C.A. § 846 (West 1981)), and

aiding and abetting (18 U.S.C.A. § 2 (West 1969)). Sam Ward was

found guilty of attempting to import marijuana (21 U.S.C.A. § 963

(West 1981)), possessing marijuana.with intent to distribute (21

U.S.C.A. § 841(a)(1) (West 1981)), using a communication facility

to facilitate a felony (21 U.S.C.A. § 843(b) (West 1981)), attempting

to possess marijuana with intent to distribute (21 U.S.C.A. § 846

(West 1981)), and aiding and abetting (18 U.S.C.A. § 2 (West 1969)).

* Rule 14 states that “If it a that a defendant . . . is preju-

diced by a joinder . . . of defendants in an indictment or information

or by such joinder for trial together, the court may .. . grant a

severance of defendants or provide whatever other relief justice

requires.”’

8a

__.:- U.S. —__, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983);

United States v. Nickerson, 669 F.2d 1016, 1022 (5th Cir.

1982) (Unit B); United States v. Berkowitz, 662 F.2d 1127,

1132 (5th Cir. 1981) (Unit B).* To prevail on a severance

claim, ‘appellant must demonstrate that he received an

unfair trial and suffered compelling prejudice against

which the trial court was unable to afford protection.”

Id. at 1132. We hold that Ward has not demonstrated

such compelling prejudice. See United States v. Butera,

supra: United States v. Marszalkowski, 669 F.2d 655, 660

(11th Cir. 1982), cert. denied, _. - U.S. ____, 103 8.Ct.

208, 74 L.Ed.2d 167 (1982).

Ward's specific argument concerning DeLuna v. United

States, 308 F.2d 140 (5th Cir. 1962), deserves further

mention. Ward’s co-defendant, Graziano, did not testify

at the trial, and Ward’s attorney sought to comment on

Graziano’s silence in closing argument. The district court

ruled that the attorney could not comment on Graziano’s

failure to take the stand. Ward contends that such com-

ment was necessary to contrast Ward’s willingness to

testify with any inferences of guilt that could be asso-

ciated with Graziano’s unwillingness to testify. Ward

cites DeLuna wherein it was stated in dictum:

If an attorney’s duty to his client should require him to

draw the jury’s attention to the possible inference of

ilt from a co-defendant’s silence, the trial judge’s

uty is to order that the defendants be tried separately.

* In Stein v. Securities, Inc., 667 F.2d 33 (11th Cir.1982),

this court ado as binding precedent all of the ber 30,

1981, decisions of Unit B of the former Fifth Circuit. Jd. at 34. Cf.

Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc) (adopting as binding precedent all of the decisions of the former

conan inet) handed down prior to the close of business on Septem-

, 1981).

Ca

DeLuna v. Cnited States, 308 F.2d at 141.4

'2) As DeLuna has been construed, the defendant's at-

torney has a clear duty to comment on a co-defendant’s

silence only when those comments are necessary to avoid

real prejudice to the defendant. See United States v.

Kopituk, 690 F.2d 1289, 1819 (11th Cir.1982), cert.

denied, —_— U.S. —-_, 108 S.Ct. 3542, 77 L.Ed.2d 1391

(1983). Real prejudice occurs only if the defenses offered

hy the defendant and the co-defendant are antagonistic

and mutually exclusive. United States v. Vadino, 680 F.2d

1329, 1336 (11th Cir.1982), cert. denied, _. U.S. —__,

103 8.Ct. 1771, 76 L.Ed.2d 344 (1983); United States v.

Nakaladski, 481 ¥.2d 289, 302_(5th Cir.1973), cert. denied,

414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1978);

United States v. Hyde, 448 F.2d 815, 832 (5th Cir.1971),

cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745

(1972); Gurleshi v. United States, 405 F.2d 253, 265 (5th

Cir.1968), cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23

L.E-d.2d 769 (1969). Deluna provides a good example of

antagonistic defenses. Mach defendant in DeLuna sought

to cast total blame for the criminal offense on his co-

defendant. *

{3} In the instant case, the defendants’ defenses were

not sufficiently antagonistic to require severance. Since

Ward’s attorney did not need to comment on Graziano’s

*In DeLuna, the attorney for Gomez, one defendant, commented

on the silence of Deluna, the other defendant. The question was

whether those prejudicial comments infringed vpon DeLuna’s Fifth

Amendment privilege against self-incrimination. 308 F.2d at 141-43.

In the instant case, on the other hand, the district court did not per-

mit Ward’s attorney to comment on Graziano’s silence. Hence, the

question does not center on the Fifth Amendment privilege, but

rather on Ward’s severance claim.

5’ While DeLuna’s co-defendant testified, DeLuna’s defense was

relayed through his attorney. See 308 F.2d at 141-43.

10a

silence to avoid real prejudice to Ward, Ward’s attorney

did not have a clear duty to comment on Graziano’s

silence. DeLuna is inapplicable, and we conclude that the

district court did not abuse its discretion in denying

Ward’s motion for severance.

II. JURY INSTRUCTION ON SECTION 848

[4, 5] 21 U.S.C.A. § 848 defines the offense of engaging

in a continuing criminal enterprise.‘ This offense in-

cludes the element of obtaining “substantial income.” A

person is engaged in a continuing criminal enterprise only |

if he “obtains substantial income or resources” from a

continuing series of violations. Graziano argues that the

district court’s instruction on the ‘“‘substantial income”’

element was erroneous. He contends that the instruction

authorized the jury to find the element of the drug opera-

tions represented substantial anticipated profits to Grazi-

ano, while the statute requires a finding that Graziano

actually obtained substantial income or resources. For

the purpose of evaluating this contention, we assume, but

expressly do not decide, that the statute requires the

actual receipt of substantial income or resources, and

that a defendant who merely engages in drug operations

that represent substantial anticipated profits does not fall

§ 21 U.S.C.A. § 848 (West 1981) provides in relevant part:

B. {Aj person is engaged in a continuing criminal enterprise if —

(1) He violates any provision of this subchapter or subchapter

II of this chapter, the punishment for which is a felony, and

(2) Said violation is a part of a continuing series of violations of

this subchapter or subchapter II of this chapter —

(A) Which are undertaken by such person in concert with five

or more other persons with respect to whom such person occu-

pies a position of organizer, a supervisory position, or any

other position of managment, and

(B) From which such person obtains substantial income or

resources.

i.

lla

within the purview of the statute. After reviewing the

record, we have concluded that Graziano did not suffi-

ciently object to the use of the phrase “anticipated

profits” in the district court’s proposed jury instruction.

As a result, we must evaluate the instruction given under

the “plain error” standard. We conclude that there was

no plain error.

Rule 30 of the Federal Rules of Criminal Procedure

provides in part:

No party may assign as error any portion of the charge

or omission therefrom unless he objects thereto before

the jury retires to consider its verdict, stating distinctly

the manner to which he objects and the grounds of his

objection.

Fed.R.Crim.P. 30. On this appeal, Graziano assigns as

error this part of the district court’s jury instruction:

I charge you that the statutory requirement of receipt

of substantial income or resources is satisfied if you find

that many thousands of dollars changed hands, some

of which was received directly by Defendant Graziano

as a result of drug trafficking operations that repre-

sented substantial, anticipated profit.

Now, the statutory requirement is also met if you find

the drug trafficking operations represented substantial,

anticipated profits to Defendant Graziano.

Record, vol. 9, at 136.

The following exchange occurred out of the jury’s pres-

ence at the trial below. Graziano’s attorney said that

“the income must come from the enterprises alleged in the

indictment, not some prior conduct.” Jd. at 96 (emphasis

added). Graziano’s attorney then requested ‘‘a limiting

instruction to the jury to the effect that the jury would

not be authorized to find the element of substantial in-

come from any transactions other than the transactions

12a

as alleged in the indictment.’ Jd. at 96-97. At that point,

the government attorney agreed with Graziano’s at-

torney and the district judge added that ‘‘the continuing

enterprise could take into consideration other actions on

his part; the question of substantial income could not.”

Id.

Significantly, the district court acceded to Graziano’s

request for a limiting instruction. The court instructed

the jury:

I charge you that the burden is on the Government in

this respect to prove beyond a reasonable doubt that

the substantial income claimed to have been received

by defendant Graziano came from the alleged violations

described in the indictment. Mere expenditures by him

are not enough unless coupled with proof that the

money expended came from the continuing drug viola-

tions alleged in the indictment.

Id. at 136. This instruction came from defense counsel’s

own requests. Compare Record, vol. 2, at 556 (requested

instruction) with id., vol. 9, at 136 (actual instruction).

See also id. at 129 (charging jury that it must find that

Graziano obtained substantial income from the continuing

series of violations which included those in the indict-

ment).

(6, 7] Applying Rule 30’s requirements, we hold that

defense counsel’s statements do not state distinctly an

objection to the instruction’s use of the term “antici-

pated.’”’ Nowhere did defense counsel specifically ground

his objection to the ‘‘substantial income”’ instruction in

the use of the word ‘‘anticipated.’’ It is defense counsel’s

duty to identify a jury instruction’s erroneous language.

United States v. Spiegel, 604 F.2d 961, 970 (5th Cir.1979),

cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787

13a

(1980). If Graziano’s attorney sought to delete reference

to the term “‘anticipated,”’ this was not made clear from

any of his statements.’ Indeed, his statements indicate

that his concern was not directed at anticipated income.

Instead, Graziano’s attorney evidenced concern about the

jury considering income obtained from prior conduct not

connected with the offenses charged in the indictment.

Record, vol. 9, at 96.

(8, 9] Since Graziano’s attorney did not adequately

object to the use of the word “anticipated” in the jury

instruction,* our inquiry on appeal concerns the question

whether the instruction constitutes plain error. See

United States v. Spiegel, 604 F.2d at 970. Graziano’s at-

torney, to be sure, did object generally to the instruction

on substantial income. However, his objection, as we have

indicated, centered on the fear that the jury would find

Graziano guilty based on his receipt of substantial income

from prior conduct. The plain error standard applies even

where the defendant objects on one ground at trial and

then argues on appeal that the objection should have been

? Graziano’s attorney also said that he believed that “the court is

inadequately charging on the subject matter of the substantial income

from the enterprise.’ Jd. at 99. Graziano’s attorney sought to have

the court consider his requested instructions which he had written by

hand immediately before submitting them. Finally, Graziano’s at-

torney said that he wanted the court ‘to know that we object to the

charges given on page 38(e) and (f) as being insufficient .. . as a

matter of law.”’ Jd. at 101; see also, id. at 148-50.

* Immediately before the district court was ready to charge the

jury, Graziano’s attorney sought to submit his requested instructions

on § 848. These instructions did ot use the word “anticipated.’’ It is

too much to ask of the district court that it would be able to discern

from these requested instructions that defense counsel objected to the

use of the word “anticipated.’’ Under Rule 30, moreover, requested

instructions do nct substitute for specific objections to the court's

a See United States v. Byrd, 542 F.2d 1026, 1028 (8th Cir.

1976).

l4a

sustained on other grounds. See United States v. Pool,

660 F.2d 547, 559 n. 4 (5th Cir.1981) (Unit B); United

States v. Fox, 613 F.2d 99, 101 (5th Cir.1980).

{10, 11] Under the plain error standard, the defendant

must demonstrate that “ ‘the charge, considered as a

whole, is so clearly erroneous as to result in a likelihood of

& grave miscarriage of justice,’’’ or that the charge

‘ ‘seriously affects the fairness, integrity, or public repu-

tation of judicial proceedings.’ ’’ United States v. Thevis,

665 F.2d 616, 645 (Sth Cir.1982) (Unit B), cert. denied,

456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303, US.

__—, 102 S.Ct. 3489, 73 L.Ed.2d 1370, & _.__ U.S. —_.,

103 8.Ct. 57, 74 L.Ed.2d 61 (1982) (quoting from United

States v. Varkonyi, 645 F.2d 453, 460 (5th Cir.1981) (Unit

A), and United States v. Adams, 634 F.2d 830, 836 (5th

Cir.1981)). The jury charge, even though it included the

term ‘‘anticipated,” was not plain error.’ A fair interpre-

tation of the entire charge suggests that the jury was

directed to find the substantial income element only if

Graziano obtained substantial income from ‘‘the alleged

violations described in the indictment.”’ Record, vol. 9,

at 136. Significantly, that phrase came from the requested

instructions submitted by Graziano’s attorney. This sug-

gests to us that, had Graziano’s attorney specified that

the use of the word “anticipated” was objectionable, the

district court would have corrected any lingering am-

biguity. See United States v. Thevis, 665 F.2d at 645. There

was no plain error here.

* We note that the plain error rule must be carefully applied to

avoid conflicting with the requirements of Rule 30. See United States

v. Gerald, 624 F.2d 1291, 1300 (5th Cir. 1980), cert. denied, 450 U.S.

920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981).

l5a

Ill. SUFFICIENCY OF THE EVIDENCE

(12-14] Graziano contends that the evidence is insuffi-

cient to support his conviction under 21 U.S.C.A. § 848 !°

because the evidence did not prove that he obtained sub-

stantial income or resources from engaging in a continu-

ing criminal enterprise. Evidence is sufficient to sustain a

criminal conviction if a reasonable trier of fact could find

that the evidence establishes guilt beyond a reasonable

doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.

1982) (en bane). To evaluate the sufficiency of the evi-

dence, the evidence is vicwed in a light most favorable to

the government. Classer v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Applying these

standards, we hold that the evidence was sufficient to

allow a reasonable jury to find that Graziano obtained

substantial resources from a continuing series of federal

drug violations.

The government’s evidence slowed that Graziano oc-

cupied a supervisory position in three separate incidents. !!

lirst, the evidence indicated that Graziano directed the

attempted importation of approximately 40,000 pounds of

marijuana and that this attempted offload was thwarted

by the Coast Guard’s capture of the mother ship. Second,

the evidence detailed Graziano’s participation in an at-

tempt to import 60,000 to 80,000 pounds of marijuana.

This offload operation never took place. Third, the evi-

dence outlined the arrangements which Graziano had

made for transporting marijuana from a stashhouse in

South Carolina to New York City. As it turned out, Gra-

‘® See note 6 supra.

"' Three violations of the relevant subchapters in Title 21 consti-

tute a “continuing series of violations” under § 848. United States v.

Phillips, 664 F.2d 971, 1013 (5th Cir. 1981) (Unit B), cert. denied,

457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

ita

ziano had engaged undercover agents to drive the de-

livery truck. Four thousand eight hundred pounds of

marijuana were loaded into the truck, but since the

undercover agents drove the delivery truck, this opera-

tion also ended in failure.

{15) Graziano argues that the governmént failed to

adduce any evidence that he received substantial income

or resources from these operations. While his argument is

appealing at first glance, it ultimately suffers from an ex-

cessively narrow reading of § 848’s requirements. Gra-

ziano’s claim that he never received income from the

three drug violations overlooks the plain language of

§ 848. By its very terms, § 848 illustrates Congress’ intent

to punish those persons who receive substantial ‘‘re-

sources.’’ Although the statute does not explicitly define

the term ‘resources’, basic principles of statutory con-

struction suggest that marijuana itself is a resource, for

purposes of applying § 848.

Under one fundamental principle of statutory construc-

tion, ‘‘words will be interpreted as taking their ordinary,

contemporary, common meaning,” unless otherwise de-

fined. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct.

311, 314, 62 L.Ed.2d 199 (1980); United States v. Scrim-

geour, 636 F.2d 1019, 1022 (5th Cir.1981) (Unit B), cert.

denied, 454 U.S. 878, 102 S.Ct. 359, 70 L.Ed.2d 188 (1981).

The common contemporary meaning of resources is ‘‘a

natural source of wealth or revenue.’’ Webster’s New Col-

legiate Dictionary 978 (1979). In the context of a criminal

statute dealing with drug violations, marijuana fits this

definition.

[16] Of course, an interpretation according te plain

meaning should give effect to Congress’ intention. United

States v. Apfelbaum, 445 U.S. 115, 121, 100 8.Ct. 948, 952,

17a

63 L.Ed.2d 250 (1980). In enacting § 848 and its com-

panion provisions, Congress made its general purpose

quite clear: to strengthen control and law enforcement

over importation, manufacture, distribution, and posses-

sion of controlled substances. See 21 U.S.C.A. § 801(2)

(West 1981). Section 848 in particular was “intended to

serve as a strong deterrent to those who otherwise might

wish to engage in the illicit traffic, while also providing a

means for keeping those found guilty of violations out of

virculation.”’ H.R.Rep. No. 1444, 91st Cong.2d Sess. 10,

reprinted in 1970 U.S. Code Cong. & Ad. News 4566, 4576.

“ection S48 effectuated Congress’ intent to punish severly

professional criminals engaged in continuing criminal

drug violations. See Jeffers v. United States, 432 U.S. 137,

148 n. 14, 97 S.Ct. 2207, 2215 n. 14, 53 L.Ed.2d 168 (1977)

(summarizing House floor debates).!2 This evidence of

Congress's general purpose supports our interpretation of

marijuana as a § 848 resource.

117} With our understanding that ‘resources’’ can

mean marijuana itself, we have no difficulty in finding that

Graziano obtained substantial resources. In particular,

the third operation provides sufficient evidence that

Graziano obtained substantial resources. As we have al-

ready indiceted, the marijuana itself was a resource.

'? We note that, while the statute’s plain language and Congress’

general purpose support our construction of the word “resources,”

the legislative history is silent on its meaning. The term “resources,”

when mentioned, is left undefined. H.R.Rep. No. 1444, 91st Cong.2d

Sess. 32 & 50, reprinted in 1970 U.S.Code Cong. & Ad.News 4566,

4599 & 4618: S.Rep. No. 613, 91st Cong., Ist Sess. 28 & 121 (1969).

Four members of the House Interstate and Foreign Commerce Com-

inittee submitted additional views, in which they stated that “i]t is

not at all clear what is meant by deriving substantial income or re-

sources from the enterprise.” H.R.Rep. No. 1444, 91st Cong., 2d

oP reprinted in 1970 U.S.Code Cong. & Ad.News 4566,

4651-52.

18a

Graziano “obtained’’ that marijuana; evidence showed

Graziano’s constructive possession of it. See United States

v. Davis, 679 F.2d 845, 854 (11th Cir.1982), cert. denied,

U.S. ___., 108 S.Ct. 1198, 75 L.Ed.2d 441 (1983).

The 4,800 pounds of marijuana qualifies as a “‘substan-

tial’ amount. United States v. Phillips, 664 F.2d 971, 1035

(5th Cir.1981) (Unit B) (defendant received substantial

income from 3,800 pounds of marijuana); United States v.

Losada, 674 F.2d 167, 173 (2d Cir.1982), cert. denied, 457

U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982).

Overall, the evidence revealed Graziano’s key manage-

ment role in the several attempted drug operations.'* That

evidence, combined with the specific acquisition of the

4,800 pounds of marijuana, is sufficient to justify convic-

tion under § 848. United States v. Chagra, 669 F.2d 241,

257 (5th Cir.1981) (Unit A); United States ». Phillips, 664

F.2d at 1035.

IV. SENTENCING

[18] Graziano asks this court to vacate the conviction

and sentence he received for Count XI, the § 846 offense

of conspiracy to possess marijuana with intent to distrib-

ute. This § 846 offense of conspiracy is a lesser-included

offense of the § 848 offense of engaging in a continuing

criminal enterprise. See Jeffers v. United States, 482 U.S.

137, 149-50, 97 S.Ct. 2207, 2215-16, 53 L.Ed.2d 168

(1977); United States v. Michel, 588 F.2d 986, 1001 (5th

Cir.1979), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62

‘8 For example, Graziano paid out front money to agents totaling

$19,990. When one agent pressed him for more front money, Graziano

explained that he had lost money in the unsuccessful first attempted

importation. Graziano concedes that the evidence could be in-

terpreted to show that he had a proprietary interest in this first load

of marijuana. Appellant’s Brief at 24.

19a

L.Ed.2d 32 (1979). In such circumstances, the proper

remedy is to vacate both the conviction and sentence of

the § 848 conspiracy offense. See United States v. Michel,

588 F.2d at 1001. We therefore vacate Graziano’s con-

viction and sentence for conspiracy to possess with intent

to distribute marijuana (Count XI).

V. CONCLUSION

We have examined the other contentions advanced by

appellants Ward and Graziano. We reject these conten-

tions.

Accordingly, appellant Ward’s convictions and sen-

tences are AFFIRMED.

Appellant Graziano’s conviction and sentence for Count

XI, the § 846 offense of conspiracy to pessess marijuana

with intent to distribute, are VACATED. Appellant

Graziano’s other convictions and sentences are AF-

FIRMED.